Ark. Code Ann. § 5-64-101 (2026)

Research References

Ark. L. Rev.

Carroll, Uniform Laws in Arkansas, 52 Ark. L. Rev. 313.

U. Ark. Little Rock L.J.

Legislative Survey, Criminal Law, 4 U. Ark. Little Rock L.J. 583.

Legislation of the 1983 General Assembly, Criminal Law, 6 U. Ark. Little Rock L.J. 613.

Legislative Survey, Criminal Law, 8 U. Ark. Little Rock L.J. 559.

Case Notes

Constitutionality.

Although the defendant offered testimony that marijuana was not as harmful as alcohol or tobacco, the evidence presented by the defendant was not so overwhelming and uncontradicted as to convince the court that the Controlled Substances Act was arbitrary, capricious and unreasonable and, therefore, violated the due process clause and the equal protection clause of the United States Constitution.Bushong v. State, 267 Ark. 113, 589 S.W.2d 559 (1979), cert. denied, 446 U.S. 938, 100 S. Ct. 2157, 64 L. Ed. 2d 791 (1980).

Former subsection (y) of this section (see now subdivision (12)) and former § 5-64-403(c)(1) (see now § 5-64-443) concerning the term “drug paraphernalia” are not unconstitutionally vague for want of “certainty” or “definiteness,” since they give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden. Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988).

The drug paraphernalia law is not unconstitutionally vague, because the detailed definitions found in the statute give adequate notice of conduct constituting the offense. Crail v. State, 309 Ark. 120, 827 S.W.2d 157 (1992).

Controlled Substance.

When doubts as to construction of use of term “controlled substance” in definition section was considered in light of strict construction, possession of drugs classified in schedule of act to provide separate classifications for marijuana and another substance did not constitute a misdemeanor. White v. State, 260 Ark. 361, 538 S.W.2d 550 (1976).

Cocaine is a Schedule II controlled substance. Briggs v. State, 18 Ark. App. 292, 715 S.W.2d 223 (1986).

Evidence was sufficient to support defendant's conviction for possession of methamphetamine with intent to deliver where defendant had control over the 16 grams of methamphetamine, he stated that he had already sold some before arriving at the motel, and defendant offered to sell the remainder to an undercover police officer. Dodson v. State, 358 Ark. 372, 191 S.W.3d 511 (2004).

Deliver or Delivery.

Defendant who testified that the sale of drugs was actually between the officer and a third person, although he did get the drugs and give them to the officer and took the money for the drugs and gave it to the third person, was properly convicted for violating Controlled Substances Act. Snelling v. State, 257 Ark. 602, 519 S.W.2d 52 (1975).

Under the definition of deliver or delivery it makes no difference, on a motion for directed verdict, whether the transferor acts as an agent for the purchaser or the seller. Curry v. State, 258 Ark. 528, 527 S.W.2d 902 (1975).

Person who drove parties to address where sale of controlled substance was made could not defend on ground that he was a mere bystander where there was substantial evidence to show that he not only stood by, but aided, abetted and assisted in the delivery. Fant v. State, 258 Ark. 1015, 530 S.W.2d 364 (1975).

Where the defendant simply introduced the undercover officers to the sellers of controlled substance from whom the officers bought some controlled substance, the defendant was not guilty of delivering controlled substance since he would have had to take a more active part to be a principal or even an accomplice. Daigger v. State, 268 Ark. 249, 595 S.W.2d 653 (1980).

The exchange of something of value is not essential to the offense of delivery of a controlled substance. Anderson v. State, 275 Ark. 298, 630 S.W.2d 23 (1982).

The requirement that delivery be “in exchange for money or anything of value” was intended to make the comparatively severe penalty for delivery inapplicable to a gratuitous transfer, such as the action of two or more persons in smoking one marijuana cigarette by passing it around; the legislature, however, left intact the Uniform Act's provision that a delivery includes an attempted transfer and, accordingly, where the jury could find from substantial evidence that defendant attempted to transfer controlled substance in exchange for an agreed sum of money and had completed his part of the transaction, the proof was sufficient to support conviction even though the exchange of money was not completed. Anderson v. State, 275 Ark. 298, 630 S.W.2d 23 (1982).

Subdivision (f) of this section (see now subdivision (6)) only requires the attempted transfer of drugs in exchange for an agreed price; the exchange of drugs for money or anything of value is not essential to the commission of the offense. Marshall v. State, 289 Ark. 462, 712 S.W.2d 894 (1986).

Definition of “sale” is included in the definition of “deliver” as both involve a transfer of an item in exchange for money. Dean v. State, 293 Ark. 75, 732 S.W.2d 855 (1987).

Prescription of a controlled substance by a licensed physician is not “delivery” of a controlled substance. Hales v. State, 299 Ark. 93, 771 S.W.2d 285 (1989).

The fact that an accused is the agent of a buyer or seller of drugs does not remove the transfer of rock cocaine from the coverage of subsection (f) (see now subdivision (6)). Parker v. State, 302 Ark. 509, 790 S.W.2d 894 (1990).

To convict a defendant of delivery, the state had to prove that the defendant actually or constructively transferred drugs for value to another person; to convict one of possession, the state had to show that the defendant exercised control or dominion over it. Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993), cert. denied, 510 U.S. 1197, 114 S. Ct. 1306, 127 L. Ed. 2d 657 (1994).

Under the definition of “deliver” in this section, it makes no difference whether the transferor acted as an agent of the purchaser or the seller; the act is condemned whenever the transfer is in exchange for money or anything of value. Christian v. State, 318 Ark. 813, 889 S.W.2d 717 (1994).

Where both a detective and a confidential informant testified as to the details of a controlled drug buy, the evidence showed that the informant was given $250 in marked money, fitted with an audio device, sent to an apartment where he met defendant, and left the apartment with a baggie containing 1.7794 grams of methamphetamine which he gave to the detective. There was substantial evidence of “delivery” within the meaning of subdivision (7) (see now subdivision (6)) of this section to support defendant's conviction for delivery of methamphetamine; the district court did not err by denying defendant's motion for a directed verdict. Phavixay v. State, 2009 Ark. 452, 352 S.W.3d 311 (2009).

Appellant's conviction for delivery of methamphetamine was affirmed because the jury was properly instructed that the witness's testimony must be corroborated and an officer and the witness both testified that the crime of delivery of methamphetamine occurred. Hall v. State, 2010 Ark. App. 717 (2010).

Trial court did not err in allowing the director of the drug task force to testify that drugs constituted something of value because it was appropriate rebuttal testimony as defendant denied taking any money but conceded he received a fraction of the drugs as payment; despite defendant's entrapment defense, the State was never relieved of its burden to prove that defendant facilitated the transaction in exchange for money or something of value beyond a reasonable doubt. Owens v. State, 2017 Ark. App. 109, 515 S.W.3d 625 (2017).

Evidence that defendant arranged the price and the location for the buy, combined with defendant's admission that he was a drug dealer and testimony about his method of operation, was substantial evidence that defendant constructively delivered methamphetamine, for purposes of his continuing criminal enterprise conviction. Hunter v. State, 2017 Ark. App. 256, 522 S.W.3d 793 (2017).

Drug Paraphernalia.

Acts 1981, No. 78 which, in pertinent part added subsection (y) (see now subdivision (12)), is not unconstitutionally overbroad even though the act may prevent persons from utilizing the expressions imprinted on, or the symbolic speech represented by the use of, drug paraphernalia. Garner v. White, 726 F.2d 1274 (8th Cir. 1984).

Where defendants were arrested in a parking lot after buying various items, including three packages of antihistamines, four cans of starter fluid, butane, and an air freshener, the evidence was insufficient to support a conviction of possession of drug paraphernalia with intent to manufacture methamphetamines; all of the items seized were legally obtained and had legitimate uses, and suspicion alone cannot support a conviction. Gilmore v. State, 79 Ark. App. 303, 87 S.W.3d 805 (2002).

Trial court properly admitted evidence of defendant's prior crimes because they fell within the exception to Ark. R. Evid. 404(b) in that they were independently relevant as proof of knowledge and intent to commit an offense; further, in determining whether an object is drug paraphernalia, courts are directed to consider prior convictions and expert testimony concerning its use. Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006).

Motion to dismiss was properly denied in a case involving possession with intent to use drug paraphernalia because a crack pipe constituted paraphernalia under this section; further, there was sufficient evidence of intent where defendant admitted the pipe was his, cocaine residue was found on the pipe, and defendant admitted to using it to smoke cocaine in the past. White v. State, 98 Ark. App. 366, 255 S.W.3d 881 (2007).

Sufficient evidence supported a finding that defendant possessed “drug paraphernalia” within the meaning of this section, with the intent to manufacture methamphetamine because the jury could choose to believe that he knew the iodine he possessed was going to be used to make methamphetamine. Ashley v. State, 2012 Ark. App. 131, 388 S.W.3d 914 (2012).

Evidence.

It is not essential to proof of the charge of attempting to deliver a controlled substance that the substance be produced in court if one sufficiently experienced with the substance could testify that it was indeed that substance. Marshall v. State, 289 Ark. 462, 712 S.W.2d 894 (1986).

Evidence was sufficient to meet test of substantiality and show delivery. Summers v. State, 300 Ark. 525, 780 S.W.2d 540 (1989).

Evidence was sufficient to establish delivery of controlled substance. Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991).

Court erroneously precluded state from introducing evidence of officer concerning use of antenna, found on the defendant, as drug paraphernalia. State v. Crutchfield, 306 Ark. 104, 816 S.W.2d 884 (1991) (supplemental op. on rehearing).

Evidence sufficient to support conviction for delivery of a controlled substance. Ramey v. State, 42 Ark. App. 242, 857 S.W.2d 828 (1993).

Evidence sufficient to find that appellant engaged in a conspiracy to deliver marijuana. Ramey v. State, 42 Ark. App. 242, 857 S.W.2d 828 (1993).

Where officer asked defendant for consent to search home and defendant stated he wanted to call his attorney and went back into the house, and officer simply followed defendant into the house, officer's entry into the home was illegal and not supported by unequivocal proof of consent required by state caselaw; therefore, products seized as a result of the illegal entry and search were fruit of the poisonous tree and should have been suppressed. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002).

Sufficient evidence was presented to the jury from which they could conclude that defendant possessed certain items for the purpose of manufacturing methamphetamine despite the fact that there was no evidence of lithium which was necessary to the manufacturing process. Cherry v. State, 80 Ark. App. 222, 95 S.W.3d 5 (2003).

Evidence of manufacturing methamphetamine held sufficient where evidence other than the accomplices' testimony tended to a substantial degree to connect defendant with the commission of the crime, and where there was sufficient corroboration of the accomplices' testimony. Brown v. State, 82 Ark. App. 61, 110 S.W.3d 293 (2003).

State's failure to prove that a substance was a statutorily-defined “counterfeit substance” was fatal to defendant's criminal conviction for possession of a counterfeit substance with the intent to deliver, especially where there was no evidence of attempted delivery; the only factor that the state proved was that the physical appearance of the finished product containing the noncontrolled substance was substantially the same as that of a specific controlled substance. Jackson v. State, 86 Ark. App. 145, 165 S.W.3d 467 (2004).

Evidence was sufficient to sustain a drug possession conviction where defendant was the driver of the car, the drugs were found directly behind the driver's seat, and he exercised dominion and control over the vehicle; in addition, defendant possessed 883.9 milligrams of the methamphetamine compound, which was a usable amount. Jones v. State, 357 Ark. 545, 182 S.W.3d 485 (2004).

Evidence was sufficient to sustain a drug paraphernalia possession conviction where the syringe in defendant's pocket was in close proximity to the methamphetamine found in the plastic bags behind his driver's seat. Jones v. State, 357 Ark. 545, 182 S.W.3d 485 (2004).

Given that defendant owned the premises, that drugs and paraphernalia were found in common areas throughout the residence, and that methamphetamine and paraphernalia were found in his pocket, there was sufficient evidence whereby a jury could convict defendant of manufacturing methamphetamine. Lueken v. State, 88 Ark. App. 323, 198 S.W.3d 547 (2004).

Evidence was sufficient to sustain a conviction for possession of drug paraphernalia with intent to manufacture methamphetamine where the jury had before it evidence of the items found at defendant's residence and in his vehicle (including hydrogen peroxide, isopropyl alcohol, an empty can of toluene, lye, salt, drain cleaner, muriatic acid, allergy pills, PVC gloves, a piece of tubing, and a syringe), but it was also informed of defendant's iodine purchase and of his prior convictions relating to methamphetamine in addition to the expert testimony concerning how the items found in defendant's possession are used to manufacture methamphetamine; neither statute nor case law required that all the ingredients necessary to manufacture methamphetamine be found in a defendant's possession. Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006).

Based on the evidence indicating defendant's proximity to the manufacturing paraphernalia, the jury could reasonably infer that she had joint possession and control of the contraband; it was undisputed that defendant had been occupying the residence for at least two weeks and she was present in the residence when methamphetamine was being manufactured and that she knew methamphetamine was being manufactured. Holt v. State, 2009 Ark. 482, 348 S.W.3d 562 (2009).

Trial court clearly did not err in denying the motion for directed verdict or its renewal, because the evidence was sufficient to convict defendant of possession of a counterfeit controlled substance, when the soap substance was packaged in a quantity and shape that had all the outward indications of appearing to be crack cocaine, and defendant stated in response to the officer's query that he thought he was getting cocaine. Caldwell v. State, 2009 Ark. App. 526, 334 S.W.3d 82 (2009).

Manufacture and Production.

Statute makes it clear that the growing or cultivation of marijuana is included in the offense of manufacturing; the definition of “manufacture” includes “production” and the definition of “production” includes “cultivation” of a controlled substance. Shepherd v. State, 256 Ark. 134, 506 S.W.2d 553, cert. denied, 419 U.S. 808, 95 S. Ct. 20, 42 L. Ed. 2d 34 (1974).

Manufacture as defined in this section does not include the preparation for one's own use. Bedell v. State, 257 Ark. 895, 521 S.W.2d 200 (1975).

Since the personal-use exemption provided for in subdivision (m) (now subdivision (14)) applies only to the preparation or compounding of a controlled substance and not to “production” which includes cultivating or harvesting the substance, defendant, who admitted growing marijuana on his farm, was not within that exception to the offense of manufacturing marijuana. Bedell v. State, 260 Ark. 401, 541 S.W.2d 297 (1976), cert. denied, 430 U.S. 931, 97 S. Ct. 1552, 51 L. Ed. 2d 775 (1977).

The personal use exemption provided for in subdivision (m) (now subdivision (14)) did not apply to defendant who manufactured from marijuana seeds and plants a tea and juice which defendant claimed to drink for the cure and prevention of cancer. Patty v. State, 260 Ark. 539, 542 S.W.2d 494 (1976).

The substance does not have to be in a form to be sold before a “manufacture” occurs. Lee v. State, 297 Ark. 421, 762 S.W.2d 790 (1989).

Although anhydrous ammonia, which was necessary to the methamphetamine manufacturing process, was not found, the state's chemist testified that ammonia was found, as well as other indications regarding the presence of anhydrous ammonia, which could not be specifically tested for, and that there was not an active manufacture taking place when the police arrived; thus, the chemist's testimony sufficiently explained the absence of the anhydrous ammonia in a lab where manufacturing had already occurred and the evidence was sufficient to convict defendant of manufacturing methamphetamine. Aydelotte v. State, 85 Ark. App. 67, 146 S.W.3d 392 (2004).

Evidence was sufficient to sustain a conviction for manufacturing methamphetamine where multiple ingredients and devices used in methamphetamine production were found together with the by-products of such production in defendant's van, as well as actual methamphetamine. Saul v. State, 365 Ark. 77, 225 S.W.3d 373 (2006).

Defense counsel was not ineffective for not objecting that defendants' convictions violated double jeopardy under § 5-1-110(b) because possession of drug paraphernalia with intent to manufacture methamphetamine was not a lesser-included offense of manufacturing methamphetamine. Myers v. State, 2012 Ark. 143, 400 S.W.3d 231 (2012).

Marijuana.

In prosecution for sale of marijuana it was not necessary for the state to show that the substance introduced into evidence as marijuana did not fall within any exemption provision of the definition of marijuana. Garner v. State, 258 Ark. 321, 524 S.W.2d 223 (1975); Rogers v. State, 258 Ark. 314, 524 S.W.2d 227, cert. denied, 423 U.S. 995, 96 S. Ct. 423, 46 L. Ed. 2d 369 (1975).

This section's definition of marijuana does not require the State to prove the presence of THC in order to obtain a conviction for possession of marijuana; lay testimony may provide substantial evidence of the identity of a controlled substance, even in the absence of expert chemical analysis. Springston v. State, 327 Ark. 90, 936 S.W.2d 550 (1997).

Narcotic Drug.

Cocaine is defined as a “narcotic drug” under this section and is made a Schedule II controlled substance under the terms of a board regulation adopted in accordance with § 5-64-205. Lively v. State, 25 Ark. App. 198, 755 S.W.2d 238 (1988).

Cited: Fight v. State, 254 Ark. 927, 497 S.W.2d 262 (1973); Sims v. State, 255 Ark. 87, 499 S.W.2d 54 (1973); Henderson v. State, 255 Ark. 870, 503 S.W.2d 889 (1974); Ark. State Medical Bd. v. Cross, 256 Ark. 388, 507 S.W.2d 709 (1974); Tate v. State, 258 Ark. 135, 524 S.W.2d 624 (1975); Ryan v. State, 260 Ark. 270, 538 S.W.2d 702 (1976); Hosto v. Brickell, 265 Ark. 147, 577 S.W.2d 401 (1979); Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979); Hays v. State, 268 Ark. 701, 597 S.W.2d 821 (Ct. App. 1980); Young v. State, 269 Ark. 12, 598 S.W.2d 74 (1980); Johnson v. State, 6 Ark. App. 78, 638 S.W.2d 686 (1982); Jackson v. State, 283 Ark. 301, 675 S.W.2d 820 (1984); Harrod v. State, 286 Ark. 277, 691 S.W.2d 172 (1985); Webber v. State, 15 Ark. App. 261, 692 S.W.2d 255 (1985); Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989); Barlow v. State, 28 Ark. App. 21, 770 S.W.2d 186 (1989); Booker v. State, 32 Ark. App. 94, 796 S.W.2d 854 (1990); Smith v. State, 34 Ark. App. 72, 805 S.W.2d 663 (1991); Kellogg v. State, 37 Ark. App. 162, 827 S.W.2d 166 (1992); Enos v. State, 313 Ark. 683, 858 S.W.2d 72 (1993); Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996); Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997); Hyde v. State, 59 Ark. App. 131, 953 S.W.2d 911 (1997); Stanton v. State, 344 Ark. 589, 42 S.W.3d 474 (2001); Dodson v. State, 88 Ark. App. 380, 199 S.W.3d 115 (2004); Benjamin v. State, 102 Ark. App. 309, 285 S.W.3d 264 (2008); Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147 (2009); Payne v. State, 2017 Ark. App. 263, 520 S.W.3d 719 (2017).