Possession of Drug Paraphernalia

Paraphernalia is generally punished as a misdemeanor, with a few felony exceptions. Advertising drug paraphernalia is punished under VA Code 18.2-265.5 as a Class 1 misdemeanor with up to 12 months in jail. Distributing drug paraphernalia to a minor is also punished as a Class 1 misdemeanor with up to 12 months in jail. Sale, possession with intent to sell, etc. minor is also punished as a Class 1 misdemeanor with up to 12 months in jail. However, distributing drug paraphernalia to a minor who is at least 3 years your junior is a Class 6 felony punished by up to 5 years in prison.

Under VA Code 18.2-265.1, “Drug Paraphernalia” means: all equipment, products, and materials of any kind which are either designed for use or which are intended by the person charged with violating § 18.2-265.3 for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, strength testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body marijuana or a controlled substance. It includes, but is not limited to: kits, isomerization devices, testing equipment, scales and balances, diluents and adulterants (such as quinine hydrochloride, mannitol, or mannite), separation gins and sifters, Blenders, bowls, containers, spoons, mixing devices, capsules, balloons, envelopes, pipes, bongs, syringes, needles, punctured metal bowls, tubes, etc.

Defense Evaluation

Va Code 18.2-265.2. presents factors and evidence to be considered in Paraphernalia cases. In determining whether an object is drug paraphernalia, the court may consider, in addition to all other relevant evidence, the following:

1. Constitutionally admissible statements by the accused concerning the use of the object;
2. The proximity of the object to marijuana or controlled substances, which proximity is actually known to the accused;
3. Instructions, oral or written, provided with the object concerning its use;
4. Descriptive materials accompanying the object which explain or depict its use;
5. National and local advertising within the actual knowledge of the accused concerning its use;
6. The manner in which the object is displayed for sale;
7. Whether the accused is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;
8. Evidence of the ratio of sales of the objects defined in § 18.2-265.1 to the total sales of the business enterprise;
9. The existence and scope of legitimate uses for the object in the community;
10. Expert testimony concerning its use or the purpose for which it was designed;
11. Relevant evidence of the intent of the accused to deliver it to persons who he knows, or should reasonably know, intend to use the object with an illegal drug. The innocence of an owner, or of anyone in control of the object, as to a direct violation of this article shall not prevent a finding that the object is intended for use or designed for use as drug paraphernalia.

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