Possession of Drug Paraphernalia with Intent to Sell
It is a crime under Massachusetts General Laws Chapter 94C Section 32I to possess or manufacture drug paraphernalia with the intent to sell it.
To convict a defendant of this crime, the district attorney has to prove three elements beyond a reasonable doubt.
Firstly, she has to prove that the object is in fact drug paraphernalia. "Drug paraphernalia" is any product, device or equipment that is used to introduce drugs into the body, to plant, grow or produce drugs in any way, or to package, store or hide drugs. For the full definition of "drug paraphernalia," you can look to General Laws Chapter 94C Section 1. There are many factors that are considered in determining whether or not an object is drug paraphernalia including: statements from the owner, instructions or other materials that come with the object, drug residue on the object, whether the object was close to any drugs, and how the object was displayed. The recent Regulation and Taxation of Marijuana Act effectively nullifies application of this law relative to sale of marijuana-related paraphernalia, such as bongs and pipes, to persons aged 21 or older.
Secondly, the district attorney has to prove that the defendant knew that the object was drug paraphernalia and knew how the object could reasonably be used. Therefore, this is a specific intent crime, and it does not punish negligence.
Thirdly, she has to prove that the defendant possessed or manufactured the drug paraphernalia with the intent to sell it.
If you are convicted of possession of drug paraphernalia with intent to sell, the potential punishment is at least one and up to two years in jail or the house of correction or by a fine of at least $500 and up to $5,000, or both the jail sentence and the fine. If convicted of possession with intent to sell to a person under the age of eighteen, the punishment ranges from three to five years in state prison or a fine of at least $1,000 and up to $5,000, or both.
This offense is not commonly charged. Storeowners and depending on the circumstances, a store employee may be charged with this crime. An individual may also face this type of charge following an execution of a search warrant in which the police confiscate a large amount of “drug paraphernalia” that they believe is consistent with selling the “paraphernalia” and not merely packaging the contraband for distribution.
A common defense to this type of crime is often simply that the defendant did not know that the object was drug paraphernalia and/or that there was not intent to sell it. Thus, there is a lesser-included offense of possession of drug paraphernalia included within this charge. Furthermore, if a search warrant was involved, the warrant must be examined to ensure that the clerk-magistrate had probable cause to issue the warrant. Also, the circumstances around the execution of the warrant must be analyzed to ensure that proper procedures were followed. If an experienced Massachusetts drug lawyer determines that there is a problem with the affidavit, the warrant itself or the execution of the warrant, a motion to suppress evidence must be filed. In the event that a motion to suppress evidence is successful, the Commonwealth often dismisses the case because there is no evidence to go forward.
You should immediately contact the Law Office of Kathleen M. McCarthy if you have been charged with this crime. You can reach her at (978)-975-8060 or contact her online. McCarthy is a leading Massachusetts defense attorney who is particularly skilled in handling drug crimes, and she often gets drug cases dismissed or resolved in a way that will not give you a criminal record.