Drug Testing Equipment Isn’t Drug Paraphernalia Anymore

Effective immediately, there is a new exception to G.S. 90-113.22 (possession of drug paraphernalia) and G.S. 90-113.22A (possession of marijuana paraphernalia). Pursuant to S.L. 2019-159, it is “not unlawful” for a drug user to possess or use “testing equipment for identifying or analyzing the strength, effectiveness, or purity” of drugs, or for an “organization that promotes scientifically proven ways of mitigating health risks associated with drug use” to possess or distribute such equipment. Read on to find out what’s behind the change.

In a nutshell. Basically, drug users and harm reduction organizations are now allowed to use drug testing equipment to check the strength and purity of drugs without worrying that the possession of testing equipment violates the paraphernalia laws. The apparent idea is to enable users to identify adulterated drugs – including drugs that contain fentanyl, a key driver of overdose deaths. Background reading on “drug checking” is available here from the NC Journal of Law and Technology and here from the Drug Policy Alliance.

More detail on the statutes. Prior to the amendment, North Carolina’s paraphernalia laws made it unlawful to, among other things, “use . . . drug paraphernalia to . . . test [or] analyze . . . a controlled substance.” I don’t know why testing and analyzing were included initially, but many other states have similar provisions. See, e.g., Kan. Stat. 21-5709 (unlawful to use or possess with intent to use paraphernalia to “test [or] analyze” a controlled substance); Ohio Stat. § 2925.14 (defining unlawful paraphernalia to include equipment used for “testing [or] analyzing” a controlled substance). Some of those states have since amended their statutes to allow drug checking as the website Dancing Astronaut reports here. (And yes, I have a new favorite website name.)

I don’t know how often, if at all, paraphernalia laws have actually been used to prosecute individuals or organizations involved in drug checking. A quick search did not reveal any appellate cases describing prosecutions of that kind. But the new legislation removes any risk, at least in North Carolina.

Wondering about federal law? The federal drug paraphernalia statute, 21 U.S.C. § 863, does not include items used for testing or analyzing drugs. In any event, it only prohibits the sale, interstate transportation, or import/export of drug paraphernalia — not simple possession.

Effective date. The bill states that it is “effective when it becomes law.” It was signed by the governor on July 22, so it is effective now. A drug user who uses testing equipment today can’t be prosecuted. But what if a case were pending against a drug user who used testing equipment on July 21? I doubt that such a prosecution could be sustained, given that the bill doesn’t contain any language expressly preserving the previous legal regime for offenses committed prior to July 22. In that regard, the bill is different from many criminal law bills that provide for only prospective application.

Conclusion. The opioid epidemic has changed the way that many people view harm reduction efforts, including legislators. Although the concept of harm reduction is not totally free from controversy – as discussed in this Vox article – it now represents a primary public health response to substance abuse. S.L. 2019-159 passed both chambers of the legislature nearly unanimously. And drug checking isn’t the only harm reduction strategy included in the law. Another provision in the bill has the potential to expand syringe exchange efforts, too.

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