Distribution, Delivery, Manufacture or Production

A person commits the offense of delivery of a controlled substance if, unless he is registered and authorized to do so, he knowingly distributes or delivers, or attempts to distribute or deliver, a controlled substance, possesses a controlled substance with intent to distribute or deliver, or knowingly permits a minor to purchase or transport illegally obtained controlled substances. ¹⁰ “Deliver” is defined as any actual, constructive, attempted transfer from one person to another, including a sale.¹¹ “Distribute” is defined as delivering other than by administering or dispensing.¹² The offense is generally a Class C felony. However, the offense is a class B felony if the sale of the controlled substance—other than marijuana and synthetic cannabinoid—is to a person under 17 by a defendant at least two years older.¹³ The offense is also a class B felony if the defendant knowing permits a minor to purchase or transport illegally obtained controlled substances.¹⁴

579.020. Delivery of A Controlled Substance:

1. A person commits the offense of delivery of a controlled substance if, except as authorized in this chapter or chapter 195, he or she:

(1) Knowingly distributes or delivers a controlled substance;

(2) Attempts to distribute or deliver a controlled substance;

(3) Knowingly possesses a controlled substance with the intent to distribute or deliver any amount of a controlled substance; or

(4) Knowingly permits a minor to purchase or transport illegally obtained controlled substances.

2. Except when the controlled substance is thirty-five grams or less of marijuana or synthetic cannabinoid or as otherwise provided under subsection 5 of this section, the offense of delivery of a controlled substance is a class C felony (prison term not less than three years and no more than 10).

3. Except as otherwise provided under subsection 4 of this section, the offense of delivery of thirty-five grams or less of marijuana or synthetic cannabinoid is a class E felony (prison term no more than four years).

4. The offense of delivery of thirty-five grams or less of marijuana or synthetic cannabinoid to a person less than seventeen years of age who is at least two years younger than the defendant is a class C felony.

5. The offense of delivery of a controlled substance is a class B felony (a prison term not less than five years and no more than fifteen years) if:

(1) The delivery or distribution is any amount of a controlled substance except thirty- five grams or less of marijuana or synthetic cannabinoid, to a person less than seventeen years of age who is at least two years younger than the defendant; or

(2) The person knowingly permits a minor to purchase or transport illegally obtained controlled substances

579.040. Unlawful Distribution, Delivery, Or Sale of Drug Paraphernalia:

1. A person commits the offense of unlawful distribution, delivery, or sale of drug paraphernalia if he or she unlawfully distributes, delivers, or sells, or possesses with intent to distribute, deliver, or sell drug paraphernalia knowing, or under circumstances in which one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance or an imitation controlled substance in violation of this chapter.

2. The offense of unlawful delivery of drug paraphernalia is a class A misdemeanor (a prison term up to one year), unless done for commercial purposes, in which case it is a class E felony (a prison term no more than four years).

Possession with Intent to Distribute

Possession of a controlled substance with intent to distribute or deliver it is subject to the same penalties as distribution or delivery.

Conviction of possession of a controlled substance with intent to distribute requires proof of: (1) actual or constructive possession of the substance, (2) knowledge or awareness of its presence and nature, and (3) intent to distribute. Exclusive control of the place where the substance is found is sufficient to raise an inference of possession and knowledge; joint control of the place where the substance is found requires further evidence to prove the defendant’s knowledge and control over the substance, such as the quantity present, indicia of drug usage by the defendant at or near the time of arrest, presence of personal belongings of the defendant near the substance, or deceptive statements to the police.¹⁵ Simple possession is a lesser included offense of possession with intent to distribute.¹⁶

579.020. Delivery of A Controlled Substance:

1. A person commits the offense of delivery of a controlled substance if, except as authorized in this chapter or chapter 195, he or she:

(1) Knowingly distributes or delivers a controlled substance;

(2) Attempts to distribute or deliver a controlled substance;

(3) Knowingly possesses a controlled substance with the intent to distribute or deliver any amount of a controlled substance; or

(4) Knowingly permits a minor to purchase or transport illegally obtained controlled substances.

2. Except when the controlled substance is thirty-five grams or less of marijuana or synthetic cannabinoid or as otherwise provided under subsection 5 of this section, the offense of delivery of a controlled substance is a class C felony (a prison term no less than 3 years and no more than ten years).

3. Except as otherwise provided under subsection 4 of this section, the offense of delivery of thirty-five grams or less of marijuana or synthetic cannabinoid is a class E felony.

4. The offense of delivery of thirty-five grams or less of marijuana or synthetic cannabinoid to a person less than seventeen years of age who is at least two years younger than the defendant is a class C felony.

5. The offense of delivery of a controlled substance is a class B felony (prison term not less than five years and not to exceed fifteen years;) if:

(1) The delivery or distribution is any amount of a controlled substance except thirty- five grams or less of marijuana or synthetic cannabinoid, to a person less than seventeen years of age who is at least two years younger than the defendant; or

(2) The person knowingly permits a minor to purchase or transport illegally obtained controlled substances

Manufacturing

The offense of manufacture of a controlled substance is committed in one of three ways: (1) by knowingly manufacturing, producing, or growing a controlled substance; (2) by attempting to manufacture, produce or grow a controlled substance; or (3) by knowingly possessing a controlled substance with the intent to manufacture, produce, or grow any amount of controlled substances.¹⁷ “Manufacture” is the production, preparation, propagation, compounding or processing of a controlled substance, whether by extraction or chemical synthesis.¹⁸

When the offense of manufacturing or producing is charged, it usually involves cultivation of marijuana crops or production (or attempted production) of methamphetamine. Such prosecutions, as with many delivery cases, usually rest on circumstantial evidence.¹⁹

579.055. Manufacture of A Controlled Substance:

1. A person commits the offense of manufacture of a controlled substance if, except as authorized in this chapter or chapter 195, he or she:

(1) Knowingly manufactures, produces, or grows a controlled substance;

(2) Attempts to manufacture, produce, or grow a controlled substance; or

(3) Knowingly possesses a controlled substance with the intent to manufacture, produce, or grow any amount of controlled substance.

2. The offense of manufacturing or attempting to manufacture any amount of controlled substance is a class B felony (a prison term not less than five years and not to exceed fifteen years;) when committed within two thousand feet of the real property comprising a public or private elementary, vocational, or secondary school, community college, college, or university. It is a class A felony (a prison term not less than ten years and not to exceed thirty years, or life imprisonment;) if a person has suffered serious physical injury or has died as a result of a fire or explosion started in an attempt by the defendant to produce methamphetamine.

3. The offense of manufacturing or attempting to manufacture any amount of a controlled substance, except thirty-five grams or less of marijuana or synthetic cannabinoid, is a class C felony (a prison term of years not less than three years and not to exceed ten years).

4. The offense of manufacturing thirty-five grams or less of marijuana or synthetic cannabinoid is a class E felony (a prison a term of years not to exceed four years).

579.076. Unlawful Manufacture of Drug Paraphernalia:

1. A person commits the offense of unlawful manufacture of drug paraphernalia if he or she unlawfully manufactures with intent to deliver drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance or an imitation controlled substance in violation of this chapter or chapter 195.

2. The offense of unlawful manufacture of drug paraphernalia is a class A misdemeanor prison term of up to one year, unless done for commercial purposes, in which case it is a class E felony (a term of years not to exceed four years).