Hello Festival Lawyer! About a year ago, after reading a story about a fellow festival-goer dying while under the influence of what was thought to be MDMA but was later found to be bath salts, I decided it was time to invest in my own test kit. I have been using it for about six months and it has helped me catch false substances on more than one occasion. I was curious as to whether or not a fully cleaned (no illegal residue) test kit can be considered illegal drug paraphernalia, and if I can be denied entry to any festival or venue with it on my person. Thank you for your time and any information you are able to provide on the subject.
–E.W.

The use of drug checking kits (either by individuals going to festivals or their use by groups like Bunk Police or DanceSafe ) has been one of the hottest topics of this festival season. But are they legal to possess? The issue comes down to whether or not a drug checking kit qualifies as “drug paraphernalia” under a particular state’s local drug laws.

Many states include language in their paraphernalia laws that includes any device which can be used to “identify, analyze, or test” controlled substances. On the surface, this language would seem to include most drug checking kits. On the other hand, a test is done by taking a small scraping from a pill and placing it in a reagent testing liquid. Therefore, I would argue legally that these kits don’t test for an actual controlled substance, but instead are used to “identify, analyze, or test” for the presence of (harmful) adulterants.

This “identify, analyze or test” wording is NOT included in the federal paraphernalia laws. Therefore, drug checking kits appear to be legal under all federal drug laws. Because they are not federally illegal, importation of the kits should not cause any legal issues. For example drug checking kits are purchasable on Amazon.

Photo by: Amazon.com

You can even leave reviews like this:

I just took this kit (my first kit) to a music festival outside of Atlanta. I won't name the festival, but it rhymes with WomorrowTorld. I tested all my own baggies as well as other peoples' and found that 80-90% of what people thought they had was in fact something different. The kit is easy to use and stores nicely in its own little bottle. My recommendation: Save your water bottle caps for testing.

Unlike federal law, state laws on drug checking kits are a crazy mishmash of conflicting state statutes and local ordinances. In order to help gain some clarity on this topic, the Drug Policy Alliance has begun research on how individual states treat drug checking kits under their local paraphernalia laws. Helpfully, the first states researched are ones with major festivals in them. You can read the start of the research here.

“One of the goals behind doing this research is to understand where within the United States the drug paraphernalia laws are written in a way that would allow a festival to experiment with providing drug checking onsite,” says Stefanie Jones, nightlife community engagement manager at DPA. “Another goal is to figure out what’s common about the language of these laws, so that we can write a piece of legislation that would make drug checking kits fully legal everywhere.”

This research is a work in progress and will be updated with more states in the future. (Special thanks to Donika Alexova, a legal department intern for the Drug Policy Alliance. She compiled this legal research and is allowing us to link to her results even in this research stage.)

When looking at this research, it’s important to keep in mind that many states use the word “paraphernalia” in a variety of legal settings. For example, California's Health and Safety section 11014.5 states that testing equipment that is designed for use or marketed for use in “identifying or in analyzing the strength, effectiveness or purity of controlled substances” constitutes “drug paraphernalia.”

Clear, right? But hold on. That definition is not listed under the part of the paraphernalia statute that prohibits personal ownership. Instead it is listed in a different section which defines what legally constitutes “paraphernalia” for businesses. For those of you too young to remember, there used to be a place called a “head shop” where you could go for all your black light posters, incense, and bong (whoops, I mean “water pipes”) purchases. These businesses always offered a variety of sort of quasi legal items. As such, paraphernalia laws were passed to define what types of items might be illegal to display or sell at these businesses.

So what’s the answer? Sometimes when clients ask for advice I will ask them, “Do you want my legal opinion, or my honest answer?” The problem is that as a lawyer, we are paid to be extremely cautious and to advise people over every possible legal danger no matter how remote. It’s the same reason you see ridiculous legal disclaimers after TV commercials. ("Warning: Don’t use city streets to do tricks with your sports car like a skateboard" was an actual legal disclaimer I saw recently. #fuckinglawyersamirite?)

As a practical matter, I can tell you that in California, in over 25 years of criminal law experience as both a DA and a defense attorney, I have never seen someone prosecuted for possessing a drug checking kit. So legally speaking, I think you are pretty safe. On the other hand, the issue of what you can bring into a festival is a totally different question. Even if an item is perfectly legal to possess, music festivals have wide discretion as to what items can be brought into their venues (as fans of Camelbaks or “Kandi” have found out in recent years).

In my column next week, I am going to answer an ATFL question regarding some of the legal issues surrounding the recent events with The Bunk Police and DanceSafe being kicked out of festivals. But for this week’s column I think it’s worth mentioning that in neither of these events did the issue appear to the legality of the drug checking kits themselves.

For example, when Bonnaroo shut down The Bunk Police (a for-profit testing kit vendor) they told them they were being shut down not because the kits were illegal but because they did not have a vendor’s permit and other general liability reasons. No arrests or citations were made. In fact, according to Bunk Police, they were told they could stay at the festival as long as they agreed to have the kits confiscated until the end of the festival.

Similarly, this year at Electric Forest, the non-profit harm reduction group DanceSafe was asked to pack up their booth in the vendors’ area. Again, as with the case of Bonnaroo, police at the event were not arguing that the drug checking kits themselves were illegal.

As Thomas Dolby once sang, “Quod Erat Demonstrandum, Baby,” typically, if something is illegal contraband the police don’t give it back to you. In most cases, you are probably legally okay. However, as always, use this legal information to do your own research for your own home state and make up your own mind.

Got a question for the Festival Lawyer? Email him at askthefestivallawyer@fest300.com

Disclaimer: Although the Festival Lawyer is a lawyer he is not YOUR lawyer. The ATFL column gives general information about legal topics, NOT legal advice. The law is complex, varies a great deal from state to state, and each factual situation is different. Also, “The Festival Lawyer” is a fictional character. Think of the Festival Lawyer more like a legal spirit guide, encouraging you to educate and inform yourself.