28-401 Terms, defined.
28-401. Terms, defined.As used in the Uniform Controlled Substances Act, unless thecontext otherwise requires:(1) Administer shall mean to directly apply a controlled substanceby injection, inhalation, ingestion, or any other means to the body of a patientor research subject;(2) Agent shall mean an authorized person who acts on behalfof or at the direction of another person but shall not include a common orcontract carrier, public warehouse keeper, or employee of a carrier or warehousekeeper;(3) Administration shall mean the Drug Enforcement Administration,United States Department of Justice;(4) Controlled substance shall mean a drug, biological, substance,or immediate precursor in Schedules I to V of section 28-405. Controlled substanceshall not include distilled spirits, wine, malt beverages, tobacco, or anynonnarcotic substance if such substance may, under the Federal Food, Drug,and Cosmetic Act, 21 U.S.C. 301 et seq., as such act existed on January 1, 2009, and the law of this state, be lawfullysold over the counter without a prescription;(5) Counterfeit substance shall mean a controlled substancewhich, or the container or labeling of which, without authorization, bearsthe trademark, trade name, or other identifying mark, imprint, number, ordevice, or any likeness thereof, of a manufacturer, distributor, or dispenserother than the person or persons who in fact manufactured, distributed, ordispensed such substance and which thereby falsely purports or is representedto be the product of, or to have been distributed by, such other manufacturer,distributor, or dispenser;(6) Department shall mean the Department of Health and HumanServices;(7) Division of Drug Control shall mean the personnel of theNebraska State Patrol who are assigned to enforce the Uniform Controlled SubstancesAct;(8) Dispense shall mean to deliver a controlled substanceto an ultimate user or a research subject pursuant to a medical order issuedby a practitioner authorized to prescribe, including the packaging, labeling,or compounding necessary to prepare the controlled substance for such delivery;(9) Distribute shall mean to deliver other than by administeringor dispensing a controlled substance;(10) Prescribe shall mean to issue a medical order;(11) Drug shall mean (a) articles recognized in the officialUnited States Pharmacopoeia, official Homeopathic Pharmacopoeia of the UnitedStates, official National Formulary, or any supplement to any of them, (b)substances intended for use in the diagnosis, cure, mitigation, treatment,or prevention of disease in human beings or animals, and (c) substances intendedfor use as a component of any article specified in subdivision (a) or (b)of this subdivision, but shall not include devices or their components, parts,or accessories;(12) Deliver or delivery shall mean the actual, constructive,or attempted transfer from one person to another of a controlled substance,whether or not there is an agency relationship;(13) Marijuana shall mean all parts of the plant of the genuscannabis, whether growing or not, the seeds thereof, and every compound, manufacture,salt, derivative, mixture, or preparation of such plant or its seeds, butshall not include the mature stalks of such plant, hashish, tetrahydrocannabinolsextracted or isolated from the plant, fiber produced from such stalks, oilor cake made from the seeds of such plant, any other compound, manufacture,salt, derivative, mixture, or preparation of such mature stalks, or the sterilizedseed of such plant which is incapable of germination. When the weight of marijuanais referred to in the Uniform Controlled Substances Act, it shall mean itsweight at or about the time it is seized or otherwise comes into the possessionof law enforcement authorities, whether cured or uncured at that time;(14) Manufacture shall mean the production, preparation, propagation,conversion, or processing of a controlled substance, either directly or indirectly,by extraction from substances of natural origin, independently by means ofchemical synthesis, or by a combination of extraction and chemical synthesis,and shall include any packaging or repackaging of the substance or labelingor relabeling of its container. Manufacture shall not include the preparationor compounding of a controlled substance by an individual for his or her ownuse, except for the preparation or compounding of components or ingredientsused for or intended to be used for the manufacture of methamphetamine, orthe preparation, compounding, conversion, packaging, or labeling of a controlledsubstance: (a) By a practitioner as an incident to his or her prescribing,administering, or dispensing of a controlled substance in the course of hisor her professional practice; or (b) by a practitioner, or by his or her authorizedagent under his or her supervision, for the purpose of, or as an incidentto, research, teaching, or chemical analysis and not for sale;(15) Narcotic drug shall mean any of the following, whetherproduced directly or indirectly by extraction from substances of vegetableorigin, independently by means of chemical synthesis, or by a combinationof extraction and chemical synthesis: (a) Opium, opium poppy and poppy straw,coca leaves, and opiates; (b) a compound, manufacture, salt, derivative, orpreparation of opium, coca leaves, or opiates; or (c) a substance and anycompound, manufacture, salt, derivative, or preparation thereof which is chemicallyequivalent to or identical with any of the substances referred to in subdivisions(a) and (b) of this subdivision, except that the words narcotic drug as usedin the Uniform Controlled Substances Act shall not include decocainized cocaleaves or extracts of coca leaves, which extracts do not contain cocaine orecgonine, or isoquinoline alkaloids of opium;(16) Opiate shall mean any substance having an addiction-formingor addiction-sustaining liability similar to morphine or being capable ofconversion into a drug having such addiction-forming or addiction-sustainingliability. Opiate shall not include the dextrorotatory isomer of 3-methoxy-nmethylmorphinan and its salts. Opiate shall include its racemic and levorotatoryforms;(17) Opium poppy shall mean the plant of the species Papaversomniferum L., except the seeds thereof;(18) Poppy straw shall mean all parts, except the seeds, ofthe opium poppy after mowing;(19) Person shall mean any corporation, association, partnership,limited liability company, or one or more individuals;(20) Practitioner shall mean a physician, a physician assistant,a dentist, a veterinarian, a pharmacist, a podiatrist, an optometrist, a certifiednurse midwife, a certified registered nurse anesthetist, a nurse practitioner,a scientific investigator, a pharmacy, a hospital, or any other person licensed,registered, or otherwise permitted to distribute, dispense, prescribe, conductresearch with respect to, or administer a controlled substance in the courseof practice or research in this state, including an emergency medical serviceas defined in section 38-1207;(21) Production shall include the manufacture, planting, cultivation,or harvesting of a controlled substance;(22) Immediate precursor shall mean a substance which is theprincipal compound commonly used or produced primarily for use and which isan immediate chemical intermediary used or likely to be used in the manufactureof a controlled substance, the control of which is necessary to prevent, curtail,or limit such manufacture;(23) State shall mean the State of Nebraska;(24) Ultimate user shall mean a person who lawfully possessesa controlled substance for his or her own use, for the use of a member ofhis or her household, or for administration to an animal owned by him or heror by a member of his or her household;(25) Hospital shall have the same meaning as in section 71-419;(26) Cooperating individual shall mean any person, other thana commissioned law enforcement officer, who acts on behalf of, at the requestof, or as agent for a law enforcement agency for the purpose of gatheringor obtaining evidence of offenses punishable under the Uniform ControlledSubstances Act;(27) Hashish or concentrated cannabis shall mean: (a) Theseparated resin, whether crude or purified, obtained from a plant of the genuscannabis; or (b) any material, preparation, mixture, compound, or other substancewhich contains ten percent or more by weight of tetrahydrocannabinols;(28) Exceptionally hazardous drug shall mean (a) a narcoticdrug, (b) thiophene analog of phencyclidine, (c) phencyclidine, (d) amobarbital,(e) secobarbital, (f) pentobarbital, (g) amphetamine, or (h) methamphetamine;(29) Imitation controlled substance shall mean a substancewhich is not a controlled substance but which, by way of express or impliedrepresentations and consideration of other relevant factors including thosespecified in section 28-445, would lead a reasonable person to believe thesubstance is a controlled substance. A placebo or registered investigationaldrug manufactured, distributed, possessed, or delivered in the ordinary courseof practice or research by a health care professional shall not be deemedto be an imitation controlled substance;(30)(a) Controlled substance analogue shall mean a substance(i) the chemical structure of which is substantially similar to the chemicalstructure of a Schedule I or Schedule II controlled substance as providedin section 28-405 or (ii) which has a stimulant, depressant, analgesic, orhallucinogenic effect on the central nervous system that is substantiallysimilar to or greater than the stimulant, depressant, analgesic, or hallucinogeniceffect on the central nervous system of a Schedule I or Schedule II controlledsubstance as provided in section 28-405. A controlled substance analogue shall,to the extent intended for human consumption, be treated as a controlled substanceunder Schedule I of section 28-405 for purposes of the Uniform ControlledSubstances Act; and(b) Controlled substance analogue shall not include (i) acontrolled substance, (ii) any substance generally recognized as safe andeffective within the meaning of the Federal Food, Drug, and Cosmetic Act,21 U.S.C. 301 et seq., as such act existed on January 1, 2009, (iii)any substance for which there is an approved new drug application, or (iv)with respect to a particular person, any substance if an exemption is in effectfor investigational use for that person, under section 505 of the FederalFood, Drug, and Cosmetic Act, 21 U.S.C. 355, as such section existed on January1, 2009, to the extent conductwith respect to such substance is pursuant to such exemption;(31) Anabolic steroid shall mean any drug or hormonal substance,chemically and pharmacologically related to testosterone (other than estrogens,progestins, and corticosteroids), that promotes muscle growth and includesany controlled substance in Schedule III(d) of section 28-405. Anabolic steroidshall not include any anabolic steroid which is expressly intended for administrationthrough implants to cattle or other nonhuman species and has been approvedby the Secretary of Health and Human Services for such administration, butif any person prescribes, dispenses, or distributes such a steroid for humanuse, such person shall be considered to have prescribed, dispensed, or distributedan anabolic steroid within the meaning of this subdivision;(32) Chart order shall mean an order for a controlled substanceissued by a practitioner for a patient who is in the hospital where the chartis stored or for a patient receiving detoxification treatment or maintenancetreatment pursuant to section 28-412. Chart order shall not include a prescription;(33) Medical order shall mean a prescription, a chart order,or an order for pharmaceutical care issued by a practitioner;(34) Prescription shall mean an order for a controlled substanceissued by a practitioner. Prescription shall not include a chart order;(35) Registrant shall mean any person who has a controlledsubstances registration issued by the state or the administration;(36) Reverse distributor shall mean a person whose primaryfunction is to act as an agent for a pharmacy, wholesaler, manufacturer, orother entity by receiving, inventorying, and managing the disposition of outdated,expired, or otherwise nonsaleable controlled substances;(37) Signature shall mean the name, word, or mark of a personwritten in his or her own hand with the intent to authenticate a writing orother form of communication or a digital signature which complies with section 86-611 or an electronic signature;(38) Facsimile shall mean a copy generated by a system thatencodes a document or photograph into electrical signals, transmits thosesignals over telecommunications lines, and reconstructs the signals to createan exact duplicate of the original document at the receiving end;(39) Electronic signature shall have the definition foundin section 86-621;(40) Electronic transmission shall mean transmission of informationin electronic form. Electronic transmission may include computer-to-computertransmission or computer-to-facsimile transmission; and(41) Long-termcare facility shall mean an intermediate care facility, an intermediate carefacility for the mentally retarded, a long-term care hospital, a mental healthcenter, a nursing facility, or a skilled nursing facility, as such terms aredefined in the Health Care Facility Licensure Act. SourceLaws 1977, LB 38, § 61; Laws 1978, LB 276, § 1; Laws 1980, LB 696, § 1; Laws 1985, LB 323, § 1; Laws 1985, LB 406, § 2; Laws 1988, LB 273, § 3; Laws 1988, LB 537, § 1; Laws 1992, LB 1019, § 30; Laws 1993, LB 121, § 175; Laws 1996, LB 1044, § 68; Laws 1996, LB 1108, § 1; Laws 1997, LB 307, § 3; Laws 1999, LB 379, § 1; Laws 2001, LB 398, § 1; Laws 2002, LB 1105, § 428; Laws 2003, LB 200, § 1; Laws 2005, LB 117, § 1; Laws 2005, LB 256, § 16; Laws 2005, LB 382, § 1; Laws 2007, LB247, § 1; Laws 2007, LB296, § 35; Laws 2007, LB463, § 1119; Laws 2009, LB195, § 1. Cross ReferencesHealth Care Facility Licensure Act, see section 71-401. AnnotationsThe "personal use exception" in subsection (14) of this section applies to only "preparation" and "compounding" of a controlled substance, but does not apply to the "production" of a controlled substance. State v. Bossow, 274 Neb. 836, 744 N.W.2d 43 (2008).Under subsection (22) of this section, the term manufacture includes cultivating marijuana. State v. Havlat, 222 Neb. 554, 385 N.W.2d 436 (1986).A jury instruction as to the technical definition of marijuana need not be given where the defendant is charged with delivery of marijuana, when the evidence at trial presents no factual issue as to whether the substance involved was anything but marijuana. State v. Taylor, 221 Neb. 114, 375 N.W.2d 610 (1985).The Criminal Code which became effective on January 1, 1979, is not applicable to offenses committed prior to its effective date. State v. Fuller, 203 Neb. 233, 278 N.W.2d 756 (1979).Aiding and abetting possession is a lesser-included offense of aiding and abetting distribution. State v. McKimmey, 10 Neb. App. 595, 634 N.W.2d 817 (2001).