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88.10 Drug Paraphernalia

    88.10.3 Drug Paraphernalia: Defenses And Defense Theories

    88.10.3.1 Drug Paraphernalia: Possession Issues And Defenses
    88.10.3.2 Drug Paraphernalia: Defense Theory That Object Was Not Intended For Drug Purposes -- Factors to Consider
    88.10.3.3 Drug Paraphernalia: Constitutional Challenge Based On Vagueness
    88.10.3.4 Drug Paraphernalia: Additional Defenses And Defense Theories

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    See generally FORECITE National™ Chapter 56 [Possession].

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RATIONALE: When it is the defense theory that there was no intent to use the object alleged to be drug paraphernalia for drug purposes it may be appropriate to instruct the jury on the factors to consider.

POINTS AND AUTHORITIES: Where a drug paraphernalia statute requires the defendant to intend to use the object for drug related purposes various factors may logically be relevant. (See e.g., Baggett v. State (FL 1990) 562 So2d 359, 361-62; State v. Dunn (KS 1983) 662 P2d 1286, 1294; State v. Lee (HI 1993) 856 P2d 1246, 1255.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

    In determining whether an object is drug paraphernalia, consider all the logically relevant factors including but not limited to the following:

    (1)    Statements by the owner or person in possession of the object about its use;

    (2)    Whether or not the owner, or person in possession of the object, had any prior drug related convictions;

    (3)    The proximity of the object, in time and space, to a direct violation of any state law relating to any controlled substances;

    (4)    The proximity of the object to controlled substances;

    (5)    Whether or not there was any residue of controlled substances on the object;

    (6)    Any evidence of the intent of an owner, or person in possession of the object, to knowingly deliver it to a person who intends to use the object to introduce into the human body a controlled substance;

    (7)    Instructions, oral or written, provided with the object concerning its use;

    (8)    Descriptive materials accompanying the object which explain or depict its use;

    (9)    National and local advertising concerning the object's use;

    (10)    The manner in which the object is displayed for sale;

    (11)    Whether the owner, or person in possession of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;

    (12)    Evidence of the ratio of sales of the object or objects to the total sales of the business enterprise;

    (13)    The existence and scope of legitimate users for the object in the community; and

    (14)    Expert testimony concerning its use.

    The prosecution must prove beyond a reasonable doubt that the defendant intended that the object be used with a controlled substance. Without the defendant's intent to use the object with a controlled substance, none of the specific examples or factors listed above can transform the object into drug paraphernalia.

[See State v. Lee (HI 1993) 856 P2d 1246, 1255; see also HAWAII PATTERN JURY INSTRUCTIONS - CRIMINAL, HAWJIC 17.01 [Unlawful Use Of Possession With Intent To Use Drug Paraphernalia] (West, 1998).]

[NOTE: Although these factors are statutory in origin, they may provide a useful basis for specific instruction or argument in other jurisdictions.]

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PRACTICE NOTE: A federal district court held that it is Constitutionally vague to define drug paraphernalia as "objects primarily intended or designed for use in drug-related activities." (See U.S. v. Schneiderman (S.D.N.Y. 1991) 777 FSupp 258.) However, the case was reversed on appeal.  (U.S. v. Schneiderman (2nd Cir. 1992) 968 F2d 1564.)

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

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PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)

See generally, FORECITE National™ 305.4.9 [Drug Offenses].