§ 18-18-428 CRS – Possession of Drug Paraphernalia – Colorado Law

Colorado Revised Statutes § 18-18-428 makes it a drug petty offense to be in the unlawful possession of drug paraphernalia. This offense is punishable by a fine of up to $100 but no actual jail time.

It is generally not illegal to have marijuana paraphernalia because state law permits possessing up to two ounces of recreational marijuana to use in private.

The language of CRS § 18-18-428 reads as follows:

(1)(a) Except as described in section 18-1-711 and paragraph (b) of this subsection (1), a person commits possession of drug paraphernalia if he or she possesses drug paraphernalia and knows or reasonably should know that the drug paraphernalia could be used under circumstances in violation of the laws of this state.
(b)(I) Prior to searching a person, a person’s premises, or a person’s vehicle, a peace officer may ask the person whether the person is in possession of a hypodermic needle or syringe that may cut or puncture the officer or whether such a hypodermic needle or syringe is on the premises or in the vehicle to be searched. If a hypodermic needle or syringe is on the person, on the person’s premises, or in the person’s vehicle and the person, either in response to the officer’s question or voluntarily, alerts the officer of that fact prior to the search, assessment, or treatment, the peace officer shall not arrest or cite the person pursuant to this section for the hypodermic needle or syringe or section 18-18-403.5 for any minuscule, residual controlled substance that may be present in a used hypodermic needle or syringe, and the district attorney shall not charge or prosecute the person pursuant to this section for the hypodermic needle or syringe or section 18-18-403.5 for any minuscule, residual controlled substance that may be present in a used hypodermic needle or syringe. The circumstances described in this paragraph (b) may be used as a factor in a probable cause or reasonable suspicion determination of any criminal offense if the original stop or search was lawful.
(II) Prior to assessing or treating a person, an emergency medical service provider, as defined in section 18-3-201 (1.3), or other first responder may ask the person whether the person is in possession of a hypodermic needle or syringe that may cut or puncture the technician or first responder. If a hypodermic needle or syringe is on the person, and the person, either in response to the question or voluntarily, alerts the emergency medical service provider or first responder of that fact, a peace officer shall not arrest or cite the person pursuant to this section for the hypodermic needle or syringe or section 18-18-403.5 for any minuscule, residual controlled substance that may be present in a used hypodermic needle or syringe, and the district attorney shall not charge or prosecute the person pursuant to this section for the hypodermic needle or syringe or section 18-18-403.5 for any minuscule, residual controlled substance that may be present in a used hypodermic needle or syringe.

(2) Any person who commits possession of drug paraphernalia commits a drug petty offense and, upon conviction thereof, shall be punished by a fine of not more than one hundred dollars.

In this article, our Colorado criminal defense attorneys discuss:

• 1. Is possessing drug paraphernalia a crime in Colorado?
• 2. What is drug paraphernalia?
• 3. Can I go to jail for violating CRS 18-18-428?
• 4. Is it a crime to possess marijuana paraphernalia?
• 5. What is the hypodermic needle exception?
• 6. What are common defenses?
• 7. Can I get the case sealed?

1. Is possessing drug paraphernalia a crime in Colorado?

Yes, Colorado Revised Statute 18-18-428 prohibits the possession of drug paraphernalia if the possessor knows – or reasonably should know – that the paraphernalia could be used to

• make,
• store,
• use, or
• ingest drugs.

Note that possession comprises:

• Actual possession, such as physically holding a meth pipe;
• Constructive possession, such as storing hypodermic needles in one’s closet; and
• Joint possession, such as sharing drug containers with a roommate.

Also note it is not a criminal offense to possess paraphernalia for marijuana, marijuana concentrate, or medical marijuana.¹

Possessing drug paraphernalia such as methamphetamine pipes in violation of CRS 18-18-428 is a drug petty offense.

2. What is drug paraphernalia?

CRS 18-18-426 defines drug paraphernalia as:

“all equipment, products, and materials of any kind that are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of [Colorado law].”

Examples of drug paraphernalia are:

• scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances;
• blenders, bowls, containers, spoons, and mixing devices used, intended for use, or designed for use in compounding controlled substances;
• capsules, balloons, envelopes, and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances;
• containers and other objects used, intended for use, or designed for use in storing or concealing controlled substances; or
• objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing cocaine into the human body, such as:
  • Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, or punctured metal bowls;
  • Water pipes;
  • Carburetion tubes and devices;
  • Smoking and carburetion masks;
  • Miniature cocaine spoons and cocaine vials;
  • Chamber pipes;
  • Carburetor pipes;
  • Electric pipes;
  • Air-driven pipes;
  • Chillums; or
  • Ice pipes or chillers.

In other words, pretty much anything counts as drug paraphernalia if the district attorney can prove the defendant used it to help store, use, or process drugs in any way. It does not matter whether the drugs belong to schedule V, IV, III, II, or I.

Note that drug paraphernalia does not include marijuana accessories.

Examples include

• bongs,
• rolling papers, and
• roach clips.²

3. Can I go to jail for violating CRS 18-18-428?

No. Possessing drug paraphernalia is a drug petty offense, punishable by up to $100.³

See our related article on advertising drug paraphernalia (CRS 18-18-430), which is a level 2 drug misdemeanor. This drug offense can carry jail time.

Marijuana accessories are not considered drug paraphernalia under Colorado criminal law.

4. Is it a crime to possess marijuana paraphernalia?

No. Colorado law permits the possession of cannabis drug paraphernalia. The reason is that state law permits people to possess up to two ounces of marijuana for recreational use in private.⁴

Note that the possession and use of marijuana are still illegal under federal drug law.⁵

5. What is the hypodermic needle exception?

People can be asked if they have a hypodermic needle or syringe prior to:

• an emergency medical technician or other first responder treating them; or
• a police officer searching their person, premises, or vehicle.

As long as they disclose their possession of a needle(s) before the search, assessment, or treatment, they are immune from charges of drug paraphernalia possession. They are also immune from charges of unlawful possession of a controlled substance (CRS 18-18-403.5) for any minuscule, residual controlled substance that may be present in a used hypodermic needle or syringe.⁶

6. What are common defenses?

Five possible defenses arguments that could get a possession of drug paraphernalia charge dismissed include:

1. The police did not have probable cause to carry out an arrest.
2. The defendant was not unaware – and could not reasonably be aware – that the material was drug paraphernalia.⁷
3. The materials were generic (such as a bowl or scale), and the defendant never used them in a drug-related way.
4. Law enforcement found the paraphernalia during an illegal search and seizure.
5. The defendant was immune from prosecution because the paraphernalia was a hypodermic needle or syringe that the defendant disclosed ahead of time to the peace officer or EMT.

It is also a defense if the defendant contacted the authorities to make a good faith report of an alcohol or illegal drug overdose, remained at the scene until the police or EMT arrived, and cooperated with them.

7. Can I get the case sealed?

A Colorado conviction for drug paraphernalia possession can be sealed one year after the case ends. And if the court dismisses the cases, then there is no wait time before the defendant can pursue a record seal.⁸

Learn how to seal Colorado criminal records.

Anyone cited or arrested on criminal charges is welcome to contact our Colorado criminal defense lawyers for help.

See our related articles on the possession of marijuana, marijuana laws, drug possession laws, unlawful use of drugs, and level 4 drug felonies.

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