Sometimes, a spoon is just something to eat cereal with. At other times, a spoon is drug paraphernalia that will get you arrested and charged. What’s the difference? Can anything be drug paraphernalia?
“Possession of drug paraphernalia” is a Class C misdemeanor in Texas, and is punishable by a fine only (not to exceed $500.) I think of possession of drug paraphernalia as a “near-miss” charge: the police have found some residue of pot or cocaine on a scale (not enough to be a “usable amount”—see my “Weighing the Pot” blog for more on this), but not enough to charge the person with possession of marijuana or possession of controlled substance…so they cite the person for possession of drug paraphernalia.
The Texas Health and Safety Code defines “drug paraphernalia” as “equipment, a product, or material that is used or intended for use in planting, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, or concealing a controlled substance…or injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance.” Texas H&SC section 481.002(17).
That definition basically covers every object on the planet—from baby laxative to plastic baggies to syringes to grinders to baking soda to potting soil. The car keys in my pocket right now are an object that is included in the definition of objects that could potentially be “drug paraphernalia.”
However, note that the definition—while unbelievably expansive—only includes my car keys or your plastic baggies if they are being used or are intended to be used to use, grow, or store drugs.
We can break down the massive grouping in 481.002(17) into several distinct categories:
items used to grow or produce drugs (so-called “equipment, a product, or material that is used or intended for use in planting, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing”); items for using drugs (“injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance”); and items for storing drugs (“packaging, repackaging, storing, containing, or concealing a controlled substance”).
As I mentioned above, every object has the potential to be “drug paraphernalia” (not unlike every object has the potential to be a “deadly weapon.”) What matters is the use or intended manner of use for the specific object in that specific instance. So, for example, a scale in and of itself is not illegal to possess. But, a scale with slight cocaine residue on it becomes “drug paraphernalia,” insofar as it the cocaine residue indicates that its “manner of use” is to weigh various quantities of cocaine. Mannitol, a crystal/powder substance used to help the body relieve excess liquid, is not illegal in and of itself. However, when used to dilute or cut heroin or methamphetamine, it becomes “drug paraphernalia.” (In drug culture, Mannitol is often referred to as “baby laxative,” a reference to its legitimate medical use as a laxative for children.)
How does the Government prove that, say, the Mannitol found in a person’s house or car is “drug paraphernalia” versus a perfectly lawful substance? (Note: Mannitol (the brand) is only available through prescription, but there are several less potent generics available over the counter in the baby sections of drug stores.) This is a question of fact, generally proved up by the State via circumstantial or direct evidence of illicit use (drug residue on table; other paraphernalia present in location; etc.)
So, while every object has the potential to be drug paraphernalia, the specific use or intended use of the object is what makes possessing an otherwise lawful object into an illegal activity.