It is a Nevada narcotics crime to possess or sell not only drugs but also drug paraphernalia, any apparatus used for the manufacturing or consuming of controlled substances. Simple possession of drug paraphernalia is a misdemeanor, punishable by up to $1,000 in fines and/or 6 months in jail. But selling drug paraphernalia is an automatic felony.
In this article, our Las Vegas criminal defense attorneys discuss:
- 1. What is the legal definition of drug paraphernalia in Nevada?
- 2. What are the penalties?
- 3. How do I fight the charges?
- 4. Can the record be sealed?
- 5. What is the federal law?
1. What is the legal definition of drug paraphernalia in Nevada?
Drug paraphernalia in Nevada is any kind of equipment or materials intended for the manufacture, storage or ingestion of illegal drugs. Common examples are:
- razor blades
- cocaine spoons
- aerosol cans
- roach clips
- water pipes
Now that Nevada law permits people to possess up to one ounce of marijuana in a private residence, the police are unlikely to arrest people for possessing bongs and roach clips in their home. But using marijuana – and marijuana paraphernalia – in public is still a crime.
Note that drug paraphernalia does not include any type of hypodermic syringe, needle, instrument, device or implement intended or capable of being adapted for the purpose of administering drugs by subcutaneous, intramuscular or intravenous injection.1
When determining whether an object is used for or intended as drug paraphernalia, Nevada courts may consider any relevant factors. Some of these include:
- Prior convictions of anyone in control of the alleged paraphernalia
- How the alleged paraphernalia was displayed for sale
- Any other direct or circumstantial evidence regarding the intent of anyone owning or in possession of the alleged paraphernalia
- The proximity of the alleged paraphernalia to controlled substances, whether it has residue of controlled substances, and whether it had instructions of how it should be used
- Statements by anyone in control of the alleged paraphernalia
- Expert testimony concerning its use2
2. What are the penalties?
2.1. Unlawful use and possession (NRS 453.566)
It is a Nevada misdemeanor for a person to use drug paraphernalia or to possess drug paraphernalia with the intent to use it. As a misdemeanor offense, the unlawful use or possession of drug paraphernalia is punishable by up to six months in county jail and/or up to $1,000 in fines in Nevada.3
2.2. Unlawful delivery, sale, or manufacture (NRS 453.560)
It is a category E felony in Nevada when a person knowingly either:
- delivers or sells drug paraphernalia, or
- possesses drug paraphernalia with the intent to deliver or sell it, or
- manufactures drug paraphernalia with the intent to deliver or sell it.
As a category E felony in Nevada, the unlawful delivery, sale, or manufacture of drug paraphernalia carries probation and a suspended sentence. But if the defendant has two or more prior felony convictions, the court may impose one to four years in Nevada State Prison and up to $5,000 in fines.
Note that unlawful delivery of drug paraphernalia becomes a category C felony in Nevada if the recipient is under 18 years old and at least three years younger than the defendant. Penalties include one to five years in prison and a possible fine up to $10,000.4
2.3. Unlawful delivery to a minor (NRS 453.562)
It is a category C felony in Nevada when an adult 18 or older delivers drug paraphernalia to a child who is both under 18 and at least three years younger than the adult. As a category C felony, unlawful delivery of drug paraphernalia to a minor is punishable by a prison sentence of one to five years and a possible maximum $10,000 fine. In addition, the court can order the defendant to pay restitution for a drug treatment program for the child.5
2.4. Unlawful advertising (NRS 453.564)
It is a misdemeanor in Nevada to knowingly advertise drug paraphernalia in a printed publication. The sentence is up to six months in jail and/or up to $1,000 in fines.6
3. How do I fight the charges?
Depending on the drug paraphernalia case, potential defense strategies to fight Nevada criminal charges include the following:
- Lack of intent. Possession of drug paraphernalia is a crime only if the defendant had the intention to use it. Unless the D.A. can prove beyond a reasonable doubt that the defendant was intending to use the paraphernalia to ingest, make, store, or otherwise use drugs, the charge should be dropped.
- No paraphernalia. Perhaps the police mistook regular hardware or kitchen tools as drug paraphernalia. As long as there is a reasonable doubt about whether the equipment in question was being used as drug paraphernalia, the case should be dismissed.
- Police misconduct. Law enforcement cannot perform a search unless they have a valid warrant or a lawful reason to conduct a warrantless search. If the police may have found the alleged paraphernalia through an illegal search, the defense attorney can ask the judge to suppress (disregard) the illegally-obtained evidence. If the judge agrees, the prosecution may have to drop the case for lack of proof.
4. Can the record be sealed?
Nevada convictions for drug paraphernalia crimes can be sealed from the defendant’s record, but there is a waiting period:
|Drug paraphernalia conviction||Record seal waiting period
|Use or possession||1 year after the case closes|
|Advertising||1 year after the case closes|
|Delivery, sale, or manufacture||2 years after the case closes|
|Delivery to a minor||5 years after the case closes|
Note that defendants whose drug paraphernalia charges get dismissed can pursue a record seal right away.7 Learn how to seal Nevada criminal records.
5. What is the federal law?
Federal drug paraphernalia law under 21 U.S.C. § 863 is narrower than Nevada law. It does not punish simple possession of drug paraphernalia or purchasing drug paraphernalia.8 Rather, federal law only prohibits selling or transporting it.
The Law Offices of Las Vegas Defense Group defend against criminal cases in Las Vegas, Henderson, North Las Vegas, Reno, and throughout the state of Nevada. We practice personal injury in addition to DUI, domestic violence, and criminal law.
- possession of marijuana / cannabis for personal use
- possession of a controlled substance (NRS 453.336)
- unlawful possession with intent to sell (NRS 453.337 & NRS 453.338)
- selling drugs (NRS 453.321)
- unlawful administering of prescription drugs (NRS 453.381)
- drug trafficking (NRS 453.3385) of schedule I or schedule II drugs.
Also see Nevada’s adoption of the Uniform Controlled Substances Act.
- NRS 453.554 subsections 1 & 2.
- NRS 453.556.
- NRS 453.566; see also Howe v. State, (1996) 112 Nev. 458, 916 P.2d 153.
- NRS 453.560; see also NRS 453.558; see also Conkey v. Reno, (D. Nev. 1995) 885 F. Supp. 1389.
- NRS 453.562. (A violation of NRS 453.562 is always a felony.)
- NRS 453.564.
- Nevada Revised Statutes 179.245 & 179.255.
- 21 U.S.C. § 863.