City of Hawk Point, MO Drug Offenses

[Ord. 219.070, passed 6-6-2011; Penalty, see § 136.99]

Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

CONTROLLED SUBSTANCE

A drug, substance or immediate precursor in Schedules I through V listed in RSMo. §§ 195.005 through 195.425.

DELIVER or DELIVERY

The actual, constructive or attempted transfer from one person to another of drug paraphernalia or of a controlled substance, or an imitation controlled substance, whether or not there is an agency relationship, and includes a sale.

DRUG PARAPHERNALIA

All equipment, products, substances and materials of any kind which are used, intended for use, or designed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance or an imitation controlled substance in violation of RSMo. §§ 195.005 through 195.425.

(a)

Includes, but is not limited to:

Kits used, intended for use, or designed for use in planting, propagating, cultivating, growing or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived;

Kits used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing or preparing controlled substances or imitation controlled substances;

Isomerization devices used, intended for use or designed for use in increasing the potency of any species of plant which is a controlled substance or an imitation controlled substance;

Testing equipment used, intended for use or designed for use in identifying, or in analyzing the strength, effectiveness or purity of controlled substances or imitation controlled substances;

Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances or imitation controlled substances;

Dilutents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used, intended for use or designed for use in cutting controlled substances or imitation controlled substances;

Separation gins and sifters used, intended for use or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, marijuana;

Blenders, bowls, containers, spoons and mixing devices used, intended for use, or designed for use in compounding controlled substances or imitation controlled substances;

Capsules, balloons, envelopes and other containers used, intended for use or designed for use in packaging small quantities of controlled substances or imitation controlled substances;

10.

Containers and other objects used, intended for use or designed for use in storing or concealing controlled substances or imitation controlled substances;

11.

Hypodermic syringes, needles and other objects used, intended for use or designed for use in parenterally injecting controlled substances or imitation controlled substances into the human body;

12.

Objects used, intended for use, or designed for use in ingesting, inhaling or otherwise introducing marijuana, cocaine, hashish or hashish oil into the human body, such as:

Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;

Water pipes;

Carburetion tubes and devices;

Smoking and carburetion masks;

Roach clips meaning objects used to hold burning material, such as a marijuana cigarette, that has become too small or too short to be held in the hand;

Miniature cocaine spoons and cocaine vials;

Chamber pipes;

Carburetor pipes;

Electric pipes;

Air-driven pipes;

Chillums;

Bongs; and

Ice pipes or chillers.

13.

Substances used, intended for use or designed for use in the manufacture of a controlled substance.

(b)

In determining whether an object, product, substance or material is DRUG PARAPHERNALIA, a court or other authority should consider, in addition to all other logically relevant factors, the following:

Statements by an owner or by anyone in control of the object concerning its use;

Prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance or imitation controlled substance;

The proximity of the object, in time and space, to a direct violation of RSMo. §§ 195.005 through 195.425;

The proximity of the object to controlled substances or imitation controlled substances;

The existence of any residue of controlled substances or imitation controlled substances on the object;

Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons who he knows, or should reasonably know, intend to use the object to facilitate a violation of RSMo. §§ 195.005 through 195.425; the innocence of an owner, or of anyone in control of the object, as to direct violation of RSMo. §§ 195.005 through 195.425, shall not prevent a finding that the object is intended for use, or designed for use as drug paraphernalia;

Instructions, oral or written, provided with the object concerning its use;

Descriptive materials accompanying the object which explain or depict its use;

National or local advertising concerning its use;

10.

The manner in which the object is displayed for sale;

11.

Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;

12.

Direct or circumstantial evidence of the ratio of sales of the object to the total sales of the business enterprise;

13.

The existence and scope of legitimate uses for the object in the community;

14.

Expert testimony concerning its use; and

15.

The quantity, form or packaging of the product, substance or material in relation to the quantity, form or packaging associated with any legitimate use for the product, substance or material.

IMITATION CONTROLLED SUBSTANCE

A substance that is not a controlled substance, which by dosage unit appearance (including color, shape, size and markings), or by representations made, would lead a reasonable person to believe that the substance is a controlled substance. In determining whether the substance is an IMITATION CONTROLLED SUBSTANCE the court or authority concerned should consider, in addition to all other logically relevant factors, the following:

(a)

Whether the substance was approved by the Federal Food and Drug Administration for over-the-counter (nonprescription or nonlegend) sales and was sold in the Federal Food and Drug Administration approved package, with the Federal Food and Drug Administration approved labeling information;

(b)

Statements made by an owner or by anyone else in control of the substance concerning the nature of the substance, or its use or effect;

(c)

Whether the substance is packaged in a manner normally used for illicit controlled substances;

(d)

Prior convictions, if any, of an owner, or anyone in control of the object, under state or federal law related to controlled substances or fraud;

(e)

The proximity of the substances to controlled substances; and

(f)

Whether the consideration tendered in exchange for the noncontrolled substance substantially exceeds the reasonable value of the substance considering the actual chemical composition of the substance and, where applicable, the price at which over-the-counter substances of like chemical composition sell. An IMITATION CONTROLLED SUBSTANCE does not include a placebo or registered investigational drug either of which was manufactured, distributed, possessed or delivered in the ordinary course of professional practice or research.

MANUFACTURE

(a)

The production, preparation, propagation, compounding or processing of drug paraphernalia or of a controlled substance or an imitation controlled substance, either directly or by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container.

(b)

This term does not include the preparation or compounding of a controlled substance or an imitation controlled substance or the preparation, compounding, packaging or labeling of a narcotic or dangerous drug:

By a practitioner as an incident to his or her administering or dispensing of a controlled substance or an imitation controlled substance in the course of his or her professional practice; or

By a practitioner or his or her authorized agent under his or her supervision, for the purpose of, or as an incident to, research, teaching or chemical analysis and not for sale.

PERSON

An individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership, joint venture, association or any other legal or commercial entity.

POSSESSED or POSSESSING

A person, with the knowledge of the presence and nature of a substance, has actual or constructive possession of the substance. A person has actual possession if he or she has the substance on his or her person or within easy reach and convenient control. A person who, although not in actual possession, has the power and the intention at a given time to exercise dominion or control over the substance either directly or through another person or persons is in constructive possession of it. Possession may also be sole or joint. If one person alone has possession of a substance possession is sole. If two or more persons share possession of a substance, possession is joint.

(B)

Unlawful delivery or manufacture of drug paraphernalia. It is unlawful for any person to deliver, possess with intent to deliver or manufacture with intent to deliver, drug paraphernalia knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance or an imitation controlled substance in violation of RSMo. §§ 95.005 through 195.425.