Drug Paraphernalia in Georgia
By: Cory Yager, Atlanta Criminal Defense Attorney for Georgia Drug Paraphernalia Crimes
What does paraphernalia mean? If 100 citizens walking down the street were asked to define paraphernalia it is likely that no one could do it very well. About half would ask, “What’s paraphernalia?” This is not a word used much by the American public. You won’t see a Jeopardy episode on TV where the final question is, “What is the meaning of paraphernalia?”
In a nutshell, a definition of drug paraphernalia would be any drug-related objects, device, tool or mechanism that is used (or can be used) to ingest drugs or contraband materials (like weed). Much like making a whiskey still is illegal, since it can be used to make non-tax paid liquor (moonshine), the Georgia legislature (and the legislative branch of every other state) has created a crime proscribing possessing drug paraphernalia.
As you will read below, just like moonshining is a creation of American culture and history, how we define paraphernalia in 2018 is completely opposite of how the legal world first came to know the word “paraphernalia.” This re-coining of this now infamous word, in conjunction with its current association with a crime involving illegal drugs, has forever sullied the common definition of the word in legal circles.
Similar to possessing illegal substances, in violation of the Georgia Controlled Substances Act, in writing a statute to outline paraphernalia meaning, the state of Georgia has created a law that does not require the government to prove specific intent. This means that the State is not required to show that the possessor of paraphernalia had awareness that the item was a drug ingestion device.
The law on paraphernalia items creates a low level of proof for the Prosecutor to accuse or indict (if other felonies are also being charged). When an item, device, or mechanism in question has been adapted or modified to facilitate smoking, injecting or vaporing drugs, the prosecution merely needs to prove the thing to be a common appliance for use in such drug ingestion.
A stronger case for the prosecution exists when they have collected forensic evidence in the form of swabs or scrapings of residue of a contraband substance or controlled drug from the surfaces of the paraphernalia. However, such additional evidence of prior drug use is not necessary when an item (e.g., roach clip, modified soft drink can, syringe) is confiscated and is clearly an item of paraphernalia.
Paraphernalia in GA Definition
What is drug paraphernalia? In Georgia, paraphernalia is broadly defined as being any drug-related object, appliance or tool that is used (or designed to be used) for delivering, vaporizing, making or concealing illicit drugs or for taking such drugs into the human body. An example of such paraphernalia would be a bong for weed ingestion, which has marijuana residue on the surfaces of the device.
Possession of this type of object can lead to the person being charged with possession of drug paraphernalia. Plus, when pot is also found, this relatively minor offense of a paraphernalia charge will be added to felony or misdemeanor drug possession. When the crimes reach distribution of drugs or trafficking, an offender can spend the remainder of his or her life in prison. A majority of our law firm’s cases involving a residence search will have both a drug charge and a paraphernalia criminal offense.
Under Georgia drug laws, drug paraphernalia can be anything (made of any glass, wood, plastic, aluminum or other material) that can be used as a mechanism to ingest marijuana or other illicit drugs. Thus, if you have a Dr. Pepper can in your car, a law enforcement officer is not going to charge you with possessing paraphernalia.
But, if the Dr. Pepper can was modified to become a drug delivery tool, by poking a Phillips head screwdriver into the bottom in order for a person to smoke rock cocaine (crack), the police can charge that person with possession of drug paraphernalia. The residue on the aluminum can may easily be tested by the GBI to prove how it has been used.
Ironically, the paraphernalia dictionary definition in Black’s law dictionary has nothing to do with illegal drugs. The word pertained to a woman’s separate property or dowry. Hence, beginning in the Nixon Administration, the complete hijacking and redefinition of this archaic word, in connection to Nixon’s War on Drugs, has been forever castigated “paraphernalia” to members of the criminal underworld.
Possession of Paraphernalia: The Crime
Georgia laws about paraphernalia charges include two distinct statutes, O.C.G.A. 16-13-32 (enacted in 1978) and O.C.G.A. 16-13-32.1 (passed by the Georgia legislature in 1981), that making any sale or transaction of a “drug-related object” a criminal act, and the knowing possession of these same objects a crime. The 1981 law (Code Section 16-13-32.1) was passed to clarify the paraphernalia meaning, and to liberally expand the sweeping prohibition of possessing any paraphernalia items or products. Thus, merely having dominion or control over such items can be adequate, circumstantial evidence of a violation of the paraphernalia drug statutes.
So, a person’s physical possession of an item otherwise may be lawful (e.g., a 6-inch long piece of ¼” diameter glass pipe as found in any chemistry lab) can constitute a violation or the Georgia paraphernalia law, especially when residue from prior drug usage is proven.
Secondary questions about WHERE the paraphernalia was found (i.e., inside a car with no occupants or in an apartment with multiple tenants, on the dining room table) may provide a “lack of constructive possession” defense to a paraphernalia criminal charge.
What is paraphernalia? When someone is found possessing drug paraphernalia in Georgia, simply possessing the item or device is the crime. The police do not have to catch that individual in the act of using the drug paraphernalia. Under Georgia laws, this is a misdemeanor offense. Generally, because possessing paraphernalia is a misdemeanor charge, the type of paraphernalia does not normally influence the sentencing by a criminal court judge.
Marijuana paraphernalia is (by far) the most common drug paraphernalia confiscated by police, as part of an arrest. Next in likelihood is for cocaine ingestion, such as crack. Plus, heroin has surged in popularity and more cases of drug paraphernalia for opioids are next in popularity.
Paraphernalia drug crimes, when no significant quantity of unsmoked marijuana is also present, are treated (by the prosecutor) as minor offenses in Georgia. In motion hearings, or sentencing, our criminal lawyers sometimes use the analogy of being in a situation like a police officer finding an empty, open container of beer in the floorboard of the back seat of a vehicle being driven by an underage driver.
Penalties for Possession of Drug Paraphernalia
A paraphernalia charge in Georgia needs to be handled with an eye toward either winning on a pre-trial suppression motion, or the criminal attorney finding a negotiated plea that allows the Client’s record to be cleared, after successfully finishing probation. If evidence was obtained by police illegally, fighting to have the drug paraphernalia charge dropped entirely is worth the effort and money, since these types of charges are likely to be followed by other drug charges, for this individual.
Consult a criminal defense attorney Atlanta who is highly experienced on defending drug and alcohol charges, for obtaining the best outcome in your paraphernalia case. Being convicted of any crime associated with the possession or the use of drug paraphernalia could affect future job opportunities, including employment with the government or military. Consider hiring an experienced criminal justice attorney to try for some favorable disposition that will not be on your permanent criminal record. This can include PTI (pre-trial intervention) or diversion, where available,
Potential penalties for a drug paraphernalia charge in Georgia usually includes a monetary fine, likely probation and monthly supervision fees, plus possible random drug tests. But as with most crimes, the manner in which an accused citizen is treated at court in Georgia, for a paraphernalia charge depends largely on if it is a first offense. As a general rule, towards a person charged with a 1st offense crime of possessing paraphernalia, most prosecutors and judges are lenient.
On the other hand, when some judges hear that this is a second or 3rd paraphernalia or drug possession charge, potential jail or prison time may be likely. Like the situation of repeat DUI-DWI offenders, judges know that jailed people don’t drive. Similarly, no drugs are in a jail cell or prison, and this prevents re-offending. Jail is the last thing judges want to do in these types of cases, but it is sometimes used.
This last paraphernalia penalty (random testing) is usually reserved for an accused citizen with a history of prior possession of drug offenses. As with all misdemeanor offenses, jail time of up to 12 months can be assessed, but this is typically reserved for offenders who have been through the criminal justice system several times on drug or paraphernalia crimes.
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Cory Yager is an ex-cop with nearly a decade serving as a police officer. As a police officer, Mr. Yager issued thousands of tickets and made over 1,000 arrests, including for drug possession and drug paraphernalia charges. He and his two law partners, Bubba Head and Larry Kohn are all specialists in criminal defense and are published legal book authors.
Collectively, these three Atlanta attorneys bring over 70 years of defending drug and alcohol cases to the table. All are Georgia Super Lawyers. All have very high attorney ratings. Plus, our law office offers a FREE lawyer consultation, and attorney fee payment plans. Call NOW, to our 24-hour number: 404-567-5515.