Haw. Pattern Jury Instr. (Criminal) 17.02

PARAPHERNALIA: H.R.S. § 329-43.5(b)

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

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

of Unlawful [Delivery] [Manufacture] of Drug Paraphernalia.

A person commits the offense of Unlawful [Delivery]

[Manufacture] of Drug Paraphernalia if he/she [delivers]

[possesses with intent to deliver] [manufactures with intent to

deliver] an object with the intent that it would be used 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, knowingly, or under circumstances where one

reasonably should know, that the object would be used as drug

paraphernalia.

There are two material elements of the offense of Unlawful

Delivery of 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 [delivered] [possessed with

intent to deliver] [manufactured with intent to deliver] (name

or description of object(s)) with the intent that the object

would be used 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 Defendant did so knowing, or under

circumstances where one reasonably should know, that the (name

or description of object(s)) would be used as drug

paraphernalia.

“Deliver” or “delivery” means the actual, constructive, or

attempted transfer or sale from one person to another of a

controlled substance or drug paraphernalia, whether or not there

is an agency relationship.

“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.