0001|                            HOUSE BILL 210
    |
0002|     43rd legislature - STATE OF NEW MEXICO - first session, 1997
    |
0003|                            INTRODUCED BY
    |
0004|                            RITA G. GETTY
    |
0005|     
    |
0006|                                   
    |
0007|     
    |
0008|                                   
    |
0009|     
    |
0010|                                AN ACT
    |
0011|     RELATING TO CRIMINAL OFFENSES; AMENDING THE CONTROLLED
    |
0012|     SUBSTANCES ACT TO PROVIDE FOR DRUG-FREE RESIDENTIAL ZONES;
    |
0013|     ENHANCING CRIMINAL PENALTIES.
    |
0014|     
    |
0015|     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
    |
0016|          Section 1.  Section 30-31-2 NMSA 1978 (being Laws 1972,
    |
0017|     Chapter 84, Section 2, as amended) is amended to read:
    |
0018|          "30-31-2.  DEFINITIONS.--As used in the Controlled
    |
0019|     Substances Act:
    |
0020|               A.  "administer" means the direct application of a
    |
0021|     controlled substance by any means to the body of a patient or
    |
0022|     research subject by a practitioner or his agent;
    |
0023|               B.  "agent" includes an authorized person who acts
    |
0024|     on behalf of a manufacturer, distributor or dispenser.  It does
    |
0025|     not include a common or contract carrier, public warehouseman
    |
0001|     or employee of the carrier or warehouseman;
    |
0002|               C.  "board" means the board of pharmacy;
    |
0003|               D.  "bureau" means the bureau of narcotics and
    |
0004|     dangerous drugs, United States department of justice, or its
    |
0005|     successor agency;
    |
0006|               E.  "controlled substance" means a drug or substance
    |
0007|     listed in Schedules I through V of the Controlled Substances
    |
0008|     Act or regulations adopted thereto;
    |
0009|               F.  "counterfeit substance" means a controlled
    |
0010|     substance that bears the unauthorized trademark, trade name,
    |
0011|     imprint, number, device or other identifying mark or likeness
    |
0012|     of a manufacturer, distributor or dispenser other than the
    |
0013|     person who in fact manufactured, distributed or dispensed the
    |
0014|     controlled substance;
    |
0015|               G.  "deliver" means the actual, constructive or
    |
0016|     attempted transfer from one person to another of a controlled
    |
0017|     substance or controlled substance analog, whether or not there
    |
0018|     is an agency relationship;
    |
0019|               H.  "dispense" means to deliver a controlled
    |
0020|     substance to an ultimate user or research subject pursuant to
    |
0021|     the lawful order of a practitioner, including the
    |
0022|     administering, prescribing, packaging, labeling or compounding
    |
0023|     necessary to prepare the controlled substance for that
    |
0024|     delivery;
    |
0025|               I.  "dispenser" means a practitioner who dispenses
    |
0001|     and includes hospitals, pharmacies and clinics where controlled
    |
0002|     substances are dispensed;
    |
0003|               J.  "distribute" means to deliver other than by
    |
0004|     administering or dispensing a controlled substance or
    |
0005|     controlled substance analog;
    |
0006|               K.  "drug" or "substance" means substances
    |
0007|     recognized as drugs in the official United States
    |
0008|     pharmacopoeia, official homeopathic pharmacopoeia of the United
    |
0009|     States <u>or</u> official national formulary or any respective
    |
0010|     supplement to <s>[these]</s> <u>those</u> publications.  It does not
    |
0011|     include devices or their components, parts or accessories;
    |
0012|               L.  "hashish" means the resin extracted from any
    |
0013|     part of marijuana, whether growing or not, and every compound,
    |
0014|     manufacture, salt, derivative, mixture or preparation of such
    |
0015|     resins;
    |
0016|               M.  "manufacture" means the production, preparation,
    |
0017|     compounding, conversion or processing of a controlled substance
    |
0018|     or controlled substance analog by extraction from substances of
    |
0019|     natural origin or independently by means of chemical synthesis
    |
0020|     or by a combination of extraction and chemical synthesis and
    |
0021|     includes any packaging or repackaging of the substance or
    |
0022|     labeling or relabeling of its container, except that this term
    |
0023|     does not include the preparation or compounding of a controlled
    |
0024|     substance:
    |
0025|                    (1)  by a practitioner as an incident to his
    |
0001|     administering or dispensing of a controlled substance in the
    |
0002|     course of his professional practice; or
    |
0003|                    (2)  by a practitioner, or by his agent under
    |
0004|     his supervision, for the purpose of or as an incident to
    |
0005|     research, teaching or chemical analysis and not for sale;
    |
0006|               N.  "marijuana" means all parts of the plant
    |
0007|     Cannabis, including any and all varieties, species and
    |
0008|     subspecies of the genus Cannabis, whether growing or not, the
    |
0009|     seeds thereof and every compound, manufacture, salt,
    |
0010|     derivative, mixture or preparation of the plant or its seeds. 
    |
0011|     It does not include the mature stalks of the plant, hashish,
    |
0012|     tetrahydrocannabinols extracted or isolated from marijuana,
    |
0013|     fiber produced from the stalks, oil or cake made from the seeds
    |
0014|     of the plant, any other compound, manufacture, salt, deriva-
    |
0015|     
    |
0016|     tive, mixture or preparation of the mature stalks, fiber, oil
    |
0017|     or cake, or the sterilized seed of the plant that is incapable
    |
0018|     of germination;
    |
0019|               O.  "narcotic drug" means any of the following,
    |
0020|     whether produced directly or indirectly by extraction from
    |
0021|     substances of vegetable origin or independently by means of
    |
0022|     chemical synthesis or by a combination of extraction and
    |
0023|     chemical synthesis:
    |
0024|                    (1)  opium and opiate and any salt, compound,
    |
0025|     derivative or preparation of opium or opiate;
    |
0001|                    (2)  any salt, compound, isomer, derivative or
    |
0002|     preparation that is a chemical equivalent of any of the
    |
0003|     substances referred to in Paragraph (1) of this subsection,
    |
0004|     except the isoquinoline alkaloids of opium;
    |
0005|                    (3)  opium poppy and poppy straw, including all
    |
0006|     parts of the plant of the species Papaver somniferum L. except
    |
0007|     its seeds; or
    |
0008|                    (4)  coca leaves and any salt, compound,
    |
0009|     derivative or preparation of coca leaves, any salt, compound,
    |
0010|     isomer, derivative or preparation that is a chemical equivalent
    |
0011|     of any of these substances except decocainized coca leaves or
    |
0012|     extractions of coca leaves that do not contain cocaine or
    |
0013|     <s>[ecgonine]</s> <u>ecgonine</u>;
    |
0014|               P.  "opiate" means any substance having an
    |
0015|     addiction-forming or addiction-sustaining liability similar to
    |
0016|     morphine or being capable of conversion into a drug having
    |
0017|     addiction-forming or addiction-sustaining liability.  Opiate
    |
0018|     does not include, unless specifically designated as controlled
    |
0019|     under Section 30-31-5 NMSA 1978, the dextrorotatory isomer of
    |
0020|     3-methoxy-n-methylmorphinan and its salts (dextromethorphan). 
    |
0021|     "Opiate" does include its racemic and levorotatory forms;
    |
0022|               Q.  "person" includes a partnership, corporation,
    |
0023|     association, institution, political subdivision, government
    |
0024|     agency or other legal entity;
    |
0025|               R.  "practitioner" means a physician, dentist,
    |
0001|     veterinarian or other person licensed to prescribe and
    |
0002|     administer drugs that are subject to the Controlled Substances
    |
0003|     Act;
    |
0004|               S.  "prescription" means an order given individually
    |
0005|     for the person for whom is prescribed a controlled substance,
    |
0006|     either directly from the prescriber to the pharmacist or
    |
0007|     indirectly by means of a written order signed by the
    |
0008|     prescriber, <s>[and]</s> in accordance with the Controlled
    |
0009|     Substances Act or regulations adopted thereto;
    |
0010|               T.  "scientific investigator" means a person
    |
0011|     registered to conduct research with controlled substances in
    |
0012|     the course of his professional practice or research and
    |
0013|     includes analytical laboratories;
    |
0014|               U.  "ultimate user" means a person who lawfully
    |
0015|     possesses a controlled substance for his own use or for the use
    |
0016|     of a member of his household or for administering to an animal
    |
0017|     under the care, custody and control of the person or by a
    |
0018|     member of his household;
    |
0019|               V.  "drug paraphernalia" means all equipment,
    |
0020|     products and materials of any kind that are used, intended for
    |
0021|     use or designed for use in planting, propagating, cultivating,
    |
0022|     growing, harvesting, manufacturing, compounding, converting,
    |
0023|     producing, processing, preparing, testing, analyzing,
    |
0024|     packaging, repackaging, storing, containing, concealing,
    |
0025|     injecting, ingesting, inhaling or otherwise introducing into
    |
0001|     the human body a controlled substance or controlled substance
    |
0002|     analog in violation of the Controlled Substances Act.  It
    |
0003|     includes <s>[but is not limited to]</s>:
    |
0004|                    (1)  kits used, intended for use or designed
    |
0005|     for use in planting, propagating, cultivating, growing or
    |
0006|     harvesting any species of plant that is a controlled substance
    |
0007|     or controlled substance analog or from which a controlled
    |
0008|     substance can be derived;
    |
0009|                    (2)  kits used, intended for use or designed
    |
0010|     for use in manufacturing, compounding, converting, producing,
    |
0011|     processing or preparing controlled substances or controlled
    |
0012|     substance analogs;
    |
0013|                    (3)  isomerization devices used, intended for
    |
0014|     use or designed for use in increasing the potency of any
    |
0015|     species of plant that is a controlled substance;
    |
0016|                    (4)  testing equipment used, intended for use
    |
0017|     or designed for use in identifying or in analyzing the
    |
0018|     strength, effectiveness or purity of controlled substances or
    |
0019|     controlled substance analogs;
    |
0020|                    (5)  scales or balances used, intended for use
    |
0021|     or designed for use in weighing or measuring controlled
    |
0022|     substances or controlled substance analogs;
    |
0023|                    (6)  diluents and adulterants, such as quinine
    |
0024|     hydrochloride, mannitol, mannite dextrose and lactose, used,
    |
0025|     intended for use or designed for use in cutting controlled
    |
0001|     substances or controlled substance analogs;
    |
0002|                    (7)  separation gins and sifters used, intended
    |
0003|     for use or designed for use in removing twigs and seeds from or
    |
0004|     in otherwise cleaning and refining marijuana;
    |
0005|                    (8)  blenders, bowls, containers, spoons and
    |
0006|     mixing devices used, intended for use or designed for use in
    |
0007|     compounding controlled substances or controlled substance
    |
0008|     analogs;
    |
0009|                    (9)  capsules, balloons, envelopes and other
    |
0010|     containers used, intended for use or designed for use in
    |
0011|     packaging small quantities of controlled substances or
    |
0012|     controlled substance analogs;
    |
0013|                    (10)  containers and other objects used,
    |
0014|     intended for use or designed for use in storing or concealing
    |
0015|     controlled substances or controlled substance analogs;
    |
0016|                    (11)  hypodermic syringes, needles and other
    |
0017|     objects used, intended for use or designed for use in
    |
0018|     parenterally injecting controlled substances or controlled
    |
0019|     substance analogs into the human body;
    |
0020|                    (12)  objects used, intended for use or
    |
0021|     designed for use in ingesting, inhaling or otherwise
    |
0022|     introducing marijuana, cocaine, hashish or hashish oil into the
    |
0023|     human body, such as:
    |
0024|                         (a)  metal, wooden, acrylic, glass,
    |
0025|     stone, plastic or ceramic pipes, with or without screens,
    |
0001|     permanent screens, hashish heads or punctured metal bowls;
    |
0002|                         (b)  water pipes;
    |
0003|                         (c)  carburetion tubes and devices;
    |
0004|                         (d)  smoking and carburetion masks;
    |
0005|                         (e)  roach clips, meaning objects used to
    |
0006|     hold burning material, such as a marijuana cigarette, that has
    |
0007|     become too small to hold in the hand;
    |
0008|                         (f)  miniature cocaine spoons and cocaine
    |
0009|     vials;
    |
0010|                         (g)  chamber pipes;
    |
0011|                         (h)  carburetor pipes;
    |
0012|                         (i)  electric pipes;
    |
0013|                         (j)  air-driven pipes;
    |
0014|                         (k)  chilams;
    |
0015|                         (l)  bongs; or
    |
0016|                         (m)  ice pipes or chillers; and
    |
0017|                    (13)  in determining whether an object is drug
    |
0018|     paraphernalia, a court or other authority should consider, in
    |
0019|     addition to all other logically relevant factors, the
    |
0020|     following:
    |
0021|                         (a)  statements by the owner or by anyone
    |
0022|     in control of the object concerning its use;
    |
0023|                         (b)  the proximity of the object, in time
    |
0024|     and space, to a direct violation of the Controlled Substances
    |
0025|     Act or any other law relating to controlled substances or
    |
0001|     controlled substance analogs;
    |
0002|                         (c)  the proximity of the object to
    |
0003|     controlled substances or controlled substance analogs;
    |
0004|                         (d)  the existence of any residue of a
    |
0005|     controlled substance or controlled substance analog on the
    |
0006|     object;
    |
0007|                         (e)  instructions, written or oral,
    |
0008|     provided with the object concerning its use;
    |
0009|                         (f)  descriptive materials accompanying
    |
0010|     the object that explain or depict its use;
    |
0011|                         (g)  the manner in which the object is
    |
0012|     displayed for sale; and
    |
0013|                         (h)  expert testimony concerning its use;
    |
0014|               W.  "controlled substance analog" means a substance
    |
0015|     other than a controlled substance that has a chemical structure
    |
0016|     substantially similar to that of a controlled substance in
    |
0017|     Schedule I, II, III, IV or V or that was specifically designed
    |
0018|     to produce effects substantially similar to that of controlled
    |
0019|     substances in Schedule I, II, III, IV or V.  Examples of
    |
0020|     chemical classes in which controlled substance analogs are
    |
0021|     found include <s>[but are not limited to]</s> the following:
    |
0022|                    (1)  phenethylamines;
    |
0023|                    (2)  N-substituted piperidines;
    |
0024|                    (3)  morphinans;
    |
0025|                    (4) <s>[ecogonines]</s> <u>ecgonines</u>;
    |
0001|                    (5)  quinazolinones;
    |
0002|                    (6)  substituted indoles; and
    |
0003|                    (7)  arylcycloalkylamines.
    |
0004|          Specifically excluded from the definition of "controlled
    |
0005|     substance analog" are those substances that are generally
    |
0006|     recognized as safe and effective within the meaning of the
    |
0007|     Federal Food, Drug and Cosmetic Act or have been manufactured,
    |
0008|     distributed or possessed in conformance with the provisions of
    |
0009|     an approved new drug application or an exemption for
    |
0010|     investigational use within the meaning of Section 505 of the
    |
0011|     Federal Food, Drug and Cosmetic Act; 
    |
0012|               X.  "human consumption" includes application,
    |
0013|     injection, inhalation, ingestion or any other manner of
    |
0014|     introduction whatsoever; <s>[and]</s>
    |
0015|               Y.  "drug-free school zone" means any public <u>or
</u>    |
<u></u>0016| <u>    private</u> school or property <s>[that is]</s> used for <s>[public]</s>
    |
0017|     school purposes and the area within one thousand feet of the
    |
0018|     school property line <s>[but it does not mean any post-secondary
</s>    |
<s></s>0019| <s>    school]</s>; <u>and</u>
    |
0020|               <u>Z.  "drug-free residential zone" means any property
</u>    |
<u></u>0021| <u>    residentially zoned or used as a residence and the area within
</u>    |
<u></u>0022| <u>    one thousand feet of the property line of the property.</u>"
    |
0023|          Section 2.  Section 30-31-20 NMSA 1978 (being Laws 1972,
    |
0024|     Chapter 84, Section 20, as amended) is amended to read:
    |
0025|          "30-31-20.  TRAFFICKING CONTROLLED SUBSTANCES--VIOLATION.-
    |
0001|     -
    |
0002|               A.  As used in the Controlled Substances Act,
    |
0003|     "traffic" means the:
    |
0004|                    (1)  manufacture of any controlled substance
    |
0005|     enumerated in Schedules I through V or any controlled substance
    |
0006|     analog as defined in Subsection W of Section 30-31-2 NMSA 1978;
    |
0007|                    (2)  distribution, sale, barter or giving away
    |
0008|     of any controlled substance enumerated in Schedule I or II that
    |
0009|     is a narcotic drug or a controlled substance analog of a
    |
0010|     controlled substance enumerated in Schedule I or II that is a
    |
0011|     narcotic drug; or
    |
0012|                    (3)  possession with intent to distribute any
    |
0013|     controlled substance enumerated in Schedule I or II that is a
    |
0014|     narcotic drug or controlled substance analog of a controlled
    |
0015|     substance enumerated in Schedule I or II that is a narcotic
    |
0016|     drug.
    |
0017|               B.  Except as authorized by the Controlled
    |
0018|     Substances Act, it is unlawful for any person to intentionally
    |
0019|     traffic.  Any person who violates this subsection is:
    |
0020|                    (1)  for the first offense, guilty of a second
    |
0021|     degree felony and shall be sentenced pursuant to the provisions
    |
0022|     of Section 31-18-15 NMSA 1978; and
    |
0023|                    (2)  for the second and subsequent offenses,
    |
0024|     guilty of a first degree felony and shall be sentenced pursuant
    |
0025|     to the provisions of Section 31-18-15 NMSA 1978.
    |
0001|               C.  Any person who knowingly violates <u>Paragraph (1)
</u>    |
<u></u>0002| <u>    of</u> Subsection B of this section within a drug-free school zone
    |
0003|     <s>[excluding private property residentially zoned or used
</s>    |
<s></s>0004| <s>    primarily as a residence]</s> <u>or a drug-free residential zone</u> is
    |
0005|     guilty of a first degree felony and shall be sentenced pursuant
    |
0006|     to the provisions of Section 31-18-15 NMSA 1978."
    |
0007|          Section 3.  Section 30-31-22 NMSA 1978 (being Laws 1972,
    |
0008|     Chapter 84, Section 22, as amended) is amended to read:
    |
0009|          "30-31-22.  CONTROLLED OR COUNTERFEIT SUBSTANCES--
    |
0010|     DISTRIBUTION PROHIBITED.--
    |
0011|               A.  Except as authorized by the Controlled
    |
0012|     Substances Act, it is unlawful for any person to intentionally
    |
0013|     distribute or possess with intent to distribute a controlled
    |
0014|     substance or a controlled substance analog except a substance
    |
0015|     enumerated in Schedule I or II that is a narcotic drug or a
    |
0016|     controlled substance analog of a controlled substance
    |
0017|     enumerated in Schedule I or II that is a narcotic drug.  Any
    |
0018|     person who violates this subsection with respect to:
    |
0019|                    (1)  marijuana is:
    |
0020|                         (a) <u>except as provided in Subparagraph
</u>    |
<u></u>0021| <u>    (c) of this paragraph,</u> for the first offense, guilty of a
    |
0022|     fourth degree felony and shall be sentenced pursuant to the
    |
0023|     provisions of Section 31-18-15 NMSA 1978;
    |
0024|                         (b)  for the second and subsequent
    |
0025|     offenses, guilty of a third degree felony and shall be
    |
0001|     sentenced pursuant to the provisions of Section 31-18-15 NMSA
    |
0002|     1978;
    |
0003|                         (c)  for the first offense, if more than
    |
0004|     one hundred pounds is possessed with intent to distribute or
    |
0005|     distributed or both, guilty of a third degree felony and shall
    |
0006|     be sentenced pursuant to the provisions of Section 31-18-15
    |
0007|     NMSA 1978; and
    |
0008|                         (d)  for the second and subsequent
    |
0009|     offenses, if more than one hundred pounds is possessed with
    |
0010|     intent to distribute or distributed or both, guilty of a second
    |
0011|     degree felony and shall be sentenced pursuant to the provisions
    |
0012|     of Section 31-18-15 NMSA 1978;
    |
0013|              (2)  any other controlled substance enumerated in
    |
0014|     Schedule I, II, III or IV or a controlled substance analog of a
    |
0015|     controlled substance enumerated in Schedule I, II, III or IV
    |
0016|     except a substance enumerated in Schedule I or II that is a
    |
0017|     narcotic drug or a controlled substance analog of a controlled
    |
0018|     substance enumerated in Schedule I or II that is a narcotic
    |
0019|     drug, is:
    |
0020|                  (a)  for the first offense, guilty of a third
    |
0021|     degree felony and shall be sentenced pursuant to the provisions
    |
0022|     of Section 31-18-15 NMSA 1978; and
    |
0023|                  (b)  for the second and subsequent offenses,
    |
0024|     guilty of a second degree felony and shall be sentenced
    |
0025|     pursuant to the provisions of Section 31-18-15 NMSA 1978; and
    |
0001|              (3)  a controlled substance enumerated in
    |
0002|     Schedule V or a controlled substance analog of a controlled
    |
0003|     substance enumerated in Schedule V is guilty of a misdemeanor
    |
0004|     and shall be punished by a fine of not less than one hundred
    |
0005|     dollars ($100) or more than five hundred dollars ($500) or by
    |
0006|     imprisonment for a definite term not less than one hundred
    |
0007|     eighty days but less than one year, or both.
    |
0008|          B.  Except as authorized by the Controlled Substances
    |
0009|     Act, it is unlawful for any person to intentionally create or
    |
0010|     deliver, or possess with intent to deliver, a counterfeit
    |
0011|     substance.  Any person who violates this subsection with
    |
0012|     respect to:
    |
0013|              (1)  a counterfeit substance enumerated in
    |
0014|     Schedule I, II, III or IV is guilty of a fourth degree felony
    |
0015|     and shall be sentenced pursuant to the provisions of Section
    |
0016|     31-18-15 NMSA 1978; and
    |
0017|              (2)  a counterfeit substance enumerated in
    |
0018|     Schedule V is guilty of a petty misdemeanor and shall be
    |
0019|     punished by a fine of not more than one hundred dollars ($100)
    |
0020|     or by imprisonment for a definite term not to exceed six
    |
0021|     months, or both.
    |
0022|          C.  Any person who knowingly violates Subsection A or
    |
0023|     B of this section while within a drug-free school zone
    |
0024|     <s>[excluding private property residentially zoned or used
</s>    |
<s></s>0025| <s>    primarily as a residence]</s> <u>or a drug-free residential zone</u>
    |
0001|     with respect to:
    |
0002|              (1)  marijuana is:
    |
0003|                  (a) <u>except as provided in Subparagraph (c)
</u>    |
<u></u>0004| <u>    of this paragraph,</u> for the first offense, guilty of a third
    |
0005|     degree felony and shall be sentenced pursuant to the provisions
    |
0006|     of Section 31-18-15 NMSA 1978;
    |
0007|                  (b)  for the second and subsequent offenses,
    |
0008|     guilty of a second degree felony and shall be sentenced
    |
0009|     pursuant to the provisions of Section 31-18-15 NMSA 1978;
    |
0010|                  (c)  for the first offense, if more than one
    |
0011|     hundred pounds is possessed with intent to distribute or
    |
0012|     distributed or both, guilty of a second degree felony and shall
    |
0013|     be sentenced pursuant to the provisions of Section 31-18-15
    |
0014|     NMSA 1978; and
    |
0015|                  (d)  for the second and subsequent offenses,
    |
0016|     if more than one hundred pounds is possessed with intent to
    |
0017|     distribute or distributed or both, guilty of a first degree
    |

0018|     felony and shall be sentenced pursuant to the provisions of
    |
0019|     Section 31-18-15 NMSA 1978;
    |
0020|              (2)  any other controlled substance enumerated in
    |
0021|     Schedule I, II, III or IV or a controlled substance analog of a
    |
0022|     controlled substance enumerated in Schedule I, II, III or IV
    |
0023|     except a substance enumerated in Schedule I or II that is a
    |
0024|     narcotic drug or a controlled substance analog of a controlled
    |
0025|     substance <s>[emumerated]</s> <u>enumerated</u> in Schedule I or II that
    |
0001|     is a narcotic drug, is:
    |
0002|                  (a)  for the first offense, guilty of a
    |
0003|     second degree felony and shall be sentenced pursuant to the
    |
0004|     provisions of Section 31-18-15 NMSA 1978; and
    |
0005|                  (b)  for the second and subsequent offenses,
    |
0006|     guilty of a first degree felony and shall be sentenced pursuant
    |
0007|     to the provisions of Section 31-18-15 NMSA 1978;
    |
0008|              (3)  a controlled substance enumerated in
    |
0009|     Schedule V or a controlled substance analog of a controlled
    |
0010|     substance enumerated in Schedule V is guilty of a fourth degree
    |
0011|     felony and shall be sentenced pursuant to the provisions of
    |
0012|     Section 31-18-15 NMSA 1978; and
    |
0013|              (4)  the intentional creation, delivery or
    |
0014|     possession with the intent to deliver:
    |
0015|                  (a)  a counterfeit substance enumerated in
    |
0016|     Schedule I, II, III or IV is guilty of a third degree felony
    |
0017|     and shall be sentenced pursuant to the provisions of Section
    |
0018|     31-18-15 NMSA 1978; and
    |
0019|                  (b)  a counterfeit substance enumerated in
    |
0020|     Schedule V is guilty of a misdemeanor and shall be punished by
    |
0021|     a fine of not less than one hundred dollars ($100) nor more
    |
0022|     than five hundred dollars ($500) or by imprisonment for a
    |
0023|     definite term not less than one hundred eighty days but less
    |
0024|     than one year, or both.
    |
0025|          D.  Notwithstanding <u>the provisions of</u> Subsection A
    |
0001|     of this section, distribution of a small amount of marijuana
    |
0002|     for no remuneration shall be treated as provided in Paragraph
    |
0003|     (3) of Subsection B of Section 30-31-23 NMSA 1978."
    |
0004|                              
    |