Major Florida Court Rules Lack of Drug Residue Defeats Paraphernalia Charges

October 30, 2025 Don Pumphrey, Jr. Criminal Defense, Drug Charges Social Share

Tallahassee and North Florida’s top court ruled that a lack of drug residue on an item can defeat charges of drug paraphernalia possession under certain circumstances.

In Florida, possession of drug paraphernalia is a very serious offense. Per Fla. Stat. 893.147, possession of paraphernalia is typically considered a first-degree misdemeanor (up to 1 year in jail and a $1,000 fine).

For someone to be guilty of possession of drug paraphernalia in Florida, the State must prove all of the following beyond a reasonable doubt:

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

For a full overview of Florida’s law against possession of drug paraphernalia (Fla. Stat. 893.147) and defenses to this charge, click here.

Under Fla. Stat. Section 893.146, courts are authorized to consider various factors in evaluating whether an item is or is not drug paraphernalia. This determination is sometimes difficult to make, as many items (e.g. scales, spoons, plastic bags) are frequently used in a non-criminal context. Courts may analyze:

• • Statements by the accused as to whether the item is/is not paraphernalia
  • Proximity of the object to drugs
  • Expert testimony as to the nature of the item
  • Context of possession (e.g. if the item was found around drugs or not)
  • Descriptive materials or advertising relating to the sale of the item
  • Presence or absence of drug residue

The last of these factors – the presence of drug residue – is often dispositive. If an object that is often associated with drug use (such as a bong or crack pipe) is found on or near a defendant, the presence of residue on the item is strong evidence to support a criminal charge of paraphernalia possession.

But what happens when the only evidence of “paraphernalia possession” that the police have is the discovery of such an item, without any residue? What if that item was not discovered near any drugs, and there is no concrete evidence linking it to drug use or distribution other than the fact that it is popularly thought of as drug paraphernalia?

These are very common questions that defendants facing drug paraphernalia charges in Florida tend to ask. Luckily, they were answered by Tallahassee and North Florida’s highest court in a key case. Let’s discuss it.

KEY CASE: Nixon v. State, 680 So. 2d 506 (Fla. 1st DCA 1996)

In Nixon, the defendant (Nixon) was apprehended by officers after he was suspected of grand theft. When he was arrested, officers searched him and found two crack pipes – one in his boot and another in his pocket.

As a result, Nixon faced the additional charge of possession of drug paraphernalia. However, there was no drug residue on either of the pipes officers discovered on Nixon. There was also no corroborating evidence Nixon had ever used the crack pipes to ingest drugs.

An arresting officer testified at Nixon’s trial as to how crack pipes were used. Based solely on the testimony of the officer characterizing the crack pipes as paraphernalia, Nixon was convicted of the charge.

On appeal, Nixon argued that the evidence against him was insufficient to support a conviction for drug paraphernalia possession. He noted that because there was a total lack of evidence that he had ever used or intended to use the pipes to ingest drugs, he could not be found guilty as a matter of law.

Florida’s 1st District Court of Appeal agreed with Nixon and reversed his conviction for possession of paraphernalia. The court noted that although the presence of even a “miniscule amount” of drug residue would be sufficient to support his conviction, none was found here. The 1st DCA wrote:

“Conversely, when alleged drug paraphernalia tested negative for drug residue and the record was devoid of other evidence that appellant possessed the item with intent to use it for an illegal purpose, a violation of section 893.147(1) was not established … Under the present circumstances, there was insufficient evidence of intent to use the items for an illicit purpose.”

The 1st DCA’s ruling in Nixon is not that an item is required to have drug residue on it to be considered paraphernalia. Rather, it is that if there is no other evidence to show the item was used or intended to be used for the ingestion of drugs (other than the fact that it “typically” is used in this manner, like the officer testified), this is insufficient for a conviction.

The implications of Nixon are quite clear. If someone is accused of possession of paraphernalia, but there is nothing definitive connecting the item to drug use, admitting to law enforcement that the item was used or intended to be used for this purpose is a serious mistake. This is because a confession can be used as independent evidence of the crime.

But without statements from a defendant or other witnesses revealing the connection of an item to drug activity, a conviction cannot be legally supported if there is no residue found AND no other evidence the item was used or intended to be used for an illicit purpose.

In sum, Nixon v. State, 680 So. 2d 506 (Fla. 1st DCA 1996) is a key Florida case on the issue of drug paraphernalia possession. It holds that the police cannot designate an item “paraphernalia” (like a crack pipe) just because it is often used for drug activity. There must be proof that it was actually used or intended to be used for a drug-related purpose (such as residue).

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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