N.M. Stat. § 30-31-23 (2026)

A. It is unlawful for a person intentionally to possess a controlled substance unless
the substance was obtained pursuant to a valid prescription or order of a practitioner
while acting in the course of professional practice or except as otherwise authorized by
the Controlled Substances Act. It is unlawful for a person intentionally to possess a
controlled substance analog.

   B. A person who violates this section with respect to:

        (1)   one ounce or less of synthetic cannabinoids is, for the first offense, guilty
of a petty misdemeanor and shall be punished by a fine of not less than fifty dollars
($50.00) or more than one hundred dollars ($100) and by imprisonment for not more
than fifteen days, and, for the second and subsequent offenses, is guilty of a
misdemeanor and shall be punished by a fine of not less than one hundred dollars
($100) or more than one thousand dollars ($1,000) or by imprisonment for a definite
term less than one year, or both;

       (2)  more than one ounce and less than eight ounces of synthetic
cannabinoids is guilty of a misdemeanor and shall be punished by a fine of not less than
one hundred dollars ($100) or more than one thousand dollars ($1,000) or by
imprisonment for a definite term less than one year, or both; or
       (3)   eight ounces or more of synthetic cannabinoids is guilty of a fourth degree
felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA
1978.

    C. A minor who violates this section with respect to the substances listed in this
subsection is guilty of a petty misdemeanor and, notwithstanding the provisions of
Sections 32A-1-5 and 32A-2-19 NMSA 1978, shall be required to perform no more than
forty-eight hours of community service. For the third or subsequent violation by a minor
of this section with respect to those substances, the provisions of Section 32A-2-19
NMSA 1978 shall govern punishment of the minor. As used in this subsection, "minor"
means a person who is less than eighteen years of age. The provisions of this
subsection apply to the following substances:

      (1)    synthetic cannabinoids;

      (2)    any of the substances listed in Paragraphs (17) through (22) of Subsection
C of Section 30-31-6 NMSA 1978; or

       (3)   a substance added to Schedule I by a rule of the board adopted on or
after March 31, 2011 if the board determines that the pharmacological effect of the
substance, the risk to the public health by abuse of the substance and the potential of
the substance to produce psychic or physiological dependence liability is similar to the
substances described in Paragraph (1) or (2) of this subsection.

    D. Except as provided in Subsections B and F of this section, and for those
substances listed in Subsection E of this section, a person who violates this section with
respect to any amount of any controlled substance enumerated in Schedule I, II, III or IV
or a controlled substance analog of a substance enumerated in Schedule I, II, III or IV is
guilty of a misdemeanor and shall be punished by a fine of not less than five hundred
dollars ($500) or more than one thousand dollars ($1,000) or by imprisonment for a
definite term less than one year, or both.

    E. A person who violates this section with respect to phencyclidine as enumerated
in Schedule III or a controlled substance analog of phencyclidine; methamphetamine, its
salts, isomers or salts of isomers as enumerated in Schedule II or a controlled
substance analog of methamphetamine, its salts, isomers or salts of isomers;
flunitrazepam, its salts, isomers or salts of isomers as enumerated in Schedule I or a
controlled substance analog of flunitrazepam, including naturally occurring metabolites,
its salts, isomers or salts of isomers; gamma hydroxybutyric acid and any chemical
compound that is metabolically converted to gamma hydroxybutyric acid, its salts,
isomers or salts of isomers as enumerated in Schedule I or a controlled substance
analog of gamma hydroxybutyric acid, its salts, isomers or salts of isomers; gamma
butyrolactone and any chemical compound that is metabolically converted to gamma
hydroxybutyric acid, its salts, isomers or salts of isomers as enumerated in Schedule I
or a controlled substance analog of gamma butyrolactone, its salts, isomers or salts of
isomers; 1-4 butane diol and any chemical compound that is metabolically converted to
gamma hydroxybutyric acid, its salts, isomers or salts of isomers as enumerated in
Schedule I or a controlled substance analog of 1-4 butane diol, its salts, isomers or salts
of isomers; or a narcotic drug enumerated in Schedule I or II or a controlled substance
analog of a narcotic drug enumerated in Schedule I or II is guilty of a fourth degree
felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA
1978.

    F. Except for a minor as provided in Subsection C of this section, a person who
violates Subsection A of this section while within a posted drug-free school zone,
excluding private property residentially zoned or used primarily as a residence and
excluding a person in or on a motor vehicle in transit through the posted drug-free
school zone, with respect to:

       (1)   one ounce or less of synthetic cannabinoids is, for the first offense, guilty
of a misdemeanor and shall be punished by a fine of not less than one hundred dollars
($100) or more than one thousand dollars ($1,000) or by imprisonment for a definite
term less than one year, or both, and for the second or subsequent offense, is guilty of a
fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-
18-15 NMSA 1978;

       (2)    more than one ounce and less than eight ounces of synthetic
cannabinoids is guilty of a fourth degree felony and shall be sentenced pursuant to the
provisions of Section 31-18-15 NMSA 1978;

       (3)   eight ounces or more of synthetic cannabinoids is guilty of a third degree
felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA
1978;

          (4)    any amount of any other controlled substance enumerated in Schedule I,
II, III or IV or a controlled substance analog of a substance enumerated in Schedule I, II,
III or IV, except phencyclidine as enumerated in Schedule III, a narcotic drug
enumerated in Schedule I or II or a controlled substance analog of a narcotic drug
enumerated in Schedule I or II, is guilty of a fourth degree felony and shall be sentenced
pursuant to the provisions of Section 31-18-15 NMSA 1978; and

      (5)     phencyclidine as enumerated in Schedule III, a narcotic drug enumerated
in Schedule I or II, a controlled substance analog of phencyclidine or a controlled
substance analog of a narcotic drug enumerated in Schedule I or II is guilty of a third
degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15
NMSA 1978.

History: 1953 Comp., § 54-11-23, enacted by Laws 1972, ch. 84, § 23; 1974, ch. 9, § 4;
1980, ch. 23, § 4; 1983, ch. 183, § 1; 1987, ch. 68, § 5; 1989, ch. 123, § 1; 1990, ch. 19,
§ 5; 1990, ch. 33, § 1; 2005, ch. 280, § 7; 2011, ch. 16, § 3; 2019, ch. 217, § 1; 2021,
ch. 15, § 1; 2021 (1st S.S.), ch. 4, § 68.
                                    ANNOTATIONS

Cross references. — For penalty for consumption or possession of alcoholic
beverages on school property, see 22-5A-5 NMSA 1978.

For legal use of marijuana in research, see 26-2A-1 to 26-2A-7 NMSA 1978.

For provision authorizing conditional discharge for first possession offense, and
providing for expungement of records relating to a minor so discharged, see 30-31-28
NMSA 1978.

The 2021 (1st S.S.) amendment, effective June 29, 2021, removed the possession of
marijuana from the application of the section; deleted former Subsection B and
redesignated former Subsections C through G as Subsections B through F,
respectively; in Subsection C, Paragraph C(2), after "Paragraphs", changed "(2) through
(25)" to "(17) through (22)"; in Subsection D, after "Subsections B", deleted "C" and
after the next occurrence of "and", deleted "G" and added "F", and after "Subsection",
changed "F" to "E"; and in Subsection F, after "Subsection", changed "D" to "C", in
Paragraph F(1), after "one ounce or less of", deleted "marijuana or", in Paragraph F(2),
after "less than eight ounces of", deleted "marijuana or", and in Paragraph F(3), after
"eight ounces or more of", deleted "marijuana or".

The 2021 amendment, effective June 18, 2021, eliminated the fine for possession of
certain controlled substances committed by minors as a first offense, capped the
number of hours of community service that may be imposed for minors who have
committed the crime of possession of certain controlled substances as a first offense,
and made technical changes; in Paragraph B(1), after "Section", changed "3 of this
2019 act" to "31-19A-1 NMSA 1978"; and in Subsection D, after "shall be", deleted
"punished by a fine not to exceed one hundred dollars ($100) or" and added "required to
perform no more than".

The 2019 amendment, effective July 1, 2019, decreased penalties for possession of
marijuana; added a new Subsection B and redesignated former Subsections B through
D as Subsections C through E, respectively; in Subsection C, Paragraph C(1), after
"one ounce or less of", deleted "marijuana or", in Paragraph C(2), after "less than eight
ounces of", deleted "marijuana or", in Paragraph C(3), after "eight ounces or more of",
deleted "marijuana or"; and in Subsection E, after "Except", added "as provided in
Subsections B, C and G of this section, and", and after "listed in Subsection", deleted
"E" and added "F".

The 2011 amendment, effective March 31, 2011, made it a crime to possess synthetic
cannabinoids and added Subsection C to make it a crime for a minor to possess
synthetic cannabinoids, other synthetic drugs and substances added to Schedule I by
the board of pharmacy.
The 2005 amendment, effective June 17, 2005, provided in Subsection D that it is a
fourth degree felony to violate this section with respect to flunitrazepam, gamma
hydroxybutyric acid and gamma butyrolactone, 1-4 butane diol; added Subsections E
(1) through (5) to provide penalties for violations of Subsection A of this section in
posted drug-free school zones, excluding certain private residential property and motor
vehicles, with respect to the listed substances.

The 1990 amendment, effective July 1, 1990, substituted "or" for "and" at the end of
Paragraph (2) of Subsection B, deleted former Paragraph (4) of Subsection B pertaining
to violations with respect to specific controlled substances and providing a penalty,
added Subsection C, redesignated former Paragraph (5) of Subsection B as Subsection
D, and rewrote the provision which read "phencyclidine as enumerated in Schedule III a
narcotic drug enumerated in Schedule I or II or a controlled substance analog of
phencyclidine or a controlled substance analog of a narcotic drug enumerated in
Schedule I or II, is guilty of a first degree felony and shall be sentenced pursuant to the
provisions of Section 31-18-15 NMSA 1978.".

The 1989 amendment, effective July 1, 1989, inserted "or a controlled substance
analog of phencyclidine" in Subsection B(4) and "or a controlled substance analog of
phencyclidine or a controlled substance analog of a narcotic drug enumerated in
Schedule I or II" in Subsection B(5); and made minor stylistic changes throughout
Subsection B.

                          I.     GENERAL CONSIDERATION.

Jury unanimity as to the form of cocaine involved in a lesser included offense of
possession was not required. — Where police officers found crack cocaine in
defendant’s vehicle and powder cocaine that belonged to defendant in the vehicle of
defendant’s friend; defendant was charged with one count of trafficking and one count
of the lesser included offense of possession; the jury found defendant guilty of
possession of cocaine; defendant claimed that there were two substances at issue and
that the trial court failed to instruct the jury that any conviction of possession had to be
based on the same substance considered by the jury for the trafficking offense; the
state’s theories of possession were based on the crack cocaine found in defendant’s
vehicle and the powder cocaine found in the friend’s vehicle; and witnesses testified that
a lab analysis does not distinguish between crack cocaine and powder cocaine and that
both forms of cocaine were in quantities large enough to qualify for a count of trafficking,
jury unanimity was not required as to the specific form of cocaine involved, jury
unanimity was required only on the overall verdict. State v. Godoy, 2012-NMCA-084,
284 P.3d 410, cert. denied, 2012-NMCERT-007.

Section is within scope of state's power and is valid on its face. Yanez v. Romero,
619 F.2d 851 (10th Cir.), cert. denied, 449 U.S. 876, 101 S. Ct. 221, 66 L. Ed. 2d 98
(1980).
Possession of heroin deemed felony under Habitual Offender Act. — When a
federal conviction is had in New Mexico upon a purchase of heroin in New Mexico, the
"purchase" of heroin necessarily includes the actual or constructive "possession" of
heroin, and actual or constructive possession of heroin is a felony under the laws of
New Mexico for purposes of the Habitual Offender Act. State v. Montoya, 1980-NMSC-
093, 94 N.M. 704, 616 P.2d 417.

Habitual offender law inapplicable. — Since the legislature intended an enhanced
penalty to apply to a violation of the Controlled Substances Act it so provided within the
act, the legislature did not intend that the habitual offender law was to apply to second
or subsequent violations of Subsection B(5) (now D) of this section. State v. Alderete,
1975-NMCA-080, 88 N.M. 150, 538 P.2d 422.

Comparison not warranted. — Former Narcotic Drug Act (54-7-1, 1953 Comp. et
seq.) was completely lacking in any legislative direction as to procedures in the event of
second or subsequent convictions, and a comparison between the Narcotic Drug Act
and former habitual criminal law was of no value. State v. Rhodes, 1966-NMSC-064, 76
N.M. 177, 413 P.2d 214.

Due process certainty. — The language of definitional Section 30-31-20 NMSA 1978
(now 30-31-2N NMSA 1978), referring to all parts of the cannabis plant whether growing
or not, coupled with Subsection B(3) of this section, is not so indefinite that men of
common intelligence must guess at its meaning and scope. State v. Olive, 1973-NMCA-
131, 85 N.M. 664, 515 P.2d 668, cert. denied, 85 N.M. 639, 515 P.2d 643.

Equal protection. — Fact that the Controlled Substances Act does not specifically
state when weighing of marijuana is to be done does not mean that Subsection B(3) of
this section, as applied to defendant convicted of possession of more than eight ounces
of "green" marijuana, was a violation of his rights to equal protection since it was the
possession of marijuana, on the date of the offense, which was the prohibited act and
not the amount in some subsequent form suitable to a particular defendant. State v.
Olive, 1973-NMCA-131, 85 N.M. 664, 515 P.2d 668, cert. denied, 85 N.M. 639, 515
P.2d 643.

Due process requirements in sentence enhancement. — To meet due process
requirements of essential fairness in sentencing defendant for a second drug offense,
there must be some pleading filed by the state, whether by motion or otherwise, by
which defendant is given notice of the state's charges, and defendant must be given an
opportunity to be heard on the charges before an increased penalty can be imposed.
State v. Rhodes, 1966-NMSC-064, 76 N.M. 177, 413 P.2d 214.

Title constitutionally adequate. — Sections 30-31-20 to 30-31-25 NMSA 1978, which
define unlawful activities and provide penalties therefor, are not unconstitutional on the
grounds that "unlawful activities" are not mentioned in the title of the act. State v.
Atencio, 1973-NMCA-110, 85 N.M. 484, 513 P.2d 1266, cert. denied, 85 N.M. 483, 513
P.2d 1265.
Standing to challenge section. — Defendant's contention that this section violated his
constitutional rights because he was a narcotic addict, where there was no evidence
that he was an addict, was without merit. State v. Jaramillo, 1975-NMCA-091, 88 N.M.
179, 538 P.2d 1201.

Marijuana use not intrinsic part of religion. — Where the evidence shows that
defendant's belief was derived from defendant's personal views of the bible, and those
views under the evidence are no more than that the use and distribution of marijuana
was permitted because marijuana is a gift from God, such a personal use does not
amount to an intrinsic part of a religion. State v. Brashear, 1979-NMCA-027, 92 N.M.
622, 593 P.2d 63.

Possession of narcotics, not addiction can be subject of prosecution. — Addiction
is a disease which cannot be the subject of prosecution under the eighth and fourteenth
amendments of the United States constitution: possession of narcotics as a crime is
valid and distinguishable. Yanez v. Romero, 619 F.2d 851 (10th Cir.), cert. denied, 449
U.S. 876, 101 S. Ct. 221, 66 L. Ed. 2d 98 (1980).

Legal to search defendant admitting "dope" possession. — Once the defendant
voluntarily made the statement that there was "dope" in his pocket, a police officer had
probable cause to believe that a crime was being committed, specifically, possession of
a controlled substance. This provided a proper legal foundation for both a full search
and the actual arrest of the defendant. State v. Blakely, 1993-NMCA-053, 115 N.M. 466,
853 P.2d 168, cert. denied, 115 N.M. 535, 854 P.2d 362.

                         II.    ELEMENTS OF POSSESSION.

Possession. — Mere proximity to illegal drugs, mere presence on the property where
they are located, or mere association with persons who do control them, without more,
is insufficient to support a finding of possession. United States v. Espinosa, 771 F.2d
1382 (10th Cir.), cert. denied, 474 U.S. 1023, 106 S.Ct. 579, 88 L. Ed. 2d 561 (1985).

Possession and tampering distinguished. — Possession of a controlled substance
requires proof defendant knew or believed it was cocaine or some other substance that
is regulated, which is not required to prove tampering, while tampering with evidence
requires proof defendant intended to prevent the apprehension, prosecution or
conviction of herself or others, which is not required to prove possession. State v.
Franco, 2005-NMSC-013, 137 N.M. 447, 112 P.3d 1104.

Possession of a controlled substance can be committed without tampering with
evidence. Conversely, tampering with evidence, even if the evidence is illegal drugs,
can be committed without possessing the drugs. State v. Franco, 2005-NMSC-013, 137
N.M. 447, 112 P.3d 1104.

Prohibition of "use" not vague. — Former section prohibiting "unlawful use" of
marijuana was not unconstitutionally vague, since all use of marijuana not falling within
a stated exception was made unlawful. State v. Covens, 1971-NMCA-141, 83 N.M. 175,
489 P.2d 888 (decided under prior law).

Meaning of "eight ounces". — Weight of eight ounces mentioned in Subsection B(3)
of this section means the weight of the plant, or the plant's derivative products, weighed
in the form seized, whether that form be the green plant, the dried plant or the various
products which may be derived from the plant. State v. Olive, 1973-NMCA-131, 85 N.M.
664, 515 P.2d 668, cert. denied, 85 N.M. 639, 515 P.2d 643.

Intent required. — Under 54-5-16, 1953 Comp. (now repealed), an intent to possess
anhalonium (peyote) was required for conviction. State v. Pedro, 1971-NMCA-145, 83
N.M. 212, 490 P.2d 470 (decided under prior law, statute repealed).

Locus of offense jurisdictional. — Since state in prosecution for unlawful use of
heroin failed to establish where defendant used the narcotic, an essential element of the
offense charged, this jurisdictional error would be raised sua sponte by the appellate
court and defendant's conviction reversed for failure of proof. State v. Losolla, 1972-
NMCA-085, 84 N.M. 151, 500 P.2d 436.

Possession coupled with knowledge. — The state must prove that defendant had
physical or constructive possession, coupled with knowledge of the presence and
narcotic character of the substance possessed. State v. Bowers, 1974-NMCA-135, 87
N.M. 74, 529 P.2d 300, cert. denied, 88 N.M. 29, 536 P.2d 1085 (1975); State v. Baca,
1974-NMCA-098, 87 N.M. 12, 528 P.2d 656, cert. denied, 87 N.M. 5, 528 P.2d 649;
State v. Bauske, 1974-NMCA-078, 86 N.M. 484, 525 P.2d 411; State v. Mosier, 1971-
NMCA-138, 83 N.M. 213, 490 P.2d 471; State v. Maes, 1970-NMCA-053, 81 N.M. 550,
469 P.2d 529, cert. denied, sub nom. State v. Felix, 81 N.M. 588, 470 P.2d 309 (1970).

Possession means care, control and management on the occasion in question.
State v. Mosier, 1971-NMCA-138, 83 N.M. 213, 490 P.2d 471; State v. Maes, 1970-
NMCA-053, 81 N.M. 550, 469 P.2d 529, cert. denied, sub nom. State v. Felix, 81 N.M.
588, 470 P.2d 309 (1970).

Constructive possession defined. — Constructive possession exists when the
accused has knowledge of the presence of the narcotic and control over it. State v.
Bowers, 1974-NMCA-135, 87 N.M. 74, 529 P.2d 300, cert. denied, 88 N.M. 29, 536
P.2d 1085 (1975); State v. Montoya, 1973-NMCA-060, 85 N.M. 126, 509 P.2d 893.

Exclusive possession is not required to support a conviction. State v. Favela,
1968-NMCA-065, 79 N.M. 490, 444 P.2d 1001.

                             III.   DOUBLE JEOPARDY.

Subsection A of this section defines the unit of prosecution for a person in
simultaneous possession of each distinct controlled substance. — Where
defendant was a passenger in a vehicle that was the subject of a traffic stop, during
which it was revealed that defendant had an outstanding warrant for her arrest, and
where, during a search incident to arrest and an inventory search of the vehicle, the
officer found a clear bag containing a substance that tested positive for heroin, a bag
containing a substance that tested positive for methamphetamine, and a clear glass
pipe, and where defendant was charged with two counts of possession of a controlled
substance, one for possession of heroin and one for possession of methamphetamine,
and where the district court, prior to trial, granted defendant's motion to dismiss the
second count of possession of a controlled substance, finding that defendant can only
be charged with one count of possession, concluding that § 30-31-23 NMSA 1978 does
not define the unit of prosecution and defendant's acts of possession were not
sufficiently distinct to support two charges, the district court erred in finding that § 30-31-
23 does not define the unit of prosecution, because the plain language of § 30-31-23(A)
defines the unit of prosecution for a person in simultaneous possession of each distinct
controlled substance. Defendant's separate charges for the simultaneous possession of
two distinct controlled substances did not violate defendant's double jeopardy rights.
State v. Garcia, 2022-NMCA-051, cert. denied.

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

Possession of a controlled substance and possession of drug paraphernalia. —
Where police responded to a report that someone was trying to kick in the door of an
apartment and encountered defendant at the scene, apparently agitated and yelling
loudly, and where, after placing defendant under arrest for disorderly conduct, the
officers found a clear glass pipe containing a white crystalline residue, which later tested
positive for methamphetamine, in defendant’s left front pocket, and where defendant
claimed that his convictions for possession of a controlled substance and possession of
drug paraphernalia based on unitary conduct violate double jeopardy, the fact that
defendant’s convictions required proof of distinct elements, knowing possession of
methamphetamine versus possession of paraphernalia with the intent to use it, gave
rise to the presumption that the legislature intended to punish the offenses separately,
and defendant failed to overcome this presumption. State v. Moncayo, 2022-NMCA-
067, cert. granted.

Lesser included offense. — The separate crimes of possession of methamphetamine
and possession of methamphetamine with intent to distribute apply in the alternative
when based on a single act of possession. State v. Quick, 2009-NMSC-015, 146 N.M.
80, 206 P.3d 985.
Possession of methamphetamine is a lesser included charge of possession with
intent to distribute methamphetamine and a conviction of both charges when
defendant’s conduct was unitary is a violation of double jeopardy. State v. Lopez, 2008-
NMCA-002, 143 N.M. 274, 175 P.3d 942, cert. denied, 2008-NMCERT-007, 144 N.M.
593, 189 P.3d 1215.

Possession is lesser offense necessarily included in distribution of marijuana.
State v. Medina, 1975-NMCA-033, 87 N.M. 394, 534 P.2d 486.

Distribution prosecution barred by conviction of possession. — The possession of
marijuana was a lesser offense necessarily included in the greater offense of
distribution of marijuana, and since the defendant was convicted of the lesser offense,
the principles of double jeopardy barred the subsequent prosecution of the greater
offense. State v. Medina, 1975-NMCA-033, 87 N.M. 394, 534 P.2d 486.

Retrial for possession barred. — Since two counts were charged in an indictment,
one for illegal possession of marijuana and the other for possession with intent to sell,
an instruction by the court that the jury was to disregard the possession count if it found
defendant guilty of the latter offense operated as an acquittal on the possession count
and prevented retrial of this issue when the verdict on possession with intent to
distribute was overturned. State v. Moreno, 1961-NMSC-070, 69 N.M. 113, 364 P.2d
594.

No double jeopardy violation. — Convictions for possession of cocaine and tampering
with evidence did not violate defendant's double jeopardy rights. State v. Franco, 2005-
NMSC-013, 137 N.M. 447, 112 P.3d 1104.

                             IV.    EVIDENCE AND PROOF.

Authentication of substance as cocaine by lay testimony. — Where defendant was
charged with trafficking and the lesser included offense of possession of cocaine; the
state failed to present a laboratory analysis authenticating the substance found in
defendant’s vehicle as crack cocaine; when arrested, defendant raised the inference
that the substance was an illegal narcotic by telling the arresting police officers that
defendant was the user and that the substance was for defendant’s personal use; three
officers testified that the substance field tested for the presence of cocaine; one officer
testified that the result of the test was positive; and two officers testified that based on
their experience and training, the substance had the appearance of crack cocaine, the
officers’ opinions, combined with the actions and statements of defendant, provided
sufficient evidence to support the admissibility of the crack cocaine into evidence. State
v. Godoy, 2012-NMCA-084, 284 P.3d 410, cert. denied, 2012-NMCERT-007.

Field drug test. — The state has the burden to establish the validity of the scientific
principles on which a field drug test is based and its scientific reliability when the state
elects to rely on a field test to prove the identity of contraband. The testimony by a law
enforcement officer will not, without more, be sufficient to support admission of the
results, when the officer cannot explain the scientific principles that the test uses, the
percentage of false positives or negatives that the test will produce, or the factors that
may produce those false results. The state can avoid admissibility problems altogether
by using a competent laboratory to identify the substance at issue. State v. Morales,
2002-NMCA-052, 132 N.M. 146, 45 P.3d 406, cert. denied, 132 N.M. 193, 46 P.3d 100.

                                   A.     IN GENERAL.

Testimony concerning a forensic laboratory report. — Where the court admitted a
forensic laboratory report that a substance was cocaine; the report was admitted into
evidence through the testimony of a forensic chemist who did not conduct the tests
underlying the report; the witness’s testimony was an explanation regarding how the
test was performed and the witness’s approval of the testing chemist’s results; there
was nothing in the witness’s testimony indicating that the witness relied on the witness’s
own analysis to arrive at the witness’s own conclusions; the only other evidence that the
substance was cocaine was the testimony of a police officer who performed a field test
on the substance; and the state failed to prove the scientific reliability of the field test,
the admission of the laboratory report and the witness’s testimony regarding the testing
chemist’s opinion was error, the error was not harmless, and the error violated
defendant’s right of confrontation. State v. Delgado, 2010-NMCA-078, 148 N.M. 870,
242 P.3d 437, cert. denied, 2010-NMCERT-007, 148 N.M. 610, 241 P.3d 611, on
remand of 2009-NMCA-061, 146 N.M. 402, 210 P.3d 828, cert granted, 2009-NMCERT-
006, 146 N.M. 733, 215 P.3d 42.

Chain of custody. — Where, during a search incident to arrest, the arresting police
officer found on defendant a plastic "bindle" containing a white crystalline substance
which the officer recognized as methamphetamine; the arresting officer observed
another officer perform a presumptive field test on the substance; the arresting officer
took the substance into evidence and transferred the substance to an evidence
technician who sent the substance to the sate laboratory; an analyst in the drug analysis
unit obtained the evidence from the laboratory’s evidence custodian; the analyst
performed two tests on the evidence and concluded that the substance was
methamphetamine; the analyst sealed the evidence so that it would be apparent if any
one tried to tamper with or alter it and returned the evidence to the evidence custodian,
there was sufficient evidence to support the verdict that the substance seized from
defendant was the same substance that was tested by the state laboratory and
determined to be methamphetamine. State v. Rodriguez, 2009-NMCA-090, 146 N.M.
824, 215 P.3d 762, cert. denied, 2009-NMCERT-007, 147 N.M. 361, 223 P.3d 358.

Purchaser not guilty of solicitation to traffic. — Even though the defendant's actions
in negotiating for the purchase of drugs fall within the definition of criminal solicitation,
his conduct was necessarily incidental to the crime of trafficking through the sale of a
controlled substance and he could not be guilty of solicitation to traffic. State v. Pinson,
1995-NMCA-045, 119 N.M. 752, 895 P.2d 274.
Proof of possession of controlled substance may be established by evidence of the
conduct and actions of a defendant, and by circumstantial evidence connecting the
defendant with the crime. State v. Donaldson, 1983-NMCA-064, 100 N.M. 111, 666
P.2d 1258, cert. denied, 100 N.M. 53, 665 P.2d 809.

Evidence of possession. — When an accused is not in exclusive possession of the
places in which an illegal substance is found, the state is required to prove that the
accused knew the substance was there and that the accused exercised control over it.
State v. Morales, 2002-NMCA-052, 132 N.M. 146, 45 P.3d 406, cert. denied, 132 N.M.
193, 46 P.3d 100.

Direct proof unnecessary. — Proof of possession with knowledge of narcotic
character need not be by direct or uncontradicted evidence. State v. Garcia, 1966-
NMSC-063, 76 N.M. 171, 413 P.2d 210, overruled on other grounds by State v. Gomez,
1997-NMSC-006, 122 N.M. 777, 932 P.2d 1.

Trace amount not sufficient to infer knowledge. — The presence of a trace amount
of cocaine in a cellophane cigarette wrapper carried in defendant's pocket was not, by
itself, sufficient to establish that defendant had knowledge of the substance or that the
substance was cocaine. State v. Reed, 1998-NMSC-030, 125 N.M. 552, 964 P.2d 113.

Conduct permitting inference of guilt. — Evidence sufficient to support a violation of
this section must be such as discloses some conduct, declarations or actions on the
part of the accused from which the fact finder may fairly infer and which is sufficient to
satisfy it beyond a reasonable doubt of knowledge in the accused of the presence and
nature of the narcotics. Doe v. State, 1975-NMCA-108, 88 N.M. 347, 540 P.2d 827,
cert. denied, 88 N.M. 318, 540 P.2d 248; State v. Garcia, 1966-NMSC-063, 76 N.M.
171, 413 P.2d 210, overruled on other grounds by State v. Gomez, 1997-NMSC-006,
122 N.M. 777, 932 P.2d 1.

Proving knowing possession. — To show knowing possession of narcotics, the
conduct and behavior of the parties, their admissions or contradictory statements and
explanations are frequently sufficient; possession and knowledge that object is a
narcotic drug can also be proven circumstantially. State v. Baca, 1974-NMCA-098, 87
N.M. 12, 528 P.2d 656, cert. denied, 87 N.M. 5, 528 P.2d 649.

Right to control. — An accused has constructive possession when he maintains
control or a right to control the contraband. State v. Bauske, 1974-NMCA-078, 86 N.M.
484, 525 P.2d 411.

Power to produce or dispose is evidence of control. State v. Montoya, 1973-NMCA-
060, 85 N.M. 126, 509 P.2d 893.

Insufficiency of positive drug test by itself. — The common law rule in New Mexico
requires additional proof of an intentional or knowing prior possession corroborating a
positive drug test before a defendant can be charged and convicted of possession of a
controlled substance; while a positive drug test might be circumstantial evidence of
possession, it is insufficient, standing alone, to convict for that crime. State v. McCoy,
1993-NMCA-064, 116 N.M. 491, 864 P.2d 307, rev'd in part on other grounds sub nom.
State v. Hodge, 1994-NMSC-087, 118 N.M. 410, 882 P.2d 1.

No burden on state to negate plant maturity. — In prosecution for possession, the
state was not required to expressly prove that substance identified as marijuana was
not the mature stalk. State v. Everidge, 1967-NMSC-035, 77 N.M. 505, 424 P.2d 787,
cert. denied, sub nom. Greene v. United States, 386 U.S. 976, 87 S. Ct. 1171, 18 L. Ed.
2d 136 (1967).

Failure to prove plant maturity is fatal. — Since the state's expert witness was unable
to say whether the substance he tested was cannabis indica or cannabis sativa L., and
could only identify it as mature stalk of some kind of cannabis, possession of which
mature stalk did not constitute a violation of the statute under which the state had
elected to proceed, defendant's conviction for possession of marijuana would be
reversed. State v. Benavidez, 1962-NMSC-137, 71 N.M. 19, 375 P.2d 333 (decided
under prior law).

Evidence of predisposition. — In view of evidence that defendant, a heroin addict,
had been brought off methadone rapidly when a methadone maintenance program was
closed, that he encountered a waiting requirement for entry into a different methadone
program, during which time he contacted his former heroin supplier (now an informer)
who supplied him with heroin, and that defendant being utterly without funds, the two
arranged a marijuana transaction during the course of which defendant was arrested,
subsequently being convicted of unlawful possession, the jury could reasonably have
believed that the parties pooled their thoughts to plan a criminal enterprise in which the
defendant was predisposed to participate. State v. Fiechter, 1976-NMSC-006, 89 N.M.
74, 547 P.2d 557.

Entrapment for the jury. — Evidence that defendant had previously been involved in
"hauling" marijuana, that he had furnished informer with LSD in the past and that he
himself had taken drugs went toward defendant's predisposition to commit the crime
and bore on the credibility of his testimony that representations by informer involving
thereto and violence were the inducing cause of the crime (possession of LSD); and
since there were conflicts on the entrapment issue, the trial court properly refused to
rule there was entrapment as a matter of law. State v. Sena, 1971-NMCA-044, 82 N.M.
513, 484 P.2d 355.

"Ingestion" not possession. — The mere presence of drugs in the urine or
bloodstream does not constitute possession. State v. McCoy, 1993-NMCA-064, 116
N.M. 491, 864 P.2d 307, rev'd in part on other grounds sub nom. State v. Hodge, 1994-
NMSC-087, 118 N.M. 410, 882 P.2d 1.
To convict the defendant of possession of cocaine that he had ingested, it is necessary
to prove that he voluntarily and knowingly ingested the drug in New Mexico. State v.
Franks, 1994-NMCA-097, 119 N.M. 174, 889 P.2d 209.

Possession through ingestion. — The defendant's statement that he took cocaine
was probative of the offense since the fact that he thought that cocaine was present in
his body tended to establish that: (1) cocaine was present in his body, (2) he knew that
it was cocaine when he ingested it, and (3) the ingestion was voluntary. State v. Franks,
1994-NMCA-097, 119 N.M. 174, 889 P.2d 209.

Evidence sufficient for conviction includes any clearly identifiable amount of
controlled substances. State v. Wood, 1994-NMCA-060, 117 N.M. 682, 875 P.2d 1113,
cert. denied, 117 N.M. 744, 877 P.2d 44.

Evidence not inherently improbable. — Testimony in prosecution for unlawful sale
and possession of marijuana was not inherently improbable despite fact that defendant
was claimed to have insisted on delivering the cigarettes in question in the restroom
where only he and undercover officer were present, yet afterwards supposedly received
the money for the transaction and discussed other possible dealings in a car in the
presence of several other persons. State v. Soliz, 1969-NMCA-043, 80 N.M. 297, 454
P.2d 779.

Prejudicial hearsay. — Testimony by undercover officer that defendant's name had
been called to his attention by local officers as a person allegedly dealing in marijuana
was clearly hearsay and clearly prejudicial and necessitated reversal of her conviction
for possession of marijuana. State v. Alberts, 1969-NMCA-064, 80 N.M. 472, 457 P.2d
991.

                        B.     CIRCUMSTANTIAL EVIDENCE.

Inference of possession permissible from exclusive possession. — When one has
exclusive possession of a home or apartment in which narcotics are found, it may be
inferred, even in the absence of other incriminating evidence, that such person knew of
the presence of the narcotics and had control of them. State v. Baca, 1974-NMCA-098,
87 N.M. 12, 528 P.2d 656, cert. denied, 87 N.M. 5, 528 P.2d 649.

Nonexclusive possession distinguished. — When a person is not in exclusive
possession of premises, it may not be inferred that he knew of the presence of the
marijuana (or narcotics) or had control over same unless there are some other
incriminating circumstances or statements tending to buttress such an inference. State
v. Bidegain, 1975-NMCA-065, 88 N.M. 384, 540 P.2d 864, rev'd in part on other
grounds, 1975-NMSC-060, 88 N.M. 466, 541 P.2d 971; State v. Bowers, 1974-NMCA-
135, 87 N.M. 74, 529 P.2d 300, cert. denied, 88 N.M. 29, 536 P.2d 1085; State v. Baca,
1974-NMCA-098, 87 N.M. 12, 528 P.2d 656, cert. denied, 87 N.M. 5, 528 P.2d 649.
Since defendant's wife resided with him, he was not in exclusive possession of the
premises, and an inference of constructive possession could not be drawn against him
unless there were incriminating statements or circumstances tending to support the
inference. State v. Herrera, 1977-NMCA-028, 90 N.M. 306, 563 P.2d 100, cert. denied,
90 N.M. 636, 567 P.2d 485.

Possession of agent. — An accused has constructive possession of narcotics found in
the physical possession of his agent or any other person when the defendant has the
immediate right to exercise dominion and control over the narcotics. State v. Bauske,
1974-NMCA-078, 86 N.M. 484, 525 P.2d 411.

Constructive possession shown. — Where police officers found crack cocaine in
defendant’s vehicle and powder cocaine in the vehicle of defendant’s friend; and
defendant’s friend testified that the powder cocaine belonged to defendant and that the
friend had agreed to transport the powder cocaine to defendant’s house and to take the
blame if they were caught, the evidence was sufficient to prove that defendant
constructively possessed the powder cocaine found in the vehicle of defendant’s friend
because defendant knew or believed that the substance was cocaine and defendant
knew where the cocaine was located and exercised control over it. State v. Godoy,
2012-NMCA-084, 284 P.3d 410, cert. denied, 2012-NMCERT-007.

Finding of numerous unused tinfoils inside the house occupied by defendant and his
wife and fact that on the way to the police station, when defendant's wife remarked that
the police got everything that "we had," defendant told his wife to keep her mouth shut,
were sufficient to sustain the inference that defendant constructively possessed the
heroin that was found outside. State v. Herrera, 1977-NMCA-028, 90 N.M. 306, 563
P.2d 100, cert. denied, 90 N.M. 636, 567 P.2d 485.

A showing that heroin was found in the bathroom of the master bedroom usually
occupied by defendant and his wife, that defendant was a former heroin addict who for
the last three years had been undergoing methadone treatments and according to his
own testimony took methadone daily and that the wife claimed to have never seen
heroin and other items before and not to know what they were used for, constituted
substantial evidence of defendant's constructive knowledge and possession of the
heroin. State v. Baca, 1974-NMCA-098, 87 N.M. 12, 528 P.2d 656, cert. denied, 87
N.M. 5, 528 P.2d 649.

Evidence was sufficient to find that defendant constructively possessed an eyeglass
case left under patrol car seat by his wife, knowing it contained heroin, where it took
defendant three blocks to stop his car for the police, various parts of the fix kit were
found in the car trunk and in the eyeglass case, including a syringe with defendant's
fingerprint, his wife's purse held squares of tinfoil and there were fresh needle marks on
defendant's arm. State v. Bauske, 1974-NMCA-078, 86 N.M. 484, 525 P.2d 411.

There was sufficient evidence to show constructive possession of controlled substance
with knowledge thereof where defendant was in possession of a motel room for six days
before a legal search of that room revealed heroin. State v. Montoya, 1973-NMCA-060,
85 N.M. 126, 509 P.2d 893.

Constructive possession of cocaine was shown based on evidence that the defendant
owned and had control of the car she was traveling in with her daughter, the daughter
had cocaine concealed on her person, the daughter was easily influenced to do wrong,
and the defendant insisted that police arrest her instead of her daughter. State v.
Hernandez, 1997-NMCA-006, 122 N.M. 809, 932 P.2d 499.

Even though defendant did not have exclusive possession of the bedroom where drugs
and paraphernalia were discovered, physical evidence and her own incriminating
statements rationally supported the necessary inferences to find her guilty of criminal
possession. State v. Phillips, 2000-NMCA-028, 128 N.M. 777, 999 P.2d 421, cert.
denied, 128 N.M. 689, 997 P.2d 821.

                        C.     SUFFICIENCY OF EVIDENCE.

Substantial evidence of possession. — Where the defendant was bent down behind
a fence; when police officers approached, the defendant stood up and walked toward a
shed; the defendant did not stop when the officers called out to the defendant; the
defendant’s body movements appeared as if the defendant had disposed of something;
the defendant then walked back to the officers; the officers found a bag of cocaine in
front of the shed; and when the cocaine was found, the defendant placed the
defendant’s hands behind the defendant’s back and turned around without any request
by the officers, there was sufficient evidence that the defendant had consecutive
possession of the cocaine. State v. Delgado, 2009-NMCA-061, 146 N.M. 402, 210 P.3d
828, cert. granted, 2009-NMCERT-006, 146 N.M. 734, 215 P.3d 43, remanded, 2010-
NMCA-078, 148 N.M. 870, 242 P.3d 437, cert. denied, 2010-NMCERT-007, 148 N.M.
610, 241 P.3d 611.

Place of possession. — Defendant's conviction for possession of cocaine warranted
reversal since there was insufficient evidence to prove that the drugs were actually
possessed and ingested in New Mexico, although the defendant's urine tested positive
for cocaine. State v. McCoy, 1993-NMCA-064, 116 N.M. 491, 864 P.2d 307, rev'd in
part on other grounds sub nom. State v. Hodge, 1994-NMSC-087, 118 N.M. 410, 882
P.2d 1.

Sufficient evidence. — Where police officers testified that they found a glass pipe
containing a white substance in the center console of the vehicle defendant was driving
and subsequent forensic testing revealed that the substance was methamphetamine,
the circumstantial evidence was sufficient to establish that defendant possessed or
constructively possessed the methamphetamine and the pipe and to permit the jury to
infer that defendant knew that the substance was methamphetamine and that defendant
intended to use the pipe to inhale methamphetamine. State v. Lopez, 2009-NMCA-127,
147 N.M. 364, 223 P.3d 361, cert. denied, 2009-NMCERT-010, 147 N.M. 452, 224 P.3d
1257.
A trace amount of a controlled substance is sufficient to support a conviction for
possession. — Where police responded to a report that someone was trying to kick in
the door of an apartment and encountered defendant at the scene, apparently agitated
and yelling loudly, and where, after placing defendant under arrest for disorderly
conduct, the officers found a clear glass pipe containing a white crystalline residue,
which later tested positive for methamphetamine, in defendant’s left front pocket, and
where defendant challenged the sufficiency of evidence of a trace amount of a
controlled substance found inside a glass pipe to support a conviction for possession of
methamphetamine, there was sufficient evidence to support defendant’s conviction,
because the legislature intended possession of any amount of a controlled substance to
violate, § 30-31-23(E) NMSA 1978, and the state’s evidence conclusively established
that defendant was in possession of a clear glass pipe containing the white crystalline
residue that proved to be methamphetamine. Moreover, defendant’s possession of a
glass pipe in his pocket, with a visible white residue inside the pipe, was sufficient to
create a reasonable inference that defendant knew that the residue was a controlled
substance. State v. Moncayo, 2022-NMCA-067, cert. granted.

Substantial evidence of possession. — Evidence that a voice identified as female
defendant's responded to the officers' knock, that thereafter running was heard from the
front portion of the trailer to the vicinity of the trailer in which the bathrooms were
located, that the toilet was flushed and heroin was recovered therefrom immediately
thereafter, and that upon entry the officers found the defendant standing in a location
consistent with her having been the person who flushed the toilet, along with evidence
that the other occupants of the trailer were infants and young children, two sleeping
adults and another adult in the living room, was substantial and supported defendant's
conviction for possession of heroin. State v. Anaya, 1976-NMCA-055, 89 N.M. 302, 551
P.2d 992.

Sufficient evidence of possession of controlled substances. — Where defendant
was arrested for driving on a revoked license, and where the arresting officer found on
defendant’s person ninety-seven empty small baggies and a straw with a burnt end,
items which are commonly used to package methamphetamine, a small plastic bag with
a white powdery substance, later identified as methamphetamine, and found in
defendant’s vehicle three additional baggies that contained what was identified in a field
test as methamphetamine, there was sufficient evidence for the jury to find defendant
guilty beyond a reasonable doubt of possession of methamphetamine. State v. Tidey,
2018-NMCA-014, cert. denied.

Sufficient evidence of possession of methamphetamine. — Evidence that the
arresting officer discovered methamphetamine in a pack of cigarettes removed from
defendant’s shirt pocket was sufficient to support defendant’s conviction for possession
of controlled substances. State v. Howl, 2016-NMCA-084, cert. denied.

Sufficient evidence of constructive possession of methamphetamine. — Where
defendant was charged with possession of a controlled substance, and where, at
defendant's trial, the jury was instructed that to find defendant guilty of possession of
methamphetamine, the state had to prove beyond a reasonable doubt that defendant
had methamphetamine in his possession, that he knew it was methamphetamine, and
that a person is in possession of methamphetamine when he knows it is on his person
or in his presence and he exercises control over it, a fair inference from the evidence
was sufficient to establish constructive possession where the state presented evidence
that a syringe containing methamphetamine was found on the driver's side floorboard of
the SUV defendant was driving, a blood test confirmed methamphetamine in
defendant's system, and defendant admitted to having methamphetamine earlier on the
day of the crash. From this evidence, the jury could reasonably infer that defendant had
constructive possession of the methamphetamine in the syringe. State v. Ensor, 2026-
NMCA-007, cert. denied.

Sufficiency of evidence. — Evidence that defendant knowingly transferred a forged
prescription was sufficient to sustain a conviction for knowingly possessing the drug
involved. State v. Nation, 1973-NMCA-087, 85 N.M. 291, 511 P.2d 777.

Appellant's acts of purchasing the cigarettes, receiving actual delivery thereof and then
distributing them amply supported the conclusion that he had marijuana in his
possession, as such term was defined in the instructions. State v. Romero, 1968-
NMCA-078, 79 N.M. 522, 445 P.2d 587.

Sufficient evidence of joint dominion and control of drugs and drug
paraphernalia. — Where defendant was charged with homicide by vehicle (driving
while under the influence of drugs), causing great bodily injury (driving while under the
influence of drugs), possession of drug paraphernalia, and possession of marijuana
following a car collision in which defendant was the driver and where defendant's
passenger, the owner of the vehicle that defendant was driving, was killed and another
driver was severely injured, and where investigators discovered marijuana and drug
paraphernalia in the vehicle defendant was driving, and where defendant implied that
the evidence was equally consistent with his passenger possessing the marijuana or
others having deposited the marijuana in the vehicle, there was sufficient evidence to
permit a rational jury to conclude beyond a reasonable doubt that defendant possessed
the marijuana based on evidence that the marijuana and drug paraphernalia were in a
location subject to the joint dominion and control of defendant and his passenger, and
witness testimony that the marijuana leaves and drug paraphernalia were in the vehicle
prior to police arriving on the scene. State v. Martinez, 2020-NMCA-043, cert. denied.

Evidence of possession insufficient. — Evidence that one defendant was in bed
asleep when the officers entered the trailer, that plastic baggie tops were found on top
of the commode in the bathroom off the bedroom where he was sleeping and that after
his arrest defendant asked another man in the trailer to do him an unidentified favor was
insufficient to sustain his conviction for possession of heroin flushed down a toilet by
someone in the trailer. State v. Anaya, 1976-NMCA-055, 89 N.M. 302, 551 P.2d 992.

Since there was no evidence that female defendant had any control over the keys to the
car in which she was riding or to the footlockers in its trunk, or that she had any
knowledge whatsoever of the contents of the car trunk, it was held that the evidence
relied upon to sustain her conviction was totally insubstantial. State v. Bidegain, 1975-
NMCA-065, 88 N.M. 384, 540 P.2d 864, rev'd in part on other grounds, 1975-NMSC-
060, 88 N.M. 466, 541 P.2d 971.

Where the only evidence concerning cocaine was that some was found in a vial in a box
on the coffee table of the main room of defendants' house, and there was no testimony
that any of the defendants knew of the contents of the vial or of its character, nor
evidence that any of the defendants had the power to produce or dispose of the narcotic
in question, nor any evidence that the defendants had any common purpose in the
cocaine which was found, the trial court erred in finding that there was sufficient
evidence to convict the defendants for possession of cocaine. State v. Bowers, 1974-
NMCA-135, 87 N.M. 74, 529 P.2d 300, cert. denied, 88 N.M. 29, 536 P.2d 1085 (1975).

Insufficient evidence that substance was synthetic cannabinoid. — Where
defendant was arrested and charged with a single count of possession of synthetic
cannabinoids, and where defendant claimed that there was insufficient evidence to
support his conviction because the state failed to meet its burden of proving that the
substance in his possession was a synthetic cannabinoid, there was insufficient
evidence to support defendant’s conviction where the state failed to introduce evidence
that scientific testing was ever done to determine what chemicals were present in or
applied to the substance found in defendant’s possession, and therefore could not
prove that the substance contained a chemical that falls either into one of the classes of
chemicals listed in a statute or regulation or within the neurochemical definition of
synthetic cannabinoid. State v. Arias, 2018-NMCA-057.

Ignorance of nature of substance. — Evidence that defendant, an Arapahoe Indian,
after treatment for illness by an "Indian doctor," was given "medicine" to carry on his
person as "protection," which medicine, unknown to defendant, was anhalonium (or
peyote), could not support a conviction for possession of the substance. State v. Pedro,
1971-NMCA-145, 83 N.M. 212, 490 P.2d 470.

Knowledge not shown. — A degree of furtiveness on the part of juveniles in smoking
and passing a pipe around between buildings while changing classes, in light of a
school regulation prohibiting the smoking of tobacco, was not conduct sufficient to infer
that the smokers knew the character of the substance they were using. Doe v. State,
1975-NMCA-108, 88 N.M. 347, 540 P.2d 827, cert. denied, 88 N.M. 318, 540 P.2d 248.

Testimony of a single witness was sufficient evidence for a conviction of unlawful
possession and sale of marijuana. State v. Soliz, 1969-NMCA-043, 80 N.M. 297, 454
P.2d 779.

                       V.     INDICTMENT AND INFORMATION.

Information and proof not variant. — Information charging defendant with unlawful
possession of "certain narcotic drugs, to-wit, cannabis indica, also known as marijuana"
was not at fatal variance with proof of possession of leaves and seeds of "marijuana,"
despite fact that there was no testimony identifying the substance by true botanical
name or referring to its chemical breakdown or grouping. State v. Romero, 1964-NMSC-
245, 74 N.M. 642, 397 P.2d 26.

Law reviews. — For note and comment, "State v. Urioste: A Prosecutor’s Dream and
Defender’s Nightmare," see 34 N.M. L. Rev. 517 (2004).

For article, "The Confusing Law of Criminal Intent in New Mexico," see 5 N.M. L. Rev.
63 (1974).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Drugs, Narcotics and
Poisons §§ 179, 181, 187, 188, 191.

Conviction of possession of illicit drugs found in premises of which defendant was not in
exclusive possession, 56 A.L.R.3d 948.

Conviction of possession of illicit drugs found in automobile of which defendant was not
sole occupant, 57 A.L.R.3d 1319.

Sufficiency of prosecution proof that substance defendant is charged with possessing or
selling, or otherwise unlawfully dealing in, is marijuana, 75 A.L.R.3d 717.

Competency of drug addict or user to identify suspect material as narcotic or controlled
substance, 95 A.L.R.3d 978.

Constitutionality of state legislation imposing criminal penalties for personal possession
or use of marijuana, 96 A.L.R.3d 225.

Minimum quanity of drug required to support claim that defendant is guilty of criminal
"possession" of drug under state law, 4 A.L.R.5th 1.

Sufficiency of random sampling of drug or contraband to establish jurisdictional amount
required for conviction, 45 A.L.R.5th 1.

Drug abuse: what constitutes illegal constructive possession under 21 USCS §
841(a)(1), prohibiting possession of a controlled substance with intent to manufacture,
distribute, or dispense the same, 87 A.L.R. Fed. 309.

Under what circumstances should total weight of mixture or substance in which
detectable amount of controlled substance is incorporated be used in assessing
sentence under United States sentencing guideline § 2D1.1 - post-Chapman cases, 113
A.L.R. Fed. 91.

28 C.J.S. Drugs and Narcotics § 166 et seq.
30-31-24. Controlled substances; violations of administrative
provisions.
   A. It is unlawful for any person:

        (1)    who is subject to Sections 30-31-11 through 30-31-19 NMSA 1978 to
intentionally distribute or dispense a controlled substance in violation of Section 30-31-
18 NMSA 1978;

       (2)   who is a registrant, to intentionally manufacture a controlled substance not
authorized by his registration, or to intentionally distribute or dispense a controlled
substance not authorized by his registration to another registrant or other authorized
person;

        (3)    to intentionally refuse or fail to make, keep or furnish any record,
notification, order form, statement, invoice or information required under the Controlled
Substances Act; or

       (4)   to intentionally refuse an entry into any premises for any inspection
authorized by the Controlled Substances Act.

   B. Any person who violates this section is guilty of a fourth degree felony and shall
be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

History: 1953 Comp., § 54-11-24, enacted by Laws 1972, ch. 84, § 24; 1974, ch. 9, § 5;
1980, ch. 23, § 5.

                                       ANNOTATIONS

Title of act constitutionally adequate. — Sections 30-31-20 to 30-31-25 NMSA 1978,
which define unlawful activities and provide penalties therefor, are not unconstitutional
on the ground that "unlawful activities" are not mentioned in the title of the act. State v.
Atencio, 1973-NMCA-110, 85 N.M. 484, 513 P.2d 1266, cert. denied, 85 N.M. 483, 513
P.2d 1265.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 25 Am. Jur. 2d Drugs, Narcotics and
Poisons §§ 76, 191, 206.

State law criminal liability of licensed physician for prescribing or dispensing drug or
similar controlled substance, 13 A.L.R.5th 1.

28 C.J.S. Drugs and Narcotics § 101 et seq.