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What is Drug Paraphernalia under Pennsylvania Law?

On Behalf of | Apr 20, 2013 | Drug Paraphernalia

In Pennsylvania, charges of drug paraphernalia and small amount of marijuana go together like peanut butter and jelly. It is easy to understand that a “small amount of marijuana” is less than 30 grams of any parts of the cannabis plant, but what exactly drug paraphernalia means is not readily apparent.

Pursuant to 35 Pa.C.S.A. § 780-113(a)(32), drug paraphernalia is defined under Pennsylvania law as any device, which is used or is intended to be used for the purpose of planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packing, repacking, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of the Drug Device and Cosmetic Act. Obviously, that is quite a broad definition. Most of the time, drug paraphernalia consists of things like bowls, bongs, rolling papers, needles, and razor blades, but the definition is broad enough to include a plastic bag containing marijuana. That is like charging a minor with underage drinking for possessing beer, and then a separate offense of “drinking paraphernalia,” for the bottle or can containing the beer!

Even pieces of fruit or pop cans can be considered drug paraphernalia. This is due the ingenuity of stoners with weed on hand, but nothing to smoke it with, which is often the plight of juveniles, who can readily buy weed on the unregulated black market, but can only buy “tobacco products” in regulated head shops if they are over 18. Believe it or not, some of these kids have found ways to smoke out of modified beverage cans and apples.

A lot of people erroneously believe that a device does not “become” paraphernalia until it has been used, and has resin on it. This is somewhat true, but not quite. If you are caught with a stash of ganja along with a virgin bowl, you are going to be charged with drug paraphernalia, as circumstantial evidence suggests that you intended to use the bowl to inhale an illegal drug. If on the other hand, the bowl is accompanied by tobacco or sage, you are not going to be charged with anything. If you are caught with a resin-incrusted bowl or bong, with no marijuana, you will be charged with drug paraphernalia because the resin is evidence that the device was used to consume cannabis in the past.

One of the great ironies of Pennsylvania’s drug laws is that the maximum penalty for possession of drug paraphernalia is one year incarceration and a $2,500 fine, while the maximum penalty for possession of a small amount of marijuana is 30 days in jail and a $500 fine. To quote Charles Dickens, “the law is an ass, an idiot.”

Matt McClenahen is a criminal defense attorney in State College, PA. A high percentage of his practice consists of drug defense.

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