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CHAPTER 22-42

CONTROLLED SUBSTANCES AND MARIJUANA

22-42-1      Definition of terms.
22-42-2      Unauthorized manufacture, distribution, counterfeiting or possession of Schedule I or II substances as felony--Mandatory sentences.
22-42-2.1      Written prescription required to dispense Schedule II substance--Refills prohibited--Felony.
22-42-2.2      Oral prescription permitted for Schedule II substance under specified conditions.
22-42-2.3      Mitigating circumstances--Departure from mandatory sentence .
22-42-2.4      Conspiracy to commit violation of § 22-42-2--Punishment same as provided under that section.
22-42-2.5      Findings required for sentence imposed without regard to statutory minimum sentence.
22-42-3      Unauthorized manufacture, distribution, counterfeiting or possession of Schedule III substances as felony--Mandatory sentences.
22-42-4      Unauthorized manufacture, distribution, counterfeiting or possession of Schedule IV substances as felony--Mandatory sentences.
22-42-4.1      Prescription required to dispense Schedule III or Schedule IV substance--Refill restricted--Felony .
22-42-4.2      Schedule II, III, or IV substances to be distributed only for a medical purpose.
22-42-4.3      Unauthorized manufacture, distribution, counterfeiting, or possession of methamphetamine as felony--Mandatory sentences.
22-42-5      Unauthorized possession of controlled drug or substance as felony.
22-42-5.1      Unauthorized ingestion of controlled drug or substance as felony.
22-42-6      Possession of marijuana prohibited--Degrees according to amount.
22-42-7      Distribution or possession with intent to distribute specified amounts of marijuana.
22-42-8      Obtaining possession of controlled substance by theft, misrepresentation, forgery, or fraud.
22-42-9      Manufacture, distribution, or possession of equipment for making counterfeit controlled substance as felony.
22-42-10      Keeping place for use or sale of controlled substances as felony.
22-42-11      Inhabiting room where controlled substances illegally stored or used as misdemeanor.
22-42-12      Civil fine for violation of regulatory provisions--Additional fine remitted to drug abuse or rehabilitation program.
22-42-13      Criminal penalties in addition to civil and administrative penalties.
22-42-14      Repealed.
22-42-15      Ingesting substance, except alcoholic beverages, for the purpose of becoming intoxicated as misdemeanor--Venue for violation.
22-42-15.1      Possession, sale, or distribution of certain substances for the purpose of intoxication as misdemeanor.
22-42-16      Delivery or manufacture of noncontrolled substance represented to be controlled substance as felony.
22-42-17      Controlled substances obtained concurrently from different medical practitioners--Misdemeanor.
22-42-18      Definitions of terms used in §§ 22-42-19 to 22-42-21, inclusive.
22-42-19      Drug free zones created--Violation as felony--Sentence--Defense.
22-42-20      Violation of drug-free zones as separate count in indictment.
22-42-21      Lack of knowledge as to age of minor not a defense.
22-42-22      Possession of Salvia divinorum or salvinorin A prohibited--Felony or misdemeanor.


     22-42-1.   Definition of terms. Terms used in this chapter mean:
             (1)      "Controlled drug or substance," a drug or substance, or an immediate precursor of a drug or substance, listed in Schedules I through IV. The term includes an altered state of a drug or substance listed in Schedules I through IV absorbed into the human body;
             (2)      "Counterfeit substance," a controlled drug or substance which, or the container of labeling of which, without authorization, bears the trade-mark, trade name, or other identifying mark, imprint, number, or device, or any likeness thereof, of a manufacturer, distributor, or dispenser other than the person or persons who manufactured, distributed, or dispensed such substance and which thereby falsely purports or is represented to be the product of, or to have been distributed by, such other manufacturer, distributor, or dispenser;
             (3)      "Deliver" or "delivery," the actual or constructive transfer of a controlled drug, substance, or marijuana whether or not there exists an agency relationship;
             (4)      "Dispense," to deliver a controlled drug or substance to the ultimate user or human research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering, packaging, labeling, or compounding necessary to prepare the substance for such delivery, and a dispenser is one who dispenses;
             (5)      "Distribute," to deliver a controlled drug, substance, or marijuana. Distribution means the delivery of a controlled drug, substance, or marijuana;
             (6)      "Manufacture," the production, preparation, propagation, compounding, or processing of a controlled drug or substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis. A manufacturer includes any person who packages, repackages, or labels any container of any controlled drug or substance, except practitioners who dispense or compound prescription orders for delivery to the ultimate user;
             (7)      "Marijuana," all parts of any plant of the genus cannabis, whether growing or not, in its natural and unaltered state, except for drying or curing and crushing or crumbling. The term includes an altered state of marijuana absorbed into the human body. The term does not include fiber produced from the mature stalks of such plant, or oil or cake made from the seeds of such plant;
             (8)      "Practitioner," a doctor of medicine, osteopathy, podiatry, dentistry, optometry, or veterinary medicine licensed to practice his profession, or pharmacists licensed to practice their profession; physician's assistants certified to practice their profession; government employees acting within the scope of their employment; and persons permitted by certificates issued by the Department of Health to distribute, dispense, conduct research with respect to, or administer a substance controlled by chapter 34-20B;
             (9)      "Precursor" or "immediate precursor," a substance which the Department of Health has found to be and by rule designates as being a principal compound commonly used or produced primarily for use, and which is an immediate chemical intermediary used or likely to be used, in the manufacture of a controlled drug or substance, the control of which is necessary to prevent, curtail, or limit such manufacture;
             (10)      "Schedule I," "Schedule II," "Schedule III," and "Schedule IV," those schedules of drugs, substances, and immediate precursors listed in chapter 34-20B;
             (11)      "Ultimate user," a person who lawfully possesses a controlled drug or substance for that person's own use or for the use of a member of that person's household or for administration to an animal owned by that person or by a member of that person's household.

Source: SL 1976, ch 158, § 42-1; SL 1977, ch 189, § 88; SL 1984, ch 239, § 2; SL 1985, ch 185, § 1; SL 1986, ch 306, § 5; SL 2001, ch 116, § 1.


     22-42-2.   Unauthorized manufacture, distribution, counterfeiting or possession of Schedule I or II substances as felony--Mandatory sentences. Except as authorized by this chapter or chapter 34-20B, no person may manufacture, distribute, or dispense a substance listed in Schedules I or II; possess with intent to manufacture, distribute, or dispense a substance listed in Schedules I or II; create or distribute a counterfeit substance listed in Schedules I or II; or possess with intent to distribute a counterfeit substance listed in Schedules I or II. A violation of this section is a Class 4 felony. However, a violation of this section is a Class 3 felony if the person is in possession of three or more of the following:
             (1)      Three hundred dollars or more in cash;
             (2)      A firearm or other weapon pursuant to §§ 22-14-6, 22-14-15, 22-14-15.1, 22-14-15.3, and subdivision 22-1-2(8);
             (3)      Bulk materials used for the packaging of controlled substances;
             (4)      Materials used to manufacture a controlled substance including recipes, precursor chemicals, laboratory equipment, lighting, ventilating or power generating equipment; or
             (5)      Drug transaction records or customer lists.
     The distribution of a substance listed in Schedules I or II to a minor is a Class 2 felony. A first conviction under this section shall be punished by a mandatory sentence in the state penitentiary of at least one year, which sentence may not be suspended. Probation, suspended imposition of sentence, or suspended execution of sentence may not form the basis for reducing the mandatory time of incarceration required by this section. A second or subsequent conviction under this section shall be punished by a mandatory sentence in the state penitentiary of at least ten years, which sentence may not be suspended. Probation, suspended imposition of sentence, or suspended execution of sentence may not form the basis for reducing the mandatory time of incarceration required by this section. However, a first conviction for distribution to a minor under this section shall be punished by a mandatory sentence in the state penitentiary of at least five years, which sentence may not be suspended. Probation, suspended imposition of sentence, or suspended execution of sentence may not form the basis for reducing the mandatory time of incarceration required by this section. A second or subsequent conviction for distribution to a minor under this section shall be punished by a mandatory sentence in the state penitentiary of at least fifteen years, which sentence may not be suspended. Probation, suspended imposition of sentence, or suspended execution of sentence, may not form the basis for reducing the mandatory time of incarceration required by this section.
     Any person who, for consideration, intentionally distributes any controlled substance or counterfeit substance in violation of this section and another person dies as a direct result of using that substance, the sentence for the principal felony shall be enhanced by increasing the class of the principal felony two levels. The enhancement may not exceed the sentence for a Class C felony.
     A civil penalty may be imposed, in addition to any criminal penalty, upon a conviction of a violation of this section not to exceed ten thousand dollars. A conviction for the purposes of the mandatory sentence provisions of this chapter is the acceptance by a court of any plea, other than not guilty, including nolo contendere, or a finding of guilt by a jury or court.

Source: SL 1970, ch 229, § 10 (a) (1), (2), (b) (1); SL 1971, ch 225, § 1; SDCL Supp, §§ 39-17-88 to 39-17-90; SL 1976, ch 158, § 42-2; SL 1977, ch 189, § 89; SL 1982, ch 179, § 1; SL 1983, ch 178, § 1; SL 1986, ch 185, § 1; SL 1989, ch 201, § 1; SL 2013, ch 101, § 55; SL 2018, ch 136, § 1.


     22-42-2.1.   Written prescription required to dispense Schedule II substance--Refills prohibited--Felony. No person other than a practitioner who is not a pharmacist, may dispense a controlled drug or substance included in Schedule II to an ultimate user without the written prescription of a practitioner who is not a pharmacist. No prescription for a Schedule II drug or substance shall be refilled. A violation of this section is a Class 4 felony.

Source: SL 1970, ch 229, § 9 (k); SDCL, § 39-17-83; SL 1977, ch 189, § 80.


     22-42-2.2.   Oral prescription permitted for Schedule II substance under specified conditions. Notwithstanding § 22-42-2.1, a pharmacist may dispense a controlled drug or substance included in Schedule II upon receipt of an oral prescription of a practitioner who is not a pharmacist, if the practitioner states that:
             (1)      Immediate administration of the controlled substance is necessary for proper treatment of the intended ultimate user;
             (2)      No appropriate alternative treatment is available, including administration of a drug which is not a controlled substance under Schedule II; and
             (3)      It is not reasonably possible for the prescribing practitioner to provide a written prescription to be presented to the person dispensing the substance prior to the dispensing, and the pharmacist reduces the prescription and the information contained in subdivisions (1) to (3) of this section to writing and retains it in conformance with § 34-20B-39.

Source: SL 1970, ch 229, § 9 (k); SDCL Supp, § 39-17-83; SL 1977, ch 189, § 81.


     22-42-2.3.   Mitigating circumstances--Departure from mandatory sentence. The sentencing court may impose a sentence other than that which is required by § 22-42-2 if the court finds that mitigating circumstances exist which require a departure from the mandatory sentence imposed by § 22-42-2. The court's finding of mitigating circumstances allowed by this section and the factual basis relied upon by the court shall be in writing.

Source: SL 1989, ch 201, § 2.


     22-42-2.4.   Conspiracy to commit violation of § 22-42-2--Punishment same as provided under that section. Notwithstanding subdivision 22-3-8(1), the punishment for conspiracy to commit a violation of § 22-42-2 is the same as the punishment for violating § 22-42-2.

Source: SL 1989, ch 202.


     22-42-2.5.   Findings required for sentence imposed without regard to statutory minimum sentence. For any offense under § 22-42-4.3 or § 22-42-2 where the opium derivative or opiate is listed as Schedule I or Schedule II under chapter 34-20B, the court shall impose a sentence without regard to any statutory minimum sentence, only if the court makes written findings that:
             (1)      The defendant does not have a prior conviction for a crime of violence as defined under subdivision 22-1-2(9);
             (2)      The defendant did not use violence or any credible threat of violence or possess a firearm or other dangerous weapon in connection with the offense;
             (3)      The defendant did not induce another participant to use violence or any credible threat of violence or possess a firearm or other dangerous weapon in connection with the offense;
             (4)      The defendant was not an organizer, leader, manager, or supervisor of any other participant in connection with the offense;
             (5)      The defendant truthfully provided to the state any information and evidence in connection with any offense that was part of the same course of conduct or of a common scheme or plan. The defendant shall provide any information before the time of sentencing, but if the defendant provides no relevant or useful information or if the state was previously aware of the information, the court may determine that the defendant has complied with the finding under this subdivision; and
             (6)      The offense did not result in death or serious bodily injury to any person.

Source: SL 2018, ch 137, § 2.


     22-42-3.   Unauthorized manufacture, distribution, counterfeiting or possession of Schedule III substances as felony--Mandatory sentences. Except as authorized by this chapter or chapter 34-20B, no person may manufacture, distribute, or dispense a controlled drug or substance listed in Schedule III; possess with intent to manufacture, distribute, or dispense a substance listed in Schedule III; create or distribute a counterfeit substance listed in Schedule III; or possess with intent to distribute a counterfeit substance listed in Schedule III. A violation of this section is a Class 5 felony. However, the distribution of a substance listed in Schedule III to a minor is a Class 3 felony. A first conviction under this section shall be punished by a mandatory sentence in the state penitentiary or county jail of at least thirty days, which sentence may not be suspended. A second or subsequent conviction under this section shall be punished by a mandatory penitentiary or county jail sentence of at least one year, which sentence may not be suspended. However, a first conviction for distribution to a minor under this section shall be punished by a mandatory sentence in the state penitentiary or county jail of at least ninety days, which sentence may not be suspended. A second or subsequent conviction for distribution to a minor under this section shall be punished by a mandatory sentence in the state penitentiary of at least two years, which sentence may not be suspended. A civil penalty may be imposed, in addition to any criminal penalty, upon a conviction of a violation of this section not to exceed ten thousand dollars.

Source: SL 1970, ch 229, § 10 (a) (1), (2), (b) (2); SL 1971, ch 225, § 2; SDCL Supp, §§ 39-17-88, 39-17-89, 39-17-91; SL 1976, ch 158, § 42-3; SL 1977, ch 189, § 90; SL 1982, ch 179, § 2; SL 1983, ch 178, § 2; SL 1986, ch 185, § 2; SL 2013, ch 101, § 56.


     22-42-4.   Unauthorized manufacture, distribution, counterfeiting or possession of Schedule IV substances as felony--Mandatory sentences. Except as authorized by this chapter or chapter 34-20B, no person may manufacture, distribute, or dispense a controlled drug or substance listed in Schedule IV; possess with intent to manufacture, distribute, or dispense a substance listed in Schedule IV; create or distribute a counterfeit substance listed in Schedule IV; or possess with intent to distribute a counterfeit substance listed in Schedule IV. A violation of this section is a Class 6 felony. However, the distribution of a substance listed in Schedule IV to a minor is a Class 4 felony. A first conviction under this section shall be punished by a mandatory sentence in the state penitentiary or county jail of at least thirty days, which sentence may not be suspended. A second or subsequent conviction under this section shall be punished by a mandatory penitentiary or county jail sentence of at least one year, which sentence may not be suspended. A civil penalty may be imposed, in addition to any criminal penalty, upon a conviction of a violation of this section not to exceed ten thousand dollars. Notwithstanding any other provision of this section, a violation of this section with respect to distribution of Flunitrazepam to a minor is a Class 4 felony, but in all other cases under this section is a Class 5 felony.

Source: SL 1970, ch 229, § 10 (a) (1), (2), (b) (3); SL 1973, ch 261; SDCL Supp, §§ 39-17-88, 39-17-89, 39-17-92; SL 1976, ch 158, § 42-4; SL 1977, ch 189, § 91; SL 1982, ch 179, § 3; SL 1983, ch 178, § 3; SL 1986, ch 185, § 3; SL 1999, ch 174, § 3; SL 2013, ch 101, § 57.


     22-42-4.1.   Prescription required to dispense Schedule III or Schedule IV substance--Refill restricted--Felony. Except when dispensed directly by a practitioner, other than a pharmacist, to an ultimate user, no controlled drug or substance included in Schedule III or Schedule IV may be dispensed without a written or oral prescription. Such prescription may not be filled or refilled more than six months after the date thereof or be refilled more than five times after the date of the prescription, unless renewed by the practitioner. A violation of this section is a Class 5 felony.

Source: SL 1970, ch 229, § 9 (1); SL 1971, ch 224, § 3; SDCL Supp, §§ 39-17-84, 39-17-85; SL 1974, ch 268, § 1; SL 1977, ch 189, § 82.


     22-42-4.2.   Schedule II, III, or IV substances to be distributed only for a medical purpose. No controlled drug or substance included in Schedule II, III, or IV may be distributed or dispensed other than for a medical purpose.

Source: SL 1970, ch 229, § 9 (m); SDCL Supp, § 39-17-85; SL 1977, ch 189, § 83; SL 1980, ch 178.


     22-42-4.3.   Unauthorized manufacture, distribution, counterfeiting, or possession of methamphetamine as felony--Mandatory sentences. Except as authorized by this section or chapter 34-20B, no person may manufacture, distribute, or dispense more than five grams of methamphetamine, a methamphetamine analog or immediate precursor; possess with intent to manufacture, distribute, or dispense methamphetamine, a methamphetamine analog or immediate precursor; create or distribute a counterfeit of methamphetamine, a methamphetamine analog or immediate precursor; or possess with intent to distribute a counterfeit of methamphetamine, a methamphetamine analog or immediate precursor. A violation of this section is a Class 3 felony. However, a violation of this section is a Class 2 felony if the person is in possession of three or more of the following:
             (1)      Three hundred dollars or more in cash;
             (2)      A firearm, or other weapon pursuant to §§ 22-14-6, 22-14-15, 22-14-15.1, 22-14-15.3, and subdivision 22-1-2(8);
             (3)      Bulk materials used for the packaging of methamphetamine;
             (4)      Materials used to manufacture methamphetamine including recipes, precursor chemicals, laboratory equipment, lighting, ventilating or power generating equipment; or
             (5)      Drug transaction records or customer lists.
     A first conviction under this section shall be punished by a mandatory sentence in the state penitentiary of at least one year, which sentence may not be suspended. A second or subsequent conviction under this section shall be punished by a mandatory sentence in the state penitentiary of at least ten years, which sentence may not be suspended.
     The manufacture, distribution, or dispensing of methamphetamine, a methamphetamine analog or immediate precursor to a minor is a Class 1 felony. A first conviction for distribution to a minor under this section shall be punished by a mandatory sentence in the state penitentiary of at least five years, which sentence may not be suspended. A second or subsequent conviction for distribution to a minor under this section shall be punished by a mandatory sentence in the state penitentiary of at least fifteen years, which sentence may not be suspended.
     Probation, suspended imposition of sentence, or suspended execution of sentence, may not form the basis for reducing the mandatory time of incarceration required by this section.
     A civil penalty may be imposed, in addition to any criminal penalty, upon a conviction of a violation of this section not to exceed ten thousand dollars. A conviction for the purposes of the mandatory sentence provisions of this chapter is the acceptance by a court of any plea, other than not guilty, including nolo contendere, or a finding of guilt by a jury or court.

Source: SL 2018, ch 137, § 1.


     22-42-5.   Unauthorized possession of controlled drug or substance as felony. No person may knowingly possess a controlled drug or substance unless the substance was obtained directly or pursuant to a valid prescription or order from a practitioner, while acting in the course of the practitioner's professional practice or except as otherwise authorized by chapter 34-20B. A charge for unauthorized possession of controlled substance when absorbed into the human body as set forth in subdivision 22-42-1(1) shall only be charged under the provisions of § 22-42-5.1. A violation of this section for a substance in Schedules I or II is a Class 5 felony. A violation of this section for a substance in Schedule III and IV is a Class 6 felony.

Source: SL 1970, ch 229, § 10 (c); SL 1971, ch 225, § 3; SDCL Supp, § 39-17-95; SL 1976, ch 158, § 42-5; SL 1985, ch 186; SL 1998, ch 139, § 1; SL 2013, ch 101, § 58.


     22-42-5.1.   Unauthorized ingestion of controlled drug or substance as felony. No person may knowingly ingest a controlled drug or substance or have a controlled drug or substance in an altered state in the body unless the substance was obtained directly or pursuant to a valid prescription or order from a practitioner, while acting in the course of the practitioner's professional practice or except as otherwise authorized by chapter 34-20B. A violation of this section for a substance in Schedules I or II is a Class 5 felony. A violation of this section for a substance in Schedules III or IV is a Class 6 felony.

Source: SL 2013, ch 101, § 54.


     22-42-6.   Possession of marijuana prohibited--Degrees according to amount. No person may knowingly possess marijuana. It is a Class 1 misdemeanor to possess two ounces of marijuana or less. It is a Class 6 felony to possess more than two ounces of marijuana but less than one-half pound of marijuana. It is a Class 5 felony to possess one-half pound but less than one pound of marijuana. It is a Class 4 felony to possess one to ten pounds of marijuana. It is a Class 3 felony to possess more than ten pounds of marijuana. A civil penalty may be imposed, in addition to any criminal penalty, upon a conviction of a violation of this section not to exceed ten thousand dollars.

Source: SL 1970, ch 229, § 10 (c); SL 1971, ch 225, § 3; SL 1974, ch 269; SDCL Supp, §§ 39-17-95, 39-17-96; SL 1976, ch 158, § 42-6; SL 1977, ch 189, § 92; SL 1978, ch 158, § 16; SL 1983, ch 179; SL 1985, ch 187; SL 1986, ch 185, § 4; SL 1990, ch 166; SL 1998, ch 139, § 2.


     22-42-7.   Distribution or possession with intent to distribute specified amounts of marijuana. The distribution, or possession with intent to distribute, of less than one-half ounce of marijuana without consideration is a Class 1 misdemeanor; otherwise, the distribution, or possession with intent to distribute, of one ounce or less of marijuana is a Class 6 felony. The distribution, or possession with intent to distribute, of more than one ounce but less than one-half pound of marijuana is a Class 5 felony. The distribution, or possession with intent to distribute, of one-half pound but less than one pound of marijuana is a Class 4 felony. The distribution, or possession with intent to distribute, of one pound or more of marijuana is a Class 3 felony. The distribution, or possession with intent to distribute, of less than one-half ounce of marijuana to a minor without consideration is a Class 6 felony; otherwise, the distribution, or possession with intent to distribute, of one ounce or less of marijuana to a minor is a Class 5 felony. The distribution, or possession with intent to distribute, of more than one ounce but less than one-half pound of marijuana to a minor is a Class 4 felony. The distribution, or possession with intent to distribute, of one-half pound but less than one pound of marijuana to a minor is a Class 3 felony. The distribution, or possession with intent to distribute, of one pound or more of marijuana to a minor is a Class 2 felony. A first conviction of a felony under this section shall be punished by a mandatory sentence in the state penitentiary or county jail of at least thirty days, which sentence may not be suspended. A second or subsequent conviction of a felony under this section shall be punished by a mandatory sentence of at least one year. Conviction of a Class 1 misdemeanor under this section shall be punished by a mandatory sentence in county jail of not less than fifteen days, which sentence may not be suspended. A civil penalty, not to exceed ten thousand dollars, may be imposed, in addition to any criminal penalty, upon a conviction of a felony violation of this section.

Source: SL 1970, ch 229, § 10 (a) (1), (2), (b) (1); SL 1971, ch 225, § 1; SDCL Supp, §§ 39-17-88 to 39-17-90; SL 1976, ch 158, § 42-7; SL 1977, ch 189, § 93; SL 1982, ch 179, § 4; SL 1984, ch 171; SL 1986, ch 185, § 5; SL 1998, ch 139, § 3; SL 2003, ch 129, § 1; SL 2008, ch 112, § 1.


     22-42-8.   Obtaining possession of controlled substance by theft, misrepresentation, forgery, or fraud. Any person who knowingly obtains possession of a controlled drug or substance by theft, misrepresentation, forgery, fraud, deception, or subterfuge is guilty of a Class 4 felony.

Source: SL 1970, ch 229, § 10 (e) (3); SDCL Supp, § 39-17-106; SL 1977, ch 189, § 85; SL 1984, ch 239, § 3; SL 1990, ch 167; SL 1998, ch 139, § 4.


     22-42-9.   Manufacture, distribution, or possession of equipment for making counterfeit controlled substance as felony. Any person who knowingly makes, distributes, or possesses any punch, die, plate, or other thing designed to print or reproduce the trademark, trade name, or other identifying mark of another on any drug, or container or label thereof so as to make such drug a counterfeit controlled drug or substance is guilty of a Class 5 felony.

Source: SL 1970, ch 229, § 10 (e) (5); SDCL Supp, § 39-17-108; SL 1977, ch 189, § 86.


     22-42-10.   Keeping place for use or sale of controlled substances as felony. Any person who keeps or maintains a place which is resorted to by persons using controlled drugs and substances for the purpose of using such substances, or which is used for the keeping or selling of such substances, is guilty of a Class 5 felony.

Source: SL 1970, ch 229, § 10 (d) (6); SDCL Supp, § 39-17-102; SL 1977, ch 189, § 84.


     22-42-11.   Inhabiting room where controlled substances illegally stored or used as misdemeanor. Any person who inhabits a room knowing that any controlled drug or substance is being illegally stored or used therein, is guilty of a Class 1 misdemeanor.

Source: SL 1970, ch 229, § 10 (j); SDCL Supp, § 39-17-110; SL 1977, ch 189, § 87.


     22-42-12.   Civil fine for violation of regulatory provisions--Additional fine remitted to drug abuse or rehabilitation program. Any person who violates any provision of §§ 22-42-2.1, 22-42-4.1, 22-42-4.2, and 22-42-10, is punishable by a civil fine of not more than ten thousand dollars. The court may, however, impose an additional fine of not more than ten thousand dollars, which shall be remitted to a drug abuse prevention and rehabilitation program authorized under § 34-3B-1.

Source: SL 1970, ch 229, § 10 (d) (7); SDCL Supp, § 39-17-103; SL 1977, ch 189, § 119; SL 1978, ch 158, § 17; SL 1995, ch 125.


     22-42-13.   Criminal penalties in addition to civil and administrative penalties. Any penalty imposed for a violation of any provision of §§ 22-42-2 to 22-42-6, inclusive, or §§ 22-42-8 to 22-42-10, inclusive, shall be in addition to, and not in lieu of, any civil or administrative penalty or sanction authorized by law.

Source: SL 1970, ch 229, § 10 (g); SDCL Supp, § 39-17-112; SL 1977, ch 189, § 123.


     22-42-14.   Repealed by SL 1982, ch 262, § 1


     22-42-15.   Ingesting substance, except alcoholic beverages, for the purpose of becoming intoxicated as misdemeanor--Venue for violation. Any person who intentionally ingests, inhales, or otherwise takes into the body any substance, except alcoholic beverages as defined in § 35-1-1, for purposes of becoming intoxicated, unless such substance is prescribed by a practitioner of the medical arts lawfully practicing within the scope of the practitioner's practice, is guilty of a Class 1 misdemeanor. The venue for a violation of this section exists in either the jurisdiction in which the substance was ingested, inhaled, or otherwise taken into the body or the jurisdiction in which the substance was detected in the body of the accused.

Source: SL 1981, ch 182, § 1; SL 1982, ch 180; SL 2001, ch 117, § 1.


     22-42-15.1.   Possession, sale, or distribution of certain substances for the purpose of intoxication as misdemeanor. Any person who possesses, possesses with intent to distribute, sells, or distributes a substance knowing that it is to be used in violation of § 22-42-15 is guilty of a Class 1 misdemeanor.

Source: SL 2011, ch 118, § 1.


     22-42-16.   Delivery or manufacture of noncontrolled substance represented to be controlled substance as felony. No person may deliver or possess with intent to deliver or knowingly manufacture any noncontrolled substance which the person represents to be a substance controlled under the provisions of this chapter. Any person who violates this section is guilty of a Class 6 felony.

Source: SL 1981, ch 183; SL 1982, ch 181; SL 1982, ch 182; SL 1998, ch 139, § 5.


     22-42-17.   Controlled substances obtained concurrently from different medical practitioners--Misdemeanor. Any person who knowingly obtains a controlled substance from a medical practitioner and who knowingly withholds information from that medical practitioner that he has obtained a controlled substance of similar therapeutic use in a concurrent time period from another medical practitioner is guilty of a Class 1 misdemeanor.

Source: SL 1990, ch 168.


     22-42-18.   Definitions of terms used in §§ 22-42-19 to 22-42-21, inclusive. Terms used in §§ 22-42-19 to 22-42-21, inclusive, mean:
             (1)      "Playground," any outdoor facility, including any appurtenant parking lot, intended for recreation, open to the public, any portion of which contains apparatus intended for the recreation of children such as slides, swing sets, and teeterboards;
             (2)      "Video arcade facility," any facility legally accessible to persons under eighteen years of age, which provides for the use of pinball and video machines for amusement and which contains one or more such machines; and
             (3)      "Youth center," any recreational facility or gymnasium, including any appurtenant parking lot, intended primarily for use by persons under eighteen years of age, which regularly provides athletic, civic, or cultural activities.

Source: SL 1992, ch 168, § 1.


     22-42-19.   Drug free zones created--Violation as felony--Sentence--Defense. Any person who commits a violation of § 22-42-2, 22-42-3, or 22-42-4, or a felony violation of § 22-42-7, if such activity has taken place:
             (1)      In, on, or within one thousand feet of real property comprising a public or private elementary or secondary school or a playground; or
             (2)      In, on, or within five hundred feet of real property comprising a public or private youth center, public swimming pool, or video arcade facility; is guilty of a Class 4 felony. The sentence imposed for a conviction under this section carries a minimum sentence of imprisonment in the state penitentiary of five years. Any sentence imposed under this section shall be consecutive to any other sentence imposed for the principal felony. The court may not place on probation, suspend the execution of the sentence, or suspend the imposition of the sentence of any person convicted of a violation of this section. However, the sentencing court may impose a sentence other than that specified in this section if the court finds that mitigating circumstances exist which require a departure from the mandatory sentence provided for in this section. The court's finding of mitigating circumstances allowed by this section and the factual basis relied upon by the court shall be in writing.
     It is not a defense to the provisions of this section that the defendant did not know the distance involved. It is not a defense to the provisions of this section that school was not in session.

Source: SL 1992, ch 168, § 2; SL 1998, ch 140, § 1.


     22-42-20.   Violation of drug-free zones as separate count in indictment. A violation of § 22-42-19 shall be charged in the indictment or information as a separate count in addition to the principal felony charged to have been committed.

Source: SL 1992, ch 168, § 3.


     22-42-21.   Lack of knowledge as to age of minor not a defense. It is not a defense to the provisions of this chapter regarding distribution of a controlled substance or marijuana to a minor that the defendant did not know that the recipient was a minor, even if such lack of knowledge was reasonable.

Source: SL 1992, ch 168, § 4.


     22-42-22.   Possession of Salvia divinorum or salvinorin A prohibited--Felony or misdemeanor. No person may knowingly possess Salvia divinorum or salvinorin A. It is a Class 1 misdemeanor to possess two ounces or less of Salvia divinorum or salvinorin A. It is a Class 6 felony to possess more than two ounces of Salvia divinorum or salvinorin A.

Source: SL 2009, ch 119, § 1, eff. Mar. 10, 2009.


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