• Chris Zachar

What constitutes drug paraphernalia?

This roach clip is paraphernalia? Yeah, that's just like your opinion, man.

It’s common for people arrested on drug offenses to also be charged with multiple counts of possession of drug paraphernalia (or as one recent police report termed it “paraffin nalia”). But a lot of people misunderstand exactly what constitutes drug paraphernalia in Wisconsin.


The definition of drug paraphernalia is found in Wisconsin statutes §§ 961.571 & 961.572, which lays out criteria for determining what is or is not drug paraphernalia. Broadly speaking, drug paraphernalia includes anything used to produce or grow an illegal drug, package or prepare drugs for distribution, scales used primarily to weigh illegal drugs, or smoking devices intended to ingest illegal drugs.


But deciding whether a pipe, scale, or bong is actually drug paraphernalia isn’t as simple as identifying the item. Instead, we have to determine why a person possessed an item. The statutes give some guidelines on what may be considered including (1) whether the item was found near illegal drugs , (2) whether there is residue on the item (we see this a lot with scales), (3) the common use or local advertised use of a substance, (4) whether there are legitimate uses for the object and the extent of legitimate use, (5) statements of the owner concerning its use, and (6) ‘expert testimony’ by law enforcement on whether an item is drug paraphernalia.


However, the statute also explicitly states that certain items are presumptively drug paraphernalia, including bongs, water bongs, roach clips (anyone else picturing the Big Lebowski in the bathtub?), and “miniature cocaine spoons” - which begs the question, are there jumbo cocaine spoons? However, even if the item is on the list of presumptive paraphernalia, the prosecutor still must prove that it was designed for or primarily intended to ingest illegal substances. Since ceramic bowls, water pipes, and other items named in the statute can also be used for entirely legitimate purposes, what constitutes drug paraphernalia quickly becomes ambiguous. Side note: under this definition manufacturers of mini cocaine spoons would be wise to label them as “caviar spoons – not intended for cocaine use.”


A commonly contested issue is whether a pipe, especially one found alone, constitutes drug paraphernalia. In Wisconsin, possessing a pipe isn’t enough to prove that you have drug paraphernalia. The prosecutor has to prove that the primary purpose of the pipe is to ingest illegal drugs. Even if a pipe contains residue of THC it is not considered paraphernalia unless a prosecutor can prove that it was primarily intended to ingest marijuana. Like most great legal questions, there is no clear line, and the answer to whether something is drug paraphernalia boils down to “it depends.”


So let’s break this down with a hypothetical. A person gets pulled over with a gram of marijuana in a zip lock bag, a ceramic pipe, a bong, a digital kitchen scale and an apple. The zip lock bag storing the marijuana fits the definition of paraphernalia since it is storing an illegal substance, but if it is weighed with the marijuana it is charged as part of the weight of the THC instead of a separate drug paraphernalia offense. The bong is statutorily defined as drug paraphernalia, but may not be paraphernalia if the suspect can prove that it was primarily intended to use tobacco. Likewise, the pipe may contain THC residue, but it was originally sold at a smoke shop advertised as a tobacco pipe. Since the prosecutor has to prove that the pipe is primarily intended to ingest THC and not tobacco, simple proximity to marijuana isn’t necessarily enough to show that it is paraphernalia. The scale may be drug paraphernalia if the suspect admits to using it to weigh marijuana, there is residue on the surface, or it is stored with the drugs, but would not be paraphernalia if a clean scale is used for a legitimate purpose, for instance, weighing the apple before it’s used in a recipe. The apple would normally be considered innocent, but could become drug paraphernalia if the suspect admits that he planned on hollowing it out to smoke the gram of weed. In any given scenario most of those objects could be either legal or illegal, but it depends largely on the circumstances. As always, an experienced attorney can help you navigate the ins and outs of these confusing statutes.


Needles

One notable exception to drug paraphernalia are hypodermic needles. Even if needles are found with drugs, they are not considered drug paraphernalia. Wis. Stat. § 961.572(1)(b)1.