Nevada "Drug Possession for Purpose of Sale" Laws
(NRS 453.337 & NRS 453.338)
Explained by Las Vegas Criminal Defense Attorneys

In Nevada, it is a serious felony not only to sell drugs but also to possess controlled substances with the intent to sell.  In addition to carrying prison time and high fines, having any drug or narcotics conviction on your criminal record may cause future employers to pass you over for a job.

Our Las Vegas criminal defense lawyers have been successful in getting our clients' "possession with intent to sell" charges lessened to misdemeanors or even dismissed. Keep reading to learn the law and defenses, including the possibility of doing probation in lieu of prison.

If you are looking for information about marijuana laws specifically, go directly to our section on: Nevada marijuana laws. The article below addresses every controlled substance except cannabis.

Definition of Drug Possession for Purpose of Sale in Nevada  (NRS 453.337 & NRS 453.338)

The legal definition of "unlawful possession for sale" in Las Vegas, Nevada states it is unlawful for a person to possess for the purpose of sale controlled substances, narcotics and illegal drugs. This offense goes by several different names, including:

  • PCSWITS in Las Vegas (short for possession of a controlled substance with intent to sell in Las Vegas)
  • possession for purpose of sale of controlled substances/ narcotics in Las Vegas
  • possession for sale of drugs in Las Vegas

This law punishes people for drug sales that have not even taken place yet, and possibly might never take place. Consequently, it is very common for innocent people to get falsely accused of possession of controlled substances with intent to sell in Nevada.

NRS 453.337 & NRS 453.338 make it a crime to possess either illicit drugs (like heroin in Nevada) or prescription drugs, with the intent to sell them. Henderson Nevada criminal defense lawyer Michael Becker offers an example:

"If you have a prescription for Lunesta in Laughlin, it's still a violation of Laughlin 'possession for purpose of sale' law to intend to sell your Lunesta pills to anyone else.  Even though you may lawfully possess the pills yourself because you have a prescription, no one else can buy them because they were specifically prescribed to you."

How this law is prosecuted:

In order for a jury to convict someone of possessing controlled substances for the purpose of sale in Nevada, the state has to prove beyond a reasonable doubt that:

  1. That the defendant was in possession of drugs, and
  2. That the defendant was intending to sell them.

Both these "elements" are explained below:

1) In possession of drugs:

You may be considered "in possession" of narcotics in Las Vegas if you either:

  1. carry the drugs on your person (called "actual possession"), or
  2. keep the drugs in a location you have access to, such as your home, car, or a storage facility (called "constructive possession")

You can also share drug possession with one or more other people (called "joint possession") by purchasing the drugs together and/or storing them in a common area.

Note that drug possession is not necessarily synonymous with ownership in Nevada.  For example, if John steals Sam's Percocet pills and intends to sell them, John would still be considered "in possession" of the Percocets even though they belong to Sam.

2) Intent to sell drugs:

"Intent to sell" is an intangible concept that is hard to prove in Nevada.  Unlike an actual drug sale which you can witness with your eyes, intent is all about mental state.

In order to determine whether someone is possessing drugs with the intent to sell in Nevada, police look for specific items and circumstances that may indicate a sale was forthcoming such as the following:

  • The drugs are stored evenly in separate containers or baggies.
Here, the state's rationale is that no one who possessed drugs purely for personal use would bother keeping them in pre-measured quantities in separate containers.  But a criminal defense attorney might argue that the suspect is only a recreational user who had bought the drugs that way.
  • The suspect is carrying a weapon
Since narcotics dealing is dangerous, a Las Vegas prosecutor would argue that having a gun or other weapon suggests that the suspect was intending to engage in a drug sale.  But a defense attorney would counter that he was simply exercising their 2nd Amendment right to bear arms.
  • The suspect is not high or carrying drug paraphernalia
Prosecutors might argue that someone found to be in possession of drugs but who is not high and who does not have syringes or crack pipes is probably a drug seller rather than just a drug user.  It's a silly argument because not all recreational users are high or carry paraphernalia all the time.
  • A large amount of drugs were found
In this case, the state would reason that no one would possess large quantities of drugs if they were merely a recreational user.  This rationale overlooks the possibility that the suspect had "stocked up" on the drugs and fully intends to keep them on hand for solely personal use.
  • The suspect is carrying a lot of cash, especially small bills
When cops find someone with drugs and a lot of small bills, they're inclined to think the money was collected in the course of selling drugs.  In reality the suspect may just like carrying cash around or intends to use the small bills to buy from different sellers, not sell to different buyers.
  • The suspect was found in an area known for drug dealing
When cops see someone carrying drugs in an area where narcotics dealing is known to take place, they may assume that the person is there with intent to sell.  But another scenario is that the person was just in the wrong place at the wrong time or that the person is there to buy narcotics, not sell narcotics.

Note that this crime does not punish someone for intending to purchase a drug in Nevada.  Depending on the circumstances, intention to buy drugs may be prosecuted under Nevada drug trafficking laws.
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Defenses to PCSWITS (possession of a controlled substance with intent to sell) in Nevada

The Nevada crime of narcotic possession for purpose of sale lends itself to several very effective legal defenses. These could result in your case being dropped or reduced to a lesser offense.  Below are just some of the strategies your attorney may use when fighting these charges:

The drugs belong to someone else

If your lawyer can raise doubt as to whether you in possession of drugs in the first place, then you have a good defense to a Las Vegas charge of drug possession with intent to sell.  Henderson criminal defense lawyer Michael Becker illustrates this defense with an example:

"Your roommate is dealing PCP from your Searchlight Nevada house without your knowledge.  On a tip, the police raid your house, find PCP in your living room and arrest you both.  As long as you were unaware that the PCP was there, then you did not commit the Searchlight crime of possession of a controlled substance with intent to sell."

Lack of intent to sell drugs

If you did not intend to sell drugs, then you're not liable for the Las Vegas offense of narcotics possession for purpose of sale.  If your criminal defense lawyer can show that you only had the drugs for your own personal use, then you face charges just for the lesser crime of simple possession of a controlled substance in Nevada.

The police violated your rights

Pursuant to the 4th Amendment, cops must follow strict guidelines when searching people, vehicles, and homes.  So if for example cops unlawfully execute a search warrant in Nevada because they lacked probable cause, then evidence found from the search usually can't be used against you.

In order to ask a judge to throw out evidence from an improper search, your attorney will file a Nevada motion to suppress evidence with the court. This document outlines all the reasons why the police violated your rights when they looked for and seized the narcotics in your PCSWITS case.

If the judge decides to grant your suppression motion and excludes all the evidence from the unlawful search, chances are your Nevada possession for sale charges will then be dropped.  Without evidence, the state won't have enough proof to carry on with the prosecution.

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Penalties for Drug Possession for Purpose of Sale in Nevada

The standard punishment for a conviction of possession of a controlled substance with intent to sell in Nevada turns on1) what "schedule" the drug is classified as, and 2) the defendant's criminal history. Probation with no prison time may be possible for a first-time offense.

When the drug is a schedule I or schedule II or contains flunitrazepam or gamma-hydroxybutyrate (NRS 453.337):

Common controlled substances that fall under these categories in Nevada are:

  • GHB (I)
  • Methamphetamine (II)
  • PCP (I)
  • Ecstasy (I)
  • Hydrocodone (I)
  • Heroin (I)
  • Ritalin (II)
  • Cocaine (II)

If the narcotic in your case is the schedule I drug of marijuana, the following penalties don't apply.  Go to our article on the Nevada crime of marijuana possession for sale to learn the penalties.

A first offense of drug possession for sale is a category D felony in Nevada.  Probation may be possible, but otherwise the judge may impose:

A second offense of drug possession for sale is a category C felony in Nevada, carrying:

A third offense of drug possession for sale is a category B felony in Nevada, carrying:

When the drug is a schedule III, schedule IV or schedule V (NRS 453.338)

Typical controlled substances that fall under these categories in Nevada are:

  • Anabolic steroids (III)
  • Ambien (IV)
  • Rohypnol (IV)
  • Valium (IV)
  • Robitussin AC (V)
  • Codeine (no more than 200 milligrams per 100 grams) (V)
  • Xanax (IV)
  • Demerol (no more than 2.5 milligrams and not less than 25 milligrams of atropine sulfate per dosage unit) (V)
  • Opium (no more than 100 milligrams per 100 grams) (V)

A first or second offense of possession of narcotics with intent to sell in Las Vegas is a category D felony in Nevada.  Probation may be possible for a first offense, but otherwise the possible sentence consists of:

A third or subsequent offense of possession of narcotics with intent to sell in Las Vegas is a category C felony in Nevada, carrying:

Possession of drug paraphernalia with intent to sell:

Possession of drug paraphernalia for purpose of sale in Las Vegas is a separate crime from drug possession with intent to sell.  It's prosecuted as a category E felony in Nevada, carrying:

Note that a first-time conviction is often probationable.  For further information about Las Vegas paraphernalia crimes, go to our article on the topic: Drug Paraphernalia Offenses in Nevada

Getting a PCSWITS charge reduced to a misdemeanor:

If the prosecutor in your case is unwilling to dismiss your charges, there's still a chance that your attorney can negotiate a plea bargain whereby your case is reduced from a felony down to a Nevada misdemeanor narcotics charge.  The standard sentence often includes:

  • rehab,
  • probation,
  • community service,
  • an order to avoid arrest again while the case is ongoing, and
  • a suspended jail sentence (so you would do no time as long as you don't violate a term of the plea bargain)

Related Drug Crimes:

Possession:

The crime of possession of controlled substances in Las Vegas NV makes it an offense to have actual, constructive or joint possession of drugs that you do not intend to sell. A first offense of straight narcotics possession can often be dismissed by completing Las Vegas Drug Court.

Sales:

The crime of selling controlled substances in Las Vegas NV is meant to punish someone for having made a drug sale in Nevada. Penalties can be harsher than if you were charged for just intending to make a sale, but probation may be possible if it's your first offense.

Trafficking:

The crime of trafficking in controlled substances in Las Vegas NV is prosecuted in cases where someone is suspected of selling, manufacturing or shipping large quantities of controlled substances. A conviction may include no prison time if the defendant helps the police to investigate other criminal activity.

Under the Influence:

Being "high" can get you arrested for being under the influence of controlled substances in Las Vegas NV even if there're no drugs on your person. Depending on the drug and your criminal history, a conviction might result in only a fine and/or probation.

Drug Possession for Sale and Immigration:

Nearly all drug crimes are deportable and inadmissible offenses, so any alien who is been charged with a drug crime needs good criminal representation to try to modify the charges to a non-removable offense. Learn more about deportable offenses in Nevada. Learn more about inadmissible offenses in Nevada. And learn more about post-conviction-relief for aliens in Nevada.

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Additional Resources

Arrested for possessing narcotics with intent to sell them?  Call us for help . . .

To schedule a free phone meeting with our Las Vegas criminal defense attorneys, call us at 702-DEFENSE (702-333-3673) today. We draw on our decades of experience to try to get your Nevada possession for sale charges reduced or even thrown out so your criminal record stays clean.

¿Habla español? Obtener información acerca de las leyes de Nevada sobre posesión de drogas para la venta.

 

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