Possession of Drug Paraphernalia

Even when police do not find controlled substances on alleged offenders, people can still face criminal charges if they are in possession of any kind of prohibited drug paraphernalia. Texas Health and Safety Code § 481.115(17) defines drug paraphernalia as “equipment, a product, or material that is used or intended for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, or concealing a controlled substance in violation of this chapter or in injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this chapter.”

Many people are charged with drug paraphernalia offenses simply for possessing common household objects that police officers deem to be paraphernalia, such as spoons, bowls, or plastic baggies. While possession or delivery of drug paraphernalia is often a misdemeanor offense, certain aggravating factors can lead to felony charges.

Attorney for Possession of Drug Paraphernalia in Conroe, TX

If you have been arrested for possession of any kind of alleged drug paraphernalia offense in Montgomery County or Harris County, it will be in your best interest to quickly seek legal representation. Evans & Powell, PLLC aggressively defends clients accused of drug offenses in Willis, Oak Ridge North, Patton Village, The Woodlands, Pinehurst, Shenandoah, and many surrounding areas of Montgomery County and Harris County.

Sean Evans and Frank Powell are experienced criminal defense lawyers in Conroe who will work tirelessly to help you achieve the most favorable resolution to your case that results in the fewest possible penalties. Call (936) 622-2000 today to have our attorneys review your case and help you understand all of your legal options during a free, confidential consultation.


Overview of Drug Paraphernalia Arrests in Montgomery County


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Texas Definition of Drug Paraphernalia

The definition of drug paraphernalia established under Texas Health and Safety Code § 481.115(17) specifically includes all of the following:

  • A kit used or intended for use in planting, propagating, cultivating, growing, or harvesting a species of plant that is a controlled substance or from which a controlled substance may be derived;
  • A material, compound, mixture, preparation, or kit used or intended for use in manufacturing, compounding, converting, producing, processing, or preparing a controlled substance;
  • A conversion device used or intended for use in increasing the potency of a species of plant that is a controlled substance;
  • Testing equipment used or intended for use in identifying or in analyzing the strength, effectiveness, or purity of a controlled substance;
  • A scale or balance used or intended for use in weighing or measuring a controlled substance;
  • A dilutant or adulterant, such as quinine hydrochloride, mannitol, inositol, nicotinamide, dextrose, lactose, or absorbent, blotter-type material, that is used or intended to be used to increase the amount or weight of or to transfer a controlled substance regardless of whether the dilutant or adulterant diminishes the efficacy of the controlled substance;
  • A separation gin or sifter used or intended for use in removing twigs and seeds from or in otherwise cleaning or refining marihuana;
  • A blender, bowl, container, spoon, or mixing device used or intended for use in compounding a controlled substance;
  • A capsule, balloon, envelope, or other container used or intended for use in packaging small quantities of a controlled substance;
  • A container or other object used or intended for use in storing or concealing a controlled substance; and
  • A hypodermic syringe, needle, or other object used or intended for use in parenterally injecting a controlled substance into the human body.

The legal definition of drug paraphernalia also includes an object used or intended for use in ingesting, inhaling, or otherwise introducing marihuana, cocaine, hashish, or hashish oil into the human body, including:

  • A metal, wooden, acrylic, glass, stone, plastic, or ceramic pipe with or without a screen, permanent screen, hashish head, or punctured metal bowl;
  • A water pipe;
  • A carburetion tube or device;
  • A smoking or carburetion mask;
  • A chamber pipe;
  • A carburetor pipe;
  • An electric pipe;
  • An air-driven pipe;
  • A chillum;
  • A bong; or
  • An ice pipe or chiller.

Texas Health and Safety Code § 481.183 also establishes the following evidentiary rules relating to drug paraphernalia. In considering whether an item is drug paraphernalia, a court or other authority will consider, in addition to all other logically relevant factors, and subject to rules of evidence, the following:

  • Statements by an owner or person in control of the object concerning its use;
  • The existence of any residue of a controlled substance on the object;
  • Direct or circumstantial evidence of the intent of an owner or other person in control of the object to deliver it to a person whom the person knows or should reasonably know intends to use the object to facilitate a violation of this chapter;
  • Oral or written instructions provided with the object concerning its use;
  • Descriptive material accompanying the object that explains or depicts its use;
  • The manner in which the object is displayed for sale;
  • Whether the owner or person in control of the object is a supplier of similar or related items to the community, such as a licensed distributor or dealer of tobacco products;
  • Direct or circumstantial evidence of the ratio of sales of the object to the total sales of the business enterprise;
  • The existence and scope of uses for the object in the community;
  • The physical design characteristics of the item;  and
  • Expert testimony concerning the item's use.

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Montgomery County Possession of Drug Paraphernalia Penalties

Possession or delivery of drug paraphernalia is a criminal offense established under Texas Health and Safety Code § 481.125. Under this statute, it is a Class C misdemeanor punishable by a fine of up to $500 if an alleged offender knowingly or intentionally uses, or possesses with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, or conceal a controlled substance or to inject, ingest, inhale, or otherwise introduce into the human body a controlled substance.

An alleged offender commits a Class A misdemeanor if he or she knowingly or intentionally delivers, possesses with intent to deliver, or manufactures with intent to deliver drug paraphernalia knowing that the person who receives or who is intended to receive the drug paraphernalia intends that the paraphernalia be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, or conceal a controlled substance or to inject, ingest, inhale, or otherwise introduce into the human body a controlled substance. Convictions are punishable by up to one year in jail and/or a fine of up to $4,000.

If an alleged offender 18 years of age or older knowingly or intentionally delivers, possesses with intent to deliver, or manufactures with intent to deliver drug paraphernalia knowing that the person who receives or who is intended to receive the drug paraphernalia intends that it be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, or conceal a controlled substance or to inject, ingest, inhale, or otherwise introduce into the human body a controlled substance, and the other person is younger than 18 years of age and at least three years younger than the alleged offender, the crime is a state jail felony. A conviction is punishable by up to two years in state jail and a fine of up to $10,000.


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Texas Resources for Possession of Drug Paraphernalia

How to Identify Drug Paraphernalia | Get Smart About Drugs — On the United States Drug Enforcement Administration (DEA) website, you can learn more about drug paraphernalia. Different types of paraphernalia are listed for many different popular illicit drugs. The website also discusses federal penalties for drug paraphernalia offenses.

Posters 'N' Things, Ltd. v. United States, 511 US 513 (1994) — Lana Christine Acty formed Posters `N' Things, Ltd., an Iowa corporation that operated three businesses: a diet-aid store, an art gallery, and a general merchandise outlet originally called "Forbidden Fruit," but later renamed "World Wide Imports." After receiving complaints that the merchandise outlet was selling drug paraphernalia, officers executed warrants to search Acty’s business and Acty's residence and indictments on a number of charges relating to the sale of drug paraphernalia eventually were returned against Acty and her husband. Both were convicted of using an interstate conveyance as part of a scheme to sell drug paraphernalia, in violation of former 21 U. S. C. § 857(a)(1), and of conspiring to commit that offense, in violation of 18 U. S. C. § 371, but Acty was also convicted of aiding and abetting the manufacture and distribution of cocaine, in violation of 21 U. S. C. § 841(a)(1); investing income derived from a drug offense, in violation of 21 U. S. C. § 854; money laundering, in violation of 18 U. S. C. § 1956(a)(1); and engaging in monetary transactions with the proceeds of unlawful activity, in violation of 18 U. S. C. § 1957. After the Court of Appeals for the Eight Circuit affirmed the judgment of conviction, the United States Supreme Court granted certiorari to “address the scienter requirement of the Mail Order Drug Paraphernalia Control Act, Pub. L. 99— 570, Tit. I, § 1822, 100 Stat. 3207-51, formerly codified, as amended, at 21 U. S. C. § 857, and the question whether the Act is unconstitutionally vague as applied to petitioners.” The Supreme Court concluded that “the term ‘primarily intended . . . for use’ in § 857(d) is to be understood objectively and refers generally to an item's likely use.[11] Rather than serving as the basis for a subjective scienter requirement, the phrase ‘primarily intended or designed for use’ in the definitional provision establishes objective standards for determining what constitutes drug paraphernalia.” The Court stated that the scienter requirement it inferred in § 857 assists in avoiding any vagueness problem.


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Evans & Powell, PLLC | Conroe Possession of Drug Paraphernalia Defense Attorney

Were you arrested in Montgomery County or Harris County for allegedly possessing or delivering drug paraphernalia? The first thing you should do is make sure that you retain legal counsel. Contact Evans & Powell, PLLC as soon as possible.

Conroe criminal defense lawyers Sean Evans and Frank Powell represent individuals all over Montgomery County and Harris County, including Splendora, Cut and Shoot, Porter Heights, Magnolia, Woodbranch, Panorama Village, and several other nearby communities. They can provide an honest and thorough evaluation of your case when you call (936) 622-2000 or complete an online contact form to receive a free initial consultation.



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