[§329-43.5]  Prohibited acts related to drug

paraphernalia.  (a)  It is unlawful for any person to use, or to possess

with intent to use, drug paraphernalia to plant, propagate, cultivate, grow,

harvest, manufacture, compound, convert, produce, process, prepare, test,

analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or

otherwise introduce into the human body a controlled substance in violation of

this chapter.  Any person who violates this section is guilty of a class C

felony and upon conviction may be imprisoned pursuant to section 706-660 and,

if appropriate as provided in section 706-641, fined pursuant to section

706-640.

     (b)  It is unlawful for any person to deliver,

possess with intent to deliver, or manufacture with intent to deliver, drug

paraphernalia, knowing, or under circumstances where one reasonably should

know, that it will be used to plant, propagate, cultivate, grow, harvest,

manufacture, compound, convert, produce, process, prepare, test, analyze, pack,

repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce

into the human body a controlled substance in violation of this chapter.  Any

person who violates this section is guilty of a class C felony and upon

conviction may be imprisoned pursuant to section 706-660 and, if appropriate as

provided in section 706-641, fined pursuant to section 706-640.

     (c)  Any person eighteen years of age or over

who violates subsection (b) by delivering drug paraphernalia to a person or

persons under eighteen years of age who are at least three years younger than

that adult person is guilty of a class B felony and upon conviction may be

imprisoned pursuant to section 706-660 and if appropriate as provided in

section 706-641, fined pursuant to section 706-640.

     (d)  It is unlawful for any person to place in

any newspaper, magazine, handbill, or other publication any advertisement,

knowing, or under circumstances where one reasonably should know, that the

purpose of the advertisement, in whole or in part, is to promote the sale of

objects designed or intended for use as drug paraphernalia.  Any person who

violates this section is guilty of a class C felony and upon conviction may be

imprisoned pursuant to section 706-660 and, if appropriate as provided in

section 706-641, fined pursuant to section 706-640. [L 1988, c 259, §2]

 

Cross References

 

  Forfeitures, see §329-55.

  Sale of sterile syringes for the prevention of disease, see

§325-21.

 

Case Notes

 

  In a prosecution under subsection (b):  of a merchant, jury

should be instructed that it must first find that the defendant-seller

delivered the object(s) in question to the buyer with the specific intent that

the object(s) be used with illegal drugs; trial court should provide jury with

an instruction enumerating all fourteen factors listed in the statutory

definition of drug paraphernalia.  75 H. 80, 856 P.2d 1246.

  Subsection (b):  not void for vagueness; contains mens rea

requirement of "intentionally"; mere fact that the buyer is actually

an undercover police officer, which fact is unknown to the defendant, cannot

render it "factually and legally" impossible that the defendant

should reasonably have known that the items sold would be used with illegal

drugs.  75 H. 80, 856 P.2d 1246.

  No error in court failing to dismiss count against defendant

for possessing "everyday household items not intended or designed for use

as drug paraphernalia" as broad definition of drug paraphernalia and

multiple examples of such contraband enumerated in §329-1 weighed against

defendant's contention that the ordinary nature of the containers defendant

possessed did not involve the harm or evil sought to be avoided under this

section or amounted to extenuations that would not have been envisioned by the

legislature.  98 H. 196, 46 P.3d 498.

  Legislature intended to impose penal sanctions for

constructive and actual possession of contraband items.  8 H. App. 610, 822

P.2d 23.

  Insufficient evidence to support jury's verdict that

defendant possessed scale with intent to use it for any of the purposes stated

in subsection (a).  92 H. 472 (App.), 992 P.2d 741.