The answer to the above question depends on a number of facts and circumstances surrounding the particular case. A drug paraphernalia charge can range from a misdemeanor to a felony, depending on the circumstances surrounding the charge. However, before diving into what these circumstances are, it is important to understand what is considered “drug paraphernalia” under the statute.
What Is Drug Paraphernalia? Drug paraphernalia is an item used in connection with a controlled substance. The connection may be assisting a person in using the drug, prepare the drug, or even selling the drug. Thus, otherwise completely lawful items may be “transformed” into illegal items based upon their past, present, or intended future use. For example, a postage scale is a perfectly legal device to own. However, if the owner of the postage scale intends to weigh marijuana with the scale so she can sell the substance by its weight, the once legal item is now drug paraphernalia.
Statutes in Kansas offer several factors that should be considered in determining if an item is drug paraphernalia. Some factors look to the owner: if she has previous convictions dealing with drugs or what she said about the item. Other factors look to where the item was found: if it was found near drugs, if it was found near individuals with drugs, or if it was found on a person under the influence of drugs. Perhaps most telling are factors that look to the object itself: residue or other evidence indicating the item was used in connection with drugs, instructions and packaging indicating intend use with drugs, and legitimate uses for the item. The statute is clear that simply because the item is new and has never been used does not settle that it is not paraphernalia. This is because items become paraphernalia based upon use with or intent to use with drugs. Therefore, our brand new postal scale may be paraphernalia before it ever leaves its box—depending on what the owner intends to use the scale in connection with.
The statute also prohibits “drug precursors,” which are substances used to make certain drugs, such as methamphetamine. These include pseudoephedrine, lithium, and ammonia salts. Again, these items may be legal obtained, possessed, and owned, but if the intention of the owner is to create a controlled substance with these chemicals they are transformed in drug precursors.
Who Is Prosecuting The Paraphernalia Charge? The state of Kansas has outlawed the possession of drug paraphernalia, and these are the cases that is focused on. However, many cities also have ordinances that outlaw the possession of drug paraphernalia. Determining which agency began the investigation that found the drug paraphernalia, and which law the prosecutor is bringing charges under is the first determination that must be made. The law will also determine who the prosecuting attorney is. Different prosecuting attorneys take different stances on crimes, and employ different tactics and skills in litigating a case. Opposing counsel can greatly alter what is likely available as far as pleas and ultimate results. Further, the venue—the court in which the case is heard, such as Overland Park Municipal Court, Kansas City Municipal Court or Johnson County District Court, that a defendant is in can greatly affect the outcome of a case.
What Does The State Have To Prove To Convict? The State will need to prove two things beyond reasonable doubt to achieve a conviction. First, the defendant “possessed” the item. This means the defendant either owns the item or has control over it. Thus, a defendant that takes a family member’s hypodermic needles used to inject insulin may be charged with possession of paraphernalia if she is caught with needles while using them to inject drugs into her system. The fact that she does not technically “own” the needles does not defeat her “possession.” Alternatively, a defendant may leave her pipe, which she uses to smoke marijuana, at a friend’s apartment. If the police find the paraphernalia at the apartment, the defendant will still “constructively possess” the paraphernalia by virtue of her ownership of it.
Second, the State must prove the item is drug paraphernalia. This may be done by proving the item is used in connection with drugs or is intended to be used with drugs by the defendant. This is where the statutory factors above are applied, in an effort to determine if the item has crossed the line of legality and become paraphernalia.
When Does A Paraphernalia Charge Become A Felony? The actual or intended use of the paraphernalia determines whether a paraphernalia charge is a misdemeanor or a level five felony. Paraphernalia used in connection with “personal uses” result in misdemeanor charges. These types of uses include storing and concealing the drugs, as well as any means of introducing the drug to the body. Paraphernalia used in connection with more, “distribution uses” results in felony charges. These uses include growing or creating the substance, testing or analyzing the substance, and assisting in distributing the substance. There is a very narrow exception for paraphernalia used to grow fewer than five marijuana plants; such paraphernalia results in a Class A misdemeanor rather than a felony charge.
What Is The Punishment For A Paraphernalia Charge? The sentencing grid used by Kansas courts to determine a “presumptive” or default sentence, looks to the severity of the crime committed and the defendant’s criminal history. Misdemeanors fall outside this grid, so a misdemeanor paraphernalia charge will carry a sentence of up to six months in county jail, a fine, or both, regardless of criminal history. Felonies do fall within the grid, and range from level one—the most serious level of drug offenses—to level five. Felony paraphernalia charges are set by statute as a level five offense, regardless of which “distribution use” the item is being put to, or how large the quantity of drugs it is being used in connection with. A level five felony may produce a sentence as short as 10 months on probation or as long as 42 months in prison, depending on the defendant’s criminal history category ranking.
Drug-offense defendants can fall into 9 different categories depending on the number and type of prior convictions they have. The lowest category is I, which includes defendants with no prior convictions or only one misdemeanor conviction. The next category is H, which includes defendants with two or more misdemeanor convictions. Next is category G, which includes defendants with a single “nonperson” felony; nonperson felonies are those that do not involve harming another individual, such as theft or possession of a controlled substance. The categories continue, increasing based upon number of nonperson felony convictions, number of person felonies, or a combination of the two. The full breakdown is charted out below.
|0 or 1 Misdemeanor (Category I)
||10-12 Months (Presumptive Probation)
|2 or more Misdemeanor (Category H)
||12-14 Months (Presumptive Probation)
|1 Nonperson Felony (Category G)
||14-16 Months (Presumptive Probation)
|2 Nonperson Felonies (Category F)
||16-18 Months (Presumptive Probation)
|3 or more Nonperson Felonies (Category E)
||18-22 Months (Presumptive Probation)
|1 Person Felony (Category D)
||23-26 Months (Presumptive Prison)
|1 Nonperson and 1 Person Felony (Category C)
||28-32 Months (Presumptive Prison)
|2 Person Felonies (Category B)
||32-36 Months (Presumptive Prison)
|3 or more Person Felonies (Category A)
||37-42 Months (Presumptive Prison)
Perhaps more than most crimes, possession of drug paraphernalia can turn on a wide variety of facts. The difference between the State having or not having a case, or even prison or probation can turn on a subtle, easily missed fact. This is why is always important to seek competent legal counsel when you are faced with accusations of a crime.