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F.S. 893.146 on Google Scholar

F.S. 893.146 on Casetext

Amendments to 893.146

The 2021 Florida Statutes

Title XLVI
Chapter 893
View Entire Chapter
F.S. 893.146 Florida Statutes and Case Law
893.146 Determination of paraphernalia.In determining whether an object is drug paraphernalia, a court or other authority or jury 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, in time and space, to a direct violation of this act.
(3) The proximity of the object to controlled substances.
(4) The existence of any residue of controlled substances on the object.
(5) Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons who he or she knows, or should reasonably know, intend to use the object to facilitate a violation of this act. The innocence of an owner, or of anyone in control of the object, as to a direct violation of this act shall not prevent a finding that the object is intended for use, or designed for use, as drug paraphernalia.
(6) Instructions, oral or written, provided with the object concerning its use.
(7) Descriptive materials accompanying the object which explain or depict its use.
(8) Any advertising concerning its use.
(9) The manner in which the object is displayed for sale.
(10) 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 of or dealer in tobacco products.
(11) Direct or circumstantial evidence of the ratio of sales of the object or objects to the total sales of the business enterprise.
(12) The existence and scope of legitimate uses for the object in the community.
(13) Expert testimony concerning its use.
History.s. 2, ch. 80-30; s. 1445, ch. 97-102.

Statutes updated from Official Statutes on: January 26, 2022
F.S. 893.146 on Google Scholar

F.S. 893.146 on Casetext

Amendments to 893.146

Arrestable Offenses / Crimes under Fla. Stat. 893.146
Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 893.146.

Civil Citations / Citable Offenses under S893.146
R or S next to points is Mandatory Revocation or Suspension

Current data shows no reason a civil citation or a suspension or revocation of license should have been issued under Florida Statute 893.146.

Annotations, Discussions, Cases:

  1. While it is true that the mere fact that one is acquitted of possession of a nearby controlled substance does not automatically foreclose a conviction for possession of drug paraphernalia, the State ignores significant facts which distinguish Grady from the instant case: In Grady, the substance seized from the vehicle was in fact marijuana, a controlled substance. Thus Grady (and the scale) were found in close proximity to a controlled substance, a factor expressly to be considered under section 893.146 in determining whether an object constitutes drug paraphernalia and in considering whether the object was intended to be used for an illicit purpose. See § 893.146(3) Fla. Stat. (2010) (“The proximity of the object to controlled substances.”). By contrast, in the instant case there was no controlled substance in the proximity of C.M. or the ear dropper, and thus no evidence from which one could infer that C.M. intended to use the ear dropper to inhale a controlled substance.
    PAGE 950
  2. Florida Businessmen, Etc. v. State of Fla.

    499 F. Supp. 346 (N.D. Fla. 1980)   Cited 18 times
    "[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970). An irrebuttable presumption of guilt from proof of a certain fact, in some circumstances, denies a defendant that protection and is consequently unconstitutional. Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). Chapter 80-30, however, does not create any presumptions. It merely lists, in Section 893.146, various relevant factors to consider. Section 893.146 is constitutional.
    PAGE 353
  3. Florida Businessmen, Etc. v. City, Hollywood

    673 F.2d 1213 (11th Cir. 1982)   Cited 48 times
    Hollywood, Fla., Ordinance No. 0-80-15, § 21-80B(11) (Feb. 20, 1980) (emphasis added); accord Fla.Stat. § 893.146(10) (Supp. 1982).
    PAGE 1220
  4. Grady v. State

    753 So. 2d 744 (Fla. Dist. Ct. App. 2000)   Cited 3 times
    Grady would have us disregard the proximity of the marijuana because the jury acquitted him of the charge of possession of marijuana. However, section 893.146 does not require that a defendant be convicted of possession of the nearby illegal drug before it may be considered in determining whether the object seized is drug paraphernalia.
    PAGE 745
  5. State v. Mallard

    40 S.W.3d 473 (Tenn. 2001)   Cited 111 times   1 Legal Analyses
    Twenty jurisdictions do not include a defendant's prior crimes among the "relevant" considerations. See Colo. Rev. Stat. Ann. § 18-18-427 (West 1997); Conn. Gen. Stat. Ann. § 21a-270 (West 1994); Del. Code Ann. tit. 16, § 4775 (1995); D.C. Code Ann. § 33-602 (1993); Fla. Stat. Ann. § 893.146 (Supp. 2000); Ga. Code Ann. § 16-13-32.1(c) (Supp. 2000); 720 Ill. Comp. Stat. Ann. § 600/3.5 (West 1993); La. Rev. Stat. Ann. § 40:1032 (West 1992); Mass. Gen. Laws Ann. ch. 94C, § 1 (West 1984 Supp. 2000); N.J. Stat. Ann. § 2C:36-1 (West 1995); Ohio Rev. Code Ann. § 2925.14 (Banks-Baldwin 1996); Okla. Stat. Ann. tit. 63, § 2-101.1 (West 1997); Or. Rev. Stat. § 475.525 (1995); S.C. Code Ann. § 44-53-391(b) (Law Co-op. Supp. 2000); S.D. Codified Laws Ann. § 22-42A-2 (Michie 1988); Tex. Health Safety Code Ann. § 481.183 (West 1992); V.I. Code Ann. tit. 19, § 593(13)(M) (1995); Vt. Stat. Ann. tit. 18, § 4475 (Supp. 2000); Va. Code Ann. § 18.2-265.2 (Michie 1996); Wis. Stat. Ann. § 161.572 (West 1997).
    PAGE 478
  6. Subuh v. State

    732 So. 2d 40 (Fla. Dist. Ct. App. 1999)   Cited 3 times
    Section 893.146, Florida Statutes (1997), provides:
    PAGE 43
  7. Chandler v. State

    185 So. 3d 1286 (Fla. Dist. Ct. App. 2016)   Cited 2 times
    Section 893.147(1)(b), Florida Statutes (2014), makes it "unlawful for any person to use, or to possess with intent to use, drug paraphernalia ... [t]o inject, ingest, inhale, or otherwise introduce into the human body a controlled substance." In determining whether an item qualifies as drug paraphernalia, the court may consider, inter alia, the proximity of the item to any controlled substances, the existence of residue on the item, whether the item can be used for legitimate purposes, and expert testimony concerning the item's use. § 893.146, Fla. Stat. (2014). "The presence of even a minuscule quantity of drug residue is sufficient circumstantial evidence to prove the element of intent to use." Nixon v. State, 680 So.2d 506, 507 (Fla. 1st DCA 1996) (citing Steele v. State, 561 So.2d 638 (Fla. 1st DCA 1990) ). However, if the alleged paraphernalia tests negative for drug residue, the State must introduce other evidence to demonstrate possession of the item with intent to use it for an illicit purpose. T.E.D. v. State, 627 So.2d 118 (Fla. 5th DCA 1993).
  8. McKenzie v. State

    830 So. 2d 234 (Fla. Dist. Ct. App. 2002)   Cited 16 times
    Fla. Std. Jury Instr. (Crim.) 25.14; § 893.146, Fla. Stat. (2000).
    PAGE 236
  9. Baggett v. State

    562 So. 2d 359 (Fla. Dist. Ct. App. 1990)   Cited 5 times
    Further, in order to have probable cause to arrest Mrs. Baggett for the offense of possession with intent to use drug paraphernalia, the officers needed to determine that the syringes dropped into the dumpster were indeed drug paraphernalia. Section 893.146, Florida Statutes (1987) sets forth the factors which a trial court, a jury, or other authority (in this case the officers) shall consider in determining whether an object is drug paraphernalia. These factors are as follows:
    PAGE 361
  10. Townsend v. State

    781 So. 2d 541 (Fla. Dist. Ct. App. 2001)   Cited 2 times
    Townsend was convicted of possession of cocaine and possession of drug paraphernalia, and appeals the latter conviction, contending that there was insufficient evidence to prove the offense. Police found in Townsend's pocket a white rock and a small plastic container in which there was a white residue. An officer who performed a chemical reagent test testified that the rock and the container field-tested positive for the presence of cocaine. A chemist testified that the rock tested positive in the laboratory for cocaine, but that he had not tested the container. Although the mere field test alone of residue might not be enough to sustain a conviction for possession of cocaine or possession of drug paraphernalia, the presence of a tenth of a gram of cocaine in close proximity to a container containing a white residue, which field-tested positive for cocaine, is sufficient to sustain the inference that the container was used or intended to be used to package cocaine. Cf. § 893.145(10), Fla. Stat. (1999) (term "drug paraphernalia" includes "containers used, intended for use, or designed for use in packaging small quantities of controlled substances"); § 893.146, Fla. Stat…
    PAGE 542