A drug paraphernalia charge in Massachusetts is narrower than most people think. The main statute, G.L. c. 94C, § 32I, does not make it a crime to own a pipe, a scale, or rolling papers for your own use. It targets selling paraphernalia, or possessing, buying, or making it with intent to sell, when the seller knows or reasonably should know it will be used with illegal drugs. Selling to someone under 18 is a felony.
At a Glance: Drug Paraphernalia
Selling is the crime
§ 32I targets selling, or possessing, buying, or making with intent to sell
Up to 2 years
in jail or the house of correction, a fine up to $5,000, or both
Sale to a minor
3 to 5 years state prison or a $1,000–$5,000 fine, or both
Syringes excluded
§ 32I does not apply to syringe sales under § 27
The law: G.L. c. 94C, §§ 1, 32I
What Counts as Drug Paraphernalia
G.L. c. 94C, § 1 defines drug paraphernalia as equipment, products, devices, and materials of any kind that are primarily intended or designed for use in growing, making, processing, preparing, testing, packaging, storing, concealing, ingesting, inhaling, or otherwise introducing a controlled substance into the human body in violation of chapter 94C.
Whether a particular item qualifies is a question for the jury. The statute and the model jury instruction (Instruction 7.840) list factors the jury considers, including:
- how close the item was, in time and place, to a drug violation or to drugs;
- whether there is drug residue on it;
- instructions, descriptive materials, or advertising about its use;
- how it was displayed for sale, and what share of a store’s sales it made up;
- whether the owner is a legitimate supplier of similar items, such as a licensed tobacco dealer;
- whether the item has legitimate uses in the community; and
- expert testimony about its use.
Hypodermic syringes and needles are no longer included in the definition. A 2006 amendment removed them, and § 32I(d) states that the section does not apply to syringe sales under § 27.
What § 32I Covers, and What It Does Not
Sale or intent to sell · § 32I(a)
Selling paraphernalia, or possessing, buying, or making it to sell, knowing or reasonably should know it will be used with drugs
Up to 2 years jail/HOC, up to $5,000, or both
Sale to a minor · § 32I(b)
Selling paraphernalia to a person under 18
3 to 5 years state prison, $1,000–$5,000, or both
Rolling-paper warning · § 32I(c)
A store selling rolling papers must post a printed warning
Fine of $50–$200
Not covered by § 32I
Simply owning a pipe or scale for your own use; syringe sales under § 27
No § 32I charge, but residue can support a possession charge
The law: G.L. c. 94C, § 32I
What the Commonwealth Must Prove
Under Instruction 7.840, the Commonwealth must prove three things beyond a reasonable doubt:
- The item is drug paraphernalia;
- You sold it, or knowingly possessed it with the intent to sell it; and
- When you sold it, you knew it was drug paraphernalia; or, when you possessed it to sell, you knew or reasonably should have known it would be used with a controlled substance in violation of the law.
The instruction can be adapted for charges of buying or making paraphernalia with intent to sell. For a sale to a minor, the Commonwealth must also prove the buyer was under 18. The SJC has held that § 32I and the definition in § 1 are not unconstitutionally vague (Commonwealth v. Jasmin, 396 Mass. 653 (1986)).
Penalties
- Sale, or possessing, buying, or making with intent to sell (§ 32I(a)): up to 2 years in jail or the house of correction, a fine of up to $5,000, or both.
- Sale to a person under 18 (§ 32I(b)): 3 to 5 years in state prison, a fine of $1,000 to $5,000, or both. Because it carries state prison, it is a felony.
- Failure to post the rolling-paper warning (§ 32I(c)): a fine of $50 to $200.
Paraphernalia Found on You
Because § 32I is about selling, a pipe or bag found in your pocket does not by itself support a § 32I charge. But the item is still evidence. Residue on it can support a charge of drug possession, and scales, baggies, or packaging found with drugs are often used to argue intent to distribute.
Defenses
- Not paraphernalia: many items have legitimate uses. The statutory factors cut both ways.
- No sale or intent to sell: personal possession is not a § 32I violation.
- No knowledge: the Commonwealth must prove you knew, or reasonably should have known, the item would be used with illegal drugs.
- Age not proved: for the felony, the Commonwealth must prove the buyer was under 18.
- Syringe exemption: syringe sales under § 27 are outside the statute.
- Unlawful search: items found in an illegal search can be suppressed. See search warrants.
Why a Lawyer Matters
Paraphernalia charges often come bundled with drug possession or distribution charges, and the paraphernalia itself can become the evidence of intent. Separating what the law actually covers from what police assumed can change the outcome. Attorney William J. Barabino has defended drug cases for 23 years. Call 781-393-5900.
Related Charges
Disclaimer
This article is for general educational information about Massachusetts criminal law. It is not legal advice for your situation, and reading it does not create an attorney-client relationship. Laws change. For advice about a specific case, speak with a licensed Massachusetts attorney.
