Under MCL 333.7451, drug paraphernalia is defined as any of the following or combination of any material, equipment, or product that is specifically used for: cultivating, growing, planting, compounding, processing, packaging, testing, storing, concealing, harvesting, analyzing, inhaling, injecting, ingesting, or otherwise introducing a controlled substance into the human body. Some examples of drug paraphernalia would include: marijuana pipes, drug scales (used for weighing), rolling papers, razor blades, mirrors, cocaine kit materials.
Actual Possession and Constructive Possession
The paraphernalia or equipment does not have to be directly on your person in order to be in “possession.” If you know where the paraphernalia is and have reasonable access to it or control over it, you can be held to be in “constructive possession.” For example, if you have drug scales or rolling papers in the console of your car, in a backpack in the back seat, or in the glove box—you would be in “constructive possession.” Constructive possession can occur anywhere including your car, home, or workplace.
Defenses to Drug Paraphernalia Charges
There are several legal defenses that can be used for drug paraphernalia charge. Here are some of the available defenses:
- Lack of Knowledge—This can come into play in a couple of different ways since this is a specific intent crime. In order to be convicted, you have to know the paraphernalia is there and you have to intend to use it for a drug-related purpose. If you did not know the material was where it was found or if you knew it was there but intended to use it for a legitimate legal purpose (e.g. kitchen scales, rolling papers for cigarettes), that is a legitimate defense
- Mere Presence—Someone is not guilty of the offense merely because they were in the vicinity or in company with someone who did possess drug paraphernalia. The prosecutor would still have to prove that you knew the materials were there and you had some kind of dominion and control over it.
- Item Not Used for Drug-Related Purposes—An item only is considered paraphernalia if it is used for drug-related purposes. For instance, rolling paper would not be considered drug paraphernalia if it was used for rolling cigarettes.
- Legally Valid Reasons for Possessing the Material—Certain qualified patients and caregivers may legally possess drug paraphernalia and use it in cultivating medical marijuana if they have the proper certifications and are using it and storing it as authorized under the law.
Fourth Amendment “Search and Seizure” Issues
There may be grounds to challenge the initial police contact (vehicle stop, Terry stop) or search. If the court finds there is a sufficient basis under the Fourth Amendment to challenge the stop or search, then the evidence can be suppressed and the case is dismissed. The police need “reasonable suspicion” to pull a car over. Anything from a minor traffic violation to barely crossing the center line will do. To search they need a warrant or a valid warrant exception, such as “plain view” or consent. For a Terry stop or brief patdown, the police need “reasonable suspicion” that you did engage, are currently engaging, or are about to engage in criminal activity. Only an experienced Michigan criminal defense attorney after thoroughly reviewing the police reports and video will be able to make that determination.
Penalties for Drug Paraphernalia
If convicted of possession of drug paraphernalia, you are guilty of a misdemeanor punishable by up to 90 days in jail and/or $5,000 in fines. If someone 18 years of age or older sells or offers to sale drug paraphernalia to someone less than 18 years old, is guilty of a misdemeanor punishable by up to one year in jail and/or $7,500 in fines.
If the evidence cannot be challenged or suppressed, the next step is to negotiate a favorable plea deal or prepare to take the case to trial. A skilled drug crimes defense attorney may be able to negotiate a delayed or deferred sentence that would keep the matter off your record or negotiate a civil infraction which does not appear as a criminal conviction. Unfortunately, 7411 is only available for drug use or drug possession charges so that is not an option.
Michigan Drug Crimes Defense Attorney
If you have been charged with possession of drug paraphernalia, it doesn’t have to ruin your future. We can help keep your record clean. Contact Austin Legal Services, PLC at (517) 614-1983 to speak to a Michigan drug paraphernalia lawyer today!
Defending possession of drug paraphernalia and other drug charges throughout Michigan in the counties of Ingham, Eaton, Livingston, Jackson, Clinton, Barry, Shiawassee, Calhoun, Kent in the cities of Lansing, East Lansing, St. Johns, Charlotte, Brighton, Howell, Jackson, Hastings, Durand, Corunna, Battle Creek, Grand Rapids.