The court may grant probation or a suspended sentence unless the drugs were GHB or Rohypnol.
The full text of the statute reads as follows:
NRS 453.337. 1. Except as otherwise authorized by the provisions of NRS 453.011 to 453.552, inclusive, it is unlawful for a person to possess flunitrazepam, for the purpose of sale 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 453.337 makes it a crime to possess the following controlled substances with the intent to sell them:
- Schedule I drugs (such as heroin);
- Schedule II drugs (such as cocaine);
- Rohypnol (flunitrazepam); or
- GHB (gamma-hydroxybutyrate)1
The punishment for possession for sale becomes harsher with each successive conviction:
|Possession for sale in Nevada||Penalties|
|1st offense||Category D felony: |
The court may grant probation unless the drugs were GHB and/or Rohypnol.
|2nd offense||Category C felony: |
The court may grant probation unless the drugs were GHB and/or Rohypnol. Otherwise, the court may grant probation only if there are mitigating circumstances.
|3rd of subsequent offense||Category B felony: |
The court may grant probation unless the drugs were GHB and/or Rohypnol. Otherwise, the court may grant probation only if there are mitigating circumstances.2
Possession for sale can be difficult for prosecutors to prove because it requires showing the defendant’s intent. Typical signs that a defendant intended to sell the drugs they possess are:
- The defendant had a large amount of drugs (more than one person would have for recreational use)
- The drugs were meted out in baggies or containers (ready to sell)
- The defendant was found with large amounts of cash and/or a firearm
- NRS 453.337 – Unlawful possession for sale of flunitrazepam, gamma-hydroxybutyrate and schedule I or II substances; penalties. See LaChance v. State, (2014) 321 P.3d 919, 130 Nev. Adv. Rep. 29 and United States v. Figueroa-Beltran, (9th Cir., 2021) 995 F.3d 724. See also Katelyn Newberg, Nevada’s drug classification for cannabis ruled unconstitutional, Las Vegas Review-Journal (September, 14, 2022)(“[This] ruling will prevent people from being prosecuted for marijuana-related crimes under laws that only apply to Schedule 1 drugs but don’t specifically reference marijuana.”).
- NRS 453.321; NRS 453.336.