Nevada NRS § 453.321 prohibits the unlawful sale of a controlled substance. This section also makes it a crime to transfer, trade, distribute, or give away narcotics. A first-time sales conviction can be a Category D felony that carries 1 to 4 years in prison or a Category C felony that carries 1 to 5 years in prison. Sales-related offenses generally do not qualify for drug diversion or drug court under Nevada law.
It does not matter whether the drugs are real controlled substances or fake. If the transaction involves a large amount of narcotics, you may instead face prosecution for the more serious crime of trafficking under NRS 453.3385.
NRS 453.321 states that “[I]t is unlawful for a person to [i]mport, transport, sell, exchange, barter, supply, prescribe, dispense, give away or administer a controlled or counterfeit substance.”
Examples:
- Hand-to-hand sales
- Internet drug deals
- Selling drugs through the mail
- Selling through organized crime
Penalties
| NRS 453.321 drug charge | Penalties for a first-time offense |
| Selling Schedule I or Schedule II drugs | Category C felony
|
| Selling Schedule III, Schedule IV, or Schedule V drugs | Category D felony
|
Though courts can grant probation to you if you are a first-time defendant.
Defenses
Two common defenses to drug sale charges are:
- The police committed entrapment, and/or
- The police conducted an illegal search.
In this article, our Las Vegas criminal defense attorneys discuss:
- 1. What is the legal definition of selling drugs?
- 2. How is trafficking different?
- 3. What are the defenses?
- 4. What are the penalties?
- 5. Can the charges get dismissed?
- 6. Can I get my record sealed?
- 7. What are the immigration consequences?
- 8. Other prohibited acts under NRS 453.321
- 9. Related drug crimes
- Additional Resources
Selling controlled substances is a felony charge in Nevada under NRS 453.321.
1. What is the legal definition of selling drugs in Nevada?
Selling drugs is the exchange of controlled substances for money or anything of value. Merely offering to sell drugs is an NRS 453.321 violation even if no money or drugs change hands.
This offense is commonly abbreviated “SCS” for sale of controlled substances. “Controlled substances” comprise illegal drugs as well as prescription drugs.1
Many drug sale arrests occur when a concealed officer witnesses a hand-to-hand drug sale. If the police receive a tip, they may go to the site and set up covert surveillance. This is often referred to as an observation post.
Police also may set up “sting” operations — called controlled buys. This is where undercover police contact an alleged seller to schedule a drug sale. Narcotics officers frequently locate suspected dealers on websites such as Craigslist.
For information on marijuana specifically, read our article on the crime of selling marijuana.
2. How is trafficking different?
A drug sale turns into a trafficking offense when the sale involves at least 100 grams of a Schedule I or II drug or a drug containing flunitrazepam or gamma-hydroxybutyrate.
Therefore, it is impossible to commit trafficking by selling Schedule III, Schedule IV, or Schedule V drugs — no matter the amount.
Trafficking also carries much harsher penalties than selling.2 Judges rarely grant probation for a trafficking conviction unless the police agree to use you as an informant.3
3. What are the defenses?
Two common ways to fight drug sale charges in Nevada are to argue that:
- The police entrapped you; or
- The police conducted an unlawful search
The police entrapped you
Police break the law whenever they “entrap” suspects. Entrapment is tricking or forcing you into committing a crime you are not predisposed to. It is not uncommon for police to overstep their bounds and entrap suspected drug dealers.
Example: Officer James is undercover at Fremont Street. He overhears a woman telling a friend that she has Molly in her purse and plans to get high tonight.
The officer then goes up to the woman and asks to buy the Molly. The woman refuses. The officer then threatens to report her to the cops for having drugs in her purse if she does not sell to him. The woman agrees. Then Officer James breaks cover and arrests the woman for selling drugs.
Here, Officer James entrapped the woman. The officer had no reason to believe that she was predisposed to selling drugs. And she refused to sell to him until he threatened her. Therefore, the court should drop the drug sale charge.
A simple way of determining whether entrapment occurred is the but/for test. Would you have broken the law but for the police’s deception? If the answer is no, then the police probably committed entrapment, and the charge should be dismissed.4
The police conducted an unlawful search
The Fourth Amendment puts strict limits on how police may conduct searches of your property. When police violate these rules, the defense attorney can ask the court to disregard (“suppress“) any evidence found from this illegal search.
If the court grants your motion to suppress evidence, the D.A. may have insufficient proof to keep pressing charges. The D.A. may then have no choice but to drop the case.
4. What are the penalties?
The punishment for selling drugs in Nevada hinges on the type of drug and whether you have prior offenses. If you are a first-time offender, you probably can get probation rather than prison.5
| Controlled substance | Nevada penalties for selling drugs* |
| Schedule I drugs (such as LSD), or Schedule II drugs (such as methamphetamine, GHB, or codeine) | First offense Category C felony:
The judge may grant probation instead of prison. |
| Second offense
| |
| Third or subsequent offense Category B felony:
| |
| Schedule III drugs (such as Vicodin), Schedule IV drugs (such as Xanax or Valium), or Schedule V drugs (such as Robitussin AC) | First offense Category D felony
The judge may grant probation instead of prison. |
| Second offense Category C felony
| |
| Third or subsequent offense Category B felony:
| |
* The prison sentence doubles if the drug sale took place at any of the following locations:
| |
Note that “intentional misrepresentation of a fentanyl product” occurs when you:
- sell someone else a mixture containing fentanyl and another controlled substance; and
- know that the mixture contains fentanyl; and
- intentionally fail to inform the purchaser that the mixture contains fentanyl.
Intentional misrepresentation of a fentanyl product is a category B felony carrying 2 to 20 years in prison and up to $50,000 in fines. However, the court may suspend the sentence if you establish by a preponderance of the evidence that you did not know that the mixture at issue contained illicitly manufactured fentanyl.6
5. Can the charges get dismissed?
Nevada prosecutors take drug sale allegations very seriously. They usually will not dismiss these charges unless there is insufficient evidence.
Therefore, the defense attorney’s job is to show prosecutors that their case is not strong enough to win a “guilty verdict” at trial. (Scroll up to section 3 for typical defenses to NRS 453.321 charges.) If prosecutors begin to doubt that a jury would convict you, they may offer to reduce the charges or dismiss them outright.
Drug sale convictions can be sealed from your record five years after the case ends.
6. Can I get my record sealed?
If you get convicted of selling drugs, you must wait five years after the case ends to get a record sealed. However, you can petition for a record seal right away if the charge gets dismissed.7
Anyone arrested for drug crimes is advised to petition the court for a record sealed as soon as possible. Otherwise, the cases will show up on background checks and may disqualify you for certain jobs. Learn about how to get a Nevada criminal record seal.
7. What are the immigration consequences?
Selling drugs is a deportable offense. Therefore, visa-holders and green card-holders who get convicted of it face removal from the U.S.8
Non-citizens charged with selling narcotics should retain an aggressive attorney to try to get the case dismissed or changed to a non-deportable offense. Otherwise, the U.S. will likely deport them once their sentence is over.
8. Other prohibited acts under NRS 453.321
“Selling” controlled substances is just one of the acts that NRS 453.321 prohibits. This law also prohibits doing the following with drugs:
- importing
- transporting
- exchanging
- bartering
- supplying
- prescribing
- dispensing
- giving away
- administering
- manufacturing a counterfeit substance
Therefore, simply giving drugs away for personal use can be punished just as harshly as a drug sale in Nevada.9
9. Related drug crimes
Possession
The least serious drug offense is simple possession (NRS 453.336). This is when you have drugs for personal use and has no intention of selling them. Possession of controlled substances is typically a felony, though if you are a first-time offender, you can often avoid prison time. (Possession includes both actual possession and constructive possession.)
Possession for sale
The next most serious drug crime after possession is possession of drugs with the intent to sell (NRS 453.337 & NRS 453.338). This is a difficult charge for the D.A. to prove because it involves your state of mind. Depending on the case, prosecutors may agree to reduce the charge to simple possession of a controlled substance.
Sale of drug paraphernalia
Selling drug paraphernalia such as syringes and crack pipes is a lesser felony than selling actual narcotics. But the penalties become harsher if the customer is a child. Learn more about drug paraphernalia offenses.
Manufacturing drugs
Making drugs (NRS 453.322) is a category B felony carrying three to 15 years in prison. However, if there was a fire or explosion, the court can impose up to 20 years in prison.
Additional Resources
If you are struggling with substance abuse addiction, you can find help here:
- Narcotics Anonymous (NA) – A 12-step program to overcome drug addiction.
- Substance Abuse and Mental Health Service Administration (SAMHSA) – 24/7 treatment referral service.
- Recovery Centers of America – Treatment centers in seven states.
- SMART Recovery – Group therapy for young people struggling with addiction.
- Partnership to End Addiction – Information on how to find drug addiction treatment.
Legal References
- NRS 453.321. Offer, attempt or commission of unauthorized act relating to controlled or counterfeit substance unlawful; penalties; prohibition against probation or suspension of sentence for certain repeat offenders unless mitigating circumstances exist.
1. Except as authorized by the provisions of NRS 453.011 to 453.552, inclusive, it is unlawful for a person to: (a) Import, transport, sell, exchange, barter, supply, prescribe, dispense, give away or administer a controlled or counterfeit substance; (b) Manufacture or compound a counterfeit substance; or (c) Offer or attempt to do any act set forth in paragraph (a) or (b).
2. Unless a greater penalty is provided in NRS 453.333 or 453.334, if a person violates subsection 1 and the controlled substance is classified in schedule I or II, the person shall be punished: (a) For the first offense, for a category C felony as provided in NRS 193.130. (b) For a second offense, or if, in the case of a first conviction under this subsection, the offender has previously been convicted of an offense under this section or of any offense under the laws of the United States or any state, territory or district which, if committed in this State, would amount to an offense under this section, for a category B felony by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 10 years, and may be further punished by a fine of not more than $20,000. (c) For a third or subsequent offense, or if the offender has previously been convicted two or more times under this section or of any offense under the laws of the United States or any state, territory or district which, if committed in this State, would amount to an offense under this section, for a category B felony by imprisonment in the state prison for a minimum term of not less than 3 years and a maximum term of not more than 15 years, and may be further punished by a fine of not more than $20,000 for each offense.
3. Unless mitigating circumstances exist that warrant the granting of probation, the court shall not grant probation to or suspend the sentence of a person convicted under subsection 2 and punishable pursuant to paragraph (b) or (c) of subsection 2.
4. Unless a greater penalty is provided in NRS 453.333 or 453.334, if a person violates subsection 1, and the controlled substance is classified in schedule III, IV or V, the person shall be punished: (a) For the first offense, for a category D felony as provided in NRS 193.130. (b) For a second offense, or if, in the case of a first conviction of violating this subsection, the offender has previously been convicted of violating this section or of any offense under the laws of the United States or any state, territory or district which, if committed in this State, would amount to a violation of this section, for a category C felony as provided in NRS 193.130. (c) For a third or subsequent offense, or if the offender has previously been convicted two or more times of violating this section or of any offense under the laws of the United States or any state, territory or district which, if committed in this State, would amount to a violation of this section, for a category B felony by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 10 years, and may be further punished by a fine of not more than $15,000 for each offense.
5. Unless mitigating circumstances exist that warrant the granting of probation, the court shall not grant probation to or suspend the sentence of a person convicted under subsection 4 and punishable pursuant to paragraph (b) or (c) of subsection 4.NRS 453.046. Paige v. State (Nev. 2000) 995 P.2d 1020. Dent v. State (Nev. 1996) 929 P.2d 891.
- NRS 453.3385; NRS 453.339; NRS 453.3395.
- NRS 453.3405.
- Sheriff, Humboldt County v. Gleave (Nev. 1988) 761 P.2d 416.
- NRS 453.321.
- NRS 453.3345. SB 35 (2023). NRS 453.3405.
- NRS 179.245; NRS 179.255.
- 8 U.S.C. § 1227.
- NRS 453.321.