46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO CRIMINAL LAW; PROVIDING PENALTIES FOR POSSESSION OF CERTAIN DRUG PRECURSORS; AMENDING AND ENACTING SECTIONS OF THE DRUG PRECURSOR ACT.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 30-31B-1 NMSA 1978 (being Laws 1989, Chapter 177, Section 1) is amended to read:

"30-31B-1. SHORT TITLE.--[Sections 1 through 18 of this act] Chapter 30, Article 31B NMSA 1978 may be cited as the "Drug Precursor Act"."

Section 2. Section 30-31B-2 NMSA 1978 (being Laws 1989, Chapter 177, Section 2) is amended to read:

"30-31B-2. DEFINITIONS.--As used in the Drug Precursor Act:

A. "administer" means the direct application of a controlled substance by any means to the body of a patient or research subject by a practitioner or his agent;

B. "agent" includes an authorized person who acts on behalf of a manufacturer, distributor or dispenser. "Agent" does not include a common or contract carrier, public warehouseman or employee of the carrier or warehouseman;

C. "board" means the board of pharmacy;

D. "bureau" means the bureau of narcotics and dangerous drugs of the United States department of justice or its successor agency;

E. "controlled substance" means a drug or substance listed in Schedules I through V of the Controlled Substances Act or regulations adopted thereto;

F. "controlled substance analog" means a substance other than a controlled substance that has a chemical structure substantially similar to that of a controlled substance in Schedule I, II, III, IV or V or which was specifically designed to produce effects substantially similar to that of controlled substances in Schedule I, II, III, IV or V. Examples of chemical classes in which controlled substance analogs are found include, but are not limited to, the following:

(1) phenethylamines;

(2) N-substituted piperidines;

(3) morphinans;

(4) ecogonines;

(5) quinazolinones;

(6) substituted indoles; and

(7) arylcycloalkylamines.

Specifically excluded from the definition of "controlled substance analog" are those substances which are generally recognized as safe and effective within the meaning of the Federal Food, Drug and Cosmetic Act or have been manufactured, distributed or possessed in conformance with the provisions of an approved new drug application or an exemption for investigational use within the meaning of Section 505 of the Federal Food, Drug and Cosmetic Act;

G. "deliver" means the actual, constructive or attempted transfer from one person to another of a controlled substance or controlled substance analog, whether or not there is an agency relationship;

H. "dispense" means to deliver a controlled substance to an ultimate user or research subject pursuant to the lawful order of a practitioner, including the administering, prescribing, packaging, labeling or compounding necessary to prepare the controlled substance for that delivery;

I. "dispenser" means a practitioner who dispenses and includes hospitals, pharmacies and clinics where controlled substances are dispensed;

J. "distribute" means to deliver other than by administering or dispensing a controlled substance or controlled substance analog;

K. "drug" means substances recognized as drugs in the official United States pharmacopoeia, official homeopathic pharmacopoeia of the United States, official national formulary or any respective supplement to these publications. "Drug" does not include devices or their components, parts or accessories;

L. "drug precursor" means any substance, material, compound, mixture or preparation listed in Section [3 of the Drug Precursor Act] 30-31B-3 NMSA 1978 or regulations adopted thereto or any of their salts or isomers. "Drug precursor" specifically excludes those substances, materials, compounds, mixtures or preparations which are prepared for dispensing pursuant to a prescription or over-the-counter distribution as a substance which is generally recognized as safe and effective within the meaning of the Federal Food, Drug and Cosmetic Act or have been manufactured, distributed or possessed in conformance with the provisions of an approved new drug application or an exemption for investigational use within the meaning of Section 505 of the Federal Food, Drug and Cosmetic Act;

M. "immediate precursor" means a substance which is a compound commonly used or produced primarily as an immediate chemical intermediary used in the manufacture of a controlled substance, the control of which is necessary to prevent, curtail or limit the manufacture of controlled substances;

N. "iodine matrix" means iodine at concentrations greater than one and one-half percent by weight in a matrix or solution;

[N.] O. "license" means a license issued by the board to manufacture, possess, transfer or transport a drug precursor;

[O.] P. "manufacture" means the production, preparation, compounding, conversion or processing of a drug precursor by extraction from substances of natural origin, independently by means of chemical synthesis or by a combination of extraction and chemical synthesis and includes any packaging or repackaging of the substance or labeling or relabeling of its container, except that this term does not include the preparation or compounding of a controlled substance by a practitioner:

(1) as an incident to his administering or dispensing of a controlled substance in the course of his professional practice; or

(2) by his agent under his supervision for the purpose of or as an incident to research, teaching or chemical analysis and not for sale;

[P.] Q. "person" includes an individual, sole proprietorship, partnership, corporation, association, the state or any political subdivision of the state or other legal entity;

[Q.] R. "possession" means to actively or constructively exercise dominion over;

[R.] S. "practitioner" means a physician, dentist, veterinarian or other person licensed to prescribe and administer drugs which are subject to the Controlled Substances Act;

[S.] T. "prescription" means an order given individually for the person for whom is prescribed a controlled substance, either directly from the prescriber to the pharmacist or indirectly by means of a written order signed by the prescriber and in accordance with the Controlled Substances Act or regulations adopted thereto; and

[T.] U. "transfer" means the sale, possession with intent to sell, barter or giving away of a controlled substance."

Section 3. Section 30-31B-3 NMSA 1978 (being Laws 1989, Chapter 177, Section 3) is amended to read:

"30-31B-3. DRUG PRECURSORS LIST.--Any substance, material, compound, mixture or preparation of the following substances or any of their salts or isomers are subject to regulation by the board and to the requirements of the Drug Precursor Act:

A. 1-phenylcyclohexylamine;

B. 1-piperidinocyclohexanecarbonitrile;

C. ephedrine;

D. [psuedoephedrine] pseudoephedrine;

E. methylamine;

F. methylformamide;

G. phenylacetic acid; [and]

H. phenylacetone;

I. red phosphorus;

J. anhydrous ammonia;

K. iodine matrix; and

L. crystal iodine."

Section 4. A new section of the Drug Precursor Act is enacted to read:

"[NEW MATERIAL] EPHEDRINE--PSEUDOEPHEDRINE--POSSESSION PROHIBITED--EXCEPTIONS.--

A. A person shall not possess more than six grams of ephedrine or pseudoephedrine.

B. The provisions of Subsection A of this section do not apply to a:

(1) hospital;

(2) physician;

(3) pharmacist;

(4) retail distributor;

(5) wholesaler;

(6) manufacturer;

(7) warehouseman;

(8) common carrier; or

(9) person engaged in the regular course of conducting a lawful business.

C. A person who violates the provisions of Subsection A of this section is guilty of a misdemeanor.

D. For the purposes of this section, the amount of ephedrine or pseudoephedrine shall be determined by weighing the pure form of ephedrine or pseudoephedrine and shall not include fillers, inert ingredients, capsules or containers."

Section 5. A new section of the Drug Precursor Act is enacted to read:

"[NEW MATERIAL] ANHYDROUS AMMONIA--POSSESSION PROHIBITED--EXCEPTIONS.--

A. A person shall not possess any amount of anhydrous ammonia.

B. The provisions of Subsection A of this section do not apply to a:

(1) person who is actively operating land used for agricultural purposes;

(2) retail distributor;

(3) wholesaler;

(4) manufacturer;

(5) warehouseman;

(6) common carrier; or

(7) person engaged in the regular course of conducting a lawful business.

C. A person who violates the provisions of Subsection A of this section is guilty of a misdemeanor."

Section 6. A new section of the Drug Precursor Act is enacted to read:

"[NEW MATERIAL] RED PHOSPHORUS--POSSESSION PROHIBITED--EXCEPTIONS.--

A. A person shall not possess any amount of red phosphorus.

B. The provisions of Subsection A of this section do not apply to a:

(1) retail distributor;

(2) wholesaler;

(3) manufacturer;

(4) warehouseman;

(5) common carrier;

(6) manufacturer of striking surfaces for matches;

(7) manufacturer of flame retardants;

(8) manufacturer of explosives or fireworks who is licensed pursuant to federal law;

(9) chemistry laboratory operated or maintained by a public or private secondary school;

(10) chemistry laboratory operated or maintained by a public or private institution of higher learning; or

(11) person engaged in the regular course of conducting a lawful business.

C. A person who violates the provisions of Subsection A of this section is guilty of a misdemeanor."

Section 7. A new section of the Drug Precursor Act is enacted to read:

"[NEW MATERIAL] CRYSTAL IODINE--IODINE MATRIX--POSSESSION PROHIBITED--EXCEPTIONS.--

A. A person shall not possess more than two ounces of crystal iodine or iodine matrix.

B. The provisions of Subsection A of this section do not apply to a:

(1) person in possession of a valid prescription issued by a physician;

(2) retail distributor;

(3) wholesaler;

(4) manufacturer;

(5) warehouseman;

(6) common carrier;

(7) licensed veterinarian;

(8) licensed physician;

(9) licensed pharmacist;

(10) farrier;

(11) hospital; or

(12) person engaged in the regular course of conducting a lawful business.

C. A person who violates the provisions of Subsection A of this section is guilty of a misdemeanor."

Section 8. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2003.