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J.
Poisons, Drugs, and Other Controlled Substances

1. Generally

The Department of Health and Environmental Control has the responsibility of forming rules and regulations concerning all aspects of controlled substances as defined in Title 44, Chapter 53 of the 1976 Code. SLED shall have the primary responsibility of enforcing the rules of the Department pertaining to controlled substances and shall cooperate with all State and Federal agencies which have similar responsibilities.

The Department has established schedules listing certain substances which are to be controlled. The schedules have been established and divided on the criteria of: potential for abuse of the substance; possible medical use in treatment; and considerations of the effects of the use of such substances. Substances which the Department deems extremely dangerous are listed in Schedule I, less dangerous substances in Schedule II, etc. There are five such schedules found in §§44-53-190, 210, 230, 250, and 270.

The most common and important laws and penalties for violations thereof are discussed under their appropriate code section designations. For definitions of terms used in this chapter, refer to §44-53-110. Special note should be taken of §44-53-500 which describes the procedure for issuance and execution of administrative inspection warrants, and §44-53-570 which deals with service of search warrants, day or night. Also note §44-53-450 which deals with conditional discharge for first offenses under this chapter.

Chapter 53 of the 1976 Code is a complicated section which should be closely examined for final authority on all drug related matters. The following discussion of the various offenses in Chapter 53 has been simplified as much as possible so as to give an understandable overview of the subject.

AROMATIC HYDROCARBONS (GLUE SNIFFING)

Unclassified Misdemeanor Code §44-53-1110
CDR Code 0632

Elements Of The Offense:

1. That the accused did intentionally smell or inhale the fumes from any substance containing aromatic hydrocarbons, and
2. That the smelling or inhaling was done for the purpose of causing a condition of intoxication, inebriation, excitement, stupefaction, or the dulling of the brain or nervous system.

Note:

This section should not be interpreted as applying to the inhalation of any anesthesia for medical or dental purposes.

The accused must smell the substance with the intent of causing one of the conditions in "2" above. It would not be a violation if one of the conditions listed occurred as a result of merely working with or around a substance such as glue, paint thinner, or any other substance containing aromatic hydrocarbons.

Penalty:

Fine of not more than $100, or imprisonment for not more than 30 days. (§44-53-1130).

CONDITIONAL DISCHARGE FOR FIRST OFFENSE

  Code §44-53-450

A. Whenever any person who has not previously been convicted in this state or any other state for violations of laws relating to marijuana or other non-narcotic drugs (narcotic drugs are found in Schedule I (b) and (c) of §44-53-190 and Schedule II, §44-53-230) pleads guilty to or is found guilty of possession of a controlled substance (see §44-53-370), the court, without entering a judgment and with the consent of the accused, may defer further proceedings and place him on probation upon terms and conditions which the court deems appropriate. If these terms and conditions are violated, the court may enter an adjudication of guilt and proceed accordingly. Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal under this section may occur only once with respect to any person.
B. Upon dismissal or discharge under this section, the accused, if under the age of 25 at the time of the offense, may apply to the court for an order to remove from all official records any mention of his arrest and the subsequent proceedings. The effect of such an order, if granted, shall be to restore such person, in the eyes of the law, to the status he occupied before such arrest.

DISTRIBUTION TO PERSONS UNDER EIGHTEEN

Class C or E Felony Code §44-53-440
CDR Codes 293, 2363

Elements Of The Offense:

A. 1. That the accused was eighteen years of age or over, and
  2. That the accused did distribute a narcotic drug or LSD or crack cocaine to a person under eighteen years of age,

OR

B. 1. That the accused was eighteen years of age or over, and
  2. That the accused did distribute any controlled substance other than a narcotic drug or LSD to a person under eighteen years of age.

Penalty:

For violating "A" above - Fine not to exceed $30,000, or imprisonment for not more than 20 years, or both. The sentence may not be suspended and probation may not be granted.

For violating "B" above - Fine of not more than $10,000, or imprisonment for not more than 10 years, or both.

DISTRIBUTION WITHIN PROXIMITY OF SCHOOL

Class E Felony or Class C Misdemeanor Code §44-53-445
CDR Codes 107-108, 892

Elements Of The Offense:

1. That the accused did distribute, sell, purchase, manufacture, or unlawfully possess with intent to distribute a controlled substance.
2. That the offense occurred within a one-half mile radius of the grounds of a public or private elementary, middle, or secondary school; a public playground or park; a public vocational or trade school or technical educational center; or a public or private college or university.

Penalty:

Fine not to exceed $10,000, or imprisonment for not more than 10 years, or both.

When the violation involves the distribution, sale, manufacture, or possession with intent to distribute crack cocaine -Fine not to exceed $10,000 and imprisonment for not less than 10 years nor more than 15 years.

When the violation involves only the purchase of a controlled substance, including crack cocaine-Fine of not more than $1,000 or imprisonment for not more than 1 year, or both.

POSSESSION, MANUFACTURE, AND TRAFFICKING;
METHAMPHETAMINE AND COCAINE BASE

Felony

Code §44-53-375
CDR Codes 349, 368-370, 392, 450-452,
3014-3017, 3039, 3133, 3198-3200

Element Of The Offense:

1. That the accused manufactured, distributed, dispensed, delivered, purchased or possessed with the intent to distribute, dispense, OR deliver methamphetamine or cocaine base. Possession of one or more grams is prima facie evidence of a violation.

Penalty:

1st offense - fine of not more than $25,000 or imprisonment for not more than 15 years, or both.

2nd offense, or if the offender has been convicted of 1 or more offense relating to narcotic drugs - fine of not more than $50,000 or imprisonment for not less than 5 years nor more than 30 years, or both.

3rd or subsequent offense, or if the offender has been convicted of 2 or more offenses relating to narcotic drugs - fine of not more than $50,000 dollars or imprisonment for not less than 15 years nor more than 30 years, or both.

OBTAINING CERTAIN DRUGS, PREPARATIONS OR COMPOUNDS
BY FRAUD, DECEIT, ETC.

Class B Misdemeanor, Class F Felony

Code §44-53-40
CDR Codes 296-297

Elements Of The Offense:

1. That the accused did obtain, or attempt to obtain, "a drug or device as defined by §39-23-20. . ." or any pharmaceutical preparation, chemical, chemical compound restricted to sale at retail, and
2. That such substances were obtained by:
  a. fraud, deceit, misrepresentation, or subterfuge, or
  b. the forgery or alteration of a prescription, or
  c. by falsification in any manner of any record of sale required by law.
  d. the use of a false name or address, or
  e. the concealment of a material fact, or
  f. falsely assuming the title of or representing himself to be a person authorized by the laws of this State to possess such substances.

Note:

No person shall be convicted under this section unless it is shown by clear and convincing evidence that the substance obtained would not have been obtained but for the fraud, deceit, etc. practiced by the accused.

Penalty:

1st offense - Fine not to exceed $500, or imprisonment for not more than 2 years, or both.

2nd or subsequent offense - Fine of not more than $2,000 or imprisonment for not more than 5 years, or both.

POSSESSION OF CERTAIN QUANTITIES OF CONTROLLED
SUBSTANCES AS EVIDENCE OF INTENT TO DISTRIBUTE

Unclassified and Class C Misdemeanor Code §44-53-370(d)(4)
CDR Codes 182, 659
A. It shall be prima facie evidence of intent to distribute, (which violates §44-53-370(a)) for any person to possess more than:
  a.

ten grains of cocaine

  b. one hundred milligrams of alpha-or beta-eucaine
  c. four grains of opium
  d. four grains of morphine
  e. two grains of heroin
  f. one hundred milligrams of isonipecaine
  g. twenty-eight grams (1 ounce) of marijuana
  h. ten grams of hashish
  i. fifty micrograms of LSD or its compounds
  j. twenty milliliters or milligrams of gamma hydroxybutyric acid or a controlled substance analogue of gamma hydroxybutyric acid

POSSESSION OF METHAPHETAMINE OR COCAINE BASE

Class A Misdemeanor, Class E, F Felony Code §44-53-375(A)
CDR Codes 3009, 3016-3017

Elements Of The Offense:

1. That the accused possessed less than one gram of methamphetamine or cocaine base.

Penalty:

1st offense - fine of not more than $5,000 or imprisonment for not more than 3 years, or both.

2nd offense - fine of not more than $7,500 or imprisonment for not more than 5 years, or both.

3rd or subsequent offense - fine of not more than $12,500 or imprisonment for not more than 10 years, or both.

POSSESSION OF SMALL QUANTITIES OF MARIJUANA OR HASHISH

Class B or C Misdemeanor Code §44-53-370(d)(4)
CDR Codes 182, 659

Elements Of The Offense

1. That the accused possessed twenty-eight grams or less of marijuana or ten grams or less of hashish.

Penalty

1st offense - fine not less than $100 nor more than $200 or imprisonment for a term not to exceed 30 days.

2nd or subsequent offense - fine not less than $200 nor more than $1,000 or imprisonment for not more than 1 year, or both.

PROHIBITED ACTS A: POSSESSION AND DISTRIBUTION
OF CONTROLLED SUBSTANCES

Classification Dependent Upon Substance Code §44-53-370

Elements Of The Offense:

1. (a) That the accused, without authorization, did manufacture, distribute, or possess with intent to distribute, a controlled or counterfeit substance.

OR

  (b) That the accused did knowingly possess a controlled substance without authority.

Note:

A controlled substance means a drug, substance, or immediate precursor in Schedules I through V in §§44-53-190, 210, 230, 250, and 270.

A counterfeit substance is a controlled substance or its container which bears the trademark, trade name, or other identifying mark of a manufacturer or distributor so as to falsely purport to be the product of said manufacturer or distributor.

Penalty:

Penalties for violating this section are dependent on the type of substance involved and the number of offenses against the accused. Refer to this Code section for appropriate remedies for each particular case. The following are a few examples of first offense penalties for manufacture or distribution:

1. Narcotic drug or LSD: imprisonment for not more than 15 years or a fine of not more than $25,000, or both. §44-53-370(b)(1).
2. Substances, other than narcotics or LSD, in Schedule I, II, or III: imprisonment for not more than five years or a fine of not more than $5,000, or both. §44-53-370(b)(2).
3. Substances in Schedule IV: imprisonment for not more than 3 years or a fine of not more than $3,000, or both. §44-53-370(b)(3).
4. Substances in Schedule V: imprisonment for not more than 1 year or a fine of not more than $1,000, or both. §44-53-370(b)(4).

First offense penalties for simple possession of controlled substances:

1. Narcotics or LSD: imprisonment for not more than 2 years or fine of not more than $5,000, or both. §44-53-370(d)(1).
2. Substances in Schedules I through V, which are not narcotics or LSD: imprisonment for not more than 6 months or fine of not more than $1,000, or both. §44-53-370(d)(2).

PROHIBITED ACTS B: LICENSED DISTRIBUTORS

Misdemeanor Code §44-53-380
CDR Code 295

Elements Of The Offense:

1. That the accused was a licensed registrant, such as a pharmacist or drug manufacturer, (See §§44-53-280 to 44-53-360), and
2. (a) That the accused did distribute a controlled substance without a proper prescription (See §44-53-360), or
  (b) That the accused did manufacture or distribute a controlled substance which he was not authorized to dispense, or
  (c) That the accused did omit, remove, alter, or obliterate a symbol required by the Federal Controlled Substances Act or this article, or
  (d) That the accused did fail to keep or furnish any records or information required under this article (See §44-53-340), or
  (e) That the accused did refuse any inspection authorized by this article (See §44-53-500), or
  (f) That the accused did knowingly maintain any premises which were used to store illegally possessed substances or as a place for using such substances, or
  (g) That the accused failed to register to manufacture or distribute controlled substances prior to his engaging in such manufacturing or distributing. (See §44-53-280).

Penalty:

Civil fine of not more than $1,000, unless it is proved that the accused committed such violations knowingly or intentionally, in which case, imprisonment for not more than 5 years or a fine of not more than $10,000. If the accused is a corporation, it shall be subject to a civil penalty of not more than $100,000.

PROHIBITED ACTS C: DISTRIBUTION AND
MANUFACTURE VIOLATIONS

Felony Code §44-53-390
CDR Code 561

Elements Of The Offense:

1. That the accused did knowingly or intentionally do any of the following acts:
  a. distribute as a licensed registrant (example, pharmacist) a controlled substance classified in Schedules I or II (see §§44-53-190 and 44-53-210) without a proper order form. (See §44-53-350 for order form requirements).
  b. use a registration number which is fictitious, revoked, or issued to another person while manufacturing or distributing a controlled substance.
  c. illegally acquire a controlled substance by fraud or deception.
  d. fail to include material information or include false information in any reports or applications dealing with controlled substances.
  e. make or possess any instrument such as a punch or die designed to reproduce the trademark or other identifying mark of another manufacturer or distributor.

Penalty:

Fine of not more than $10,000 or imprisonment for not more than 5 years, or both. If the person convicted is a corporation, it is subject to a civil penalty of not more than $100,000.

SALE, ETC. OF MISBRANDED PACKAGE OR CONTAINER
OR DANGEROUS CAUSTIC AND CORROSIVE SUBSTANCES

Misdemeanor Code §44-53-1220
CDR Code 272

Elements Of The Offense:

1. That the accused did sell, exchange, pack, display, or offer to sell, any dangerous caustic or corrosive substance, and
2. That the dangerous substance was in a misbranded parcel, package, or container designed for household use.

Note:

Dangerous caustic or corrosive substances are listed in §44-53-1210. Included are such substances as hydrochloric acid, sulfuric acid, carbolic acid, silver nitrate, and ammonia water.

A misbranded parcel, package or container is defined in §44-53-1210. Essentially, such packages are those which do not bear a label giving the name of the substance it contains, the name and address of the manufacturer; a warning that such substances are poison, and directions for treatment in case of injury resulting from such substances.

Penalty:

Fine of not more than $100 or imprisonment for not more than 90 days, or both. See §44-53-1250.