Chapter 64 Controlled Substances

Subchapter 1 — Uniform Controlled Substances Act — Definitions

5-64-101. Definitions.

   As used in this chapter:        

         (1) “Administer” means the direct application of a controlled substance, whether by injection, inhalation, ingestion, or any other means to the body of a patient or research subject by:              

               (A) A practitioner; or                    

               (B) The patient or research subject at the direction and in the presence of the practitioner;                    

         (2)

               (A) “Agent” means an authorized person who acts on behalf of or at the direction of a manufacturer, distributor, or dispenser.                    

               (B) “Agent” does not include a common or contract carrier, public warehouseman, or employee of the common or contract carrier or warehouseman;                    

         (3)

               (A) “Anabolic steroid” means any drug or hormonal substance, chemically and pharmacologically related to testosterone, other than estrogens, progestin, and corticosteroid that promotes muscle growth.                    

               (B)

                     (i) “Anabolic steroid” does not include an anabolic steroid that is expressly intended for administration through an implant to cattle or another nonhuman species and that has been approved by the Director of the Department of Health for such administration.                          

                     (ii) If any person prescribes, dispenses, or distributes a steroid described in subdivision (3)(B)(i) of this section for human use, the person is considered to have prescribed, dispensed, or distributed an anabolic steroid within the meaning of this subdivision (3);                          

         (4) [Repealed.]              

         (5) “Controlled substance” means a drug, substance, or immediate precursor in Schedules I through VI;              

         (6)

               (A) “Counterfeit substance” means a noncontrolled substance, that by overall dosage unit appearance including color, shape, size, markings, packaging, labeling, and overall appearance or upon the basis of representations made to the recipient, purports to be a controlled substance or to have the physical or psychological effect associated with a controlled substance.                    

               (B) In determining whether a substance is a “counterfeit substance”, the following factors shall be utilized and a finding of any two (2) of these factors constitutes prima facie evidence that the substance is a “counterfeit substance”:                    

                     (i) A statement made by an owner or by anyone else in control of the substance concerning the nature of the substance, its use, or effect;                          

                     (ii) The physical appearance of the finished product containing the noncontrolled substance is substantially the same as that of a specific controlled substance;                          

                     (iii) The noncontrolled substance is unpackaged or is packaged in a manner normally used for the illegal delivery of a controlled substance;                          

                     (iv) The noncontrolled substance is not labeled in accordance with 21 U.S.C. § 352 or 21 U.S.C. § 353;                          

                     (v) The person delivering, attempting to deliver, or causing delivery of the noncontrolled substance states or represents to the recipient that the noncontrolled substance may be resold at a price that substantially exceeds the value of the substance;                          

                     (vi) An evasive tactic or action utilized by the owner or person in control of the substance to avoid detection by a law enforcement authority; or                          

                     (vii) A prior conviction, if any, of an owner, or anyone in control of the object under a state or federal law related to a controlled substance or fraud;                          

         (7) “Deliver” or “delivery” means the actual, constructive, or attempted transfer from one (1) person to another of a controlled substance or counterfeit substance in exchange for money or anything of value, whether or not there is an agency relationship;              

         (8) [Repealed.]              

         (9) “Dispense” means to deliver a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering, packaging, labeling, or compounding necessary to prepare the controlled substance for that delivery;              

         (10) “Dispenser” means a practitioner who dispenses;              

         (11) “Distribute” means to deliver other than by administering or dispensing a controlled substance;              

         (12) “Distributor” means a person who distributes;              

         (13)

               (A) “Drug” means a substance:                    

                     (i) Recognized as a drug in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, official National Formulary, or any supplement to any of them;                          

                     (ii) Intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in humans or animals;                          

                     (iii) Other than food intended to affect the structure or any function of the body of humans or animals; and                          

                     (iv) Intended for use as a component of any article specified in subdivisions (13)(A)(i), (ii), or (iii) of this section.                          

               (B) “Drug” does not include a device or its components, parts, or accessories;                    

         (14)

               (A) “Drug paraphernalia” means any equipment, product, and material of any kind that are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this chapter.                    

               (B) “Drug paraphernalia” includes, but is not limited to:                    

                     (i) A kit used, intended for use, or designed for use in planting, propagating, cultivating, growing, or harvesting any species of plant that is a controlled substance or from which a controlled substance can be derived;                          

                     (ii) A kit used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing, or preparing a controlled substance;                          

                     (iii) An isomerization device used, intended for use, or designed for use in increasing the potency of any species of plant that is a controlled substance;                          

                     (iv) Testing equipment used, intended for use, or designed for use in identifying or in analyzing the strength, effectiveness, or purity of a controlled substance;                          

                     (v) A scale or balance used, intended for use, or designed for use in weighing or measuring a controlled substance;                          

                     (vi) A diluent or adulterant, such as quinine hydrochloride, mannitol, mannite, dextrose, and lactose used, intended for use, or designed for use in cutting a controlled substance;                          

                     (vii) A separation gin or sifter used, intended for use, or designed for use in removing a twig or seed from, or in otherwise cleaning or refining, marijuana;                          

                     (viii) A blender, bowl, container, spoon, or mixing device used, intended for use, or designed for use in compounding a controlled substance;                          

                     (ix) A capsule, balloon, envelope, or other container used, intended for use, or designed for use in packaging a small quantity of a controlled substance;                          

                     (x) A container or other object used, intended for use, or designed for use in storing or concealing a controlled substance;                          

                     (xi) A hypodermic syringe, needle, or other object used, intended for use, or designed for use in parenterally injecting a controlled substance into the human body; and                          

                     (xii) An object used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing a controlled substance into the human body, such as:                          

                           (a) A metal, wooden, acrylic, glass, stone, plastic, or ceramic pipe with or without a screen, permanent screen, hashish head, or punctured metal bowl;                                

                           (b) A water pipe;                                

                           (c) A carburetion tube or device;                                

                           (d) A smoking or carburetion mask;                                

                           (e) A roach clip, meaning an object used to hold burning material, such as a marijuana cigarette that has become too small or too short to be held in the hand;                                

                           (f) A miniature cocaine spoon or cocaine vial;                                

                           (g) A chamber pipe;                                

                           (h) A carburetor pipe;                                

                           (i) An electric pipe;                                

                           (j) An air-driven pipe;                                

                           (k) A chillum;                                

                           (l) A bong;                                

                           (m) An ice pipe or chiller; and                                

                           (n) An aluminum foil boat.                                

               (C) In determining whether an object is “drug paraphernalia”, a court or other authority shall consider, in addition to any other logically relevant factor, the following:                    

                     (i) A statement by an owner or by anyone in control of the object concerning its use;                          

                     (ii) A prior conviction, if any, of an owner or of anyone in control of the object under any state or federal law relating to any controlled substance;                          

                     (iii) The proximity of the object in time and space to a direct violation of this chapter;                          

                     (iv) The proximity of the object to a controlled substance;                          

                     (v) The existence of any residue of a controlled substance on the object;                          

                     (vi)

                           (a) Direct or circumstantial evidence of the intent of an owner or of anyone in control of the object to deliver it to a person whom he or she knows, or should reasonably know, intends to use the object to facilitate a violation of this chapter.                                

                           (b) The innocence of an owner or of anyone in control of the object as to a direct violation of this chapter does not prevent a finding that the object is intended for use or designed for use as “drug paraphernalia”;                                

                     (vii) An oral or written instruction provided with the object concerning its use;                          

                     (viii) Descriptive materials accompanying the object that explain or depict its use;                          

                     (ix) National and local advertising concerning the object's use;                          

                     (x) The manner in which the object is displayed for sale;                          

                     (xi) Whether the owner or anyone in control of the object is a legitimate supplier of a like or related item to the community, such as a licensed distributor or dealer of a tobacco product;                          

                     (xii) Direct or circumstantial evidence of the ratio of sales of the objects to the total sales of the business enterprise;                          

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

                     (xiv) Expert testimony concerning the object's use;                          

         (15) “Immediate precursor” means a substance that the director has found to be and by rule designates as being the principal compound commonly used or produced primarily for use, and that is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance, the control of which is necessary to prevent, curtail, or limit manufacture;              

         (16)

               (A) “Manufacture” means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from a substance of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis.                    

               (B) “Manufacture” includes any packaging or repackaging of a controlled substance or labeling or relabeling of a controlled substance's container.                    

               (C) However, “manufacture” does not include the preparation or compounding of a controlled substance by an individual for his or her own use or the preparation, compounding, packaging, or labeling of a controlled substance:                    

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

                     (ii) By a practitioner or by 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;                          

         (17)

               (A) “Marijuana” means:                    

                     (i) Any part and any variety or species, or both, of the Cannabis plant that contains THC (Tetrahydrocannabinol) whether growing or not;                          

                     (ii) The seeds of the plant;                          

                     (iii) The resin extracted from any part of the plant; and                          

                     (iv) Every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin.                          

               (B) “Marijuana” does not include:                    

                     (i) The mature stalks of the plant;                          

                     (ii) Fiber produced from the stalks;                          

                     (iii) Oil or cake made from the seeds of the plant;                          

                     (iv) Any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks except the resin extracted from the mature stalks;                          

                     (v) Fiber, oil, or cake; or                          

                     (vi) The sterilized seed of the plant that is incapable of germination;                          

         (18)

               (A)

                     (i) “Narcotic drug” means any drug that is defined as a narcotic drug by order of the director.                          

                     (ii) In the formulation of a definition of “narcotic drug”, the director shall:                          

                           (a) Include any drug that he or she finds is narcotic in character and by reason of being narcotic is dangerous to the public health or is promotive of addiction-forming or addiction-sustaining results upon the user that threaten harm to the public health, safety, or morals; and                                

                           (b) Take into consideration the provisions of the federal narcotic laws as they exist from time to time and shall amend the definitions so as to keep them in harmony with the definitions prescribed by the federal narcotic laws, so far as is possible under the standards established in this subdivision (18) and under the policy of this chapter.                                

                     (B) “Narcotic drug” also means any of the following, whether produced directly or indirectly by extraction from a substance of vegetable origin, independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:                          

                     (i)

                           (a) Opium, opiates, a derivative of opium or opiates, including their isomers, esters, and ethers whenever the existence of the isomers, esters, ethers, and salts is possible within the specific chemical designation.                                

                           (b) “Narcotic drug” does not include an isoquinoline alkaloid of opium;                                

                     (ii) Poppy straw and concentrate of poppy straw;                          

                     (iii) Coca leaves, except coca leaves and extracts of coca leaves from which cocaines, ecgonine, and derivatives of ecgonine or their salts have been removed;                          

                     (iv) Cocaine, its salts, optical and geometric isomers, and salts of isomers;                          

                     (v) Ecgonine, its derivatives, their salts, isomers, and salts of isomers; or                          

                     (vi) Any compound, mixture, or preparation that contains any quantity of any substance referred to in subdivisions (18)(B)(i)-(v) of this section;                          

         (19) “Noncontrolled substance” means any liquid, substance, or material not listed in Schedules I through VI of the Schedules of Controlled Substances promulgated by the director;              

         (20) “Person” means individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity;              

         (21) “Practitioner” means:              

               (A) A physician, dentist, veterinarian, scientific investigator, or other person licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect to, or to administer a controlled substance in the course of professional practice or research in this state; and                    

               (B) A pharmacy, hospital, or other institution licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect to, or to administer a controlled substance in the course of professional practice or research in this state;                    

         (22) “Production” includes the manufacture, planting, cultivation, growing, or harvesting of a controlled substance;              

         (23) “State” when applied to a part of the United States, includes any state, district, commonwealth, territory, insular possession thereof, and any area subject to the legal authority of the United States of America; and              

         (24) “Ultimate user” means a person who lawfully possesses a controlled substance for:              

               (A) The person's own use;                    

               (B) The use of a member of the person's household; or                    

               (C) Administering to an animal owned by the person or by a member of his or her household.                    


History..Acts 1971, No. 590, Art. 1, § 1; 1975, No. 243, § 1; 1975, No. 305, § 1; 1979, No. 898, §§ 1, 2; 1981, No. 78, § 1; 1981, No. 116, § 1; 1983, No. 787, §§ 1, 2; A.S.A. 1947, § 82-2601; Acts 1987, No. 42, § 2; 1991, No. 570, § 1; 1995, No. 1296, § 7; 2005, No. 1994, § 301; 2007, No. 199, § 1; 2007, No. 827, §§ 52–55.

Subchapter 2 — Uniform Controlled Substances Act — Designation of Controlled Substances

5-64-201. Director's duties.

   (a)

         (1)

               (A) The Director of the Division of Health of the Department of Health and Human Services shall administer this chapter and may add a substance to or delete or reschedule any substance enumerated in a schedule pursuant to the procedures of the Arkansas Administrative Procedure Act, § 25-15-201 et seq.                    

               (B) However, the director shall not delete any substance from a schedule in effect on July 20, 1979, without prior approval by the Legislative Council.                    

         (2) In making a determination regarding a substance, the director shall consider the following:              

               (A) The actual or relative potential for abuse;                    

               (B) The scientific evidence of its pharmacological effect, if known;                    

               (C) The state of current scientific knowledge regarding the substance;                    

               (D) The history and current pattern of abuse;                    

               (E) The scope, duration, and significance of abuse;                    

               (F) The risk to public health;                    

               (G) The potential of the substance to produce psychic or physiological dependence liability; and                    

               (H) Whether the substance is an immediate precursor of a substance already controlled under this subchapter.                    

   (b) After considering the factors enumerated in subsection (a) of this section, the director shall make findings with respect to the factors and issue a rule controlling the substance if he or she finds the substance has a potential for abuse.        

   (c) If the director designates a substance as an immediate precursor, a substance that is a precursor of the controlled precursor is not subject to control solely because it is a precursor of the controlled precursor.        

   (d)

         (1) If any substance is designated as a controlled substance under federal law and notice of the designation is given to the director, the director shall similarly control the substance under this chapter after the expiration of thirty (30) days from publication in the Federal Register of a final order designating a substance as a controlled substance unless within that thirty-day period the director objects to inclusion.              

         (2)

               (A) If the director objects to inclusion, the director shall publish the reasons for objection and afford any interested party an opportunity to be heard.                    

               (B) At the conclusion of the hearing, the director shall publish his or her decision.                    

               (C) Any person aggrieved by a decision of the director is entitled to judicial review in the Pulaski County Circuit Court.                    

         (3) Upon publication of objection to inclusion under this chapter by the director, control under this chapter is stayed until the director publishes his or her decision or, if judicial review is sought,the inclusion is stayed until adjudication of the judicial review.              

   (e) Authority to control under this section does not extend to distilled spirits, wine, malt beverages, or tobacco.        

   (f) The director shall schedule gamma-hydroxybutyrate and its known precursors and analogs in a manner consistent with the procedures outlined in this section.        


History..Acts 1971, No. 590, Art. 2, § 1; 1973, No. 186, § 1; 1979, No. 898, § 3; A.S.A. 1947, § 82-2602; Acts 2001, No. 320, § 2; 2005, No. 1994, § 302.

5-64-202. Nomenclature.

   A controlled substance listed or to be listed in a schedule shall be included by whatever official, common, usual chemical, or trade name designated.        


History..Acts 1971, No. 590, Art. 2, § 2; 1973, No. 186, § 1; 1979, No. 898, § 4; A.S.A. 1947, § 82-2603.

5-64-203. Criteria for Schedule I.

   The Director of the Division of Health of the Department of Health and Human Services shall place a substance in Schedule I if he or she finds that the substance has:        

         (1) High potential for abuse; and              

         (2) No accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision.              


History..Acts 1971, No. 590, Art. 2, § 3; 1973, No. 186, § 1; 1979, No. 898, § 5; A.S.A. 1947, § 82-2604.

5-64-204. [Reserved.]



5-64-205. Criteria for Schedule II.

   The Director of the Division of Health of the Department of Health and Human Services shall place a substance in Schedule II if he or she finds that:        

         (1) The substance has high potential for abuse;              

         (2) The substance has 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.              


History..Acts 1971, No. 590, Art. 2, § 5; 1973, No. 186, § 1; 1979, No. 898, § 6; A.S.A. 1947, § 82-2606.

5-64-206. [Reserved.]



5-64-207. Criteria for Schedule III.

   The Director of the Division of Health of the Department of Health and Humans Services shall place a substance in Schedule III if he or she finds that:        

         (1) The substance has a potential for abuse less than the substances listed in Schedules I and II;              

         (2) The substance has 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.              


History..Acts 1971, No. 590, Art. 2, § 7; 1973, No. 186, § 1; 1979, No. 898, § 7; A.S.A. 1947, § 82-2608.

5-64-208. [Reserved.]



5-64-209. Criteria for Schedule IV.

   The Director of the Division of Health of the Department of Health and Human Services shall place a substance in Schedule IV if he or she finds that:        

         (1) The substance has a low potential for abuse relative to substances in Schedule III;              

         (2) The substance has 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 substances in Schedule III.              


History..Acts 1971, No. 590, Art. 2, § 9; 1973, No. 186, § 1; 1979, No. 898, § 9; A.S.A. 1947, § 82-2610.

5-64-210. Substances in Schedule IV.

   Schedule IV includes any material, compound, mixture, or preparation that contains any quantity of tramadol or that contains any of tramadol's salts, isomers, or salts of isomers.        


History..Acts 2007, No. 558, § 1; No. 585, § 1.

5-64-211. Criteria for Schedule V.

   The Director of the Division of Health of the Department of Health and Human Services shall place a substance in Schedule V if he or she finds that:        

         (1) The substance has low potential for abuse relative to the controlled substances listed in Schedule IV;              

         (2) The substance has currently accepted medical use in treatment in the United States; and              

         (3) The substance has limited physical dependence or psychological dependence liability relative to the controlled substances listed in Schedule IV.              


History..Acts 1971, No. 590, Art. 2, § 11; 1973, No. 186, § 1; 1979, No. 898, § 11; A.S.A. 1947, § 82-2612.

5-64-212. Substances in Schedule V.

   (a) An ephedrine combination product, pseudoephedrine, and phenylpropanolamine, as defined in § 5-64-1103(g), are designated Schedule V controlled substances in addition to the drugs and other substances listed in Schedule V of the List of Controlled Substances for the State of Arkansas promulgated by the Director of the Division of Health of the Department of Health and Human Services.        

   (b) The Schedule V classification does not apply to:        

         (1) An exempt product described in § 5-64-1103(b)(1);              

         (2) Any ephedrine or pseudoephedrine in liquid, liquid capsule, or liquid gel capsule form described in § 5-64-1103(b)(2); or              

         (3)

               (A) A product that is dispensed pursuant to a valid prescription that is not restricted to five (5) refills within a six (6) month period.                    

               (B) A product described in subdivision (b)(3)(A) of this section is regulated in the same manner as any nonscheduled prescription drug and shall be kept in a container that is supplied by the pharmacy and labeled in a manner consistent with any other prescription.                    

   (c) The director may reschedule a product described in subdivision (b)(1) or (b)(2) of this section if it is determined that the conversion of the active ingredient in the product into methamphetamine or its salts or precursors is feasible.        

   (d) A wholesale distributor with exclusive rights to distribute pseudoephedrine to only licensed pharmacies is exempt from Schedule V requirements for the storage and distribution of pseudoephedrine.        


History..Acts 2005, No. 256, § 2.

5-64-213. Schedule VI established.

   (a) There is established a Schedule VI for the classification of those substances that are determined to be inappropriately classified by placing them in Schedules I through V.        

   (b) Schedule VI includes a controlled substance listed or to be listed by whatever official name, common or usual name, chemical name, or trade name designated.        


History..Acts 1971, No. 590, Art. 2, § 13, as added by Acts 1973, No. 186, § 1; A.S.A. 1947, § 82-2614.

5-64-214. Criteria for Schedule VI.

   The Director of the Department of Health shall place a substance in Schedule VI if he or she finds that:        

         (1) The substance is not currently accepted for medical use in treatment in the United States;              

         (2) That there is lack of accepted safety for use of the drug or other substance even under direct medical supervision;              

         (3) That the substance has relatively high psychological or physiological dependence liability, or both; and              

         (4) That use of the substance presents a definite risk to public health.              


History..Acts 1971, No. 590, Art. 2, § 14, as added by Acts 1973, No. 186, § 1; 1979, No. 898, § 12; A.S.A. 1947, § 82-2614.1; Acts 2007, No. 827, § 56.

5-64-215. Substances in Schedule VI.

   (a) Any material, compound, mixture, or preparation, whether produced directly or indirectly from a substance of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, that contains any quantity of the following substances, or that contains any of their salts, isomers, and salts of isomers when the existence of the salts, isomers, and salts of isomers is possible within the specific chemical designation, are included in Schedule VI:        

         (1) Marijuana;              

         (2) Tetrahydrocannabinols; and              

         (3) A synthetic equivalent of the substance contained in the Cannabis plant, or in the resinous extractives of the genus Cannabis, or a synthetic substance, derivative, or its isomers with similar chemical structure and pharmacological activity such as the following:              

               (A) □ 1 cis or trans tetrahydrocannabinol, and its optical isomers;                    

               (B) □ 6 cis or trans tetrahydrocannabinol, and its optical isomers; and                    

               (C) □ 3.4 cis or trans tetrahydrocannabinol, and its optical isomers.                    

   (b) However, the Director of the Department of Health shall not delete a controlled substance listed in this section from Schedule VI.        


History..Acts 1971, No. 590, Art. 2, § 15, as added by Acts 1973, No. 186, § 1; 1979, No. 898, § 22; A.S.A. 1947, § 82-2614.2; Acts 1999, No. 1534, § 1; 2001, No. 320, § 3; 2007, No. 827, § 57.

5-64-216. Schedule revisions.

   The Director of the Division of Health of the Department of Health and Human Services shall revise and republish the schedules annually.        


History..Acts 1971, No. 590, Art. 2, § 16, as added by Acts 1973, No. 186, § 1; 1979, No. 898, § 13; A.S.A. 1947, § 82-2614.3.

Subchapter 3 — Uniform Controlled Substances Act — Regulation of Distribution

5-64-301 — 5-64-304. [Reserved.]



5-64-305. Powers of Arkansas State Board of Pharmacy — Sale of nonnarcotic drugs.

   (a)

         (1) Nothing contained in this chapter shall affect the licensing or regulation of pharmacists or pharmacies in this state by the Arkansas State Board of Pharmacy.              

         (2) The board may also inventory and destroy any outdated or unwanted controlled substance at the request of a licensee of the board with proper record of the destruction provided to appropriate agencies.              

         (3) The board is given primary but not exclusive jurisdiction in the enforcement application of this chapter to the board's licensees.              

   (b) Nothing in this chapter is deemed to prohibit the sale of a nonnarcotic proprietary drug if the nonnarcotic proprietary drug, under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., or the Food, Drug, and Cosmetic Act, § 20-56-201 et seq., may be lawfully sold over the counter without a prescription.        


History..Acts 2005, No. 1994, § 304[A].

5-64-306. Offenses relating to records.

   It is unlawful for any person to refuse or fail to make, keep, or furnish any record, notification, order form, statement, invoice, or information required under this chapter.        


History..Acts 2005, No. 1994, § 304[B].

5-64-307. Order forms.

   (a) A controlled substance in Schedule I or Schedule II shall be distributed by a practitioner to another practitioner only pursuant to an order form.        

   (b) Compliance with the provisions of federal law respecting an order form is deemed compliance with this section.        


History..Acts 1971, No. 590, Art. 3, § 1; A.S.A. 1947, § 82-2615.

5-64-308. Written prescriptions.

   (a) Except when dispensed directly by a practitioner, other than a pharmacy, to an ultimate user, no controlled substance in Schedule II may be dispensed without the written prescription of a practitioner.        

   (b)

         (1) In an emergency situation, as defined by rule of the Director of the Division of Health of the Department of Health and Human Services, a Schedule II drug may be dispensed upon oral prescription of a practitioner, reduced promptly to writing, and filed by the pharmacy.              

         (2) The prescription shall be retained in conformity with the requirements of section 6 of this subchapter.              

         (3) No prescription for a Schedule II substance may be refilled.              

   (c)

         (1) Except when dispensed directly by a practitioner, other than a pharmacy, to an ultimate user, a controlled substance included in Schedule III or Schedule IV that is a prescription drug shall not be dispensed without a written or oral prescription of a practitioner.              

         (2) The prescription shall not be filled or refilled more than six (6) months after the date of the prescription or be refilled more than five (5) times, unless renewed by the practitioner.              

   (d) A controlled substance included in Schedule V shall not be distributed or dispensed other than for a medical purpose.        


History..Acts 1971, No. 590, Art. 3, § 2; A.S.A. 1947, § 82-2616.

Subchapter 4 — Uniform Controlled Substances Act — Prohibitions and Penalties

5-64-401. Criminal penalties.

   (a) Controlled Substance — Manufacturing, Delivering, or Possessing with Intent to Manufacture or Deliver. Except as authorized by subchapters 1-6 of this chapter, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance. Any person who violates this subsection with respect to:        

         (1) Schedule I or II Narcotic Drug or Methamphetamine.

               (A)

                     (i) A controlled substance classified in Schedule I or Schedule II that is a narcotic drug or methamphetamine, and by aggregate weight, including an adulterant or diluent, is less than twenty-eight grams (28 g), is guilty of a felony and shall be imprisoned for not less than ten (10) years nor more than forty (40) years, or life, and shall be fined an amount not exceeding twenty-five thousand dollars ($25,000).                          

                     (ii) For any purpose other than disposition, this offense is a Class Y felony.                          

               (B)

                     (i) A controlled substance classified in Schedule I or Schedule II that is a narcotic drug or methamphetamine, and by aggregate weight, including an adulterant or diluent, is twenty-eight grams (28 g) or more but less than two hundred grams (200 g), is guilty of a felony and shall be imprisoned for not less than fifteen (15) years nor more than forty (40) years, or life, and shall be fined an amount not exceeding fifty thousand dollars ($50,000).                          

                     (ii) For any purpose other than disposition, this offense is a Class Y felony.                          

               (C)

                     (i) A controlled substance classified in Schedule I or Schedule II that is a narcotic drug or methamphetamine, and by aggregate weight, including an adulterant or diluent, is two hundred grams (200 g) or more but less than four hundred grams (400 g), is guilty of a felony and shall be imprisoned for not less than twenty (20) years nor more than forty (40) years, or life, and shall be fined an amount not exceeding one hundred thousand dollars ($100,000).                          

                     (ii) For any purpose other than disposition, this offense is a Class Y felony.                          

               (D)

                     (i) A controlled substance classified in Schedule I or Schedule II that is a narcotic drug or methamphetamine, and by aggregate weight, including an adulterant or diluent, is four hundred grams (400 g) or more, is guilty of a felony and shall be imprisoned for not less than forty (40) years, or life, and shall be fined an amount not exceeding two hundred and fifty thousand dollars ($250,000).                          

                     (ii) For any purpose other than disposition, this offense is a Class Y felony;                          

         (2) Other Schedule I, II, or III.

               (A)

                     (i) Any other controlled substance classified in Schedule I, Schedule II, or Schedule III that by aggregate weight, including an adulterant or diluent, is less than twenty-eight grams (28 g), is guilty of a felony and shall be imprisoned for not less than five (5) years nor more than twenty (20) years and shall be fined an amount not to exceed fifteen thousand dollars ($15,000).                          

                     (ii) For any purpose other than disposition, this offense is a Class B felony.                          

               (B)

                     (i) Any other controlled substance classified in Schedule I, Schedule II, or Schedule III that by aggregate weight, including an adulterant or diluent, is twenty-eight grams (28 g) or more but less than four hundred grams (400 g), is guilty of a felony and shall be imprisoned for not less than ten (10) years nor more than forty (40) years, or life, and shall be fined an amount not to exceed fifty thousand dollars ($50,000).                          

                     (ii) For any purpose other than disposition, this offense is a Class B felony.                          

               (C)

                     (i) Any other controlled substance classified in Schedule I, Schedule II, or Schedule III that by aggregate weight, including an adulterant or diluent, is four hundred grams (400 g) or more, is guilty of a felony and shall be imprisoned for not less than fifteen (15) years nor more than forty (40) years, or life, and shall be fined an amount not exceeding one hundred thousand dollars ($100,000).                          

                     (ii) For any purpose other than disposition, this offense is a Class B felony;                          

         (3) Schedule IV or V.

               (A)

                     (i) A substance classified in Schedule IV or Schedule V that by aggregate weight, including an adulterant or diluent, is less than two hundred grams (200 g), is guilty of a felony and shall be imprisoned for not less than three (3) years nor more than ten (10) years and shall be fined an amount not exceeding ten thousand dollars ($10,000).                          

                     (ii) For any purpose other than disposition, this offense is a Class C felony.                          

               (B)

                     (i) A substance classified in Schedule IV or Schedule V that by aggregate weight, including an adulterant or diluent, is two hundred grams (200 g) or more but less than four hundred grams (400 g), is guilty of a felony and shall be imprisoned for not less than ten (10) years nor more than forty (40) years, or life, and shall be fined an amount not exceeding fifty thousand dollars ($50,000).                          

                     (ii) For any purpose other than disposition, this offense is a Class C felony.                          

               (C)

                     (i) A substance classified in Schedule IV or Schedule V that by aggregate weight, including an adulterant or diluent, is four hundred grams (400 g) or more, is guilty of a felony and shall be imprisoned for not less than fifteen (15) years nor more than forty (40) years, or life, and shall be fined an amount not exceeding one hundred thousand dollars ($100,000).                          

                     (ii) For any purpose other than disposition, this offense is a Class C felony; and                          

         (4) Schedule VI. A controlled substance classified in Schedule VI is guilty of a felony and shall be:              

               (A)

                     (i) Imprisoned no less than four (4) years nor more than ten (10) years or fined no more than twenty-five thousand dollars ($25,000), or both, if the quantity of the controlled substance is less than ten pounds (10 lbs.).                          

                     (ii) For any purpose other than disposition, this offense is a Class C felony;                          

               (B)

                     (i) Imprisoned for no less than five (5) years nor more than twenty (20) years or fined no less than fifteen thousand dollars ($15,000) nor more than fifty thousand dollars ($50,000), or both, if the quantity of the controlled substance is ten pounds (10 lbs.) or more but less than one hundred pounds (100 lbs.).                          

                     (ii) For any purpose other than disposition, this offense is a Class B felony;                          

               (C)

                     (i) Imprisoned for no less than six (6) years nor more than thirty (30) years or fined no less than fifteen thousand dollars ($15,000) nor more than one hundred thousand dollars ($100,000), or both, if the quantity of the controlled substance is one hundred pounds (100 lbs.) or more but less than five hundred pounds (500 lbs.).                          

                     (ii) For any purpose other than disposition, this offense is a Class A felony; or                          

               (D)

                     (i) Imprisoned for no less than ten (10) years nor more than forty (40) years or fined no more than two hundred fifty thousand dollars ($250,000), or both, if the quantity of the controlled substance is five hundred pounds (500 lbs.) or more.                          

                     (ii) For any purpose other than disposition, this offense is a Class Y felony.                          

   (b) Counterfeit Substance — Rebuttable Presumption.

         (1) Except as authorized by this chapter, it is unlawful for any person to create, deliver, or possess with intent to deliver a counterfeit substance.              

         (2) For purposes of this subsection, possession of one hundred (100) dosage units of any one (1) counterfeit substance or possession of two hundred (200) dosage units of counterfeit substances regardless of the type creates a rebuttable presumption that the person possesses the counterfeit substance with intent to deliver.              

         (3) Any person who violates this subsection with respect to:              

               (A) A counterfeit substance purporting to be a controlled substance classified in Schedule I or Schedule II that is a narcotic drug or methamphetamine, is guilty of a Class B felony;                    

               (B) Any other counterfeit substance purporting to be a controlled substance classified in Schedule I, Schedule II, or Schedule III is guilty of a Class C felony;                    

               (C) A counterfeit substance purporting to be a controlled substance classified in Schedule IV is guilty of a Class C felony;                    

               (D) A counterfeit substance purporting to be a controlled substance classified in Schedule V is guilty of a Class C felony; and                    

               (E) A counterfeit substance purporting to be a controlled substance that is not classified as a scheduled controlled substance is guilty of a Class D felony.                    

   (c) Possession of Counterfeit or Controlled Substance.

         (1) It is unlawful for any person to possess a controlled substance or counterfeit substance unless the controlled substance or counterfeit substance was obtained:              

               (A) Directly from or pursuant to a valid prescription or an order of a practitioner while acting in the course of his or her professional practice; or                    

               (B) As otherwise authorized by this chapter.                    

         (2) Any person who violates this subsection with respect to:              

               (A) A controlled substance classified in Schedule I or Schedule II is guilty of a Class C felony;                    

               (B) Any other controlled substance, first offense, is guilty of a Class A misdemeanor;                    

               (C) Any other controlled substance, second offense, is guilty of a Class D felony; and                    

               (D) Any other controlled substance, third or subsequent offense, is guilty of a Class C felony.                    

         (3) For purposes of this subsection, an offense is considered a second or subsequent offense if, before his or her conviction for the offense, the person has been convicted for an offense under this subsection (c) or under any equivalent penal statute of the United States or of any state.              

   (d) Rebuttable Presumption of Intent to Deliver.

         (1) Possession by any person of a quantity of any controlled substance including the mixture or substance listed in subdivision (d)(3) of this section in excess of the quantity limit set out in subdivision (d)(3) of this section creates a rebuttable presumption that the person possesses the controlled substance with intent to deliver.              

         (2) The presumption may be overcome by the submission of evidence sufficient to create a reasonable doubt that the person charged possessed the controlled substance with intent to deliver.              

         (3)

               (A) List of controlled substances and quantities:                    

                     (i) Cocaine — one gram (1 g);                          

                     (ii) Codeine — three hundred milligrams (300 mg);                          

                     (iii) Hashish — six grams (6 g);                          

                     (iv) Heroin — one hundred milligrams (100 mg);                          

                     (v) Hydromorphone Hydrochloride — sixteen milligrams (16 mg);                          

                     (vi) Lysergic Acid Diethylamide (LSD) — one hundred micrograms (100 μg);                          

                     (vii) Marijuana — one ounce (1 oz.);                          

                     (viii) Methadone — one hundred milligrams (100 mg);                          

                     (ix) Methamphetamine — two hundred milligrams (200 mg);                          

                     (x) Morphine — three hundred milligrams (300 mg);                          

                     (xi) Opium — three grams (3 g); and                          

                     (xii) Pethidine — three hundred milligrams (300 mg).                          

               (B) For a controlled substance other than those listed in subdivision (d)(3)(A) of this section:                    

                     (i) Depressant drug — twenty (20) hypnotic dosage units;                          

                     (ii) Hallucinogenic drug — ten (10) dosage units; and                          

                     (iii) Stimulant drug — two hundred milligrams (200 mg).                          

   (e) Immunity for Practitioner. No civil or criminal liability shall be imposed by virtue of this chapter on any practitioner who manufactures, distributes, or possesses a counterfeit substance for use by a registered practitioner in the course of professional practice or research or for use as a placebo by a registered practitioner in the course of professional practice or research.        

   (f) Possession in Detention Facility — Enhanced Penalties. When any person is convicted of the unlawful possession of a controlled substance in any state criminal detention facility, county criminal detention facility, or city criminal detention facility, or any juvenile detention facility, the penalty for the offense is increased to the next higher classification of felony or misdemeanor as prescribed by law for the offense.        

   (g) Rebuttable Presumption on Attempt to Manufacture Methamphetamine.

         (1) Simultaneous possession by any person of drug paraphernalia and a drug precursor appropriate for use to manufacture methamphetamine or possession by any person of drug paraphernalia appropriate for use to manufacture methamphetamine that tests positive for methamphetamine residue creates a rebuttable presumption that the person has engaged in conduct that constitutes a substantial step in a course of conduct intended to result in the manufacture of methamphetamine in violation of § 5-3-201, conduct constituting attempt and this section.              

         (2) The presumption may be overcome by the submission of evidence sufficient to create a reasonable doubt that the person charged attempted to manufacture methamphetamine.              

   (h) Clean Up Liability — Restitution.

         (1) A person who violates this section is liable for the cost of the cleanup of the site where the person:              

               (A) Manufactured a controlled substance; or                    

               (B) Possessed drug paraphernalia or a chemical for the purpose of manufacturing a controlled substance.                    

         (2) The person shall make restitution to the state or local agency responsible for the cleanup for the cost of the cleanup under § 5-4-205.              


History..Acts 1971, No. 590, Art. 4, § 1; 1972 (Ex. Sess.), No. 67, § 1; 1972 (Ex. Sess.), No. 68, § 1; 1973, No. 186, §§ 2, 3; 1975, No. 305, § 2; 1977, No. 557, § 1; 1983, No. 306, § 1; 1983, No. 417, § 1; 1983, No. 787, §§ 3-5; 1985, No. 165, § 1; 1985, No. 472, § 1; 1985, No. 512, § 1; 1985, No. 669, § 1; A.S.A. 1947, § 82-2617; Acts 1989 (3rd Ex. Sess.), No. 82, §§ 1, 2; 1994 (2nd Ex. Sess.), No. 10, § 1; 1994 (2nd Ex. Sess.), No. 46, § 1; 1997, No. 1142, § 1; 1999, No. 1268, § 2; 2001, No. 753, § 1; 2003, No. 1336, § 2; 2005, No. 1994, § 305[A]; 2007, No. 547, § 1; 2007, No. 827, § 58; 2009, No. 572, § 1; 2009, No. 673, § 1; 2009, No. 748, § 26.

5-64-402. Offenses relating to records, maintaining premises, etc.

   (a) It is unlawful for any person:        

         (1) To refuse an entry into any premises for any inspection authorized by this chapter; or              

         (2) Knowingly to keep or maintain any store, shop, warehouse, dwelling, building, or other structure or place or premise that is resorted to by a person for the purpose of using or obtaining a controlled substance in violation of this chapter or that is used for keeping a controlled substance in violation of this chapter.              

   (b)

         (1) Any person who violates this section is guilty of a Class D felony.              

         (2) However, a violation of this section is a Class B felony if the violation is committed on or within one thousand feet (1,000′) of the real property of a certified drug free zone.              

   (c) The following are certified drug free zones:        

         (1) A city or state park;              

         (2) A public or private elementary or secondary school, public vocational school, or public or private college or university;              

         (3) A community or recreation center;              

         (4) A Boys Club, Girls Club, YMCA, or YWCA; or              

         (5) A skating rink or video arcade.              


History..Acts 1971, No. 590, Art. 4, § 2; 1975 (Extended Sess., 1976), No. 1225, § 1; 1977, No. 557, § 2; A.S.A. 1947, § 82-2618; reen. Acts 1987, No. 1013, § 1; 1993, No. 1189, § 6; 2005, No. 1994, § 305[A]; 2007, No. 827, § 59.

5-64-403. Fraud — Criminal penalties — Drug paraphernalia.

   (a) Fraud. It is unlawful for a person knowingly to:        

         (1) Distribute as a registrant a controlled substance classified in Schedule I or Schedule II, except pursuant to an order form as required by § 5-64-307;              

         (2) Acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, subterfuge, or theft;              

         (3) Furnish false or fraudulent material information in, or omit any material information from, any record, application, report, or other document required to be kept or filed under this chapter;              

         (4) 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 trademark, trade name, or other identifying mark, imprint, or device of another upon any drug or container or labeling of a drug or container so as to render the drug a counterfeit substance; and              

         (5)

               (A) Agree, consent, or in any manner offer to unlawfully sell, furnish, transport, administer, or give any controlled substance to any person or to arrange for any action described in this subdivision (a)(5)(A), and then to substitute a noncontrolled substance in lieu of the controlled substance bargained for.                    

               (B) The proffer of a controlled substance creates a rebuttable presumption of intent to deliver that does not require additional showing of specific intent to substitute a noncontrolled substance.                    

   (b) Penalties.

         (1) Any person who violates any provision of subdivisions (a)(1)-(4) of this section is guilty of a Class C felony.              

         (2) Any person who violates subdivision (a)(5) of this section with respect to:              

               (A) A noncontrolled substance represented to be a controlled substance classified in Schedule I or Schedule II that is a narcotic drug is guilty of a Class B felony;                    

               (B) Any other noncontrolled substance represented to be a controlled substance classified in Schedule I, Schedule II, or Schedule III is guilty of a Class C felony;                    

               (C) A noncontrolled substance represented to be a controlled substance classified in Schedule IV is guilty of a Class C felony;                    

               (D) A noncontrolled substance represented to be a controlled substance classified in Schedule V is guilty of a Class C felony; and                    

               (E) A noncontrolled substance represented to be a controlled substance classified in Schedule VI is guilty of a Class D felony.                    

   (c) Drug Paraphernalia.

         (1)

               (A)

                     (i) It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia 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 in violation of this chapter.                          

                     (ii) A violation of subdivision (c)(1)(A)(i) of this section is a Class A misdemeanor.                          

               (B) Any person who violates subdivision (c)(1)(A)(i) of this section in the course of and in furtherance of a felony violation of this chapter is guilty of a Class C felony.                    

         (2)

               (A)

                     (i) 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 in which a person reasonably should know, that the drug paraphernalia 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 in violation of this chapter.                          

                     (ii) Any person who violates subdivision (c)(2)(A)(i) of this section is guilty of a Class A misdemeanor.                          

               (B) Any person who violates subdivision (c)(2)(A)(i) of this section in the course of and in furtherance of a felony violation of this chapter is guilty of a Class C felony.                    

         (3)

               (A) Any person eighteen (18) years of age or over who violates subdivision (c)(2)(A)(i) of this section immediately preceding by delivering drug paraphernalia in the course of and in furtherance of a felony violation of this chapter to a person under eighteen (18) years of age who is at least three (3) years his or her junior is guilty of a Class B felony.                    

               (B) Otherwise, any person eighteen (18) years of age or over who violates subdivision (c)(2)(A)(i) of this section by delivering drug paraphernalia to a person under eighteen (18) years of age who is at least three (3) years his or her junior is guilty of a Class A misdemeanor.                    

         (4)

               (A) It is unlawful for any person to place in any newspaper, magazine, handbill, or other publication any advertisement knowing, or under circumstances in which a person reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of a counterfeit substance or of an object designed or intended for use as drug paraphernalia.                    

               (B) Any person who violates subdivision (c)(4)(A) of this section is guilty of a Class C felony.                    

         (5)

               (A) It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to manufacture methamphetamine in violation of this chapter.                    

               (B) Any person who pleads guilty or nolo contendere to or is found guilty of violating subdivision (c)(5)(A) of this section is guilty of a Class B felony.                    


History..Acts 1971, No. 590, Art. 4, § 3; 1972 (Ex. Sess.), No. 67, § 2; 1977, No. 557, § 3; 1981, No. 78, § 2; 1981, No. 116, §§ 2, 3; 1981, No. 117, § 1; 1983, No. 787, § 6; A.S.A. 1947, § 82-2619; Acts 1999, No. 326, § 1; 1999, No. 1268, § 3; 2001, No. 1451, § 1; 2005, No. 1994, § 305[A]; 2007, No. 827, § 60; 2009, No. 748, § 27.

5-64-404. Use of a communication device.

   (a)

         (1) As used in this section, “communication device” means any public or private instrumentality used or useful in the transmission of a writing, sign, signal, picture, or sound of any kind.              

         (2) “Communication device” includes mail, telephone, wire, radio, and any other means of communication.              

   (b) A person commits the offense of unlawful use of a communication device if he or she knowingly uses any communication device in committing or in causing or facilitating the commission of any act constituting a:        

         (1) Felony under this chapter; or              

         (2) Felony inchoate offense under § 5-3-101 et seq. or this chapter.              

   (c) Each separate use of a communication device is a separate offense under this section.        

   (d) Any person who violates this section is guilty of a Class C felony.        


History..Acts 1971, No. 590, Art. 4, § 4; A.S.A. 1947, § 82-2620; Acts 2005, No. 1994, § 305[A]; 2007, No. 827, § 61.

5-64-405. Continuing criminal enterprise.

   (a) A person commits the offense of engaging in a continuing criminal enterprise if he or she:        

         (1) Violates any provision of this chapter that is a felony, except § 5-64-401(c); and              

         (2) The violation is a part of a continuing series of two (2) or more felony offenses of this chapter, except § 5-64-401(c):              

               (A) That are undertaken by that person in concert with five (5) or more other persons with respect to whom that person occupies a position of organizer, a supervisory position, or any other position of management; and                    

               (B) From which that person obtained substantial income or resources.                    

   (b)

         (1) A person who engages in a continuing criminal enterprise is guilty of a felony and upon conviction shall be sentenced to a term of imprisonment up to two (2) times the term otherwise authorized for the underlying offense referenced in subdivision (a)(1) of this section and shall be fined an amount up to two (2) times that authorized for the underlying offense referenced in subdivision (a)(1) of this section.              

         (2) For any purpose other than disposition, engaging in a continuing criminal enterprise is a Class Y felony.              

   (c)

         (1) A person who violates subsection (a) of this section after a previous conviction under subsection (a) of this section has become final is guilty of a felony and shall be punished by a term of imprisonment not exceeding three (3) times that authorized for the underlying offense referenced in subdivision (a)(1) of this section and a fine not exceeding three (3) times the amount authorized for the underlying offense referenced in subdivision (a)(1) of this section.              

         (2) For any purpose other than disposition, engaging in a continuing criminal enterprise is a Class Y felony.              

   (d)

         (1) Upon conviction, the prosecuting attorney may institute a civil action against any person who violates this section to obtain a judgment against all persons who violates this section, jointly and severally, for damages in an amount equal to three (3) times the proceeds acquired by all persons involved in the enterprise or by reason of conduct in furtherance of the enterprise, together with costs incurred for resources and personnel used in the investigation and prosecution of both criminal and civil proceedings.              

         (2) The standard of proof in an action brought under this section is a preponderance of the evidence.              

         (3) The procedures in the asset forfeiture law, § 5-64-505, shall apply.              

         (4) A defendant in a civil action brought under this subsection is entitled to a trial by jury.              

   (e) An offender found guilty of a violation of this section shall not:        

         (1) Have his or her sentence suspended;              

         (2) Be placed on probation;              

         (3) Have imposition of sentence suspended;              

         (4) Have the execution of the sentence;              

         (5) Have the sentence deferred; or              

         (6) Be eligible for § 16-93-301 et seq.              


History..Acts 1971, No. 590, Art. 4, § 5; A.S.A. 1947, § 82-2621; Acts 2005, No. 1994, § 305[A].

5-64-406. Distribution to minors — Enhanced penalties.

   (a) Any person eighteen (18) years of age or over who violates § 5-64-401(a) by distributing a controlled substance listed in Schedule I or Schedule II that is a narcotic drug or methamphetamine to a person under eighteen (18) years of age who is at least three (3) years his or her junior is punishable by the fine authorized by § 5-64-401(a)(1), by a term of imprisonment of up to twice that authorized by § 5-64-401(a)(1), or by both.        

   (b) Any person eighteen (18) years of age or over who violates § 5-64-401 by distributing any other controlled substance listed in Schedule I, Schedule II, Schedule III, Schedule IV, or Schedule V to a person under eighteen (18) years of age who is at least three (3) years his junior is punishable by the fine authorized by § 5-64-401(a)(2), (3), or (4), by a term of imprisonment up to twice that authorized by § 5-64-401(a)(2), (3), or (4), or both.        


History..Acts 1971, No. 590, Art. 4, § 6; A.S.A. 1947, § 82-2622; Acts 2005, No. 1994, § 475.

5-64-407. Manufacture of methamphetamine in the presence of certain persons — Enhanced penalties.

   (a) Any person who is found guilty of or who pleads guilty or nolo contendere to manufacture of methamphetamine, § 5-64-401(a)(1), or possession of drug paraphernalia with the intent to manufacture methamphetamine, § 5-64-403(c)(5), may be subject to an enhanced sentence of an additional term of imprisonment of ten (10) years if the offense is committed:        

         (1) In the presence of a minor, elderly person, or incompetent person who may or may not be related to the person;              

         (2) With a minor, elderly person, or incompetent person in the same home or building where the methamphetamine was being manufactured or where the drug paraphernalia to manufacture methamphetamine was in use or was in preparation to be used; or              

         (3) With a minor, elderly person, or incompetent person present in the same immediate area or in the same vehicle at the time of the person's arrest for the offense.              

   (b) The enhanced portion of the sentence is consecutive to any other sentence imposed.        

   (c) Any person sentenced under this section is not eligible for early release on parole or community correction transfer for the enhanced portion of the sentence.        

   (d) As used in this section:        

         (1) “Elderly person” means any person seventy (70) years of age or older;              

         (2) “Incompetent person” means any person who is incapable of consent because he or she is physically helpless, mentally defective, or mentally incapacitated; and              

         (3) “Minor” means any person under eighteen (18) years of age.              


History..Acts 1971, No. 590, Art. 4, § 7; 1972 (Ex. Sess.), No. 67, § 3; 1973, No. 186, § 4; A.S.A. 1947, § 82-2623; Acts 1995, No. 998, § 2; 2005, No. 1994, § 304[B]; 2007, No. 200, § 1; 2007, No. 1047, § 3.

5-64-408. Subsequent convictions — Enhanced penalties.

   (a) Any person convicted of a second or subsequent offense under this chapter shall be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized, or both.        

   (b) For purposes of this section, an offense is considered a second or subsequent offense if, prior to his or her conviction of the offense, the offender has at any time been convicted under this chapter or under any statute of the United States or of any state relating to a narcotic drug, marijuana, depressant, stimulant, or a hallucinogenic drug.        

   (c) This section does not apply to an offense under § 5-64-401(c).        


History..Acts 1971, No. 590, Art. 4, § 8; 1973, No. 186, § 5; A.S.A. 1947, § 82-2624; 2005, No. 1994, § 304[B].

5-64-409. [Repealed.]



5-64-410. Penalties for delivery — Enhanced penalties.

   (a)

         (1) Notwithstanding any other provision of law to the contrary:              

               (A) Any person convicted of delivering a controlled substance included in Schedule I shall be sentenced for a term of imprisonment of not less than ten (10) years; and                    

               (B) Any person convicted of delivering a controlled substance included in Schedule I, Schedule II, Schedule III, Schedule IV, Schedule V, or Schedule VI to a school student in grade one through twelve (1-12) or any other person under eighteen (18) years of age shall be sentenced for a term of imprisonment of not less than ten (10) years.                    

         (2) A person over eighteen (18) years of age convicted of an offense defined in this subsection, except delivery of less than one ounce (1 oz.) of a Schedule VI controlled substance, is not eligible for early release on parole as provided in § 16-93-601.              

   (b) The provisions of this section are cumulative and supplemental to any other law of this state prescribing a penalty for delivery of a controlled substance and are deemed to modify only a law in direct conflict.        


History..2005, No. 1994, § 305[B].

5-64-411. Proximity to certain facilities — Enhanced penalties.

   (a) Any person who commits an offense under § 5-64-401(a) by selling, delivering, possessing with intent to deliver, dispensing, manufacturing, transporting, administering, or distributing a controlled substance may be subject to an enhanced sentence of an additional term of imprisonment of ten (10) years if the offense is committed on or within one thousand feet (1,000') of the real property of:        

         (1) A city or state park;              

         (2) A public or private elementary or secondary school, public vocational school, or private or public college or university;              

         (3) A designated school bus stop as identified on the route list published by a public school district each year;              

         (4) A skating rink, Boys Club, Girls Club, YMCA, YWCA, or community or recreation center;              

         (5) A publicly funded and administered multifamily housing development;              

         (6) A drug or alcohol treatment facility;              

         (7) A day care center;              

         (8) A church; or              

         (9) A shelter as defined in § 9-4-102.              

   (b) The enhanced portion of the sentence is consecutive to any other sentence imposed.        

   (c) Any person convicted under this section is not eligible for early release on parole or community correction transfer for the enhanced portion of the sentence.        

   (d)

         (1) Except for property covered by subdivision (a)(3) of this section, property covered by this section shall have a notice posted at the entrances to the property stating:              

         “THE SALE OF DRUGS UPON OR WITHIN ONE THOUSAND FEET (1000') OF THIS PROPERTY MAY SUBJECT THE SELLER OF THE DRUGS TO AN ADDITIONAL TEN (10) YEARS IMPRISONMENT IN ADDITION TO THE TERM OF IMPRISONMENT OTHERWISE PROVIDED FOR THE UNLAWFUL SALE OF DRUGS.”              

         (2) However, the posting of the notice is not a necessary element for the enhancement of a sentence under this section.              

   (e) As used in this section, “recreation center” means a public place of entertainment consisting of various types of entertainment, including, but not limited to, billiards or pool, ping pong or table tennis, bowling, video games, pinball machines, or any other similar type of entertainment.        


History..Acts 1989 (3rd Ex. Sess.), No. 88, § 1; 1991, No. 864, § 1; 1995, No. 778, § 1; 1995, No. 799, § 1; 1997, No. 1056, § 1; 2001, No. 1553, § 12; 2003, No. 1707, § 1; 2005, No. 195, § 1; 2005, No. 1994, § 305[B]; 2007, No. 345, § 1; 2007, No. 827, § 62; 2007, No. 1047, § 3.

5-64-412. Violations by public officials or law enforcement officers — Enhanced penalties.

   (a) As used in this section:        

         (1) “Law enforcement officer” means any member of the Department of Arkansas State Police or the Arkansas Highway Police Division of the Arkansas State Highway and Transportation Department and any other certified law enforcement officer employed full time by the State of Arkansas or any political subdivision of the State of Arkansas or court personnel in Arkansas; and              

         (2) “Public official” means any person holding or appointed to an elective office of state, county, or city government and any member of any board or commission of state, county, city, or local government including an improvement district or school district.              

   (b) Any public official or law enforcement officer who commits a felony violation of this chapter shall have any term of imprisonment imposed for the violation enhanced by a term not to exceed ten (10) years and a fine of not less than ten thousand dollars ($10,000).        


History..Acts 1989 (3rd Ex. Sess.), No. 80, §§ 1, 2; 2005, No. 1994, § 305[B].

5-64-413. Probation — Discharge and dismissal.

   (a) When any person who has not previously pleaded guilty or been found guilty of any offense under this chapter or under any statute of the United States or of any state relating to a narcotic drug, marijuana, stimulant, depressant, or a hallucinogenic drug pleads guilty to or is found guilty of possession of a controlled substance under § 5-64-401, with the exception of a conviction for possession of a substance listed under Schedule I, the court without entering a judgment of guilt and with the consent of the defendant may defer further proceedings and place the defendant on probation for a period of not less than one (1) year under such terms and conditions as may be set by the court.        

   (b) The court may require as a condition for probation that the defendant undergo an evaluative examination by a physician or medical facility approved by the court and, if warranted, undergo in-patient or out-patient treatment and rehabilitation for drug abuse.        

   (c) Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided.        

   (d)

         (1) Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him or her.              

         (2) Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for a second or subsequent conviction under § 5-64-408.              

         (3) There may be only one (1) discharge and dismissal under this section with respect to any person.              

         (4) A person against whom proceedings are discharged or dismissed may seek to have the criminal records sealed, consistent with the procedures established in § 16-90-901 et seq.              


History..Acts 2005, No. 1994, § 305[B].

5-64-414. Controlled substance analog.

   (a)

         (1) “Controlled substance analog” means a substance:              

               (A) The chemical structure of which is substantially similar to the chemical structure of a controlled substance in Schedule I or Schedule II or that has a stimulant, depressant, or hallucinogenic effect on the central nervous system substantially similar to the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance included in Schedule I or Schedule II; or                    

               (B) With respect to a particular individual, that the individual represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system substantially similar to the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance included in Schedule I or Schedule II.                    

         (2) “Controlled substance analog” does not include:              

               (A) A controlled substance;                    

               (B) A substance for which there is an approved new drug application;                    

               (C) A substance with respect to which an exemption is in effect for investigational use by a particular person under § 505 of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 355, to the extent conduct with respect to the substance is pursuant to the exemption; or                    

               (D) Any substance to the extent not intended for human consumption before an exemption takes effect with respect to the substance.                    

   (b) A controlled substance analog, to the extent intended for human consumption, is treated for the purposes of this chapter as a substance included in Schedule I.        

   (c) Within ten (10) days after the initiation of prosecution with respect to a controlled substance analog by indictment or information, the prosecuting attorney shall notify the Director of the Department of Health of information relevant to emergency scheduling as provided for in § 5-64-201(d).        

   (d) After final determination that the controlled substance analog should not be scheduled, no prosecution relating to that substance as a controlled substance analog may continue or take place.        


History..Acts 1989 (3rd Ex. Sess.), No. 84, § 1; 2005, No. 1994, § 306.

5-64-415. Drug precursors.

   (a) Definition.

         (1) “Drug precursor” means any substance, material, compound, mixture, or preparation listed in rules and regulations promulgated or adopted pursuant to this section or any of their salts or isomers.              

         (2) “Drug precursor” specifically excludes those substances, materials, compounds, mixtures, or preparations that:              

               (A) Are prepared for dispensing pursuant to a prescription or over-the-counter distribution as a substance that is generally recognized as safe and effective within the meaning of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., as amended; or                    

               (B) Have been manufactured, distributed, or possessed in conformance with the provisions of an approved new drug application or an exemption for investigational use within the meaning of § 505 of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 355, as amended.                    

   (b) Authority to control drug precursors by rule and regulation.

         (1)

               (A) The Department of Health shall promulgate by rule and regulation a list of drug precursors, comprised of any substance, material, compound, mixture, or preparation or any of their salts or isomers that are drug precursors.                    

               (B) The Department of Health may add substances to, delete substances from, and reschedule substances listed in the drug precursors list pursuant to the Arkansas Administrative Procedure Act, § 25-15-201 et seq.                    

         (2) In making a determination regarding a substance to be placed on the drug precursor list, the Department of Health shall consider the following:              

               (A) Whether the substance is an immediate precursor of a controlled substance;                    

               (B) The actual or relative potential for abuse;                    

               (C) The scientific evidence of the substance's pharmacological effect, if known;                    

               (D) The state of current scientific knowledge regarding the substance or the controlled substance for which it is a precursor;                    

               (E) The history and current pattern of abuse of the controlled substance for which the substance is a precursor;                    

               (F) The scope, duration, and significance of abuse of the controlled substance for which the substance is a precursor;                    

               (G) The risk to the public health; and                    

               (H) The potential of the substance or the controlled substance to produce psychic or physiological dependence liability.                    

         (3) The Department of Health may consider findings of the United States Food and Drug Administration or the United States Drug Enforcement Administration as prima facie evidence relating to one (1) or more of the factors listed in subdivision (b)(2) of this section in connection with the Department of Health's determination.              

         (4)

               (A) After considering the factors enumerated in subdivision (b)(2) of this section, the Department of Health shall make findings with respect to the factors and shall promulgate a rule controlling a substance as a drug precursor upon a finding that the substance has a potential for abuse.                    

               (B) If the Department of Health designates a substance as an immediate drug precursor, a substance that is a precursor of the controlled precursor is not subject to control solely because it is a precursor of the controlled precursor.                    

         (5) Authority to control under this section does not extend to an alcoholic beverage, alcoholic liquor, a fermented malt beverage, or tobacco.              

   (c) License required — Controlled substances drug precursors.

         (1)

               (A) The Department of Health may promulgate regulations and charge reasonable fees of not more than twenty-five dollars ($25.00) relating to the licensing and control of the manufacture, possession, transfer, and transportation of a drug precursor.                    

               (B)

                     (i) There is created on the books of the Treasurer of State, the Auditor of State, and the Chief Fiscal Officer of the State, a cash fund to be known as the “Health Department Drug Precursor Cash Fund”.                          

                     (ii) The fees established under this subsection shall be collected by the Department of Health and transmitted to the Treasurer of State, who shall credit the fees to the Health Department Drug Precursor Cash Fund.                          

                     (iii) The fund shall be administered by the Division of Pharmacy Services and Drug Control of the Department of Health.                          

         (2) Any person that manufactures, possesses, transfers, or transports any drug precursor or that proposes to engage in the manufacture, possession, transfer, or transportation of any drug precursor shall annually obtain a license issued by the Department of Health.              

         (3) A person licensed by the Department of Health to manufacture, possess, transfer, or transport a drug precursor may manufacture, possess, transfer, or transport the drug precursor to the extent authorized by the person's license and in conformity with any other provision of law.              

         (4) The following persons are not required to be licensed under this subsection and may lawfully possess a drug precursor:              

               (A) A physician, dentist, pharmacist, veterinarian, or podiatrist;                    

               (B) An agent of any manufacturer, or wholesaler of any drug precursor if the agent is acting in the usual course of his or her principal's business or employment;                    

               (C) An employee of a licensed common or contract carrier or licensed warehouseman whose possession of any drug precursor is in the usual course of the licensed common or contract carrier or licensed warehouseman's business;                    

               (D) A student enrolled in a college chemistry class for credit if the student's use of the drug precursor is for a bona fide educational purpose and the educational institution otherwise possesses all the necessary licenses required by the Department of Health;                    

               (E) An officer or employee of an appropriate agency of federal, state, or local government and a law enforcement agency acting pursuant to its official duties; and                    

               (F) Any researcher, including an analytical laboratory, experimenting with, studying, or testing any drug analog that is licensed by the Department of Health pursuant to the requirements of this subsection.                    

   (d) Waiver. The Department of Health may waive by regulation the requirement for licensing of certain manufacturers if the waiver is consistent with the public health and safety.        

   (e) Issuance of license — Fees.

         (1)

               (A) The Department of Health shall license an applicant to manufacture, possess, transfer, or transport a drug precursor unless it determines that the issuance of the license would be inconsistent with the public interest.                    

               (B) In determining the public interest, the Department of Health shall consider the following factors:                    

                     (i) Maintenance of effective controls against diversion of a drug precursor other than a legitimate medical, scientific, or industrial channel;                          

                     (ii) Compliance with applicable state and local law;                          

                     (iii) Any conviction of the applicant under federal or state law relating to any controlled substance or drug precursor;                          

                     (iv) Past experience in the manufacture, possession, transfer, or transportation of a drug precursor and the existence in the applicant's establishment of effective controls against diversion;                          

                     (v) Furnishing by the applicant of false or fraudulent material in any application filed under subsection (c) of this section;                          

                     (vi) Suspension or revocation of the applicant's federal registration to manufacture, distribute, or dispense a controlled substance or drug precursor authorized by federal law; and                          

                     (vii) Any other factor relevant to and consistent with the public health and safety.                          

         (2) Licensing under this section does not entitle a licensee to manufacture, possess, transfer, or transport a drug precursor other than a drug precursor allowed in the license.              

   (f) Denial, revocation, or suspension of license.

         (1) The Department of Health may deny, revoke, or suspend a license issued pursuant to subsection (c) of this section for any of the following reasons:              

               (A) If a licensee is convicted of, or has accepted by a court a plea of guilty or nolo contendere to a felony under any state or federal law relating to a controlled substance or a drug precursor;                    

               (B)

                     (i) If a licensee has its federal registration to manufacture, conduct research on, distribute, or dispense a controlled substance or a drug precursor suspended or revoked.                          

                     (ii) The Department of Health may limit revocation or suspension of a license to the particular controlled substance or drug precursor that was the basis for revocation or suspension; or                          

               (C) If a licensee commits an unlawful act as enumerated in subsection (g) of this section.                    

         (2)

               (A)

                     (i) When the Department of Health suspends or revokes a license, any controlled substance or drug precursor owned or possessed by the licensee at the time of the suspension or on the effective date of the revocation order may be placed under seal.                          

                     (ii) No disposition may be made of a controlled substance or drug precursor under seal until the time for making an appeal has elapsed or until all appeals have been concluded unless a court orders otherwise or orders the sale of any perishable controlled substance or drug precursor and the deposit of the proceeds with the court.                          

               (B) Upon a revocation order becoming final:                    

                     (i) Any controlled substance and any drug precursor may be forfeited to the Department of Health;                          

                     (ii) Any expense of disposing of a forfeited controlled substance or drug precursor shall be borne by the licensee;                          

                     (iii) The court may order the licensee to pay a reasonable sum of money to the Department of Health to cover the expenses of disposition; and                          

                     (iv) The Department of Health may seek enforcement of the order of payment, or reimbursement for any expenses through any lawful means.                          

   (g) Unlawful acts — Licenses — Penalties.

         (1) It is unlawful to:              

               (A) Knowingly transfer a drug precursor except to an authorized licensee;                    

               (B) Knowingly use in the course of the manufacture or transfer of a drug precursor a license number which is fictitious, revoked, suspended, or issued to another person;                    

               (C) Knowingly acquire or obtain, or attempt to acquire or obtain, possession of a drug precursor by misrepresentation, fraud, forgery, deception, or subterfuge;                    

               (D) Knowingly furnish false or fraudulent material information in, or omitting any material information from, any application, report, or other document required to be kept or filed under this section or any record required to be kept by this section;                    

               (E) Have knowledge of the manufacture of a drug precursor not authorized by a licensee's license, or have knowledge of the transfer of a drug precursor not authorized by the licensee's license to another licensee or authorized person;                    

               (F) Refuse entry into any premises for any inspection authorized by this section; or                    

               (G) Manufacture, possess, transfer, or transport a drug precursor without the appropriate license or in violation of any rule or regulation of the Department of Health.                    

         (2) Any person who violates a provision of this subsection is guilty of a Class D felony.              

   (h) Records to be kept — Order forms.

         (1) A manufacturer, wholesaler, retailer, or other person that sells, transfers, or otherwise furnishes any drug precursor to a person shall make an accurate and legible record of the transaction and maintain the record for a period of at least two (2) years after the date of the transaction.              

         (2) Before selling, transferring, or otherwise furnishing to a person in this state a precursor substance subject to subdivision (h)(1) of this section, a manufacturer, wholesaler, retailer, or other person shall:              

               (A) If the receipient does not represent a business, obtain from the recipient:                    

                     (i) The recipient's driver's license number or other personal identification certificate number, date of birth, and residential or mailing address, other than a post office box number, from a driver's license or personal identification card issued by the Department of Finance and Administration that contains a photograph of the recipient;                          

                     (ii) The year, state, and number of the motor vehicle license of the motor vehicle owned or operated by the recipient;                          

                     (iii) A complete description of how the substance is to be used; and                          

                     (iv) The recipient's signature;                          

               (B) If the recipient represents a business, obtain from the recipient:                    

                     (i) A letter of authorization from the business that includes the business license or comptroller tax identification number, address, area code, and telephone number, and a complete description of how the substance is to be used; and                          

                     (ii) The recipient's signature; and                          

               (C) For any recipient, sign as a witness to the signature and identification of the recipient.                    

         (3)

               (A) Except as otherwise provided in this section, a manufacturer, wholesaler, retailer, or other person that sells, transfers, or otherwise furnishes to a person in this state a drug precursor shall submit to the Department of Health, at least twenty-one (21) days before the delivery of the drug precursor, a report of the transaction on a form obtained from the Department of Health that includes the information required by subdivisions (h)(2)(A) or (B) of this section.                    

               (B) A copy of this report shall be transmitted to the Department of Arkansas State Police.                    

   (i) Reports of theft, loss, shipping discrepancies, and other transactions.

         (1) The theft or loss of any drug precursor discovered by any person regulated by this section shall be reported to the Department of Health and the Department of Arkansas State Police within three (3) days after the discovery.              

         (2)

               (A) Any difference between the quantity of any drug precursor received and the quantity shipped shall be reported to the Department of Health within three (3) days after the receipt of actual knowledge of the discrepancy.                    

               (B) When applicable, any report made pursuant to this subsection shall also include the name of any common carrier or person that transported the substance and the date of shipment of the substance.                    

         (3) Any manufacturer, wholesaler, retailer, or other person subject to any other reporting requirement in this section that receives from a source outside of this state any drug precursor specified in rules and regulations promulgated pursuant to this section shall submit a report of the transaction to the Department of Health in accordance with rules adopted by the Department of Health.              

         (4) Any person violating any provision of this subsection is guilty of a Class A misdemeanor.              

         (5) The Department of Health may authorize a manufacturer, wholesaler, retailer, or other person to submit a comprehensive monthly report instead of the report required by subdivision (i)(2)(A) of this section if the Director of the Department of Health determines that:              

               (A) There is a pattern of regular supply and purchase of the drug precursor between the furnisher and the recipient; or                    

               (B) The recipient has established a record of utilization of the drug precursor solely for a lawful purpose.                    

   (j) Investigations and inspections.

         (1) The Department of Arkansas State Police specifically may investigate any violation of a provision of this section, and enforce its provisions.              

         (2) Further, the Department of Arkansas State Police and the Department of Health shall exchange information gathered or received by either agency under the provisions of this section.              

         (3) Any record kept by a licensee pursuant to this section is open to inspection by an authorized investigator of the Department of Arkansas State Police or the Department of Health during normal business hours and at any other reasonable time.              

   (k) In addition to rules and regulations authorized by a provision of this section, the Department of Health may promulgate necessary rules and regulations to carry out the provisions of this section.        


History..Acts 1991, No. 954, §§ 1, 3, 4; 2007, No. 827, §§ 63, 64.

5-64-416. [Repealed.]



5-64-417. Penalties under other laws.

   Any penalty imposed for a violation of this chapter is in addition to, and not in lieu of, any civil or administrative penalty or sanction otherwise authorized by law.        


History..Acts 1991, No. 1145, §§ 1, 2; 2005, No. 1994, § 307.

5-64-418. Foreign conviction.

   If a violation of this chapter is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state.        


History..Acts 2001, No. 1141, § 1; 2005, No. 1994, § 307.

Subchapter 5 — Uniform Controlled Substances Act — Enforcement and Administration

5-64-501. Powers of officials generally.

   Any law enforcement officer, any person authorized to enforce this chapter, or any employee of the Department of Health and Human Services designated by the Director of the Division of Health of the Department of Health and Human Services to conduct an examination, investigation, or inspection under this chapter relating to a controlled substance or to a counterfeit drug may:        

         (1) Carry a firearm in the performance of his or her official duties;              

         (2) Execute and serve a search warrant, arrest warrant, administrative inspection warrant, subpoena, or summons issued under the authority of this state;              

         (3) Make an arrest without warrant for any offense under this chapter committed in his or her presence, or if he or she has probable cause to believe that the person to be arrested has committed a violation of this chapter that may constitute a felony;              

         (4) Make a seizure of property pursuant to this chapter; or              

         (5) Perform any other law enforcement duty as the director designates.              


History..Acts 1971, No. 590, Art. 5, § 1; 1972 (Ex. Sess.), No. 67, § 5; 1979, No. 898, § 14; A.S.A. 1947, § 82-2625; Acts 2005, No. 1994, § 308.

5-64-502. Issuance and execution of administrative inspection warrants.

   (a) Issuance and execution of an administrative inspection warrant shall be as follows:        

         (1)

               (A) A judge of a court of record, within his or her jurisdiction, and upon proper oath or affirmation showing probable cause, may issue a warrant for the purpose of conducting an administrative inspection authorized by this chapter or a rule under this chapter, and a seizure of property appropriate to the administrative inspection.                    

               (B) For purposes of the issuance of an administrative inspection warrant, probable cause exists from showing a valid public interest in the effective enforcement of this chapter or a rule under this chapter, sufficient to justify administrative inspection of the area, premises, building, or conveyance in the circumstances specified in the application for the administrative inspection warrant;                    

         (2)

               (A) An administrative inspection warrant shall issue only upon an affidavit of a designated officer or employee having knowledge of the facts alleged, sworn to before the judge or magistrate, and establishing the grounds for issuing the administrative inspection warrant.                    

               (B) If the judge or magistrate is satisfied that grounds for the application exist or that there is probable cause to believe they exist, he or she shall issue an administrative inspection warrant identifying the area, premises, building, or conveyance to be inspected, the purpose of the inspection, and, if appropriate, the type of property to be inspected, if any.                    

               (C) The administrative inspection warrant shall:                    

                     (i) State the grounds for its issuance and the name of each person whose affidavit has been taken in support of it;                          

                     (ii) Be directed to a person authorized by § 5-64-501 to execute it;                          

                     (iii) Command the person to whom it is directed to inspect the area, premises, building, or conveyance identified for the purpose specified and, if appropriate, direct the seizure of the property specified;                          

                     (iv) Identify the item or types of property to be seized, if any; and                          

                     (v) Direct that it be served during normal business hours and designate the judge or magistrate to whom it shall be returned;                          

         (3)

               (A) An administrative inspection warrant issued pursuant to this section shall be executed and returned within ten (10) days of its date unless, upon a showing of a need for additional time, the court orders otherwise.                    

               (B) If property is seized pursuant to an administrative inspection warrant, a copy of the administrative inspection warrant shall be given to the person from whom or from whose premises the property is taken, together with a receipt for the property taken.                    

               (C)

                     (i) The return of the administrative inspection warrant shall be made promptly, accompanied by a written inventory of any property taken.                          

                     (ii) The inventory shall be made in the presence of the person executing the administrative inspection warrant and of the person from whose possession or premises the property was taken, if present, or in the presence of at least one (1) credible person other than the person executing the administrative inspection warrant.                          

                     (iii) A copy of the inventory shall be delivered to the person from whom or from whose premises the property was taken and to the applicant for the administrative inspection warrant; and                          

         (4) The judge or magistrate who has issued an administrative inspection warrant shall attach to it a copy of the return and any paper returnable in connection with it and file the administrative inspection warrant, the copy of the return, and any paper returnable in connection with the administrative inspection warrant with the circuit clerk of the county where the inspection was made.              

   (b) The Arkansas Drug Director may make an administrative inspection of controlled premises in accordance with the following provisions:        

         (1) As used in this section, “controlled premises” means:              

               (A) A place where a person is required by state law to keep records; and                    

               (B) A place including a factory, warehouse, establishment, or conveyance where a person registered or exempted from registration requirements under this chapter is permitted to hold, manufacture, compound, process, sell, deliver, or otherwise dispose of any controlled substance;                    

         (2) When authorized by an administrative inspection warrant issued pursuant to subsection (a) of this section an officer or employee designated by the director, upon presenting the administrative inspection warrant and appropriate credentials to the owner, operator, or agent in charge, may enter controlled premises for the purpose of conducting an administrative inspection;              

         (3) When authorized by an administrative inspection warrant, an officer or employee designated by the director may:              

               (A) Inspect and copy a record required by this chapter to be kept;                    

               (B) Inspect, within reasonable limits and in a reasonable manner, controlled premises and any pertinent equipment, finished and unfinished material, container or labeling found in the controlled premises, and, except as provided in subdivision (b)(5) of this section, any other thing in the controlled premises, including a record, file, paper, process, control, or facility bearing on a violation of this chapter; and                    

               (C) Inventory any stock of any controlled substance in the controlled premises and obtain samples of the stock of any controlled substance;                    

         (4) This section does not prevent the inspection without an administrative inspection warrant of a book or record pursuant to an administrative subpoena, nor does it prevent an entry or an administrative inspection, including a seizure of property, without an administrative inspection warrant:              

               (A) If the owner, operator, or agent in charge of the controlled premises consents;                    

               (B) In a situation presenting imminent danger to health or safety;                    

               (C) In a situation involving inspection of a conveyance if there is reasonable cause to believe that the mobility of the conveyance makes it impracticable to obtain an administrative inspection warrant;                    

               (D) In any other exceptional or emergency circumstance when time or opportunity to apply for an administrative inspection warrant is lacking; or                    

               (E) In any other situation in which an administrative inspection warrant is not constitutionally required; and                    

         (5) An inspection authorized by this section does not extend to financial data, sales data, other than shipment data, or pricing data unless the owner, operator, or agent in charge of the controlled premises consents in writing.              


History..Acts 1971, No. 590, Art. 5, § 2; A.S.A. 1947, § 82-2626; Acts 2005, No. 1994, § 308.

5-64-503. Injunctions or restraining orders.

   (a) A trial court of this state may exercise jurisdiction to restrain or enjoin a violation of this chapter.        

   (b) The defendant may demand a trial by jury for an alleged violation of an injunction or restraining order under this section.        


History..Acts 1971, No. 590, Art. 5, § 3; A.S.A. 1947, § 82-2627.

5-64-504. Intergovernmental cooperation — Identities of patients and research subjects.

   (a)

         (1) The Director of the Division of Health of the Department of Health and Human Services shall cooperate with federal and any other state agency in discharging the agency's responsibilities concerning traffic in controlled substances and in suppressing the abuse of controlled substances.              

         (2) To this end, the director may:              

               (A) Arrange for the exchange of information among governmental officials concerning the use and abuse of controlled substances;                    

               (B) Coordinate and cooperate in training programs concerning controlled substance law enforcement at local and state levels;                    

               (C)

                     (i) Cooperate with the United States Drug Enforcement Administration by establishing a centralized unit to accept, catalogue, file, and collect statistics, including records of drug dependent persons and other controlled substance law offenders within the state and make the information available for federal, state, and local law enforcement purposes.                          

                     (ii) The director shall not furnish the name or identity of a patient or research subject whose identity could not be obtained under subsection (c) of this section; and                          

               (D) Conduct programs of eradication aimed at destroying wild or illicit growth of plant species from which controlled substances may be extracted.                    

   (b) Results, information, and evidence received from the United States Drug Enforcement Administration relating to the regulatory functions of this chapter, including a result of an inspection conducted by the United States Drug Enforcement Administration, may be relied and acted upon by the director in the exercise of the Division of Health of the Department of Health and Human Services' regulatory functions under this chapter.        

   (c) A practitioner engaged in medical practice or research is not required or compelled to furnish the name or identity of a patient or research subject to the director nor may he or she be compelled in any state or local civil, criminal, administrative, legislative, or other proceeding to furnish the name or identity of an individual that the practitioner is obligated to keep confidential.        


History..Acts 1971, No. 590, Art. 5, § 4; A.S.A. 1947, § 82-2628; Acts 2005, No. 1994, § 309.

5-64-505. Property subject to forfeiture — Procedure — Disposition of property.

   (a) Items Subject to Forfeiture. The following are subject to forfeiture upon the initiation of a civil proceeding filed by the prosecuting attorney and when so ordered by the circuit court in accordance with this section, however no property is subject to forfeiture based solely upon a misdemeanor possession of a Schedule III, Schedule IV, Schedule V, or Schedule VI controlled substance:        

         (1) Any controlled substance or counterfeit substance that has been manufactured, distributed, dispensed, or acquired in violation of this chapter;              

         (2) Any raw material, product, or equipment of any kind that is used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substance or counterfeit substance in violation of this chapter;              

         (3) Any property that is used, or intended for use, as a container for property described in subdivision (a)(1) or (2) of this section;              

         (4) Any conveyance, including an aircraft, vehicle, or vessel, that is used, or intended for use, to transport, or in any manner to facilitate the transportation, for the purpose of sale or receipt of property described in subdivision (a)(1) or (2) of this section, however:              

               (A) No conveyance used by any person as a common carrier in the transaction of business as a common carrier is subject to forfeiture under this section unless it appears that the owner or other person in charge of the conveyance is a consenting party or privy to a violation of this chapter;                    

               (B)

                     (i) No conveyance is subject to forfeiture under this section by reason of any act or omission established by the owner of the conveyance to have been committed or omitted without his or her knowledge or consent.                          

                     (ii) Upon a showing described in subdivision (a)(4)(B)(i) of this section by the owner or interest holder, the conveyance may nevertheless be forfeited if the prosecuting attorney establishes that the owner or interest holder either knew or should reasonably have known that the conveyance would be used to transport or in any manner to facilitate the transportation, for the purpose of sale or receipt, of property described in subdivision (a)(1) or (2) of this section;                          

               (C) A conveyance is not subject to forfeiture for a violation of § 5-64-401(c); and                    

               (D) A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if the secured party neither had knowledge of nor consented to the act or omission;                    

         (5) Any book, record, or research product or material, including a formula, microfilm, tape, or data that is used, or intended for use, in violation of this chapter;              

         (6)

               (A) Anything of value, including firearms, furnished or intended to be furnished in exchange for a controlled substance or counterfeit substance in violation of this chapter, any proceeds or profits traceable to the exchange, and any money, negotiable instrument, or security used, or intended to be used, to facilitate any violation of this chapter.                    

               (B) However, no property shall be forfeited under this subdivision (a)(6) to the extent of the interest of an owner by reason of any act or omission established by him or her, by a preponderance of the evidence, to have been committed or omitted without his or her knowledge or consent;                    

         (7) Rebuttable Presumptions.

               (A) Any money, coin, currency, or firearms found in close proximity to a forfeitable controlled substance, a counterfeit substance, forfeitable drug manufacturing or distributing paraphernalia, or a forfeitable record of an importation, manufacture, or distribution of a controlled substance or counterfeit substance is presumed to be forfeitable under this subdivision (a)(7).                    

               (B) The burden of proof is upon a claimant of the property to rebut this presumption by a preponderance of the evidence; and                    

         (8) Real property may be forfeited under this chapter if it substantially assisted in, facilitated in any manner, or was used or intended for use in the commission of any act prohibited by this chapter, however:              

               (A) No real property is subject to forfeiture under this chapter by reason of any act or omission established by the owner of the real property by a preponderance of the evidence to have been committed or omitted without his or her knowledge or consent;                    

               (B) Real property is not subject to forfeiture for a violation of § 5-64-401(c);                    

               (C) A forfeiture of real property encumbered by a mortgage or other lien is subject to the interest of the secured party if the secured party neither had knowledge of nor consented to the unlawful act or omission;                    

               (D) Upon conviction, when the circuit court having jurisdiction over the real property seized finds upon a hearing by a preponderance of the evidence that grounds for a forfeiture exist under this section, the court shall enter an order consistent with subsection (h) of this section;                    

               (E) When any court orders a forfeiture of real property pursuant to this chapter, the order shall be filed of record on the day issued and shall have prospective effect only;                    

               (F) A forfeiture of real property ordered under a provision of this chapter does not affect the title of a bona fide purchaser who purchased the real property prior to the issuance of the order, and the order has no force or effect on the title of the bona fide purchaser; and                    

               (G) Any lis pendens filed in connection with any action pending under a provision of this chapter that might result in the forfeiture of real property is operative only from the time filed and has no retroactive effect.                    

   (b) Seizure and Summary Forfeiture of Contraband. The following items are deemed contraband and may be seized and summarily forfeited to the state:        

         (1) A controlled substance listed in Schedule I that is possessed, transferred, sold, or offered for sale in violation of this chapter and a controlled substance listed in Schedule I that is seized or comes into the possession of the state and the owner of the controlled substance is unknown;              

         (2)

               (A) A species of a plant from which a controlled substance in Schedule I, Schedule II, or Schedule VI may be derived and:                    

                     (i) The plant has been planted or cultivated in violation of this chapter;                          

                     (ii) The plant's owner or cultivator is unknown; or                          

                     (iii) The plant is a wild growth.                          

               (B) Upon demand by a seizing law enforcement agency, the failure of a person in occupancy or in control of land or premises where the species of plant is growing or being stored, to produce an appropriate registration or proof that he or she is the holder of an appropriate registration, constitutes authority for the seizure and forfeiture of the plant; and                    

         (3) Any drug paraphernalia or counterfeit substance except in the possession or control of a practitioner in the course of professional practice or research.              

   (c) Seizure of Property. Property subject to forfeiture under this chapter may be seized by any law enforcement agent upon process issued by any circuit court having jurisdiction over the property on petition filed by the prosecuting attorney of the judicial circuit. Seizure without process may be made if:        

         (1) The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant;              

         (2) The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceeding based upon this chapter;              

         (3) The seizing law enforcement agency has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or              

         (4) The seizing law enforcement agency has probable cause to believe that the property was used or is intended to be used in violation of this chapter.              

   (d) Transfer of Property Seized by State or Local Agency to Federal Agency.

         (1) No state or local law enforcement agency may transfer any property seized by the state or local agency to any federal entity for forfeiture under federal law unless the circuit court having jurisdiction over the property enters an order, upon petition by the prosecuting attorney, authorizing the property to be transferred to the federal entity.              

         (2) The transfer shall not be approved unless it reasonably appears that the activity giving rise to the investigation or seizure involves more than one (1) state or the nature of the investigation or seizure would be better pursued under federal law.              

   (e) Custody of Property Pending Disposition.

         (1) Property seized for forfeiture under this section is not subject to replevin, but is deemed to be in the custody of the seizing law enforcement agency subject only to an order or decree of the circuit court having jurisdiction over the property seized.              

         (2) Subject to any need to retain the property as evidence, when property is seized under this chapter the seizing law enforcement agency may:              

               (A) Remove the property to a place designated by the circuit court;                    

               (B) Place the property under constructive seizure posting notice of pending forfeiture on it, by giving notice of pending forfeiture to its owners and interest holders, or by filing notice of pending forfeiture in any appropriate public record relating to the property;                    

               (C) Remove the property to a storage area for safekeeping or, if the property is a negotiable instrument or money, or is not needed for evidentiary purposes, deposit it in an interest-bearing account; or                    

               (D) Provide for another agency or custodian, including an owner, secured party, mortgagee, or lienholder, to take custody of the property and service, maintain, and operate it as reasonably necessary to maintain its value in any appropriate location within the jurisdiction of the court.                    

         (3)

               (A) In any case of transfer of property, a transfer receipt shall be prepared by the transferring agency.                    

               (B) The transfer receipt shall:                    

                     (i) List a detailed and complete description of the property being transferred;                          

                     (ii) State to whom the property is being transferred and the source or authorization for the transfer; and                          

                     (iii) Be signed by both the transferor and the transferee.                          

               (C) Both transferor and transferee shall maintain a copy of the transfer receipt.                    

         (4) A person who acts as custodian of property under this section is not liable to any person on account of an act done in a reasonable manner in compliance with an order under this chapter.              

   (f) Inventory of Property Seized — Referral to Prosecuting Attorney.

         (1) Any property seized by a state or local law enforcement officer who is detached to, deputized or commissioned by, or working in conjunction with a federal agency remains subject to the provisions of this section.              

         (2)

               (A) When property is seized for forfeiture by a law enforcement agency, the seizing law enforcement officer shall prepare and sign a confiscation report.                    

               (B)

                     (i) The party from whom the property is seized shall also sign the confiscation report if present and shall immediately receive a copy of the confiscation report.                          

                     (ii) If the party refuses to sign the confiscation report, the confiscation report shall be signed by one (1) additional law enforcement officer, stating that the party refused to sign the confiscation report.                          

               (C) The original confiscation report shall be:                    

                     (i) Filed with the seizing law enforcement agency within forty-eight (48) hours after the seizure; and                          

                     (ii) Maintained in a separate file.                          

               (D) One (1) copy of the confiscation report shall be retained by the seizing law enforcement officer.                    

         (3) The confiscation report shall contain the following information:              

               (A) A detailed description of the property seized including any serial or model numbers and odometer or hour reading of vehicles or equipment;                    

               (B) The date of seizure;                    

               (C) The name and address from whom the property was seized;                    

               (D) The reason for the seizure;                    

               (E) Where the property will be held;                    

               (F) The seizing law enforcement officer's name; and                    

               (G) A signed statement by the seizing law enforcement officer stating that the confiscation report is true and complete.                    

         (4) Within three (3) business days of receiving the confiscation report, the seizing law enforcement agency shall forward a copy of the confiscation report to the prosecuting attorney for the district where the property was seized and to the Arkansas Drug Director.              

         (5)

               (A) The Division of Legislative Audit shall notify the Arkansas Alcohol and Drug Abuse Coordinating Council and a circuit court in the county of a law enforcement agency, prosecuting attorney, or other public entity that the law enforcement agency, prosecuting attorney, or public entity is ineligible to receive any forfeited funds, forfeited property, or any grants from the council, if the Division of Legislative Audit determines, by its own investigation or upon written notice from the Arkansas Drug Director, that:                    

                     (i) The law enforcement agency has failed to complete and file the confiscation reports as required by this section;                          

                     (ii) The law enforcement agency, prosecuting attorney, or public entity has not properly accounted for any seized property; or                          

                     (iii) The prosecuting attorney has failed to comply with the notification requirement set forth in subdivision (i)(1) of this section.                          

               (B) After the notice, the circuit court shall not issue any order distributing seized property to that law enforcement agency, prosecuting attorney, or public entity nor shall any grant be awarded by the council to that law enforcement agency, prosecuting attorney, or public entity until:                    

                     (i) The appropriate officials of the law enforcement agency, prosecuting attorney, or public entity have appeared before the Legislative Joint Auditing Committee; and                          

                     (ii) The Legislative Joint Auditing Committee has adopted a motion authorizing subsequent transfers of forfeited property to the law enforcement agency, prosecuting attorney, or public entity.                          

               (C)

                     (i) While a law enforcement agency, prosecuting attorney, or other public entity is ineligible to receive forfeited property, the circuit court shall order any money that would have been distributed to that law enforcement agency, prosecuting attorney, or public entity to be transmitted to the Treasurer of State for deposit into the Crime Lab Equipment Fund.                          

                     (ii) If the property is other than cash, the circuit court shall order the property converted to cash pursuant to subdivision (h)(1)(B) of this section and the proceeds transmitted to the Treasurer of State for deposit into the Crime Lab Equipment Fund.                          

               (D) Moneys deposited into the Crime Lab Equipment Fund pursuant to subdivision (f)(5)(B) of this section are not subject to recovery or retrieval by the ineligible law enforcement agency, prosecuting attorney, or other public entity.                    

         (6) The Arkansas Drug Director shall establish through rules and regulations a standardized confiscation report form to be used by all law enforcement agencies with specific instructions and guidelines concerning the nature and dollar value of all property, including firearms, to be included in the confiscation report and forwarded to the office of the local prosecuting attorney and the Arkansas Drug Director under this subsection.              

   (g) Initiation of Forfeiture Proceedings — Notice to Claimants — Judicial Proceedings.

         (1)

               (A) The prosecuting attorney shall initiate forfeiture proceedings by filing a complaint with the circuit clerk of the county where the property was seized and by serving the complaint on all known owners and interest holders of the seized property in accordance with the Arkansas Rules of Civil Procedure.                    

               (B) The complaint may be based on in rem or in personam jurisdiction but shall not be filed in such a way as to avoid the distribution requirements set forth in subdivision (i)(1) of this section.                    

               (C) The prosecuting attorney shall mail a copy of the complaint to the Arkansas Drug Director within five (5) calendar days after filing the complaint.                    

         (2)

               (A) The complaint shall include a copy of the confiscation report and shall be filed within sixty (60) days after receiving a copy of the confiscation report from the seizing law enforcement agency.                    

               (B) In a case involving real property, the complaint shall be filed within sixty (60) days of the defendant's conviction on the charge giving rise to the forfeiture.                    

         (3)

               (A) The prosecuting attorney may file the complaint after the expiration of the time set forth in subdivision (g)(2) of this section only if the complaint is accompanied by a statement of good cause for the late filing.                    

               (B) However, in no event shall the complaint be filed more than one hundred twenty (120) days after either the date of the seizure or, in a case involving real property, the date of the defendant's conviction.                    

               (C) If the circuit court determines that good cause has not been established, the circuit court shall order that the seized property be returned to the owner or interest holder. In addition, items seized but not subject to forfeiture under this section or subject to disposition pursuant to law or the Arkansas Rules of Criminal Procedure may be ordered returned to the owner or interest holder. If the owner or interest holder cannot be determined, the court may order disposition of the property in accordance with subsection (h) of this section.                    

         (4) Within the time set forth in the Arkansas Rules of Civil Procedure, the owner or interest holder of the seized property shall file with the circuit clerk a verified answer to the complaint that shall include:              

               (A) A statement describing the seized property and the owner's or interest holder's interest in the seized property, with supporting documents to establish the owner's or interest holder's interest;                    

               (B) A certification by the owner or interest holder stating that he or she has read the verified answer and that it is not filed for any improper purpose;                    

               (C) A statement setting forth any defense to forfeiture; and                    

               (D) The address at which the owner or interest holder will accept mail.                    

         (5)

               (A) If the owner or interest holder fails to file an answer as required by subdivision (g)(4) of this section, the prosecuting attorney may move for default judgment pursuant to the Arkansas Rules of Civil Procedure.                    

               (B)

                     (i) If a timely answer has been filed, the prosecuting attorney has the burden of proving by a preponderance of the evidence that the seized property should be forfeited.                          

                     (ii) After the prosecuting attorney has presented proof under subdivision (g)(5)(B)(i) of this section, any owner or interest holder of the property seized is allowed to present evidence why the seized property should not be forfeited.                          

                     (iii)

                           (a) If the circuit court determines that grounds for forfeiting the seized property exist and that no defense to forfeiture has been established by the owner or interest holder, the circuit court shall enter an order pursuant to subsection (h) of this section.                                

                           (b) However, if the circuit court determines either that the prosecuting attorney has failed to establish that grounds for forfeiting the seized property exist or that the owner or interest holder has established a defense to forfeiture, the court shall order that the seized property be immediately returned to the owner or interest holder.                                

   (h) Final Disposition.

         (1) When the circuit court having jurisdiction over the seized property finds upon a hearing by a preponderance of the evidence that grounds for a forfeiture exist under this chapter, the circuit court shall enter an order:              

               (A) To permit the law enforcement agency or prosecuting attorney to retain the seized property for law enforcement or prosecutorial purposes, subject to the following provisions:                    

                     (i)

                           (a) Seized property may not be retained for official use for more than two (2) years, unless the circuit court finds that the seized property has been used for law enforcement or prosecutorial purposes and authorizes continued use for those purposes on an annual basis.                                

                           (b) At the end of the retention period, the seized property shall be sold as provided in subdivision (h)(1)(B) of this section and:                                

                                 (1) Eighty percent (80%) of the proceeds shall be deposited into the drug control fund of the retaining law enforcement agency or prosecuting attorney; and                                      

                                 (2) Twenty percent (20%) of the proceeds shall be deposited into the State Treasury as special revenues to be credited to the Crime Lab Equipment Fund.                                      

                           (c)

                                 (1) Nothing prohibits the retaining law enforcement agency or prosecuting attorney from selling the retained seized property at any time during the time allowed for retention.                                      

                                 (2) However, the proceeds of the sale shall be distributed as set forth in subdivision (h)(1)(A)(i)(b) of this section;                                      

                     (ii) If the circuit court determines that retained seized property has been used for personal use or by non-law enforcement personnel for non-law enforcement purposes, the circuit court shall order the seized property to be sold pursuant to the provisions of § 5-5-101(e) and (f), and the proceeds shall be deposited into the State Treasury as special revenues to be credited to the Crime Lab Equipment Fund;                          

                     (iii)

                           (a) A drug task force may use forfeited property or money if the circuit court's order specifies that the forfeited property or money is forfeited to the prosecuting attorney, sheriff, chief of police, Department of Arkansas State Police, or Arkansas Highway Police Division of the Arkansas State Highway and Transportation Department.                                

                           (b) After the order, the prosecuting attorney, sheriff, chief of police, Department of Arkansas State Police, or Arkansas Highway Police Division shall:                                

                                 (1) Maintain an inventory of the forfeited property or money;                                      

                                 (2) Be accountable for the forfeited property or money; and                                      

                                 (3) Be subject to the provisions of subdivision (f)(5) of this section with respect to the forfeited property or money;                                      

                     (iv)

                           (a) Any aircraft is forfeited to the office of the Arkansas Drug Director and may only be used for drug eradication or drug interdiction efforts, within the discretion of the Arkansas Drug Director.                                

                           (b) However, if the Arkansas Alcohol and Drug Abuse Coordinating Council determines that the aircraft should be sold, the sale shall be conducted pursuant to the provisions of § 5-5-101(e) and (f), and the proceeds of the sale shall be deposited into the Special State Assets Forfeiture Fund;                                

                     (v) Any firearm not retained for official use shall be disposed of in accordance with state and federal law; and                          

                     (vi) Any controlled substance, plant, drug paraphernalia, or counterfeit substance shall be destroyed pursuant to a court order;                          

               (B)

                     (i) To sell seized property that is not required by law to be destroyed and that is not harmful to the public.                          

                     (ii) Seized property described in subdivision (h)(1)(B)(i) of this section shall be sold at a public sale by the retaining law enforcement agency or prosecuting attorney pursuant to the provisions of § 5-5-101(e) and (f); or                          

               (C) To transfer a motor vehicle to a school district for use in a driver education course.                    

         (2) Disposition of forfeited property pursuant to this subsection is subject to the need to retain the forfeited property as evidence in any related proceeding.              

         (3) Within three (3) business days of the entry of the order, the circuit clerk shall forward to the Arkansas Drug Director copies of the confiscation report, the circuit court's order, and any other documentation detailing the disposition of the seized property.              

   (i) Disposition of Moneys Received. Subject to the provisions of subdivision (f)(5) of this section, the proceeds of sales conducted pursuant to subdivision (h)(1)(B) of this section and any moneys forfeited or obtained by judgment or settlement pursuant to this chapter shall be deposited and distributed in the manner set forth in this subsection. Moneys received from a federal forfeiture shall be deposited and distributed pursuant to subdivision (i)(4) of this section.        

         (1) Asset Forfeiture Fund.

               (A) The proceeds of any sale and any moneys forfeited or obtained by judgment or settlement under this chapter shall be deposited into the asset forfeiture fund of the prosecuting attorney and is subject to the following provisions:                    

                     (i) If, during a calendar year, the aggregate amount of moneys deposited in the asset forfeiture fund exceeds twenty thousand dollars ($20,000) per county, the prosecuting attorney shall, within fourteen (14) days of that time, notify the circuit judges in the judicial district and the Arkansas Drug Director;                          

                     (ii) Subsequent to the notification set forth in subdivision (i)(1)(A)(i) of this section, twenty percent (20%) of the proceeds of any additional sale and any additional moneys forfeited or obtained by judgment or settlement under this chapter in the same calendar year shall be deposited into the State Treasury as special revenues to be credited to the Crime Lab Equipment Fund, and the remainder shall be deposited into the asset forfeiture fund of the prosecuting attorney;                          

                     (iii) Failure by the prosecuting attorney to comply with the notification requirement set forth in subdivision (i)(1)(A)(i) of this section renders the prosecuting attorney and any entity eligible to receive forfeited moneys or property from the prosecuting attorney ineligible to receive forfeited moneys or property, except as provided in subdivision (f)(5)(A) of this section; and                          

                     (iv) Twenty percent (20%) of any moneys in excess of twenty thousand dollars ($20,000) that have been retained but not reported as required by subdivision (i)(1)(A)(i) of this section are subject to recovery for deposit into the Crime Lab Equipment Fund.                          

               (B) The prosecuting attorney shall administer expenditures from the asset forfeiture fund which is subject to audit by the Division of Legislative Audit. Moneys distributed from the asset forfeiture fund shall only be used for law enforcement and prosecutorial purposes. Moneys in the asset forfeiture fund shall be distributed in the following order:                    

                     (i) For satisfaction of any bona fide security interest or lien;                          

                     (ii) For payment of any proper expense of the proceeding for forfeiture and sale, including expenses of seizure, maintenance of custody, advertising, and court costs;                          

                     (iii) Any balance under two hundred fifty thousand dollars ($250,000) shall be distributed proportionally so as to reflect generally the contribution of the appropriate local or state law enforcement or prosecutorial agency's participation in any activity that led to the seizure or forfeiture of the property or deposit of moneys under this chapter; and                          

                     (iv) Any balance over two hundred fifty thousand dollars ($250,000) shall be forwarded to the Arkansas Drug Director to be transferred to the State Treasury for deposit into the Special State Assets Forfeiture Fund for distribution as provided in subdivision (i)(3) of this section.                          

               (C)

                     (i) For a forfeiture in an amount greater than two hundred and fifty thousand dollars ($250,000) from which expenses are paid for a proceeding for forfeiture and sale under subdivision (i)(1)(B)(ii) of this section an itemized accounting of the expenses shall be delivered to the Arkansas Drug Director within ten (10) calendar days after the distribution of the funds.                          

                     (ii) The itemized accounting shall include the expenses paid, to whom paid, and for what purposes the expenses were paid.                          

         (2) Drug Control Fund.

               (A)

                     (i) There is created on the books of law enforcement agencies and prosecuting attorneys a drug control fund.                          

                     (ii) The drug control fund shall consist of any moneys obtained under subdivision (i)(1) of this section and any other revenue as may be provided by law or ordinance.                          

                     (iii) Moneys from the drug control fund may not supplant other local, state, or federal funds.                          

                     (iv) Moneys in the drug control fund are appropriated on a continuing basis and are not subject to the Revenue Stabilization Law, § 19-5-101 et seq.                          

                     (v) Moneys in the drug control fund shall only be used for law enforcement and prosecutorial purposes.                          

                     (vi) The drug control fund is subject to audit by the Division of Legislative Audit.                          

               (B) The law enforcement agencies and prosecuting attorneys shall submit to the Arkansas Drug Director on or before January 1 and July 1 of each year a report detailing any moneys received and expenditure made from the drug control fund during the preceding six-month period.                    

         (3) Special State Assets Forfeiture Fund.

               (A) There is created and established on the books of the Treasurer of State, the Auditor of State, and the Chief Fiscal Officer of the State a fund to be known as the “Special State Assets Forfeiture Fund”.                    

               (B)

                     (i) The Special State Assets Forfeiture Fund shall consist of revenues obtained under subdivision (i)(1)(B)(iv) of this section and any other revenue as may be provided by law.                          

                     (ii) Moneys from the Special State Assets Forfeiture Fund may not supplant other local, state, or federal funds.                          

               (C) The Special State Assets Forfeiture Fund is not subject to the provisions of the Revenue Stabilization Law, § 19-5-101 et seq., or the Special Revenue Fund Account of the State Apportionment Fund, § 19-5-203(b)(2)(A).                    

               (D)

                     (i) The Arkansas Drug Director shall establish through rules and regulations a procedure for proper investment, use, and disposition of state moneys deposited into the Special State Assets Forfeiture Fund in accordance with the intent and purposes of this chapter.                          

                     (ii) State moneys in the Special State Assets Forfeiture Fund shall be distributed by the Arkansas Alcohol and Drug Abuse Coordinating Council and shall be distributed for drug interdiction, eradication, education, rehabilitation, the State Crime Laboratory, and drug courts.                          

         (4) Federal forfeitures.

               (A)

                     (i)

                           (a) Any moneys received by a prosecuting attorney or law enforcement agency from a federal forfeiture shall be deposited and maintained in a separate account.                                

                           (b) However, any balance over two hundred fifty thousand dollars ($250,000) shall be distributed as set forth in subdivision (i)(4)(B) of this section.                                

                     (ii) No other moneys may be maintained in the account except for any interest income generated by the account.                          

                     (iii) Moneys in the account shall only be used for law enforcement and prosecutorial purposes consistent with governing federal law.                          

                     (iv) The account is subject to audit by the Division of Legislative Audit.                          

               (B)

                     (i) Any balance over two hundred fifty thousand dollars ($250,000) shall be forwarded to the Department of Arkansas State Police to be transferred to the State Treasury for deposit into the Special State Assets Forfeiture Fund in which it shall be maintained separately and distributed consistent with governing federal law and upon the advice of the Arkansas Alcohol and Drug Abuse Coordinating Council.                          

                     (ii) Of the moneys contained in the Special State Assets Forfeiture Fund at the beginning of each fiscal year, no more than:                          

                           (a) Twenty-five percent (25%) shall be retained by the Department of Arkansas State Police to be used for law enforcement purposes consistent with governing federal law; and                                

                           (b) Sixty-five percent (65%) may be distributed among other state and local law enforcement agencies to be used for law enforcement purposes consistent with federal law.                                

                     (iii) With the advice of the Arkansas Alcohol and Drug Abuse Coordinating Council, the Department of Arkansas State Police shall promulgate rules and procedures for the distribution by an allocation formula of moneys set forth in subdivision (i)(4)(B)(ii)(b) of this section.                          

   (j) In Personam Proceedings. In personam jurisdiction may be based on a person's presence in the state, or on his or her conduct in the state, as set out in § 16-4-101(c), and is subject to the following additional provisions:        

         (1) A temporary restraining order under this section may be entered ex parte on application of the state, upon a showing that:              

               (A) There is probable cause to believe that the property with respect to which the order is sought is subject to forfeiture under this section; and                    

               (B) Notice of the action would jeopardize the availability of the property for forfeiture;                    

         (2)

               (A) Notice of the entry of a temporary restraining order and an opportunity for hearing shall be afforded to a person known to have an interest in the property.                    

               (B) The hearing shall be held at the earliest possible date consistent with Rule 65 of the Arkansas Rules of Civil Procedure and is limited to the issues of whether:                    

                     (i) There is a probability that the state will prevail on the issue of forfeiture and that failure to enter the temporary restraining order will result in the property being destroyed, conveyed, alienated, encumbered, disposed of, received, removed from the jurisdiction of the circuit court, concealed, or otherwise made unavailable for forfeiture; and                          

                     (ii) The need to preserve the availability of property through the entry of the requested temporary restraining order outweighs the hardship on any owner or interest holder against whom the temporary restraining order is to be entered;                          

         (3) The state has the burden of proof by a preponderance of the evidence to show that the defendant's property is subject to forfeiture;              

         (4)

               (A) On a determination of liability of a person for conduct giving rise to forfeiture under this section, the circuit court shall enter a judgment of forfeiture of the property subject to forfeiture as alleged in the complaint and may authorize the prosecuting attorney or any law enforcement officer to seize any property subject to forfeiture pursuant to subsection (a) of this section not previously seized or not then under seizure.                    

               (B) The order of forfeiture shall be consistent with subsection (h) of this section.                    

               (C) In connection with the judgment, on application of the state, the circuit court may enter any appropriate order to protect the interest of the state in property ordered forfeited; and                    

         (5) Subsequent to the finding of liability and order of forfeiture, the following procedures apply:              

               (A) The attorney for the state shall give notice of pending forfeiture, in the manner provided in Rule 4 of the Arkansas Rules of Civil Procedure, to any owner or interest holder who has not previously been given notice;                    

               (B) An owner of or interest holder in property that has been ordered forfeited and whose claim is not precluded may file a claim within thirty (30) days after initial notice of pending forfeiture or after notice under Rule 4 of the Arkansas Rules of Civil Procedure, whichever is earlier; and                    

               (C) The circuit court may amend the in personam order of forfeiture if the circuit court determines that a claimant has established that he or she has an interest in the property and that the interest is exempt under subdivision (a)(4), (6), or (8) of this section.                    

   (k) The circuit court shall order the forfeiture of any other property of a claimant or defendant up to the value of the claimant's or defendant's property found by the circuit court to be subject to forfeiture under subsection (a) of this section if any of the forfeitable property had remained under the control or custody of the claimant or defendant and:        

         (1) Cannot be located;              

         (2) Was transferred or conveyed to, sold to, or deposited with a third party;              

         (3) Is beyond the jurisdiction of the circuit court;              

         (4) Was substantially diminished in value while not in the actual physical custody of the seizing law enforcement agency;              

         (5) Was commingled with other property that cannot be divided without difficulty; or              

         (6) Is subject to any interest exempted from forfeiture under this subchapter.              

   (l)

         (1)

               (A) On the fifth day of each month the Treasurer of State shall transfer to the Department of Community Correction Fund Account twenty percent (20%) of any moneys deposited into the Special State Asset Forfeiture Fund during the previous month.                    

               (B) However, in no event shall more than eight hundred thousand dollars ($800,000) be transferred during any one (1) fiscal year.                    

         (2) Any moneys transferred to the Department of Community Correction Fund Account from the Special State Asset Forfeiture Fund in accordance with this subsection shall:              

               (A) Be used for the personal services and operating expenses of the drug courts and for no other purpose; and                    

               (B) Not be transferred from the Department of Community Correction Fund Account.                    


History..Acts 1971, No. 590, Art. 5, § 5; 1977, No. 334, § 1; 1981, No. 78, § 3; 1981, No. 863, §§ 1, 2; 1983, No. 787, §§ 7, 8; 1985, No. 1074, § 1; A.S.A. 1947, § 82-2629; Acts 1989, No. 252, §§ 1, 2; 1989 (3rd Ex. Sess.), No. 87, §§ 1, 2, 4; 1991, No. 573, § 1; 1991, No. 1050, § 1; 1999, No. 1120, § 2; 2001, No. 1495, § 2; 2001, No. 1690, §§ 1, 2; 2003, No. 1447, § 1; 2005, No. 1994, § 310; 2005, No. 2245, § 1; 2007, No. 493, §§ 1, 2, 3; No. 827, § 65; No. 830, § 1; 2009, No. 699, § 1.

5-64-506. Burden of proof — Liability of officers.

   (a)

         (1) It is not necessary for the state to negate any exemption or exception in this chapter in any complaint, information, indictment, or other pleading or in any trial, hearing, or other proceeding under this chapter.              

         (2) The burden of proof of any exemption or exception is upon the person claiming it.              

   (b)

         (1) In the absence of proof that a person is the duly authorized holder of an appropriate registration or order form issued under this chapter, he or she is presumed not to be the holder of the registration or order form.              

         (2) The burden of proof is upon him or her to rebut the presumption.              

   (c) No liability is imposed by this chapter upon any authorized state, county, or municipal officer engaged in the lawful performance of his or her duties.        


History..Acts 1971, No. 590, Art. 5, § 6; A.S.A. 1947, § 82-2630; Acts 2005, No. 1994, § 311.

5-64-507. Conclusiveness of findings.

   (a) Any final determination, finding, or conclusion of the Director of the Division of Health of the Department of Health and Human Services under this chapter is a final and conclusive decision of the matter involved.        

   (b) Any person aggrieved by the decision may obtain review of the decision in the circuit court of the county.        

   (c) If supported by substantial evidence, a finding of fact by the director is conclusive.        


History..Acts 1971, No. 590, Art. 5, § 7; A.S.A. 1947, § 82-2631; Acts 2005, No. 1994, § 311.

5-64-508. Prevention and deterrence — Educational and research programs.

   (a) The Director of the Office of Alcohol and Drug Abuse Prevention shall carry out educational programs designed to prevent and deter misuse and abuse of controlled substances. In connection with these programs he or she may:        

         (1) Promote better recognition of the problems of misuse and abuse of controlled substances within the regulated industry and among interested groups and organizations;              

         (2) Assist the regulated industry and interested groups and organizations in contributing to the reduction of misuse and abuse of controlled substances;              

         (3) Consult with interested groups and organizations to aid them in solving administrative and organizational problems;              

         (4) Evaluate procedures, projects, techniques, and controls conducted or proposed as part of educational programs on misuse and abuse of controlled substances;              

         (5) Disseminate the results of research on misuse and abuse of controlled substances to promote a better public understanding of what problems exist and what can be done to combat them; and              

         (6) Assist in the education and training of state and local law enforcement officials in their efforts to control misuse and abuse of controlled substances.              

   (b) The Director of the Office of Alcohol and Drug Abuse Prevention shall encourage research on misuse and abuse of controlled substances. In connection with the research, and in furtherance of the enforcement of this chapter, he or she may:        

         (1) Establish methods to assess accurately the effects of controlled substances and identify and characterize those with potential for abuse;              

         (2) Make studies and undertake programs of research to:              

               (A) Develop new or improved approaches, techniques, systems, equipment, and devices to strengthen the enforcement of this chapter;                    

               (B) Determine patterns of misuse and abuse of controlled substances and the social effects of misuse and abuse of controlled substances; and                    

               (C) Improve methods for preventing, predicting, understanding, and dealing with the misuse and abuse of controlled substances; and                    

         (3) Enter into contracts with public agencies, institutions of higher education, and private organizations or individuals for the purpose of conducting research, demonstrations, or special projects that bear directly on misuse and abuse of controlled substances.              

   (c) The Director of the Office of Alcohol and Drug Abuse Prevention may enter into contracts for educational and research activities without performance bonds.        

   (d)

         (1) The Director of the Department of Health may authorize a person engaged in research on the use and effects of a controlled substance to withhold the names and other identifying characteristics of individuals who are the subjects of the research.              

         (2) A person who obtains this authorization shall not be compelled in any civil, criminal, administrative, legislative, or other proceeding to identify the individuals who are the subjects of research for which the authorization was obtained.              

   (e)

         (1) The Director of the Department of Health may authorize the possession and distribution of a controlled substance by a person engaged in research.              

         (2) A person who obtains this authorization is exempt from state prosecution for possession and distribution of a controlled substance to the extent of the authorization.              


History..Acts 1971, No. 590, Art. 5, § 8; 1979, No. 898, § 15; A.S.A. 1947, § 82-2632; Acts 2005, No. 1994, § 311; 2007, No. 827, § 66.

5-64-509. [Repealed.]



5-64-510. Methamphetamine-contaminated motor vehicles.

   (a) As used in this section, “methamphetamine-contaminated motor vehicle” means a motor vehicle that has been forfeited under § 5-64-505 in which methamphetamine was manufactured as determined by a law enforcement agency or a prosecuting attorney who has possession of the motor vehicle.        

   (b) A law enforcement agency or a prosecuting attorney who has possession of a methamphetamine-contaminated motor vehicle shall destroy or sell for scrap metal the methamphetamine-contaminated motor vehicle.        


History..Acts 2009, No. 776, § 1.

Subchapter 6 — Uniform Controlled Substances Act — Miscellaneous

5-64-601 — 5-64-608. [Repealed.]



Subchapter 7 — Provisions Relating to the Uniform Controlled Substances Act

5-64-701. [Repealed.]



5-64-702. Promulgation of rules and regulations.

   (a) The Department of Health and Human Services may promulgate rules and regulations necessary for the enforcement of this chapter.        

   (b) The rules and regulations described in subsection (a) of this section shall be promulgated pursuant to the Arkansas Administrative Procedure Act, § 25-15-201 et seq.        


History..Acts 1979, No. 898, § 17; A.S.A. 1947, § 82-2632.1; Acts 2005, No. 1994, § 312.

5-64-703. Authority to make inspections.

   In carrying out the functions under this chapter, the Director of the Division of Health of the Department of Health and Human Services or his or her duly authorized agent may enter a controlled premises and conduct an administrative inspection of the controlled premises.        


History..Acts 1979, No. 898, § 18; A.S.A. 1947, § 82-2632.2; Acts 2005, No. 1994, § 312.

5-64-704. Consent to inspection.

   An administrative inspection warrant is not required if informed consent is obtained from the owner, operator, or agent-in-charge of the controlled premises to be inspected.        


History..Acts 1979, No. 898, § 19; A.S.A. 1947, § 82-2632.3.

5-64-705. Authority to investigate and arrest in contiguous county.

   Upon receiving permission from the proper county sheriff, any law enforcement officer acting within the official scope of his or her duty may investigate and arrest any person violating any provision of this chapter in any county contiguous to the county where he or she is employed.        


History..Acts 1985, No. 675, § 1; A.S.A. 1947, § 82-2625.2; Acts 2005, No. 1994, § 313.

5-64-706. Grant of immunity.

   (a)

         (1) With the approval of the circuit judge, the prosecuting attorney of any judicial district in this state or any grand jury properly convened according to law may grant immunity from criminal prosecution with respect to a matter revealed by the testimony of anyone giving evidence concerning a violation of this chapter.              

         (2) However, the immunity does not extend to perjury committed in the testimony.              

   (b) No prosecuting attorney shall grant immunity until he or she has applied for and obtained in each case a written order from the circuit judge approving the grant of immunity.        

   (c) No immunity under subsection (a) of this section shall be granted by a prosecuting attorney until after the individual has declined to answer questions or has requested immunity before answering questions.        


History..Acts 1973, No. 248, § 1; A.S.A. 1947, § 82-2639; Acts 2005, No. 1994, § 313.

5-64-707. Admissibility of drug analysis — Cross-examination.

   (a) In any criminal prosecution for an alleged violation of this chapter, a record or report of any relevant drug analysis made by the State Crime Laboratory shall be received as competent evidence as to a matter contained in the record or report in this section in any preliminary hearing when attested to by the Executive Director of the State Crime Laboratory or his or her assistant or deputy.        

   (b)

         (1) Nothing in this section abrogates a defendant's right of cross-examination.              

         (2) If the defendant desires to cross-examine the executive director or the appropriate assistant or deputy, the defendant may compel the executive director or his or her appropriate assistant or deputy to attend court by the issuance of a proper subpoena.              

         (3) If the defendant compels the executive director or his or her appropriate assistant or deputy to attend court by the issuance of a proper subpoena:              

               (A) The record or report is only admissible through the executive director or the appropriate assistant or deputy; and                    

               (B) The executive director or the appropriate assistant or deputy is subject to cross-examination by the defendant or his or her counsel.                    


History..Acts 1977, No. 356, § 1; A.S.A. 1947, § 82-2627.1; Acts 2005, No. 1994, § 313.

5-64-708. Local funding for undercover work.

   Any municipality or county may allocate and expend funds for:        

   (1) Undercover work done in connection with an attempt to apprehend a violator of this chapter; or        

   (2) A purchase of a controlled substance when purchased by a law enforcement officer for the purpose of apprehending a violator.        


History..Acts 1973, No. 248, § 2; A.S.A. 1947, § 82-2640; Acts 2005, No. 1994, § 313.

5-64-709. [Repealed.]



5-64-710. Denial of driving privileges for minor — Restricted permit.

   (a)

         (1) As used in this section “drug offense” means the:              

               (A) Possession, distribution, manufacture, cultivation, sale, transfer, or the attempt or conspiracy to possess, distribute, manufacture, cultivate, sell, or transfer any substance the possession of which is prohibited under this chapter; or                    

               (B) Operation of a motor vehicle under the influence of any substance the possession of which is prohibited under this chapter.                    

         (2) As used in subdivision (a)(1) of this section:              

               (A)

                     (i) “Motor vehicle” means any vehicle that is self-propelled by which a person or thing may be transported upon a public highway and is registered in the State of Arkansas or of the type subject to registration in Arkansas.                          

                     (ii) “Motor vehicle” includes any:                          

                           (a) “Motorcycle”, “motor-driven cycle”, or “motorized bicycle”, as defined in § 27-20-101; and                                

                           (b) “Commercial motor vehicle”, as defined in § 27-23-103; and                                

               (B) “Substance the possession of which is prohibited under this chapter” or “substance” means a “controlled substance” or “counterfeit substance”, as defined in the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 802.                    

   (b)

         (1)

               (A) When a person who is less than eighteen (18) years of age pleads guilty or nolo contendere to or is found guilty of driving while intoxicated under § 5-65-101 et seq., any criminal offense involving the illegal possession or use of a controlled substance, or any drug offense in this state or any other state, the court having jurisdiction of the matter including any federal court shall prepare and transmit to the Department of Finance and Administration an order of denial of driving privileges for the minor.                    

               (B) A court within the State of Arkansas shall prepare and transmit any order under subdivision (b)(1)(A) of this section to the department within twenty-four (24) hours after the plea or finding.                    

               (C) A court outside Arkansas having jurisdiction over any person holding driving privileges issued by the State of Arkansas shall prepare and transmit any order under subdivision (b)(1)(A) of this section pursuant to an agreement or arrangement entered into between that state and the Director of the Department of Finance and Administration.                    

               (D) An arrangement or agreement under subdivision (b)(1)(C) of this section may also provide for the forwarding by the department of an order issued by a court within this state to the state where any person holds driving privileges issued by that state.                    

         (2) For any person holding driving privileges issued by the State of Arkansas, a court within this state in a case of extreme and unusual hardship may provide in an order for the issuance of a restricted driving permit to allow driving to and from a place of employment or driving to and from school.              

   (c)

         (1) Except as provided in subdivision (c)(2) of this section, a penalty prescribed in this section and § 27-16-914 is in addition to any other penalty prescribed by law for an offenses covered by this section and § 27-16-914.              

         (2) A juvenile adjudicated delinquent is subject to a juvenile disposition provided in § 9-27-330.              

   (d) In regard to any offense involving illegal possession under this section, it is a defense if the controlled substance is the property of an adult who owns the vehicle.        

   (e) If a juvenile is found delinquent for any offense described in subsections (a) or (b) of this section, the circuit court may order any juvenile disposition available under § 9-27-330.        


History..Acts 1989 (3rd Ex. Sess.), No. 93, §§ 1, 3, 4; 1993, No. 1257, § 1; 2005, No. 1876, § 1; 2005, No. 1994, § 314.

Subchapter 8 — Sale of Drug Devices

5-64-801. Definition.

   (a) As used in this subchapter, “drug device” means an object usable for smoking marijuana, for smoking a controlled substance defined as a tetrahydrocannabinol, or for ingesting or inhaling cocaine, and includes, but is not limited to:        

         (1) A metal, wooden, acrylic, glass, stone, plastic, or ceramic pipe with or without a screen, permanent screen, hashish head, or punctured metal bowl;              

         (2) A water pipe;              

         (3) A carburetion tube or device;              

         (4) A smoking or carburetion mask;              

         (5) A roach clip, meaning an object used to hold burning material, such as a marijuana cigarette, that has become too small or too short to be held in the hand;              

         (6) A chamber pipe;              

         (7) A carburetor pipe;              

         (8) An electric pipe;              

         (9) An air-driven pipe;              

         (10) A chillum;              

         (11) A bong;              

         (12) An ice pipe or chiller; and              

         (13) A miniature cocaine spoon or a cocaine vial.              

   (b) In any prosecution under this subchapter, the question of whether an object is a drug device is a question of fact.        


History..Acts 1981, No. 946, § 1; A.S.A. 1947, § 82-2644.

5-64-802. Illegal drug paraphernalia business.

   (a) Any person who conducts, finances, manages, supervises, directs, or owns any part of an illegal drug paraphernalia business is guilty of a:        

         (1) Class A misdemeanor for the first offense;              

         (2) Class D felony for the second offense; and              

         (3) Class C felony for third and subsequent offenses.              

   (b) A person violates subsection (a) of this section if he or she:        

         (1) Conducts, finances, manages, supervises, directs, or owns any part of a business that, in the regular course of business or as a continuing course of conduct, manufactures, sells, stores, possesses, gives away, or furnishes an object designed to be primarily useful as a drug device; and              

         (2) Knows or has reason to know that the design of the object renders it primarily useful as a drug device.              


History..Acts 1981, No. 946, § 1; A.S.A. 1947, § 82-2644.

5-64-803. Public nuisance to be abated or closed.

   (a) A place where a drug device is manufactured, sold, stored, possessed, given away, or furnished in violation of this subchapter is deemed a common or public nuisance.        

   (b) A conveyance or vehicle of any kind is deemed a “place” within the meaning of subsection (a) of this section and may be proceeded against under the provisions of § 5-64-804.        

   (c) A person who maintains, or aids or abets, or knowingly associates with another in maintaining a common or public nuisance under subsection (a) of this section is in violation of this subchapter, and judgment shall be given that the common or public nuisance be abated or closed as a place for the manufacture, sale, storage, possession, giving away, or furnishing of a drug device.        


History..Acts 1981, No. 946, § 1; A.S.A. 1947, § 82-2644; Acts 2007, No. 827, § 67.

5-64-804. Injunction.

   (a) The prosecuting attorney or a citizen of the county or municipality where a common or public nuisance, as defined in § 5-64-803, is located may maintain a suit in the name of the state to abate and perpetually enjoin the common or public nuisance.        

   (b) A circuit court has jurisdiction over the suit.        

   (c) An injunction may be granted at the commencement of the suit and no bond is be required if the action for injunction is brought by the prosecuting attorney.        

   (d) If the suit for injunction is brought or maintained by a citizen of the county or municipality where the commmon or public nuisance is alleged to be located, then the circuit court may require a bond as in any other case of injunction.        

   (e) On the finding that the material allegations of the complaint are true, the circuit court or judge of the circuit court in vacation shall order the injunction for such period of time as the circuit court or judge may think proper, with the right to dissolve the injunction upon the application of the owner of the place if a proper case is shown for the dissolution.        

   (f) The continuance of the injunction as provided in this section may be ordered, although the place complained of may not at the time of hearing be unlawfully used.        


History..Acts 1981, No. 946, § 1; A.S.A. 1947, § 82-2644.

5-64-805. Search warrant.

   (a) If there is complaint on oath or affirmation supported by affidavit setting forth the facts for a belief that a drug device is being manufactured, sold, kept, stored, or in any manner held, used, or concealed in a particular house or other place with intent to engage in illegal drug paraphernalia business in violation of law, a circuit court or the judge of the circuit court in vacation to whom the complaint is made, if satisfied that there is probable cause for the belief, shall issue a warrant to search the house or other place for the drug device.        

   (b) Except as otherwise provided in this section, a warrant issued under subsection (a) of this section shall be issued, directed, and executed in accordance with the laws of Arkansas pertaining to search warrants.        

   (c) A warrant issued under this section for the search of any automobile, boat, conveyance, or vehicle, or for the search of any trunk, grip, or other article of baggage, for a drug device may be executed in any part of the state where the same are overtaken and shall be made returnable before any circuit court or the judge of the circuit court in vacation, within whose jurisdiction the automobile, boat, conveyance, vehicle, trunk, grip, or other article of baggage, or any of them, were transported or attempted to be transported.        

   (d) If it is necessary, an officer charged with the execution of a warrant issued under this section may break open and enter a house or other place described in this section.        


History..Acts 1981, No. 946, § 1; A.S.A. 1947, § 82-2644.

5-64-806. Seizure and forfeiture.

   Any property, including money, used in violation of a provision of this subchapter may be seized and forfeited to the state.        


History..Acts 1981, No. 946, § 1; A.S.A. 1947, § 82-2644.

Subchapter 9 — Civil Actions Against Sellers of Drug Paraphernalia

5-64-901 — 5-64-906. [Transferred.]



Subchapter 10 — Records of Transactions

5-64-1001. Recordkeeping required.

   Any manufacturer, wholesaler, retailer, or other person that sells, transfers, or otherwise furnishes any of the following substances to any person in this state shall maintain accurate records of those transactions:        

         (1) Phenylpropanolamine;              

         (2) Methylamine;              

         (3) Ethylamine;              

         (4) D-lysergic acid;              

         (5) Ergotamine tartrate;              

         (6) Diethyl malonate;              

         (7) Malonic acid;              

         (8) Ethyl malonate;              

         (9) Barbituric acid;              

         (10) Piperidine;              

         (11) N-acetylanthranilic acid;              

         (12) Pyrrolidine;              

         (13) Anthranilic acid;              

         (14) Ephedrine;              

         (15) Norpseudoephedrine;              

         (16) Phenylacetic acid;              

         (17) Morpholine; and              

         (18) Pseudoephedrine.              


History..Acts 1989, No. 518, § 1.

5-64-1002. Identification of purchaser.

   (a) Any manufacturer, wholesaler, retailer, or other person required to maintain records of transactions under this subchapter shall obtain proper identification from the purchaser.        

   (b) “Proper identification” means a motor vehicle operator's license or other official state-issued identification of the purchaser that contains a photograph of the purchaser, and includes:        

         (1) The residential or mailing address of the purchaser, other than a post office box number;              

         (2) The motor vehicle license number of any motor vehicle owned or operated by the purchaser; and              

         (3) A letter of authorization from the business for which any substance specified in § 5-64-1001 is being furnished, that includes:              

               (A) The business license number and address of the business;                    

               (B) A full description of how the substance is to be used; and                    

               (C) The signature of the purchaser.                    

   (c) The person selling, transferring, or otherwise furnishing any substance specified in § 5-64-1001 shall affix his or her signature as a witness to the signature and identification of the purchaser.        


History..Acts 1989, No. 518, § 1.

5-64-1003. Inspection of records.

   A record maintained pursuant to this subchapter is subject to inspection by any law enforcement officer of this state or any employee of the Division of Health of the Department of Health and Human Services designated by the Director of the Division of Health of the Department of Health and Human Services to conduct an examination, investigation, or inspection under this chapter relating to a controlled substance, counterfeit drug, or precursor chemical.        


History..Acts 1989, No. 518, § 1.

5-64-1004. Failure to maintain records — Penalty.

   Failure to maintain accurate records with proper identification from the purchaser is considered a Class A misdemeanor.        


History..Acts 1989, No. 518, § 1.

5-64-1005. Exemptions.

   The provisions of § 5-64-1001 do not apply to any of the following:        

         (1) Any pharmacist or other authorized person who sells or furnishes a substance upon the prescription of a physician, dentist, podiatrist, or veterinarian;              

         (2) Any physician, dentist, podiatrist, or veterinarian who administers or furnishes a substance to his or her patient;              

         (3) Any manufacturer or wholesaler licensed by the Arkansas State Board of Pharmacy that sells, transfers, or otherwise furnishes a substance to a licensed pharmacy, physician, dentist, podiatrist, or veterinarian; or              

         (4) Any sale, transfer, furnishing, or receipt by a retail distributor of any drug that contains any ephedrine, pseudoephedrine, norpseudoephedrine, or phenylpropanolamine and that is sold, transferred, or furnished over the counter without a prescription pursuant to the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., or regulations adopted under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., if:              

               (A) The drug is sold in a blister pack of not more than three grams (3 g) of ephedrine, pseudoephedrine, or phenylpropanolamine base, each blister containing not more than two (2) dosage units;                    

               (B) If the use of a blister pack is technically unfeasible, the drug is packaged in a unit dose packet or pouch;                    

               (C) The drug is an exempted product described in § 5-64-1103(b)(1), or the product contains ephedrine or pseudoephedrine in liquid, liquid capsule, or liquid gel capsule form described in § 5-64-1103(b)(2), and is sold in a package size of not more than three grams (3 g) of ephedrine or pseudoephedrine base; and                    

               (D) The total quantity of the sale is not greater than three (3) packages or five grams (5 g) of ephedrine or nine grams (9 g) of pseudoephedrine, whichever is smaller.                    


History..Acts 1989, No. 518, § 1; 2001, No. 1209, § 1; 2005, No. 256, § 3.

5-64-1006. Suspicious order reports.

   (a) Any pharmacy, manufacturer, wholesaler, or retail distributor that is required to keep records under this subchapter and that sells, transfers, or otherwise furnishes ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts, optical isomers, and salts of optical isomers, alone or in a mixture, to any person in this state in a suspicious transaction shall report the transaction in writing to the Arkansas State Board of Pharmacy.        

   (b) Any person who does not submit a report as required by subsection (a) of this section is guilty of a Class A misdemeanor.        

   (c) As used in this section, “suspicious transaction” means a sale or transfer to which either of the following applies:        

         (1) The circumstances of the sale or transfer would lead a reasonable person to believe that the substance is likely to be used for the purpose of unlawfully manufacturing a controlled substance in violation of this chapter based on such factors as:              

               (A) The amount involved;                    

               (B) The method of payment;                    

               (C) The method of delivery; and                    

               (D) Past dealings with the person acquiring the substance; or                    

         (2) The transaction involves payment for ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts, optical isomers, and salts of optical isomers, alone or in a mixture, in cash or money orders totaling more than two hundred dollars ($200).              

   (d)

         (1) The board shall adopt by rule criteria for determining whether a transaction is suspicious transaction, taking into consideration the recommendations in Appendix A, Report to the United States Attorney General by the Suspicious Orders Task Force, under the Comprehensive Methamphetamine Control Act of 1996, Pub.L. 104-237.              

         (2) In addition to any other penalty provided for in this section, the board may impose a civil penalty for a violation of subsection (a) of this section not to exceed ten thousand dollars ($10,000) per violation.              


History..Acts 2001, No. 1209, § 2; 2005, No. 256, § 4.

Subchapter 11 — Ephedrine

5-64-1101. Possession — Penalty.

   (a) It is unlawful for any person to possess more than five grams (5 g) of ephedrine or nine grams (9 g) of pseudoephedrine or phenylpropanolamine, or their salts, optical isomers, and salts of optical isomers, alone or in a mixture, except:        

         (1) Any pharmacist or other authorized person who sells or furnishes ephedrine, pseudoephedrine, or phenylpropanolamine or their salts, optical isomers, and salts of optical isomers, upon the prescription of a physician, dentist, podiatrist, veterinarian, or other healthcare professional with prescriptive authority, or as authorized pursuant to § 5-64-1103;              

         (2) A product exempted under § 5-64-1103(b)(1) and (2), without a prescription, pursuant to the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., or regulations adopted under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., if the person possesses a sales and use tax permit issued by the Department of Finance and Administration;              

         (3) Any physician, dentist, podiatrist, veterinarian, or other healthcare professional with prescriptive authority who administers or furnishes ephedrine, pseudoephedrine, or phenylpropanolamine or their salts, optical isomers, and salts of optical isomers to his or her patient; or              

         (4)

               (A) Any manufacturer, wholesaler, or distributor licensed by the Arkansas State Board of Pharmacy that meets one (1) of the requirements in subdivision (a)(4)(B) of this section and sells, transfers, or otherwise furnishes ephedrine, pseudoephedrine, or phenylpropanolamine or their salts, optical isomers, and salts of optical isomers to:                    

                     (i) A licensed pharmacy, physician, dentist, podiatrist, veterinarian, or other healthcare professional with prescriptive authority; or                          

                     (ii) Any person who possesses a sales and use tax permit issued by the department.                          

               (B)

                     (i) The manufacturer, wholesaler, or distributor shall hold or store the substance in a facility that meets the packaging requirements of § 5-64-1005(4)(A)-(C).                          

                     (ii) The manufacturer, wholesaler, or distributor shall sell, transfer, or otherwise furnish only to a healthcare professional identified in subdivisions (a)(1) and (3) of this section.                          

   (b) Possession of more than five grams (5 g) of ephedrine or more than nine grams (9 g) of pseudoephedrine or phenylpropanolamine, or their salts, optical isomers, and salts of optical isomers constitutes prima facie evidence of the intent to manufacture methamphetamine or another controlled substance in violation of this subchapter unless the person qualifies for an exemption listed in subsection (a) of this section.        

   (c) Any person who violates a provision of this section is guilty of a Class D felony.        


History..Acts 1997, No. 565, § 1; 2001, No. 1209, § 3; No. 1782, § 1; 2003, No. 867, § 2; 2005, No. 256, § 5.

5-64-1102. Possession with intent to manufacture — Unlawful distribution.

   (a)

         (1) It is unlawful for a person to possess ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts, optical isomers, or salts of optical isomers with intent to manufacture methamphetamine.              

         (2) Any person who violates a provision of subdivision (a)(1) of this section is guilty of a Class D felony.              

   (b)

         (1) It is unlawful for a person to sell, transfer, distribute, or dispense any product containing ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts, isomers, or salts of isomers if the person:              

               (A) Knows that the purchaser will use the product as a precursor to manufacture methamphetamine or another controlled substance; or                    

               (B) Sells, transfers, distributes, or dispenses the product with reckless disregard as to how the product will be used.                    

         (2) Any person who violates a provision of subdivision (b)(1) of this section is guilty of a Class D felony.              


History..Acts 1997, No. 565, § 2; 2001, No. 1209, § 4.

5-64-1103. Sales limits.

   (a) It is unlawful for any person, other than a person or entity described in § 5-64-1101(a)(3) and (4), to knowingly dispense, sell, transfer, or otherwise furnish in a single transaction a product containing ephedrine, pseudoephedrine, or phenylpropanolamine except in a licensed pharmacy by a licensed pharmacist or a registered pharmacy technician.        

   (b) Unless the product has been rescheduled pursuant to § 5-64-212(c), this section does not apply to a retail distributor sale for personal use of a product:        

         (1) That the Department of Health, in collaboration with the Arkansas State Board of Pharmacy, upon application of a manufacturer, exempts by rule from this section because the product has been formulated in such a way as to effectively prevent the conversion of the active ingredient into methamphetamine or its salts or precursors; or              

         (2) Containing ephedrine or pseudoephedrine in liquid, liquid capsule, or liquid gel capsule form if the drug is dispensed, sold, transferred, or otherwise furnished in a single transaction limited to no more than three (3) packages, with any single package containing not more than ninety-six (96) liquid capsules or liquid gel capsules or not more than three grams (3 g) of ephedrine or pseudoephedrine base.              

   (c) [Repealed.]        

   (d) Unless pursuant to a valid prescription, it is unlawful for a licensed pharmacist or a registered pharmacy technician to knowingly dispense, sell, transfer, or otherwise furnish in a single transaction:        

         (1) More than three (3) packages of one (1) or more products that contain ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts, isomers, or salts of isomers;              

         (2) Any single package of any product that contains ephedrine, pseudoephedrine, or phenylpropanolamine, that contains more than ninety-six (96) pills, tablets, gelcaps, capsules, or other individual units or more than three grams (3 g) of ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts, isomers, or salts of isomers, or a combination of any of these substances, whichever is smaller;              

         (3) Any product containing ephedrine, pseudoephedrine, or phenylpropanolamine, unless:              

               (A) The product is sold in a package size of not more than three grams (3 g) of ephedrine, pseudoephedrine, or phenylpropanolamine base and is packaged in a blister pack, each blister containing not more than two (2) dosage units;                    

               (B) When the use of a blister pack is technically infeasible, that is packaged in a unit dose packet or pouch; or                    

               (C) In the case of a liquid, the drug is sold in a package size of not more than three grams (3 g) of ephedrine, pseudoephedrine, or phenylpropanolamine base; or                    

         (4)

               (A) Any product containing ephedrine, pseudoephedrine, or phenylpropanolamine to any person under eighteen (18) years of age, unless the person is purchasing an exempt product under subdivision (b)(1) or (2) of this section.                    

               (B) The person making the sale shall require proof of age from the purchaser, unless from the purchaser's outward appearance the person would reasonably presume the purchaser to be twenty-five (25) years of age or older.                    

   (e)

         (1)

               (A) A person who violates subsections (a) or (d) of this section for a first or second offense upon conviction is guilty of a Class A misdemeanor and also may be subject to a civil fine not to exceed five thousand dollars ($5,000).                    

               (B) A person who violates subsections (a) or (d) of this section for a third offense upon conviction is guilty of a Class D felony and also may be subject to a civil fine not to exceed five thousand dollars ($5,000).                    

               (C) A person who violates subsections (a) or (d) of this section for a fourth or subsequent offense upon conviction is guilty of a Class C felony and also may be subject to a civil fine not to exceed ten thousand dollars ($10,000).                    

         (2) A plea of guilty or nolo contendere to or a finding of guilt under a penal law of the United States or another state that is equivalent to subsections (a) or (d) of this section is considered a previous offense for purposes of this subsection.              

         (3)

               (A) The prosecuting attorney may waive any civil penalty under this section if a person establishes that he or she acted in good faith to prevent a violation of this section, and the violation occurred despite the exercise of due diligence.                    

               (B) In making this determination, the prosecuting attorney may consider evidence that an employer trained employees how to sell, transfer, or otherwise furnish substances specified in this subchapter in accordance with applicable laws.                    

   (f)

         (1)

               (A) It is unlawful for any person, other than a person or entity described in § 5-64-1101(a), to knowingly purchase, acquire, or otherwise receive in a single transaction:                    

                     (i) More than three (3) packages of one (1) or more products that the person knows to contain ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts, isomers, or salts of isomers; or                          

                     (ii) Any single package of any product that the person knows to contain ephedrine, pseudoephedrine, or phenylpropanolamine, that contains more than ninety-six (96) pills, tablets, gelcaps, capsules, or other individual units or more than three grams (3 g) of ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts, isomers, or salts of isomers, or a combination of any of these substances, whichever is smaller.                          

               (B) It is unlawful for any person, other than a person or entity described in § 5-64-1101(a), to knowingly purchase, acquire, or otherwise receive more than five grams (5 g) of ephedrine or nine grams (9 g) of pseudoephedrine or phenylpropanolamine within any thirty-day period.                    

         (2)

               (A) A person who violates subdivisions (f)(1)(A) or (B) of this section for a first or second offense upon conviction is guilty of a Class A misdemeanor.                    

               (B) A person who violates subdivisions (f)(1)(A) or (B) of this section for a third offense upon conviction is guilty of a Class D felony.                    

               (C) A person who violates subdivisions (f)(1)(A) or (B) of this section for a fourth or subsequent offense upon conviction is guilty of a Class C felony.                    

         (3) A plea of guilty or nolo contendere to or a finding of guilt under a penal law of the United States or another state that is equivalent to subdivisions (f)(1)(A) or (B) of this section is considered a previous offense for the purposes of this subsection.              

   (g) [Repealed.]        

   (h) Nothing in this section prohibits a person under eighteen (18) years of age from possessing and selling a product described in subsections (a) and (b) of this section as an agent of the minor's employer acting within the scope of the minor's employment.        


History..Acts 2001, No. 1209, § 5; 2003, No. 277, §§ 1, 2; 2005, No. 256, § 6; 2007, No. 508, § 2; 2007, No. 827, §§ 68, 70; 2009, No. 712, §§ 1, 2.

5-64-1104. Sales records — Entering transactions into real-time electronic logbook — Purchaser's proof of identity.

   (a) A pharmacy shall:        

         (1) Maintain a written or electronic log or receipts of transactions involving the sale of ephedrine, pseudoephedrine, or phenylpropanolamine; and              

         (2) Enter any transaction required to be maintained by this section into the real-time electronic logbook maintained by the Arkansas Crime Information Center under § 5-64-1106.              

   (b) A person purchasing, receiving, or otherwise acquiring ephedrine, pseudoephedrine, or phenylpropanolamine shall:        

         (1) Produce current and valid proof of identity; and              

         (2) Sign a written log or an electronic log or a receipt that documents the date of the transaction, the name of the person, and the quantity of ephedrine, pseudoephedrine, or phenylypropanolamine purchased, received, or otherwise acquired.              

   (c) The requirements of subsection (a) of this section and subdivision (b)(2) of this section are satisfied by entering the information required to be produced into the real-time electronic logbook maintained by the Arkansas Crime Information Center under § 5-64-1106.        


History..Acts 2007, No. 508, § 2; 2007, No. 827, § 69.

5-64-1105. Definitions.

   As used in this subchapter:        

         (1) “Ephedrine”, “pseudoephedrine”, and “phenylpropanolamine” means any product containing ephedrine, pseudoephedrine, or phenylpropanolamine or any of their salts, isomers, or salts of isomers, alone or in a mixture;              

         (2)

               (A) “Proof of age” and “proof of identity” means any document issued by a governmental agency that contains a description of the person or a photograph of the person, or both, and gives the person's date of birth.                    

               (B) “Proof of age” and “proof of identity” includes without limitation, a passport, military identification card, or driver's license;                    

         (3)

               (A) “Retail distributor” means a grocery store, general merchandise store, drugstore, convenience store, or other related entity, the activities of which, as a distributor of ephedrine, pseudoephedrine, or phenylpropanolamine products, are limited exclusively to the sale for personal use of ephedrine, pseudoephedrine, or phenylpropanolamine products, both in number of sales and volume of sales, either directly to walk-in customers or in face-to-face transactions by direct sales.                    

               (B) “Retail distributor” includes any person or entity that makes a direct sale or has knowledge of the direct sale.                    

               (C) “Retail distributor” does not include:                    

                     (i) Any manager, supervisor, or owner not present and not otherwise aware of the direct sale; or                          

                     (ii) The parent company of a grocery store, general merchandise store, drugstore, convenience store, or other related entity if the parent company is not involved in direct sales regulated by this subchapter; and                          

         (4) “Sale for personal use” means the sale in a single transaction to an individual customer for a legitimate medical use of a product containing ephedrine, pseudoephedrine, or phenylpropanolamine in a quantity at or below that specified in § 5-64-1103, and includes the sale of those products to an employer to be dispensed to employees from a first-aid kit or medicine chest.              


History..Acts 2007, No. 827, § 71.

5-64-1106. Real-time electronic logbook.

   (a)

         (1) Subject to available funding, on or before May 15, 2008, the Arkansas Crime Information Center shall provide pharmacies in this state access to a real-time electronic logbook for the purpose of entering into the real-time electronic logbook any transaction required to be reported by § 5-64-1104.              

         (2) The real-time electronic logbook shall have the capability to calculate both state and federal ephedrine, pseudoephedrine, or phenylpropanolamine purchase limitations.              

   (b) The center may contract with a private vendor to implement this section.        

   (c) The center shall not charge a pharmacy any fee:        

         (1) To support the establishment or maintenance of the real-time electronic logbook; or              

         (2) For any computer software required to be installed as part of the real-time electronic logbook.              


History..Acts 2007, No. 508, § 3.

5-64-1107. Confidentiality of information.

   (a) Information entered into the real-time electronic logbook is confidential and is not subject to the Freedom of Information Act of 1967, § 25-19-101 et seq.        

   (b) Except as authorized under § 5-64-1108 or otherwise by law, the Arkansas Crime Information Center shall not disclose any information entered, collected, recorded, transmitted, or maintained in the real-time electronic logbook.        


History..Acts 2007, No. 508, § 3.

5-64-1108. Authorized access to the real-time electronic logbook.

   The Arkansas Crime Information Center shall provide access to the real-time electronic logbook to the following:        

         (1) Any person authorized to prescribe or dispense products containing ephedrine, pseudoephedrine, or phenylpropanolamine for the purpose of providing medical care or pharmaceutical care;              

         (2) A local, state, or federal law enforcement official or a local, state, or federal prosecutor;              

         (3) A local, state, or federal official who requests access for the purpose of facilitating a product recall necessary for the protection of the public health and safety; and              

         (4) The Arkansas State Board of Pharmacy for the purpose of investigating a suspicious transaction, as allowed under § 5-64-1006.              


History..Acts 2007, No. 508, § 3.

5-64-1109. Promulgation of rules.

   The Arkansas Crime Information Center, after consulting with the Arkansas State Board of Pharmacy, shall promulgate rules necessary to:        

         (1) Implement the provisions of §§ 5-64-1104(a)(2) and 5-64-1106 — 5-64-1112;              

         (2) Ensure that the real-time electronic logbook enables a pharmacy to monitor the sales of ephedrine, pseudoephedrine, or phenylpropanolamine occurring at that pharmacy;              

         (3) Allow a pharmacy to determine whether it will access information concerning sales of ephedrine, pseudoephedrine, or phenylpropanolamine made at other pharmacies in this state; and              

         (4) Ensure that the real-time electronic logbook does not allow access to a competitor's pricing information for ephedrine, pseudoephedrine, and phenylpropanalomine.              


History..Acts 2007, No. 508, § 3.

5-64-1110. Destruction of records.

   The Arkansas Crime Information Center shall destroy any transaction record maintained in the real-time electronic logbook within two (2) years from the date of its entry unless the transaction record is being used in an ongoing criminal investigation or criminal proceeding.        


History..Acts 2007, No. 508, § 3.

5-64-1111. Liability of pharmacy.

   A pharmacy in this state is not liable civilly for a sale of ephedrine, pseudoephedrine, or phenylpropanolamine that occurs at another pharmacy in this state.        


History..Acts 2007, No. 508, § 3.

5-64-1112. Penalty for unauthorized disclosure and unauthorized access.

   (a) A person commits an offense if he or she knowingly:        

         (1) Releases or discloses to any unauthorized person any confidential information collected and maintained under § 5-64-1107 or § 5-64-1108; or              

         (2) Obtains confidential information for a purpose not authorized by § 5-64-1107 or § 5-64-1108.              

   (b) A violation of subsection (a) of this section is a Class A misdemeanor.        


History..Acts 2007, No. 508, §, 3.

Subchapter 12 — Nitrous Oxide

5-64-1201. Possession.

   (a) It is unlawful for any person to possess a substance listed in subsection (b) of this section:        

         (1) With the intent to breathe, inhale, ingest, or use the substance for the purpose of:              

               (A) Causing a condition of intoxication, elation, euphoria, dizziness, stupefaction, or dulling of the senses; or                    

               (B) In any manner changing, distorting, or disturbing his or her audio, visual, or mental processes; or                    

         (2) Who purposely is under the influence of the substance.              

   (b) This subchapter applies to the following substances:        

         (1) Nitrous oxide, commonly known as “laughing gas”;              

         (2) Any compound, liquid, or chemical that contains nitrous oxide; or              

         (3) Any amyl nitrite, commonly known as “poppers” or “snappers”.              

   (c) Upon conviction, a person who violates this section is guilty of a Class A misdemeanor.        


History..Acts 1997, No. 355, § 1; 2001, No. 1553, § 13; 2007, No. 827, § 72.

5-64-1202. Distribution.

   (a) It is unlawful for any person, firm, corporation, limited liability company, or association to purposely sell, offer for sale, distribute, or give away a substance listed in § 5-64-1201(b) for the purpose of inducing or aiding another person to breathe, inhale, ingest, use, or be under the influence of the substance for a purpose prohibited in § 5-64-1201.        

   (b) Upon conviction, a person, a firm, a corporation, a limited liability company, or an association that violates this section is guilty of a Class A misdemeanor.        


History..Acts 1997, No. 355, § 2; 2001, No. 1553, § 14; 2007, No. 827, § 73.

5-64-1203. Exemptions.

   (a) A prohibitive provision in this subchapter does not apply to the possession and use of a substance listed in § 5-64-1201(b) that is prescribed as part of the practice of dentistry or as part of the care or treatment of a disease, condition, or injury by a licensed physician or to their use as part of a manufacturing process or industrial operation.        

   (b) A prohibitive provision in this subchapter shall not apply to the possession, use, or sale of nitrous oxide as a propellant in food preparation for restaurant, food service, or a houseware product.        


History..Acts 1997, No. 355, § 3; 2007, No. 827, § 74.

Subchapter 13 — Anhydrous Ammonia

5-64-1301. Possession of anhydrous ammonia in unlawful container.

   Any person who knowingly possesses anhydrous ammonia in a container that does not comply with the regulations of the Boiler Inspection Division of the Department of Labor for the containment of anhydrous ammonia is guilty of a Class B felony.        


History..Acts 1999, No. 909, § 1.

5-64-1302. Agricultural use as affirmative defense.

   It is an affirmative defense to prosecution under this subchapter that a chemical is possessed for the sole purpose of agricultural use.        


History..Acts 1999, No. 909, § 2.

5-64-1303. Applicability of subchapter.

   The provisions of this subchapter do not apply to a trained chemist working in a properly equipped research laboratory in an education, government, or corporate settings.        


History..Acts 1999, No. 909, § 3.