The “War on Drugs” has been going now for almost 50 years in the United States. Since it started, both the federal government and most states governments have strengthened many of their drug-related criminal laws as well as increased the penalties for violating those laws. In the last couple of decades, however, a campaign to re-legalize marijuana has also been very active across the U.S. That campaign has resulted in the legalization of medical marijuana in over half of the states as well as legalizing the recreational use of marijuana in a handful of states, to date. If you are confused about what is legal and what is not, you are not alone. For example, it was once a relatively serious offense to possess paraphernalia in most states. Can you be arrested for possessing paraphernalia in Nebraska now? A Nebraska drug defense lawyer answers that question.
Nebraska’s Paraphernalia Law
Nebraska Revised Statute 28-441 governs the possession of “paraphernalia,” reading as follows:
It shall be unlawful for any person to use, or to possess with intent to use, drug paraphernalia to manufacture, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of sections 28-101, 28-431, and 28-439 to 28-444.
Paraphernalia is charged as an infraction in Nebraska, meaning you will not face a term of imprisonment if convicted. Instead, you will only face a fine if convicted.
For that statute to be meaningful, however, you need to know how the law defines the word “paraphernalia.” To shed some light on the subject, we look to Nebraska Revised Statute 28-439 where the work paraphernalia is defined as follows:
As used in sections 28-101, 28-431, and 28-439 to 28-444, unless the context otherwise requires, drug paraphernalia shall mean all equipment, products, and materials of any kind which are used, intended for use, or designed for use, in manufacturing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of sections 28-101, 28-431, and 28-439 to 28-444 or the Uniform Controlled Substances Act. It shall include, but not be limited to, the following:
(1) Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose, and lactose, used, intended for use, or designed for use in cutting controlled substances;
(2) Separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, marijuana;
(3) Hypodermic syringes, needles, and other objects used, intended for use, and designed for use in parenterally injecting controlled substances into the human body; and
(4) Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body, which shall include but not be limited to the following:
(a) Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;
(b) Water pipes;
(c) Carburetion tubes and devices;
(d) Smoking and carburetion masks;
(e) Roach clips, meaning objects used to hold burning material, such as a marijuana cigarette, which has become too small or too short to be held in the hand;
(f) Miniature cocaine spoons, and cocaine vials;
(g) Chamber pipes;
(h) Carburetor pipes;
(i) Electric pipes;
(j) Air-driven pipes;
(l) Bongs; and
(m) Ice pipes or chillers.
Along with the definition of paraphernalia found in 28-439, the law also provides some additional direction, found in Section 28-440, that helps determine if something qualifies as paraphernalia. That statute reads as follows:
In determining whether an object is drug paraphernalia, a court or other authority shall consider, in addition to all other logically relevant factors, the following:
(1) Statements by an owner or by anyone in control of the object concerning its use;
(2) Prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance;
(3) The proximity of the object, in time and space, to a direct violation of this act;
(4) The proximity of the object to any controlled substance;
(5) The existence of any residue of a controlled substance on the object;
(6) Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to any person whom he or she knows, or should reasonably know, intends to use the object to facilitate a violation of sections 28-101, 28-431, and 28-439 to 28-444. The innocence of an owner, or of anyone in control of the object, as to a direct violation of sections 28-101, 28-431, and 28-439 to 28-444 shall not prevent a finding that the object is intended for use, or designed for use as drug paraphernalia;
(7) Instructions, oral or written, provided with the object concerning its use;
(8) Descriptive materials accompanying the object which explain or depict its use;
(9) National and local advertising concerning its use;
(10) The manner in which the object is displayed for sale;
(11) 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;
(12) Direct or circumstantial evidence of the ratio of sales of the object or objects to the total sales of the business enterprise;
(13) The existence and scope of any legitimate use for the object in the community; and
(14) Expert testimony concerning its use.
Contact a Drug Defense Lawyer at Petersen Law Office
If you have been charged with a drug-related criminal offense in Nebraska, consult with an experienced drug defense lawyer as soon as possible. In Nebraska contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case.
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