NRS 453.337 & 453.338 - "Drug Possession with Intent to Sell" in Nevada

 

NRS 453.337 and NRS 453.338 are the Nevada laws that prohibit possessing controlled substances with the intent to sell them. The statute states, "[I]t is unlawful for a person to possess for the purpose of sale any controlled substance..."

Drug possession with intent to sell is a felony. Though the court may grant probation instead of prison for a first-time conviction.

Prosecutors may reduce the charges if they cannot prove the drugs were meant to be sold. And if the police found the drugs through an illegal search, the case may get dismissed completely.

In this article, our Las Vegas criminal defense attorneys answer frequently-asked-questions about possessing drugs with the intention to sell in Nevada:

cocaine (NRS 453.337 and NRS 453.338)
Possessing drugs with intent to sell them is a felony in Nevada under NRS 453.337 and NRS 453.338.

1. What is the definition of "possession for sale" in Nevada?

Possession for sale is having a controlled substance with the intention of selling it. Therefore, NRS 453.337 and NRS 453.338 punish people for a drug sale that has not taken place yet and might never take place.

Predictably, possession for sale is a more serious offense than keeping drugs for personal use (NRS 453.336). And it is a less serious offense than actually selling drugs (NRS 453.321).1

Possession for sale also goes by the names "possession for purpose of sale" and "PCSWITS" -- short for possession of a controlled substance with intent to sell.

For information about marijuana specifically, read our article on marijuana possession for sale.

2. How do prosecutors prove "intent to sell"?

Prosecutors rely on circumstantial evidence to show a defendant intended to sell drugs. Six common indicators of "intent to sell" include:

  1. The defendant stored the drugs in "ready to sell" pre-measured quantities in separate containers or baggies.
  2. The defendant was carrying a firearm, presumably to protect him/herself should the drug deal go wrong.
  3. The defendant had a large amount of drugs, more than what most recreational users keep.
  4. The defendant was not high and had no drug paraphernalia, which could indicate he/she was a seller and not a user.
  5. The defendant carried a lot of cash -- especially small bills -- which could indicate illegal sales.
  6. The defendant was found in an area that was known for drug deals.2

Certainly, none of these circumstances alone prove that a defendant intended to sell drugs. There can be innocent explanations for all of them. But police do use these indicators to decide whether to arrest a suspect for possession for personal use or possession for sale.

3. What drugs are prohibited?

Nevada law prohibits possession of any controlled substance for the purpose of selling it. There are five schedules (categories) of controlled substances in the U.S.3

Narcotic schedule

Common examples

I

II

III

IV

V

  • Codeine (no more than 200 milligrams per 100 grams)
  • Opium (no more than 100 milligrams per 100 grams)
  • Robitussin AC

4. What are the defenses?

The best way to fight charges of "possession for sale" in Nevada depends on the circumstances of the case. Common defenses include:

  1. The drugs belonged to someone else;
  2. The defendant had no intention of selling the drugs; or
  3. The police conducted an illegal search

4.1. The drugs belonged to someone else

gavel
Sometimes law enforcement arrest innocent bystanders during stings.

In the heat of a drug raid, police may arrest innocent people who were at the wrong place at the wrong time. Perhaps the defendant was just a friend of the actual drug dealer. Or perhaps the defendant was looking to buy the drugs, not sell them.

Typical evidence in these cases includes eyewitness accounts and surveillance video. If there is insufficient proof that the defendant possessed the drugs, the case may be dropped.

4.2. The defendant had no intention of selling the drugs

"Intent to sell" is an intangible concept that is hard to prove. Whereas an actual drug sale can be witnessed and recorded, intent to sell drugs is all about the defendant's mental state. As discussed above in section 2, prosecutors rarely have direct evidence to back up a possession for sale charge.

Therefore, the defense attorney would try to show that there is "reasonable doubt" that the defendant was planning to make a sale. If the prosecutors agree that their case is too weak, they may reduce the possession for sale charge down to possession for personal use.

4.3. The police conducted an illegal search

Under the Fourth Amendment, the police must follow strict guidelines when searching people, vehicles, and homes. Whenever police find evidence from an illegal search, the defendant can file a motion to suppress with the court. This motion asks the court to disregard ("suppress") any evidence that the police obtained illegally.

If the court grants the motion to suppress, the state may have too little evidence left to prosecute. The state may then agree to reduce the charges or drop the case completely.

5. What are the penalties?

Nevada's punishment for possession for sale depends on the drug's schedule and the defendant's criminal history. Probation with no prison time may be possible for a first-time offense.4

Controlled substance

Nevada penalties for possession for sale

Schedule I,

Schedule II,

Flunitrazepam, or

Gamma-hydroxybutyrate (GHB)

1st offense

Category D felony:

2nd offense

Category C felony:

  • 1 – 5 years in prison, and
  • Possibly up to $10,000 in fines

3rd or subsequent offense

Category B felony:

  • 3 – 15 years in prison,
  • Possibly up to $20,000 in fines

Schedule III,

Schedule IV, or

Schedule V

1st or 2nd offense

Category D felony

  • 1 – 4 years in prison,* and
  • Possibly up to $5,000 in fines

3rd or subsequent offense

Category C felony:

  • 1 – 5 years in prison, and
  • Possibly up to $10,000 in fines
 

*The court may grant probation or a suspended sentence instead of prison.

Note that possession of drug paraphernalia with the intent to sell it is a category E felony. The penalties include:

  • 1 – 4 years in prison, and
  • Possibly up to $5,000 in fines

But judges typically grant probation for a first-time offense.5

6. Can the charges be dismissed?

gavel
Prosecutors in drug cases are often willing to negotiate a plea bargain in exchange for not going to trial.

Prosecutors may agree to dismiss a possession for sale charge if the defense attorney can show that the state's case is weak. (Scroll up to section 4 for common defense strategies.)

Alternatively, prosecutors may agree to reduce the charge down to possession for personal use. This is typically a category E felony with no jail time for a first offense.

Another option is for prosecutors to reduce the charge down to a misdemeanor under NRS 454.351. As long as the defendant completes all the sentencing terms such as community service, the judge will not impose jail.

7. Can I get the record sealed?

Possession for sale convictions may be sealed five years after the case ends. The waiting period may be shorter if the case gets reduced to a lesser charge. And if the case gets dismissed, no wait is required.6

Drug crime conviction

Record seal waiting period in Nevada

Misdemeanor

1 year after the case ends

Category E felony

2 years after the case ends

Category D felony,

Category C felony, or

Category B felony

5 years after the case ends

No conviction (dismissal)

Immediately

Learn about how to get a Nevada record seal.

8. Will I be deported?

Drug possession for sale is a deportable offense. It makes no difference if the drug was only marijuana.7

Any non-citizen charged with a narcotics offense should retain a lawyer right away. Getting the charge reduced or dismissed may be the immigrant's only way to stay in the U.S.

9. Related drug offenses

9.1. Possession

Possession under NRS 453.366 is simply having drugs for personal use. It is the least serious drug crime in Nevada, and first-time offenders can often avoid jail. However, a conviction can cause potential employers to pass over the defendant for a job.

9.2. Selling

Nevada's second-most serious drug offense is selling narcotics under NRS 453.321. Selling comprises trading the drugs for anything of value, including cash, jewelry, or other property. In some cases, first-time offenders may be granted probation instead of prison.

9.3. Trafficking

Trafficking in Nevada comprises any act involving big quantities of schedule I or II drugs, even possession for personal use. Trafficking carries the toughest penalties and highest fines of any drug offense. But even then, defendants who agree to be informants might be able to avoid incarceration. Read more about trafficking narcotics (NRS 453.3385 & NRS 453.3395).

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10. Do I need an attorney?

Anyone accused of a drug crime in Nevada should fight it since the stakes are so high. And the best offense is a good defense attorney challenging the state's evidence and wearing the prosecutors down.

If you have been arrested for a drug offense in Nevada, call our Las Vegas criminal defense attorneys at 702-DEFENSE (702-333-3673). We may be able to persuade the state to reduce or dismiss the charge so you stay out of jail and your record remains clear.

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

Arrested in California? See our article on drug possession for sale (Health & Safety Code 11351 HS).


Legal References

  1. NRS 453.337; NRS 453.338; see LaChance v. State, 321 P.3d 919, 130 Nev. Adv. Rep. 29 (2014).
  2. See, e.g., State v. Stinnett, 104 Nev. 398, 760 P.2d 124 (1988).
  3. DEA Drug Scheduling.
  4. NRS 453.337; NRS 453.338.
  5. NRS 453.560.
  6. NRS 179.245; NRS 179.255.
  7. 8 U.S.C. § 1227.

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