There are established five schedules of controlled substances to be known as Schedules I, II, III, IV and V [30-31-6, 30-31-7, 30-31-8, 30-31-9 and 30-31-10 NMSA 1978].
A. The board shall place a substance in Schedule I [30-31-6 NMSA 1978] if it finds that the substance:
(1) has a high potential for abuse; and
(2) has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision.
B. The board shall place a substance in Schedule II [30-31-7 NMSA 1978] if it finds that:
(1) the substance has a high potential for abuse;
(2) the substance has a currently accepted medical use in treatment in the United States or currently accepted medical use with severe restrictions; and
(3) the abuse of the substance may lead to severe psychic or physical dependence.
C. The board shall place a substance in Schedule III [30-31-8 NMSA 1978] if it finds that:
(1) the substance has a potential for abuse less than the substances listed in Schedules I and II [30-31-6 and 30-31-7 NMSA 1978];
(2) the substance has a currently accepted medical use in treatment in the United States; and
(3) abuse of the substance may lead to moderate or low physical dependence or high psychological dependence.
D. The board shall place a substance in Schedule IV [30-31-9 NMSA 1978] if it finds that:
(1) the substance has a low potential for abuse relative to the substances in Schedule III [30-31-8 NMSA 1978];
(2) the substance has a currently accepted medical use in treatment in the United States; and
(3) abuse of the substance may lead to limited physical dependence or psychological dependence relative to the substance in Schedule III.
E. The board shall place a substance in Schedule V [30-31-10 NMSA 1978] if it finds that:
(1) the substance has a currently accepted medical use in treatment in the United States; and
(2) abuse of the substance may lead to limited physical dependence or psychological dependence relative to the substances in Schedule IV [30-31-9 NMSA 1978].
HISTORY:
1953 54-11-5, enacted by Laws 1972, ch. 84, § 5.
Notes to Decisions
Generally.
Statutory classification of cocaine as a narcotic is not irrational; cocaine meets the criteria stated in 30-31-5B NMSA 1978 for a Class II controlled substance and, while the record contained testimony that cocaine did not lead to a physical dependency, defendant produced no support for the proposition that the drug was not psychologically addicting. Chouinard v. State, 1980-NMCA-168, 96 N.M. 783, 635 P.2d 986, 1980 N.M. App. LEXIS 980 (N.M. Ct. App. 1980), rev'd, 1981-NMSC-096, 96 N.M. 658, 634 P.2d 680, 1981 N.M. LEXIS 2391 (N.M. 1981).
The legislative scheme for designating and scheduling potentially abused drugs allows the board of pharmacy only minimal discretion in its fact-finding function and no discretion in enacting substantive law; the board’s expertise in this field is crucial and its vigilance in dealing with new and dangerous drugs is necessary; the delegation of power to schedule drugs to the board was not unconstitutional. Montoya v. O'Toole, 1980-NMSC-045, 94 N.M. 303, 610 P.2d 190, 1980 N.M. LEXIS 2675 (N.M. 1980).
Applicability.
Court rejected defendant’s contention that cocaine was not a narcotic drug and did not meet the characteristics for a Class II controlled substance as required by 30-31-5(B) NMSA 1978 where the New Mexico legislature could rationally classify cocaine, a non-narcotic central nervous system stimulant, as a narcotic for penalty and regulatory purposes. Chouinard v. State, 1980-NMCA-168, 96 N.M. 783, 635 P.2d 986, 1980 N.M. App. LEXIS 980 (N.M. Ct. App. 1980), rev'd, 1981-NMSC-096, 96 N.M. 658, 634 P.2d 680, 1981 N.M. LEXIS 2391 (N.M. 1981).
Controlled substances.
Defendant’s conviction for possession of heroin with intent to distribute, a violation of former 54-11-20A, 1953 Comp. (now 30-31-6 NMSA 1978), needed to be affirmed despite defendant’s contention that there was no proof that the heroin was a narcotic drug as defined in the Controlled Substances Act; the court noted that the definition of narcotic drug in former 54-11-2P, 1953 Comp. (now 30-31-5 NMSA 1978) encompassed heroin as an opium derivative. State v. Atencio, 1973-NMCA-110, 85 N.M. 484, 513 P.2d 1266, 1973 N.M. App. LEXIS 760 (N.M. Ct. App.), cert. denied, 85 N.M. 483, 513 P.2d 1265, 1973 N.M. LEXIS 1350 (N.M. 1973).
Defendant’s conviction for possession of heroin with intent to distribute, a violation of former 54-11-20A, 1953 Comp. (now 30-31-6 NMSA 1978), needed to be affirmed despite defendant’s contention that he was improperly charged because there was a conflict between former 54-11-20A, 1953 Comp. (now 30-31-6 NMSA 1978), which included a narcotic drug, and former 54-11-22A, 1953 Comp. (now 30-31-7 NMSA 1978), which excepted a narcotic drug; the court explained that there was no conflict because former 54-11-22A, 1953 Comp. (now 30-31-7 NMSA 1978) provided for unlawful conduct in which other controlled substances were involved, exclusive of narcotic drugs enumerated under former 54-11-20, 1953 Comp. (now 30-31-6 NMSA 1978). State v. Atencio, 1973-NMCA-110, 85 N.M. 484, 513 P.2d 1266, 1973 N.M. App. LEXIS 760 (N.M. Ct. App.), cert. denied, 85 N.M. 483, 513 P.2d 1265, 1973 N.M. LEXIS 1350 (N.M. 1973).
Intent.
Even though he did not intend to hand over the final payment, Defendant was properly charged with attempt to traffic cocaine; 30-31-5 NMSA 1978 made it illegal to intentionally acquire or obtain possession of a controlled substance by fraud or misrepresentation, so the specific statute doctrine was inapplicable. State v. Villalobos, 1995-NMCA-105, 120 N.M. 694, 905 P.2d 732, 1995 N.M. App. LEXIS 113 (N.M. Ct. App. 1995).
Research References and Practice Aids
Cross references.
Definitions, 30-31-2 NMSA 1978.