19-03.4 Drug Paraphernalia
Download pdf
Loading PDF...
<![CDATA[CHAPTER 19-03.4DRUG PARAPHERNALIA19-03.4-01.Definition - Drug paraphernalia.In this chapter, unless the contextotherwise requires, "drug paraphernalia" means all equipment, products, and materials of any<br>kind which are used, intended for use, or designed for use in planting, propagating, cultivating,<br>growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing,<br>testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting,<br>inhaling, or otherwise introducing into the human body a controlled substance in violation of<br>chapter 19-03.1. The term includes:1.Kits used, intended for use, or designed for use in planting, propagating, cultivating,<br>growing, or harvesting of any species of plant which is a controlled substance or<br>from which a controlled substance can be derived.2.Kits used, intended for use, or designed for use in manufacturing, compounding,<br>converting, producing, processing, or preparing controlled substances.3.Isomerization devices used, intended for use, or designed for use in increasing the<br>potency of any species of plant which is a controlled substance.4.Testing equipment used, intended for use, or designed for use in identifying or in<br>analyzing the strength, effectiveness, or purity of controlled substances.5.Scales and balances used, intended for use, or designed for use in weighing or<br>measuring controlled substances.6.Diluents and adulterants, including quinine hydrochloride, mannitol, dextrose, and<br>lactose, used, intended for use, or designed for use in cutting controlled substances.7.Separation gins and sifters used, intended for use, or designed for use in removing<br>twigs and seeds from, or in otherwise cleaning or refining, marijuana.8.Blenders, bowls, containers, spoons, grinders, and mixing devices used, intended<br>for use, or designed for use in compounding, manufacturing, producing, processing,<br>or preparing controlled substances.9.Capsules, balloons, envelopes, and other containers used, intended for use, or<br>designed for use in packaging small quantities of controlled substances.10.Containers and other objects used, intended for use, or designed for use in storing<br>or concealing controlled substances or products or materials used or intended for<br>use in manufacturing, producing, processing, or preparing controlled substances.11.Hypodermic syringes, needles, and other objects used, intended for use, or<br>designed for use in parenterally injecting controlled substances into the human body.12.Objects used, intended for use, or designed for use in ingesting, inhaling, or<br>otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human<br>body, including:a.Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without<br>screens, permanent screens, hashish heads, or punctured metal bowls.b.Water pipes.c.Carburetion tubes and devices.Page No. 1d.Smoking and carburetion masks.e.Objects, sometimes commonly referred to as roach clips, used to hold burning<br>material, for example, a marijuana cigarette, that has become too small or too<br>short to be held in the hand.f.Miniature cocaine spoons and cocaine vials.g.Chamber pipes.h.Carburetor pipes.i.Electric pipes.j.Air-driven pipes.k.Chillums.l.Bongs.m.Ice pipes or chillers.13.Ingredients or components to be used or intended or designed to be used in<br>manufacturing, producing, processing, preparing, testing, or analyzing a controlled<br>substance, whether or not otherwise lawfully obtained, including anhydrous<br>ammonia, nonprescription medications, methamphetamine precursor drugs, or<br>lawfully dispensed controlled substances.19-03.4-02. Drug paraphernalia - Guidelines. In determining whether an object is drugparaphernalia, a court or other authority shall consider, in addition to all other logically relevant<br>factors:1.Statements by an owner or by anyone in control of the object concerning its use.2.Prior convictions, if any, of an owner, or of anyone in control of the object, under any<br>state or federal law relating to any controlled substance.3.The proximity of the object, in time and space, to a direct violation of chapter<br>19-03.1.4.The proximity of the object to controlled substances.5.The existence of any residue of controlled substances on the object.6.Direct or circumstantial evidence of the intent of an owner, or of any person in<br>control of the object, to deliver the object to another person whom the owner or<br>person in control of the object knows, or should reasonably know, intends to use the<br>object to facilitate a violation of chapter 19-03.1. The innocence of an owner, or of<br>any person in control of the object, as to a direct violation of chapter 19-03.1 may not<br>prevent a finding that the object is intended or designed for use as drug<br>paraphernalia.7.Instructions, oral or written, provided with the object concerning the object's use.8.Descriptive materials accompanying the object which explain or depict the object's<br>use.9.National and local advertising concerning the object's use.Page No. 210.The manner in which the object is displayed for sale.11.Whether the owner, or anyone in control of the object, is a legitimate supplier of like<br>or related items to the community, for example, a licensed distributor or dealer of<br>tobacco products.12.Direct or circumstantial evidence of the ratio of sales of the object or objects to the<br>total sales of the business enterprise.13.The existence and scope of legitimate uses for the object in the community.14.Expert testimony concerning the object's use.15.The actual or constructive possession by the owner or by a person in control of the<br>object or the presence in a vehicle or structure where the object is located of written<br>instructions, directions, or recipes to be used, or intended or designed to be used, in<br>manufacturing, producing, processing, preparing, testing, or analyzing a controlled<br>substance.19-03.4-03. Unlawful possession of drug paraphernalia - Penalty. A person may notuse or possess with intent to use drug paraphernalia to plant, propagate, cultivate, grow, harvest,<br>manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store,<br>contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled<br>substance in violation of chapter 19-03.1. Any person violating this section is guilty of a class C<br>felony if the drug paraphernalia is used, or possessed with intent to be used, to manufacture,<br>compound, convert, produce, process, prepare, test, inject, ingest, inhale, or analyze a controlled<br>substance, other than marijuana, classified in schedule I, II, or III of chapter 19-03.1. Otherwise,<br>a violation of this section is a class A misdemeanor.19-03.4-04. Unlawful manufacture or delivery of drug paraphernalia - Penalty. Aperson may not deliver, possess with intent to deliver, or manufacture with intent to deliver, drug<br>paraphernalia, if that person knows or should reasonably know that the drug paraphernalia will be<br>used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce,<br>process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or<br>otherwise introduce into the human body a controlled substance in violation of chapter 19-03.1.<br>Any person violating this section is guilty of a class C felony if the drug paraphernalia will be used<br>to manufacture, compound, convert, produce, process, prepare, test, inject, ingest, inhale, or<br>analyze a controlled substance, other than marijuana, classified in schedule I, II, or III of chapter<br>19-03.1. Otherwise, a violation of this section is a class A misdemeanor.19-03.4-05. Unlawful delivery of drug paraphernalia to a minor - Penalty. A personeighteen years of age or over may not deliver drug paraphernalia, in violation of this chapter, to a<br>person under eighteen years of age who is at least three years the deliverer's junior. Any person<br>violating this section is guilty of a class C felony.19-03.4-06. Unlawful advertisement of drug paraphernalia - Penalty. A person maynot place an advertisement in any newspaper, magazine, handbill, or other publication if that<br>person knows or should reasonably know that the purpose of the advertisement, in whole or in<br>part, is to promote the sale of objects designed or intended for use as drug paraphernalia. Any<br>person violating this section is guilty of a class A misdemeanor.19-03.4-07. Prima facie proof of intent. Possession of more than twenty-four grams ofa methamphetamine precursor drug or combination of methamphetamine precursor drugs<br>calculated in terms of ephedrine HCI and pseudoephedrine HCI is prima facie evidence of intent<br>to violate sections 19-03.4-03 and 19-03.4-04. This section does not apply to a practitioner as<br>defined in section 19-03.1-01 or to a product possessed in the course of a legitimate and lawful<br>business.Page No. 319-03.4-08. Retail or over-the-counter sale of scheduled listed chemical products -Penalty.1.The retail sale of scheduled listed chemical products is limited to:a.Sales in packages containing not more than a total of two grams of one or more<br>scheduled listed chemical products, calculated in terms of ephedrine base,<br>pseudoephedrine base, and phenylpropanolamine base; andb.Sales in blister packs, each blister containing not more than two dosage units,<br>or when the use of blister packs is technically infeasible, sales in unit dose<br>packets or pouches.2.A person may not:a.Deliver in a single over-the-counter sale more than two packages of a<br>scheduled listed chemical product or a combination of scheduled listed<br>chemical products; orb.Without regard to the number of over-the-counter sales, deliver more than a<br>daily amount of three and six-tenths grams of scheduled listed chemical<br>products, calculated in terms of ephedrine base, pseudoephedrine base, and<br>phenylpropanolamine base, to a purchaser.3.When offering scheduled listed chemical products for sale, the person shall place<br>the products behind a counter or other barrier, or in a locked cabinet, where<br>purchasers do not have direct access to the products before the sale is made.4.a.When offering scheduled listed chemical products for retail sale, a person shall<br>require, obtain, and make a written record of the identification of the person<br>purchasing the scheduled listed chemical product, the identification being a<br>document issued by a government agency as described in subdivisions a and b<br>of subsection 6, and shall deliver the product directly into the custody of the<br>purchaser.b.The person shall maintain a written list of sales that identifies the product by<br>name, the quantity sold, the names and addresses of the purchasers, the dates<br>and times of the sales, and a notice to a purchaser that the making of false<br>statements or misrepresentations may subject the purchaser to federal and<br>state criminal penalties. The purchaser shall sign the written list of sales and<br>enter the purchaser's name, address, and the date and time of the sale. The<br>person making the sale shall determine that the name entered by the purchaser<br>corresponds with the name on the identification provided by the purchaser and<br>that the date and time of the purchase is correct. The person making the sale<br>shall enter the name of the product and the quantity sold on the list.c.The person shall maintain the record of identification required by this<br>subsection for three years, after which the record must be destroyed.Theperson may not use or maintain the record for any private or commercial<br>purpose or disclose the record to any person, except as required by law. The<br>person shall disclose the record, upon request, to a law enforcement agency for<br>a law enforcement purpose.A person who in good faith releases theinformation in the record of identification to federal, state, or local law<br>enforcement authorities is immune from civil liability for such release unless the<br>release constitutes gross negligence or intentional, wanton, or willful<br>misconduct.5.A person may not deliver in an over-the-counter sale a scheduled listed chemical<br>product to a person under the age of eighteen years.Page No. 46.It is a prima facie case of a violation of subsection 5 if the person making the sale<br>did not require and obtain proof of age from the purchaser. "Proof of age" means a<br>document issued by a governmental agency which:a.Contains a description of the person or a photograph of the person, or both,<br>and gives the person's date of birth; andb.Includes a passport, military identification card, or driver's license.7.It is an affirmative defense to a violation of subsection 5 if:a.The person making the sale required and obtained proof of age from the<br>purchaser;b.The purchaser falsely represented the purchaser's proof of age by use of a<br>false, forged, or altered document;c.The appearance of the purchaser was such that an ordinary and prudent<br>person would believe the purchaser to be at least eighteen years of age; andd.The sale was made in good faith and in reliance upon the appearance and<br>representation of proof of age of the purchaser.8.This section does not apply to a product that the state board of pharmacy, upon<br>application of a manufacturer, exempts from this section because the product has<br>been formulated in such a way as to effectively prevent the conversion of the active<br>ingredient into methamphetamine, or its salts or precursors.9.A person may not:a.Make a false statement or misrepresentation in the written list of sale that is<br>prepared and maintained as required by subsection 4; orb.Purchase more than nine grams of ephedrine base, pseudoephedrine base, or<br>phenylpropanolamine base in scheduled listed chemical products in a thirty-day<br>period.10.A person who willfully violates subsection 1 or 9 is guilty of a class A misdemeanor.<br>A person who willfully violates subsection 2, 3, 4, or 5 is guilty of an infraction.11.A person who is the owner, operator, or manager of the retail outlet or who is the<br>supervisor of the employee or agent committing a violation of this section of the<br>outlet where scheduled listed chemical products are available for sale is not subject<br>to the penalties of this section if the person:a.Did not have prior knowledge of, participate in, or direct the employee or agent<br>to commit, the violation of this section; andb.Certifies to the attorney general that the employee or agent, at the time of initial<br>employment and each calendar year thereafter, participated in a training<br>program approved by the attorney general providing the employee or agent<br>with information regarding the state and federal regulations governing the sale,<br>possession, and packaging of such products.The approval of the training program by the attorney general is not subject to<br>chapter 28-32.12.A political subdivision, including a home rule city or county, may not enact any<br>ordinance relating to the sale by a retail distributor of over-the-counter productsPage No. 5containing ephedrine, pseudoephedrine, or phenylpropanolamine.Any existingordinance is void.Page No. 6Document Outlinechapter 19-03.4 drug paraphernalia]]>