NRS 453.3385 is the Nevada law that prohibits trafficking four grams or more of schedule I controlled substances, Rohypnol, or GHB. If more than 400 grams are trafficked, the crime can be prosecuted as a Class A felony punishable by 25 years to life in state prison and fines of up to $500,000.00.
The statute states trafficking occurs when someone:
“knowingly or intentionally sells, manufactures, delivers or brings into this State or who is knowingly or intentionally in actual or constructive possession of” controlled substances.
Trafficking is Nevada’s most serious narcotics crime with the harshest prison sentences. But defendants who agree to serve as informants may be able to get their sentences reduced or suspended.
In this article, our Las Vegas criminal defense attorneys focus on explaining trafficking schedule I drugs under NRS 453.3385. Also see our articles on trafficking schedule II drugs under NRS 453.3395 and trafficking marijuana under NRS 453.339.
1. What is drug trafficking?
Nevada’s legal definition of trafficking is very broad. It comprises any of the following acts done with large amounts of controlled substances.
- Possessing for personal use (NRS 453.336);
- Possessing with the intent to sell (NRS 453.337 & 453.338);
- Selling (NRS 453.321);
- Transporting (NRS 453.321); or
Since trafficking involves large drug quantities, charges are typically reserved for big-time dealers and drug lords. Defendants face separate charges for each controlled substance they allegedly traffick. So if a person is selling large amounts of both heroin and MDMA, the person faces two separate trafficking charges: One for each drug.2
Note that trafficking is often abbreviated as TCS (short for trafficking in controlled substances). Trafficking drugs is illegal under federal law as well. Learn more about the federal crime of drug trafficking.
1.1. Narcotics prohibited under NRS 453.3385:
NRS 453.3385 applies only to flunitrazepam (Rohypnol), gamma-hydroxybutyrate (GHB), and schedule I and II drugs (not including marijuana). Common schedule I drugs include:
- Magic mushrooms (peyote, mescaline)
A common schedule II drug is cocaine.
2. What are the defenses?
There are many possible strategies for fighting trafficking charges in Nevada. The best tactic depends on the specific case and available evidence. Three common trafficking defenses are:
- The defendant had no knowledge of the drugs;
- The drugs did not weigh enough; or
- The police performed an unlawful search
In any case, the D.A. has the burden to prove guilt beyond a reasonable doubt. The D.A. typically relies on such evidence as
- the drugs themselves,
- surveillance video,
- eyewitnesses, and
- recorded communications.
Therefore, the defense attorney would try to show the prosecution that this evidence is too insufficient or unreliable to sustain a conviction.
2.1. The defendant had no knowledge of the drugs
It is not uncommon for drug dealers to hire unwitting people to transport drugs without their knowledge. As long as these people do not realize they are transporting drugs, they are not guilty of trafficking.
Example: Philip hires an Uber to courier over a wrapped birthday present to Bill. The Uber driver has no idea the present contains 100 grams of Ecstasy. Therefore, the driver is committing no crime.
In the above example, Phillip committed trafficking since he knowingly sent the drugs. And if Bill knew what was in the package, he could also face trafficking charges for knowingly receiving them.
2.2. The drugs did not weigh enough
NRS 453.3385 charges have a strict weight requirement: At least 100 grams of either Rohypnol, GHB, or Schedule I or II drugs (not including marijuana). If the scales the police used to measure the drugs were defective or mishandled, the trafficking charges could be reduced to a lesser drug offense.
2.3. The police performed an unlawful search
The 4th Amendment protects against illegal searches and seizures by the police. So if the police searched the defendant’s property without probable cause, then anything found from the search may be inadmissible.
The criminal defense lawyer would ask the judge to disregard (“suppress”) any evidence discovered from an unlawful search. If the court grants this motion to suppress evidence, the state may be left with too weak a case to prosecute.
3. What are the penalties?
The punishment for violating NRS 453.3385 depends on the quantity of the drugs in the case.3
Weight of schedule I or II drugs, GHB, or Rohypnol
(not including marijuana)
Trafficking penalties in Nevada
|100 to less than 400 grams|
|400 grams or more|
3.1. Is probation available for a trafficking conviction?
Prison is usually mandatory for trafficking convictions. But the judge can reduce or suspend the sentence if the defendant helped the police investigate any crime. Factors the judge may consider include:
- The court’s evaluation of the significance and usefulness of the defendant’s assistance;
- The truthfulness, completeness, and reliability of any information or testimony provided by the defendant;
- The nature and extent of the defendant’s assistance;
- Any injuries or risks suffered by the defendant or his/her family resulting from the assistance; and
- The timeliness of the defendant’s assistance.4
4. What are the immigration consequences?
Trafficking narcotics is a deportable offense in Nevada.5 This means that once non-citizen defendants serve out their prison sentence, they may be kicked out of the U.S.
Therefore, any non-citizens charged with trafficking should retain a skilled attorney right away. Getting the case dismissed or reduced to a non-drug-related offense may be the immigrant’s only chance to remain on U.S. soil.
5. Can the record get sealed?
Yes, though there is a waiting period to get trafficking convictions sealed. Dismissed charges can get sealed right away.6
NRS 453.3385 trafficking case
Nevada record seal wait-time
|Category A felony conviction||10 years after the case ends|
|Category B felony conviction||5 years after the case ends|
|Dismissal (no conviction)||Immediately|
Record seals do not happen automatically. The defendant has to petition the court. Learn about how to get a criminal record sealed in Nevada.
¿Habla español? Más información sobre el crimen de Nevada tráfico de drogas.
In California? See our article on selling drugs (11352 HS).
In Colorado? See our article on selling drugs (18-18-405 C.R.S.).
- NRS 453.3385.
- Nevada v. Andrews, 134 Nev. Advance Opinion 12 (2018).
- NRS 453.3385.
- NRS 453.3405.
- 8 U.S.C. 1227.
- NRS 179.245; NRS 179.255.