Title 40. Public Health and Safety

Chapter 4. Food and Drugs

Part X. Uniform Controlled Dangerous Substances Law

 

40:966        Penalty for distribution or possession with intent to distribute narcotic drugs listed in Schedule I; possession of marijuana, possession of synthetic cannabinoids, possession of heroin

 

A. Manufacture; distribution. Except as authorized by this Part, it shall be unlawful for any person knowingly or intentionally: 

 

(1) To produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule I; 

 

(2) To create, distribute, or possess with intent to distribute, a counterfeit controlled dangerous substance classified in Schedule I. 

 

B. Penalties for violation of Subsection A of this Section. Any person who violates Subsection A of this Section with respect to: 

 

(1) Except as otherwise provided in Paragraph (4) of this Subsection, a substance classified in Schedule I that is a narcotic drug (all substances in Schedule I preceded by an asterisk “*”), upon conviction shall be sentenced to imprisonment at hard labor for not less than ten nor more than fifty years, at least ten years of which shall be served without benefit of probation or suspension of sentence, and may, in addition, be required to pay a fine of not more than fifty thousand dollars. 

 

(2) Except as otherwise provided in Paragraph (3) of this Subsection, any other controlled dangerous substance classified in Schedule I, shall upon conviction be sentenced to a term of imprisonment at hard labor for not less than five years nor more than thirty years, at least five years of which shall be served without benefit of parole, probation, or suspension of sentence, and pay a fine of not more than fifty thousand dollars. 

 

(3) A substance classified in Schedule I which is marijuana, tetrahydrocannabinols, or chemical derivatives of tetrahydrocannabinols, or synthetic cannabinoids shall upon conviction be sentenced to a term of imprisonment at hard labor for not less than five nor more than thirty years, and pay a fine of not more than fifty thousand dollars. 

 

(4)(a) A substance classified in Schedule I that is the narcotic drug heroin or a mixture or substance containing a detectable amount of heroin or of its analogues upon conviction of a first offense shall be sentenced to a term of imprisonment at hard labor for not less than ten nor more than fifty years, at least ten years of which shall be served without benefit of probation or suspension of sentence, and may, in addition, be required to pay a fine of not more than fifty thousand dollars. 

 

(b) A substance classified in Schedule I that is the narcotic drug heroin or a mixture or substance containing a detectable amount of heroin or of its analogues upon conviction of a second or subsequent offense shall be sentenced to a term of imprisonment at hard labor for not less than ten nor more than ninety-nine years, at least ten years of which shall be served without benefit of probation or suspension of sentence, and may, in addition, be required to pay a fine of not more than fifty thousand dollars. 

 

C. Possession. It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance classified in Schedule I unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner or as provided in R.S. 40:978, while acting in the course of his professional practice, or except as otherwise authorized by this Part. Any person who violates this Subsection with respect to: 

 

(1) A substance classified in Schedule I which is a narcotic drug (all substances in Schedule I preceded by an asterisk), shall be imprisoned at hard labor for not less than four years nor more than ten years and may, in addition, be required to pay a fine of not more than five thousand dollars. 

 

(2) Phencyclidine, shall be sentenced to imprisonment with or without hard labor for not less than five nor more than twenty years and may be sentenced to pay a fine of not more than five thousand dollars, or both. 

 

(3) Any other controlled dangerous substance classified in Schedule I, shall be imprisoned at hard labor for not more than ten years, and may in addition, be required to pay a fine of not more than five thousand dollars. 

 

D. Other penalties for possession. (1) Except as otherwise authorized in this Part: 

 

(a) Any person who knowingly or intentionally possesses twenty-eight grams or more, but less than two hundred grams, of a narcotic drug (all substances in Schedule I preceded by an asterisk “*”), shall be sentenced to serve a term of imprisonment at hard labor of not less than five years, nor more than thirty years, and to pay a fine of not less than fifty thousand dollars, nor more than one hundred fifty thousand dollars. 

 

(b) Any person who knowingly or intentionally possesses two hundred grams or more, but less than four hundred grams, of a narcotic drug (all substances in Schedule I preceded by an asterisk “*”), shall be sentenced to serve a term of imprisonment at hard labor of not less than ten years, nor more than thirty years, and to pay a fine of not less than one hundred thousand dollars, nor more than three hundred fifty thousand dollars. 

 

(c) Any person who knowingly or intentionally possesses four hundred grams or more of a narcotic drug (all substances in Schedule I preceded by an asterisk “*”), shall be sentenced to serve a term of imprisonment at hard labor of not less than fifteen years, nor more than thirty years, and to pay a fine of not less than two hundred fifty thousand dollars, nor more than six hundred thousand dollars. 

 

E. (1) Possession of marijuana. (a) Except as provided in Subsection F of this Section, on a conviction for violation of Subsection C of this Section with regard to marijuana, tetrahydrocannabinol, or chemical derivatives thereof, the offender shall be punished as follows: 

 

(i) On a first conviction, wherein the offender possesses fourteen grams or less, the offender shall be fined not more than three hundred dollars, imprisoned in the parish jail for not more than fifteen days, or both. 

 

(ii) On a first conviction, wherein the offender possesses more than fourteen grams, the offender shall be fined not more than five hundred dollars, imprisoned in the parish jail for not more than six months, or both. 

 

(iii) Any person who has been convicted of a violation of the provisions of Item (i) or (ii) of this Subparagraph and who has not been convicted of any other violation of a statute or ordinance prohibiting the possession of marijuana for a period of two years from the date of completion of sentence, probation, parole, or suspension of sentence shall not be eligible to have the conviction used as a predicate conviction for enhancement purposes. The provisions of this Subparagraph shall occur only once with respect to any person. 

 

(b) Except as provided in Subsection F of this Section, on a second conviction for violation of Subsection C of this Section with regard to marijuana, tetrahydrocannabinol or chemical derivatives thereof, the offender shall be fined not more than one thousand dollars, imprisoned in the parish jail for not more than six months, or both. 

 

(c)(i) Except as provided in Subsection F of this Section, on a third conviction for violation of Subsection C of this Section with regard to marijuana, tetrahydrocannabinol or chemical derivatives thereof, the offender shall be sentenced to imprisonment with or without hard labor for not more than two years, shall be fined not more than two thousand five hundred dollars, or both. 

 

(ii) If the court places the offender on probation, the probation shall provide for a minimum condition that he participate in a court-approved substance abuse program and perform four eight-hour days of court-approved community service activities. Any costs associated with probation shall be paid by the offender. 

 

(d)(i) Except as provided in Subsection F of this Section, on a fourth or subsequent conviction for violation of Subsection C of this Section with regard to marijuana, tetrahydrocannabinol or chemical derivatives thereof, the offender shall be sentenced to imprisonment with or without hard labor for not more than eight years, shall be fined not more than five thousand dollars, or both. 

 

(ii) If the court places the offender on probation, the probation shall provide for a minimum condition that he participate in a court-approved substance abuse program and perform four eight-hour days of court-approved community service activities. Any costs associated with probation shall be paid by the offender. 

 

(e) Except as provided in Item (a)(iii) of this Paragraph, a conviction for the violation of any other statute or ordinance with the same elements as Subsection C of this Section prohibiting the possession of marijuana, tetrahydrocannabinol or chemical derivatives thereof, shall be considered as a prior conviction for the purposes of this Subsection relating to penalties for second, third, or subsequent offenders. 

 

(f) Except as provided in Item (a)(iii) of this Paragraph, a conviction for the violation of any other statute or ordinance with the same elements as Paragraph (B)(3) of this Section prohibiting the distributing or dispensing or possession with intent to distribute or dispense marijuana, tetrahydrocannabinol or chemical derivatives thereof, or synthetic cannabinoids shall be considered as a prior conviction for the purposes of this Subsection relating to penalties for second, third, or subsequent offenders. 

 

(2) Possession of synthetic cannabinoids. (a) Except as provided in Subsections F and G of this Section, on a first conviction for violation of Subsection C of this Section with regard to synthetic cannabinoids, the offender shall be fined not more than five hundred dollars, imprisoned for not more than six months, or both. 

 

(b) Except as provided in Subsections F and G of this Section, on a second conviction for violation of Subsection C of this Section with regard to synthetic cannabinoids, the offender shall be fined not less than two hundred fifty dollars nor more than two thousand dollars, imprisoned with or without hard labor for not more than five years, or both. 

 

(c) Except as provided in Subsections F and G of this Section, on a third or subsequent conviction for violation of Subsection C of this Section with regard to synthetic cannabinoids, the offender shall be sentenced to imprisonment with or without hard labor for not more than twenty years, and may, in addition, be fined not more than five thousand dollars. 

 

(d) A conviction for the violation of any other provision of law or ordinance with the same elements as Subsection C of this Section prohibiting the possession of synthetic cannabinoids shall be considered a prior conviction for the purposes of this Paragraph relating to penalties for second, third, or subsequent offenses. 

 

(e) A conviction for the violation of any other provision of law or ordinance with the same elements as Paragraph (B)(3) of this Section prohibiting the distributing or dispensing or possession with intent to distribute or dispense synthetic cannabinoids shall be considered a prior conviction for the purposes of this Paragraph relating to penalties for second, third, or subsequent offenses. 

 

(f) If the court places the offender on probation, the probation shall provide for a minimum condition that he participate in a court-approved substance abuse program and perform four eight-hour days of court-approved community service activities. Any costs associated with probation shall be paid by the offender. 

 

F. Except as otherwise authorized in this Part: 

 

(1) Any person who knowingly or intentionally possesses two and one-half pounds or more, but less than sixty pounds of marijuana, tetrahydrocannabinol or chemical derivatives thereof, or synthetic cannabinoids shall be sentenced to serve a term of imprisonment with or without hard labor of not less than two years, nor more than ten years, and to pay a fine of not less than ten thousand dollars nor more than thirty thousand dollars. 

 

(2) Any person who knowingly or intentionally possesses sixty pounds or more, but less than two thousand pounds of marijuana, tetrahydrocannabinol or chemical derivatives thereof, or synthetic cannabinoids shall be sentenced to serve a term of imprisonment at hard labor of not less than five years, nor more than thirty years, and to pay a fine of not less than fifty thousand dollars nor more than one hundred thousand dollars. 

 

(3) Any person who knowingly or intentionally possesses two thousand pounds or more, but less than ten thousand pounds of marijuana, tetrahydrocannabinol or chemical derivatives thereof, or synthetic cannabinoids shall be sentenced to serve a term of imprisonment at hard labor of not less than ten years nor more than forty years, and to pay a fine of not less than one hundred thousand dollars nor more than four hundred thousand dollars. 

 

(4) Any person who knowingly or intentionally possesses ten thousand pounds or more of marijuana, tetrahydrocannabinol or chemical derivatives thereof, or synthetic cannabinoids shall be sentenced to serve a term of imprisonment at hard labor of not less than twenty-five years, nor more than forty years and to pay a fine of not less than four hundred thousand dollars nor more than one million dollars. 

 

G. With respect to any person to whom the provisions of Subsections D and F of this Section are applicable, the adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall such person be eligible for probation or parole prior to serving the minimum sentences provided by Subsection D or F of this Section. 

 

H. Notwithstanding any other provision of law to the contrary, unless eligible for parole at an earlier date, a person committed to the Department of Public Safety and Corrections serving a life sentence for the production, manufacturing, distribution, or dispensing or possessing with intent to produce, manufacture, or distribute heroin shall be eligible for parole consideration upon serving at least fifteen years of imprisonment in actual custody. 

 

I. Immunity from prosecution. Any person who is a patient of the state-sponsored medical marijuana program in Louisiana, and who possesses medical marijuana in a form permissible under R.S. 40:1046 for a condition enumerated therein, a caregiver as defined in R.S. 15:1503, or any person who is a domiciliary parent of a minor child who possesses medical marijuana on behalf of his minor child in a form permissible under R.S. 40:1046 for a condition enumerated therein pursuant to a legitimate medical marijuana prescription or recommendation, shall not be subject to prosecution for possession or distribution of marijuana under this Section for possessing medical marijuana or dispensing medical marijuana to his minor child who is a patient of the state-sponsored medical marijuana program. This defense must be raised in accordance with R.S. 40:991, and the defendant bears the burden of proof of establishing that the possession or distribution of the marijuana was in accordance with the state-sponsored medical marijuana program. 

 

Acts 1972, No. 634, § 1. Amended by Acts 1973, No. 207, § 3; Acts 1977, No. 631, § 1; Acts 1981, No. 800, § 1, eff. Aug. 2, 1981; Acts 1983, No. 598, § 1; Acts 1984, No. 910, § 1; Acts 1985, No. 208, § 1; Acts 1986, No. 769, § 1; Acts 1987, No. 850, § 1; Acts 1991, No. 99, § 1; Acts 1993, No. 969, § 1; Acts 1994, 3rd Ex.Sess., No. 77, § 1; Acts 2001, No. 403, § 4, eff. June 15, 2001; Acts 2001, No. 1036, § 1; Acts 2002, 1st Ex.Sess., No. 45, § 1, eff. April 18, 2002; Acts 2004, No. 345, § 1; Acts 2007, No. 19, § 1; Acts 2009, No. 533, § 3; Acts 2010, No. 565, § 1; Acts 2010, No. 661, § 1; Acts 2010, No. 810, § 1; Acts 2010, No. 866, § 1; Acts 2014, No. 368, § 1, eff. May 30, 2014; Acts 2015, No. 295, § 1, eff. June 29, 2015; Acts 2016, No. 343, § 1.

VALIDITY

<The imposition, under R.S. 40:966 and 40:979, of a more stringent sentence for the attempted crime than for the actual crime was held to be unconstitutionally excessive by State v. Allen, App. 4 Cir.2003, 849 So.2d 82, 2003-0192 (La.App. 4 Cir. 5/28/03).>