Chapter 21 - Criminal Code
Article 36a - Crimes Involving Controlled Substances
Current through end of 2010 Legislative Session
21-36a01 Definitions
21-36a02 Application.
21-36a03 Manufacturing controlled substances and analogs prohibited.
21-36a04 Decontamination costs charged to defendant.
21-36a05 Cultivation of controlled substances and analogs prohibited.
21-36a06 Possession of opiates, opium, narcotic drugs, stimulants prohibited.
21-36a07 Use of communication facilities to facilitate drug transactions prohibited.
21-36a08 Unlawfully obtaining and distributing prescription only drug prohibited.
21-36a09 Possession of methamphetamine precursors; drug paraphernalia prohibited.
21-36a10 Unlawful advertising, marketing, labeling, distribution or possession with intent to distribute methamphetamine precursors or drug paraphernalia
21-36a11 Drug paraphernalia, factors to consider.
21-36a12 Abusing toxic vapors.
21-36a13 Simulated controlled substances, prohibited acts.
21-36a14 Unlawful distribution or possession of non-controlled substances.
21-36a15 Controlled substances analog; report to board of pharmacy.
21-36a16 Unlawful receipt of controlled substance proceeds.
21-36a17 Statutes applicable and uniform throughout state.
As used in sections 1 through 17, and amendments thereto:
(a) "Controlled substances" means any drug, substance or immediate precursor included in any of the schedules designated in K.S.A. 65-4105, 65-4107, 65-4109, 65-4111 and 65-4113, and amendments thereto.
(b) (1) "Controlled substance analog" means a substance that is intended for human consumption, and:
(A) The chemical structure of which is substantially similar to the chemical structure of a controlled substance listed in or added to the schedules designated in K.S.A. 65-4105 or 65-4107, and amendments thereto;
(B) which has a stimulant, depressant or hallucinogenic effect on the central nervous system substantially similar to the stimulant, depressant or hallucinogenic effect on the central nervous system of a controlled substance included in the schedules designated in K.S.A. 65-4105 or 65-4107, and amendments thereto; or
(C) with respect to a particular individual, which the individual represents or intends to have a stimulant, depressant or hallucinogenic effect on the central nervous system substantially similar to the stimulant, depressant or hallucinogenic effect on the central nervous system of a controlled substance included in the schedules designated in K.S.A. 65-4105 or 65-4107, and amendments thereto.
(2) "Controlled substance analog" does not include:
(A) A controlled substance;
(B) a substance for which there is an approved new drug application; or
(C) a substance with respect to which an exemption is in effect for investigational use by a particular person under section 505 of the federal food, drug, and cosmetic act (21 U.S.C. 355) to the extent conduct with respect to the substance is permitted by the exemption.
(c) "Cultivate" means the planting or promotion of growth of five or more plants which contain or can produce controlled substances.
(d) "Distribute" means the actual, constructive or attempted transfer from one person to another of some item whether or not there is an agency relationship. "Distribute" includes, but is not limited to, sale, offer for sale or any act that causes some item to be transferred from one person to another. "Distribute" does not include acts of administering, dispensing or prescribing a controlled substance as authorized by the pharmacy act of the state of Kansas, the uniform controlled substances act, or otherwise authorized by law.
(e) "Drug" means:
(1) Substances recognized as drugs in the official United States pharmacopoeia, official homeopathic pharmacopoeia of the United States or official national formulary or any supplement to any of them;
(2) substances intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or animals;
(3) substances, other than food, intended to affect the structure or any function of the body of man or animals; and
(4) substances intended for use as a component of any article specified in paragraph (1), (2) or (3). It does not include devices or their components, parts or accessories.
(f) "Drug paraphernalia" means all equipment and materials of any kind which are used, or primarily intended or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance and in violation of this act. "Drug paraphernalia" shall include, but is not limited to:
(1) Kits used or intended for use in planting, propagating, cultivating, growing or harvesting any species of plant which is a controlled substance or from which a controlled substance can be derived;
(2) kits used or intended for use in manufacturing, compounding, converting, producing, processing or preparing controlled substances;
(3) isomerization devices used or intended for use in increasing the potency of any species of plant which is a controlled substance;
(4) testing equipment used or intended for use in identifying or in analyzing the strength, effectiveness or purity of controlled substances;
(5) scales and balances used or intended for use in weighing or measuring controlled substances;
(6) diluents and adulterants, including, but not limited to, quinine hydrochloride, mannitol, mannite, dextrose and lactose, which are used or intended for use in cutting controlled substances;
(7) separation gins and sifters used or intended for use in removing twigs and seeds from or otherwise cleaning or refining marijuana;
(8) blenders, bowls, containers, spoons and mixing devices used or intended for use in compounding controlled substances;
(9) capsules, balloons, envelopes, bags and other containers used or intended for use in packaging small quantities of controlled substances;
(10) containers and other objects used or intended for use in storing or concealing controlled substances;
(11) hypodermic syringes, needles and other objects used or intended for use in parenterally injecting controlled substances into the human body;
(12) objects used or primarily intended or designed for use in ingesting, inhaling or otherwise introducing marijuana, cocaine, hashish, hashish oil, phencyclidine (PCP), methamphetamine or amphetamine into the human body, such as:
(A) Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads or punctured metal bowls;
(B) water pipes, bongs or smoking pipes designed to draw smoke through water or another cooling device;
(C) carburetion pipes, glass or other heat resistant tubes or any other device used or intended to be used, designed to be used to cause vaporization of a controlled substance for inhalation;
(D) smoking and carburetion masks;
(E) roach clips, objects used to hold burning material, such as a marijuana cigarette, that has become too small or too short to be held in the hand;
(F) miniature cocaine spoons and cocaine vials;
(G) chamber smoking pipes;
(H) carburetor smoking pipes;
(I) electric smoking pipes;
(J) air-driven smoking pipes;
(K) chillums;
(L) bongs;
(M) ice pipes or chillers;
(N) any smoking pipe manufactured to disguise its intended purpose;
(O) wired cigarette papers; or
(P) cocaine freebase kits.
(g) "Immediate precursor" means a substance which the board of pharmacy has found to be and by rules and regulations designates as being the 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 substance, the control of which is necessary to prevent, curtail or limit manufacture.
(h) "Isomer" means all enantiomers and diastereomers.
(i) "Manufacture" means the production, preparation, propagation, compounding, conversion or processing of a controlled substance either directly or indirectly or by extraction from substances of natural origin or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis and includes any packaging or repackaging of the substance or labeling or relabeling of its container. "Manufacture" does not include the preparation or compounding of a controlled substance by an individual for the individual's own lawful use or the preparation, compounding, packaging or labeling of a controlled substance:
(1) By a practitioner or the practitioner's agent pursuant to a lawful order of a practitioner as an incident to the practitioner's administering or dispensing of a controlled substance in the course of the practitioner's professional practice; or
(2) by a practitioner or by the practitioner's authorized agent under such practitioner's supervision for the purpose of or as an incident to research, teaching or chemical analysis or by a pharmacist or medical care facility as an incident to dispensing of a controlled substance.
(j) "Marijuana" means all parts of all varieties of the plant Cannabis whether growing or not, the seeds thereof, the resin extracted from any part of the plant and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or resin. "Marijuana" does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture or preparation of the mature stalks, except the resin extracted therefrom, fiber, oil or cake or the sterilized seed of the plant which is incapable of germination.
(k) "Minor" means a person under 18 years of age.
(l) "Narcotic drug" means any of the following whether produced directly or indirectly by extraction from substances of vegetable origin or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis:
(1) Opium and opiate and any salt, compound, derivative or preparation of opium or opiate;
(2) any salt, compound, isomer, derivative or preparation thereof which is chemically equivalent or identical with any of the substances referred to in paragraph (1) but not including the isoquinoline alkaloids of opium;
(3) opium poppy and poppy straw;
(4) coca leaves and any salt, compound, derivative or preparation of coca leaves and any salt, compound, isomer, derivative or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions of coca leaves which do not contain cocaine or ecgonine.
(m) "Opiate" means any substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having addiction-forming or addiction-sustaining liability. "Opiate" does not include, unless specifically designated as controlled under K.S.A. 65-4102, and amendments thereto, the dextrorotatory isomer of 3-methoxy-n-methylmorphinan and its salts (dextromethorphan). "Opiate" does include its racemic and levorotatory forms.
(n) "Opium poppy" means the plant of the species Papaver somniferum l. except its seeds.
(o) "Person" means individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership, association or any other legal entity.
(p) "Poppy straw" means all parts, except the seeds, of the opium poppy, after mowing.
(q) "Possession" means having joint or exclusive control over an item with knowledge of and intent to have such control or knowingly keeping some item in a place where the person has some measure of access and right of control.
(r) "School property" means property upon which is located a structure used by a unified school district or an accredited nonpublic school for student instruction or attendance or extracurricular activities of pupils enrolled in kindergarten or any of the grades one through 12. This definition shall not be construed as requiring that school be in session or that classes are actually being held at the time of the offense or that children must be present within the structure or on the property during the time of any alleged criminal act. If the structure or property meets the above definition, the actual use of that structure or property at the time alleged shall not be a defense to the crime charged or the sentence imposed.
(s) "Simulated controlled substance" means any product which identifies itself by a common name or slang term associated with a controlled substance and which indicates on its label or accompanying promotional material that the product simulates the effect of a controlled substance.
History: L. 2009, ch. 32, § 1, L. 2010, ch. 109, § 13; April 29.
(a) Prosecutions for crimes committed prior to July 1, 2009, shall be governed by the law in effect at the time the crime was committed. For purposes of this section, a crime was committed prior to July 1, 2009, if any element of the crime occurred prior thereto.
(b) The prohibitions of this act shall apply unless the conduct prohibited is authorized by the pharmacy act of the state of Kansas, the uniform controlled substances act or otherwise authorized by law.
History: L. 2009, ch. 32, § 2, July 1.
21-36a03. Manufacturing controlled substances and analogs prohibited.
(a) It shall be unlawful for any person to manufacture any controlled substance or controlled substance analog.
(b) Violation or attempted violation of subsection (a) is a drug severity level 1 felony. The provisions of subsection (d) of K.S.A. 21-3301, and amendments thereto, shall not apply to a violation of attempting to unlawfully manufacture any controlled substance pursuant to this section.
(c) For persons arrested and charged under this section, bail shall be at least $50,000 cash or surety, unless the court determines, on the record, that the defendant is not likely to re-offend, the court imposes pretrial supervision, or the defendant agrees to participate in a licensed or certified drug treatment program.
(d) The sentence of a person who violates this section shall not be subject to statutory provisions for suspended sentence, community service work or probation.
(e) The sentence of a person who violates this section or K.S.A. 65-4159 prior to its repeal, shall not be reduced because these sections prohibit conduct identical to that prohibited by K.S.A. 65-4161 or 65-4163, prior to such sections repeal, or section 5, and amendments thereto.
History: L. 2009, ch. 32, § 3, July 1.
21-36a04. Decontamination costs charged to defendant.
All costs and expenses resulting from the seizure, disposition and decontamination of an unlawful manufacturing site shall be assessed as costs against the defendant.
History: L. 2009, ch. 32, § 4, July 1.
21-36a05. Cultivation of controlled substances and analogs prohibited.
(a) It shall be unlawful for any person to cultivate, distribute or possess with the intent to distribute any of the following controlled substances or controlled substance analogs thereof;
(1) Opiates, opium or narcotic drugs, or any stimulant designated in subsection (d)(1), (d)(3) or (f)(1) of K.S.A. 65-4107, and amendments thereto;
(2) any depressant designated in subsection (e) of K.S.A. 65-4105, subsection (e) of K.S.A. 65-4107, subsection (b) or (c) of K.S.A. 65-4109 or subsection (b) of K.S.A. 65-4111, and amendments thereto;
(3) any stimulant designated in subsection (f) of K.S.A. 65-4105, subsection (d)(2), (d)(4) or (f)(2) of K.S.A. 65-4107 or subsection (e) of K.S.A. 65-4109, and amendments thereto;
(4) any hallucinogenic drug designated in subsection (d) of K.S.A. 65-4105, subsection (g) of K.S.A. 65-4107 or subsection (g) of K.S.A. 65-4109, and amendments thereto;
(5) any substance designated in subsection (g) of K.S.A. 65-4105 and subsection (c), (d), (e), (f) or (g) of K.S.A. 65-4111, and amendments thereto; or
(6) any anabolic steroids as defined in subsection (f) of K.S.A. 65-4109, and amendments thereto.
(b) It shall be unlawful for any person to distribute or possess with the intent to distribute a controlled substance or a controlled substance analog designated in K.S.A. 65-4113, and amendments thereto.
(c) (1) Violation of subsection (a) is a drug severity level 3 felony, except that:
(A) Violation of subsection (a) is a drug severity level 2 felony if the trier of fact makes a finding that the offender is 18 or more years of age and the substance was distributed to or possessed with intent to distribute to a minor or on or within 1,000 feet of any school property;
(B) violation of subsection (a)(1) is a drug severity level 2 felony if that person has one prior conviction under subsection (a)(1), under K.S.A. 65-4161 prior to its repeal, or under a substantially similar offense from another jurisdiction; and
(C) violation of subsection (a)(1) is a drug severity level 1 felony if that person has two prior convictions under subsection (a)(1), under K.S.A. 65-4161 prior to its repeal, or under a substantially similar offense from another jurisdiction.
(2) Violation of subsection (b) is a class A nonperson misdemeanor, except that, violation of subsection (b) is a drug severity level 4 felony if the substance was distributed to or possessed with the intent to distribute to a child under 18 years of age.
(d) It shall not be a defense to charges arising under this section that the defendant was acting in an agency relationship on behalf of any other party in a transaction involving a controlled substance.
History: L. 2009, ch. 32, § 5, L. 2010, ch. 109, § 14, April 29; L. 2010, ch. 155, § 25 June 3.
21-36a06. Possession of opiates, opium, narcotic drugs, stimulants prohibited.
(a) It shall be unlawful for any person to possess any opiates, opium or narcotic drugs, or any stimulant designated in subsection (d)(1), (d)(3) or (f)(1) of K.S.A. 65-4107, and amendments thereto, or a controlled substance analog thereof.
(b) It shall be unlawful for any person to possess any of the following controlled substances or controlled substance analogs thereof:
(1) Any depressant designated in subsection (e) of K.S.A. 65-4105, subsection (e) of K.S.A. 65-4107, subsection (b) or (c) of K.S.A. 65-4109 or subsection (b) of K.S.A. 65-4111, and amendments thereto;
(2) any stimulant designated in subsection (f) of K.S.A. 65-4105, subsection (d)(2), (d)(4) or (f)(2) of K.S.A. 65-4107 or subsection (e) of K.S.A. 65-4109, and amendments thereto;
(3) any hallucinogenic drug designated in subsection (d) of K.S.A. 65-4105, subsection (g) of K.S.A. 65-4107 or subsection (g) of K.S.A. 65-4109, and amendments thereto;
(4) any substance designated in subsection (g) of K.S.A. 65-4105 and subsection (c), (d), (e), (f) or (g) of K.S.A. 65-4111, and amendments thereto; or
(5) any anabolic steroids as defined in subsection (f) of K.S.A. 65-4109, and amendments thereto.
(c) (1) Violation of subsection (a) is a drug severity level 4 felony;
(2) violation of subsection (b) is a class A nonperson misdemeanor, except that, violation of subsection (b) is a drug severity level 4 felony if that person has a prior conviction under such subsection, under K.S.A. 65-4162 prior to its repeal, under a substantially similar offense from another jurisdiction, or under any city ordinance or county resolution for a substantially similar offense if the substance involved was 3, 4-methylenedioxymethamphetamine (MDMA), marijuana or tetrahydrocannabinol as designated in subsection (d) of K.S.A. 65-4105, and amendments thereto.
(d) It shall not be a defense to charges arising under this section that the defendant was acting in an agency relationship on behalf of any other party in a transaction involving a controlled substance.
History: L. 2009, ch. 32, § 6, July 1.
21-36a07. Use of communication facilities to facilitate drug transactions prohibited.
(a) It shall be unlawful for any person to knowingly or intentionally use any communication facility:
(1) In committing, causing, or facilitating the commission of any felony under section 3, 5 or 6, and amendments thereto; or
(2) in any attempt to commit, any conspiracy to commit, or any criminal solicitation of any felony under section 3, 5 or 6, and amendments thereto. Each separate use of a communication facility may be charged as a separate offense under this subsection.
(b) Violation of subsection (a) is a nondrug severity level 8, nonperson felony.
(c) As used in this section, "communication facility" means any and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures or sounds of all kinds and includes telephone, wire, radio, computer, computer networks, beepers, pagers and all other means of communication.
History: L. 2009, ch. 32, § 7, July 1.
21-36a08. Unlawfully obtaining and distributing prescription only drug prohibited.
(a) Unlawfully obtaining and distributing a prescription-only drug is:
(1) Making, altering or signing of a prescription order by a person other than a practitioner or a mid-level practitioner;
(2) distribution of a prescription order, knowing it to have been made, altered or signed by a person other than a practitioner or a mid-level practitioner;
(3) possession of a prescription order with intent to distribute it and knowing it to have been made, altered or signed by a person other than a practitioner or a mid-level practitioner;
(4) possession of a prescription-only drug knowing it to have been obtained pursuant to a prescription order made, altered or signed by a person other than a practitioner or a mid-level practitioner; or
(5) providing false information to a practitioner or mid-level practitioner for the purpose of obtaining a prescription-only drug.
(b) (1) Unlawfully obtaining and distributing a prescription-only drug is a class A nonperson misdemeanor, except that:
(2) Unlawfully obtaining and distributing a prescription-only drug is a nondrug severity level 6, nonperson felony if that person is distributing, and such distribution involves selling, possessing with the intent to sell, or offering for sale the prescription-only drug so obtained; and
(3) Unlawfully obtaining and distributing a prescription-only drug is a nondrug severity level 9 nonperson felony if that person has a prior conviction of paragraph (1) or K.S.A. 21-4214 prior to its repeal.
(c) As used in this section:
(1) "Pharmacist," "practitioner," "mid-level practitioner" and "prescription-only drug" shall have the meanings ascribed thereto by K.S.A. 65-1626, and amendments thereto.
(2) "Prescription order" means an order transmitted in writing, orally, telephonically or by other means of communication for a prescription-only drug to be filled by a pharmacist. "Prescription order" does not meana drug dispensed pursuant to such an order.
(d) The provisions of this section shall not be applicable to prosecutions involving prescription-only drugs which could be bought under section 5 or 6, and amendments thereto.
History: L. 2009, ch. 32, § 8, July 1.
21-36a09. Possession of methamphetamine precursors; drug paraphernalia prohibited.
(a) It shall be unlawful for any person to possess ephedrine, pseudoephedrine, red phosphorus, lithium metal, sodium metal, iodine, anhydrous ammonia, pressurized ammonia or phenylpropanolamine, or their salts, isomers or salts of isomers with an intent to use the product to manufacture a controlled substance.
(b) It shall be unlawful for any person to use or possess with intent to use any drug paraphernalia to:
(1) Manufacture, cultivate, plant, propagate, harvest, test, analyze or distribute a controlled substance; or
(2) store, contain, conceal, inject, ingest, inhale or otherwise introduce a controlled substance into the human body.
(c) It shall be unlawful for any person to use or possess with intent to use anhydrous ammonia or pressurized ammonia in a container not approved for that chemical by the Kansas department of agriculture.
(d) It shall be unlawful for any person to purchase, receive or otherwise acquire at retail any compound, mixture or preparation containing more than 3.6 grams of pseudoephedrine base or ephedrine base in any single transaction or any compound, mixture or preparation containing more than nine grams of pseudoephedrine base or ephedrine base within any 30-day period.
(e) (1) Violation of subsection (a) is a drug severity level 2 felony;
(2) violation of subsection (b)(1) is a drug severity level 4 felony, except that violation of subsection (b)(1) is a class A nonperson misdemeanor if the drug paraphernalia was used to cultivate fewer than five marijuana plants;
(3) violation of subsection (b)(2) is a class A nonperson misdemeanor;
(4) violation of subsection (c) is a drug severity level 4 felony;
(5) violation of subsection (d) is a class A nonperson misdemeanor.
(f) For persons arrested and charged under subsection (a) or (c), bail shall be at least $50,000 cash or surety, unless the court determines, on the record, that the defendant is not likely to reoffend, the court imposes pretrial supervision or the defendant agrees to participate in a licensed or certified drug treatment program.
History: L. 2009, ch. 32, § 9, July 1.
21-36a10. Unlawful advertising, marketing, labeling, distribution or possession with intent to distribute methamphetamine precursors or drug paraphernalia.
(a) It shall be unlawful for any person to advertise, market, label, distribute or possess with the intent to distribute:
(1) Any product containing ephedrine, pseudoephedrine, red phosphorus, lithium metal, sodium metal, iodine, anhydrous ammonia, pressurized ammonia or phenylpropanolamine or their salts, isomers or salts of isomers if the person knows or reasonably should know that the purchaser will use the product to manufacture a controlled substance; or
(2) any product containing ephedrine, pseudoephedrine or phenylpropanolamine, or their salts, isomers or salts of isomers for indication of stimulation, mental alertness, weight loss, appetite control, energy or other indications not approved pursuant to the pertinent federal over-
the-counter drug final monograph or tentative final monograph or approved new drug application.
(b) It shall be unlawful for any person to distribute, possess with the intent to distribute or manufacture with intent to distribute any drug paraphernalia, knowing or under circumstances where one reasonably should know that it will be used to manufacture or distribute a controlled substance in violation of K.S.A. 2009 Supp. 21-36a01 through 21-36a17, and amendments thereto.
(c) It shall be unlawful for any person to distribute, possess with intent to distribute or manufacture with intent to distribute any drug paraphernalia, knowing or under circumstances where one reasonably should know, that it will be used as such in violation of K.S.A. 2009 Supp. 21-36a01 through 21-36a17, and amendments thereto, except subsection (b) of K.S.A. 2009 Supp. 21-36a06, and amendments thereto.
(d) It shall be unlawful for any person to distribute, possess with intent to distribute or manufacture with intent to distribute any drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used as such in violation of subsection (b) of K.S.A. 2009 Supp. 21-36a06, and amendments thereto.
(e) (1) Violation of subsection (a) is a drug severity level 2 felony;
(2) violation of subsection (b) is a drug severity level 4 felony, except that violation of subsection (b) is a drug severity level 3 felony if the trier of fact makes a finding that the offender is 18 or more years of age and the offender distributed or caused drug paraphernalia to be distributed to a minor or on or within 1,000 feet of any school property;
(3) violation of subsection (c) is a severity level 9, nonperson felony, except that violation of subsection (c) is a drug severity level 4 felony if the trier of fact makes a finding that the offender is 18 or more years of age and the offender distributed or caused drug paraphernalia to be distributed to a minor or on or within 1,000 feet of any school property;
(4) violation of subsection (d) is a class A nonperson misdemeanor, except that violation of subsection (d) is a severity level 9, nonperson felony if the trier of fact makes a finding that the offender is 18 or more years of age and the offender distributed or caused drug paraphernalia to be distributed to a minor or on or within 1,000 feet of any school property.
(f) For persons arrested and charged under subsection (a), bail shall be at least $50,000 cash or surety, unless the court determines, on the record, that the defendant is not likely to re-offend, the court imposes pretrial supervision or the defendant agrees to participate in a licensed or certified drug treatment program.
(g) As used in this section, "or under circumstances where one reasonably should know" that an item will be used in violation of this section, shall include, but not be limited to, the following:
(1) Actual knowledge from prior experience or statements by customers;
(2) inappropriate or impractical design for alleged legitimate use;
(3) receipt of packaging material, advertising information or other manufacturer supplied information regarding the item’s use as drug paraphernalia; or
(4) receipt of a written warning from a law enforcement or prosecutorial agency having jurisdiction that the item has been previously determined to have been designed specifically for use as drug paraphernalia.
History: L. 2009, ch. 32, § 10, L. 2010, ch. 155, § 5, June 3.
21-36a11. Drug paraphernalia, factors to consider.
(a) In determining whether an object is drug paraphernalia, a court or other authority shall consider, in addition to all other logically relevant factors, the following:
(1) Statements by an owner or person in control of the object concerning its use;
(2) prior convictions, if any, of an owner or person in control of the object, under any state or federal law relating to any controlled substance;
(3) the proximity of the object, in time and space, to a direct violation of sections 1 through 17, and amendments thereto;
(4) the proximity of the object to controlled substances;
(5) the existence of any residue of controlled substances on the object;
(6) direct or circumstantial evidence of the intent of an owner or person in control of the object, to deliver it to a person the owner or person in control of the object knows, or should reasonably know, intends to use the object to facilitate a violation of sections 1 through 17, and amendments thereto. The innocence of an owner or person in control of the object as to a direct violation of sections 1 through 17, and amendments thereto, shall not prevent a finding that the object is intended for use as drug paraphernalia;
(7) oral or written instructions provided with the object concerning its use;
(8) descriptive materials accompanying the object which explain or depict its use;
(9) national and local advertising concerning the object's use;
(10) the manner in which the object is displayed for sale;
(11) whether the owner or person in control of the object is a legitimate supplier of similar or related items to the community, such as a distributor or dealer of tobacco products;
(12) direct or circumstantial evidence of the ratio of sales of the object or objects to the total sales of the business enterprise;
(13) the existence and scope of legitimate uses for the object in the community;
(14) expert testimony concerning the object's use;
(15) any evidence that alleged paraphernalia can or has been used to store a controlled substance or to introduce a controlled substance into the human body as opposed to any legitimate use for the alleged paraphernalia; or
(16) advertising of the item in magazines or other means which specifically glorify, encourage or espouse the illegal use, manufacture, distribution or cultivation of controlled substances.
(b) The fact that an item has not yet been used or did not contain a controlled substance at the time of the seizure is not a defense to a charge that the item was possessed with the intention for use as drug paraphernalia.
History: L. 2009, ch. 32, § 11, July 1.
21-36a12. Abusing toxic vapors.
(a) Unlawful abuse of toxic vapors is possessing, buying, using, smelling or inhaling toxic vapors with the intent of causing a condition of euphoria, excitement, exhilaration, stupefaction or dulled senses of the nervous system.
(b) Unlawful abuse of toxic vapors is a class B nonperson misdemeanor.
(c) In addition to any sentence or fine imposed, the court shall enter an order which requires that the person enroll in and successfully complete an alcohol and drug safety action education program, treatment program or both such programs as provided in K.S.A. 8-1008, and amendments thereto.
(d) This section shall not apply to the inhalation of anesthesia or other substances for medical or dental purposes.
(e) For the purposes of this section, the term "toxic vapors" means vapors from the following substances or products containing such substances:
(1) Alcohols, including methyl, isopropyl, propyl or butyl;
(2) aliphatic acetates, including ethyl, methyl, propyl or methyl cellosolve acetate;
(3) acetone;
(4) benzene;
(5) carbon tetrachloride;
(6) cyclohexane;
(7) freons, including freon 11 and freon 12;
(8) hexane;
(9) methyl ethyl ketone;
(10) methyl isobutyl ketone;
(11) naptha;
(12) perchlorethylene;
(13) toluene;
(14) trichloroethane; or
(15) xylene.
(f) In a prosecution for a violation of this section, evidence that a container lists one or more of the substances described in subsection (e) as one of its ingredients shall be prima facie evidence that the substance in such container contains toxic vapors.
History: L. 2009, ch. 32, § 12, July 1.
21-36a13. Simulated controlled substances, prohibited acts.
(a) It shall be unlawful for any person to distribute, possess with the intent to distribute, or manufacture with the intent to distribute any simulated controlled substance.
(b) It shall be unlawful for any person to use or possess with intent to use any simulated controlled substance.
(c) (1) Violation of subsection (a) is a nondrug severity level 9, non-person felony, except that violation of subsection (a) is a nondrug severity level 7, nonperson felony if the trier of fact makes a finding that the offender is 18 or more years of age and the violation occurred on or within 1,000 feet of any school property; and
(2) violation of subsection (b) is a class A nonperson misdemeanor.
History: L. 2009, ch. 32, § 13, L. 2010, ch. 109, § 16; April 29.
21-36a14. Unlawful distribution or possession of non-controlled substances.
(a) It shall be unlawful for any person to distribute or possess with the intent to distribute any substance which is not a controlled substance:
(1) Upon an express representation that the substance is a controlled substance or that the substance is of such nature or appearance that the recipient will be able to distribute the substance as a controlled substance; or
(2) under circumstances which would give a reasonable person reason to believe that the substance is a controlled substance.
(b) Violation of subsection (a) is a class A nonperson misdemeanor, except that violation of subsection (a) is a nondrug severity level 9, non-person felony if the distributor is 18 or more years of age, distributing to a person under 18 years of age and at least three years older than the person under 18 years of age to whom the distribution is made.
(c) If any one of the following factors is established, there shall be a presumption that distribution of a substance was under circumstances which would give a reasonable person reason to believe that a substance is a controlled substance:
(1) The substance was packaged in a manner normally used for the illegal distribution of controlled substances;
(2) the distribution of the substance included an exchange of or demand for money or other consideration for distribution of the substance and the amount of the consideration was substantially in excess of the reasonable value of the substance; or
(3) the physical appearance of the capsule or other material containing the substance is substantially identical to a specific controlled substance.
History: L. 2009, ch. 32, § 14, July 1.
21-36a15. Controlled substances analog; report to board of pharmacy.
Within 10 days after the initiation of prosecution with respect to a controlled substance analog by indictment, complaint or information, the prosecuting attorney shall notify the board of pharmacy of information relevant to emergency scheduling as provided for in subsection (e) of K.S.A. 65-4102, and amendments thereto. After final determination that the controlled substance analog should not be scheduled, no prosecution relating to that substance as a controlled substance analog may be commenced or continued.
History: L. 2009, ch. 32, § 15, July 1.
21-36a16. Unlawful receipt of controlled substance proceeds.
(a) It shall be unlawful for any person to receive or acquire proceeds or engage in transactions involving proceeds, known to be derived from a violation of sections 1 through 17, and amendments thereto. The provisions of this subsection do not apply to any transaction between an individual and that individual's counsel necessary to preserve that individual's right to representation, as guaranteed by section 10 of the bill of rights of the constitution of the state of Kansas and by the sixth amendment to the United States constitution. This exception does not create any presumption against or prohibition of the right of the state to seek and obtain forfeiture of any proceeds derived from a violation of sections 1 through 17, and amendments thereto.
(b) It shall be unlawful for any person to distribute, invest, conceal, transport or maintain an interest in or otherwise make available anything of value which that person knows is intended to be used for the purpose of committing or furthering the commission of any crime in sections 1 through 17, and amendments thereto.
(c) It shall be unlawful for any person to direct, plan, organize, initiate, finance, manage, supervise or facilitate the transportation or transfer of proceeds known to be derived from commission of any crime in sections 1 through 17, and amendments thereto.
(d) It shall be unlawful for any person to conduct a financial transaction involving proceeds derived from commission of any crime in sections 1 through 17, and amendments thereto, when the transaction is designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the proceeds known to be derived from commission of any crime in sections 1 through 17, and amendments thereto, or to avoid a transaction reporting requirement under state or federal law.
(e) (1) Violation of this section is a drug severity level 4 felony if the value of the proceeds is less than $5,000;
(2) violation of this section is a drug severity level 3 felony if the value of the proceeds is at least $5,000 but less than $100,000;
(3) violation of this section shall be a drug severity level 2 felony if the value of the proceeds is at least $100,000 but less than $500,000;
(4) violation of this section shall be a drug severity level 1 felony if the value of the proceeds is $500,000 or more.
History: L. 2009, ch. 32, § 16, July 1.
21-36a17. Statutes applicable and uniform throughout state.
The statutes listed below shall be applicable and uniform throughout this state and in all cities and counties therein. No city or county shall enact or enforce any law, ordinance, rule, regulation or resolution in conflict with, in addition to, or supplemental to, the provisions listed below unless expressly authorized by law to do so:
(a) Subsection (c) of K.S.A. 21-2501a, and amendments thereto;
(b) subsections (k) and (l) of K.S.A. 65-1643, and amendments thereto;
(c) subsections (e), (f) and (g) of K.S.A. 65-4113, and amendments thereto;
(d) subsection (c) of section 3, and amendments thereto;
(e) subsection (f) of section 9, and amendments thereto;
(f) subsection (f) of section 10, and amendments thereto.
History: L. 2009, ch. 32, § 17, July 1.