In the Texas Controlled Substances Act, the term “paraphernalia” refers to products used to manufacture or ingest a controlled substance. More broadly, the term includes equipment used to manufacture, weigh, package, cultivate, grow, harvest, or conceal a controlled substance as well as items designed for using controlled substances.
Possession of paraphernalia is a crime that warrants attention from a Lubbock drug paraphernalia lawyer, as are the delivery, possession with intent to deliver, and manufacturing of paraphernalia.
Even merely passing a marijuana pipe to someone else is a “delivery” of the pipe while making a marijuana pipe from an empty Coke can be charged as “manufacturing,” thereby making it important an experienced drug attorney is consulted to defend you against these charges.
It is important to understand the potential consequences of a drug paraphernalia conviction. Although a simple possession charge is a Class C misdemeanor that is punishable by a fine, every misdemeanor is a criminal offense that results in a criminal record.
It might seem easiest to pay the fine, but having a criminal record can create problems when you want to apply for employment, obtain a professional license or security clearance, or visit a foreign country.
Delivery, possession with intent, and manufacturing are Class A misdemeanors but only if the charge is a first offense and only if delivery was made to an adult or to a minor who is less than three years younger than you. Any delivery of paraphernalia to a minor who is more than three years younger is a felony. A second offense that does not involve a minor carries a minimum 90 day sentence. To avoid being exposed to the harsh consequences of a second offense, you should try to avoid conviction of a first offense.
Types of Drug Paraphernalia
Taken to an extreme, drug paraphernalia could include sandwich bags (if they are intended to hold illicit drugs) or a garden hoe (if it is intended for use in cultivating marijuana plants). Items that might be used to ingest drugs that are specifically mentioned in the Texas Controlled Substances Act include:
- A metal, wooden, acrylic, glass, stone, plastic, or ceramic pipe with or without a screen, permanent screen, hashish head, or punctured metal bowl
- A water pipe
- A carburetion tube or device
- A smoking or carburetion mask
- A chamber pipe
- A carburetor pipe
- An electric pipe
- An air-driven pipe
- A chillum
- A bong
- An ice pipe or chiller
When the intended purpose of a device is unclear, prosecutors may try to prove its intended purpose by introducing evidence of:
- Statements by its owner concerning its use
- The testimony of witnesses who saw the device being used
- The presence of drug residue in or on the object
- Oral or written instructions or advertising materials provided with the object describing or depicting its use
- The manner in which the object is displayed for sale and the nature of other objects for sale by the same vendor
- Expert testimony concerning the item’s use
If the prosecution relies on expert testimony, the defense can call its own expert to testify about the innocent uses of the device.
Whether an item that has an innocent use is or is not drug paraphernalia is not always clear. A pipe, for instance, can be used to smoke tobacco or marijuana, while a syringe can be used to inject insulin or heroin. If the intended use of an item is unclear, that lack of clarity might provide a defense to a charge of possession or distribution of drug paraphernalia.
Possession of Drug Paraphernalia
It is a crime to knowingly or intentionally use, or to possess with intent to use, drug paraphernalia, and the penalties can be extensive. The explanation of “possession” in our article about possession of a controlled substance also applies to drug paraphernalia. It is only a crime to possess an item if that item is intended to be used as drug paraphernalia. If an item has a legal use, the question of its intended use may provide a defense to the charge. Possession of drug paraphernalia is a Class C misdemeanor, punishable by a fine.
Delivery, Possession with Intent to Deliver, or Manufacture of Drug Paraphernalia
It is a crime to knowingly or intentionally deliver, possess with intent to deliver, or manufacture with intent to deliver drug paraphernalia knowing that the person who receives or who is intended to receive it intends that it be used as drug paraphernalia. Our explanations of delivery, possession with intent, and manufacturing controlled substances also apply to drug paraphernalia charges.
If an item has more than one potential use and one of those uses is legal, it may be difficult to prove that the distributor of the item knew the recipient intended to use it as drug paraphernalia (particularly if the distributor did not ask). The difficulty of knowing what another person intends to do with a product can often provide a defense to the charge.
Delivery, possession with intent to deliver, or manufacturing with intent to deliver drug paraphernalia is —
- If none of the following apply, a Class A misdemeanor, punishable by a maximum jail sentence of one year;
- If the defendant has a prior conviction of delivery, possession with intent to deliver, or manufacturing with intent to deliver drug paraphernalia, punishable by a jail sentence of at least 90 days but not more than 1 year;
- If the defendant is at least 18 years old and the drug paraphernalia is delivered to, or intended for delivery to, a person who is younger than age 18 and at least three years younger than the defendant, a state jail felony, punishable by a state jail sentence of at least 180 days but not more than two years.