What is drug paraphernalia?

This post will answer some frequently asked questions about the crime of drug paraphernalia.

What does the law say on selling or possessing drug paraphernalia?

According to Massachusetts law:

“No person shall sell or possess with intent to sell…drug paraphernalia, knowing or under circumstances where one reasonably should know that it will be used to [do one or more of the following] plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of [the law].”

This law states that it is illegal to sell or possess with intent to sell drug paraphernalia when the defendant:

  • Knows
  • Is under circumstances where one reasonably should know

…that the paraphernalia will be used to:

  • Plant
  • Propagate (i.e. spread, breed)
  • Cultivate
  • Grow
  • Harvest
  • Manufacture
  • Compound
  • Convert
  • Produce
  • Process
  • Prepare
  • Test
  • Analyze
  • Pack
  • Repack
  • Store
  • Contain
  • Conceal
  • Ingest
  • Inhale
  • Otherwise introduce into the human body

…a controlled substance in violation of the law.

Note that this law on “selling” and/or “possessing” drug paraphernalia can be adapted to covering a charge of “purchasing” or “manufacturing” with intent to sell drug paraphernalia.

What is drug paraphernalia?

Under Commonwealth law, drug paraphernalia is all equipment, products, devices, and materials of any kind, which are primarily intended, or designed for use in:

  • Planting
  • Propagating (i.e. spread, breed)
  • Cultivating
  • Growing
  • Harvesting
  • Manufacturing
  • Compounding
  • Converting
  • Producing
  • Processing
  • Preparing
  • Testing
  • Analyzing
  • Packaging
  • Repackaging
  • Storing
  • Containing
  • Concealing
  • Ingesting
  • Inhaling
  • Otherwise introducing into the human body

…a controlled substance in violation of the law.

Are syringes and needles drug paraphernalia?

NO, hypodermic syringes or needles are no longer considered drug paraphernalia. Since July of 2006, Commonwealth law has been amended to eliminate the reference to equipment used to “inject” drugs, and to eliminate from the list of examples of drug paraphernalia the prior reference to “hypodermic syringes, needles and other objects used, primarily intended for use or designed for use in parenterally injected [i.e. not orally] controlled substances for the human body.”

How does the court determine if an item is drug paraphernalia?

In determining whether a particular item is drug paraphernalia, juries will consider ALL of the following:

  • The proximity of the item, in time and space, to any direct violation of the law governing controlled substances
  • The proximity of the item to any controlled substances
  • The existence of any residue of controlled substances on the item
  • Instructions, oral or written, provided with the item concerning its use
  • Descriptive materials accompanying the item which explain or depict its use
  • National and local advertising concerning its use
  • The manner in which the item is displayed for sale
  • Whether the owner or anyone in control of the item is a supplier of similar or related items to the community, such as a licensed distributor or dealer of tobacco products
  • Direct or circumstantial evidence of the ratio of sales of the item to the total sales of the business enterprise
  • The existence and scope of legitimate uses for the item in the community
  • Expert testimony concerning its use
  • Any other factors they find to be relevant

What does the government have to show to send someone to jail for possessing or selling drug paraphernalia?

In order to prove that a defendant is guilty of selling drug paraphernalia and/or possessing drug paraphernalia with the intent to sell it, the Commonwealth must prove the following three elements beyond a reasonable doubt:

1. That the item or items in question are drug paraphernalia

2. That the defendant:

  • Sold that item
  • Knowingly possessed that item with the intent to sell it

3. That when the defendant:

  • Sold that item he or she knew it to be drug paraphernalia
  • Possessed that item with the intent to sell it, he or she knew or reasonably should have known that it would be used to:
    • Plant
    • Propagate
    • Cultivate
    • Grow
    • Harvest
    • Manufacture
    • Compound
    • Convert
    • Produce
    • Process
    • Prepare
    • Test
    • Analyze
    • Package
    • Repackage
    • Store
    • Contain
    • Conceal
    • Ingest
    • Inhale
    • Otherwise introduce into the human body

…a controlled substance in violation of the law

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH SALE OF DRUG PARAPHERNALIA OR POSSESSION WITH INTENT TO SELL DRUG PARAPHERNALIA, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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