It is common knowledge that people can be prosecuted if they manufacture, distribute, possess or use controlled substances such as cocaine, heroin or methamphetamine contrary to law. However, most people do not realize that you can also be prosecuted for selling and possessing drug-related items such as equipment and pipes even if you are not in possession of the actual drugs. Michigan law punishes the sale or possession of drug paraphernalia if the police or prosecutor believe that the objects are outfitted for the purpose of creating, measuring, distributing, using or concealing controlled substances. Everyone should familiarize themselves with the law before unwittingly committing a crime.
MCL 333.7541 defines “drug paraphernalia” to mean “any equipment, product, material, or combination of equipment, products, or materials, which is specifically designed for use in planting; propagating; cultivating; growing; harvesting; manufacturing; compounding; converting; producing; processing; preparing; testing; analyzing; packaging; repackaging; storing; containing; concealing; injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance; including, but not limited to, all of the following:”
- (a) An isomerization device specifically designed for use in increasing the potency of any species of plant which plant is a controlled substance.
- (b) Testing equipment specifically designed for use in identifying or in analyzing the strength, effectiveness, or purity of a controlled substance.
- (c) A weight scale or balance specifically designed for use in weighing or measuring a controlled substance.
- (d) A diluent or adulterant, including, but not limited to, quinine hydrochloride, mannitol, mannite, dextrose, and lactose, specifically designed for use with a controlled substance.
- (e) A separation gin or sifter specifically designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, marihuana.
- (f) An object specifically designed for use in ingesting, inhaling, or otherwise introducing marihuana, cocaine, hashish, or hashish oil into the human body.
- (g) A kit specifically designed 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.
- (h) A kit specifically designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances.
- (i) A device, commonly known as a cocaine kit, that is specifically designed for use in ingesting, inhaling, or otherwise introducing controlled substances into the human body, and which consists of at least a razor blade and a mirror.
- (j) A device, commonly known as a bullet, that is specifically designed to deliver a measured amount of controlled substances to the user.
- (k) A device, commonly known as a snorter, that is specifically designed to carry a small amount of controlled substances to the user’s nose.
- (l) A device, commonly known as an automotive safe, that is specifically designed to carry and conceal a controlled substance in an automobile, including, but not limited to, a can used for brake fluid, oil, or carburetor cleaner which contains a compartment for carrying and concealing controlled substances.
- (m) A spoon, with or without a chain attached, that has a small diameter bowl and that is specifically designed for use in ingesting, inhaling, or otherwise introducing controlled substances into the human body.
SELLING OR OFFERING TO SELL DRUG PARAPHERNALIA
Michigan law says that “a person shall not sell or offer for sale drug paraphernalia, knowing that the drug paraphernalia will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance.” MCL 333.7453(1).
However, before a person is arrested for selling or offering to sell drug paraphernalia, “the attorney general or a prosecuting attorney shall notify the person in writing, not less than 2 business days before the person is to be arrested, that the person is in possession of specific, defined material that has been determined by the attorney general or prosecuting attorney to be drug paraphernalia.” MCL 333.7453(2). “The notice also shall request that the person refrain from selling or offering for sale the material and shall state that if the person complies with the notice, no arrest will be made” for selling or offering to sell drug paraphernalia. If a person complies with this notice, it is a complete defense for that person in a prosecution for selling or offering to sell drug paraphernalia.
In addition, MCL 333.7457 provides that a prosecution for selling or offering to sell drug paraphernalia DOES NOT apply to any of the following:
- (a) An object sold or offered for sale to a person licensed under article 15 or under the occupational code, 1980 PA 299, MCL 339.101 to 339.2721, or any intern, trainee, apprentice, or assistant in a profession licensed under article 15 or under the occupational code, 1980 PA 299, MCL 339.101 to 339.2721, for use in that profession.
- (b) An object sold or offered for sale to any hospital, sanitarium, clinical laboratory, or other health care institution including a penal, correctional, or juvenile detention facility for use in that institution.
- (c) An object sold or offered for sale to a dealer in medical, dental, surgical, or pharmaceutical supplies.
- (d) A blender, bowl, container, spoon, or mixing device not specifically designed for a use described in section 7451.
- (e) A hypodermic syringe or needle sold or offered for sale for the purpose of injecting or otherwise treating livestock or other animals.
- (f) An object sold, offered for sale, or given away by a state or local governmental agency or by a person specifically authorized by a state or local governmental agency to prevent the transmission of infectious agents.
Otherwise, the penalties for selling or offering to sell drug paraphernalia are as follows:
- If a person 18 years of age or older sells or offers to sell drug paraphernalia to a person less than 18 years of age, then the penalty is a misdemeanor conviction punishable by up to 1 year in jail or a fine up to $7,500.00, or both.
- If it is any other situation where a person sells or offers to sell drug paraphernalia, then the penalty is a misdemeanor conviction punishable by up to 1 year in jail or a fine up to $5,000.00, or both.
Federal law also criminalizes the sale or offer to sell drug paraphernalia when the illicit substances cross state lines. 21 U.S.C. §863(a) makes it unlawful for any person:
- (1) to sell or offer for sale drug paraphernalia;
- (2) to use the mail or any other facility of interstate commerce to transport drug paraphernalia; or
- (3) to import or export drug paraphernalia.
A person convicted under federal law can be imprisoned up to 3 years and face a substantial fine. 21 U.S.C. §863(b).
POSSESSION OF DRUG PARAPHERNALIA
There is no specific federal law or state statute that criminalizes the mere possession of drug paraphernalia. However, the vast majority of cities, villages, townships and other municipalities have local ordinances that outlaw the possession of most drug paraphernalia objects. These ordinances will vary greatly depending on your jurisdiction.
For example, the City of Monroe, Michigan has the following ordinance regarding drug paraphernalia:
- Unlawful activity: No person shall sell, offer for sale, display, furnish, supply, possess or give away any empty gelatin capsule, hypodermic syringe or needle, cocaine spoon, marijuana pipe, hashish pipe or any other instrument, implement or device which is primarily adapted, implemented, utilized, used or designed for the administration or use of any controlled substance. Ordinance §296-2(A).
- Exceptions. The prohibitions and restrictions set forth in Subsection A hereof regarding hypodermic syringes or needles shall not apply to manufacturers, wholesalers, jobbers, licensed medical technicians, technologists, nurses, hospitals, licensed medical doctors or osteopathic physicians, clinical laboratories or embalmers, in the normal lawful course of their respective businesses or professions, nor to persons suffering from diabetes, asthma or any other medical conditions requiring self-injection. Ordinance §296-2(B).
- The penalty for possession for drug paraphernalia in the City of Monroe, Michigan is a misdemeanor conviction punishable by a fine up to $500.00, or up to 90 days in jail, or both. Ordinance §1-27(A).
Possession does not necessarily mean ownership. It can mean that the person had actual physical control or dominion over the drug paraphernalia (e.g. in his or her hand or pocket). People v Germaine, 234 Mich 623, 627; 208 NW 705 (1926). It can also mean that he or she had “constructive possession”, or the right to control the drug paraphernalia even if it was in a different room. People v Bercheny, 387 Mich 431; 196 NW2d 767 (1972). Possession could also be shared with multiple people if each one had relatively equal access to those objects.
Some defenses available at law related to selling, offering to sell or possession of drug paraphernalia include, but are not limited to, the following:
- NOT USED FOR DRUG PARAPHERNALIA – There are uses for razors, spoons and scales that have nothing to do with the creation, distribution or consumption of controlled substances. Having a drawer full of silverware does not make you guilty of a crime. However, there are objects specifically designed for the creation or use of drugs (e.g. snorters, bullets, separation gins) that can make you liable for possession of drug paraphernalia no matter what other creative excuse you can think of. In addition, police officers will test suspected drug paraphernalia to look for any residue of controlled substances (in addition, any residue detected can be a basis for a prosecution for possession or use of controlled substances).
- UNWITTING POSSESSION – Often times, an individual may not realize that they are in possession of drug paraphernalia. For example, you may borrow someone’s jacket or drive someone else’s car, and a police search of the jacket or vehicle may reveal the presence of paraphernalia without knowing beforehand. Of course, the police will assume that those objects belong to you. A lack of knowledge can be a defense that the jury will believe.
- LACK OF CONSTRUCTIVE POSSESSION – If a vehicle with five occupants is pulled over and a specifically designed drug scale is discovered under the passenger seat, then all five occupants can be charged with being in constructive possession of that drug paraphernalia. A lack of control, possession or ownership over the drug paraphernalia (whether actual or constructive) can be a total defense to these serious charges.
- FOR LEGAL USE OF DRUGS – Drug paraphernalia can be justified if it is possessed or used for the purpose of consuming legal drugs. For example, Michigan legalized the recreational possession and use of marijuana in 2018, so residents will not be prosecuted for possessing paraphernalia to use cannabis within the confines of the law. However, a person possessing paraphernalia for unapproved uses such as unlawful distribution will likely not evade prosecution
Michigan does offer a break to first-time drug offenders to avoid criminal conviction under the “7411” deferral program. However, this is limited to individuals who are found guilty of possession of a controlled substance, use of a controlled substance or subsequent possession of an imitation controlled substance. This deferral DOES NOT apply to convictions for drug paraphernalia. This means that the misdemeanor will stick to your permanent criminal record and could have an adverse effect on employment, housing or educational opportunities.
If you are charged with selling, offering to sell or possession of drug paraphernalia, you need an aggressive criminal defense lawyer in your corner to help combat these charges and minimize the potential penalties. If you or a loved one require skilled legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC today.