NRS 453.3395 has been repealed. For information on trafficking schedule II drugs, go to our page on NRS 453.3385 – trafficking drugs in Nevada. What follows is old law.
NRS 453.3395 is the Nevada drug trafficking law that forbids the possession, sale, manufacture or transportation of 28 grams or more of schedule II controlled substances in Nevada. This statue states that:
“Except as otherwise provided in NRS 453.011 to 453.552, inclusive, a person who knowingly or intentionally sells, manufactures, delivers or brings into this State or who is knowingly or intentionally in actual or constructive possession of any controlled substance which is listed in schedule II or any mixture which contains any such controlled substance[.]”
Common schedule 2 include:
Nevada’s penalty for trafficking schedule II drugs under NRS 453.3395 turns on the amount of drugs:
|Quantity of schedule II drugs||NRS 453.3395 trafficking penalty|
|28 grams to less than 200 grams||Category C felony:
|200 grams to less than 400 grams||Category B felony:
|400 grams or more||Category A felony:
Note that the possibility for parole begins after 5 years.
However, the following defenses may convince prosecutors to reduce or dismiss NRS 453.3395 charges through a plea bargain:
- the defendant is the victim of false accusations,
- the defendant had no knowledge of the drugs,
- the drugs weighed less than 28 g, or
- the police conducted an illegal search and seizure
In this article, our Las Vegas criminal defense attorneys discuss the Nevada crime of trafficking schedule II controlled substances. Click on a topic to jump to that section:
- 1. Definition
- 2. Schedule II drugs
- 3. Penalties
- 4. Defenses
- 5. Immigration consequences
- 6. Sealing records
- 7. Trafficking schedule I drugs (NRS 453.3385)
- 8. Related drug offenses
NRS 453.3395 makes it a Nevada drug crime to traffic at least 28 grams of schedule II controlled substances (listed below in section 2).1
Trafficking drugs is a broad term that encompasses knowingly and intentionally:
- possessing for personal use,
- possessing for the purpose of sale,
- giving, or
As long as the amount of the schedule II drugs weighs at least 28 grams, any action a person allegedly takes with the drugs qualifies as trafficking.2
For information about the Nevada crime of trafficking schedule I drugs, scroll down to section 7.
NRS 453.3395 charges apply when defendants allegedly traffic any of the following schedule 2 substances:
- Etorphine hydrochloride
- Granulated opium
- Hydrocodone (learn more about codeine laws)
- Oxycodone (learn more about OxyContin and Vicodin laws)
- Cocaine/crack (learn more about cocaine laws)
- Concentrate of poppy straw
- Bulk dextropropoxyphene
- Methadone intermediate
- Moramide intermediate
- Pethidine (meperidine)
- Pethidine intermediate A:
- Pethidine intermediate B
- Pethidine intermediate C
- Adderall (Amphetamine)
- Methamphetamine (learn more about methamphetamine laws)
- Ritalin (Methylphenidate)
- Concerta ((Methylphenidate)
- Vyvanse (Lisdexamfetamine)
The penalty for violating NRS 453.3395 depends on the amount of drugs in the case.
3.1. 28 grams to less 200 grams
Trafficking a schedule II substance in Nevada that weighs at least 28 grams but less than 200 grams is a category C felony. The punishment is:
- one to five (1 – 5) years in prison, and
- a fine of up to $50,000
3.2. 200 grams to less 400 grams
Trafficking a schedule II substance in Nevada that weighs at least 200 grams but less than 400 grams is a category B felony. The punishment is:
- two to ten (2 – 10) years in prison, and
- a fine of up to $100,000
3.3. 400 grams or more
Trafficking a schedule II substance in Nevada that weighs at least 400 grams is a category A felony. The punishment carries a fine of up to $250,000 as well as:
- life in prison with the possibility of parole after five (5) years, or
- fifteen (15) years in prison with the possibility of parole after five (5) years4
3.4. Plea bargains
In some cases, the D.A. may be willing to reduce felony drug charge down to the “catch-all” misdemeanor drug charge called drugs which may not be introduced into interstate commerce (NRS 454.351). As a Nevada misdemeanor, the penalty carries:
- up to six (6) months in jail, and/or
- up to $1,000 in fines5
3.5. Federal penalties
Trafficking drugs is a federal crime in addition to a state crime. Depending on the case, a defendant may be prosecuted in either state court, federal court, or both.
The federal trafficking punishment depends on the specific controlled substance involved. Learn more about federal drug trafficking laws in Nevada (21 U.S.C. § 841).
Common defenses to charges of violating NRS 453.3395 include:
- False accusations: Perhaps the defendant was falsely accused by someone out of anger or revenge. Evidence such as text communications, eyewitnesses, and video surveillance may be crucial in showing that the accuser lied;
- No knowledge: The defendant committed no crime if he/she had no knowledge of the drugs’ existence.6 An example would be if the defendant’s roommate kept the drugs in their home without the defendant’s knowledge;
- Insufficient amount: NRS 453.3395 charges apply only if the schedule II drugs — or the mixture the contained the drugs — weighed at least 28 grams.7 If the defense attorney can show the weight was less than 28 grams, the prosecutor would need to reduce the charge to a lesser offense; and/or
- Illegal search: Any evidence found through an unlawful police search may be inadmissible. If the police may have broken the law, the defendant would file a motion to suppress evidence with the court. Then if the judge grants the motion and tosses the illegally-obtained evidence, the D.A. may be left with too weak a case to sustain a conviction.
In any event, the prosecution bears the burden to prove guilt beyond a reasonable doubt if the case goes to trial.
Trafficking controlled substances is an aggravated felony in Nevada and therefore a deportable offense.8 So if an alien gets arrested for violating NRS 453.3395, his/her attorney should negotiate with the D.A. in attempt to have the charges reduced to non-deportable offenses.
The waiting period to seal a conviction of violating NRS 453.3395 depends on what class of felony the defendant was convicted of:
|Conviction for trafficking schedule II drugs||Record seal waiting period|
|Category A felony||10 years after the case ends|
|Category B felony||5 years after the case ends|
|Category C felony||5 years after the case ends|
|No conviction (dismissal or acquittal)||No waiting period|
Note that if the trafficking charge gets reduced to a gross misdemeanor, the waiting period is two (2) year after the case ends. And if the charge gets reduced to a misdemeanor, the waiting period is one (1) year after the case ends.9
And as mentioned in the table above, defendants can pursue a criminal record seal right away if the charge gets dismissed.10 Learn more about how to seal Nevada criminal records.
Trafficking schedule I controlled substances (NRS 453.3385) carries potentially harsher penalties than trafficking schedule II drugs under NRS 453.3395:
|Quantity of schedule I drugs||NRS 453.3385 trafficking penalty|
|4 grams to less than 14 grams||Category B felony:
|14 grams to less than 28 grams||Category B felony:
|28 grams or more||Category A felony:
Note that the possibility for parole begins after 10 years.
Note that the Nevada crimes listed below are prosecuted as trafficking whenever the case involves at least twenty-eight (28) grams of schedule II drugs or four (4) grams of schedule I drugs.
Possessing controlled substances for personal use (NRS 453.336) occurs when someone owns or has physical control over a drug. A lawful exception is if the drug was obtained pursuant to a lawful prescription. Penalties depend on the drug’s schedule and whether the defendant has past convictions.
8.2. Possession for sale
Possessing controlled substances for sale (NRS 453.337 & NRS 453.338) occurs when someone possesses drugs with the intention of selling them. Penalties depend on the drug’s schedule and whether the defendant has past convictions.
Transporting controlled substances (NRS 453.321) occurs when someone is transferring drugs from one location to another. Penalties depend on the drug’s schedule and quantity.
Selling controlled substances (NRS 453.321) occurs when someone trades drugs for money or something else of value. Penalties depend on the drug’s schedule and quantity.
¿Habla español? Más información sobre el crimen de Nevada tráfico de drogas.
- NRS 453.3395 Trafficking in controlled substances: Schedule II substances. Except as otherwise provided in NRS 453.011 to 453.552, inclusive, a person who knowingly or intentionally sells, manufactures, delivers or brings into this State or who is knowingly or intentionally in actual or constructive possession of any controlled substance which is listed in schedule II or any mixture which contains any such controlled substance shall be punished, unless a greater penalty is provided pursuant to NRS 453.322, if the quantity involved:1. Is 28 grams or more, but less than 200 grams, for a category C felony as provided in NRS 193.130 and by a fine of not more than $50,000.2. Is 200 grams or more, but less than 400 grams, for a category B felony by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 10 years and by a fine of not more than $100,000.3. Is 400 grams or more, for a category A felony by imprisonment in the state prison:(a) For life with the possibility of parole, with eligibility for parole beginning when a minimum of 5 years has been served; or(b) For a definite term of 15 years, with eligibility for parole beginning when a minimum of 5 years has been served,--> and by a fine of not more than $250,000.
- Hillis v. State, 103 Nev. 531, 746 P.2d 1092 (1987)(Merely simple cocaine possession is trafficking if it amounts to 28 grams or more.).
- List of controlled substances, U.S. Department of Justice, Drug Enforcement Administration, Diversion Control Division.
- NRS 453.3395.
- NRS 454.351.
- NRS 453.3395.
- Sheriff, Humboldt County v. Lang, 104 Nev. 539, 763 P.2d 56 (1988) (“28 grams or more” refers to the aggregate weight of the whole mixture, not the weight of the controlled substance that is contained in the mixture.).
- Salviejo-Fernandez v. Gonzales, 455 F.3d 1063, 1066 (9th Cir. 2006).
- NRS 179.245.
- NRS 179.255.