Common Drug Offenses and Penalties in Nevada

Nevada takes a very draconian stance on drug-related offenses. This translates to harsh criminal sentences and sanctions for events that are seemingly minor. It is also noteworthy to mention that a defendant accused of a drug-related crime or offense may also be subject to asset forfeitures and seizures of cash if it is believed that the property or cash relates to the proceeds of an illegal drug enterprise.

One of the most common drug charges is to be charged for possession of the drug, which is a violation of NRS § 453.336. NRS 453.336 prohibits the possession of any controlled substance without a valid prescription. Possession can be either “actual” or “constructive.”

Adults over 21 may legally possess up to one ounce of marijuana. Individuals with a medical marijuana card may possess up to 2.5 ounces of marijuana or twelve cannabis plants, irrespective of whether the cannabis plants are mature or immature see NRS 678C.200.

Common Drug Offenses and Penalties in Nevada

1. Drug Possession

Constructive Possession, Actual Possession, and Joint Posession.

A defendant has constructive possession only if she maintains control or a right to control the contraband. Possession of a controlled substance may be imputed when the contraband is found in a location which is immediately and exclusively accessible to the accused and subject to her dominion and control; even if the accused does not have exclusive control of the hiding place possession may be imputed if she has not abandoned the narcotic and no other person has obtained possession. The accused is also deemed to have the same possession as any person actually possessing the narcotic pursuant to her direction or permission where she retains the right to exercise dominion or control over the property. Glispey v. Sheriff, Carson City, 89 Nev. 221, 510 P.2d 623, 1973 Nev. LEXIS 475 (Nev. 1973).

Consequently, if the police search your vehicle, and drugs are found in a purse, located in the trunk, you do not have actual possession of the contraband, but the State will argue that you had constructive possession over the contraband if you are the driver of the vehicle and you may be charged with a drug offense.

In contrast, if the police find drugs in your pocket you will be deemed to have “actual possession” of a controlled substance.

There also exists joint possession. For example, in the example above if the purse, in the trunk, belonged to your girlfriend, you may both be charged with a drug offense and be deemed to be in joint possession of a controlled substance.

Dominion and Control is a Necessary Element of Possession.

The defendant’s mere presence in the area where the narcotic is discovered or mere association with the person who does control the drug or the property where it is located is insufficient to support a finding of possession; proof that the defendant exercised dominion and control over the contraband is required to support a possession charge. Konold v. Sheriff, Clark County, 94 Nev. 289, 579 P.2d 768, 1978 Nev. LEXIS 544 (Nev. 1978).

Where the only probative or demonstrable evidence of record, suggesting that marijuana even existed in proximity to a defendant, were three photographs which a police officer took showing a plant growing in the defendant’s father’s garden, the evidence was insufficient to hold him for trial for possession of marijuana. Hammond v. Sheriff, Mineral County, 91 Nev. 176, 532 P.2d 1030, 1975 Nev. LEXIS 579 (Nev. 1975).

Evidence was insufficient to establish that defendant exercised dominion and control over marijuana found in girlfriend’s home; defendant did not live at the residence, two other people had visited the residence on the night before defendant’s arrest, and the defendant’s girlfriend had pled guilty to possession of the marijuana at issue. McGervey v. State, 114 Nev. 460, 958 P.2d 1203, 114 Nev. Adv. Rep. 56, 1998 Nev. LEXIS 71 (Nev. 1998).

A Defendant Can Not be Charged with Both Possession and Sale of a Controlled Substance.

Because possession of a controlled substance is a lesser-included offense of possession of a controlled substance for the purpose of sale, defendant could not be punished for both crimes; based on defendant’s criminal history, simple possession was the less severely punishable offense and, accordingly, that conviction was reversed. LaChance v. State, 130 Nev. 263, 321 P.3d 919, 130 Nev. Adv. Rep. 29, 2014 Nev. LEXIS 31 (Nev. 2014).

The Effect of Sealing A Record on Drug Charges.

When a record of conviction is sealed, such conviction may not be utilized to prove an element in a new crime or as an enhancement for a new conviction. A sealed conviction also may not be used as the basis for a denial or revocation of a professional license. A person whose records have been sealed may also vote, hold office and serve as a juror. AGO 83-13 (9-14-1983). This is very important for doctors, nurses, and other healthcare professionals that may have been charged with a drug charge in the past, you need to have your record sealed so it does not affect your professional license application.

Contact the Spartacus Law Firm today to get your record sealed and protect your future and your professional license.

1. Possession with the Intent to Sell

Possessing drugs with the intent to sell or possession for sale is a violation of NRS 453.337.

The Drug Must be Specifically Identified.

Identity of a substance was an element of the crime described in this provision, such that each schedule I or II controlled substance simultaneously possessed with the intent to sell constituted a separate offense, because the particular identity of a substance must be proven to sustain a conviction under this provision, Nev. Rev. Stat. § 453.570 required that the type of drug be proven at trial, and the identity of a substance determined the applicable schedule of controlled substances, which may determine the applicable punishment. Figueroa-Beltran v. United States, 467 P.3d 615, 136 Nev. Adv. Rep. 45, 2020 Nev. LEXIS 45 (Nev. 2020).

Conviction constitutes drug trafficking offense under U.S. Sentencing Guidelines Manual and Supports Sentencing Enhancements.

Sentence of defendant, who was convicted of willfully being in the United States unlawfully after a previous arrest and deportation, was properly enhanced 16 levels based on a prior conviction under subsection (1) for possession of a controlled substance for purposes of sale because the conviction was a drug trafficking offense within U.S. Sentencing Guidelines Manual § 2L1.2(b)(A)(i). United States v. Benitez-Perez, 367 F.3d 1200, 2004 U.S. App. LEXIS 9831 (9th Cir. Nev. 2004).

In order to determine whether defendant’s federal sentence was properly enhanced based on a prior conviction of a drug trafficking offense, it was necessary to determine whether this section, under which defendant was convicted of possession of a controlled substance for sale, was divisible as to the identity of the controlled substance; because Nevada precedent appeared to be in conflict, certification of questions to the Nevada Supreme Court was warranted. United States v. Figueroa-Beltran, 892 F.3d 997, 2018 U.S. App. LEXIS 15212 (9th Cir. 2018), reh’g, en banc, denied, 2018 U.S. App. LEXIS 23027 (9th Cir. Nev. Aug. 17, 2018).

Defendant’s Nevada conviction for possession of cocaine supported 16-level enhancement applied by district court as defendant was charged with and plead guilty to possession of cocaine with intent to sell, which was drug trafficking offense. United States v. Figueroa-Beltran, 995 F.3d 724, 2021 U.S. App. LEXIS 12446 (9th Cir. Nev. 2021).

A Defendant Can Be Charged with Possession with Intent to Sell and Trafficking of A Controlled Substance but can not be Convicted of Both offenses.

Although a defendant cannot be convicted of both possession of a controlled substance with intent to sell and trafficking in a controlled substance under these circumstances, it is not improper for the prosecutor to charge both offenses. In such case, however, the district court judge must instruct the jury that the defendant may only be found guilty of one of the alternative offenses. Vidal v. State, 105 Nev. 98, 769 P.2d 1292, 1989 Nev. LEXIS 19 (Nev. 1989).

The legislature has mandated that a defendant cannot be punished for possession with intent to sell when a greater penalty is provided for in, inter alia, a trafficking conviction. Vidal v. State, 105 Nev. 98, 769 P.2d 1292, 1989 Nev. LEXIS 19 (Nev. 1989).

The language in this section precludes any conviction for possession for purposes of sale where the defendant is subject to a greater punishment under NRS 453.3395 based on a charge of trafficking of the same controlled substance. Hayes v. State, 106 Nev. 543, 797 P.2d 962, 106 Nev. Adv. Rep. 101, 1990 Nev. LEXIS 98 (Nev. 1990), overruled in part, Ryan v. Eighth Judicial Dist. Court of Nev., 123 Nev. 419, 168 P.3d 703, 123 Nev. Adv. Rep. 42, 2007 Nev. LEXIS 53 (Nev. 2007).

Distribution.

Defendant claimed he was denied a fair trial because a jury instruction expanded the definition of his crime beyond the statutory definition. This section, under which defendant was convicted, prohibits possession of a controlled substance with intent to sell, but does not mention distribution. Defendant did not argue that he intended to distribute, but not sell the cocaine, and such argument would have been inconsistent with his defense theory. Therefore, defendant was not prejudiced, and any error in the jury instruction was harmless beyond a reasonable doubt. Donald v. State, 112 Nev. 348, 913 P.2d 655, 112 Nev. Adv. Rep. 49, 1996 Nev. LEXIS 45 (Nev. 1996).

Dominion and control.

In order to establish that the crime of possession of a controlled substance has been committed, the state must prove beyond a reasonable doubt that the accused had dominion and control of a controlled substance and knowledge of the presence of the controlled substance and of its illegal nature. Sanders v. State, 110 Nev. 434, 874 P.2d 1239, 110 Nev. Adv. Rep. 50, 1994 Nev. LEXIS 49 (Nev. 1994).

This section requires proof beyond a reasonable doubt that the defendant had dominion and control over the controlled substance and knowledge of its presence and its illegal nature, and that the defendant possessed the substance in an amount sufficient for sale or consumption as a controlled substance with the specific intent to sell the same. United States v. Scholz, 899 F. Supp. 484, 1995 U.S. Dist. LEXIS 14567 (D. Nev. 1995).

1. Unauthorized Acts with Drugs. Selling, manufacturing, distributing or transporting drugs. NRS § 453.321.

Juvenile Offenders of this Provision May be Placed In Detention.

Deterrence of others from engaging in drug sales in our schools is sufficient reason to depart from the presumption that a child should be placed in his home and to put him in confinement. Scott L. v. State, 104 Nev. 419, 760 P.2d 134, 1988 Nev. LEXIS 62 (Nev. 1988). Public interest served. The paramount public interest purposes of the juvenile courts were optimally served by the juvenile court judge’s decision to institutionalize a juvenile adjudicated a delinquent, based on his distribution of marijuana, for purposes of deterrence, where other public interests in vindicating the law were also served as were the interests of the delinquent. Scott L. v. State, 104 Nev. 419, 760 P.2d 134, 1988 Nev. LEXIS 62 (Nev. 1988).

Knowledge is a necessary Element of the Offense.

Defendant’s knowledge of narcotic nature of controlled substances is necessary element of offense; the requisite knowledge may be shown by circumstantial evidence and reasonably drawn inferences. Rowe v. State, 91 Nev. 772, 542 P.2d 1059, 1975 Nev. LEXIS 770 (Nev. 1975).

Knowledge May Be Inferred.

In a prosecution for sales of drugs, the defendant’s awareness of the narcotic nature of the substances could be inferred from the testimony of a police officer who discussed the price of the various drugs and observed the sales transaction. Rowe v. State, 91 Nev. 772, 542 P.2d 1059, 1975 Nev. LEXIS 770 (Nev. 1975).

Evidence that the defendant sold an undercover agent ten capsules of LSD, but represented this contraband to be Mescaline, the sale of which is equally criminal, supported a finding that she knew the narcotic character of the drug involved. Baird v. Sheriff, Clark County, 89 Nev. 286, 511 P.2d 1052, 1973 Nev. LEXIS 500 (Nev. 1973).

A Buyer of Drugs is Not an Accomplice to Selling Drugs.

A buyer of narcotics is not an accomplice to the act of selling and neither is a person who is furnished contraband for cash or gratuitously; thus, it is not required that the testimony of either one be corroborated. Pickard v. Sheriff, Mineral County, 93 Nev. 107, 560 P.2d 912, 1977 Nev. LEXIS 487 (Nev. 1977).

Representation by a defendant of a substance as contraband is sufficient to prove that a Defendant knew the substance was contraband.

While in a prosecution for selling a controlled substance, proof beyond a reasonable doubt that the substance sold was in fact contraband must be offered at trial for the purpose of meeting the standard of probable cause required to bind an accused over for trial. It is sufficient if the accused either directly, or by necessary implication, represents that the substance is, in fact, contraband. Bolden v. Sheriff, Clark County, 93 Nev. 8, 558 P.2d 628, 1977 Nev. LEXIS 448 (Nev. 1977).

In order to establish probable cause that the accused sold a controlled substance, it is not mandatory to introduce the contraband as physical evidence in the proceedings before the magistrate when, as here, the accused has represented that the item sold was a controlled substance. Sheriff, Clark County v. Byron, 93 Nev. 546, 571 P.2d 103, 1977 Nev. LEXIS 620 (Nev. 1977).

Sales may be consummated through a third party under NRS 453.321.

Under this statute it is not necessary that the buyer deal directly with the seller in order to sustain the charge; thus, an accused is subject to prosecution for the sale of a controlled substance when the proof adduced at the preliminary examination shows the sale was consummated through a third party. Whether the sale was made directly to the buyer or through the conduit of an intermediary is neither determinative of, nor critical to, the issue of whether or not the crime was committed. Sheriff, Clark County v. Hodges, 90 Nev. 3, 517 P.2d 1006, 1974 Nev. LEXIS 293 (Nev. 1974).

Entrapment Defense- Defendant adjudged predisposed to commit criminal activity.

Where the arresting officer, acting on an informant’s tip, met the defendant in a bar and mentioned once that he was interested in obtaining some methamphetamine, the defendant volunteered that she could obtain a gram of methamphetamine, and there was no attempt to befriend respondent in order to persuade her to obtain the drug, this evidence indicated that she was predisposed to commit the criminal activity, and did not support a claim that the defendant was entrapped as a matter of law. Sheriff, Humboldt County v. Gleave, 104 Nev. 496, 761 P.2d 416, 1988 Nev. LEXIS 71 (Nev. 1988).

Multiple convictions from the same transaction are improper. A Defendant can not be convicted of both the sale and possession of a controlled substance.

Conviction for both the sale and possession of a controlled substance arising out of the identical transaction was improper. Fairman v. State, 83 Nev. 137, 425 P.2d 342, 1967 Nev. LEXIS 243 (Nev. 1967). (Decision under former similar statutes).

But defendant was properly convicted of both sale and possession of controlled substance, where the evidence showed that the defendant sold a portion of cocaine to an undercover police officer and that he consumed a portion of the remaining cocaine which he did not sell; the crime of possession, therefore, did not merge with that of possession for sale, since a certain amount of the substance was the predicate for each separate offense. Talancon v. State, 97 Nev. 12, 621 P.2d 1111, 1981 Nev. LEXIS 414 (Nev. 1981).

Separate offenses (multiple narcotics) consummated simultaneously.

The sale of heroin and the sale of cocaine are distinct offenses requiring separate and different proof as to the particular identity of the controlled substance sold; thus, the defendant’s conduct constituted two separate offenses for which he could be charged, despite the fact that the sale of the two different controlled substances was consummated simultaneously in one transaction. Muller v. Sheriff, Clark County, 93 Nev. 686, 572 P.2d 1245, 1977 Nev. LEXIS 664 (Nev. 1977).

An informant must be disclosed at the preliminary hearing. Improper denial of continuance to call informant.

Where it was undisputed that the informant was a material witness in a prosecution for the sale of a controlled substance, and, since his name was not disclosed until the preliminary examination was in progress, the magistrate’s failure to grant the defendant’s motion for a continuance in order to call and interrogate the witness was error. Routhier v. Sheriff, Clark County, 93 Nev. 149, 560 P.2d 1371, 1977 Nev. LEXIS 494 (Nev. 1977), overruled in part, Sheriff v. Witzenburg, 122 Nev. 1056, 145 P.3d 1002, 122 Nev. Adv. Rep. 91, 2006 Nev. LEXIS 121 (Nev. 2006).

Manufacture of controlled substance.

The act of “cutting” a drug is encompassed within subsection 1 of NRS 453.091, defining the manufacture of controlled substances. Sheriff, Clark County v. Hughes, 99 Nev. 541, 665 P.2d 242, 1983 Nev. LEXIS 489 (Nev. 1983).

Instruction on defendant as purchasing agent.

In a prosecution for the possession and sale of marijuana and cocaine and conspiring to sell controlled substances, defendants’ contention that they were merely “purchasing agents” for an undercover police officer, and thus were immune from prosecution, was incorrect; such contention merely entitled defendants to a “purchasing agent” instruction given to the jury, if the evidence did not foreclose it. Ursino v. Sheriff, Washoe County, 91 Nev. 409, 537 P.2d 316, 1975 Nev. LEXIS 655 (Nev. 1975).

Insufficient Evidence, Physical Presence is not Enough to Sustain a Conviction.

Where the only testimony connecting a defendant with the sales of heroin was that she was physically seated in a passenger seat of the automobile during the time a codefendant was engaged in his illicit activity, there was insufficient evidence to establish probable cause that she made a “sale” of the contraband. Palombo v. Sheriff, Clark County, 93 Nev. 492, 568 P.2d 580, 1977 Nev. LEXIS 603 (Nev. 1977).

Where the only evidence of defendant’s activities was that he was physically in a room when two persons engaged in a conversation regarding the purchase and sale of a quantity of marijuana, where defendant was quoted as saying, “I don’t want to get involved in this” and then left the room and the transaction was completed, the evidence was insufficient to establish probable cause that defendant made a sale of marijuana. Salazar v. Sheriff, Mineral County, 94 Nev. 287, 579 P.2d 767, 1978 Nev. LEXIS 543 (Nev. 1978).

The prosecution was unable to set forth any direct evidence that the defendant benefited from the transaction. Upon arrest, the defendant was not under the influence of drugs, and neither drugs nor money were found in her possession. Moreover, there was no evidence to contradict the defendant’s story that she gave the money to the supplier. The fact the supplier gave the defendant the drugs before receiving payment was not enough to infer that she received benefit from the transaction, and as a procuring agent the defendant was not guilty of the offense of selling. Dent v. State, 112 Nev. 1365, 929 P.2d 891, 112 Nev. Adv. Rep. 164, 1996 Nev. LEXIS 168 (Nev. 1996).

Defendant’s conviction was vacated where the State failed to present sufficient evidence to convict defendant of offering to sell a controlled substance because this section requires the existence of an actual controlled substance. Paige v. State, 116 Nev. 206, 995 P.2d 1020, 116 Nev. Adv. Rep. 21, 2000 Nev. LEXIS 21 (Nev. 2000).

Construction with other sections.

The plain language of this section indicates that it covers offenses relating to the sale of an actual controlled substance, whereas NRS 453.323(1) and NRS 453.332 cover offenses not involving the sale of an actual controlled substance, and any other interpretation of this section would render NRS 453.323(1) and NRS 453.332 superfluous. Paige v. State, 116 Nev. 206, 995 P.2d 1020, 116 Nev. Adv. Rep. 21, 2000 Nev. LEXIS 21 (Nev. 2000).

1. Drug Trafficking. 453.3385. Trafficking in controlled substances: Flunitrazepam, gamma-hydroxybutyrate and schedule I or II substances, except marijuana.

The unit of prosecution for Nev. Rev. Stat. § 453.3385 is the possession of each schedule I controlled substance. Andrews v. State, 134 Nev. 95, 412 P.3d 37, 134 Nev. Adv. Rep. 12, 2018 Nev. LEXIS 11 (Nev. 2018).

Although Nev. Rev. Stat. § 453.3385‘s plain text is ambiguous with respect to the appropriate unit of prosecution, the Supreme Court of Nevada nonetheless hold that, in applying other tools of statutory interpretation, the Legislature intended to create a separate offense for each controlled substance simultaneously possessed by a person; the weights of different controlled substances may not be aggregated together to form a single offense under § 453.3385. Andrews v. State, 134 Nev. 95, 412 P.3d 37, 134 Nev. Adv. Rep. 12, 2018 Nev. LEXIS 11 (Nev. 2018).

Evidence found during strip-search.

Where police found 34 grams of cocaine on defendant’s body during a strip-search conducted as a part of a booking procedure upon his arrest for a traffic offense, defendant was properly convicted of one count of trafficking in a controlled substance.  Morgan v. State, 120 Nev. 219, 88 P.3d 837, 120 Nev. Adv. Rep. 25, 2004 Nev. LEXIS 29 (Nev. 2004).

Sentence did not violate defendant’s constitutional rights.

A sentence of three years in the Nevada State Prison and fine of $50,000 imposed on a man convicted of selling $300 worth of cocaine, in accordance with the minimum statutory requirements set forth in subsection (1) of this section, violated neither the Nevada nor the United States Constitution. The court properly imposed the minimum fine and that such fine was not in violation of the defendant’s constitutional rights. Wischmeier v. State, 107 Nev. 371, 811 P.2d 1307, 107 Nev. Adv. Rep. 58, 1991 Nev. LEXIS 103 (Nev. 1991).

Proof.

The element of knowledge or intent that the state must prove beyond a reasonable doubt is that the criminal defendant knowingly or intentionally possessed, sold, manufactured, delivered or brought into this state a controlled substance. State v. District Court, 108 Nev. 1030, 842 P.2d 733, 108 Nev. Adv. Rep. 162, 1992 Nev. LEXIS 182 (Nev. 1992).

The state must prove the amount of the controlled substance beyond a reasonable doubt; the state is not required to prove that the defendant was aware of the amount of illegal drugs he possessed, or that the defendant was aware that the amount of illegal drugs he possessed might subject him to a charge of trafficking. State v. District Court, 108 Nev. 1030, 842 P.2d 733, 108 Nev. Adv. Rep. 162, 1992 Nev. LEXIS 182 (Nev. 1992).

State does not have burden of proving scienter with respect to amount of cocaine possessed.

It would be clear error for the district court to give to the jury any instruction that would place on the state a burden of proving any element of scienter on the part of the defendants with respect to the amount of cocaine that they possessed. State v. District Court, 108 Nev. 1030, 842 P.2d 733, 108 Nev. Adv. Rep. 162, 1992 Nev. LEXIS 182 (Nev. 1992).

Charge of possession with intent to sell and trafficking.

Although a defendant cannot be convicted of both possession of a controlled substance with intent to sell and trafficking in a controlled substance under these circumstances, it is not improper for the prosecutor to charge both offenses. In such case, however, the district court judge must instruct the jury that the defendant may only be found guilty of one of the alternative offenses. Vidal v. State, 105 Nev. 98, 769 P.2d 1292, 1989 Nev. LEXIS 19 (Nev. 1989).

The Legislature has mandated that a defendant cannot be punished for possession with intent to sell when a greater penalty is provided for in, inter alia, a trafficking conviction. Vidal v. State, 105 Nev. 98, 769 P.2d 1292, 1989 Nev. LEXIS 19 (Nev. 1989).

Penalty.

The penalty for trafficking in a controlled substance is determined from the amount of the controlled substance involved. State v. District Court, 108 Nev. 1030, 842 P.2d 733, 108 Nev. Adv. Rep. 162, 1992 Nev. LEXIS 182 (Nev. 1992).

Reduction of sentence.

Phrase “minimum term of imprisonment prescribed by the applicable penal statute” in  NRS 176A.630(5) required the Nevada Supreme Court to read NRS 453.3385 as a whole, which included the substantial-assistance provision in NRS 453.3405(2); the rule of lenity required a liberal interpretation in favor of defendant, and thus, the applicable statute setting forth defendant’s mandatory minimum sentence after the district court revoked probation includes the substantial-assistance provision in § 453.3405(2), and thus, the district court had the discretion to “reduce” defendant’s sentence below the statutory minimum of 10 years provided in § 453.3385 upon revoking his probation.  State v. Lucero, 127 Nev. 92, 249 P.3d 1226, 127 Nev. Adv. Rep. 7, 2011 Nev. LEXIS 8 (Nev. 2011).

Procuring agent defense.

The procuring agent defense is applicable to a trafficking case where the State charges trafficking on a theory of possession, but the facts reveal a sale was contemplated. Love v. State, 111 Nev. 545, 893 P.2d 376, 111 Nev. Adv. Rep. 51, 1995 Nev. LEXIS 40 (Nev. 1995).

The procuring agent defense in a prosecution for a sale of a controlled substance can be maintained only if the defendant was merely a conduit for the purchase and in no way benefited from the transaction. Thus, if a defendant receives part of the controlled substance involved in the transaction for his own use or any amount of money in consideration for the transaction, the defense of procuring agency is not available. Love v. State, 111 Nev. 545, 893 P.2d 376, 111 Nev. Adv. Rep. 51, 1995 Nev. LEXIS 40 (Nev. 1995).

The procuring agent defense is inapplicable when the crime is simply possession of a controlled substance. Love v. State, 111 Nev. 545, 893 P.2d 376, 111 Nev. Adv. Rep. 51, 1995 Nev. LEXIS 40 (Nev. 1995).

The district court erred in failing to instruct the jury that the procuring agent defense does not apply unless the drug sale is initiated by a police informant. Love v. State, 111 Nev. 545, 893 P.2d 376, 111 Nev. Adv. Rep. 51, 1995 Nev. LEXIS 40 (Nev. 1995).

The seminal Nevada authority on the procuring agent defense is Roy v. State, 87 Nev. 517, 489 P.2d 1158, 1971 Nev. LEXIS 464 (1971). In Roy, the Supreme Court held that it is fundamental that a person cannot be found guilty of being a “seller” of narcotics when he or she has not acted for the supplier, but rather, acted solely for the recipient. Love v. State, 111 Nev. 545, 893 P.2d 376, 111 Nev. Adv. Rep. 51, 1995 Nev. LEXIS 40 (Nev. 1995).

The district court’s failure to instruct as to the burden of proof with respect to the procuring agent defense constituted reversible error. To hold otherwise would allow the State to effectively eliminate the procuring agent defense by charging a defendant solely with possession under the trafficking statute, even when the facts of a case clearly revealed a sale occurred or was contemplated. Love v. State, 111 Nev. 545, 893 P.2d 376, 111 Nev. Adv. Rep. 51, 1995 Nev. LEXIS 40 (Nev. 1995).

The procuring agent defense legally does not apply if the defendant already had possession of the drugs at the time the buyer requested delivery of them. Love v. State, 111 Nev. 545, 893 P.2d 376, 111 Nev. Adv. Rep. 51, 1995 Nev. LEXIS 40 (Nev. 1995).

Procuring agent defense was inapplicable to trafficking charges, regardless of the theory the defendant was charged under i.e., sale, manufacturer, delivery, or actual and constructive possession, NRS 453.3385; a defendant could not use the procuring agent defense to defend against a charge of trafficking in a controlled substance based on a possession theory.  Adam v. State, 127 Nev. 601, 261 P.3d 1063, 127 Nev. Adv. Rep. 54, 2011 Nev. LEXIS 65 (Nev. 2011).

Evidence found during warrantless automobile search.

Evidence of drug trafficking found during a warrantless search of defendant’s automobile was properly admitted because the search was supported by probable cause and was performed concurrent with defendant’s roadside arrest for an unrelated charge. Fletcher v. State, 115 Nev. 425, 990 P.2d 192, 115 Nev. Adv. Rep. 59, 1999 Nev. LEXIS 77 (Nev. 1999).

Although a search of defendant’s vehicle was not warranted as a search incident to defendant’s arrest for trafficking in a controlled substance in violation of subdivisions (2) and (3) of this section, the police had probable cause to believe that the vehicle was used to transport illegal drugs pursuant to  NRS 179.1165(2)(d) and  453.301(5); therefore, the district court correctly denied defendant’s motion to suppress since police would have inevitably discovered the evidence in a later inventory search.  Camacho v. State, 119 Nev. 395, 75 P.3d 370, 119 Nev. Adv. Rep. 47, 2003 Nev. LEXIS 51 (Nev. 2003).

1. Unlawful Use of a Controlled Substance NRS 453.411

It is unlawful for a person knowingly to use or be under the influence of a controlled substance except in accordance with a lawfully issued prescription. The penalty for a violation of NRS 453.411 is a misdemeanor.

Driver suspected of intoxication may be forced to give blood or urine sample. The implied consent theory, however, does not apply in cases where suspects are arrested on the street. Conviction for driving under the influence requires a specific minimum concentration of blood alcohol, whereas a conviction for being under the influence of a controlled substance requires only a trace amount of the substance or its metabolites. Further, the dissipation rate for cocaine and its metabolites appears significantly slower than the dissipation rate for alcohol. Finally, intoxicated pedestrians do not present the serious public safety hazard that results from drunk drivers. State v. Jones, 111 Nev. 774, 895 P.2d 643, 111 Nev. Adv. Rep. 76, 1995 Nev. LEXIS 73 (Nev. 1995).

Double Jeopardy.

Defendant’s convictions for misdemeanor driving under the influence (DUI) and felony being under the influence of a controlled substance did not violate defendant’s double jeopardy rights because, where the State secured a conviction for a per se violation, the State was proving a separate element than the under-the-influence element; the level of marijuana in defendant’s blood would cause a person to be impaired in addition to proving that he had the threshold statutory amount for a DUI

Penalties :
Penalties for common drug offenses vary by the schedule of the drug. Different classes of drugs/schedules have different penalties. Schedule 1 controlled substances are more harshly punished than Schedule 5 controlled substances: