A. It is unlawful for a person to use or 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 the Controlled Substances Act. The provisions of this subsection do not apply to a person who is in possession of hypodermic syringes or needles at the time the person is directly and immediately engaged in a harm reduction program, as provided in the Harm Reduction Act [24-2C-1 to 24-2C-6 NMSA 1978].

B. It is unlawful for a person to deliver, possess with intent to deliver or manufacture with the intent to deliver drug paraphernalia with knowledge, 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 in violation of the Controlled Substances Act. The provisions of this subsection do not apply to:

(1) department of health employees or their designees while they are directly and immediately engaged in activities related to the harm reduction program authorized by the Harm Reduction Act; or

(2) the sale or distribution of hypodermic syringes and needles by pharmacists licensed pursuant to the Pharmacy Act [Chapter 61, Article 11 NMSA 1978].

C. A person who violates the provisions of Subsection A of this section shall be issued a penalty assessment pursuant to Section 3 [31-19A-1 NMSA 1978] of this 2019 act and is subject to a fine of fifty dollars ($50.00). A person who violates the provisions of Subsection B of this section is guilty of a misdemeanor.

D. A person eighteen years of age or over who violates the provisions of Subsection B of this section by delivering drug paraphernalia to a person under eighteen years of age and who is at least three years the person's junior is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

History: 1978 Comp., § 30-31-25.1, enacted by Laws 1981, ch. 31, § 2; 1997, ch. 256, § 7; 2001, ch. 189, § 1; 2019, ch. 217, § 2.

The 2019 amendment, effective July 1, 2019, decreased penalties for possession of drug paraphernalia; in Subsection C, after the first occurrence of "violates", deleted "this section with respect to" and added "the provisions of", after "Subsection A of this section", added "shall be issued a penalty assessment pursuant to Section 3 of this 2019 act and", and after "is", deleted "guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than fifty dollars ($50.00) nor more than one hundred dollars ($100) or by imprisonment for a definite term less than one year, or both" and added "subject to a fine of fifty dollars ($50.00)".

The 2001 amendment, effective June 15, 2001, in the section heading, deleted "or delivery to a minor" following "manufacturer" and inserted "exceptions"; in Subsection B, inserted the Paragraph (1) designation and added Paragraph B(2).

The 1997 amendment, effective June 20, 1997, added the second sentences in Subsections A and B and, in Subsection C, deleted former paragraph designations at the beginning of the sentences and added "Any person who violates this section with respect to" at the beginning of the second sentence.

Double jeopardy. — The legislature did not intend to punish a defendant for possession of a controlled substance and possession of paraphernalia when the paraphernalia consists of only a container that is storing a personal supply of the charged controlled substance and where the defendant was convicted of possession of methamphetamine and possession of drug paraphernalia based on the possession of a baggie that held the methamphetamine, the defendant's conviction of possession of drug paraphernalia violated double jeopardy. State v. Almeida, 2008-NMCA-068, 144 N.M. 235, 185 P.3d 1085.

Separate convictions for possession of drug paraphernalia violated double jeopardy. — Where defendant was convicted of two counts of possession of drug paraphernalia, one based on his possession of over ninety small, plastic baggies and the second based on his possession of a red straw with a burnt end, both of which are commonly used to package methamphetamine, defendant's constitutional right to be free from double jeopardy was violated, because the evidence was seized from the same location and was intended for the same purpose, the packaging of methamphetamine, and there was no intervening act or any other factor that would distinguish defendant's act of possessing separate containers for holding the methamphetamine that was also found in defendant's possession. State v. Tidey, 2018-NMCA-014, cert. denied.

Sufficient evidence. — Where police officers testified that they found a glass pipe containing a white substance in the center console of the vehicle defendant was driving and subsequent forensic testing revealed that the substance was methamphetamine, the circumstantial evidence was sufficient to establish that defendant possessed or constructively possessed the methamphetamine and the pipe and to permit the jury to infer that defendant knew that the substance was methamphetamine and that defendant intended to use the pipe to inhale methamphetamine. State v. Lopez, 2009-NMCA-127, 147 N.M. 364, 223 P.3d 361, cert. denied, 2009-NMCERT-010, 147 N.M. 452, 224 P.3d 1257.

Sufficient evidence of possession of drug paraphernalia. — Sufficient evidence supported defendant's conviction for possession of drug paraphernalia where a reasonable jury could infer that defendant had knowledge of and control over drug paraphernalia based on evidence that a glass pipe similar to those used to ingest methamphetamine was found in defendant's vehicle and methamphetamine was found on defendant's person. State v. Howl, 2016-NMCA-084, cert. denied.

Trafficking methamphetamine by manufacture and possession of drug paraphernalia. — Where the defendant was convicted of trafficking methamphetamine by manufacture for possession of items that could be used to manufacture methamphetamine and possession of drug paraphernalia for possession of items that could be used to consume methamphetamine and marijuana and where the items used to consume drugs were not necessary to manufacture methamphetamine, the defendant's conduct was not unitary and the defendant's convictions did not violate double jeopardy. State v. Vance, 2009-NMCA-024, 145 N.M. 706, 204 P.3d 31, cert. denied, 2009-NMCERT-001, 145 N.M. 655, 203 P.3d 870.

Vehicle search without consent allowed. — Where police officer could have arrested defendant for possession of drug paraphernalia, the officer, therefore, is allowed to search defendant's vehicle without consent. United States v. Malouff, 114 Fed. Appx. 975 (10th Cir. 2004).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Admissibility, in criminal prosecution, of expert opinion allegedly stating whether drugs were possessed with intent to distribute - state cases, 83 A.L.R.4th 629.

Validity, under Federal Constitution, of so-called "head shop" ordinances or statutes, prohibiting manufacture and sale of drug use related paraphernalia, 69 A.L.R. Fed. 15.

Validity and construction of Drug Paraphernalia Act (21 USCS § 863), 123 A.L.R. Fed. 637.