Updated
Heroin is a schedule I drug that is illegal in Nevada and throughout the United States. With regard to heroin, Nevada law prohibits possession for personal use, possession with intent to sell, selling or making and trafficking the drug (trafficking means any act involving at least 100 grams of heroin).
Merely being under the influence of narcotics such as heroin is a crime in Nevada, even if the police do not find any heroin in the defendant’s possession.
Penalties
Most heroin offenses are prosecuted as felonies in Nevada. It may be possible to plea bargain the charges down to a dismissal or misdemeanor. Otherwise, courts may impose the following sentences:
| Nevada Heroin offense | Penalties for a first-time offense |
|---|---|
| Possession for personal use | Penalties depends on the amount and if the defendant has prior convictions. See our page on drug possession (NRS 453.336) to learn more. For a first-or second offense involving less than 14 grams, it is a category E felony: The court will grant eligible defendants who plead guilty or no contest a deferral of judgment, which means that the court will dismiss the case if the defendant completes certain court-ordered terms. Otherwise, category E felony convictions carry probation and a suspended sentence, which may include up to one year in jail. (But if the defendant has two or more prior felony convictions, the court may impose one to four years in Nevada State Prison and up to $5,000 in fines.) |
| Possession with the intent to sell it | category D felony:
|
| Selling, transporting, importing, dispensing, giving away, trading, administering, or manufacturing | category C felony:
|
The penalties for trafficking depend on the amount of heroin involved. For instance, trafficking 100 grams to less than 400 grams is a category B felony, carrying:
- 2 – 20 years in prison, and
- up to $100,000
Defenses
There are several ways to fight heroin crimes depending on the individual facts of the case. Common defenses include demonstrating that:
- The defendant did not know the heroin was there,
- The police entrapped the defendant, and/or
- Law enforcement committed an unlawful search and seizure
In this article, our Las Vegas criminal defense lawyers discuss:
- 1. What is heroin, and is it illegal?
- 2. Can I go to jail?
- 3. How do I fight the charges?
- 4. Can I plea bargain?
- 5. Can I go to trial?
- 6. Can I get the case sealed?
- 7. Can I get deported?
- 8. Related offenses
1. What is heroin, and is it illegal?
Heroin is a schedule I narcotic and is typically injected intravenously.1 Common names include dragon, dope, big H, black tar, and smack.
Heroin is prohibited throughout the U.S. Therefore, it is illegal to do any of the following acts with heroin in Nevada:
- possess for personal use (“simple possession”),2
- possess with the intention to sell (“possession for sale”),3
- sell,
- manufacture,
- dispense,
- give away,
- administer,
- exchange,
- barter,
- import, or
- transport4
Note that the crime of trafficking comprises any of the above acts that involve at least 100 grams of heroin.5 Therefore, possessing 100 grams of heroin for personal consumption would be prosecuted as trafficking in Nevada even though the defendant had no intention of selling it.
2. What are the penalties for Nevada heroin crimes?
The punishment depends on the specific charge. Possessing heroin for personal use carries the laxest penalties, while trafficking carries the harshest.
Note that the penalties for possession, possession for sale, and selling grow harsher with each successive offense. In contrast, the penalties for trafficking depend on the amount of heroin involved:
| Nevada Heroin offense | Penalties |
|---|---|
| Possession for personal use (NRS 453.336) | Penalties depends on the amount and if the defendant has prior convictions. See our page on drug possession (NRS 453.336) to learn more. |
| For a first-or second offense involving less than 14 grams, it is a category E felony: The court will grant eligible defendants who plead guilty or no contest a deferral of judgment, which means that the court will dismiss the case if the defendant completes certain court-ordered terms. Otherwise, category E felony convictions carry probation and a suspended sentence, which may include up to one year in jail. (But if the defendant has two or more prior felony convictions, the court may impose one to four years in Nevada State Prison and up to $5,000 in fines.) | |
| Possession with the intent to sell (NRS 453.337) | 1st offense category D felony:
|
2nd offense
| |
3rd offense category B felony:
| |
| Selling, transporting, importing, dispensing, giving away, trading, administering, or manufacturing (NRS 453.321) | 1st offense category C felony:
|
2nd offense category B felony:
| |
3rd offense category B felony:
| |
| Trafficking (NRS 453.3385) | 100 grams to less than 400 grams category B felony:
|
400 grams or more
|
Note that being under the influence of heroin is against Nevada law as well, even if there is none of the drug in the vicinity. Being under the influence of a controlled substance is a misdemeanor, carrying up to 6 months in jail and/or up to $1,000 in fines.6
3. What are defenses to Nevada heroin offenses?
The best way to fight drug charges turns on the charge and facts of the case. Common strategies include:
- The defendant did not know the heroin was there,
- The police entrapped the defendant, and/or
- The police committed an unlawful search and seizure
3.1. No knowledge of the heroin
If a defendant genuinely had no idea that there was heroin in his/her actual or constructive possession, then he/she committed no offense.7 Laughlin criminal defense attorney Michael Becker describes how a defendant may be falsely accused:
Example: Ian gives his friend Jacob a drive to the movies. Without Ian’s knowledge, Jacob leaves a bag of heroin under his passenger seat. The next day during a traffic stop for speeding, the officer sees the heroin and arrests Ian for possessing drugs. But since Ian had no knowledge the heroin was there, he committed no crime.
As long as the prosecutor in the above example cannot prove beyond a reasonable doubt that Ian knew the heroin was there, the case should be dropped.
3.2. Entrapment
Police are legally allowed to deceive criminal suspects such as by going undercover. But police are not allowed to “entrap” suspects into committing a crime that they are otherwise not inclined to commit.8 Henderson criminal defense attorney Adam Solinger gives an example of police entrapment:
Example: In North Las Vegas, an undercover police officer observes Jeremy shooting up heroin. The officer approaches Jeremy and offers to purchase the remainder of his heroin. Jeremy refuses and leaves. The officer then threatens to report to the police if Jeremy does not sell him the heroin. Jeremy sells him the heroin, and the officer arrests him for selling drugs. In this case, Jeremy should not be convicted of selling drugs because the undercover officer entrapped him with threats. Jeremy’s initial refusal to sell the drugs indicates that Jeremy would never have sold the undercover officer the heroin but for the threats. And because the officer had never seen Jeremy sell drugs before, the D.A. has no proof that Jeremy was inclined to sell drugs.
Had Jeremy in the above example agreed to sell the undercover officer heroin from the beginning, Jeremy probably would not be able to mount a winning entrapment offense. But because Jeremy exhibited no inclination towards being a drug dealer, prosecutors should not charge him with anything more serious than possession.
3.3. Unlawful search and seizure
The Fourth Amendment to the U.S. Constitution puts strict limits on when and how police may conduct searches and seizures. If the police overstepped their bounds, however, the defense attorney can ask the court to disregard all the evidence “tainted” from the illegal search. North Las Vegas criminal defense attorney Neil Shouse provides an illustration:
Example: Officer Jeffries gets a tip that Owen sells heroin. That day Officer Jeffries breaks into Owen’s house, where he finds several grams of heroin. After Owen gets arrested for selling heroin, Owen’s attorney files with the court a “motion to suppress” the heroin as evidence. The defense attorney’s argument is that Officer Jeffries failed to get a search warrant, and he had no legal justification to forgo getting a search warrant. The judge agrees and excludes the heroin from evidence. This exclusion weakens the state’s case so much that the D.A. dismisses the charges completely.
In the above example, Officer Jeffries’ unconstitutional conduct was the key to Owen winning his case. Sometimes the defendant’s conduct is less important than the police’s misconduct in mounting an effective defense.
4. Can I get my Nevada heroin charge reduced or dismissed?
Prosecutors are often willing to reduce or dismiss criminal charges in order to avoid trial. Prosecutors are most generous to first-time drug possession offenders: In many cases, the state will grant probation and dismiss the case in exchange for the defendant taking a drug education class or doing Drug Court, an intensive rehabilitation program.
Another common scenario is for the D.A. to reduce a felony drug charge to a “catch-all” misdemeanor drug charge abbreviated ITS (short for “drugs which may not be introduced into interstate commerce”). ITS carries:
- up to 6 months in jail, and/or
- up to $1,000 in fines
With many ITS plea deals, the defendant does no jail and simply pays a fine and takes a drug education class.9
5. Can I go to trial on my Nevada heroin case?
Yes. Most drug cases settle with a plea bargain where the original charge is reduced or possibly dismissed. But defendants always have the option to take their case to trial.
Defendants charged with a heroin crime have the option to demand a jury trial or a bench trial (where the judge delivers the verdict). Jury trials are usually preferable because judges may be more jaded and difficult to persuade than randomly selected citizens.
6. When can a Nevada heroin case be sealed?
If a Nevada heroin charge gets dismissed (meaning there is no conviction), then a criminal record seal is available right away.10
If a Nevada heroin charge gets reduced to the misdemeanor drug offense of ITS (discussed above in question 4), the defendant may petition the court for a record seal only one (1) year after the case ends.11
Otherwise, the wait time to commence the record seal process depends on the specific heroin offense the defendant was convicted of:
| Nevada heroin offense | Record seal wait time |
|---|---|
| misdemeanor | 1 year after the case closes |
category E felony:
| 2 years after the case closes |
category D felony:
| 5 years after the case closes |
category C felony:
| 5 years after the case closes |
category B felony:
| 5 years after the case closes |
category A felony:
| 10 years after the case closes12 |
7. Will I get deported for a heroin crime?
Yes. Legal aliens who have been convicted of any drug crime involving heroin may be deported from the U.S. Note that simply admitting to having a drug addiction or being a drug dealer can subject a non-citizen to removal from the U.S. even if he/she was never convicted.13
Therefore, immigrants who have been charged with any controlled substance offense should hire an experienced immigration and criminal defense attorney immediately. The attorney might able to persuade the D.A. to drop the charge or else reduce it to a non-deportable offense. Learn more about the criminal defense of immigrants in Nevada.
8. Related drug offenses
8.1. Ecstasy
Like heroin, ecstasy (a.k.a. MDMA) is a schedule I illegal drug and carries the same penalties. Learn more about Nevada ecstasy drug laws.
8.2. GHB and Rohypnol
When lawfully prescribed, GHB is a schedule III narcotic, and Rohypnol is a schedule IV narcotic. But GHB and Rohypnol are treated as schedule I narcotics like heroin when they are illegally possessed or sold.
Note that simple possession of GHB and Rohypnol carries a maximum of six (6)-year sentence.
Learn more about Nevada GHB and Rohypnol laws.
8.3. Meth
Methamphetamine is a schedule II narcotic. Drug offenses involving meth are punished identically to heroin. Learn more about Nevada methamphetamine laws.
8.4. OxyContin and Vicodin
The painkillers OxyContin and Vicodin are schedule II narcotics. Drug offenses involving these painkillers are punished identically to heroin. Learn more about Nevada OxyContin and Vicodin laws.
8.5. Cocaine
Cocaine is a schedule II narcotic. Drug offenses involving cocaine are punished identically to heroin. Learn more about Nevada cocaine laws.
8.6. PCP
PCP (phencyclidine) is a schedule II narcotic. Drug offenses involving this hallucinogen are punished identically to heroin. Learn more about Nevada PCP laws.
8.7. Ketamine
Ketamine is a schedule III narcotic. Possession charges are prosecuted identically to heroin. But the judge may order probation for a first offense of possessing ketamine for sale or of selling ketamine. And there is no such thing as ketamine trafficking crimes. Learn more about Nevada ketamine laws.
8.8. Codeine
Codeine is a schedule II narcotic. Drug offenses involving this opioid are punished identically to heroin. Learn more about Nevada codeine laws.
Arrested in California? Go to our information page on California heroin laws.
Arrested in Colorado? Go to our information page on Colorado heroin laws.
Legal References:
- Drug Enforcement Administration.
- NRS 453.336.
- NRS 453.337.
- NRS 453.321.
- NRS 453.3395.
- NRS 453.411.
- Sanders v. State, 110 Nev. 434, 874 P.2d 1239 (1994)(“In order to establish that the crime of possession of a controlled substance has been committed, the state must prove beyond a reasonable doubt that the accused had dominion and control of a controlled substance and knowledge of the presence of the controlled substance and of its illegal nature.”).
- Sheriff, Humboldt County v. Gleave, 104 Nev. 496, 761 P.2d 416 (1988)(“[T]his court held that “[e]ntrapment as a matter of law exists where the uncontroverted evidence shows (1) that the state furnished an opportunity for criminal conduct (2) to a person without the requisite criminal intent.”).
- NRS 454.351.
- NRS 179.255.
- NRS 179.245.
- Id.
- 8 U.S.C. 1227(a)(2)(B).