Drug use is very common in Las Vegas and so is the sale, transport and distribution of illegal drugs, also known as "controlled substances." Many people have been hit hard by the economic downturn our country has been experiencing for the past several years. Many hotels, restaurants and other similar businesses have had to lay off employees. This has left many Las Vegas residents without full-time work and has forced many people to consider other options for making money. The drug trade can be very alluring because it offers the potential of making fast money, but with that comes the potential for serious criminal penalties. If you have been charged with sale, transport, or distribution of a controlled substance, read below about these charges and how hiring a criminal defense attorney can help you.
A controlled substance is a drug or class of drugs either wholly illegal to possess or illegal to possess without a valid prescription. Whether a drug is considered "controlled" or not is determined by the government.
Both the federal government and Nevada have created what is called a "schedule of controlled substances," which is essentially a long list of drugs that are categorized based on certain criteria. There are five different schedules of drugs. When determining where a particular drug belongs, the government 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.
The federal schedule of drugs was created by Congress through passage of the Controlled Substances Act. The Drug Enforcement Administration ("DEA") and the Food and Drug Administration ("FDA") have the power to add to or subtract from the schedules.
In Nevada, 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. Although Nevada has wholly adopted the federal Controlled Substances Act, they are still free to place greater 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 include drugs with a "high potential for abuse" that have no "currently accepted medical use". These drugs are considered the most dangerous and thus carry the harshest penalties. This schedule would include drugs such as Heroin, Cocaine, Methamphetamine, MDMA (Ecstasy), Marijuana, psychedelic mushrooms and LSD. For a complete list of Schedule I drugs, click here.
Schedule II drugs also have a "high potential for abuse" but have some accepted medical use. They are still considered to be extremely addictive when abused, so they are heavily regulated when prescribed by physicians. Often doctors can only write prescriptions for one month at a time and they are required to put your information into a national database in order to avoid what is commonly referred to as "doctor shopping". Examples of Schedule II drugs include doctor-prescribed Cocaine and Methamphetamine, Morphine, Demerol, Oxycodone, Vyvanse and Adderall. For a complete list of Schedule II drugs, click here.
Schedule III substances have less potential for abuse than the previous schedule substances (due to their relatively lower potential for physical dependence) and have current accepted medical uses. Like Schedule II drugs, these substances can be prescribed by doctors. These include anabolic steroids, Ketamine, and Marinol. For a complete list of Schedule III drugs, click here.
Schedule IV drugs are considered to have a low potential for abuse relative to that of Schedules I through III because they have a limited potential for physical or psychological dependence. They also have accepted medical use, which means that they can be prescribed by doctors. Examples of Schedule IV drugs include Soma, Tramadol and benzodiazepines such as Valium, Xanax and Klonopin. For a complete list of Schedule IV drugs, click here.
Schedule V drugs are considered to have the lowest potential for abuse out of any of the five drug schedules due to their limited physical and psychological dependence. While many Schedule V drugs still require a prescription, some may be obtained over the counter. 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.
NRS 453.321 states that it is illegal for a person to sell a controlled or counterfeit substance. However, NRS 453.321 also makes it illegal to import, transport, exchange, barter, supply, prescribe, dispense, give away or administer a controlled or counterfeit substance. So what exactly does that mean?
Charges for sale of controlled substance usually arise out of alleged sales of drugs to undercover Las Vegas Metro Detectives. To prove sale, there must be an exchange of money for drugs. Often, the police will use marked bills, and an individual who is caught with those bills is ordinarily going to be charged with sale of controlled substance. Many times, individuals will work in groups, with one person taking the money and another holding the drugs. This can make proving sale somewhat more difficult, but a group of people using a more complex scheme like this might still be arrested on a theory of criminal conspiracy and accordingly catch a case for sale of controlled substance.
As stated above, NRS 453.321 also makes it illegal to import or transport a controlled substance. This means that a person who agrees to drive a controlled substance from Point A to Point B is just as guilty as a person who then sells that controlled substance and will be subject to the same potential punishments. The prosecutor will have to prove that you transported the substance "knowingly." That means that the person had actual knowledge that he was transporting a controlled substance.
Many people assume that this statute only applies to dealers selling street drugs like Heroin or Methamphetamine. This is simply not true. This statute makes it illegal not only to sell a controlled substance to another person, but also to give someone a controlled substance for free. Furthermore, keep in mind that controlled substances include not only illegal street drugs, but also various prescription drugs. Accordingly, under this statute, if someone gives a relative one of her Xanax pills, this is a violation of NRS 453.321(4) because Xanax is a Schedule IV drug. This is true even if the person giving away the drug has a valid prescription for the Xanax and even though no money is exchanged.
The potential punishment for a conviction for sale of a controlled substance depends on several factors, which includes the schedule of the drug or drugs involved and whether the defendant has prior convictions for sale of a controlled substance.
NRS 453.321(2): Schedule I and II Offenses
A first offense of sale of a Schedule I or II substance is a Category B felony. This felony carries a penalty of imprisonment for a minimum term of 1 year and a maximum term of no more than 6 years, with a potential fine of up to $20,000. Probation is available on first offenses. This means that the judge can suspend the prison sentence.
If this is the person's second offense of sale of a Schedule I or II substance, it is still a Category B felony. However, it carries a longer sentence, with a minimum term of 2 years and a maximum term of 10 years, and the potential fine is $20,000. Probation is not available for a second offense. This means that the judge has no discretion to suspend the prison sentence. Prison is mandatory.
If this is the person's third offense of sale of a Schedule I or II substance (or any subsequent offense), it is a still a Category B felony. However, it carries a penalty of imprisonment for a minimum term of 3 years and a maximum term of no more than 15 years, and the person may also be fined up to $20,000 for each offense. Once again, probation is not available.
NRS 453.321(4): Schedule III, IV and V Offenses
A first offense of sale of a Schedule III, IV or V substance is a Category C felony. This felony carries a penalty of imprisonment for a minimum term of 1 year and a maximum term of no more than 5 years, and the defendant may also be fined up to $10,000 for each offense. Probation is available on first offenses.
If this is the person's second offense of sale of a Schedule III, IV or V substance, it is a Category B felony. This felony carries a sentence of a minimum term of 2 years and a maximum term of no more than 10 years, and the person may also be fined up to $15,000 for each offense. Probation is not available.
If this is the person's third or more offense of sale of a Schedule III, IV or V substance, it is a still a Category B felony. However, it carries a longer penalty of imprisonment for a minimum term of 3 years and a maximum term of no more than 15 years, and the person may also be fined up to $20,000 for each offense. Probation is not available.
NRS 453.334: Schedule I-V Offenses Involving a Minor
The age of the buyer is also an important factor in these types of cases. Selling or giving a controlled substance to a minor more than once is a violation of NRS 453.334. This is a Category A felony and is punishable either by life with the possibility of parole after having served a minimum of 5 years or by a definite term of 15 years with parole eligibility beginning once a minimum of 5 years have passed. The person may be further punished by a fine of $20,000 and may be responsible for paying restitution that covers the minor's participation in drug treatment.
Depending on the specific circumstances of a case, a defendant can also be charged with various additional crimes that are related to the sale or distribution of a controlled substance. These are known as "enhancements," meaning that they are not separate offenses, but rather additional penalties added onto the main offense.
Double Penalty for Selling Controlled Substances in Certain Areas
The physical location where a person sells the controlled substance can give rise to a violation of NRS 453.3345. This statute creates an enhancement penalty for selling controlled substances in the following areas: on the grounds of a public or private school; a playground; public park; public swimming pool; recreational center for youths or a video arcade; on a campus of the Nevada System of Higher Education; or within 1,000 feet of a school bus stop anytime between 1 hour before school begins until 1 hour after school ends during scheduled school days.
A defendant who violates NRS 453.3345 will receive an additional sentence of imprisonment for a term equal to and in addition to the term of imprisonment he receives for the underlying offense. This means that if a person violates NRS 453.321 by selling a Schedule I substance on a playground and he receives a sentence of 2 to 5 years because it is his second offense, he will receive an additional sentence of 2 to 5 years for selling those drugs on a playground, a violation of NRS 453.3345. By statute these sentences must be run consecutively, meaning that the defendant must finish serving the first sentence before beginning the other. Therefore, in the example listed above, the minimum amount of time the defendant could possibly serve before going to the parole board would be 2 years for each charge, a total of 4 years.
In certain instances, a defendant who provides a controlled substance to another person can be held criminally liable if that person is poisoned by or overdoses on the drug that was provided by the defendant.
Double Penalty for Failure to Render Aid for Poisoning or Overdose
A person can receive double punishment (an equal and consecutive term of imprisonment) if the person he sells to overdoses in his presence. Specifically, a defendant can be charged under NRS 453.3335 if he fails to render aid or seek medical attention for a person who is poisoned by or overdoses from drugs that he provided. In order to be convicted of this enhancement, the prosecutor must prove that the person using the drugs suffered substantial bodily harm in the presence of the person who provided the drug.
Murder Charge if Controlled Substance Causes Death
A defendant can also be charged with murder under NRS 453.333 if the drugs that he sold or give to someone proximately caused that person's death. The word "proximate" is a legal term meaning that the person's death was both a natural and direct consequence of providing that person with the drug. The potential punishment for murder can be a sentence of life imprisonment.
There are multiple defense strategies a criminal defense attorney will employ when defending a case involving the sale, transport or distribution of a controlled substance. Deciding which of these defense strategies to use depends largely on the particular facts of a person's case.
For example, there may be constitutional issues in the case that would allow for the suppression of key evidence at trial, or there may be a strong argument that the defendant had a lack of knowledge as to the contents of a particular package. A criminal defense lawyer will be able to spot these important issues and will be able to use this as leverage to either get your charges dismissed altogether in some instances or get the charges reduced.
The choice of whether to negotiate a plea deal or go to trial is one that is made with the client only after weighing all the potential evidence and evaluating the likely outcomes. We will never force a client to take an unfavorable plea deal in order to avoid going to trial. We will work with you throughout the process so that you are fully informed of your options and able to make the best decision for your particular situation.
We have represented many individuals charged with the sale, transport or distribution of a controlled substance in the Las Vegas area and throughout Southern Nevada. While these cases certainly have similarities, the facts of each case and the needs of each client are unique. Call us today for a free consultation so that we can discuss the specific facts of your case and get you the best outcome possible.
By Jenny Pandullo