[§329-43.5]  Prohibited acts related to drugparaphernalia.  (a)  It is unlawful for any person to use, or to possesswith 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, orotherwise introduce into the human body a controlled substance in violation ofthis chapter.  Any person who violates this section is guilty of a class Cfelony and upon conviction may be imprisoned pursuant to section 706-660 and,if appropriate as provided in section 706-641, fined pursuant to section706-640.

(b)  It is unlawful for any person to deliver,possess with intent to deliver, or manufacture with intent to deliver, drugparaphernalia, knowing, or under circumstances where one reasonably shouldknow, 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 introduceinto the human body a controlled substance in violation of this chapter.  Anyperson who violates this section is guilty of a class C felony and uponconviction may be imprisoned pursuant to section 706-660 and, if appropriate asprovided in section 706-641, fined pursuant to section 706-640.

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

(d)  It is unlawful for any person to place inany newspaper, magazine, handbill, or other publication any advertisement,knowing, or under circumstances where one reasonably should know, that thepurpose of the advertisement, in whole or in part, is to promote the sale ofobjects designed or intended for use as drug paraphernalia.  Any person whoviolates this section is guilty of a class C felony and upon conviction may beimprisoned pursuant to section 706-660 and, if appropriate as provided insection 706-641, fined pursuant to section 706-640. [L 1988, c 259, §2]

 

Cross References

 

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

  Forfeitures, see §329-55.

 

Case Notes

 

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

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

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

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

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