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Arkansas Code Annotated

Ark. Code Ann. § 5-64-432 (2020)

Possession of a Schedule IV or Schedule V controlled substance with the purpose to deliver

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  1. Except as provided by this chapter, it is unlawful if a person possesses a Schedule IV or Schedule V controlled substance with the purpose to deliver the Schedule IV or Schedule V controlled substance. Purpose to deliver may be shown by any of the following factors:
    1. The person possesses the means to weigh and separate a Schedule IV or Schedule V controlled substance;
    2. The person possesses a record indicating a drug-related transaction;
    3. The Schedule IV or Schedule V controlled substance is separated and packaged in a manner to facilitate delivery;
    4. The person possesses a firearm that is in the immediate physical control of the person at the time of the possession of the Schedule IV or Schedule V controlled substance;
    5. The person possesses at least two (2) other controlled substances in any amount; or
    6. Other relevant and admissible evidence that contributes to the proof that a person's purpose was to deliver a Schedule IV or Schedule V controlled substance.
  2. A person who violates this section upon conviction is guilty of a:
    1. Class D felony if the person possessed by aggregate weight, including an adulterant or diluent:
      1. Less than two hundred grams (200g) of a Schedule IV or Schedule V controlled substance that is not a controlled substance listed in this subdivision (b)(1);
      2. Less than eighty (80) dosage units for any other Schedule IV or Schedule V depressant or hallucinogenic drug; or
      3. Less than eighty (80) dosage units for any other Schedule IV or Schedule V stimulant drug;
    2. Class C felony if the person possessed by aggregate weight, including an adulterant or diluent:
      1. Two hundred grams (200g) or more but less than four hundred grams (400g) of a Schedule IV or Schedule V controlled substance that is not a controlled substance listed in this subdivision (b)(2);
      2. Eighty (80) or more but less than one hundred sixty (160) dosage units for any other Schedule IV or Schedule V depressant or hallucinogenic drug; or
      3. Eighty (80) or more but less than one hundred sixty (160) dosage units for any other Schedule IV or Schedule V stimulant drug; or
    3. Class B felony if the person possessed by aggregate weight, including an adulterant or diluent:
      1. Four hundred grams (400g) or more but less than eight hundred grams (800g) of a Schedule IV or Schedule V controlled substance that is not a controlled substance listed in this subdivision (b)(3);
      2. One hundred sixty (160) dosage units or more but less than eight hundred grams (800g) for any other Schedule IV or Schedule V depressant or hallucinogenic drug; or
      3. One hundred sixty (160) dosage units or more but less than eight hundred grams (800g) for any other Schedule IV or Schedule V stimulant drug.
  3. It is a defense to a prosecution under this section that the person possessed less than the minimum listed amount of a Schedule IV or Schedule V controlled substance that is listed in this section.

History. Acts 2011, No. 570, § 54; 2013, No. 529, § 3.

A.C.R.C. Notes. Acts 2011, No. 570, § 1, provided: “The intent of this act is to implement comprehensive measures designed to reduce recidivism, hold offenders accountable, and contain correction costs.”

Amendments. The 2013 amendment substituted “Less” for “Forty (40) or more but less” in (b)(1)(B) and (b)(1)(C).

Research References

ALR.

What Constitutes “Aggravated Felony” for Which Alien Can Be Deported or Removed Under § 237(a)(2)(A)(iii) of Immigration and Nationality Act (8 U.S.C. § 1227(a)(2)(A)(iii)) — Miscellaneous or Unspecified Narcotics Offenses Under 8 U.S.C. § 1101(a)(43)(B). 79 A.L.R. Fed. 2d 335.

Case Notes

Evidence Sufficient.

Sufficient evidence supported defendant's conviction of possession of a controlled substance with purpose to deliver; the plain language of this section requires only having a “purpose” to deliver, not actual delivery, and the jury could have inferred that had the price been right, defendant would have sold the pills. Furthermore, purpose to deliver could be shown by statutory factors, including possession of a firearm, which defendant had. Jimmerson v. State, 2019 Ark. App. 578, 590 S.W.3d 764 (2019).

Notes of Decisions
Cited in 1 case, 2019–2019 · leading case: Markell Jimmerson v. State of Arkansas, 2019 Ark. App. 578, 590 S.W.3d 764.
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Markell Jimmerson v. State of Arkansas, 2019 Ark. App. 578, 590 S.W.3d 764. · cites it 3× “Ark. Code Ann. § 5-64-432 (a)(4). 3. Simultaneous possession Next, Jimmerson argues that without sufficient proof of the underlying felony-drug offense, there can be no conviction for simultaneous possession.”
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