§ 5.26.030. Possession of drug paraphernalia, controlled substances illegal  


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  • (a) No person shall use or possess with intent to use:

    (1) Any simulated controlled substance;

    (2) Any drug paraphernalia to use, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance in violation of the uniform controlled substances act;

    (3) Any drug paraphernalia for the planting, propogation, growing or harvesting of less than five marijuana plants.

    (b) No person shall distribute, possess with intent to distribute or manufacture with intent to distribute any drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to:

    (1) Manufacture, cultivate, plant, propagate, harvest, test, analyze or distribute a controlled substance; or

    (2) Store, contain, conceal, inject, ingest, inhale or otherwise introduce a controlled substance into the human body.

    (c) As used in this section, 'of under circumstances where one reasonably should know' that an item will be used in violation of this section shall include but not be limited to the following:

    (1) Actual knowledge from prior experience or statements by customers;

    (2) Inappropriate or impractical design for alleged legitimate use;

    (3) Receipt of packaging material, advertising information or other manufacturer supplied information regarding the item's use as drug paraphernalia;

    (4) Receipt of a written warning from a law enforcement or prosecutorial agency having jurisdiction that the item has been previously determined to have been designed specifically to use as drug paraphernalia.

    (d) The fact that an item has not yet been used or did not contain a controlled substance at the time of the seizure is not a defense to a charge that the item was possessed with the intention for use as drug paraphernalia.

    (e) It shall not be a defense to charges arising under this section that the defendant was acting in an agency relationship on behalf of another part in a transaction involving a controlled substance.

    (f) 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 person in control of the object concerning its use.

    (2) Prior convictions, if any, of an owner or person 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 the Uniform Controlled Substances Act.

    (4) The proximity of the object to controlled substances.

    (5) The existence of any residue of controlled substances in the object.

    (6) Direct or circumstantial evidence of the intent of an owner or person in control of the object, to deliver it to a person the owner or person in control to the object knows, or should reasonably know, intends to use the object to facilitate a violation of the Uniform Controlled Substances Act. The innocence of an owner or person in control of the object as to a direct violation of the Uniform Controlled Substances Act shall not prevent a finding that the object is intended for use as drug paraphernalia.

    (7) Oral or written instructions 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 the object's use.

    (10) Whether the owner or person in control of the object is a legitimate supplier of similar or related items to the community, such as a distributor or dealer of tobacco products;

    (11) The manner in which the object is displayed for sale.

    (12) The existence and scope of legitimate uses for the object in the community.

    (13) Expert testimony concerning the object's use.

    (14) Any evidence that alleged paraphernalia can or has been used to store a controlled substance or to introduce a controlled substance into the human body as opposed to any legitimate use for the alleged paraphernalia.

    (15) Advertising of the item in magazines or other means which specifically glorify, encourage or espouse the illegal use, manufacture, sale or cultivation of controlled substances.

(Ord. No. 42-599, § 3; Ord. No. 47-709, § 1, 12-11-07; Ord. No. 48-718, § 3, 4-20-2010)