Ā§712-1243Ā  Promoting a dangerous drug in the
third degree.Ā  (1)Ā  A person commits the offense of promoting a dangerous
drug in the third degree if the person knowingly possesses any dangerous drug
in any amount.



(2)Ā  Promoting a dangerous drug in the third
degree is a class C felony. [L 1972, c 9, pt of Ā§1; am L 1975, c 163, Ā§6(e);
gen ch 1993; am L 1996, c 308, Ā§4; am L 2002, c 161, Ā§8; am L 2004, c 44, Ā§7]



 



Case Notes



 



Ā  Possession of "any" amount is sufficient; usable
quantity standard not applicable, but de minimus doctrine may apply.Ā  61 H.
291, 602 P.2d 933.



Ā  Though evidence insufficient to convict defendant of
promoting a dangerous drug in the first degree, purged trial record contained
substantial and admissible evidence that defendant knowingly possessed cocaine
"in any amount".Ā  80 H. 382, 910 P.2d 695.



Ā  Where defendantā€™s possession of .001 grams of methamphetamine
did not threaten the harm sought to be prevented by this section, trial court
did not abuse discretion by determining that amount of methamphetamine was de
minimus under Ā§702-236.Ā  92 H. 130, 988 P.2d 195.



Ā  Where prosecution adduced substantial evidence that the
cocaine residue in the pipe was visible to the naked eye and could be scraped
out and smoked again, trial court did not abuse its discretion in ruling that
defendant's infraction of this section was not de minimus within the meaning of
Ā§702-236.Ā  93 H. 279, 1 P.3d 281.



Ā  Where the defense failed to adduce any evidence or present
any argument with respect to the attendant circumstances, it failed to meet its
burden of providing evidence to support a finding that the conduct alleged
"did not actually cause or threaten the harm or evil sought to be
prevented by this section or did so only to an extent too trivial to warrant the
condemnation of conviction"; thus trial court did not err in finding that
defendant's alleged conduct did not constitute a de minimis infraction.Ā  99 H.
75, 53 P.3d 214.



Ā  In light of defendant's burden to prove that defendant's
conduct constituted a de minimis infraction and trial court's finding that pipe
residue contained a sufficient amount of methamphetamine to produce a
pharmacological effect, which was supported by officer's testimony that amount
recovered from defendant's pipe may have been an amount sufficient to be
"used" by someone, trial court did not abuse discretion in refusing
to dismiss charge of promoting a dangerous drug in the third degree.Ā  100 H.
498, 60 P.3d 899.



Ā  Trial court properly sentenced defendant as a repeat offender
based on defendant's conviction of promoting a dangerous drug in the third
degree, an enumerated class C felony under Ā§706-606.5.Ā  106 H. 146, 102 P.3d
1044.



Ā  As Ā§706-622.5 is ameliorative in its intent and effect and
its application would neither be detrimental nor materially disadvantageous to
the defendant, retrospective application of Ā§706-622.5 as established by Act
161, L 2002, was not prohibited; where defendant did not qualify as a
first-time drug offender, the trial court did not err in sentencing defendant
pursuant to subsection (3) (2002).Ā  107 H. 215, 112 P.3d 69.



Ā  Notwithstanding that trial court had authority to sentence
defendant pursuant to subsection (3) (2002), it did not have the discretion to
consider the alleged conduct of which defendant was acquitted in sentencing
defendant; trial court thus erred in factoring its belief that defendant was
dealing drugs into its imposition of the two maximum statutorily prescribed
mandatory minimum terms of imprisonment.Ā  107 H. 215, 112 P.3d 69.



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



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



Ā  In subsection (3), the word "convicted" means
"found guilty" and not "found guilty and sentenced".Ā  93 H.
389 (App.), 4 P.3d 523.



Ā  Looking at defendant's conduct and attendant circumstances
regarding commission of the offense, including possession of smoking device,
smoked residue, and depleted drug contraband of 0.004 grams of methamphetamine
by one engaged in shoplifting, court could not conclude that under Ā§702-236,
defendant's conduct "did not actually cause or threaten the harm or evil
sought to be prevented by this section, or did so only to an extent too trivial
to warrant condemnation of conviction".Ā  97 H. 247 (App.), 35 P.3d 764.