Drug Paraphernalia In North Dakota

Drug Paraphernalia in North Dakota, by Nick Thornton.

I have represented hundreds of people charged with possessing items of drug paraphernalia, ranging from a piece of tin foil to a syringe to a huge bong. Until recently, all drug paraphernalia in North Dakota except marijuana paraphernalia was a felony level offense. After a Legislative change this year, however most paraphernalia is now a misdemeanor (unless the person has prior paraphernalia offenses). However, it is still a serious criminal charge. People can and do go to jail over possessing it.

From a public policy standpoint, paraphernalia is an interesting criminal offense. Ordinarily, criminal law needs to adequately define conduct to be prohibited. This requirement allows ordinary citizens to know what is legal and what is not legal. Take for instance the prohibition on possessing short barreled shotgun. The law generally prohibits people from possessing a short-barreled shotgun, and then very precisely defines the minimum length of the barrel as “less than eighteen inches [45.72 centimeters]…” An average citizen can easily whip out a tape measure and make sure they are in compliance with the law before purchasing a shotgun. That is how the law is supposed to work.

When it comes to drug paraphernalia, on the other hand, almost anything can be drug paraphernalia. It depends on how the item is used or intended to be used. For instance, drug paraphernalia can include tin foil, light bulbs, or plastic zip seal baggies. How many of us have those items in our homes and think nothing of it? That’s what makes drug paraphernalia such a scary crime.

So what are the limits of what is considered drug paraphernalia? Let’s start with the legal definition. According to North Dakota law, drug paraphernalia includes “all equipment, products, and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance….” What?!?!

So even the Legislature knew this definition was too broad, so then they gave a 13-item list of examples of drug paraphernalia. Kits used for planting or growing drug plants like marijuana or cocoa plants; kits used for processing drugs; devices used to increase the potency of drug plants; testing equipment for analyzing the effectiveness or purity of drugs; cutting agents used in processing drugs; scales and balances used to weigh drugs; sifters used to separate twigs and stems from marijuana; bowls, containers, spoons, grinders and other items used to prepare drugs; capsules, balloons, envelopes and other containers used to package drugs in small quantities; containers used to store or conceal drugs; syringes or needles used to inject drugs; spoons, pipes, bongs, and smoking tools; and ingredients used to make drugs (including anhydrous ammonia, precursor items, or lawfully possessed prescription drugs.

Eventually, the Legislature figured out this was not specific enough, so in 2001, they passed another law called “drug paraphernalia guidelines.” These “guidelines” were designed to narrow down exactly what types of ordinary, everyday items are “paraphernalia.” In determining whether something is drug paraphernalia, the authorities are supposed to look to the following:

Statements made concerning the object’s use;
Prior drug-related convictions of the owner or person in possession of the object;
How close the item is found, in time and space, to situations involving drug possession, sales, and use;
How close the item is found to drugs;
Any drug residue on the object;
Direct or circumstantial evidence of the intent of the owner or possessor to use the item to facilitate a drug violation;
Instructions provided with the object on how to use it;
Descriptive materials with the object to explain its use;
Advertising regarding the item’s use;
The manner the object is displayed for sale;
Whether the owner or possessor is a legitimate supplier of the items in the community, especially a licensed distributor or dealer of tobacco;
Direct or circumstantial evidence of the ratio of sales to the total sales of the business;
The existence and scope of legitimate uses for the object in the community;
Expert testimony concerning the object’s use; and
The actual or constructive possession of the object in a structure or vehicle where there are instructions or recipes for manufacturing or preparing drugs.

Okay, does that clear up the picture? Probably not. The answer is still “anything related to using drugs.” The law just gives law enforcement and the Court more “guidance” on how to determine what is drug paraphernalia.

Now that we have the definitions down, the question turns to what types of items do I commonly see charged as drug paraphernalia. These are the general categories:

Smoking devices (Pipes/Bongs/Roach Clips): These include anything used to smoke drugs. Common smoking devices include glass, metal or ceramic pipes, bongs, and rolling papers to roll marijuana joints. Some less common smoking devices include hollowed out light bulbs and tin foil pipes. The most unusual smoking device I have ever seen charged was an apple that had been hollowed out and turned into a homemade pipe. If the item is glass, ceramic, or metal, it will likely be considered paraphernalia if it has burn marks, if it smells like drugs, or if it has any residue in it.

Grinders: Grinders are tools used to process marijuana, much like a pepper grinder is used to crack and grind pepper for use.

Scales: Law enforcement often look for digital gram scales, which are sometimes used to measure out the quantities of drugs to use or used in the sale or purchase of drugs. I have had clients charged with drug paraphernalia for possessing kitchen scales used to weigh food products for dieting purposes.

Syringes: Syringes and needles are often used to inject drugs other than marijuana into the bloodstream. With this type of paraphernalia, we also often see rubber tubing, cotton balls, filters, spoons, and lighters to process the drugs into an injectable form.

Straws and Snort tubes: Snort tubes are used to snort crushed or powdered drugs into the person’s nose. These can be as simple as a rolled up dollar bill to a straw or hollow pen tube.

Finally, I often get questions about “clean,” unused items. The bottom line is that under North Dakota law, a person can be charged with and convicted of possessing an items of paraphernalia, even if it is unused or clean. Let me give you an example. If law enforcement would find a kit containing a small baggie of methamphetamine, a clean spoon, and an unused syringe, the spoon and syringe would likely be charged out as paraphernalia. They are items falling within the general definition of drug paraphernalia, they are specifically included in the 13-item list, and although clean and unused, have several supporting guidelines factors (i.e., found in close proximity to drugs, circumstantial evidence of intended use, and likely expert testimony from law enforcement regarding meth rigs and kits). Residue on the item is just one factor to be considered, although it’s a pretty damning factor if drug residue is present. Obviously, if the spoon had drug residue on it and the syringe had been used, those items clearly fall within the definition of paraphernalia.

Now that you have a better understanding about what drug paraphernalia is, you should understand how important it is to have a hardworking defense attorney on your side, with a lot of experience handling these types of cases. Nick Thornton at our office can answer all of your questions about drug paraphernalia. Please give him a call at (701) 478-7620 to schedule a consultation today.