According to Nevada laws, it is not just illegal to sell drugs; it is illegal to be in possession of paraphernalia. Nevada law defines drug paraphernalia as any apparatus or items used in the manufacture or use of drugs. However, since the use of marijuana is legal in Nevada, it is legal to possess paraphernalia associated with marijuana, such as bongs. The penalties for possession of paraphernalia include lengthy prison sentences. The Law Offices of Martin Hart can help you fight charges associated with the possession of paraphernalia in Las Vegas.
Definition of Paraphernalia
Drug paraphernalia could comprise a wide range of products, including materials, equipment, and products intended or designed for use in consuming or manufacturing illegal drugs. The definition of paraphernalia also includes materials designed to propagate, cultivate, store, conceal, or introduce drugs into the body. Different items qualify as drug paraphernalia, and the definition of paraphernalia could vary from state to state, depending on the local criminal statutes. However, in most states in the United States, it is a crime to possess paraphernalia.
According to Nevada law NRS 453.554, any type of equipment that can aid in the manufacture, storage, or consumption of drugs is drug paraphernalia. The prosecutor may consider several factors when determining whether an item qualifies as drug paraphernalia:
- The display of the alleged drug paraphernalia for sale
- Whether the person in control of the drug paraphernalia has prior convictions
- Availability of circumstantial or direct evidence regarding the intent of the person in possession of the alleged drug paraphernalia
- The proximity of the drug paraphernalia to a drug or controlled substance; The prosecutor could also consider whether the paraphernalia has residual of drugs or if the paraphernalia is complete with instructions on how to use the drug.
- The prosecutor could also consider any statements made by the person in control of the paraphernalia.
- The prosecutor could also rely on expert testimony regarding the use of drugs, according to Nevada law NRS 453.556.
In most cases, people charged with possession of paraphernalia in Nevada are usually in possession of pipes used in ingesting methamphetamine and marijuana. However, since the legalization of marijuana in 2007, it is not illegal to possess paraphernalia such as bongs associated with the use of marijuana. However, it is still illegal to possess certain types of paraphernalia, including:
- Substances used in cutting cocaine
- Water pipes
- Cocaine Spoons
- Cocaine vials
- Kits used to grow marijuana.
- Drug testing kits
- Scales used in weighing controlled substances
For the court to convict you of possession of paraphernalia in Nevada, the prosecutor must prove certain elements/components of the offense. The prosecutor must prove you were in authority or that you exercised authority over the paraphernalia. It should be evident that you were aware of the presence of the drug paraphernalia.
You are actively in possession of paraphernalia if you carry it in person. For example, if you have a cocaine pipe in your jacket pocket, you are inactive control of the pipe. You could be in constructive control of the drug paraphernalia if you own a cocaine pipe, and you left it in your house. You can have control over paraphernalia as an individual or jointly with another individual. For example, if you have a cocaine pipe that you use with your wife, you are in joint possession of the paraphernalia.
Some of the controlled substances recognized under Nevada law include depressants, stimulants, opiates, and hallucinogens. Some of the common controlled substances under the narcotics category include heroin, cocaine, methamphetamine, and PCP.
Under Nevada law, some people are exempt from the possession of paraphernalia laws. These people include law enforcement officers or any individual working according to the direction of the law enforcement officers. Other people exempt from the drug paraphernalia laws include doctors, pharmacists, veterinarians, wholesalers, retailers, and any other person licensed to handle such paraphernalia.
Penalties for Possessing Paraphernalia in Nevada
It is a misdemeanor offense in Nevada to possess drug paraphernalia. The crime of possessing drug paraphernalia is a lesser crime than the crime of possessing a controlled substance. A misdemeanor offense is also a victimless crime. If the court charges you with simple possession of paraphernalia, the consequences include serving a jail time not exceeding six months in county jail. The court could also impose hefty fines of not more than $1,000. Depending on the nature of the offense, you could be subject to both jail time and the fine. You could also face misdemeanor charges if you intentionally advertise paraphernalia in Nevada.
You could face felony E charges in Nevada for selling, delivering, manufacturing, delivering, manufacturing, or possessing with intent to sell paraphernalia. The felony charges will apply if you were aware of if you should have been aware that the drug paraphernalia would be used for storing, producing, or using illegal drugs. Category E felonies are the least serious categories of felonies in Nevada. The judge might order a Nevada suspended sentence instead of prison. With the help of a defense attorney, it is possible to seek a plea bargain for a category E felony to a lesser offense or the full dismissal of your criminal charges.
The punishment for a Class E felony includes imprisonment in state prison for 1 to 4 years with a possibility of probation for the whole or part of the sentencing. The court could also impose a fine that does not exceed $5,000.
You could apply for sealing on a category E felony from your record two years from the close of the case. In case the court dismisses your accusation, and there is no petition, you could start the record sealing petition immediately.
You will be guilty of category C felony under Nevada law if you are above 18 years of age, and you deliver drug paraphernalia to a person who is below 18 years or who is three years younger than you. The penalties for a category C felony are imprisonment in Nevada state prison for one to four years. You could also be subject to a hefty penalty of up to $10,000. The court may require you to pay restitution by meeting the costs of the minor attending a substance abuse program in Nevada.
A category C felony is the most serious of the felony offenses in Nevada. Just like with other criminal convictions, it is possible to plea bargain the offense to a lesser offense or to seek dismissal of your charges with the assistance of a competent attorney. Before you apply for the sealing of a category C felony from your record, you have to comply with the five-year waiting period. Depending on the crime you commit, category C felonies could subject aliens or non-US citizens to deportation. You could avoid deportation if the court dismisses your charges or reduces them to a non-deportable offense. You should never attempt to fight felony paraphernalia charges on your own. It is important to seek the assistance of a qualified criminal defense attorney to fight on your behalf.
Federal Law on Drug Paraphernalia
The Federal law on drug paraphernalia is less strict than the laws imposed by the state of Nevada regarding drug paraphernalia. According to Federal law 21, USC. § 863 simple possession or purchasing of paraphernalia is not a crime. However, it is illegal to sell or transport drug paraphernalia according to Federal law.
Selling and transporting drug paraphernalia is a Federal crime in Nevada. A conviction for this crime could lead to several years in prison. However, with the assistance of a competent attorney, you can fight the charges successfully. Federal laws prohibit using mail or other interstate commerce facilities to transport paraphernalia. Also, it is a crime to import or export drug paraphernalia according to Federal law in California.
According to Federal law, drug paraphernalia is any item that can be used to convert, compound, process, produce, conceal, ingest, inhale, or inject a controlled substance. Drug paraphernalia under Federal law includes carburetor, water, electric, and air-driven pipes. Paraphernalia also includes carburetion tubes, smokes and carburetion masks, chillums, chillers or ice pipes, wired cigarette papers, and cocaine freebase kits.
Under Federal law, the punishment for transporting or selling paraphernalia includes imprisonment in Federal prison for up to 3 years and or a fine. The law enforcement officers may also seize the paraphernalia involved in the case. The government may destroy the seized paraphernalia or use it for educational purposes. In Nevada, only two courts are responsible for handling Federal drug paraphernalia cases. These courts are Lloyd D. George, located in Las Vegas, and Bruce R. Thompson court located in Reno.
The crime of possessing, transporting, or selling paraphernalia in Nevada is not a specific intent crime. Therefore, you cannot defend yourself by pointing out that you did not know that the items you were holding were drug paraphernalia. However, you can take advantage of other common legal defenses that are applicable to the offense:
The Item is not Drug Paraphernalia
It is common for law enforcement officers to confuse innocent items for drug paraphernalia. For instance, you could be arrested for possessing papers and pipes meant for tobacco or marijuana. With the assistance of a competent attorney, you can prove that the items in your possession are legal. If the court establishes that you were not in possession of illegal drug paraphernalia, the judge will dismiss your charges.
For you to be guilty of possessing, advertising, transporting, or selling paraphernalia in Nevada, the prosecutor must prove beyond a reasonable doubt that you committed the crime. This requirement places a heavy burden of proof on the prosecutor. If your attorney is able to convince the judge that the prosecutor's allegations are not convincing enough, the judge might dismiss your charges. The court cannot hold you criminally liable unless there is ample evidence against you.
You are a Victim of Illegal Search
When investigating any criminal case, law enforcement officers in Nevada have to abide by some strict rules and regulations. In case the law enforcement officer overstepped his/her boundaries while arresting you for the drug paraphernalia offense, you can use it as a defense. Your attorney can file a motion in court and request the judge to dismiss any evidence obtained through unlawful practices by the police. In case the judge approves the petition and dismisses certain evidence, the prosecutor might not have enough evidence to convict you. If the prosecutor's case is too weak to sustain a conviction, the court might dismiss your charges.
The Role of an Attorney
If you are facing any type of criminal drug charge ranging from possession of controlled substances to possession of paraphernalia, it is advisable to get the assistance of an attorney.
It can be intimidating to deal with the prosecutor, especially if you do not understand the legal system in Nevada. This is not the case with an attorney. An attorney knows how to deal with the prosecutor and judges. Your attorney could have helped many people in fighting drug paraphernalia charges before. Therefore, the attorney will understand all the tricks that prosecutors often use while accusing people.
You also need an attorney to gather evidence in your case and challenge the prosecutor's evidence. For example, if you are a victim of false accusations, your attorney can be able to identify any false evidence against you. If an attorney realizes that the arresting officers violated your rights at the time of the arrest, he/she can fight for the dismissal of your charges.
An attorney will also help you understand your legal options and represent you in court. You need someone to help you understand the charges you face as well as the penalties. An attorney will also assist you in fighting the criminal charge.
Find a Defense Attorney Near Me
If the prosecutor accuses you of possessing, advertising, transporting, or selling paraphernalia, you should contact a criminal defense attorney immediately. An attorney will evaluate your case and advise you on the best legal option. For the best legal representation in Las Vegas, Nevada, contact The Law Offices of Martin Hart at 702-380-4278 and talk to one of our attorneys.