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CHAPTER 19-03.4
DRUG PARAPHERNALIA
19-03.4-01. Definition - Drug paraphernalia.
In this chapter, unless the context otherwise requires, "drug paraphernalia" means all
equipment, products, and materials of any kind which are used, intended for use, or designed
for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding,
converting, producing, processing, preparing, testing, analyzing, packaging, repackaging,
storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the
human body a controlled substance in violation of chapter 19-03.1. The term includes:
1. Kits used, intended for use, or designed for use in planting, propagating, cultivating,
growing, or harvesting of any species of plant which is a controlled substance or from
which a controlled substance can be derived.
2. Kits used, intended for use, or designed for use in manufacturing, compounding,
converting, producing, processing, or preparing controlled substances.
3. Isomerization devices used, intended for use, or designed for use in increasing the
potency of any species of plant which is a controlled substance.
4. Testing equipment used, intended for use, or designed for use in identifying or in
analyzing the strength, effectiveness, or purity of controlled substances.
5. Scales and balances used, intended for use, or designed for use in weighing or
measuring controlled substances.
6. Diluents and adulterants, including quinine hydrochloride, mannitol, dextrose, and
lactose, used, intended for use, or designed for use in cutting controlled substances.
7. Separation gins and sifters used, intended for use, or designed for use in removing
twigs and seeds from, or in otherwise cleaning or refining, marijuana.
8. Blenders, bowls, containers, spoons, grinders, and mixing devices used, intended for
use, or designed for use in compounding, manufacturing, producing, processing, or
preparing controlled substances.
9. Capsules, balloons, envelopes, and other containers used, intended for use, or
designed for use in packaging small quantities of controlled substances.
10. Containers and other objects used, intended for use, or designed for use in storing or
concealing controlled substances or products or materials used or intended for use in
manufacturing, producing, processing, or preparing controlled substances.
11. Hypodermic syringes, needles, and other objects used, intended for use, or designed
for use in parenterally injecting controlled substances into the human body.
12. Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise
introducing marijuana, cocaine, hashish, or hashish oil into the human body, including:
a. Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without
screens, permanent screens, hashish heads, or punctured metal bowls.
b. Water pipes.
c. Carburetion tubes and devices.
d. Smoking and carburetion masks.
e. Objects, sometimes commonly referred to as roach clips, used to hold burning
material, for example, a marijuana cigarette, that has become too small or too
short to be held in the hand.
f. Miniature cocaine spoons and cocaine vials.
g. Chamber pipes.
h. Carburetor pipes.
i. Electric pipes.
j. Air-driven pipes.
k. Chillums.
l. Bongs.
m. Ice pipes or chillers.
13. Ingredients or components to be used or intended or designed to be used in
manufacturing, producing, processing, preparing, testing, or analyzing a controlled
substance, whether or not otherwise lawfully obtained, including anhydrous ammonia,
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nonprescription medications, methamphetamine
dispensed controlled substances.
precursor
drugs,
or
lawfully
19-03.4-02. Drug paraphernalia - Guidelines.
In determining whether an object is drug paraphernalia, a court or other authority shall
consider, in addition to all other logically relevant factors:
1. Statements by an owner or by anyone in control of the object concerning its use.
2. Prior convictions, if any, of an owner, or of anyone in control of the object, under any
state or federal law relating to any controlled substance.
3. The proximity of the object, in time and space, to a direct violation of chapter 19-03.1.
4. The proximity of the object to controlled substances.
5. The existence of any residue of controlled substances on the object.
6. Direct or circumstantial evidence of the intent of an owner, or of any person in control
of the object, to deliver the object to another person whom the owner or person in
control of the object knows, or should reasonably know, intends to use the object to
facilitate a violation of chapter 19-03.1. The innocence of an owner, or of any person in
control of the object, as to a direct violation of chapter 19-03.1 may not prevent a
finding that the object is intended or designed for use as drug paraphernalia.
7. Instructions, oral or written, provided with the object concerning the object's use.
8. Descriptive materials accompanying the object which explain or depict the object's
use.
9. National and local advertising concerning the object's use.
10. The manner in which the object is displayed for sale.
11. Whether the owner, or anyone in control of the object, is a legitimate supplier of like or
related items to the community, for example, a licensed distributor or dealer of tobacco
products.
12. Direct or circumstantial evidence of the ratio of sales of the object or objects to the
total sales of the business enterprise.
13. The existence and scope of legitimate uses for the object in the community.
14. Expert testimony concerning the object's use.
15. The actual or constructive possession by the owner or by a person in control of the
object or the presence in a vehicle or structure where the object is located of written
instructions, directions, or recipes to be used, or intended or designed to be used, in
manufacturing, producing, processing, preparing, testing, or analyzing a controlled
substance.
16. Whether the object is a needle or syringe collected during the operation of a needle
exchange program under chapter 23-01 to aid in the prevention of bloodborne
diseases.
19-03.4-03. Unlawful possession of drug paraphernalia - Penalty.
1. A person may not use or 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, or conceal a controlled
substance in violation of chapter 19-03.1. A person violating this subsection is guilty of
a class C felony if the drug paraphernalia is used, or possessed with intent to be used,
to manufacture, compound, convert, produce, process, prepare, test, or analyze a
controlled substance, other than marijuana, classified in schedule I, II, or III of chapter
19-03.1.
2. A person may not use or possess with the intent to use drug paraphernalia to inject,
ingest, inhale, or otherwise induce into the human body a controlled substance, other
than marijuana, classified in schedule I, II, or III of chapter 19-03.1. A person violating
this subsection is guilty of a class A misdemeanor. If a person previously has been
convicted of an offense under this title, other than an offense related to marijuana, or
an equivalent offense from another court in the United States, a violation of this
subsection is a class C felony.
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3.
4.
5.
6.
A person may not use or possess with intent to use drug paraphernalia to plant,
propagate, cultivate, grow, harvest, manufacture, compound, convert, produce,
process, prepare, test, analyze, pack, or repack marijuana in violation of chapter
19-03.1. A person violating this subsection is guilty of a class A misdemeanor.
A person may not use or possess with the intent to use drug paraphernalia to ingest,
inhale, or otherwise introduce into the human body marijuana or possess with the
intent to use drug paraphernalia to store or contain marijuana in violation of
chapter 19-03.1. A person violating this subsection is guilty of an infraction.
A person sentenced to the legal and physical custody of the department of corrections
and rehabilitation under this section may be placed in a drug and alcohol treatment
program as designated by the department. Upon the successful completion of the drug
and alcohol treatment program, the department shall release the person from
imprisonment to begin any court-ordered period of probation. If the person is not
subject to court-ordered probation, the court may order the person to serve the
remainder of the sentence of imprisonment on supervised probation subject to the
terms and conditions imposed by the court.
Probation under this section may include placement in another facility, treatment
program, or drug court. If the person is placed in another facility or treatment program
upon release from imprisonment, the remainder of the sentence must be considered
as time spent in custody.
19-03.4-04. Unlawful manufacture or delivery of drug paraphernalia - Penalty.
A person may not deliver, possess with intent to deliver, or manufacture with intent to
deliver, drug paraphernalia, if that person knows or should reasonably know that the drug
paraphernalia 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 chapter 19-03.1. Any person violating this section is guilty of a class C
felony if the drug paraphernalia will be used to manufacture, compound, convert, produce,
process, prepare, test, inject, ingest, inhale, or analyze a controlled substance, other than
marijuana, classified in schedule I, II, or III of chapter 19-03.1. Otherwise, a violation of this
section is a class A misdemeanor.
19-03.4-05. Unlawful delivery of drug paraphernalia to a minor - Penalty.
A person eighteen years of age or over may not deliver drug paraphernalia, in violation of
this chapter, to a person under eighteen years of age who is at least three years the deliverer's
junior. Any person violating this section is guilty of a class C felony.
19-03.4-06. Unlawful advertisement of drug paraphernalia - Penalty.
A person may not place an advertisement in any newspaper, magazine, handbill, or other
publication if that person knows or should reasonably 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 violating this section is guilty of a class A misdemeanor.
19-03.4-07. Prima facie proof of intent.
Possession of more than twenty-four grams of a methamphetamine precursor drug or
combination of methamphetamine precursor drugs calculated in terms of ephedrine HCI and
pseudoephedrine HCI is prima facie evidence of intent to violate sections 19-03.4-03 and
19-03.4-04. This section does not apply to a practitioner as defined in section 19-03.1-01 or to a
product possessed in the course of a legitimate and lawful business.
19-03.4-08. Retail or over-the-counter sale of scheduled listed chemical products Penalty.
1. The retail sale of scheduled listed chemical products is limited to:
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a.
2.
3.
4.
5.
6.
7.
Sales in packages containing not more than a total of two grams of one or more
scheduled listed chemical products, calculated in terms of ephedrine base,
pseudoephedrine base, and phenylpropanolamine base; and
b. Sales in blister packs, each blister containing not more than two dosage units, or
when the use of blister packs is technically infeasible, sales in unit dose packets
or pouches.
A person may not:
a. Deliver in a single over-the-counter sale more than two packages of a scheduled
listed chemical product or a combination of scheduled listed chemical products;
or
b. Without regard to the number of over-the-counter sales, deliver more than a daily
amount of three and six-tenths grams of scheduled listed chemical products,
calculated in terms of ephedrine base, pseudoephedrine base, and
phenylpropanolamine base, to a purchaser.
When offering scheduled listed chemical products for sale, the person shall place the
products behind a counter or other barrier, or in a locked cabinet, where purchasers do
not have direct access to the products before the sale is made.
a. When offering scheduled listed chemical products for retail sale, a person shall
require, obtain, and make a written record of the identification of the person
purchasing the scheduled listed chemical product, the identification being a
document issued by a government agency as described in subdivisions a and b
of subsection 6, and shall deliver the product directly into the custody of the
purchaser.
b. The person shall maintain a written list of sales that identifies the product by
name, the quantity sold, the names and addresses of the purchasers, the dates
and times of the sales, a unique identification number relating to the electronic
record submitted into the electronic recordkeeping system described in
subsection 13, and a notice to a purchaser that the making of false statements or
misrepresentations may subject the purchaser to federal and state criminal
penalties. The purchaser shall sign the written list of sales and enter the
purchaser's name, address, and the date and time of the sale. The person
making the sale shall determine that the name entered by the purchaser
corresponds with the name on the identification provided by the purchaser and
that the date and time of the purchase is correct. The person making the sale
shall enter the name of the product and the quantity sold on the list.
c. Before completing the transaction, the person making the sale shall submit all the
information from the written record into the electronic recordkeeping system
described in subsection 13.
d. The person shall maintain the record of identification required by this section for
three years, after which the record must be destroyed. The person may not use
or maintain the record for any private or commercial purpose or disclose the
record to any person, except as required by law. The person shall disclose the
record, upon request, to a law enforcement agency for a law enforcement
purpose. A person who in good faith releases the information in the record of
identification to federal, state, or local law enforcement authorities is immune from
civil liability for such release unless the release constitutes gross negligence or
intentional, wanton, or willful misconduct.
A person may not deliver in an over-the-counter sale a scheduled listed chemical
product to a person under the age of eighteen years.
It is a prima facie case of a violation of subsection 5 if the person making the sale did
not require and obtain proof of age from the purchaser. "Proof of age" means a
document issued by a governmental agency which:
a. Contains a description of the person or a photograph of the person, or both, and
gives the person's date of birth; and
b. Includes a passport, military identification card, or driver's license.
It is an affirmative defense to a violation of subsection 5 if:
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a.
8.
9.
10.
11.
12.
13.
The person making the sale required and obtained proof of age from the
purchaser;
b. The purchaser falsely represented the purchaser's proof of age by use of a false,
forged, or altered document;
c. The appearance of the purchaser was such that an ordinary and prudent person
would believe the purchaser to be at least eighteen years of age; and
d. The sale was made in good faith and in reliance upon the appearance and
representation of proof of age of the purchaser.
This section does not apply to a product that the state board of pharmacy, upon
application of a manufacturer, exempts from this section because the product has
been formulated in such a way as to effectively prevent the conversion of the active
ingredient into methamphetamine, or its salts or precursors.
A person may not:
a. Make a false statement or misrepresentation in the written list of sale that is
prepared and maintained as required by subsection 4; or
b. Purchase more than nine grams of ephedrine base, pseudoephedrine base, or
phenylpropanolamine base in scheduled listed chemical products in a thirty-day
period.
A person who willfully violates subsection 1 or 9 is guilty of a class A misdemeanor. A
person who willfully violates subsection 2, 3, 4, or 5 is guilty of an infraction.
A person who is the owner, operator, or manager of the retail outlet or who is the
supervisor of the employee or agent committing a violation of this section of the outlet
where scheduled listed chemical products are available for sale is not subject to the
penalties of this section if the person:
a. Did not have prior knowledge of, participate in, or direct the employee or agent to
commit, the violation of this section; and
b. Certifies to the attorney general that the employee or agent, at the time of initial
employment and each calendar year thereafter, participated in a training program
approved by the attorney general providing the employee or agent with
information regarding the state and federal regulations governing the sale,
possession, and packaging of such products.
The approval of the training program by the attorney general is not subject to chapter
28-32.
A political subdivision, including a home rule city or county, may not enact any
ordinance relating to the sale by a retail distributor of over-the-counter products
containing ephedrine, pseudoephedrine, or phenylpropanolamine. Any existing
ordinance is void.
a. The bureau of criminal investigation shall provide retailers of listed chemical
products access to a real-time electronic recordkeeping system to enter into the
record system any transaction required to be recorded by subsection 4.
b. The real-time electronic recordkeeping system must be maintained in a central
repository as defined in subsection 1 of section 19-03.5-01, and must have the
capability to calculate state and federal ephedrine base, pseudoephedrine base,
and phenylpropanolamine base purchase limitations.
c. The electronic recordkeeping system must include a record of all the information
in the written record, the unique identification number, and certification that a
signature has been obtained.
d. The information entered into the electronic recordkeeping system is subject to
subdivision d of subsection 4.
e. If feasible, the prescription drug monitoring system utilized under chapter 19-03.5
may be used as the electronic recordkeeping system. The bureau of criminal
investigation may contract with a private vendor to implement this subsection. A
contractor shall comply with the confidentiality requirements of this chapter and is
subject to sanctions for violation of confidentiality requirements, including
termination of the contract.
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f.
The bureau of criminal investigation may not charge a retailer a fee for the
establishment of, maintenance of, or access to, the electronic recordkeeping
system.
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