13-3407

13-3407. Possession, use, administration,
acquisition, sale, manufacture or transportation of dangerous
drugs; classification

A. A person shall not knowingly:

1. Possess or use a dangerous drug.

2. Possess a dangerous drug for sale.

3. Possess equipment or chemicals, or both, for the purpose of manufacturing a
dangerous drug.

4. Manufacture a dangerous drug.

5. Administer a dangerous drug to another person.

6. Obtain or procure the administration of a dangerous drug by fraud, deceit,
misrepresentation or subterfuge.

7. Transport for sale, import into this state or offer to transport for sale or
import into this state, sell, transfer or offer to sell or transfer a dangerous drug.

B. A person who violates:

1. Subsection A, paragraph 1 of this section is guilty of a class 4 felony. Unless
the drug involved is lysergic acid diethylamide, methamphetamine, amphetamine or
phencyclidine or the person was previously convicted of a felony offense or a violation
of this section or section 13-3408, the court on motion of the state, considering the
nature and circumstances of the offense, for a person not previously convicted of any
felony offense or a violation of this section or section 13-3408 may enter judgment of
conviction for a class 1 misdemeanor and make disposition accordingly or may place the
defendant on probation in accordance with chapter 9 of this title and refrain from
designating the offense as a felony or misdemeanor until the probation is successfully
terminated. The offense shall be treated as a felony for all purposes until the court
enters an order designating the offense a misdemeanor.

2. Subsection A, paragraph 2 of this section is guilty of a class 2 felony.

3. Subsection A, paragraph 3 of this section is guilty of a class 3 felony, except
that if the offense involved methamphetamine, the person is guilty of a class 2 felony.

4. Subsection A, paragraph 4 of this section is guilty of a class 2 felony.

5. Subsection A, paragraph 5 of this section is guilty of a class 2 felony.

6. Subsection A, paragraph 6 of this section is guilty of a class 3 felony.

7. Subsection A, paragraph 7 of this section is guilty of a class 2 felony.

C. Except as provided in subsection E of this section, a person who is convicted of
a violation of subsection A, paragraph 1, 3 or 6 and who has not previously been
convicted of any felony or who has not been sentenced pursuant to section 13-703, section
13-704, section 13-706, subsection A, section 13-708, subsection D or any other law
making the convicted person ineligible for probation is eligible for probation.

D. Except as provided in subsection E of this section, if the aggregate amount of
dangerous drugs involved in one offense or all of the offenses that are consolidated for
trial equals or exceeds the statutory threshold amount, a person who is convicted of a
violation of subsection A, paragraph 2, 5 or 7 of this section is not eligible for
suspension of sentence, probation, pardon or release from confinement on any basis until
the person has served the sentence imposed by the court, the person is eligible for
release pursuant to section 41-1604.07 or the sentence is commuted.

E. If the person is convicted of a violation of subsection A, paragraph 2, 3, 4 or
7 of this section and the drug involved is methamphetamine, the person shall be sentenced
pursuant to section 13-709.03, subsections A or B.

F. A person who is convicted of a violation of subsection A, paragraph 4 of this
section or subsection A, paragraph 2, 3 or 7 of this section involving methamphetamine is
not eligible for suspension of sentence, probation, pardon or release from confinement on
any basis until the person has served the sentence imposed by the court, the person is
eligible for release pursuant to section 41-1604.07 or the sentence is commuted.

G. If a person is convicted of a violation of subsection A, paragraph 5 of this
section, if the drug is administered without the other person's consent, if the other
person is under eighteen years of age and if the drug is flunitrazepam, gamma hydroxy
butrate or ketamine hydrochloride, the convicted person is not eligible for suspension of
sentence, probation, pardon or release from confinement on any basis until the person has
served the sentence imposed by the court, the person is eligible for release pursuant to
section 41-1604.07 or the sentence is commuted.

H. In addition to any other penalty prescribed by this title, the court shall order
a person who is convicted of a violation of this section to pay a fine of not less than
one thousand dollars or three times the value as determined by the court of the dangerous
drugs involved in or giving rise to the charge, whichever is greater, and not more than
the maximum authorized by chapter 8 of this title. A judge shall not suspend any part or
all of the imposition of any fine required by this subsection.

I. A person who is convicted of a violation of this section for which probation or
release before the expiration of the sentence imposed by the court is authorized is
prohibited from using any marijuana, dangerous drug, narcotic drug or prescription-only
drug except as lawfully administered by a health care practitioner and as a condition of
any probation or release shall be required to submit to drug testing administered under
the supervision of the probation department of the county or the state department of
corrections, as appropriate, during the duration of the term of probation or before the
expiration of the sentence imposed.

J. If a person who is convicted of a violation of this section is granted
probation, the court shall order that as a condition of probation the person perform not
less than three hundred sixty hours of community restitution with an agency or
organization that provides counseling, rehabilitation or treatment for alcohol or drug
abuse, an agency or organization that provides medical treatment to persons who abuse
controlled substances, an agency or organization that serves persons who are victims of
crime or any other appropriate agency or organization.