How to Dismiss a Drug Paraphernalia Conviction

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When I was in middle school, my friends and I had some important debates.  Middle school is that age when you’re not quite ready (nor qualified) to talk about girls and cars, so our discussions centered around BMX bikes, video games, and Bruce Lee.  We loved Bruce Lee almost as much as we loved Star Wars.  The debates were simple, and  started something like this: “I wonder if Bruce Lee could kill someone with a piece of paper.  I bet he could take you out with a paper clip.”  We were in such awe of Lee, that we assumed just about any household item would qualify as a deadly weapon in the hands of this master of martial artist.

By the same reasoning, there are drug addicts out there that could take these same household items and transform them into smoking devices.  You haven’t seen creativity until you’ve witnessed an addict scramble to find something to smoke with.  The genius buried deep inside of most folks comes out to play as the drug cravings intensify.   Some studies have shown that drugs can aid in the creative process.  How many Pink Floyd albums would we have without psychedelics?  All sorts of books, albums and movies have been conceived and written under the influence of something.

That being said, I’m talking about just the opposite–folks who are creative before they consume drugs.  This kind of creativity only comes when there’s a deep perceived problem (not having a smoking device, for example) that has no immediate solution.  Either way, it seems as though drugs are fostering creativity both before consumption, and after.

Anyway, when someone creates something to smoke a drug, we call this item “drug paraphernalia.”  Anything that is used to smoke or ingest an illegal drug constitutes drug paraphernalia.   This is a crime in Florida, and carries a maximum of one year in jail (harsh, I know).  Back when crack cocaine was popular, we’d see tons of cases involving coke cans, pinched in the middle with a hole in them–used as a makeshift crack smoking device.  Yes, it was a crime to possess that modified soda can.  Back then, you had to be careful what you picked up to recycle.

Before we get to today’s case, I’ve got to bore you with some legal blibber blabber.   Pay attention, this will be on the test.  Section 893.147(1) of the Florida Statutes makes it a crime to use or possess drug paraphernalia, and the statute has two parts.  Subsection (1)(a) makes it a crime to possess items designed to process, test, pack, store, or conceal an illegal drug.  Subsection (1)(b) makes it a crime to possess an item designed to inject, ingest, or inhale an illegal drug.

If you’re charged under (1)(a), it’s probably a baggie with some residue, or a digital scale.  If you’re charged under (1)(b), it could be a bong, pipe, or needle.

And this brings us to our case of the day, J.V. v. State. 221 So. 3d 689 (Fla. 4th DCA 2017).  J.V. was found guilty of two counts of possession of drug paraphernalia (which is a bit odd for technical reasons, as the word “paraphernalia” is a plural term).   A routine traffic stop led to the search of J.V.’s car, and drugs were found hidden underneath the hood of the car (a thorough search, right?).  Both heroin and cocaine were found inside a cellophane wrapper which was tucked away inside a plastic baggie.

The prosecutor charged J.V. with a violation of section 893.147(1)(b), one count for the cellophane wrapper, and one count for the plastic baggie.

Do you see the problem here?

What is the first thing they teach you in criminal defense class?  Read the charge.  Read it carefully.  Then, read it again.  Ok, so let’s read the charge:

J.V. was charged with “possession of drug paraphernalia being used, intended for use, or designed for use in injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance, contrary to Florida Statute section 893.147(1)(b).

Hum.  Subsection (1)(b).  Was J.V. caught with needles?  Was he caught with a bong, or pipe, or anything that was designed to inhale drugs?  Nope.  Isn’t that what (1)(b) is all about?  Yes.

The appeals court recognized the error here, and threw out both of J.V.’s possession of drug paraphernalia convictions.  This is what we call winning on a technicality, and it is my favorite type of win, by the way.   I know what you’re thinking, can’t the prosecutor wiggle out of this ‘clerical error’ because subsection (a) and (b) are so similar?  Not a chance.  The appellate court held that “a criminal defendant is entitled to a trial on the charges contained in the information and may not be prosecuted for uncharged offenses, even if they are of the same general character or constitute alternative ways of committing the charged offense.” id. quoting Morgan v. State, 146 So. 3d 508 (Fla. 5th DCA 2014).

In essence, J.V. was convicted of a crime he was never charged with.  How many attorneys missed this error?  Several.  J.V.’s original defense attorney didn’t catch this error.  J.V. appealed his convictions, but his appeal didn’t address this error either.    Nonetheless, that wasn’t going to stop the appellate court from dismissing the charges, reasoning that “it is a basic tenet of constitutional law that due process is violated when an individual is convicted of a crime not charged in the charging instrument.” id., quoting Castillo v. State, 929 So. 2d 1180 (Fla. 4th DCA 2006).