2012 -- S 2253 SUBSTITUTE A

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LC00705/SUB A

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO FOOD AND DRUGS -- UNIFORM CONTROLLED SUBSTANCES ACT

     Introduced By: Senators Miller, Jabour, Perry, Metts, and Nesselbush

     Date Introduced: January 26, 2012

     Referred To: Senate Judiciary

It is enacted by the General Assembly as follows:

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

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

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follows:

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

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

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manufacture or deliver a controlled substance.

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

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

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

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

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

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

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

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

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in section 21-28-1.02(18).

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

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this subsection with respect to:

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

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

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

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

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

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

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

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

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

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

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dollars ($10,000), or both.

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

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

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

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

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

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

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

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

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

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

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

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

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

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dollars ($10,000), or both.

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

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

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

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practice, or except as otherwise authorized by this chapter.

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

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

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

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

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

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

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

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one year or fined not less than two hundred dollars ($200) nor more than five hundred dollars

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($500), or both.

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

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

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who is not exempted from penalties pursuant to chapter 21-28.6-1 shall constitute a civil offense,

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

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

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

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

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offense is the first (1st) or second (2nd) offense issued to the offender within the previous eighteen

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(18) months.

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

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

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who is not exempted from penalties pursuant to chapter 21-28.6-1 shall constitute a civil offense,

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

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

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awareness program and community service as determined by the court or hearing board with

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jurisdiction. If the person under the age of eighteen (18) years fails to complete an approved drug

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awareness program and community service within one year of the offense, the penalty shall be a

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three hundred dollar ($300) civil fine and forfeiture of the marijuana, except that if no drug

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awareness program or community service is available, the penalty shall be a fine of one hundred

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fifty dollars ($150) and forfeiture of the marijuana. The parents or legal guardian of any offender

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under the age of eighteen (18) shall be notified of the offense and the availability of a drug

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awareness and community service program. The drug awareness program must be approved by

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the court or juvenile hearing board having jurisdiction over the offense, but shall, at a minimum,

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

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

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shall apply if the offense is the first (1st) or second (2nd) offense issued to the offender within the

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previous eighteen (18) months.

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

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

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

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

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hundred dollars ($500), or both, if that person has been previously cited for possession of less

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

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

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

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

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

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within ninety (90) days.

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

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

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

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

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

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

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

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

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

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arrested.

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

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considered a violation of parole or probation.

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     (ix) Records of violations of subparagraphs 21-28-4.01(c)(2)(iii) or 21-28-4.01(c)(2)(iv)

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shall be confidential and shall not be disclosed to anyone except for municipal or state law

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enforcement for the sole purpose of determining if an individual has been previously cited for a

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violation of subparagraphs 21-28-4.01(c)(2)(iii) or 21-28-4.01(c)(2)(iv) in the previous eighteen

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(18) months, except that aggregate non-identifiable data, including the total number of citations

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issued, the number of fines paid, and demographic information about individuals issued citations,

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shall be released to the public at least once per year for the previous year and shall be available to

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researchers upon request.

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

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

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

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     (3) The money associated with the civil fine issued under subparagraphs 21-28-

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4.01(c)(2)(iii) or 21-28-4.01(c)(2)(iv) shall be payable to the Rhode Island traffic tribunal. Fifty

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percent (50%) of all fines collected by the Rhode Island traffic tribunal from civil penalties issued

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

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awareness and treatment programs for youth.

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

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

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

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

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

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

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

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

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

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year;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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($20,000).

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

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

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

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

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

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

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

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

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

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amount up to twice that authorized, or both.

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

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

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

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

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

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

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

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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

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

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section 21-28-4.11, or both.

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

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

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

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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

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

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hallucinogenic drug.

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SECTION 2. This act shall take effect January 1, 2013.

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LC00705/SUB A

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO FOOD AND DRUGS -- UNIFORM CONTROLLED SUBSTANCES ACT

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

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

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fifty dollars ($150).

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     This act would take effect January 1, 2013.

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LC00705/SUB A

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