Hon. William E. Stanton Town Attorney, Stanford

This is written in response to your request for an opinion of the Attorney General.

In your letter, you state that the Town Board of Stanford has been asked by the dog warden to purchase for him a tranquilizer gun to be used in the capture of animals in his capacity as a town employee. You ask whether or not such use of a tranquilizer gun is legal, the possible legal ramifications from the use of such weapon and whether or not the use of such guns is accepted or frowned upon by the State of New York.

We are unaware of any provision of law making possession or use of the gun, per se, unlawful. However, use of the dart projectile and the tranquilizer are other matters.

The tranquilizing drugs used with darts are controlled substances (Public Health Law, art 33). Section 3304 of the Public Health Law provides:

"It shall be unlawful for any person to manufacture, sell, prescribe, distribute, dispense, administer, possess, have under his control, abandon, or transport a controlled substance except as expressly allowed by this article." (Emphasis supplied.)

Article 33 of the Public Health Law allows practitioners, as defined by section 3302 (28) of said law, to possess and utilize controlled substances in the course of their professional practices. There are a few additional exemptions from the provisions restricting the possession and control of controlled substances, and they are set forth in Public Health Law, § 3305. A non-practitioner dog warden is not included among the exemptions. We note, too, that the Commissioner of Health has not, by regulation, provided for a non-practitioner dog warden to obtain, possess, dispense or administer controlled substances.

Additionally, the dart projectile fired by the gun is technically a hypodermic needle, possession of which by a non-practitioner dog warden is prohibited by Public Health Law, § 3381. 10 NYCRR 80.131 (b) provides in relevant part that it shall be unlawful for any person to obtain or possess a hypodermic needle unless such possession has been authorized by the Commissioner of Health. Possession by a non-practitioner dog warden is not so authorized.

From all of the foregoing, it is our opinion that the Town of Stanford may not purchase a tranquilizer gun for its dog warden, who is not authorized to possess or use the controlled substance or hypodermic needle used in conjunction with the gun. Since the item cannot be lawfully used, the Town cannot expend public funds to purchase it.