28-442. Drug paraphernalia; deliver or manufacture; unlawful; exception; penalty.

(1) It shall be unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver, drug paraphernalia, knowing, or under circumstances in which one reasonably should know, that it will be used to manufacture, inject, ingest, or inhale or otherwise be used to introduce into the human body a controlled substance in violation of sections 28-101, 28-431, and 28-439 to 28-444.

(2) This section shall not apply to pharmacists, pharmacist interns, pharmacy technicians, and pharmacy clerks who sell hypodermic syringes or needles for the prevention of the spread of infectious diseases.

(3) Any person who violates this section shall be guilty of a Class II misdemeanor.

Source

Annotations

Sections of drug paraphernalia statute making it unlawful to deliver, possess with intent to deliver, manufacture with intent to deliver, or advertise drug paraphernalia in circumstances where one knows or "reasonably should know" that items will be used with drugs or that purpose of advertisement is to promote sale of drug paraphernalia are not unconstitutional on ground that they would permit conviction under impermissibly vague negligence standard and would leave innocent sellers in untenable posture of trying to divine intentions of their buyers where, under sections, seller has to already have intended that item be sold for drug use before his knowledge of its use by a buyer came into play. Casbah, Inc. v. Thone, 651 F.2d 551 (8th Cir. 1981).

Where statute includes requirement of intent in definition of drug paraphernalia and enumerates factors which officer has to consider in determining whether object is drug paraphernalia, statute does not alter requirement that searches and seizures be based on probable cause and is thus not violative of Fourth Amendment. Casbah, Inc. v. Thone, 651 F.2d 551 (8th Cir. 1981).