2012 -- H 7092 SUBSTITUTE A AS AMENDED

=======

LC00269/SUB A

=======

STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

____________

A N A C T

RELATING TO FOOD AND DRUGS -- UNIFORM CONTROLLED SUBSTANCES ACT

     

     

     Introduced By: Representatives Edwards, Ferri, Newberry, Williams, and Palumbo

     Date Introduced: January 11, 2012

     Referred To: House Judiciary

It is enacted by the General Assembly as follows:

1-1

     SECTION 1. Sections 21-28-4.01, 21-28-4.11 and 21-28-4.14 of the General Laws in

1-2

Chapter 21-28 entitled "Uniform Controlled Substances Act" are hereby amended to read as

1-3

follows:

1-4

     21-28-4.01. Prohibited acts A -- Penalties. -- (a) (1) Except as authorized by this

1-5

chapter, it shall be unlawful for any person to manufacture, deliver, or possess with intent to

1-6

manufacture or deliver a controlled substance.

1-7

      (2) Any person who is not a drug addicted person, as defined in section 21-28-1.02(18),

1-8

who violates this subsection with respect to a controlled substance classified in schedule I or II,

1-9

except the substance classified as marijuana, is guilty of a crime and upon conviction may be

1-10

imprisoned to a term up to life, or fined not more than five hundred thousand dollars ($500,000)

1-11

nor less than ten thousand dollars ($10,000), or both.

1-12

      (3) Where the deliverance as prohibited in this subsection shall be the proximate cause of

1-13

death to the person to whom the controlled substance is delivered, it shall not be a defense that

1-14

the person delivering the substance was at the time of delivery, a drug addicted person as defined

1-15

in section 21-28-1.02(18).

1-16

      (4) Any person, except as provided for in subdivision (2) of this subsection, who violates

1-17

this subsection with respect to:

1-18

      (i) A controlled substance classified in schedule I or II, is guilty of a crime and upon

1-19

conviction may be imprisoned for not more than thirty (30) years, or fined not more than one

1-20

hundred thousand dollars ($100,000) nor less than three thousand dollars ($3,000), or both;

2-1

      (ii) A controlled substance classified in schedule III or IV, is guilty of a crime and upon

2-2

conviction may be imprisoned for not more than twenty (20) years, or fined not more than forty

2-3

thousand dollars ($40,000), or both; provided, with respect to a controlled substance classified in

2-4

schedule III(d), upon conviction may be imprisoned for not more than five (5) years, or fined not

2-5

more than twenty thousand dollars ($20,000), or both.

2-6

      (iii) A controlled substance classified in schedule V, is guilty of a crime and upon

2-7

conviction may be imprisoned for not more than one year, or fined not more than ten thousand

2-8

dollars ($10,000), or both.

2-9

      (b) (1) Except as authorized by this chapter, it is unlawful for any person to create,

2-10

deliver, or possess with intent to deliver, a counterfeit substance.

2-11

      (2) Any person who violates this subsection with respect to:

2-12

      (i) A counterfeit substance classified in schedule I or II, is guilty of a crime and upon

2-13

conviction may be imprisoned for not more than thirty (30) years, or fined not more than one

2-14

hundred thousand dollars ($100,000), or both;

2-15

      (ii) A counterfeit substance classified in schedule III or IV, is guilty of a crime and upon

2-16

conviction may be imprisoned for not more than twenty (20) years, or fined not more than forty

2-17

thousand dollars ($40,000), or both; provided, with respect to a controlled substance classified in

2-18

schedule III(d), upon conviction may be imprisoned for not more than five (5) years, or fined not

2-19

more than twenty thousand dollars ($20,000) or both.

2-20

      (iii) A counterfeit substance classified in schedule V, is guilty of a crime and upon

2-21

conviction may be imprisoned for not more than one year, or fined not more than ten thousand

2-22

dollars ($10,000), or both.

2-23

      (c) (1) It shall be unlawful for any person knowingly or intentionally to possess a

2-24

controlled substance, unless the substance was obtained directly from or pursuant to a valid

2-25

prescription or order of a practitioner while acting in the course of his or her professional

2-26

practice, or except as otherwise authorized by this chapter.

2-27

      (2) Any person who violates this subsection with respect to:

2-28

      (i) A controlled substance classified in schedules I, II and III, IV, and V, except the

2-29

substance classified as marijuana, is guilty of a crime and upon conviction may be imprisoned for

2-30

not more than three (3) years or fined not less than five hundred dollars ($500) nor more than five

2-31

thousand dollars ($5,000), or both;

2-32

      (ii) A More than one ounce (1 oz.) of a controlled substance classified in schedule I as

2-33

marijuana is guilty of a misdemeanor except for those persons subject to subdivision 21-28-

2-34

4.01(a)(1) and upon conviction may be imprisoned for not more than one year or fined not less

3-1

than two hundred dollars ($200) nor more than five hundred dollars ($500), or both.

3-2

     (iii) Notwithstanding any public, special or general law to the contrary, the possession of

3-3

one ounce (1 oz.) or less of marijuana by a person who is eighteen (18) years of age or older and

3-4

who is not exempted from penalties pursuant to chapter 21-28.6 shall constitute a civil offense,

3-5

rendering the offender liable to a civil penalty in the amount of one hundred fifty dollars ($150)

3-6

and forfeiture of the marijuana, but not to any other form of criminal or civil punishment or

3-7

disqualification. Notwithstanding any public, special or general law to the contrary, this civil

3-8

penalty of one hundred fifty dollars ($150) and forfeiture of the marijuana shall apply if the

3-9

offense is the first (1st) or second (2nd) violation within the previous eighteen (18) months.

3-10

     (iv) Notwithstanding any public, special or general law to the contrary, possession of one

3-11

ounce (1 oz.) or less of marijuana by a person who is under the age of eighteen (18) years and

3-12

who is not exempted from penalties pursuant to chapter 21-28.6 shall constitute a civil offense,

3-13

rendering the offender liable to a civil penalty in the amount of one hundred fifty dollars ($150)

3-14

and forfeiture of the marijuana; provided the minor offender completes an approved drug

3-15

awareness program and community service as determined by the court. If the person under the

3-16

age of eighteen (18) years fails to complete an approved drug awareness program and community

3-17

service within one year of the offense, the penalty shall be a three hundred dollar ($300) civil fine

3-18

and forfeiture of the marijuana, except that if no drug awareness program or community service is

3-19

available, the penalty shall be a fine of one hundred fifty dollars ($150) and forfeiture of the

3-20

marijuana. The parents or legal guardian of any offender under the age of eighteen (18) shall be

3-21

notified of the offense and the availability of a drug awareness and community service program.

3-22

The drug awareness program must be approved by the court, but shall, at a minimum, provide

3-23

four (4) hours of instruction or group discussion, and ten (10) hours of community service.

3-24

Notwithstanding any other public, special or general law to the contrary, this civil penalty shall

3-25

apply if the offense is the first (1st) or second (2nd) violation within the previous eighteen (18)

3-26

months.

3-27

     (v) Notwithstanding any public, special, or general law to the contrary, a person not

3-28

exempted from penalties pursuant to chapter 21-28.6 found in possession of one ounce (1 oz.) or

3-29

less of marijuana is guilty of a misdemeanor and upon conviction may be imprisoned for not

3-30

more than thirty (30) days or fined not less than two hundred dollars ($200) nor more than five

3-31

hundred dollars ($500), or both, if that person has been previously adjudicated on a violation for

3-32

possession of less than one ounce (1 oz.) of marijuana under subparagraphs 21-28-4.01(c)(2)(iii)

3-33

or 21-28-4.01(c)(2)(iv) two (2) times in the eighteen (18) months prior to the third (3rd) offense.

4-34

     (vi) Any unpaid civil fine issued under subparagraphs 21-28-4.01(c)(2)(iii) or 21-28-

4-35

4.01(c)(2)(iv) shall double to three hundred dollars ($300) if not paid within thirty (30) days of

4-36

the offense. The civil fine shall double again to six hundred dollars ($600) if it has not been paid

4-37

within ninety (90) days.

4-38

     (vii) No person may be arrested for a violation of subparagraphs 21-28-4.01(c)(2)(iii) or

4-39

21-28-4.01(c)(2)(iv) except as provided in this subparagraph. Any person in possession of an

4-40

identification card, license, or other form of identification issued by the state or any state, city or

4-41

town, or any college or university, who fails to produce the same upon request of a police officer

4-42

who informs the person that he or she has been found in possession of what appears to the officer

4-43

to be one ounce (1 oz.) or less of marijuana, or any person without any such forms of

4-44

identification that fails or refuses to truthfully provide his or her name, address, and date of birth

4-45

to a police officer who has informed such person that the officer intends to provide such

4-46

individual with a citation for possession of one ounce (1 oz.) or less of marijuana, may be

4-47

arrested.

4-48

     (viii) No violation of subparagraphs 21-28-4.01(c)(2)(iii) or 21-28-4.01(c)(2)(iv) shall be

4-49

considered a violation of parole or probation.

4-50

     (ix) Any records collected by any state agency or tribunal that include personally

4-51

identifiable information about violations of subparagraphs 21-28-4.01(c)(2)(iii) or 21-28-

4-52

4.01(c)(2)(iv) shall be sealed eighteen (18) months after the payment of said civil fine.

4-53

     (3) Jurisdiction. – Any and all violations of subparagraphs 21-28-4.01(c)(2)(iii) and 21-

4-54

28-4.01(c)(2)(iv) shall be the exclusive jurisdiction of the Rhode Island traffic tribunal. All

4-55

money associated with the civil fine issued under subparagraphs 21-28-4.01(c)(2)(iii) or 21-28-

4-56

4.01(c)(2)(iv) shall be payable to the Rhode Island traffic tribunal. Fifty percent (50%) of all fines

4-57

collected by the Rhode Island traffic tribunal from civil penalties issued pursuant to

4-58

subparagraphs 21-28-4.01(c)(2)(iii) or 21-28-4.01(c)(2)(iv) shall be expended on drug awareness

4-59

and treatment programs for youth.

4-60

      (3) (4) Additionally every person convicted or who pleads nolo contendere under

4-61

paragraph (2)(i) of this subsection or convicted or who pleads nolo contendere a second or

4-62

subsequent time under paragraph (2)(ii) of this subsection, who is not sentenced to a term of

4-63

imprisonment to serve for the offense, shall be required to:

4-64

      (i) Perform, up to one hundred (100) hours of community service;

4-65

      (ii) Attend and complete a drug counseling and education program as prescribed by the

4-66

director of the department of mental health, retardation and hospitals and pay the sum of four

4-67

hundred dollars ($400) to help defray the costs of this program which shall be deposited as

4-68

general revenues. Failure to attend may result after hearing by the court in jail sentence up to one

5-1

year;

5-2

      (iii) The court shall not suspend any part or all of the imposition of the fee required by

5-3

this subsection, unless the court finds an inability to pay;

5-4

      (iv) If the offense involves the use of any automobile to transport the substance or the

5-5

substance is found within an automobile, then a person convicted or who pleads nolo contendere

5-6

under paragraphs (2)(i) and (ii) of this subsection shall be subject to a loss of license for a period

5-7

of six (6) months for a first offense and one year for each offense after this.

5-8

      (4) (5) All fees assessed and collected pursuant to paragraph (3)(ii) of this subsection

5-9

shall be deposited as general revenues and shall be collected from the person convicted or who

5-10

pleads nolo contendere before any other fines authorized by this chapter.

5-11

      (d) It shall be unlawful for any person to manufacture, distribute, or possess with intent

5-12

to manufacture or distribute, an imitation controlled substance. Any person who violates this

5-13

subsection is guilty of a crime, and upon conviction shall be subject to the same term of

5-14

imprisonment and/or fine as provided by this chapter for the manufacture or distribution of the

5-15

controlled substance which the particular imitation controlled substance forming the basis of the

5-16

prosecution was designed to resemble and/or represented to be; but in no case shall the

5-17

imprisonment be for more than five (5) years nor the fine for more than twenty thousand dollars

5-18

($20,000).

5-19

      (e) It shall be unlawful for a practitioner to prescribe, order, distribute, supply, or sell an

5-20

anabolic steroid or human growth hormone for: (1) enhancing performance in an exercise, sport,

5-21

or game, or (2) hormonal manipulation intended to increase muscle mass, strength, or weight

5-22

without a medical necessity. Any person who violates this subsection is guilty of a misdemeanor

5-23

and upon conviction may be imprisoned for not more than six (6) months or a fine of not more

5-24

than one thousand dollars ($1,000), or both.

5-25

     21-28-4.11. Second offenses. -- (A) (a) Any person convicted of a second offense under

5-26

this chapter, except for violations of subparagraphs 21-28-4.01(c)(2)(iii), 21-28-4.01(c)(2)(iv) or

5-27

21-28-4.01(c)(2)(v), may be imprisoned for a term up to twice the term authorized, fined an

5-28

amount up to twice that authorized, or both.

5-29

      (B) (b) For purposes of this section, an offense is considered a second offense if, prior to

5-30

his or her conviction of the offense, the offender has at any time been convicted under this

5-31

chapter, except for violations of subparagraphs 21-28-4.01(c)(2)(iii), 21-28-4.01(c)(2)(iv) or 21-

5-32

28-4.01(c)(2)(v), or under any statute of the United States or of any state relating to narcotic

5-33

drugs, marijuana, depressant, stimulant, or hallucinogenic drugs.

6-34

     21-28-4.14. Third or subsequent offenses. -- (a) Any person convicted of a third or

6-35

subsequent offense under this chapter, except for violations of subparagraphs 21-28-

6-36

4.01(c)(2)(iii), 21-28-4.01(c)(2)(iv) or 21-28-4.01(c)(2)(v), may be imprisoned for a term up to

6-37

three (3) times the term authorized, and fined an amount up to three (3) times that authorized by

6-38

section 21-28-4.11, or both.

6-39

      (b) For purposes of this section, an offense is considered a third or subsequent offense if,

6-40

prior to his or her conviction of the offense, the offender has at any time been convicted twice

6-41

under this chapter, except for violations of subparagraphs 21-28-4.01(c)(2)(iii), 21-28-

6-42

4.01(c)(2)(iv) or 21-28-4.01(c)(2)(v), or twice under any statute of the United States or of any

6-43

state, or any combination of them, relating to narcotic drugs, marijuana, depressant, stimulant, or

6-44

hallucinogenic drug.

6-45

     SECTION 2. Chapter 21-28 of the General Laws entitled "Uniform Controlled

6-46

Substances Act" is hereby amended by adding thereto the following section:

6-47

     21-28-4.22. Preparation of summons and related records -- Consent and form. – The

6-48

laws related to summonses, subpoenas and related records for violations of subparagraphs 21-28-

6-49

4.01(c)(2)(iii) and 21-28-4.01(c)(2)(iv), shall be served and heard in the same manner and in a

6-50

similar form as ordinary civil actions in the traffic tribunal, as provided for in sections 31-27-12,

6-51

31-27-12.1, 31-41.1-1, and as may be prescribed by rules and regulations promulgated by the

6-52

chief magistrate of the traffic tribunal pursuant to section 8-6-2.

6-53

     SECTION 3. Sections 31-27-2.4 and 31-27-12 of the General Laws in Chapter 31-27

6-54

entitled "Motor Vehicle Offenses" are hereby amended to read as follows:

6-55

     31-27-2.4. Driving while in possession of controlled substances. -- (a) In addition to

6-56

any other penalty prescribed by law, whoever operates any motor vehicle while knowingly having

6-57

in the motor vehicle or in his or her possession, a controlled substance, as defined in section 21-

6-58

28-1.02, except for possession of up to one ounce (1 oz.) of marijuana, shall have his or her

6-59

license suspended for a period of six (6) months.

6-60

      (b) This section shall not apply to any person who lawfully possesses a controlled

6-61

substance, as defined in section 21-28-1.02, as a direct result and pursuant to a valid prescription

6-62

from a licensed medical practitioner, or as otherwise authorized by chapter 28 of title 21.

6-63

     31-27-12. Service of notice -- Summons. -- (a) Any police officer observing the

6-64

violation of any statute or ordinance relating to the operation, control, or maintenance of a motor

6-65

vehicle or a violation of subparagraphs 21-28-4.01(c)(2)(iii) and 21-28-4.01(c)(2)(iv), shall at the

6-66

time or place of the violation or, if it is not possible to halt the alleged offender, as soon as

6-67

possible after observing the violation, issue a written notice, of a form and content provided for in

6-68

section 31-27-12.1, signed by the police officer and constituting a summons to appear before the

7-1

court having jurisdiction at a time and place designated in the notice.

7-2

      (b) Nothing in this chapter shall preclude a police officer from exercising in the

7-3

alternative his or her statutory powers of arrest, nor shall anything contained in this chapter

7-4

preclude the making of additional complaints against the alleged offender arising out of the

7-5

violation of any statute or ordinance relating to the operation, control, or maintenance of a motor

7-6

vehicle observed by the police officer. Nothing in this chapter shall prevent a person other than a

7-7

police officer from applying for a criminal complaint for the violation of any statute or ordinance

7-8

relating to the operation, control, or maintenance of a motor vehicle, and the person need not

7-9

show that the alleged offender has been issued a summons in connection with the alleged

7-10

violation.

7-11

     SECTION 4. Section 8-8.2-2 of the General Laws in Chapter 8-8.2 entitled "Traffic

7-12

tribunal" is hereby amended to read as follows:

7-13

     8-8.2-2. Jurisdiction. -- (a) Notwithstanding any inconsistent provision of law, all

7-14

probationary license hearings as provided in section 31-10-26, all violations of the department of

7-15

transportation, department of environmental management or board of governors for higher

7-16

education regulations regarding parking, standing, or stopping in areas under the jurisdiction of

7-17

said agencies, all violations of state statutes relating to motor vehicles, littering and traffic

7-18

offenses, except those traffic offenses committed in places within the exclusive jurisdiction of the

7-19

United States, and except driving so as to endanger resulting in death, driving so as to endanger

7-20

resulting in personal injury, driving while under the influence of liquor or drugs, driving while

7-21

under the influence of liquor or drugs resulting in death, driving while under the influence of

7-22

liquor or drugs resulting in serious bodily injury, reckless driving and other offenses against

7-23

public safety as provided in section 31-27-4, eluding a law enforcement officer with a motor

7-24

vehicle in a high speed pursuit, driving after denial, suspension or revocation of license, and

7-25

leaving the scene of an accident in violation of section 31-26-1 and section 31-26-2, and driving

7-26

without the consent of the owner and possession of a stolen motor vehicle in violation of section

7-27

31-9-1 and section 31-9-2, shall be heard and determined by the traffic tribunal pursuant to the

7-28

regulations promulgated by the chief magistrate of the traffic tribunal; provided, however, the

7-29

traffic tribunal shall not hear any parking, standing or stopping violations which occur in any city

7-30

or town which has established its own municipal court and has jurisdiction over such violations.

7-31

Nothing contained herein shall abrogate the powers of the Rhode Island family court under the

7-32

provisions of chapter 1 of title 14.

7-33

      (b) Notwithstanding any inconsistent provision of law, the traffic tribunal shall have

7-34

concurrent jurisdiction to hear and determine, pursuant to rules and regulations promulgated by

8-1

the chief magistrate of the traffic tribunal, all violations of any ordinances, rules and regulations

8-2

governing the public waters and the speed, management and control of all vessels and the size,

8-3

type and location and use of all anchorages and moorings within the jurisdiction of the towns of

8-4

North Kingstown, South Kingstown, Portsmouth, Middletown, Narragansett and Tiverton

8-5

enforced and supervised by the harbormaster and referred to the traffic tribunal, and the terms

8-6

"traffic violations" and "traffic infraction" when used in this chapter shall include the aforesaid

8-7

violations and such violations shall be adjudicated in accordance with the provisions of this

8-8

chapter. Nothing contained herein shall abrogate the powers of the Rhode Island coastal

8-9

management council under the provisions of chapter 23 of title 46.

8-10

      (c) Notwithstanding any inconsistent provision of law, the traffic tribunal shall have

8-11

jurisdiction to hear and determine, pursuant to rules and regulations promulgated by the chief

8-12

magistrate of the Rhode Island traffic tribunal, all civil violations for sections 20-1-12, 20-11-20,

8-13

20-16-17, 23-22.5-9, 32-2-4, subparagraphs 21-28-4.01(c)(2)(iii) and 21-28-4.01(c)(2)(iv) and

8-14

subsection 46-22-19(1) as set forth in section 42-17.10-1.

8-15

      (d) A party aggrieved by a final order of the traffic tribunal appeals panel shall be

8-16

entitled to a review of the order by a judge of the district court. Unless otherwise provided in the

8-17

rules of procedure of the district court, such review shall be on the record and appellate in nature.

8-18

The district court shall by rules of procedure establish procedures for review of an order entered

8-19

by the appeals panel of the traffic tribunal.

8-20

      (e) Violations of any statute, rule, ordinance or regulation referenced in this section are

8-21

subject to fines enumerated in section 31-41.1-4, except for violations of subparagraphs 21-28-

8-22

4.01(c)(2)(iii) and 21-28-4.01(c)(2)(iv).

8-23

     SECTION 5. Chapter 8-8.2 of the General Laws entitled "Traffic tribunal" is hereby

8-24

amended by adding thereto the following section:

8-25

     8-8.2-21. Abstracts of court records -- Traffic tribunal. – A full record shall be kept by

8-26

the Rhode Island traffic tribunal in this state of every case in which a person is charged with

8-27

violating subparagraphs 21-28-4.01(c)(2)(iii) and 21-28-4.01(c)(2)(iv). An abstract of the record

8-28

shall be retained by the court. The abstract shall be made upon forms prepared by the chief

8-29

magistrate of the Rhode Island traffic tribunal and shall include all necessary information as to

8-30

the parties to the cause, the nature of the offense, the date of the hearing, the plea, the decision,

8-31

the judgment, and the result, and every abstract shall be certified by the clerk of the court. The

8-32

Rhode Island traffic tribunal shall keep the records and they shall not be open to public

8-33

inspection. The chief magistrate of the traffic tribunal shall make the records available to Rhode

8-34

Island state and local police departments for their inspection of the details of cases which have

9-1

been heard before the tribunal.

9-2

     SECTION 6. This act shall take effect on April 1, 2013.

     

=======

LC00269/SUB A

========

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO FOOD AND DRUGS -- UNIFORM CONTROLLED SUBSTANCES ACT

***

10-1

     This act would decriminalize the possession of one ounce (1 oz.) or less of marijuana and

10-2

make it a civil offense in most cases, and would impose civil penalties starting at one hundred

10-3

fifty dollars ($150).

10-4

     This act would take effect April 1, 2013.

     

=======

LC00269/SUB A

=======

H7092A