Haw. Pattern Jury Instr. (Criminal) 17.01

TABLE OF INSTRUCTIONS22

17. CHAPTER 329 -- UNIFORM CONTROLLED SUBSTANCES ACT

Paraphernalia H.R.S. §329-43.5(a) (4/19/96, 6/2/05,

5/4/09).

H.R.S. § 329-43.5(b) (4/19/96, 6/2/05, 5/4/09).

§ 329- 42(a)(3) (4/19/96, 4/9/02).

Practitioner to Obtain Controlled Substance

Prescriptions H.R.S. § 329-46 (12/27/96).

Practitioner to Obtain Controlled Substance

Prescriptions H.R.S. § 329-46 (12/27/96, 10/27/03).

Practitioner to Obtain Controlled Substance

Prescriptions H.R.S. § 329-46 Verdict Form (12/27/96).

(NOT INCLUDED IN THE 2005 COMPENDIUM.)

Practitioner to Obtain Controlled Substance

Prescriptions Special Interrogatory H.R.S. § 329-46

(12/27/96, 10/27/03).

22 The original instructions approved and published in Volume I in December

1991 are not dated. New or amended instructions in Volumes I and II reflect

the Supreme Court's approval date in parentheses.

DRUG PARAPHERNALIA

H.R.S. § 329-43.5(a)

[In Count (count number) of the Indictment/Complaint, the]

[The] Defendant, (defendant’s name), is charged with the offense

of Unlawful [Use of] [Possession with Intent to Use] Drug

Paraphernalia.

A person commits the offense of Unlawful [Use of]

[Possession with Intent to Use] Drug Paraphernalia if he/she

[uses an object with the intent] [possesses an object with the

intent to use it] to [plant] [propagate] [cultivate] [grow]

[harvest] [manufacture] [compound] [convert] [produce] [process]

[prepare] [test] [analyze] [pack] [repack] [store] [contain]

[conceal] [inject] [ingest] [inhale] [introduce into a human

body] a controlled substance.

There are two material elements of the offense of Unlawful

[Use of] [Possession with Intent to Use] Drug Paraphernalia,

each of which the prosecution must prove beyond a reasonable

doubt.

These two elements are:

1. That, on or about (date) in the [City and] County of

(name of county), the Defendant [used an object with the intent]

[possessed an object with the intent to use it] to [plant]

[propagate] [cultivate] [grow] [harvest] [manufacture]

[compound] [convert] [produce] [process] [prepare] [test]

[analyze] [pack] [repack] [store] [contain] [conceal] [inject]

[ingest] [inhale] [introduce into a human body] a controlled

substance; and

2. That the object was drug paraphernalia.

‘Drug paraphernalia’ means all equipment, products, and

materials of any kind which are used, primarily intended for

use, or primarily 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. It

includes, but is not limited to:

[Kits used, primarily intended for use, or primarily designed

for use in planting, propagating, cultivating, growing, or

harvesting of any species of plant which is a controlled

substance or from which a prohibited controlled substance can be

derived;

Kits used, primarily intended for use, or primarily designed for

use in manufacturing, compounding, converting, producing,

processing, or preparing prohibited controlled substances;

Isomerization devices used, primarily intended for use, or

primarily designed for use in increasing the potency of any

species of plant which is a prohibited controlled substance;

Testing equipment used, primarily intended for use, or primarily

designed for use in identifying, or in analyzing the strength,

effectiveness, or purity of prohibited controlled substances;

Scales and balances used, primarily intended for use, or

primarily designed for use in weighing or measuring prohibited

controlled substances;

Diluents and adulterants; such as quinine hydrochloride,

mannitol, mannite, dextrose, and lactose, used, primarily

intended for use, or primarily designed for use in cutting

prohibited controlled substances;

Separation gins and sifters used, primarily intended for use, or

primarily designed for use in removing twigs and seeds from, or

in otherwise cleaning or refining, prohibited marijuana;

Blenders, bowls containers, spoons, and mixing devices used,

primarily intended for use, or primarily designed for use in

compounding prohibited controlled substances;

Capsules, balloons, envelopes, and other containers used,

primarily intended for use, or primarily designed for use in

packaging small quantities of prohibited controlled substances;

Containers and other objects used, primarily intended for use,

or primarily designed for use in storing or concealing

prohibited controlled substances;

Hypodermic syringes, needles, and other objects used, primarily

intended for use, or primarily designed for use in parenterally

injecting prohibited controlled substances into the human body;

Objects used, primarily intended for use, or primarily designed

for use in ingesting, inhaling, or otherwise introducing

prohibited marijuana, cocaine, hashish, hashish oil, or

methamphetamine 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

materials, such as marijuana cigarettes, that have 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.]

In determining whether an object is drug paraphernalia, you

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 any state law relating to any controlled

substance;

(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

any person whom the owner or person in control knows, or should

reasonably know, intends to use the object to introduce into the

human body a controlled substance; the innocence of an owner, or

of anyone in control of the object, as to any state law relating

to any controlled substance shall not prevent a finding that the

object is intended for use 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 or objects 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.

In order for the object to be drug paraphernalia, the

prosecution must prove that the defendant intended that the

object be used with a controlled substance. Although the

prosecution need not demonstrate the presence of any of the 14

factors to prove the defendant’s intent, the presence or absence

of any of the specific factors along with all other logically

relevant factors may be used to infer the defendant’s intent or

the lack of such intent. Without the defendant’s intent to use

the object with a controlled substance, none of the specific

examples or factors listed above can transform the object into

drug paraphernalia.