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TRAFFICKING IN CONTROLLED SUBSTANCE

Millions of tourists visit Las Vegas each year, and many do so to indulge in illicit recreational activities. As such, the demand for illegal drugs is high, and drug trafficking is a commonly charged crime. Trafficking in a controlled substance is a serious felony offense, and a conviction for drug trafficking results in mandatory prison time, even for a first time offender. If you or someone you care about has been charged with drug trafficking, read about this offense below.

NEVADA'S DEFINITION OF DRUG TRAFFICKING

As defined by NRS 453.3385, NRS 453.339, and NRS 453.3395, the crime of drug trafficking occurs when a person knowingly sells, manufactures, delivers or brings into Nevada or is knowingly in actual or constructive possession of large amounts of controlled substances. As you can see, this crime is very broad and includes everything from the manufacturing to the distribution, sale and possession of either Schedule I or II controlled substances or drugs that contain Flunitrazepam (Roofies) or Gamma-Hydroxybutyrate (GHB).

So why would a person would be charged with trafficking as opposed to a less serious charge of Possession of a Controlled Substance or Possession of a Controlled Substance with Intent to Sell? In common usage, the term "drug trafficking" refers to the manufacture and distribution of illegal drugs, as opposed to possession for personal, recreational use. However, a person can be charged with drug trafficking even if he only possesses drugs for personal use. How? The decision of whether to charge a person with drug trafficking is based entirely on the amount of drugs involved.

What quantity of drugs turns a simple possession charge into a more serious trafficking charge? The amount of drugs needed to charge someone with trafficking depends on the type of drugs involved, which requires an understanding of how Nevada defines and classifies controlled substances. Read below to learn about how Nevada defines controlled substances, and the various "schedules" that these substances fall into.

WHAT IS A CONTROLLED SUBSTANCE?

Nevada has what is called a "schedule of controlled substances," which is essentially a long list of drugs that are categorized based on certain criteria. Scheduling of drugs is determined by the Nevada State Board of Pharmacy (the Board) and a specific list is maintained in Chapter 453 of the Nevada Administrative Code.

There are five different "schedules" of drugs, although for the purposes of drug trafficking, only the first two schedules are applicable. A "schedule" is just a list. When determining where a particular drug belongs, the Board looks to various factors.

These factors include questions such as whether the substance has a high potential for abuse; whether there is any generally accepted medical use for the drug; and the likelihood of the drug to cause psychological or physical dependence. Nevada has adopted the federal Controlled Substances Act, which it looks to for guidance when determining how to classify various drugs.

Although Nevada has wholly adopted the federal Controlled Substances Act, they are still free to place greater penalties and restrictions on drugs than the federal government. In the case of Methamphetamine and Cocaine, for example, the federal government has classified the drugs generally as Schedule II drugs, whereas Nevada has classified street Methamphetamine and Cocaine as Schedule I drugs and doctor-prescribed Methamphetamine and Cocaine as a Schedule II drugs.

  • Schedule I drugs are considered to have a high potential for abuse and have no accepted medical use. Doctors cannot write prescriptions for these substances. Examples of Schedule I drugs include Heroin, Cocaine, Methamphetamine, Marijuana, Mescaline, MDMA (Ecstasy), LSD, DMT, GHB, Quaaludes and psychedelic mushrooms. For a complete list of Schedule I drugs, click here.
  • Schedule II drugs are considered to have a high potential for abuse and have some accepted medical use. They are also considered to be severely physically and psychologically addictive when abused. These substances can be prescribed by doctors, but often only under limited circumstances. Examples of Schedule II drugs include PCP, doctor-prescribed Cocaine, Oxycodone, Morphine, Opium, Demerol, doctor-prescribed Methamphetamine, Adderall and Vyvanse. For a complete list of Schedule II drugs, click here.
  • Schedule III drugs have a potential for abuse that is less than that of substances listed in Schedules I and II and have accepted medical use. When abused, physical dependence is moderate to low but psychological dependence can still be high. Like Schedule II drugs, these substances can also be prescribed by doctors. Examples of Schedule III drugs include anabolic steroids, Ketamine and Marinol. For a complete list of Schedule III drugs, click here.
  • Schedule IV drugs have a low potential for abuse and have accepted medical use. When abused, physical dependence is limited and psychological dependence is limited relative to that of Schedule III substances. Like Schedule III drugs, these substances can also be prescribed by doctors. Examples of Schedule IV drugs include Soma, Tramadol, and benzodiazepines such as Xanax, Librium, Klonopin and Valium. For a complete list of Schedule IV drugs, click here.
  • Schedule V drugs have a lower potential for abuse than Schedule IV drugs and have accepted medical use. When abused, physical dependence is limited and psychological dependence is limited relative to that of Schedule IV substances. Like Schedule IV drugs, these substances can also be prescribed by doctors. Examples of Schedule V drugs would include cough suppressants that contain small amounts of codeine. For a complete list of Schedule V drugs, click here.

AMOUNT OF DRUGS REQUIRED FOR TRAFFICKING

As stated above, only Schedule I and II drugs or drugs that contain Flunitrazepam (Roofies) or Gamma-Hydroxybutyrate (GHB) are included for the purposes of drug trafficking. This means that a person would not be charged with trafficking even if they possessed a large quantity of any drug or drugs listed in Schedules III, IV or V. However, they could still be charged with various other crimes such as possession of a controlled substance or possession of a controlled substance with intent to sell.

If the drug or drugs in question are Schedule I substances or drugs that contain Flunitrazepam (Roofies) or Gamma-Hydroxybutyrate (GHB) but are not marijuana, a person must possess 4 grams or more of the drug in order to be charged with drug trafficking.

If the drug in question is marijuana, a person must possess 100 pounds or more in order to be charged with drug trafficking.

If the drug or drugs in question are Schedule II substances, a person must possess 28 grams or more of the drug in order to be charged with drug trafficking.

PENALTIES FOR DRUG TRAFFICKING

The potential penalty for drug trafficking depends upon the amount of drugs and the schedule the drug falls into. Review the potential punishments below. Keep in mind, pursuant to NRS 453.3405, prison is mandatory for a drug trafficking offense. This means if you are convicted of trafficking in a controlled substance, you cannot receive probation and a suspended sentence. There is only one exception. Under NRS 453.3405(2), a person convicted of drug trafficking may receive probation only if he provides "substantial assistance" to the police into "the investigation or prosecution of any offense." This means that, if convicted of drug trafficking, the only way you can avoid prison is by working with police and prosecutors to help convict other people. Read below about the specific punishments based on drug schedule and drug quantity.

SCHEDULE I DRUG – BETWEEN 4 AND 14 GRAMS

If the drug or drugs in question are Schedule I substances or drugs that contain Flunitrazepam (Roofies) or Gamma-Hydroxybutyrate (GHB) but are not marijuana and the person possesses at least 4 grams but less than 14 grams, the person will be charged with a category B felony, and will be looking at a sentence of a minimum of 1 year and a maximum of 6 years and a fine of up to $50,000.

SCHEDULE I DRUG – BETWEEN 14 AND 28 GRAMS

If the drug or drugs in question are Schedule I substances or drugs that contain Flunitrazepam (Roofies) or Gamma-Hydroxybutyrate (GHB) but are not marijuana and the person possesses at least 14 grams but less than 28 grams, the person will be charged with a category B felony, and will be looking at a sentence of a minimum of 2 years and a maximum of 15 years and a fine of up to $100,000.

SCHEDULE I DRUG – 28 GRAMS OR MORE

If the drug or drugs in question are Schedule I substances or drugs that contain Flunitrazepam (Roofies) or Gamma-Hydroxybutyrate (GHB) but are not marijuana and the person possesses 28 grams or more, the person will be charged with a category A felony, and will be looking at a life sentence with the possibility of parole after a minimum of 10 years has been served or a definite term of 25 years with parole eligibility beginning when a minimum of 10 years has been served and a fine of up to $500,000.

MARIJUANA – BETWEEN 100 AND 2,000 POUNDS

If the drug in question is marijuana and the person possesses at least 100 pounds but less than 2,000 pounds, the person will be charged with a category C felony, and will be looking at a sentence of a minimum of 1 year and a maximum of 5 years and a fine of up to $25,000.

MARIJUANA – BETWEEN 2,000 AND 10,000 POUNDS

If the drug in question is marijuana and the person possesses at least 2,000 pounds but less than 10,000 pounds, the person will be charged with a category B felony, and will be looking at a sentence of a minimum of 2 years and a maximum of 10 years and a fine of up to $50,000.

MARIJUANA – 10,000 POUNDS OR MORE

If the drug in question is marijuana and the person possesses 10,000 pounds or more, the person will be charged with a category A felony, and will be looking at a life sentence with the possibility of parole after a minimum of 5 years has been served or a definite term of 15 years with parole eligibility beginning when a minimum of 5 years has been served and a fine of up to $200,000.

SCHEDULE II DRUG – BETWEEN 28 AND 200 GRAMS

If the drug or drugs in question are Schedule II substances and the person possesses at least 28 grams but less than 200 grams, the person will be charged with a category C felony, and will be looking at a sentence of a minimum of 1 year and a maximum of 5 years and a fine of up to $50,000.

SCHEDULE II DRUG – BETWEEN 200 AND 400 GRAMS

If the drug or drugs in question are Schedule II substances and the person possesses at least 200 grams but less than 500 grams, the person will be charged with a category B felony, and will be looking at a sentence of a minimum of 2 years and a maximum of 10 years and a fine of up to $100,000.

SCHEDULE II DRUG – 400 GRAMS OR MORE

If the drug or drugs in question are Schedule II substances and the person possesses 400 grams or more, the person will be charged with a category A felony, and will be looking at a life sentence with the possibility of parole after a minimum of 5 years has been served or a definite term of 15 years with parole eligibility beginning when a minimum of 5 years has been served and a fine of up to $250,000.

DEFENDING DRUG TRAFFICKING CHARGES

Given the harshness of the potential punishment for drug trafficking charges, if you have been charged with trafficking in a controlled substance, you should seek the help of a criminal lawyer to help you with your case.

Defending a drug trafficking charge is very similar to defending a drug possession charge. If the prosecutor can't prove that you possessed the drugs in question, you can't be convicted. Possession can be either actual or constructive. Actual means the drugs are on your body somewhere, whereas "constructive possession" means you exercised dominion and control over the controlled substance. If drugs are found in your bedroom or in your car, for instance, you could be charged with drug trafficking based on a theory of constructive possession. One type of constructive possession is "joint possession," which means that more than one person can be in "possession" of drugs at a given time. This is used frequently to charge multiple people in a house or a car with drug possession or trafficking. At any rate, if you were not aware that drugs were in your car or house, you can't be in constructive possession of those drugs.

The defense of a drug trafficking charge may also focus on drug quantity. As explained above, the only difference between possession and trafficking, as far as what the prosecutor must prove, is the quantity of the drugs. But sometimes the prosecutor may have difficulty in proving that the drugs were actually the amount alleged in the criminal complaint or indictment.

As with any criminal charge, the prosecutor must prove their case beyond a reasonable doubt. This is a very high standard. But even when the evidence against you is strong, in many instances, a criminal defense attorney can successfully negotiate your case to avoid prison time or other harsh criminal penalties.

I have helped many people charged with trafficking in a controlled substance in Las Vegas and throughout Clark County, Nevada. If you have been charged with this crime, call me today and we'll talk about the specific facts of your case. Consultations are free.

By Michael Pandullo

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