Nevada NRS § 453.337 & 453.338 make it “unlawful for a person to possess for the purpose of sale any controlled substance.” Most charges are filed as a category D felony punishable by 1 to 4 years in state prison and up to $5,000 in fines, though first-time offenders are often granted probation in lieu of prison.
| Controlled substance | Nevada penalties for possession for sale |
| Schedule I, Schedule II, Flunitrazepam, or Gamma-hydroxybutyrate (GHB) | 1st offense Category D felony: 1 – 4 years in Nevada State Prison and up to $5,000 The court may grant probation or a suspended sentence instead of prison. |
| 2nd offense Category C felony: 1 – 5 years in prison and up to $10,000 | |
| 3rd or subsequent offense Category B felony: 3 – 15 years in prison and up to $20,000 | |
| Schedule III, Schedule IV, or Schedule V | 1st or 2nd offense Category D felony: 1 – 4 years in prison and up to $5,000 The court may grant probation or a suspended sentence instead of prison. |
| 3rd or subsequent offense Category C felony: 1 – 5 years in prison and up to $10,000 The court may only grant probation if mitigating circumstances exist. |
Prosecutors may reduce the charges if they cannot prove the drugs were meant to be sold. 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:
- 1. Definition
- 2. Proving intent
- 3. Prohibited drugs
- 4. Defenses
- 5. Penalties
- 6. Dismissals
- 7. Record seals
- 8. Immigration
- 9. Related crimes
- Additional reading
Possessing drugs with intent to sell them is a felony in Nevada under NRS 453.337 and NRS 453.338.
1. Definition
In Nevada, possession for sale is having a controlled substance with the intention of selling it. Therefore, NRS 453.337 and NRS 453.338 prohibit drug sales that have 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). Plus 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. Proving intent
Nevada prosecutors rely on circumstantial evidence to show you intended to sell drugs. Seven common indicators of “intent to sell” include:
- You stored the drugs in “ready to sell” pre-measured quantities in separate containers or baggies.
- You were carrying a firearm, presumably to protect yourself should the drug deal go wrong.
- You had a large amount of drugs, more than what most recreational users keep.
- You possessed a scale and several types of containers, suggesting that you are a seller rather than a user.
- You were not high and had no drug paraphernalia, which could indicate you were a seller and not a user.
- You carried a lot of cash — especially small bills — which could indicate illegal sales.
- You were found in an area that was known for drug deals.2
Certainly, none of these circumstances alone prove that you intended to sell drugs. There can be innocent explanations for all of them. Though police do use these indicators to decide whether to arrest you for possession for personal use or possession for sale.
3. Prohibited drugs
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 |
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4. Defenses
Here at Las Vegas Defense Group, we have represented literally thousands of people charged with possession for sale. In our experience, the following three defenses have proven very effective with prosecutors, judges, and juries:
The drugs belonged to someone else
Sometimes law enforcement arrests innocent bystanders during stings.
Maybe you were just in the wrong place at the wrong time when you were arrested in the heat of a drug raid. Often our clients are:
- innocent bystanders who have no connection to anyone involved,
- friends with the actual drug dealer, or
- looking to buy drugs, not sell them.
We rely on such evidence as eyewitness accounts and surveillance video to show the D.A. that there is insufficient proof that you possessed the drugs.
You had no intention of selling the drugs
That you had no intent to sell the drugs is our strongest defense because your thoughts are intangible and therefore impossible for the D.A. to definitively prove. Whereas an actual drug sale can be witnessed and recorded, intent to sell drugs is all about your mental state.
Typically prosecutors rely on circumstantial evidence to show that you planned to sell the drugs in your possession. So our job is to dismantle the state’s arguments detail by detail with reasonable doubt. For example:
- The scale found in your possession could have been used for cooking in the kitchen, not weighing drugs;
- The gun you carried was merely for general self-defense and had nothing to do with drug deals; and/or
- You carried cash because you simply prefer it to other payment methods, not because you were trying to hide an illegal sale.
If we can show there is “reasonable doubt” that you were planning to make a sale, the prosecutors may agree that their case is too weak and then reduce the possession for sale charge down to possession for personal use.
The police conducted an illegal search
Under the Fourth Amendment, the police must follow strict guidelines when searching people, vehicles, and homes. However, we often see cases where police intentionally or accidentally violate these guidelines and find drugs or other evidence through an unlawful search.
When our clients are victims of an illegal police search, we immediately file a motion to suppress with the court. This motion asks the court to disregard 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 possession for sale charges or drop the case completely.
5. Penalties
Nevada’s punishment for possession for sale depends on the drug’s schedule and your criminal history. Probation with no prison time may be possible for a first-time offense. Second or subsequent convictions are non-probationable.4
Schedule I or II drugs, Flunitrazepam, or Gamma-hydroxybutyrate (GHB)
A first-time possession for sale conviction is a category D felony carrying one to four years in prison and up to $5,000. Nevada courts may grant probation or a suspended sentence instead of prison.
A second-time possession for sale conviction is a category C felony carrying one to five years in prison and up to $10,000. Subsequent offenses are category B felonies carrying three to 15 years in prison and up to $20,000.
Schedule III, IV, or V drugs
A first- or second possession for sale conviction is a category D felony carrying one to four years in prison and up to $5,000. Nevada courts may grant probation or a suspended sentence instead of prison.
Subsequent convictions are category C felonies carrying one to five years in prison and up to $10,000. The court may only grant probation if mitigating circumstances exist.
Paraphernalia
Note that possession of drug paraphernalia with the intent to sell it is a category E felony. Category E felony convictions carry probation and a suspended sentence. (Though if you have 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.)5
6. Dismissals
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 you complete all the sentencing terms such as community service, the judge will not impose jail.
7. Record seals
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. 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. Immigration
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
Possession
Possession under NRS 453.366 is simply having drugs for personal use. It is the least serious drug crime in Nevada, and you can usually avoid jail as a first-time offender. However, a conviction can cause potential employers to pass you over for a job.
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, you may be granted probation instead of prison as a first-time offender.
Trafficking
Trafficking in Nevada comprises any act involving big quantities of schedule I or II drugs, GHB or Rohypnol – even possession for personal use. Trafficking carries the toughest penalties and highest fines of any drug offense. Even then, if you agree to be an informant, you might be able to avoid incarceration. Read more about trafficking narcotics (NRS 453.3385).
Additional resources
If you or someone you know are struggling with addiction, refer to the following:
- Narcotics Anonymous – 12-step program to overcome drug addiction.
- Nar-Anon – 12-step program for family/friends of addicts.
- SAMHSA – Substance Abuse and Mental Health Services – 24/7 hotline and support.
- SAMHSA – Online treatment locator – Find rehabs by address or zip code.
- Crisis Support Services of Nevada – 24/7 hotline and support.
Legal References
- NRS 453.337. Unlawful possession for sale of flunitrazepam, gamma-hydroxybutyrate and schedule I or II substances; penalties.
1. Except as otherwise authorized by the provisions of NRS 453.011 to 453.552, inclusive, it is unlawful for a person to possess for the purpose of sale flunitrazepam, gamma-hydroxybutyrate, any substance for which flunitrazepam or gamma-hydroxybutyrate is an immediate precursor or any controlled substance classified in schedule I or II.
2. Unless a greater penalty is provided in NRS 453.3385 or 453.339, a person who violates this section shall be punished: (a) For the first offense, for a category D felony as provided in NRS 193.130. (b) For a second offense, or if, in the case of a first conviction of violating this section, the offender has previously been convicted of a felony under the Uniform Controlled Substances Act or of an offense under the laws of the United States or any state, territory or district which, if committed in this State, would amount to a felony under the Uniform Controlled Substances Act, for a category C felony as provided in NRS 193.130. (c) For a third or subsequent offense, or if the offender has previously been convicted two or more times of a felony under the Uniform Controlled Substances Act or of any offense under the laws of the United States or any state, territory or district which, if committed in this State, would amount to a felony under the Uniform Controlled Substances Act, for a category B felony by imprisonment in the state prison for a minimum term of not less than 3 years and a maximum term of not more than 15 years, and may be further punished by a fine of not more than $20,000 for each offense.
3. Except as otherwise provided in this subsection, unless mitigating circumstances exist that warrant the granting of probation, the court shall not grant probation to or suspend the sentence of a person convicted of violating this section and punishable pursuant to paragraph (b) or (c) of subsection 2. The court shall not grant probation to or suspend the sentence of a person convicted of violating this section, even if mitigating circumstances exist that would otherwise warrant the granting of probation, if the person violated this section by possessing flunitrazepam, gamma-hydroxybutyrate or any substance for which flunitrazepam or gamma-hydroxybutyrate is an immediate precursor.NRS 453.338. Unlawful possession for sale of substances classified in schedule III, IV or V; penalties.
1. Except as authorized by the provisions of NRS 453.011 to 453.552, inclusive, it is unlawful for a person to possess for the purpose of sale any controlled substance classified in schedule III, IV or V.
2. A person who violates this section shall be punished: (a) For the first and second offense, for a category D felony as provided in NRS 193.130, and may be further punished by a fine of not more than $10,000. (b) For a third or subsequent offense, or if the offender has been previously convicted two or more times of a felony under the Uniform Controlled Substances Act or of any offense under the laws of the United States or any state, territory or district which, if committed in this State, would amount to a felony under the Uniform Controlled Substances Act, for a category C felony as provided in NRS 193.130.
3. Unless mitigating circumstances exist that warrant the granting of probation, the court shall not grant probation to or suspend the sentence of a person convicted of violating this section and punishable under paragraph (b) of subsection 2.See LaChance v. State, 321 P.3d 919, 130 Nev. Adv. Rep. 29 (2014).
- See, for example, State v. Stinnett, 104 Nev. 398, 760 P.2d 124 (1988). Also see Figueroa-Beltran v. United States, 136 Nev. Adv. Op. 45 (2020) (“the identity of a substance is an element of the crime described in NRS 453.337, such that each schedule I or II controlled substance simultaneously possessed with the intent to sell constitutes a separate offense.”).
- DEA Drug Scheduling.
- NRS 453.337; NRS 453.338.
- NRS 453.560.
- NRS 179.245; NRS 179.255.
- 8 U.S.C. § 1227.