Top 9 Questions About Drug Paraphernalia in SC
What is drug paraphernalia in SC?
In this article you will learn:
- what drug paraphernalia is,
- whether a conviction for paraphernalia will appear on your criminal record,
- how your criminal defense lawyer may handle drug paraphernalia charges, and
- other common questions heard from clients about drug paraphernalia in South Carolina.
Common Drug Paraphernalia Questions and Answers
1. What is Drug Paraphernalia in SC?
Most people think of glass pipes or marijuana rolling papers when they hear “drug paraphernalia,” but SC law defines drug paraphernalia as much more than that.
The definition of paraphernalia under SC law covers pretty much any item or device that is used in connection with drugs – for using drugs, selling drugs, or manufacturing drugs.
SC Code Section 44-53-110(33) says that paraphernalia includes “any instrument, device, article, or contrivance used, designed for use, or intended for use in ingesting, smoking, administering, manufacturing, or preparing a controlled substance.”
The definition of paraphernalia under SC law does not include cigarette rolling papers or tobacco pipes, but it does include:
(a) metal, wooden, acrylic, glass, stone, plastic, or ceramic marijuana or hashish pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;
(b) water pipes designed for use or intended for use with marijuana, hashish, hashish oil, or cocaine;
(c) carburetion tubes and devices;
(d) smoking and carburetion masks;
(e) roach clips;
(f) separation gins designed for use or intended for use in cleaning marijuana;
(g) cocaine spoons and vials;
(h) chamber pipes;
(i) carburetor pipes;
(j) electric pipes;
(k) air-driven pipes;
(m) bongs; and
(n) ice pipes or chillers.
This isn’t a complete list, though – any item used in connection with drug use or drug sales could be considered paraphernalia. How do the courts decide whether an item is paraphernalia if it’s not included in the list?
2. How Does Law Enforcement Test Drug Paraphernalia in SC?
Law enforcement can send suspected drug paraphernalia to a lab for testing to find out whether there is drug “residue” on the items that can be used as evidence that the item was used for smoking, injecting, or preparing drugs.
Testing for drug residue is not the only thing that courts look at, however.
SC law provides a list of factors that can use, including the results of testing for residue, to determine whether an item was used as paraphernalia. It is important to note that courts will not use these unless it is a bench trial and the court is the trier of fact. SC Code Section 44-53-391 says that, in addition to all other logically relevant factors, the court can consider:
(1) Statements by an owner or by anyone in control of the object concerning its use;
(2) The proximity of the object to controlled substances;
(3) The existence of any residue of controlled substances on the object;
(4) Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of law; the innocence of an owner, or of anyone in control of the object, as to a direct violation of law shall not prevent a finding that the object is intended for use, or designed for use as drug paraphernalia;
(5) Instructions, oral or written, provided with the object concerning its use;
(6) Descriptive materials accompanying the object which explain or depict its use;
(7) National and local advertising concerning its use;
(8) The manner in which the object is displayed for sale;
(9) Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;
(10) Direct or circumstantial evidence of the ratio of sales of the object to the total sales of the business enterprise;
(11) The existence and scope of legitimate uses for the object in the community; and
(12) Expert testimony concerning its use.
3. Is Drug Paraphernalia in SC Considered a Drug Charge? You need to address the city ordinances. You can get 30 days
Drug paraphernalia in SC is not considered a drug charge. Actually, drug paraphernalia in SC is a civil ticket only.
SC Code Section 44-53-391 says “[i]t shall be unlawful for any person to advertise for sale, manufacture, possess, sell or deliver, or to possess with the intent to deliver, or sell paraphernalia.”
SC law is clear that possession of drug paraphernalia is unlawful, but it is not a criminal offense. It is punishable by a fine only, and the law says that “[i]mposition of such fine shall not give rise to any disability or legal disadvantage based on conviction for a criminal offense.”
Additionally, each city can have its own ordinance (law) on possession of drug paraphernalia, and it can punish a violation as a misdemeanor.
4. Is Drug Paraphernalia in SC a Misdemeanor or Felony?
Drug paraphernalia in SC is not a misdemeanor or a felony because it is not a criminal offense – it is a civil violation that is punishable by a fine only. However, municipalities can have their own ordinances that can carry a fine or up to 30 days in jail.
5. What Happens if I’m Charged with Both Drug Possession and Drug Paraphernalia?
In most cases, the paraphernalia “charge” will be dealt with along with the more serious drug offenses.
It could be dismissed as part of a plea bargain, dismissed along with the other charges, or you could be either found guilty or not guilty of all charges at trial.
If you have both a ticket for drug paraphernalia and other drug charges, even if the paraphernalia ticket is in a different court (it might be, depending on the county where you are charged), you should not pay the fine for the paraphernalia ticket until all of your charges have been resolved by your attorney.
In some cases, your attorney may be able to use the paraphernalia ticket in negotiating a dismissal of other charges. More importantly, if you pay the paraphernalia ticket, the court might say that you have waived important defenses like Fourth Amendment violations which could have resulted in the suppression of evidence.
6. Can You Get a Drug Paraphernalia Charge Dropped?
There are many ways to get a drug paraphernalia charge dropped, including:
- As part of a plea agreement;
- By producing evidence that the items were not used in connection with drugs; or
- An acquittal at trial.
7. How Much is the Fine for a Drug Paraphernalia Ticket?
If you are convicted of possession of drug paraphernalia, the maximum fine is $500.
On the other hand, if you are a corporation charged with drug paraphernalia in SC, the fine can be as high as $50,000. Municipalities can set their own penalties for drug paraphernalia.
8. What is the Potential Jail Time for Drug Paraphernalia in SC?
There is no jail time for a paraphernalia ticket in SC – it is a civil violation punishable by a fine only. However, Municipalities can set their own penalities.
If you are convicted of a drug offense, however, you may be facing potential jail time on the drug charges.
9. Do I Need a Lawyer for a Drug Paraphernalia Charge?
Should you just pay the fine for a paraphernalia ticket and get on with your life?
Although a conviction for drug paraphernalia in SC should not appear on your criminal record, in some cases it does, because the local municipality may have an unconstitutional ordinance that criminalizes paraphernalia (unconstitutional because the area has been preempted by state law).
If you have a drug paraphernalia charge and no other accompanying charges, you may want to retain an attorney if:
- You are not guilty or believe your rights were violated;
- You want to ensure that the paraphernalia conviction does not appear on your record; or
- You discover that a paraphernalia conviction is appearing on your record after paying the fine.
If you have a drug paraphernalia charge with accompanying charges, you should retain an experienced drug crimes defense attorney immediately to resolve the drug case, to ensure you are not waiving your rights by paying the paraphernalia fine, and to keep your record clean if possible.
Need help with your drug paraphernalia charge in SC?
If you have been charged with drug offenses and possession of drug paraphernalia in SC, including in the Lexington, Aiken, Newberry, and Columbia areas, you need an experienced drug crimes defense lawyer on your side as soon as possible.