NRS § 454.351 – Drugs Which May Not Be Introduced Into Interstate Commerce (“ITS”)

Nevada Revised Statute § 454.351 is a misdemeanor “catch-all” drug charge that many first-time drug offenders plead to after initially facing felony-level drug charges. Misdemeanors carry up to six months in jail and/or $1,000 in fines.

The text of the statute reads:

NRS 454.351 – Drugs which may not be introduced into interstate commerce; penalty; exemptions.

1. Any person within this State who possesses, procures, obtains, processes, produces, derives, manufactures, sells, offers for sale, gives away or otherwise furnishes any drug which may not be lawfully introduced into interstate commerce under the Federal Food, Drug and Cosmetic Act is guilty of a misdemeanor.

2. The provisions of this section do not apply:
(a) To physicians licensed to practice in this State who have been authorized by the United States Food and Drug Administration to possess experimental drugs for the purpose of conducting research to evaluate the effectiveness of such drugs and who maintain complete and accurate records of the use of such drugs and submit clinical reports as required by the United States Food and Drug Administration.
(b) To any substance which has been licensed by the State Board of Health for manufacture in this State but has not been approved as a drug by the United States Food and Drug Administration. The exemption granted in this paragraph does not grant authority to transport such a substance out of this State.
(c) To any person or governmental entity who possesses, procures, obtains, processes, produces, derives, manufactures, sells, offers for sale, gives away or otherwise furnishes an individualized investigational treatment or investigational drug or biological product when authorized pursuant to NRS 454.690.
(d) To any physician who prescribes or recommends an individualized investigational treatment or investigational drug or biological product pursuant to NRS 630.3735 or 633.6945.

3. As used in this section:
(a) “Biological product” has the meaning ascribed to it in NRS 454.690.
(b) “Individualized investigational treatment” has the meaning ascribed to it in NRS 454.690.
(c) “Investigational drug or biological product” means a drug orbiological product that:
(1) Has successfully completed Phase 1 of a clinical trial;
(2) Has not been approved by the United States Food and Drug Administration; and
(3) Is currently being tested in a clinical trial that has been approved by the United States Food and Drug Administration.

Legal Analysis

Nevada Revised Statute 454.351 makes it a misdemeanor to do any of the following with drugs illegally introduced into interstate commerce under the FD&C Act:

• possessing,
• procuring,
• obtaining,
• processing,
• producing,
• deriving,
• manufacturing,
• selling,
• offering for sale,
• giving away, and/or
• otherwise furnishing.¹

The shorthand name for this crime is ITS. As a misdemeanor, the penalties for committing ITS are:

• Up to 6 months in jail and/or
• Up to $1,000 in fines.²

In practice, Nevada prosecutors often offer first-time offenders charged with felony-level drug possession a plea deal where their case gets reduced to ITS.

Example: Brenda gets arrested for possessing two grams of cocaine, which is normally a category E felony. Since it is her first criminal charge, the D.A. offers to reduce it to an ITS.

The benefits of an ITS conviction over a felony drug conviction include:

• Misdemeanors carry lesser punishments than felonies;
• You do not lose your gun rights; and
• You have to wait only one year after the case ends to pursue a record seal.³

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Legal References