§712-1242 - Promoting a dangerous drug in the second degree.

§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; or

(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

(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]

Case Notes

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

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.

The procuring agent defense is unavailable to a charge of
promoting a dangerous drug. 71 H. 134, 785 P.2d 941.

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.

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.

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.

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.

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.

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

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.

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

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