A. It is unlawful for any person:

(1) who is a registrant to distribute a controlled substance classified in Schedules [Schedule] I or II, except pursuant to an order form as required by Section 30-31-17 NMSA 1978;

(2) to intentionally use in the course of the manufacture or distribution of a controlled substance a registration number which is fictitious, revoked, suspended or issued to another person;

(3) to intentionally acquire or obtain, or attempt to acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge;

(4) to intentionally furnish false or fraudulent material information in, or omit any material information from, any application, report or other document required to be kept or filed under the Controlled Substances Act, or any record required to be kept by that act; or

(5) to intentionally make, distribute or possess any punch, die, plate, stone or other thing designed to print, imprint or reproduce the trademark, trade name or other identifying mark, imprint or device of another or any likeness of any of the foregoing, upon any drug or container or labeling thereof so as to render the drug a counterfeit substance.

B. Any person who violates this section is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

History: 1953 Comp., § 54-11-25, enacted by Laws 1972, ch. 84, § 25; 1974, ch. 9, § 6; 1979, ch. 122, § 1; 1980, ch. 23, § 6.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Cross references. — For meaning of "counterfeit substance", see 30-31-2 NMSA 1978.

For forgery, see 30-16-10 NMSA 1978.

Title of act constitutionally adequate. — Sections 30-31-20 to 30-31-25 NMSA 1978, which define unlawful activities and provide penalties therefor, are not unconstitutional on grounds that "unlawful activities" are not mentioned in the title of the act. State v. Atencio, 1973-NMCA-110, 85 N.M. 484, 513 P.2d 1266, cert. denied, 85 N.M. 483, 513 P.2d 1265.

Subsection A(3) is not impermissibly vague. — Subsection A(3) provides a person with fair warning of the nature of the proscribed act, and it is therefore not impermissibly vague. State v. Mirabal, 1989-NMCA-057, 108 N.M. 749, 779 P.2d 126, cert. denied, 108 N.M. 713, 778 P.2d 911.

Section 30-28-1 NMSA 1978 does not apply to attempts covered by Subsection A(3). — The legislature intended to punish attempts under Subsection A(3) specifically as felonies and consequently, Section 30-28-1 NMSA 1978 does not apply to such attempts covered by Subsection A(3). State v. Mirabal, 1989-NMCA-057, 108 N.M. 749, 779 P.2d 126, cert. denied, 108 N.M. 713, 778 P.2d 911.

Application of Subsection A(3) to a physician does not violate due process guarantees because effecting delivery through a prescription not for a legitimate medical purpose is prohibited as distribution or trafficking. State v. Carr, 1981-NMCA-029, 95 N.M. 755, 626 P.2d 292, cert. denied, 95 N.M. 669, 625 P.2d 1186, and cert. denied, 454 U.S. 853, 102 S. Ct. 298, 70 L. Ed. 2d 145 (1981), overruled on other grounds by State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92, aff'd in part, 1995-NMSC-077, 120 N.M. 740, 906 P.2d 731.

Subsection A(3) not more specific statute than Section 30-31-20 NMSA 1978. — A defendant charged with attempt to traffic cocaine under Section 30-31-20 NMSA 1978 was not entitled to be charged under Subsection A(3) of this section since the elements defined in both offenses are so distinct that the specific-statute doctrine had no application. State v. Villalobos, 1995-NMCA-105, 120 N.M. 694, 905 P.2d 732, cert. quashed, 121 N.M. 676, 916 P.2d 1343 (1996).

Proof of possession. — In a prosecution for violation of Subsection A(3), constructive possession requires no more than knowledge of a narcotic and control over it; control, in turn, requires no more than the power to produce or dispose of the narcotic. State v. Carr, 1981-NMCA-029, 95 N.M. 755, 626 P.2d 292, cert. denied, 95 N.M. 669, 625 P.2d 1186, and cert. denied, 454 U.S. 853, 102 S. Ct. 298, 70 L. Ed. 2d 145 (1981), overruled on other grounds by State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92, aff'd in part, 1995-NMSC-077, 120 N.M. 740, 906 P.2d 731.

Constructive possession. — In addition to proof of defendant's knowledge of the presence and character of the item possessed, the state must show the immediate right to exercise dominion and control over the narcotics to establish constructive possession. State v. Carr, 1981-NMCA-029, 95 N.M. 755, 626 P.2d 292, cert. denied, 95 N.M. 669, 625 P.2d 1186, and cert. denied, 454 U.S. 853, 102 S. Ct. 298, 70 L. Ed. 2d 145 (1981), overruled on other grounds by State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92, aff'd in part, 1995-NMSC-077, 120 N.M. 740, 906 P.2d 731.

By circumstantial evidence. — Proof of possession of a controlled substance may be through circumstantial evidence. State v. Carr, 1981-NMCA-029, 95 N.M. 755, 626 P.2d 292, cert. denied, 95 N.M. 669, 625 P.2d 1186, and cert. denied, 454 U.S. 853, 102 S. Ct. 298, 70 L. Ed. 2d 145 (1981), overruled on other grounds by State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92, aff'd in part, 1995-NMSC-077, 120 N.M. 740, 906 P.2d 731.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Drugs, Narcotics and Poisons §§ 17, 19, 33, 130, 141, 191, 206.

Narcotics conviction as crime of moral turpitude justifying disbarment or other disciplinary action against attorney, 99 A.L.R.3d 288.

State law criminal liability of licensed physician for prescribing or dispensing drug or similar controlled substance, 13 A.L.R.5th 1.

28 C.J.S. Drugs and Narcotics § 117 et seq.