HB 179

Page 1

AN ACT

RELATING TO CONTROLLED SUBSTANCES; REVISING THE CRIMINAL

OFFENSE OF TRAFFICKING CONTROLLED SUBSTANCES TO INCLUDE THE

DISTRIBUTION AND SALE OF METHAMPHETAMINE, ITS SALTS AND

ISOMERS; EXPANDING THE DEFINITION OF A DRUG-FREE SCHOOL ZONE

TO INCLUDE PRIVATE AND PAROCHIAL SCHOOLS AND PRIVATE PROPERTY

WITHIN ONE THOUSAND FEET OF A SCHOOL.

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

Section 1. Section 30-31-2 NMSA 1978 (being Laws 1972,

Chapter 84, Section 2, as amended) is amended to read:

"30-31-2. DEFINITIONS.--As used in the Controlled

Substances 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 the practitioner's

agent;

B. "agent" includes an authorized person who acts

on behalf of a manufacturer, distributor or dispenser. It

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 narcotic and dangerous drug

section of the criminal division of the United States

department of justice, or its successor agency;

HB 179

Page 2

E. "controlled substance" means a drug or

substance listed in Schedules I through V of the Controlled

Substances Act or rules adopted thereto;

F. "counterfeit substance" means a controlled

substance that bears the unauthorized trademark, trade name,

imprint, number, device or other identifying mark or likeness

of a manufacturer, distributor or dispenser other than the

person who in fact manufactured, distributed or dispensed the

controlled substance;

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;

HB 179

Page 3

K. "drug" or "substance" means substances

recognized as drugs in the official United States

pharmacopoeia, official homeopathic pharmacopoeia of the

United States or official national formulary or any respective

supplement to those publications. It does not include devices

or their components, parts or accessories;

L. "hashish" means the resin extracted from any

part of marijuana, whether growing or not, and every compound,

manufacture, salt, derivative, mixture or preparation of such

resins;

M. "manufacture" means the production,

preparation, compounding, conversion or processing of a

controlled substance or controlled substance analog by

extraction from substances of natural origin or 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:

(1) by a practitioner as an incident to

administering or dispensing a controlled substance in the

course of the practitioner's professional practice; or

(2) by a practitioner, or by the

practitioner's agent under the practitioner's supervision, for

the purpose of or as an incident to research, teaching or

HB 179

Page 4

chemical analysis and not for sale;

N. "marijuana" means all parts of the plant

cannabis, including any and all varieties, species and

subspecies of the genus Cannabis, whether growing or not, the

seeds thereof and every compound, manufacture, salt,

derivative, mixture or preparation of the plant or its seeds.

It does not include the mature stalks of the plant, hashish,

tetrahydrocannabinols extracted or isolated from marijuana,

fiber produced from the stalks, oil or cake made from the

seeds of the plant, any other compound, manufacture, salt,

derivative, mixture or preparation of the mature stalks,

fiber, oil or cake, or the sterilized seed of the plant that

is incapable of germination;

O. "narcotic drug" means any of the following,

whether produced directly or indirectly by extraction from

substances of vegetable origin or independently by means of

chemical synthesis or by a combination of extraction and

chemical synthesis:

(1) opium and opiate and any salt, compound,

derivative or preparation of opium or opiate;

(2) any salt, compound, isomer, derivative

or preparation that is a chemical equivalent of any of the

substances referred to in Paragraph (1) of this subsection,

except the isoquinoline alkaloids of opium;

(3) opium poppy and poppy straw, including

HB 179

Page 5

all parts of the plant of the species Papaver somniferum L.

except its seeds; or

(4) coca leaves and any salt, compound,

derivative or preparation of coca leaves, any salt, compound,

isomer, derivative or preparation that is a chemical

equivalent of any of these substances except decocainized coca

leaves or extractions of coca leaves that do not contain

cocaine or ecgonine;

P. "opiate" means any substance having an

addiction-forming or addiction-sustaining liability similar to

morphine or being capable of conversion into a drug having

addiction-forming or addiction-sustaining liability. "Opiate"

does not include, unless specifically designated as controlled

under Section 30-31-5 NMSA 1978, the dextrorotatory isomer of

3-methoxy-n-methylmorphinan and its salts, dextromethorphan.

"Opiate" does include its racemic and levorotatory forms;

Q. "person" means an individual, partnership,

corporation, association, institution, political subdivision,

government agency or other legal entity;

R. "practitioner" means a physician, doctor of

oriental medicine, dentist, physician assistant, certified

nurse practitioner, clinical nurse specialist, certified

nurse-midwife, prescribing psychologist, veterinarian,

pharmacist, pharmacist clinician or other person licensed or

certified to prescribe and administer drugs that are subject

HB 179

Page 6

to the Controlled Substances Act;

S. "prescription" means an order given

individually for the person for whom is prescribed a

controlled substance, either directly from a licensed

practitioner or the practitioner's agent to the pharmacist,

including by means of electronic transmission, or indirectly

by means of a written order signed by the prescriber, bearing

the name and address of the prescriber, the prescriber's

license classification, the name and address of the patient,

the name and quantity of the drug prescribed, directions for

use and the date of issue and in accordance with the

Controlled Substances Act or rules adopted thereto;

T. "scientific investigator" means a person

registered to conduct research with controlled substances in

the course of the person's professional practice or research

and includes analytical laboratories;

U. "ultimate user" means a person who lawfully

possesses a controlled substance for the person's own use or

for the use of a member of the person's household or for

administering to an animal under the care, custody and control

of the person or by a member of the person's household;

V. "drug paraphernalia" means all equipment,

products and materials of any kind that are used, intended for

use or designed for use in planting, propagating, cultivating,

growing, harvesting, manufacturing, compounding, converting,

HB 179

Page 7

producing, processing, preparing, testing, analyzing,

packaging, repackaging, storing, containing, concealing,

injecting, ingesting, inhaling or otherwise introducing into

the human body a controlled substance or controlled substance

analog in violation of the Controlled Substances Act. It

includes:

(1) kits used, intended for use or designed

for use in planting, propagating, cultivating, growing or

harvesting any species of plant that is a controlled substance

or controlled substance analog or from which a controlled

substance can be derived;

(2) kits used, intended for use or designed

for use in manufacturing, compounding, converting, producing,

processing or preparing controlled substances or controlled

substance analogs;

(3) isomerization devices used, intended for

use or designed for use in increasing the potency of any

species of plant that is a controlled substance;

(4) testing equipment used, intended for use

or designed for use in identifying or in analyzing the

strength, effectiveness or purity of controlled substances or

controlled substance analogs;

(5) scales or balances used, intended for

use or designed for use in weighing or measuring controlled

substances or controlled substance analogs;

HB 179

Page 8

(6) diluents and adulterants, such as

quinine hydrochloride, mannitol, mannite dextrose and lactose,

used, intended for use or designed for use in cutting

controlled substances or controlled substance analogs;

(7) separation gins and sifters used,

intended for use or designed for use in removing twigs and

seeds from, or in otherwise cleaning and refining, marijuana;

(8) blenders, bowls, containers, spoons and

mixing devices used, intended for use or designed for use in

compounding controlled substances or controlled substance

analogs;

(9) capsules, balloons, envelopes and other

containers used, intended for use or designed for use in

packaging small quantities of controlled substances or

controlled substance analogs;

(10) containers and other objects used,

intended for use or designed for use in storing or concealing

controlled substances or controlled substance analogs;

(11) hypodermic syringes, needles and other

objects used, intended for use or designed for use in

parenterally injecting controlled substances or controlled

substance analogs into the human body;

(12) objects used, intended for use or

designed for use in ingesting, inhaling or otherwise

introducing marijuana, cocaine, hashish or hashish oil into

HB 179

Page 9

the human body, such as:

(a) metal, wooden, acrylic, glass,

stone, plastic or ceramic pipes, with or without screens,

permanent screens, hashish heads or punctured metal bowls;

(b) water pipes;

(c) carburetion tubes and devices;

(d) smoking and carburetion masks;

(e) roach clips, meaning objects used

to hold burning material, such as a marijuana cigarette, that

has become too small to hold in the hand;

(f) miniature cocaine spoons and

cocaine vials;

(g) chamber pipes;

(h) carburetor pipes;

(i) electric pipes;

(j) air-driven pipes;

(k) chilams;

(l) bongs; or

(m) ice pipes or chillers; and

(13) in determining whether an object is

drug paraphernalia, a court or other authority should

consider, in addition to all other logically relevant factors,

the following:

(a) statements by the owner or by

anyone in control of the object concerning its use;

HB 179

Page 10

(b) the proximity of the object, in

time and space, to a direct violation of the Controlled

Substances Act or any other law relating to controlled

substances or controlled substance analogs;

(c) the proximity of the object to

controlled substances or controlled substance analogs;

(d) the existence of any residue of a

controlled substance or controlled substance analog on the

object;

(e) instructions, written or oral,

provided with the object concerning its use;

(f) descriptive materials accompanying

the object that explain or depict its use;

(g) the manner in which the object is

displayed for sale; and

(h) expert testimony concerning its

use;

W. "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 that 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 the following:

HB 179

Page 11

(1) phenethylamines;

(2) N-substituted piperidines;

(3) morphinans;

(4) ecgonines;

(5) quinazolinones;

(6) substituted indoles; and

(7) arylcycloalkylamines.

Specifically excluded from the definition of "controlled

substance analog" are those substances that 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;

X. "human consumption" includes application,

injection, inhalation, ingestion or any other manner of

introduction;

Y. "drug-free school zone" means a public school,

parochial school or private school or property that is used

for a public, parochial or private school purpose and the area

within one thousand feet of the school property line, but it

does not mean any post-secondary school; and

Z. "valid practitioner-patient relationship" means

a professional relationship, as defined by the practitioner's

HB 179

Page 12

licensing board, between the practitioner and the patient."

Section 2. Section 30-31-20 NMSA 1978 (being Laws 1972,

Chapter 84, Section 20, as amended) is amended to read:

"30-31-20. TRAFFICKING CONTROLLED SUBSTANCES--

VIOLATION.--

A. As used in the Controlled Substances Act,

"traffic" means the:

(1) manufacture of a controlled substance

enumerated in Schedules I through V or a controlled substance

analog as defined in Subsection W of Section 30-31-2 NMSA

1978;

(2) distribution, sale, barter or giving

away of:

(a) a controlled substance enumerated

in Schedule I or II that is a narcotic drug;

(b) a controlled substance analog of a

controlled substance enumerated in Schedule I or II that is a

narcotic drug; or

(c) methamphetamine, its salts, isomers

and salts of isomers; or

(3) possession with intent to distribute:

(a) a controlled substance enumerated

in Schedule I or II that is a narcotic drug;

(b) controlled substance analog of a

controlled substance enumerated in Schedule I or II that is a

HB 179

Page 13

narcotic drug; or

(c) methamphetamine, its salts, isomers

and salts of isomers.

B. Except as authorized by the Controlled

Substances Act, it is unlawful for a person to intentionally

traffic. A person who violates this subsection is:

(1) for the first offense, guilty of a

second degree felony and shall be sentenced pursuant to the

provisions of Section 31-18-15 NMSA 1978; and

(2) for the second and subsequent offenses,

guilty of a first degree felony and shall be sentenced

pursuant to the provisions of Section 31-18-15 NMSA 1978.

C. A person who knowingly violates Subsection B of

this section within a drug-free school zone excluding private

property residentially zoned or used primarily as a residence

is guilty of a first degree felony and shall be sentenced

pursuant to the provisions of Section 31-18-15 NMSA 1978."

Section 3. Section 30-31-22 NMSA 1978 (being Laws 1972,

Chapter 84, Section 22, as amended) is amended to read:

"30-31-22. CONTROLLED OR COUNTERFEIT SUBSTANCES--

DISTRIBUTION PROHIBITED.--

A. Except as authorized by the Controlled

Substances Act, it is unlawful for a person to intentionally

distribute or possess with intent to distribute a controlled

substance or a controlled substance analog except a substance

HB 179

Page 14

enumerated in Schedule I or II that is a narcotic drug, a

controlled substance analog of a controlled substance

enumerated in Schedule I or II that is a narcotic drug or

methamphetamine, its salts, isomers and salts of isomers. A

person who violates this subsection with respect to:

(1) marijuana is:

(a) for the first offense, guilty of a

fourth degree felony and shall be sentenced pursuant to the

provisions of Section 31-18-15 NMSA 1978;

(b) for the second and subsequent

offenses, guilty of a third degree felony and shall be

sentenced pursuant to the provisions of Section 31-18-15 NMSA

1978;

(c) for the first offense, if more than

one hundred pounds is possessed with intent to distribute or

distributed or both, guilty of a third degree felony and shall

be sentenced pursuant to the provisions of Section 31-18-15

NMSA 1978; and

(d) for the second and subsequent

offenses, if more than one hundred pounds is possessed with

intent to distribute or distributed or both, guilty of a

second degree felony and shall be sentenced pursuant to the

provisions of Section 31-18-15 NMSA 1978;

(2) any other controlled substance enumerated

in Schedule I, II, III or IV or a controlled substance analog

HB 179

Page 15

of a controlled substance enumerated in Schedule I, II, III or

IV except a substance enumerated in Schedule I or II that is a

narcotic drug, a controlled substance analog of a controlled

substance enumerated in Schedule I or II that is a narcotic

drug or methamphetamine, its salts, isomers and salts of

isomers, is:

(a) for the first offense, guilty of a

third degree felony and shall be sentenced pursuant to the

provisions of Section 31-18-15 NMSA 1978; and

(b) for the second and subsequent offenses,

guilty of a second degree felony and shall be sentenced

pursuant to the provisions of Section 31-18-15 NMSA 1978; and

(3) a controlled substance enumerated in

Schedule V or a controlled substance analog of a controlled

substance enumerated in Schedule V is guilty of a misdemeanor

and shall be punished by a fine of not less than one hundred

dollars ($100) or more than five hundred dollars ($500) or by

imprisonment for a definite term not less than one hundred

eighty days but less than one year, or both.

B. It is unlawful for a person to distribute gamma

hydroxybutyric acid or flunitrazepam to another person without

that person's knowledge and with intent to commit a crime

against that person, including criminal sexual penetration.

For the purposes of this subsection, "without that person's

knowledge" means the person is unaware that a substance with

HB 179

Page 16

the ability to alter that person's ability to appraise conduct

or to decline participation in or communicate unwillingness to

participate in conduct is being distributed to that person.

Any person who violates this subsection is:

(1) for the first offense, guilty of a third

degree felony and shall be sentenced pursuant to the

provisions of Section 31-18-15 NMSA 1978; and

(2) for the second and subsequent offenses,

guilty of a second degree felony and shall be sentenced

pursuant to the provisions of Section 31-18-15 NMSA 1978.

C. Except as authorized by the Controlled Substances

Act, it is unlawful for a person to intentionally create or

deliver, or possess with intent to deliver, a counterfeit

substance. A person who violates this subsection with respect

to:

(1) a counterfeit substance enumerated in

Schedule I, II, III or IV is guilty of a fourth degree felony

and shall be sentenced pursuant to the provisions of Section

31-18-15 NMSA 1978; and

(2) a counterfeit substance enumerated in

Schedule V is guilty of a petty misdemeanor and shall be

punished by a fine of not more than one hundred dollars ($100)

or by imprisonment for a definite term not to exceed six

months, or both.

D. A person who knowingly violates Subsection A or C

HB 179

Page 17

of this section while within a drug-free school zone with

respect to:

(1) marijuana is:

(a) for the first offense, guilty of a

third degree felony and shall be sentenced pursuant to the

provisions of Section 31-18-15 NMSA 1978;

(b) for the second and subsequent offenses,

guilty of a second degree felony and shall be sentenced

pursuant to the provisions of Section 31-18-15 NMSA 1978;

(c) for the first offense, if more than one

hundred pounds is possessed with intent to distribute or

distributed or both, guilty of a second degree felony and

shall be sentenced pursuant to the provisions of Section

31-18-15 NMSA 1978; and

(d) for the second and subsequent offenses,

if more than one hundred pounds is possessed with intent to

distribute or distributed or both, guilty of a first degree

felony and shall be sentenced pursuant to the provisions of

Section 31-18-15 NMSA 1978;

(2) any other controlled substance enumerated

in Schedule I, II, III or IV or a controlled substance analog

of a controlled substance enumerated in Schedule I, II, III or

IV except a substance enumerated in Schedule I or II that is a

narcotic drug, a controlled substance analog of a controlled

substance enumerated in Schedule I or II that is a narcotic

HB 179

Page 18

drug or methamphetamine, its salts, isomers and salts of

isomers, is:

(a) for the first offense, guilty of a

second degree felony and shall be sentenced pursuant to the

provisions of Section 31-18-15 NMSA 1978; and

(b) for the second and subsequent offenses,

guilty of a first degree felony and shall be sentenced

pursuant to the provisions of Section 31-18-15 NMSA 1978;

(3) a controlled substance enumerated in

Schedule V or a controlled substance analog of a controlled

substance enumerated in Schedule V is guilty of a fourth

degree felony and shall be sentenced pursuant to the

provisions of Section 31-18-15 NMSA 1978; and

(4) the intentional creation, delivery or

possession with the intent to deliver:

(a) a counterfeit substance enumerated in

Schedule I, II, III or IV is guilty of a third degree felony

and shall be sentenced pursuant to the provisions of Section

31-18-15 NMSA 1978; and

(b) a counterfeit substance enumerated in

Schedule V is guilty of a misdemeanor and shall be punished by

a fine of not less than one hundred dollars ($100) nor more

than five hundred dollars ($500) or by imprisonment for a

definite term not less than one hundred eighty days but less

than one year, or both.

E. Notwithstanding the provisions of Subsection A of

this section, distribution of a small amount of marijuana for

no remuneration shall be treated as provided in Paragraph (1)

of Subsection B of Section 30-31-23 NMSA 1978."

Section 4. EFFECTIVE DATE.--The effective date of the

provisions of this act is July 1, 2006. HB 179

Page 19