Not all Texas drug laws are related specifically to the possession or trafficking of a controlled substance. The possession of drug paraphernalia is also a common criminal offense. Paraphernalia includes the items used to consume, smoke, inhale, or inject drugs. Possession of paraphernalia is typically a misdemeanor; however, the consequences of a paraphernalia conviction can be life-changing.
For someone also charged with possession or distribution charges, a misdemeanor charge might not mean much. But If you're facing a single possession of drug paraphernalia charge with an otherwise clean record, a conviction can be impactful. Not only could you face jail time and hefty fines, a conviction for drug paraphernalia could also affect your ability to drive a car or get a job.
Elements of Possession of Drug Paraphernalia in Texas
The Texas Health and Safety Code defines generally what drug paraphernalia can include. According to the code:
A person commits an offense if the person knowingly or intentionally uses or possesses with intent to use drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, or conceal a controlled substance in violation of this chapter or to inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter.
The statute also provides that it is a criminal violation to provide an item to another while knowing that person intends to use it for drug purposes. Drug paraphernalia arrests frequently involve items designed for use with tobacco products, including bongs, pipes, and rolling papers. While the type of items you might buy in a “smoke shop” are the most common, the law also applies to household items that have been re-purposed for use with controlled substances. A non-conclusive list of items that might be considered paraphernalia includes but is not limited to:
- Rolling papers
- Roach clips
- Hollowed fruit
- Roach clips
- Surgical masks
- Aerosol cans
- Tubes of glue
For the state to obtain a conviction for possession of drug paraphernalia, it must be able to show that the alleged paraphernalia was used or intended to be used in conjunction with a controlled substance. It is the job of your defense attorney to hold the prosecutor to prove the object was intended for an unlawful purpose. Your attorney may be able to show a jury that the so-called drug paraphernalia was a harmless household item that was never intended for illegal use.
Penalties for Drug Paraphernalia in Texas
The penalty for a conviction for possession of drug paraphernalia varies depending on the circumstance, but typically they are written as Class C misdemeanors. In some cases, they can be increased to Class A misdemeanors or even a state jail felony. One thing every paraphernalia conviction has in common is an automatic suspension of your driver's license. If you are 21 years or older the suspension will last 180 days. However, if you are under the age of 21 the suspension will last one full year.
Each conviction of possession of drug paraphernalia under Texas law is treated as a Class C misdemeanor so long as there are no factors present that upgrade the crime to a more serious charge. A Class C misdemeanor is the lowest level of criminal charge you can face under Texas law. It carries a maximum fine of $500 but does not carry any jail time.
Although merely possessing drug paraphernalia with the intent to use them in conjunction with a controlled substance is a Class C misdemeanor, you can face a more serious charge if that paraphernalia was intended for another person. Specifically, delivering, possessing with the intent to deliver, or manufacturing drug paraphernalia with the intent to deliver to another person is a Class A misdemeanor. In Texas, a Class A misdemeanor is punishable by up to a year in jail and up to $4,000 in fines. If you have a previous Class A misdemeanor conviction for possession of drug paraphernalia, you will face a minimum of 90 days in jail.
Possession of drug paraphernalia is considered a state jail felony if you deliver, possess with the intent to deliver, or manufacture with the intent to deliver drug paraphernalia to a person that is under the age of 18 and at least 3 years younger than you. A state jail felony carries a penalty of between 180 days and 2 years confinement in the State Jail Division of the Texas Department of Criminal Justice. A state jail felony also carries a maximum fine of $10,000.
Defenses for drug paraphernalia
There are a number of viable defenses to a charge of possession of drug paraphernalia. These defenses include but are not limited to:
The use of some controlled substances is authorized under the law with a valid doctor's prescription. This coverage extends to any device used to administer legally possessed substances. For example, a syringe full of a drug prescribed by your doctor would not be a criminal act.
Unlawful Search and Seizure
If the evidence the prosecutor intends to use against you was obtained by law enforcement through an illegal search or seizure of your person or property, it cannot be used against you. Known as the “fruit of the poisonous tree,” any evidence that can be traced back to an illegal search or seizure can be kept out of your trial by an experienced criminal defense lawyer.
A key component of proving possession of drug paraphernalia is proving criminal intent. If you were unaware that you were even in possession of paraphernalia, it would impossible that you had the intent to use it in conjunction with a controlled substance.
The Law Office of E. Jason Leach
Ultimately, possession of drug paraphernalia is a crime that centers on intent. While the prosecutor can use circumstantial evidence to suggest what your intent was, an experienced defense attorney can use their experience to show a jury the prosecutor hasn't proven their case. E. Jason Leach is a board-certified expert in criminal defense law. Contact the Law Office of E. Jason Leach, PLLC to set up your complimentary consultation.