What constitutes “drug paraphernalia” under Utah law?
The Utah statute defining “drug paraphernalia” focuses both on the nature of the item involved and also on the intent of the person possessing the item. For example, papers used to roll tobacco cigarettes would not be considered to be drug paraphernalia. The same papers used, or intended to be used, with marijuana could result in a criminal prosecution for unlawful possession of drug paraphernalia.
Defining “Drug Paraphernalia” under the Utah Code
The Utah Code provides two sections detailing when an item is to be considered drug paraphernalia. Utah Code 58-37a-3 provides a “definition” of the term “drug paraphernalia.” Utah Code 58-37a-4 then provides examples of factors to consider in determining whether the item should be considered “drug paraphernalia. The full text of these statutes is provided below. (Commentary is provided in italics.)
The definition of “drug paraphernalia” set forth in this section (as amended in 2011) of the Utah Code provides a non-exclusive list list of items that can be considered to be drug paraphernalia. But the definition focuses less on the nature of any specific object and more on the use or intended use of the object. The prohibited purposes under the Code generally involve the use, manufacture (or cultivation), and distribution of drugs.
Full Text of Utah Code 58-37a-3
As used in this chapter, “drug paraphernalia” means any equipment, product, or material used, or intended for use, to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, package, repackage, store, contain, conceal, inject, ingest, inhale, or to otherwise introduce a controlled substance into the human body in violation of Title 58, Chapter 37, Utah Controlled Substances Act, and includes, but is not limited to:
(1) kits used, or intended for use, in planting, propagating, cultivating, growing, or harvesting any species of plant which is a controlled substance or from which a controlled substance can be derived;
(2) kits used, or intended for use, in manufacturing, compounding, converting, producing, processing, or preparing a controlled substance;
(3) isomerization devices used, or intended for use, to increase the potency of any species of plant which is a controlled substance;
(4) testing equipment used, or intended for use, to identify or to analyze the strength, effectiveness, or purity of a controlled substance;
(5) scales and balances used, or intended for use, in weighing or measuring a controlled substance;
(6) diluents and adulterants, such as quinine hydrochloride, mannitol, mannited, dextrose and lactose, used, or intended for use to cut a controlled substance;
(7) separation gins and sifters used, or intended for use to remove twigs, seeds, or other impurities from marijuana;
(8) blenders, bowls, containers, spoons and mixing devices used, or intended for use to compound a controlled substance;
(9) capsules, balloons, envelopes, and other containers used, or intended for use to package small quantities of a controlled substance;
(10) containers and other objects used, or intended for use to store or conceal a controlled substance;
(11) hypodermic syringes, needles, and other objects used, or intended for use to parenterally inject a controlled substance into the human body, except as provided in Section 58-37a-5; and
(12) objects used, or intended for use to ingest, inhale, or otherwise introduce a controlled substance into the human body, including but not limited to:
(a) metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;
(b) water pipes;
(c) carburetion tubes and devices;
(d) smoking and carburetion masks;
(e) roach clips: meaning objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand;
(f) miniature cocaine spoons and cocaine vials;
(g) chamber pipes;
(h) carburetor pipes;
(i) electric pipes;
(j) air-driven pipes;
(k) chillums;
(l) bongs; and
(m) ice pipes or chillers.
Full Text of Utah Code 58-37a-4
This section (as amended in 2011) provides a list of factors that may be considered in determining whether a specific object should be considered to be drug paraphernalia. In addition to the enumerated factors, the statute also provides that a jury (or judge) may consider “all other logically relevant factors.” A criminal defendant is presumed under the Constitution to be innocent, and the burden of proving otherwise rests with the prosecution. A jury (or judge at a bench trial) is therefore given a wide degree of latitude in determining whether an object qualifies as drug paraphernalia.
In determining whether an object is drug paraphernalia, the trier of fact, in addition to all other logically relevant factors, should consider:
(1) statements by an owner or by anyone in control of the object concerning its use;
(2) prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to a controlled substance;
(3) the proximity of the object, in time and space, to a direct violation of this chapter;
(4) the proximity of the object to a controlled substance;
(5) the existence of any residue of a controlled substance on the object;
(6) instructions whether oral or written, provided with the object concerning its use;
(7) descriptive materials accompanying the object which explain or depict its use;
(8) national and local advertising concerning its use;
(9) the manner in which the object is displayed for sale;
(10) whether the owner or anyone in control 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;
(11) direct or circumstantial evidence of the ratio of sales of the object to the total sales of the business enterprise;
(12) the existence and scope of legitimate uses of the object in the community;
(13) whether the object is subject to Section 58-37a-5; and
(14) expert testimony concerning its use.
Penalties for Possession of Drug Paraphernalia
A criminal charge for possession of drug paraphernalia in Utah is typically filed as a class B misdemeanor, under Utah Code 58-37a-5. This section of the code also provides class A misdemeanor penalties for distributing drug paraphernalia, and also a felony penalty for distributing drug paraphernalia to a minor. But paraphernalia distribution charges are rarely filed. The class B paraphernalia possesion charge is most common.
A class B misdemeanor conviction carries the potential of up to six months in jail, and a fine (including 90% surcharge) of up to $1,900. A judge sentencing a person convicted of possession of drug paraphernalia has discretion to impose the maximum penalty, or may suspend all or a part of the jail and fine and place the person on probation instead. Conditions of probation for a drug paraphernalia conviction typically include a substance abuse assessment and completion of any recommended treatment. Probation conditions can also include community service, drug testing, and other conditions deemed appropriate by the court.
Finding a Criminal Defense Attorney
Utah criminal defense attorney Stephen Howard has successfully protected his clients’ rights in a wide variety of drug possession, drug distribution, drug paraphernalia, and other drug-related criminal cases.
If you are facing prosecution for a drug paraphernalia or other criminal charge, the assistance of an experienced criminal lawyer is vital. Contact us today to schedule an initial confidential attorney consultation.
