712-1242 Promoting a dangerous drug in the second degree. (1) A person commits the offense of promoting a dangerous drug in the second degree if the person knowingly:

(a) Possesses twenty-five or more capsules, tablets, ampules, dosage units, or syrettes, containing one or more dangerous drugs;

(b) Possesses one or more preparations, compounds, mixtures, or substances of an aggregate weight of:

(i) One-eighth ounce or more, containing methamphetamine, heroin, morphine, or cocaine or any of their respective salts, isomers, and salts of isomers; or

(ii) One-fourth ounce or more, containing any dangerous drug; or

(c) Distributes any dangerous drug in any amount, except for methamphetamine.

(2) Promoting a dangerous drug in the second degree is a class B felony. [L 1972, c 9, pt of 1; am L 1975, c 163, 6(d); am L 1982, c 9, 2; am L 1987, c 176, 7 and c 356, 2; am L 1988, c 291, 1; am L 1989, c 163, 2; gen ch 1992; am L 1996, c 308, 3; am L 2002, c 161, 7; am L 2004, c 44, 6; am L 2007, c 27, 1]


Revision Note


In subsection (1)(a), "or" deleted pursuant to 23G-15.


Case Notes


Procuring agency defense is not applicable to charge under subsection (1)(c). 58 H. 234, 566 P.2d 1370 (1977).

Instruction was erroneous which required the jury to find that defendant knew the substance was heroin upon the State's showing by chemical analysis that it was heroin. 61 H. 308, 603 P.2d 141 (1979).

Because undisputed evidence at trial was that defendant did nothing more than offer to buy cocaine from police sergeant, defendant did not, as a matter of law, violate subsection (1)(c). 78 H. 317, 893 P.2d 168 (1995).

In the absence of a bill of particulars, where the evidence adduced at trial proves only a sale and a reasonable juror could find that the defendant did not act on the seller's behalf, the defendant is entitled to a jury instruction on the procuring agent defense. 93 H. 279, 1 P.3d 281 (2000).

Although there was substantial evidence to conclude that defendant was drug distributor in violation of this section, defendant was entitled to a procuring agent defense instruction as (1) a jury instruction must be given on every defense if there is any support in the evidence "no matter how weak, inconclusive or unsatisfactory the evidence may be", (2) defendant's participation in drug transaction negotiation or touching the drugs or money involved did not foreclose a procuring agent defense, (3) determining whether defendant was an agent of buyer was for the fact finder, and (4) there was support in evidence for a procuring agent defense. 113 H. 385, 153 P.3d 456 (2007).

Disregarding the erroneously admitted testimony of the police criminalist as to the weight of the substances, the record was devoid of any evidence of the requisite weight of the methamphetamine, a material element of the offenses charged; because those material elements of the offenses were not supported by substantial and admissible evidence, prosecution failed to adduce sufficient evidence to prove every element of the offenses beyond a reasonable doubt. 115 H. 343, 167 P.3d 336 (2007).

Where promoting a dangerous drug in the second degree was a lesser included offense of the charged offense of promoting a dangerous drug in the first degree, and evidence established that defendant knowingly distributed methamphetamine, case remanded to convict defendant of promoting a dangerous drug in the second degree. 115 H. 343, 167 P.3d 336 (2007).

Method used to prove that capsules of methaqualone hydrochloride contained methaqualone accepted as evidence. 1 H. App. 31, 613 P.2d 919 (1980).

Instruction charging the jury that proof that the defendant distributed the substance proven to be cocaine was sufficient to show defendant had knowledge of the nature of the substance was erroneous. 1 H. App. 544, 622 P.2d 619 (1981).

Chain of custody requirements. 1 H. App. 546, 622 P.2d 620 (1981).

Evidence was sufficient to prove distribution; it was not necessary to introduce cocaine itself into evidence. 10 H. App. 1, 860 P.2d 610 (1993).

Cited: 700 F. Supp. 2d 1252 (2010).



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