Chapter 10.35 DRUG PARAPHERNALIA AND MARIJUANA

Chapter 10.35
DRUG PARAPHERNALIA AND MARIJUANA

Sections:

10.35.010 Drug paraphernalia—Definitions.

10.35.020 Possession of drug paraphernalia.

10.35.030 Manufacture or delivery of drug paraphernalia.

10.35.040 Delivery of drug paraphernalia to a minor.

10.35.050 Advertisement of drug paraphernalia.

10.35.055 Selling or giving drug paraphernalia to another person.

10.35.060 Possession of marijuana.

10.35.070 Penalties under other laws.

10.35.080 Misdemeanor violations—Penalties.

10.35.100 Drug-free zones—Violations.

10.35.010 Drug paraphernalia—Definitions.

A. As used in this chapter, “drug paraphernalia” means all equipment, products and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance, as defined by Chapter 69.50 RCW, as now or hereafter amended. It includes, but it is not limited to:

1. Kits used, intended for use or designed for use in planting, propagating, cultivating, growing or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived;

2. Kits used, intended for use or designed for use in manufacturing, compounding, converting, producing, processing or preparing controlled substances;

3. Isomerization devices used, intended for use or designed for use in increasing the potency of any species of plant which is a controlled substance;

4. Testing equipment used, intended for use or designed for use in identifying or in analyzing the strength, effectiveness or purity of controlled substances;

5. Scales and balances used, intended for use or designed for use in weighing or measuring controlled substances;

6. Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used, intended for use or designed for use in cutting controlled substances;

7. Separation gins and sifters used, intended for use or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, marijuana;

8. Blenders, bowls, containers, spoons and mixing devices used, intended for use or designed for use in compounding controlled substances;

9. Capsules, balloons, envelopes and other containers used, intended for use or designed for use in packaging small quantities of controlled substances;

10. Containers and other objects used, intended for use or designed for use in storing or concealing controlled substances;

11. Hypodermic syringes, needles and other objects used, intended for use or designed for use in parenterally injecting controlled substances into the human body;

12. Objects used, intended for use or designed for use in ingesting, inhaling or otherwise introducing marijuana, cocaine, hashish or hashish oil into the human body, such as:

a. Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads or punctured metal bowls,

b. Water pipes,

c. Carburetion tubes and devices,

d. Smoking and carburetion masks,

e. Roach clips: Meaning objects used to hold burning material, such as a marijuana cigarette, that has become too small or too short to be held in the hand,

f. Miniature cocaine spoons, and cocaine vials,

g. Chamber pipes,

h. Carburetor pipes,

i. Electric pipes,

j. Air-driven pipes,

k. Chillums,

l. Bongs, and

m. Ice pipes or chillers.

B. In determining whether an object is drug paraphernalia under this section, a court or other authority should 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. Prior convictions, if any, of an owner, or of anyone 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 this chapter;

4. The proximity of the object to controlled substances;

5. The existence of any residue of controlled substances on the object;

6. 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 this chapter, the innocence of an owner, or of anyone in control of the object, as to a direct violation of this chapter shall not prevent a finding that the object is intended or designed for use as drug paraphernalia;

7. Instructions, oral or written, 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 its use;

10. The manner in which the object is displayed for sale;

11. 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;

12. Direct or circumstantial evidence of the ratio of sales of the object(s) to the total sales of the business enterprise;

13. The existence and scope of legitimate uses for the object in the community; and

14. Expert testimony concerning its use. (Ord. 1653-89 §§ 1, 9 (part), 1989)

10.35.020 Possession of drug paraphernalia.

A. It is unlawful for any person to use, or possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance, as defined by Chapter 69.50 RCW, as now or hereafter amended. Any person who violates this section is guilty of a misdemeanor.

B. Nothing in subsection A of this section prohibits any person over the age of eighteen from possessing sterile hypodermic syringes and needles for the purpose of reducing bloodborne diseases. (Ord. 2622-02 § 1, 2002: Ord. 1653-89 §§ 2, 9 (part), 1989)

10.35.030 Manufacture or delivery of drug paraphernalia.

A. It is unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance, as defined in Chapter 69.50 RCW, as now or hereafter amended. Any person who violates this section is guilty of a misdemeanor.

10.35.040 Delivery of drug paraphernalia to a minor.

A. Any person eighteen years of age or over who violates Section 10.35.030 of this chapter by delivering drug paraphernalia to a person under eighteen years of age who is at least three years his junior is guilty of a gross misdemeanor.

10.35.050 Advertisement of drug paraphernalia.

It is unlawful for any person to place in any newspaper, magazine, handbill or other publication any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended for use as drug paraphernalia. Any person who violates this section is guilty of a misdemeanor. (Ord. 1653-89 §§ 5, 9 (part), 1989)

10.35.055 Selling or giving drug paraphernalia to another person.

A. Every person who sells or gives, or permits to be sold or given, to any person any drug paraphernalia in any form commits a civil infraction punishable by a fine of not more than five hundred dollars.

B. For purposes of this section, “drug paraphernalia” means all equipment, products and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance. Drug paraphernalia includes, but is not limited to, objects used, intended for use or designed for use in ingesting, inhaling or otherwise introducing marijuana, cocaine, hashish or hashish oil into the human body, such as:

1. Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads or punctured metal bowls;

2. Water pipes;

3. Carburetion tubes and devices;

4. Smoking and carburetion masks;

5. Roach clips: Meaning objects used to hold burning material, such as a marijuana cigarette, that has become too small or too short to be held in the hand;

6. Miniature cocaine spoons, and cocaine vials;

7. Chamber pipes;

8. Carburetor pipes;

9. Electric pipes;

10. Air-driven pipes;

11. Chillums;

12. Bongs; and

13. Ice pipes or chillers.

C. It shall be no defense to a prosecution for a violation of this section that the person acted, or was believed by the defendant to act, as agent or representative of another.

D. Nothing in subsection A of this section prohibits legal distribution of injection syringe equipment through public health and community-based HIV prevention programs, and pharmacies. (Ord. 2622-02 § 4, 2002: Ord. 2318-98 § 1, 1998)

10.35.060 Possession of marijuana.

A. Any person who possesses forty grams or less of marijuana shall be a guilty of a misdemeanor.

B. “Marijuana” means all parts of the plant of the genus Cannabis L., whether growing or not; seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil or cake, or the sterilized seed of the plant which is incapable of germination. (Ord. 1653-89 §§ 6, 9 (part), 1989)

10.35.070 Penalties under other laws.

Any penalty imposed for violation of this chapter is in addition to, and not in lieu of, any civil or administrative penalty or sanction otherwise authorized by law. (Ord. 1653-89 §§ 7, 9 (part), 1989)

10.35.080 Misdemeanor violations—Penalties.

A person who is convicted of a misdemeanor violation of any provision of this chapter shall be punished by imprisonment for not less than twenty-four consecutive hours, and by a fine of not less than two hundred fifty dollars. On second or subsequent conviction, the fine shall not be less than five hundred dollars. These fines shall be in addition to any other fine or penalty imposed. Unless the court finds that the imposition of the minimum imprisonment will pose a substantial risk to the defendant’s physical or mental well-being or that local jail facilities are in an overcrowded condition, the minimum term of imprisonment shall not be suspended or deferred. If the court finds such risk or overcrowding exists, it shall sentence the defendant to a minimum of forty hours of community service. If a minimum term of imprisonment is suspended or deferred, the court shall state in writing the reason for granting the suspension or deferral and the facts upon which the suspension or deferral is based. Unless the court finds the person to be indigent, the minimum fine shall not be suspended or deferred. (Ord. 1653-89 §§ 8, 9 (part), 1989)

10.35.100 Drug-free zones—Violations.

A. Any person who violates Section 10.35.020 by using or possessing drug paraphernalia, or who violates Section 10.35.030 by delivering, possessing with intent to deliver, or manufacturing with intent to deliver drug paraphernalia, or who violates Section 10.35.060 by possessing marijuana, and the violation occurs in a school, on a school bus, within one thousand feet of a school bus route stop designated by the school district, within one thousand feet of the perimeter of the school grounds, in a public park, in a public housing project designated as a drug-free zone, on a public transit vehicle or in a public transit stop shelter may be punished by a fine of up to twice the fine otherwise authorized by this chapter, or by imprisonment of up to twice the imprisonment otherwise authorized by this chapter, or by both such fine and imprisonment. The provisions of this section shall not operate to more than double the fine or imprisonment otherwise authorized by this chapter for an offense.

B. It is not a defense to a prosecution for a violation of this section that the person was unaware that the prohibited conduct took place while in a school or school bus or within one thousand feet of the school or school bus route stop, in a public park, in a public housing project designated as a drug-free zone, on a public transit vehicle, or in a public transit stop shelter.

C. It is not a defense to a prosecution for a violation of this section or any other prosecution under this chapter that persons under the age of eighteen were not present in the school, the school bus, the public park, the public housing project designated as a drug-free zone, or the public transit vehicle, or at the school bus route stop or the public transit vehicle stop shelter at the time of the offense or that school was not in session.

D. It is an affirmative defense to a prosecution for a violation of this section that the prohibited conduct took place entirely within a private residence, that no person under eighteen years of age or younger was present in such private residence at any time during the commission of the offense, and that the prohibited conduct did not involve delivering, manufacturing, selling or possessing with the intent to manufacture, sell or deliver any controlled substance in RCW 69.50.401(a) for profit. The affirmative defense established in this section shall be proved by the defendant by a preponderance of the evidence. This section shall not be construed to establish an affirmative defense with respect to a prosecution for an offense defined in any other section of this chapter.

E. In a prosecution under this section, a map produced or reproduced by any municipal, school district, transit authority engineer, or public housing authority for the purpose of depicting the location and boundaries of the area on or within one thousand feet of any property used for a school, school bus route stop, public park, public housing project designated as a drug-free zone, or public transit vehicle stop shelter, or a true copy of such a map, shall under proper authentication, be admissible and shall constitute prima facie evidence of the location and boundaries of those areas if the governing body of the municipality, school district or transit authority has adopted a resolution or ordinance approving the map as the official location and record of the location and boundaries of the area on or within one thousand feet of the school, school bus route stop, public park, public housing project designated as a drug-free zone, or public transit vehicle stop shelter. Any map approved under this section or a true copy of the map shall be filed with the clerk of the city, and shall be maintained as an official record of the city. This section shall not be construed as precluding the prosecution from introducing or relying upon any other evidence or testimony to establish any element of the offense. This section shall not be construed as precluding the use or admissibility of any map or diagram other than the one which has been approved by the governing body of a municipality, school district, transit authority or public housing authority if the map or diagram is otherwise admissible under court rule.

F. As used in this section, the following terms have the meanings indicated unless the context clearly requires otherwise:

1. “School” has the meaning under RCW 28A.150.010 or 28A.150.020. The term “school” also includes a private school approved under RCW 28A.195.010;

2. “School bus” means a school bus as defined by the superintendent of public instruction by rule which is owned and operated by any school district and all school buses which are privately owned and operated under contract or otherwise with any school district in the state for the transportation of students. The term does not include buses operated by common carriers in the urban transportation of students such as transportation of students through a municipal transportation system;

3. “School bus route stop” means a school bus stop as designated by a school district;

4. “Public park” means land, including any facilities or improvements on the land, that is operated as a park by the state or a local government;

5. “Public transit vehicle” means any motor vehicle, street car, train, trolley vehicle or any other device, vessel or vehicle which is owned or operated by a transit authority and which is used for the purpose of carrying passengers on a regular schedule;

6. “Transit authority” means a city, county or state transportation system, transportation authority, public transportation benefit area, public transit authority or metropolitan municipal corporation within the state that operates public transit vehicles;

7. “Stop shelter” means a passenger shelter designated by a transit authority;

8. “Public housing project” means the same as “housing project” as defined in RCW 35.82.020. (Ord. 2238-97 § 1, 1997: Ord. 1775-91 § 1, 1991)