An Overview Of Drug Paraphernalia Charges In Utah

Interviewer: What are Drug Paraphernalia charges like? How does that differ from an actual drug charge?

Matthew Nebeker: All right.  Well, the drug paraphernalia charges, in Utah, it’s called the Utah Paraphernalia Act.  And you know most of the time, we see the paraphernalia charges arise with someone who was using the Marijuana or a drug in this case for their own use and so, what they’ll have on them is they’ll have a pipe.  Well, let me backup.  The paraphernalia statute, the language in it is extremely broad, you know.  The definition goes on and on for — well, it’s only a one page but I mean it’s just so many different things, it could be kids or for planning or harvesting or manufacturing or converting drugs or testing the equipment like scales, dilutants separators, blenders, bowls, containers, I mean syringes and needles, I mean the definition of what is paraphernalia is really long.

The Statute of Drug Paraphernalia is Very Interesting and Broad

In my practice, I’ve seen a lot of creative things.  I’ve seen one case where the kids were smoking marijuana out of an apple.  They’d taken an apple picked off the tree, made it into a pipe somehow and cut them and using that to smoke Marijuana.  And so, in this case, the officer had to take pictures because that evidence is going to destroy itself because of its — it’s not going to round away.  And so, there’s tons of things and so, first of all, in defining what it is.  And then, because that definition is so broad, the statute goes further in giving everyone direction on — in determining that.  And so, you know, the second part of the statute is considerations in determining whether an object is Paraphernalia or drug paraphernalia.  So, I found that pretty interesting too that we list so many things and now, we have to list — provide a list of how we can narrow these things down.

The Court Can Use a Prior Conviction for Paraphernalia as a Factor in a New Case

I’d just give you a few examples about what that is and so, the statute talks about statements by the owner or anyone in control of the object.  So, if you know my client says “I have that apple” and they had it up to their mouth and the officer says “Well, what are you doing with that?”  And the client says “Well, we’re smoking Marijuana.”  That apple in addition to the Marijuana, so it’s going to be paraphernalia.  So, you’re going to have two charges there; the Marijuana inside the pipe and then, the apple for being the paraphernalia. The other interesting one was prior convictions.  If any of an owner or anyone in control of an object that we — an officer might believe is paraphernalia and they have a prior conviction for paraphernalia, the court can use that as a factor in the new case.  To me, that’s a little bit crazy, yes.  So, you know, if there’s proximity in time and space to the object, if there’s any residue, if there are any instructions, any descriptive materials accompanying the object, and so that’s what we have to look at in defending these charges is was that really paraphernalia and how can we — how can the prosecution prove that it is or any of these factors there involved.

Typically a Drug Paraphernalia Charge is a Class B Misdemeanor punishable by up to 6 months in Jail

Like I mentioned, in most cases it’s just the Class B misdemeanor, the maximum penalty on that is the six months in jail and/or up to $1,000 in fines.  Now, it does get a little bit steeper and the statute does go a little bit further in saying that “Well, if you’re in possession of this object and we find it paraphernalia and you’re getting ready to deliver it to someone or give it to someone for them to use, then we’re going to bump it up a degree, we’re going to make it an A misdemeanor subjected to a year in jail or $2,500 in fines. Then, the final step that they go to is if, you know, you’re over 18 and you have this object that we find is drug paraphernalia and you’re delivering it to someone who is under 18 and you’re going to give it to them for them to use and ingest and — for their own benefits, then you’re looking at the third degree felony and that’s 5-years in prison and the $5,000 fine.

Paraphernalia Charges Usually Accompany More Serious Drug Charges

Like I mentioned, as it kind of relates to DUI and the cases that I see is they find the paraphernalia, you know, as a result of an arrest for DUI, they searched the car and they searched the person and they have a ball on them or some wrapping papers and they, you know, find a bag Marijuana enwrapped in papers, they would charge paraphernalia for those wrapping papers.

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