NRS § 453.338 – Unlawful Possession for Sale of Schedule III, IV, or V Drugs

Nevada Revised Statute § 453.338  makes it a crime to possess schedule III, schedule IV, or schedule V narcotics with the intent to sell them. A first time conviction of possession for sale is a category D felony, punishable by one to four years in prison and up to $10,000 in fines. The court may grant probation or a suspended sentence for a third- or subsequent offense unless there were mitigating circumstances.

The full text of the statute reads as follows:

NRS 453.338. 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.

Legal Analysis

NRS 453.338 makes it a criminal offense to possess the following controlled substances for the purpose of selling them:

• Schedule III drugs;
• Schedule IV drugs; or
• Schedule V drugs¹

The sentence for possession for sale grows harsher with each successive conviction:

Possession for sale in Nevada	Penalties
1st or 2nd offense	Category D felony: 1 to 4 years in prison; and Up to $10,000 (at the judge’s discretion)
3rd or subsequent offense	Category C felony: 1 to 5 years in prison; and Up to $10,000 (at the judge’s discretion) The court may grant probation only if there are mitigating circumstances.

Possession for sale can be a hard offense for the D.A. to prove beyond a reasonable doubt because it requires demonstrating the defendant’s intent. Typical evidence that suggests a defendant intended to sell drugs are:

• The defendant kept a large quantity of drugs (more than one person would ordinarily keep for recreational purposes)
• The drugs were divided into carefully-measured baggies or containers (ready to be sold)
• The defendant carried a firearm and/or a large amount of cash

The penalties for possession-for-sale convictions are harsher than for simple possession and less harsh than for selling.³

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Legal References