UNLAWFUL USE OF OR POSSESSION WITH INTENT TO USE

UNLAWFUL USE OF OR POSSESSION WITH INTENT TO USE 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. Notes H.R.S. §§ 329-1, 329-43.5(a), 702-206(1). State v. Sun Na Lee, 75 Haw. 80, 856 P.2d 1246 (1993). For definition of states of mind, see instruction: For definition of “possession,” see instruction 6.06.