NE Code § 28-416 (2021)
2021 Nebraska Revised Statutes|Chapter 28 - Crimes and Punishments|28-416 - Prohibited acts; violations; penalties.

28-416.  Prohibited acts; violations; penalties.(1) Except as authorized by the Uniform Controlled Substances Act, it shall be unlawful for any person knowingly or intentionally: (a) To manufacture, distribute, deliver, dispense, or possess with intent to manufacture, distribute, deliver, or dispense a controlled substance; or (b) to create, distribute, or possess with intent to distribute a counterfeit controlled substance.(2) Except as provided in subsections (4), (5), (7), (8), (9), and (10) of this section, any person who violates subsection (1) of this section with respect to: (a) A controlled substance classified in Schedule I, II, or III of section 28-405 which is an exceptionally hazardous drug shall be guilty of a Class II felony; (b) any other controlled substance classified in Schedule I, II, or III of section 28-405 shall be guilty of a Class IIA felony; or (c) a controlled substance classified in Schedule IV or V of section 28-405 shall be guilty of a Class IIIA felony.(3) A person knowingly or intentionally possessing a controlled substance, except marijuana or any substance containing a quantifiable amount of the substances, chemicals, or compounds described, defined, or delineated in subdivision (c)(25) of Schedule I of section 28-405, unless such substance was obtained directly or pursuant to a medical order issued by a practitioner authorized to prescribe while acting in the course of his or her professional practice, or except as otherwise authorized by the act, shall be guilty of a Class IV felony. A person shall not be in violation of this subsection if section 28-472 applies.(4)(a) Except as authorized by the Uniform Controlled Substances Act, any person eighteen years of age or older who knowingly or intentionally manufactures, distributes, delivers, dispenses, or possesses with intent to manufacture, distribute, deliver, or dispense a controlled substance or a counterfeit controlled substance (i) to a person under the age of eighteen years, (ii) in, on, or within one thousand feet of the real property comprising a public or private elementary, vocational, or secondary school, a community college, a public or private college, junior college, or university, or a playground, or (iii) within one hundred feet of a public or private youth center, public swimming pool, or video arcade facility shall be punished by the next higher penalty classification than the penalty prescribed in subsection (2), (7), (8), (9), or (10) of this section, depending upon the controlled substance involved, for the first violation and for a second or subsequent violation shall be punished by the next higher penalty classification than that prescribed for a first violation of this subsection, but in no event shall such person be punished by a penalty greater than a Class IB felony.(b) For purposes of this subsection:(i) Playground means any outdoor facility, including any parking lot appurtenant to the facility, intended for recreation, open to the public, and with any portion containing three or more apparatus intended for the recreation of children, including sliding boards, swingsets, and teeterboards;(ii) Video arcade facility means any facility legally accessible to persons under eighteen years of age, intended primarily for the use of pinball and video machines for amusement, and containing a minimum of ten pinball or video machines; and(iii) Youth center means any recreational facility or gymnasium, including any parking lot appurtenant to the facility or gymnasium, intended primarily for use by persons under eighteen years of age which regularly provides athletic, civic, or cultural activities.(5)(a) Except as authorized by the Uniform Controlled Substances Act, it shall be unlawful for any person eighteen years of age or older to knowingly and intentionally employ, hire, use, cause, persuade, coax, induce, entice, seduce, or coerce any person under the age of eighteen years to manufacture, transport, distribute, carry, deliver, dispense, prepare for delivery, offer for delivery, or possess with intent to do the same a controlled substance or a counterfeit controlled substance.(b) Except as authorized by the Uniform Controlled Substances Act, it shall be unlawful for any person eighteen years of age or older to knowingly and intentionally employ, hire, use, cause, persuade, coax, induce, entice, seduce, or coerce any person under the age of eighteen years to aid and abet any person in the manufacture, transportation, distribution, carrying, delivery, dispensing, preparation for delivery, offering for delivery, or possession with intent to do the same of a controlled substance or a counterfeit controlled substance.(c) Any person who violates subdivision (a) or (b) of this subsection shall be punished by the next higher penalty classification than the penalty prescribed in subsection (2), (7), (8), (9), or (10) of this section, depending upon the controlled substance involved, for the first violation and for a second or subsequent violation shall be punished by the next higher penalty classification than that prescribed for a first violation of this subsection, but in no event shall such person be punished by a penalty greater than a Class IB felony.(6) It shall not be a defense to prosecution for violation of subsection (4) or (5) of this section that the defendant did not know the age of the person through whom the defendant violated such subsection.(7) Any person who violates subsection (1) of this section with respect to cocaine or any mixture or substance containing a detectable amount of cocaine in a quantity of:(a) One hundred forty grams or more shall be guilty of a Class IB felony;(b) At least twenty-eight grams but less than one hundred forty grams shall be guilty of a Class IC felony; or(c) At least ten grams but less than twenty-eight grams shall be guilty of a Class ID felony.(8) Any person who violates subsection (1) of this section with respect to base cocaine (crack) or any mixture or substance containing a detectable amount of base cocaine in a quantity of:(a) One hundred forty grams or more shall be guilty of a Class IB felony;(b) At least twenty-eight grams but less than one hundred forty grams shall be guilty of a Class IC felony; or(c) At least ten grams but less than twenty-eight grams shall be guilty of a Class ID felony.(9) Any person who violates subsection (1) of this section with respect to heroin or any mixture or substance containing a detectable amount of heroin in a quantity of:(a) One hundred forty grams or more shall be guilty of a Class IB felony;(b) At least twenty-eight grams but less than one hundred forty grams shall be guilty of a Class IC felony; or(c) At least ten grams but less than twenty-eight grams shall be guilty of a Class ID felony.(10) Any person who violates subsection (1) of this section with respect to amphetamine, its salts, optical isomers, and salts of its isomers, or with respect to methamphetamine, its salts, optical isomers, and salts of its isomers, in a quantity of:(a) One hundred forty grams or more shall be guilty of a Class IB felony;(b) At least twenty-eight grams but less than one hundred forty grams shall be guilty of a Class IC felony; or(c) At least ten grams but less than twenty-eight grams shall be guilty of a Class ID felony.(11) Any person knowingly or intentionally possessing marijuana weighing more than one ounce but not more than one pound shall be guilty of a Class III misdemeanor.(12) Any person knowingly or intentionally possessing marijuana weighing more than one pound shall be guilty of a Class IV felony.(13) Any person knowingly or intentionally possessing marijuana weighing one ounce or less or any substance containing a quantifiable amount of the substances, chemicals, or compounds described, defined, or delineated in subdivision (c)(25) of Schedule I of section 28-405 shall:(a) For the first offense, be guilty of an infraction, receive a citation, be fined three hundred dollars, and be assigned to attend a course as prescribed in section 29-433 if the judge determines that attending such course is in the best interest of the individual defendant;(b) For the second offense, be guilty of a Class IV misdemeanor, receive a citation, and be fined four hundred dollars and may be imprisoned not to exceed five days; and(c) For the third and all subsequent offenses, be guilty of a Class IIIA misdemeanor, receive a citation, be fined five hundred dollars, and be imprisoned not to exceed seven days.(14) Any person convicted of violating this section, if placed on probation, shall, as a condition of probation, satisfactorily attend and complete appropriate treatment and counseling on drug abuse provided by a program authorized under the Nebraska Behavioral Health Services Act or other licensed drug treatment facility.(15) Any person convicted of violating this section, if sentenced to the Department of Correctional Services, shall attend appropriate treatment and counseling on drug abuse.(16) Any person knowingly or intentionally possessing a firearm while in violation of subsection (1) of this section shall be punished by the next higher penalty classification than the penalty prescribed in subsection (2), (7), (8), (9), or (10) of this section, but in no event shall such person be punished by a penalty greater than a Class IB felony.(17) A person knowingly or intentionally in possession of money used or intended to be used to facilitate a violation of subsection (1) of this section shall be guilty of a Class IV felony.(18) In addition to the existing penalties available for a violation of subsection (1) of this section, including any criminal attempt or conspiracy to violate subsection (1) of this section, a sentencing court may order that any money, securities, negotiable instruments, firearms, conveyances, or electronic communication devices as defined in section 28-833 or any equipment, components, peripherals, software, hardware, or accessories related to electronic communication devices be forfeited as a part of the sentence imposed if it finds by clear and convincing evidence adduced at a separate hearing in the same prosecution, following conviction for a violation of subsection (1) of this section, and conducted pursuant to section 28-1601, that any or all such property was derived from, used, or intended to be used to facilitate a violation of subsection (1) of this section.(19) In addition to the penalties provided in this section:(a) If the person convicted or adjudicated of violating this section is eighteen years of age or younger and has one or more licenses or permits issued under the Motor Vehicle Operator's License Act:(i) For the first offense, the court may, as a part of the judgment of conviction or adjudication, (A) impound any such licenses or permits for thirty days and (B) require such person to attend a drug education class;(ii) For a second offense, the court may, as a part of the judgment of conviction or adjudication, (A) impound any such licenses or permits for ninety days and (B) require such person to complete no fewer than twenty and no more than forty hours of community service and to attend a drug education class; and(iii) For a third or subsequent offense, the court may, as a part of the judgment of conviction or adjudication, (A) impound any such licenses or permits for twelve months and (B) require such person to complete no fewer than sixty hours of community service, to attend a drug education class, and to submit to a drug assessment by a licensed alcohol and drug counselor; and(b) If the person convicted or adjudicated of violating this section is eighteen years of age or younger and does not have a permit or license issued under the Motor Vehicle Operator's License Act:(i) For the first offense, the court may, as part of the judgment of conviction or adjudication, (A) prohibit such person from obtaining any permit or any license pursuant to the act for which such person would otherwise be eligible until thirty days after the date of such order and (B) require such person to attend a drug education class;(ii) For a second offense, the court may, as part of the judgment of conviction or adjudication, (A) prohibit such person from obtaining any permit or any license pursuant to the act for which such person would otherwise be eligible until ninety days after the date of such order and (B) require such person to complete no fewer than twenty hours and no more than forty hours of community service and to attend a drug education class; and(iii) For a third or subsequent offense, the court may, as part of the judgment of conviction or adjudication, (A) prohibit such person from obtaining any permit or any license pursuant to the act for which such person would otherwise be eligible until twelve months after the date of such order and (B) require such person to complete no fewer than sixty hours of community service, to attend a drug education class, and to submit to a drug assessment by a licensed alcohol and drug counselor.A copy of an abstract of the court's conviction or adjudication shall be transmitted to the Director of Motor Vehicles pursuant to sections 60-497.01 to 60-497.04 if a license or permit is impounded or a juvenile is prohibited from obtaining a license or permit under this subsection.Source   Laws 1977, LB 38, § 76;   Laws 1978, LB 808, § 2;   Laws 1980, LB 696, § 3;   Laws 1985, LB 406, § 4;   Laws 1986, LB 504, § 1;   Laws 1989, LB 592, § 2;   Laws 1991, LB 742, § 1;   Laws 1993, LB 117, § 2;   Laws 1995, LB 371, § 6;   Laws 1997, LB 364, § 8;  Laws 1999, LB 299, § 1;  Laws 2001, LB 398, § 14;  Laws 2003, LB 46, § 1;  Laws 2004, LB 1083, § 86;  Laws 2005, LB 117, § 3;  Laws 2008, LB844, § 1;  Laws 2010, LB800, § 4;  Laws 2011, LB19, § 2;  Laws 2011, LB463, § 1;  Laws 2013, LB298, § 2;  Laws 2015, LB605, § 26;  Laws 2016, LB1106, § 5;  Laws 2017, LB487, § 6.  Cross References   Motor Vehicle Operator's License Act, see section 60-462.  Nebraska Behavioral Health Services Act, see section 71-801. Annotations  1. Elements 2. Evidence 3. Generally 4. Jury instruction 5. Plain view doctrine 6. Possession 7. Possession with intent to deliver 8. Sentencing 1. Elements Subsection (5)(a) of this section requires the State to prove that the defendant is someone (1) who is 18 years of age or older and (2) who knowingly and intentionally (a) used a person under 18 years of age in one of the ways listed (b) to perform one of the listed acts related to drug distribution. State v. Reinhart, 283 Neb. 710, 811 N.W.2d 258 (2012). Unless a statute specifically provides otherwise, the quantity possessed of a controlled substance is not an essential element of the crime. State v. Thompson, 244 Neb. 189, 505 N.W.2d 673 (1993). The weight or amount of marijuana possessed is not an element of the substantive offense of possession of marijuana, and the weight or amount of marijuana only determines the grade of the offense and relates to the punishment which may be imposed on conviction for the offense of simple possession. Simple possession of marijuana is a lesser-included offense of possession of marijuana with intent to distribute. State v. Malone, 4 Neb. App. 904, 552 N.W.2d 772 (1996). 2. Evidence A passenger's mere presence in a vehicle with contraband is insufficient to support a finding of joint possession. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008). Generally, a passenger's joint possession of a controlled substance found in a vehicle can be established by evidence that (1) supports an inference that the driver was involved in drug trafficking, as distinguished from possessing illegal drugs for personal use; (2) shows the passenger acted suspiciously during a traffic stop; and (3) shows the passenger was not a casual occupant but someone who had been traveling a considerable distance with the driver. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008). Evidence which was seized during a search based solely on an illegal wiretap must be suppressed and a conviction based on that evidence reversed, where it was agreed that the defendant had waived his rights under the Fourth Amendment to the U.S. Constitution, but had not waived his rights under section 86-701 et seq. (recodified in 2002 as section 86-271 et seq.). State v. Aulrich, 209 Neb. 546, 308 N.W.2d 739 (1981). 3. Generally A juror may reasonably infer that a driver with a possessory interest in a vehicle who is transporting a large quantity of illegal drugs would not invite someone into his or her vehicle who had no knowledge of the driver's drug activities. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008). Subsection (6) of this section and section 77-4301(2) address different types of misconduct and are not inconsistent. State v. Garza, 242 Neb. 573, 496 N.W.2d 448 (1993). A party claiming that the sale of a controlled substance was exempt has the burden of proof that an exemption was applicable. State v. Taylor, 221 Neb. 114, 375 N.W.2d 610 (1985). Subsection (6)(a) merely authorizes the issuance of a citation for certain violations; it does not prohibit an arrest for the same violation when otherwise authorized by law. State v. Watts, 209 Neb. 371, 307 N.W.2d 816 (1981). 4. Jury instruction The statutory elements neither solely control nor exclusively dictate whether a lesser-included offense instruction for simple possession is required along with an instruction on possession of a controlled substance with intent to deliver. State v. Massa, 242 Neb. 70, 493 N.W.2d 175 (1992). 5. Plain view doctrine Plain view doctrine circumvents need for a search warrant when contraband is inadvertently found while arresting officer is legally present at physical examination of accused. State v. Brockman, 231 Neb. 982, 439 N.W.2d 84 (1989). 6. Possession Constructive possession of an illegal substance may be proved by direct or circumstantial evidence. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008). Possession of a controlled substance is a lesser-included offense of distribution of the controlled substance. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008). Possession of an illegal substance can be inferred from a vehicle passenger's proximity to the substance or other circumstantial evidence that affirmatively links the passenger to the substance. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008). Under subsection (1) of this section, a defendant possesses a controlled substance when the defendant knows of the nature or character of the substance and its presence and has dominion or control over the substance. State v. Lonnecker, 237 Neb. 207, 465 N.W.2d 737 (1991). Under subsection (1) of this section, a defendant's control or dominion over premises where a controlled substance is located may establish the defendant's constructive possession of the controlled substance. State v. Lonnecker, 237 Neb. 207, 465 N.W.2d 737 (1991). Pursuant to subsection (3) of this section, there is sufficient evidence to convict the defendant of knowingly or intentionally possessing a controlled substance when he approaches an undercover officer, asks to buy drugs, physically examines the drugs, and then hands over money to pay for the drugs. State v. Clark, 236 Neb. 475, 461 N.W.2d 576 (1990). 7. Possession with intent to deliver Circumstantial evidence may support a finding that a defendant intended to distribute, deliver, or dispense a controlled substance. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008). Circumstantial evidence to establish possession of a controlled substance with intent to distribute or deliver may consist of several factors: the quantity of the substance, the equipment and supplies found with it, the place it was found, the manner of packaging, and the testimony of witnesses experienced and knowledgeable in the field. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008). Evidence of the quantity of a controlled substance possessed combined with expert testimony that such quantity indicates an intent to deliver can be sufficient for a jury to infer an intent to deliver. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008). When a defendant did not dispute the State's evidence on the separate element of intent to deliver, he was not entitled to an instruction on the lesser-included offense of simple possession. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008). Conviction of possession with intent to deliver a controlled substance affirmed in case where police officers noticed defendant in bar making a furtive gesture by pulling both hands from underneath bar; the officers subsequently found a bag with 11 snow seals behind the carpet under the bar within arm's distance from defendant; and defendant could not adequately account for the money he had in his possession. State v. Alcorn, 240 Neb. 400, 481 N.W.2d 921 (1992). Possession with intent to deliver a controlled substance is not a victimless crime. State v. Rodgers, 237 Neb. 506, 466 N.W.2d 537 (1991). 8. Sentencing Sentence of 3 to 5 years' imprisonment was not excessive for conviction under subsection (1)(a) of this statute. State v. Hodge and Carpenter, 225 Neb. 94, 402 N.W.2d 867 (1987).