Defenses to Use or Possession of Drug Paraphernalia in Florida

July 8, 2025 Don Pumphrey, Jr. Criminal Defense, Drug Charges Social Share

In Florida, use of or possession with intent to use drug paraphernalia – even without possession of the underlying drug – is a criminal offense. Fla. Stat. Section 893.147 makes use of or possession with intent to use drug paraphernalia a first-degree misdemeanor punishable by up to 1 year in jail, 1 year of probation, and a $1,000 fine. 

However, there are various defenses available if someone is accused of possession of drug paraphernalia. This article will discuss the elements of use or possession of drug paraphernalia under Fla. Stat. Section 893.147(1) and the various defenses that exist to this charge.

For someone to be found guilty of use or possession with intent to use drug paraphernalia, the State must prove the following elements beyond a reasonable doubt:

• The object is drug paraphernalia (object used to manufacture, process, or consume a controlled substance)
• The defendant knew about the presence of drug paraphernalia
• The defendant used the drug paraphernalia or possessed the paraphernalia to use it

If the defendant used or possessed the paraphernalia with intent to use it for any of the following purposes, it is considered a crime:

• Planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing a controlled substance
• Analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting or inhaling (or otherwise introducing into the human body) a controlled substance 

In evaluating whether an object is actually paraphernalia (as this is sometimes unclear), courts are authorized to consider the following factors under Fla. Stat. Section 893.146, among others:

• Statements by the accused
• Proximity of the object to drugs
• Presence of drug residue
• Expert testimony
• Context of possession (e.g., found in a stash box with narcotics)
• Descriptive materials and advertising 

If someone is accused of illegally using or possessing drug paraphernalia with the intent to use it, various defenses can be relied upon depending on the facts of a case. 

Defenses to a Possession of Drug Paraphernalia Charge

Lack of Knowledge

One of these defenses is lack of knowledge. Law enforcement may sometimes find what they believe to be paraphernalia in a location that appears to be within the knowledge of the person they arrest. However, mere association with a location where paraphernalia is discovered is insufficient as a matter of law to convict someone of this crime. Brown v. State, 428 So. 2d 250 (Fla. 1983)

An example case may include police seizing a backpack someone borrowed from a friend that was found to have a pipe inside. The presence of the pipe does not inherently confer guilt – the State must prove the person’s knowledge that the paraphernalia was in that location prior to its seizure. 

Lack of Control

Hand-in-hand with a lack of knowledge defense is a defense arguing lack of control over the item. This is often used in cases where drug paraphernalia is found in a common location (such as a shared residence or car). When there is no direct evidence that a person actually possessed and/or used the paraphernalia, the State often proceeds on a theory of “constructive possession.”

The State must prove all of the following beyond a reasonable doubt when charging use or possession with intent to use drug paraphernalia on a theory of constructive possession (Nugent v. State, 275 So.3d 721 (Fla 2d. DCA 2019)):

• The defendant had knowledge of the paraphernalia
• The defendant had the ability to exercise dominion and control over it
• The defendant had knowledge of the illicit (illegal) nature of the paraphernalia

Florida’s courts are consistent – knowledge of the contraband without the ability to control it (such as a child in the car with his parents who have drugs), is insufficient to prove constructive possession. Brown v. State, 428 So. 2d 250 (Fla. 1983). 

Another defense is that the item in question is not actually paraphernalia. Many items that may be considered paraphernalia may also be common household items, such as:

• Spoons 
• Scales
• Plastic baggies

If this defense is used, the State must prove beyond a reasonable doubt that the item found is paraphernalia, using the factors outlined in Fla. Stat. Section 893.146. Otherwise, a conviction cannot be supported as a matter of law.

An additional defense is temporary possession of paraphernalia for an alternative purpose, such as disposal. If someone was attempting to get rid of the paraphernalia with no intent to use it but is discovered and arrested, this may be a viable defense. The State must establish at trial that the paraphernalia was used or intended to be used by the defendant. 

Entrapment

In certain cases, entrapment may be a defense if law enforcement induced someone who otherwise would not have been predisposed to use paraphernalia or possessed it with intent to use it.

There are two types of entrapment that may be argued, depending on the facts of the case:

• Subjective entrapment: Occurs when law enforcement induces a non-predisposed defendant to act criminally (Fla. Stat. Section 777.201). 
• Objective entrapment: Occurs when law enforcement conduct is so egregious that it “shocks the conscience” and violates a defendant’s due process rights (such as manufacturing drugs then selling them on the street to prosecute the buyers). Dippolito v. State, 275 So.3d 653 (Fla 4th DCA 2019)

Another component of a drug paraphernalia use or possession defense is chain of custody challenges.

If law enforcement does not properly document who the paraphernalia was seized from (gaps and inconsistencies in when and where it was seized and held), a chain of custody challenge may assert that:

• The paraphernalia is either not the same item seized from the defendant or 
• Has been tampered with in a manner that fundamentally compromises the validity of the proceedings

While all of these legally valid defenses to a drug paraphernalia use or possession charge, it is important to note that certain defenses are considered not legally valid in Florida. These include:

• “I didn’t know it was illegal to have the item”: Lack of knowledge of the fact that drug paraphernalia possession is a crime is not a defense (if the item was used or possessed with intent to use). 
• “There were no drugs found”: Someone can be charged and convicted of using or possessing paraphernalia with the intent to use it without the actual drug being found.
• “I didn’t use it yet”: Possession of the item with intent to use for drug-related activity is sufficient for conviction

In sum, use of or possession with intent to use drug paraphernalia is a serious offense in Florida, punishable by up to 1 year in jail and a $1,000 fine.

However, various defenses exist if someone is accused of this offense. These may include that they did not know of the paraphernalia, they did not have dominion or control over it even if they did know of it, that the possession was not with the intent to use (or temporary to dispose of it), a challenge to the item’s classification as paraphernalia (F.S. 893.146), and more.

If someone is concerned about a charge of possession of drug paraphernalia, it is crucial to find experienced and aggressive legal representation as soon as possible. This vital decision could make the difference in whether or not a person is subject to a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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