329-43.5 Prohibited acts related to drug paraphernalia. (a) Except as provided in subsection (e), it is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter. A violation of this subsection shall constitute a violation subject to a fine of no more than $500.

(b) Except as provided in subsection (e), it is unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver drug paraphernalia, knowing or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter. A violation of this subsection shall constitute a violation subject to a fine of no more than $500.

(c) Any person eighteen years of age or over who violates subsection (b) by delivering drug paraphernalia to a person or persons under eighteen years of age who are at least three years younger than that adult person is guilty of a class B felony and upon conviction may be imprisoned pursuant to section 706-660 and, if appropriate as provided in section 706-641, fined pursuant to section 706-640.

(d) It is unlawful for any person to place in any newspaper, magazine, handbill, or other publication any advertisement, knowing or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended for use as drug paraphernalia. Any person who violates this section is guilty of a class C felony and upon conviction may be imprisoned pursuant to section 706-660 and, if appropriate as provided in section 706-641, fined pursuant to section 706-640.

(e) Subsections (a) and (b) shall not apply to a person who is authorized to:

(1) Acquire, possess, cultivate, use, distribute, or transport cannabis pursuant to the definition of "medical use" under section 329-121, while the person is facilitating the medical use of cannabis by a qualifying patient; or

(2) Dispense, manufacture, or produce cannabis or manufactured cannabis products pursuant to and in compliance with chapter 329D, while the person is facilitating the medical use of cannabis by a qualifying patient pursuant to part IX of chapter 329. [L 1988, c 259, 2; am L 2016, c 230, 6; am L 2017, c 72, 2 and c 170, 2]

 

Revision Note

 

In subsection (e), "marijuana" changed to "cannabis" to conform to L 2017, c 170, pursuant to 23G-15.

 

Cross References

 

Forfeitures, see 329-55.

Sale of sterile syringes for the prevention of disease, see 325-21.

 

Case Notes

 

In a prosecution under subsection (b): of a merchant, jury should be instructed that it must first find that the defendant-seller delivered the object(s) in question to the buyer with the specific intent that the object(s) be used with illegal drugs; trial court should provide jury with an instruction enumerating all fourteen factors listed in the statutory definition of drug paraphernalia. 75 H. 80, 856 P.2d 1246.

Subsection (b): not void for vagueness; contains mens rea requirement of "intentionally"; mere fact that the buyer is actually an undercover police officer, which fact is unknown to the defendant, cannot render it "factually and legally" impossible that the defendant should reasonably have known that the items sold would be used with illegal drugs. 75 H. 80, 856 P.2d 1246.

No error in court failing to dismiss count against defendant for possessing "everyday household items not intended or designed for use as drug paraphernalia" as broad definition of drug paraphernalia and multiple examples of such contraband enumerated in 329-1 weighed against defendant's contention that the ordinary nature of the containers defendant possessed did not involve the harm or evil sought to be avoided under this section or amounted to extenuations that would not have been envisioned by the legislature. 98 H. 196, 46 P.3d 498.

Legislature intended to impose penal sanctions for constructive and actual possession of contraband items. 8 H. App. 610, 822 P.2d 23.

Insufficient evidence to support jury's verdict that defendant possessed scale with intent to use it for any of the purposes stated in subsection (a). 92 H. 472 (App.), 992 P.2d 741.

 

 

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