§ 13-3408 — Possession, use, administration, acquisition, sale, manufacture or transportation of narcotic drugs; classification

A. Except as provided in section 36-2850, paragraph 19, subdivision (b), section 36-2852 and section 36-2853, subsection C, a person shall not knowingly:

1. Possess or use a narcotic drug.

2. Possess a narcotic drug for sale.

3. Possess equipment or chemicals, or both, for the purpose of manufacturing a narcotic drug.

4. Manufacture a narcotic drug.

5. Administer a narcotic drug to another person.

6. Obtain or procure the administration of a narcotic drug by fraud, deceit, misrepresentation or subterfuge.

7. Transport for sale, import into this state, offer to transport for sale or import into this state, sell, transfer or offer to sell or transfer a narcotic drug.

B. A person who violates:

1. Subsection A, paragraph 1 of this section is guilty of a class 4 felony.

2. Subsection A, paragraph 2 of this section is guilty of a class 2 felony.

3. Subsection A, paragraph 3 of this section is guilty of a class 3 felony.

4. Subsection A, paragraph 4 of this section is guilty of a class 2 felony.

5. Subsection A, paragraph 5 of this section is guilty of a class 2 felony.

6. Subsection A, paragraph 6 of this section is guilty of a class 3 felony.

7. Subsection A, paragraph 7 of this section is guilty of a class 2 felony.

C. A person who is convicted of a violation of subsection A, paragraph 1, 3 or 6 of this section and who has not previously been convicted of any felony or who has not been sentenced pursuant to section 13-703, section 13-704, subsection A, B, C, D or E, section 13-706, subsection A, section 13-708, subsection D or any other provision of law making the convicted person ineligible for probation is eligible for probation.

D. If the aggregate amount of narcotic drugs involved in one offense or all of the offenses that are consolidated for trial equals or exceeds the statutory threshold amount, a person who is convicted of a violation of subsection A, paragraph 2, 5 or 7 of this section is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis until the person has served the sentence imposed by the court, the person is eligible for release pursuant to section 41-1604.07 or the sentence is commuted.

E. A person who is convicted of a violation of subsection A, paragraph 4 of this section is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis until the person has served the sentence imposed by the court, the person is eligible for release pursuant to section 41-1604.07 or the sentence is commuted.

F. If the person is convicted of a violation of subsection A, paragraph 2 or 7 of this section and the violation involves the sale to another person of fentanyl in an amount of at least two hundred grams, the person shall be sentenced as follows:

MinimumPresumptiveMaximum

5 calendar years 10 calendar years 15 calendar years

A person who has previously been convicted of a violation of subsection A, paragraph 2 or 7 of this section involving the sale to another person of fentanyl in an amount of at least two hundred grams shall be sentenced as follows:

MinimumPresumptiveMaximum

10 calendar years 15 calendar years 20 calendar years

G. The presumptive term imposed pursuant to subsection F of this section may be mitigated or aggravated pursuant to section 13-701, subsections D and E.

H. If the person is convicted of a violation of subsection A, paragraphs 2 and 7 of this section and the violation involves the possession of fentanyl in a motor vehicle in an amount of at least two hundred grams, the person shall be sentenced as follows:

MinimumPresumptiveMaximum

5 calendar years 10 calendar years 15 calendar years

A person who has previously been convicted of a violation of subsection A, paragraphs 2 and 7 of this section involving the possession of fentanyl in a motor vehicle in an amount of at least two hundred grams shall be sentenced as follows:

MinimumPresumptiveMaximum

10 calendar years 15 calendar years 20 calendar years

I. The presumptive term imposed pursuant to subsection H of this section may be mitigated or aggravated pursuant to section 13-701, subsections D and E.

J. In addition to any other penalty prescribed by this title, the court shall order a person who is convicted of a violation of this section to pay a fine of not less than $2,000 or three times the value as determined by the court of the narcotic drugs involved in or giving rise to the charge, whichever is greater, and not more than the maximum authorized by chapter 8 of this title. A judge shall not suspend any part or all of the imposition of any fine required by this subsection.

K. A person who is convicted of a violation of this section for which probation or release before the expiration of the sentence imposed by the court is authorized is prohibited from using any marijuana, dangerous drug, narcotic drug or prescription-only drug except as lawfully administered by a health care practitioner and as a condition of any probation or release shall be required to submit to drug testing administered under the supervision of the probation department of the county or the state department of corrections, as appropriate, during the duration of the term of probation or before the expiration of the sentence imposed.

L. If a person who is convicted of a violation of this section is granted probation, the court shall order that as a condition of probation the person perform not less than three hundred sixty hours of community restitution with an agency or organization that provides counseling, rehabilitation or treatment for alcohol or drug abuse, an agency or organization that provides medical treatment to persons who abuse controlled substances, an agency or organization that serves persons who are victims of crime or any other appropriate agency or organization.