Paraphernalia: Virginia Code
Paraphernalia vs. Possession of Marijuana
Possession of Paraphernalia vs. Distribution of Paraphernalia vs. Possession of Marijuana
…and a look at distribution or sale of another classification of drug paraphernalia in Virginia
Frequently, I am asked about the legalities of various forms of paraphernalia. Sometimes, people ask whether or not they can be charged with paraphernalia after they have been issued a Summons for possession of marijuana. This common anxiety may be due to the items typically seized along with the marijuana itself: grinders, pipes, bongs, and other smoking devices or containers.Keep reading: as long as you are not accused of distributing or selling (or advertising to sell, as the case may be) alleged drug paraphernalia, and as long as you are not in possession of needles and syringes, you will most likely be concerned with the Virginia paraphernalia laws for purposes of understanding a possible plea agreement prosecutors and defense attorneys agree to. A plea agreement in a marijuana possession case could vary widely depending upon the facts of the case; record of the accused; and jurisdiction where charged.
Other states have differing definitions, rules, and policies, so not surprisingly some confusion about this law in Virginia exists among non-Virginia criminal lawyers and the general population. To add a bit more confusion to the mix, there are multiple definitions of paraphernalia.
Grinders, bongs, pipes, and other smoking accessories are not really what we are talking about
…for purposes of the more common paraphernalia possession offense…and this is the first thing you need to understand about paraphernalia possession in the Commonwealth of Virginia, practically speaking.
Keep in mind, however, that in Virginia,
if you have a pipe or bong and there is marijuana residue inside, you can be charged with possession of marijuana.
Virginia paraphernalia law § 54.1-3466 focuses on hypodermic needles, among other items, but not the gamut of bongs, water pipes, and as we shall see in another part of the Virginia Code, smoking masks.
Why do we care about paraphernalia laws in Virginia, if the offense is relatively rarely charged?
While it is not an offense many people tend to actually get charged with by officers conducting an investigation into a suspected marijuana possession situation, it sometimes is worthy of some discussion when reviewing a client’s goals, because again, practically speaking, it has traditionally been an offense some attorneys and defendants accept as an amended charge (plea agreement).
In some circumstances, a Virginia criminal law attorney may suggest to the client he or she accept a plea agreement involving an amended charge from marijuana possession to paraphernalia possession. Depending on the client’s goals, it could be a terrible option; it could be a good option; and in some (albeit rare) cases, the best choice. For the majority of people, however, it is not the best choice for reasons I shall discuss…
Possession of Marijuana vs. Paraphernalia
Which looks better (*or worse) on a person’s criminal record?
First, you need to find out what the paraphernalia law in Virginia actually says. Some people refuse to accept any such plea agreement offer from the Commonwealth when it involves an amended charge to paraphernalia, due to words such as:
Hypodermic syringe; needle; injections…
Most people tell me that their number one goal is to avoid a drug conviction on their criminal record for the rest of their life. Marijuana possession may sound bad, but what about paraphernalia? Instinctively, you may say it would sound better to an potential employer scrutinizing your past…but again, remember the association with hypodermic needles…commonly associated with heroin and other injectable drugs.
When it comes to the question of, which charge looks worse, it is a matter of preference. In my experience helping people charged with Virginia marijuana possession offenses, paraphernalia amended from marijuana possession is not enticing strictly because it sounds any better. In fact, a quick reading of the statute would probably lead many employers to raise an eyebrow higher than upon a marijuana possession on the record, figuratively speaking.
§ 54.1-3466 of the Code of Virginia tells us a few things:
I think of this law as having two parts. They tend to run together.
- The first references hypodermic needles, and seems to focus more on the possession of paraphernalia.
- The second part, tending to concern distribution of paraphernalia makes reference to other items, mainly those used for packaging.
The law states at the outset: it is a misdemeanor to possess or distribute controlled paraphernalia.
Ok, so what is controlled paraphernalia?
a hypodermic syringe, needle or other instrument . . . for the administration of controlled dangerous substances by hypodermic injections . . . gelatin capsules, glassine envelopes or any other container . . . for packaging individual quantities [to suggest] intention to use any such item for the illegal manufacture, distribution, or dispensing of any such controlled drug.
There are exceptions for veterinarians, embalmers, doctors, and others.
What are the advantages to pleading guilty to paraphernalia
instead of possession of marijuana?
Possession of marijuana results in a mandatory suspension of driving privileges. You may qualify for a restricted license. If it is a first offense, you may be able to reach a final disposition by way of dismissal as opposed to conviction (but you will not be eligible to expunge the arrest record, and it will follow you for life), if you complete the first offender program (251 disposition). For reasons I will not go into in this post, (read about them in the above link — and, here), I do not like, nor often recommend the first offender’s program in Virginia for first offense marijuana possession. In addition to license suspension, the first-offender participant will pay a fine, community service, and undergo a drug evaluation and take drug safety classes (costing them more money).
On the other hand,
a paraphernalia possession conviction results in no mandatory license suspension
This is the key reason why people will typically view the paraphernalia conviction as a reasonable and acceptable plea agreement, but typically these people do not care about how the charge looks on their record, because their records are not squeaky clean.
So, if you are a rare individual who’s circumstances are such that maintaining your privilege to drive a motor vehicle in Virginia without restriction is more important than avoiding a nasty paraphernalia conviction on your record, it may be something your Virginia criminal law attorney brings up as you discuss your case.
hypodermic needles out of the equation, are there laws regulating other types of paraphernalia?
Yes, drug paraphernalia for purposes of a separate charge discussed below, is defined by Virginia Code § 18.2-265.1, which tells us, in –part,
all equipment, products, and materials of any kind . . . . [for usage in, or relating to]
- strength testing,
- inhaling, or
- otherwise introducing into the human body marijuana or a controlled substance.
It includes, but is not limited to:
- Kits for growing marijuana [or any illegal plant species]
- Isomerization [to increase potency]
- Testing equipment
- Diluent for cutting drugs
- Blenders [used in compounding];
- [Containers] intended for use or designed for use in packaging [or storing or concealing] small quantities of marijuana or controlled substances
- Hypodermic syringes
And also listed, according to the people who wrote this law, the paraphernalia people use to smoke marijuana or crack, because they are so much alike*:
- Pipes of various types, including: water pipes, chamber pipes, carburetor pipes, electric pipes, air-driven pipes, and ice pipes!
- Carburetion tubes;
- Smoking masks
- Roach clips
- cocaine vials/spoons
* sarcastic remarks exist on our blog.
What were they thinking?
Virginia goes to (in my humble opinion) laughable lengths to make sure every type of pipe is listed…one can’t help but think of a room full of angry old politicians, inking into law every slang word they have ever heard a grandchild use. In this paragraph, I obviously digress, but I can’t help but mention how outdated, and just plain silly and out of touch with reality this law reads. It even puts cocaine and marijuana in the same sentence… I am sure there is a praiseworthy purpose or goal behind it (there is), but…. it needs to be re-written…completely. What I think means nothing. It is still the law. Do not break it, or you could face consequences.
With all of the items listed above, it should not shock you to learn another law exists, one that lists examples of the type of evidence that can come in to determine whether or not something is to be considered drug paraphernalia
§ 18.2-265.2. Evidence to be considered in cases under this article.
The court can consider the following (when determining whether or not something is drug paraphernalia):
- statements concerning use
- proximity to controlled substances
- Instructions concerning use
- Descriptive materials
- manner displayed for sale
- Whether the accused is legitimate supplier of like or related items
- ratio of sales of the [alleged drug paraphernalia] to total sales of business;
- scope of legitimate uses for object;
- Expert testimony concerning use or purpose designed;
- evidence of intent
§ 18.2-265.3. Penalties for sale
It is a Class 1 misdemeanor (up to 12 months in jail, and a fine of up to $2,500):
- Any person who sells or
- possesses with intent to sell drug paraphernalia; and,
- the accused is found to have known, or should have known,
- the object is designed for use of, or the recipient intends to use the object. . . [to administer] a controlled substance
It is a Class 6 felony if an adult is alleged to have sold drug paraphernalia to a minor (person under age 18), who is three or more years younger. This is punishable by up to one to five years in jail, and a fine of $2,500).
Finally, the last part of the law makes it illegal for anyone who is an adult to distribute (not just sell) drug paraphernalia (as defined in this section), no matter the age difference.
§ 18.2-265.5. Advertisement of drug paraphernalia prohibited; penalty.
We will end our discussion on paraphernalia laws (for now), with a mention of the advertisement prohibition on purposeful promotion of items intended to be used as drug paraphernalia (Class 1 misdemeanor).
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