A conviction for drug paraphernalia in the Ogden courts can result in fines, jail time, and losing your driver’s license. As an experienced criminal defense attorney, Stephen Howard represents clients throughout Utah who are facing prosecution for drug charges and other crimes. He has extensive experience defending felony and misdemeanor cases, and a track record of achieving real results for his clients. Contact us now to arrange for an initial confidential consultation and see how we can help you.
This page contains information on:
- What qualifies as drug paraphernalia?
- How does a prosecutor prove possession?
- What are the penalties for a paraphernalia conviction?
What is Considered “Drug Paraphernalia”?
Under Utah law, the definition of “drug paraphernalia” is very broad and encompasses many items that also have very innocent uses. But because of certain technicalities in Utah’s drug paraphernalia laws and depending on the specific facts of a case, some items that are traditionally considered to be paraphernalia will fall outside the criminal definition of drug paraphernalia. The key issue in many Ogden paraphernalia cases is the intended use of the item.
In order to be considered drug paraphernalia, the prosecution must prove that the defendant used or intended to use the item for illegal purposes – to ingest, inject, inhale, package, contain weigh, or one of a variety of uses relating to illegal drugs. Often times, a small amount of residue from a controlled substance can be the key piece of evidence that turns an innocent object into drug paraphernalia.
To illustrate, consider the following hypothetical. A person driving through Utah is pulled over by police for a minor traffic violation. During the traffic stop, police observe a glass pipe consistent with those often used to smoke marijuana. Police search the vehicle, and find a suitcase filled with glass pipes. The police ask the driver about the pipes, and he explains that he is a glass artist. He tells police that he has a studio in California where he creates his glassware, and is just returning from an event in Colorado where he has been selling his pipes. Police test several of the pipes for marijuana/THC residue, but find that the pipes are clean.
In the above hypothetical, police found no evidence to show that the driver intended to use the pipes to smoke marijuana in Utah. Therefore, they should not be considered drug paraphernalia and no charges should be filed for possession of paraphernalia.
Ordinary items such as a spoon, aluminum foil, plastic bag, or balloon, can sometimes constitute drug paraphernalia. On the other hand, sometimes a balloon is just a balloon. It all depends on the intended use of the item and whether the prosecutor can prove that intended use.
Simply possessing a balloon, plastic baggy, or even a syringe is not illegal. Both the Utah and Federal constitutions provide that all people charged with a crime are presumed innocent. The burden of proof is on the prosecutor to convince a jury, beyond a reasonable doubt, of each and every element of the crime charged. In cases involving allegations of drug paraphernalia possession, it is not enough for the prosecutor to prove just possession of the item. The prosecutor also must prove that the intended use of the item was also illegal in some way.
Proving “Possession” in an Ogden Drug Paraphernalia Prosecution
The most common kind of possession cases in Ogden involve allegations that the defendant was caught with drugs in their immediate (or “actual”) possession. For example, police frisk a person and find a pipe or syringe in their pocket, purse, or even in their hand. But many drug cases involve a more subtle legal concept referred to as “constructive possession.”
In a constructive possession case, police do not find the drugs or paraphernalia in defendant’s immediate possession (hand, pocket, etc.). Instead, police may have found the item in the back seat of a car, sitting on a kitchen table, or in some other location where more than one person may have had access.
Merely being present with or in close proximity to drugs or paraphernalia is not sufficient to support a conviction. A prosecutor must also prove that the defendant had knowledge of the item, and had both the ability and the intent to exercise control over this item.
Many constructive possession cases involve drugs or paraphernalia found in a car driven or owned by the defendant. Sometimes other people may also be present in the car when police investigate the case. But sometimes the driver is the only one there. Some of our clients have reported that police have told them that they are legally responsible for anything found in their car. When multiple people have been present in a car, some of our clients have reported that police have told them, “Unless someone takes responsibility for this (marijuana, paraphernalia, etc.), then we will just charge everyone here.” This kind of statement may be a useful interrogation tool for police, but it is not an accurate statement of Utah law.
Penalties for Possession of Drug Paraphernalia in Ogden
Most Ogden drug paraphernalia charges filed in the Ogden City Justice Court begin at the class B misdemeanor level with a maximum jail sentence of up to 180 days. If enhancements are involved (e.g. a drug-free) that increase the level of the offense to the class A misdemeanor level, then the charge must be filed in the district court. A class A misdemeanor carries a potential of up to 365 days in jail.
In addition to jail time, fines in Ogden drug cases can be in the thousands of dollars. If jail time is suspended, then probation can include substance abuse treatment, drug testing, community service, and a variety of other conditions determined by the court to be appropriate to the defendant’s specific circumstances.
