- CR40-391. Selling or Dispensing Xylazine, 18 V.S.A. § 4233b (04/01/25)
Reporter’s Note
Mental Element. Note that, in 2024, the legislature created a new definition of “knowingly” that applies exclusively to 18 V.S.A. §§ 4233a (selling or dispensing fentanyl), 4233b (selling or dispensing xylazine), and 4234(b) (selling or dispensing depressant, stimulant, or narcotic drugs other than fentanyl, heroin, or cocaine). See 2024, No. 125 (S.58). This definition does not apply to other sections of Title 18. The xylazine model instruction incorporates this definition.
“Dispensing.” The word “dispense” is defined under 18 V.S.A. § 4201(7) to include “distribute, leave with, give away, dispose of, or deliver.” It is the committee’s understanding that “dispensing” a regulated drug necessarily involves a transfer to another individual. One who disposes of regulated drugs by flushing them down the toilet is not thereby guilty of dispensing. While it may be a crime to possess the drug, it is not a crime to dispossess oneself of the drug so long as the dispossession does not involve selling or dispensing. State v. Harris, 152 Vt. 507, 509 (1989).
Note that 18 V.S.A. § 4233b(b) outlines certain “permitted activities related to xylazine.” Courts may need to instruct on these exceptions in an appropriate case.