A. The following controlled substances are included in Schedule II:
(1) any of the following substances, except those narcotic drugs listed in other schedules, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by combination of extraction and chemical synthesis:
(a) opium and opiate, and any salt, compound, derivative or preparation of opium or opiate;
(b) any salt, compound, isomer, derivative or preparation thereof that is chemically equivalent or identical with any of the substances referred to in Subparagraph (a) of this paragraph, but not including the isoquinoline alkaloids of opium;
(c) opium poppy and poppy straw;
(d) coca leaves and any salt, compound, derivative or preparation of coca leaves, and any salt, compound, derivative or preparation thereof that is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions that do not contain cocaine or ecgonine;
(e) marijuana, but only for the use by certified patients pursuant to the Controlled Substances Therapeutic Research Act [26-2A-1 NMSA 1978] or by qualified patients pursuant to the provisions of the Lynn and Erin Compassionate Use Act [26-2B-1 NMSA 1978]; and
(f) tetrahydrocannabinols or chemical derivatives of tetrahydrocannabinol, but only for the use by certified patients pursuant to the Controlled Substances Therapeutic Research Act [26-2A-1 NMSA 1978] or by qualified patients pursuant to the provisions of the Lynn and Erin Compassionate Use Act [26-2B-1 NMSA 1978].Marijuana, tetrahydrocannobinols or chemical derivatives of tetrahydrocannabinol shall be considered Schedule II controlled substances only for the purposes enumerated in the Controlled Substances Therapeutic Research Act [26-2A-1 NMSA 1978] or the Lynn and Erin Compassionate Use Act [26-2B-1 NMSA 1978];
(2) any of the following opiates, including their isomers, esters, ethers, salts and salts of isomers, whenever the existence of these isomers, esters, ethers and salts is possible within the specific chemical designation:
(a) alphaprodine;
(b) anileridine;
(c) bezitramide;
(d) dihydrocodeine;
(e) diphenoxylate;
(f) fentanyl;
(g) hydromorphone;
(h) isomethadone;
(i) levomethorphan;
(j) levorphanol;
(k) meperidine;
(l) metazocine;
(m) methadone;
(n) methadone—intermediate, 4-cyano-2-dimethylamino-4, 4-diphenyl butane;
(o) moramide—intermediate, 2-methyl-3-morpholino-1, 1-diphenyl-propane-carboxylic acid;
(p) oxycodone;
(q) pethidine;
(r) pethidine—intermediate—A, 4-cyano-1-methyl-4-phenylpiperidine;
(s) pethidine—intermediate—B, ethyl-4-phenyl-piperidine-4-carboxylate;
(t) pethidine—intermediate—C, 1-methyl-4-phenylpiperidine-4-carboxylic acid;
(u) phenazocine;
(v) piminodine;
(w) racemethorphan; and
(x) racemorphan;
(3) unless listed in another schedule, any material, compound, mixture or preparation that contains any quantity of the following substances having a potential for abuse associated with a stimulant effect on the central nervous system:
(a) amphetamine, its salts, optical isomers and salts of its optical isomers;
(b) phenmetrazine and its salts;
(c) methamphetamine, its salts, isomers and salts of isomers; and
(d) methylphenidate; and
(4) controlled substances added to Schedule II by rule adopted by the board pursuant to Section 30-31-3 NMSA 1978.
B. Where methadone is prescribed, administered or dispensed by a practitioner of a drug abuse rehabilitation program while acting in the course of the practitioner’s professional practice, or otherwise lawfully obtained or possessed by a person, such person shall not possess such methadone beyond the date stamped or typed on the label of the container of the methadone, nor shall any person possess methadone except in the container in which it was originally administered or dispensed to such person, and such container shall include a label showing the name of the prescribing physician or practitioner, the identity of methadone, the name of the ultimate user, the date when the methadone is to be administered to or used or consumed by the named ultimate user shown on the label and a warning on the label of the methadone container that the ultimate user must use, consume or administer to the ultimate user the methadone in such container. Any person who violates this subsection is guilty of a felony and shall be punished by imprisonment for not less than one year nor more than five years, or by a fine of up to five thousand dollars ($5,000), or both.
HISTORY:
1953 54-11-7, enacted by Laws 1972, ch. 84, § 7; 1978, ch. 22, § 9; 1979, ch. 112, § 1; 2005, ch. 280, § 3; 2007, ch. 210, § 9.
Amendment Notes.
The 2005 amendment, effective June 17, 2005, added Paragraph A(4); and in Subsection B, deleted “as defined in Paragraph (3) of Subsection A of Section 26-2-13 NMSA 1978” following “rehabilitation program” and substituted “shall include” for “must include”.
The 2007 amendment, effective July 1, 2007, in Subsections A(1)(e) and (1)(f), added “or by qualified patients pursuant to the provisions of the Lynn and Erin Compassionate Use Act”; and in the last paragraph in Subsection A(1), added “or the Lynn and Erin Compassionate Use Act”.
Severability clauses.
Laws 2007, ch. 210, § 11 provides for the severability of the Lynn and Erin Compassionate Use act if any part or application is held invalid, the remainder or its application to other situations or persons shall not be affected, furthermore, failure to promulgate rules or implement any provision of said act shall not interfere with the remaining protections provided by that act.
Notes to Decisions
Generally.
Amphetamines were considered a controlled substance under 30-31-7A(3)(a) NMSA 1978 where it was sold in sufficient quantity to have a possibility of abuse for a stimulant effect. State v. Hernandez, 1986-NMCA-017, 104 N.M. 97, 717 P.2d 73, 1986 N.M. App. LEXIS 589 (N.M. Ct. App. 1986).
Percodan is a Schedule II controlled substance as defined by the Legislature, under 30-31-7A2 NMSA 1978. State v. Sanchez, 1979-NMCA-133, 93 N.M. 596, 603 P.2d 335, 1979 N.M. App. LEXIS 743 (N.M. Ct. App. 1979).
Percodan is a Schedule II controlled substance as defined by the Legislature, under 30-31-7A2 NMSA 1978. State v. Sanchez, 1979-NMCA-133, 93 N.M. 596, 603 P.2d 335, 1979 N.M. App. LEXIS 743 (N.M. Ct. App. 1979).
Controlled substances.
Legislature intended to include methamphetamine and amphetamine as stimulant drugs under 52-1-12 and 52-1-12.1 NMSA 1978, and there was insufficient evidence to support the workers’ compensation judge’s conclusion that these drugs were the sole cause of the worker’s accident, and thus the workers’ compensation benefits had to be reduced by 10 percent pursuant to 52-1-12.1 NMSA 1978. Ortiz v. Overland Express, 2010-NMSC-021, 148 N.M. 405, 237 P.3d 707, 2010 N.M. LEXIS 255 (N.M. 2010).
Defendant’s conviction for possession of heroin with intent to distribute, a violation of former 54-11-20(A), 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 54-11-20(A), 1953 Comp. (now 30-31-6 NMSA 1978), which included a narcotic drug, and former 54-11-22(A), 1953 Comp. (now 30-31-7 NMSA 1978), which excepted a narcotic drug; the court explained that there was no conflict because former 54-11-22(A), 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).
Requirements.
Evidence was sufficient to support defendant’s conviction of accessory to attempt to manufacture methamphetamine as it showed or gave rise to reasonable inferences that defendant took steps and overtly acted in furtherance of manufacturing methamphetamine. The evidence was that: (1) defendant purchased 35 boxes of matches from several different stores, one right after the other; (2) the matchboxes contained red phosphorous, a key ingredient in manufacturing methamphetamine; (3) defendant bought the boxes for her sister and turned them all over to her sister; (4) defendant knew that the matchboxes were scraped for red phosphorous and she knew the substance was used in manufacturing methamphetamine; (5) defendant knew that the matchboxes were going to be used to manufacture methamphetamine; and (6) together with her sister she purchased or financed the purchase of other products that were ingredients commonly used to manufacture methamphetamine, including fuel and distilled water. State v. Kent, 2006-NMCA-134, 140 N.M. 606, 145 P.3d 86, 2006 N.M. App. LEXIS 129 (N.M. Ct. App.), cert. denied, 140 N.M. 674, 146 P.3d 809, 2006 N.M. LEXIS 521 (N.M. 2006).
Although 30-31-7A(3) NMSA 1978 prohibits the distribution of any quantity of a controlled substance, the state is not required to prove that the particular amount of a controlled substance sold by the defendant has a potential for abuse. State v. Martinez, 1986-NMCA-069, 104 N.M. 584, 725 P.2d 263, 1986 N.M. App. LEXIS 639 (N.M. Ct. App. 1986).
Evidence was sufficient to support a judgment convicting defendant of an distribution of amphetamine in violation of 30-31-22 NMSA 1978 because the State did not have to prove that the amphetamine sold by defendant was of a sufficient quantity to have a potential for abuse associated with a stimulant effect since illegally distributing any quantity of amphetamine was forbidden by law. The language of 30-31-7A(3) NMSA 1978, which defined an amphetamine as a substance having a potential for abuse associated with a stimulant effect on the central nervous system, was merely descriptive of the drug. State v. Hernandez, 1986-NMCA-017, 104 N.M. 97, 717 P.2d 73, 1986 N.M. App. LEXIS 589 (N.M. Ct. App. 1986).
Reversal.
Under 30-31-7 NMSA 1978, the state was required to show in defendant’s trial for transfer of a controlled substance, cocaine, that the substance transferred was in fact cocaine, and the state’s failure to do so, based on an expert’s false testimony about the chemical makeup of cocaine, warranted reversal of defendant’s conviction. 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).