Is Possession of Paraphernalia in SC a Crime?

by | Oct 21, 2019 | Drug Charges, Marijuana Prohibition |

Possession of paraphernalia in SC is not a criminal offense – it is a civil violation only and the conviction should not go on a person’s criminal record. 

Although it is not a criminal offense, it is often charged along with drug crimes like possession or manufacturing drugs, and, depending on the type of paraphernalia that is found, it can be evidence of crimes like manufacturing methamphetamine or exposure of a child to methamphetamine. 

What is possession of paraphernalia in SC? When does it lead to other criminal charges? What if you are charged with possession of paraphernalia under a local ordinance that says it is a crime as opposed to a civil penalty?

What is Possession of Paraphernalia in SC?

When they hear “paraphernalia,” most people think of a pipe that is used to smoke marijuana. Although that certainly qualifies as paraphernalia, the statutory definition is much broader and includes any device or object that is used for ingesting, manufacturing, or preparing drugs for use. 

SC Code Section 44-53-110(33) defines paraphernalia:

(33) “Paraphernalia” means any instrument, device, article, or contrivance used, designed for use, or intended for use in ingesting, smoking, administering, manufacturing, or preparing a controlled substance and does not include cigarette papers and tobacco pipes but includes, but is not limited to:

(a) metal, wooden, acrylic, glass, stone, plastic, or ceramic marijuana or hashish pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;
(b) water pipes designed for use or intended for use with marijuana, hashish, hashish oil, or cocaine;
(c) carburetion tubes and devices;
(d) smoking and carburetion masks;
(e) roach clips;
(f) separation gins designed for use or intended for use in cleaning marijuana;
(g) cocaine spoons and vials;
(h) chamber pipes;
(i) carburetor pipes;
(j) electric pipes;
(k) air-driven pipes;
(l) chilams;
(m) bongs;
(n) ice pipes or chillers.

A separate statute makes possession of paraphernalia in SC “unlawful,” but is it a crime?

Is Possession of Paraphernalia in SC a Crime?

SC Code Section 44-53-391 makes it “unlawful” to possess, manufacture, sell, or deliver paraphernalia: 

(a) It shall be unlawful for any person to advertise for sale, manufacture, possess, sell or deliver, or to possess with the intent to deliver, or sell paraphernalia.

Although 44-53-110 contains a list of items the legislature has determined are paraphernalia, it is not a complete list. 44-53-391 also provides guidelines for courts to determine whether an item is paraphernalia:

(b) In determining whether an object is 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) The proximity of the object to controlled substances;
(3) The existence of any residue of controlled substances on the object;
(4) Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of law; the innocence of an owner, or of anyone in control of the object, as to a direct violation of law shall not prevent a finding that the object is intended for use, or designed for use as drug paraphernalia;
(5) Instructions, oral or written, provided with the object concerning its use;
(6) Descriptive materials accompanying the object which explain or depict its use;
(7) National and local advertising concerning its use;
(8) The manner in which the object is displayed for sale;
(9) 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;
(10) Direct or circumstantial evidence of the ratio of sales of the object to the total sales of the business enterprise;
(11) The existence and scope of legitimate uses for the object in the community;
(12) Expert testimony concerning its use.

For example, if you own a store that sells glass pipes, will you be arrested for possession of paraphernalia? 

Probably not – you should be protected from prosecution for possession of paraphernalia in SC if you:

  • Clearly state that the pipes are intended for use with tobacco products or as a novelty item only;
  • Don’t permit any controlled substances on your premises;
  • Include an insert or tag on your product that clearly states the pipe is for use with tobacco products only;
  • Ensure your pipes don’t have drug residue on or in them (don’t sell used pipes);
  • Consistently state that your pipes are for use with tobacco or as a novelty item only in your advertising; and
  • Sell tobacco products along with the pipes in your store. 

Possession of paraphernalia in SC is not a crime because the law states that a person who violates the law will be subject to a civil fine only and specifies that payment of the fine will not result in “any disability or disadvantage based on conviction for a criminal offense:”

(c) Any person found guilty of violating the provisions of this section shall be subject to a civil fine of not more than five hundred dollars except that a corporation shall be subject to a civil fine of not more than fifty thousand dollars. Imposition of such fine shall not give rise to any disability or legal disadvantage based on conviction for a criminal offense.

Possession of Paraphernalia in SC can be Evidence of a Crime

Although possession of paraphernalia in SC is not a crime, it can be evidence of a crime. For example, SC Code Section 44-53-375 states that possession of “manufacturing paraphernalia” is “prima facie” evidence of intent to manufacture cocaine, crack cocaine, or meth:

(D) Possession of equipment or paraphernalia used in the manufacture of cocaine, cocaine base, or methamphetamine is prima facie evidence of intent to manufacture.

Similarly, possession of growing equipment like grow tents, grow lights, and similar items can be used as evidence of intent to manufacture marijuana, and possession of paraphernalia like digital scales, baggies, and “cut” can be used as evidence of intent to distribute a drug as opposed to simple possession. 

SC Code Section 44-53-378 makes it a separate crime to possess paraphernalia used in manufacturing meth when children are present:

(A) It is unlawful for a person who is eighteen years of age or older to:

(1) either directly or by extraction from natural substances, or independently by means of chemical processes, or both, unlawfully manufacture amphetamine, its salts, isomers, or salts of isomers, or methamphetamine, its salts, isomers, or salts of its isomers in the presence of a minor child; or
(2) knowingly permit a child to be in an environment where a person is selling, offering for sale, or having in such person’s possession with intent to sell, deliver, distribute, prescribe, administer, dispense, manufacture, or attempt to manufacture amphetamine or methamphetamine; or
(3) knowingly permit a child to be in an environment where drug paraphernalia or volatile, toxic, or flammable chemicals are stored for the purpose of manufacturing or attempting to manufacture amphetamine or methamphetamine.

What if I’m Charged with Possession of Paraphernalia in SC Under a Municipal Code?

Some municipal ordinances state that possession of paraphernalia is a criminal offense, and, in some cases, we have seen possession of paraphernalia appear on a person’s criminal history. Can it be fixed? 

First, if you are charged with possession of paraphernalia under a city ordinance that says it is a criminal offense, the ordinance is unconstitutional. State law “pre-empts” any local ordinance, and the SC legislature has determined that possession of paraphernalia in SC is not a criminal offense. 

Get a criminal defense attorney immediately who can ensure that the “civil penalty” of possession of paraphernalia does not appear on your record. 

If you have already paid the fine and a criminal conviction for possession of paraphernalia is appearing on your record, you may still be able to fix it – contact a criminal defense lawyer immediately and, depending on the circumstances, they may be able to:

  • File a motion to reopen your case;
  • File a PCR (post-conviction relief) action to reverse the conviction; or
  • Have the offense expunged from your record. 

SC Drug Crimes Defense Lawyers in Myrtle Beach

Possession of paraphernalia in SC is not a crime, you cannot be arrested for it, and it should not appear on your criminal record even if you paid a fine to the court. 

If a paraphernalia charge is appearing on your criminal record, or if you have been charged with any drug offense in SC, call the Myrtle Beach drug crimes defense attorneys at Coastal Law now at (843) 488-5000 or fill out our online form to set up a free consultation about your case. 

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