2014 -- S 2660 SUBSTITUTE A

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2014

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A N   A C T

RELATING TO FOOD AND DRUGS - UNIFORM CONTROLLED SUBSTANCES ACT

     Introduced By: Senator Michael J.McCaffrey

     Date Introduced: March 04, 2014

     Referred To: Senate Judiciary

     (Attorney General)

It is enacted by the General Assembly as follows:

     SECTION 1. Section 21-28-4.01 of the General Laws in Chapter 21-28 entitled "Uniform

Controlled Substances Act" is hereby amended to read as follows:

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

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

manufacture or deliver a controlled substance.

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

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

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

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

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

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

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

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

in section 21-28-1.02(18).

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

this subsection with respect to:

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

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

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

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

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

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

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

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

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

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

dollars ($10,000), or both.

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

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

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

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

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

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

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

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

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

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

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

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

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

dollars ($10,000), or both.

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

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

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

practice, or except as otherwise authorized by this chapter.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ounce (1 oz.) or less of marijuana by a person who is sixteen (16) years of age or older, but under

the age of eighteen (18) years and who is not exempted from penalties pursuant to chapter 21-

28.6 shall constitute a civil offense, rendering the offender liable to a civil penalty in the amount

of one hundred fifty dollars ($150) and forfeiture of the marijuana; provided the minor offender

completes an approved drug awareness program and community service as determined by the

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

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

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

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

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

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

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

the court, but shall, at a minimum, provide four (4) hours of instruction or group discussion, and

ten (10) hours of community service. Notwithstanding any other public, special or general law to

the contrary, this civil penalty shall apply if the offense is the first (1st) or second (2nd) violation

within the previous eighteen (18) months.

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

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

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

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

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

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

or 21-28-4.01(c)(2)(iv), or 21-28-4.01(c)(2)(x) 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-

4.01(c)(2)(iv), or 21-28-4.01(c)(2)(x) shall double to three hundred dollars ($300) if not paid

within thirty (30) days of the offense. The civil fine shall double again to six hundred dollars

($600) if it has not been paid within ninety (90) days.

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

21-28-4.01(c)(2)(iv), or 21-28-4.01(c)(2)(x) except as provided in this subparagraph. Any person

in possession of an identification card, license, or other form of identification issued by the state

or any state, city or town, or any college or university, who fails to produce the same upon

request of a police officer who informs the person that he or she has been found in possession of

what appears to the officer to be one ounce (1 oz.) or less of marijuana, or any person without any

such forms of identification that fails or refuses to truthfully provide his or her name, address, and

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

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

arrested.

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

considered a violation of parole or probation.

      (ix) Any records collected by any state agency, or tribunal, or the family court that

include personally identifiable information about violations of subparagraphs 21-28-

4.01(c)(2)(iii), or 21-28-4.01(c)(2)(iv), or 21-28-4.01(c)(2)(x) shall be sealed eighteen (18)

months after the payment of said civil fine.

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

ounce (1 oz.) or less of marijuana by a person who is under the age of sixteen (16) years and who

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

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

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

awareness program and community service as determined by the court. In addition, the court shall

order a substance abuse assessment and, if recommended, substance abuse treatment. If the

person under the age of sixteen (16) years fails to complete an approved drug awareness program

and community service within one year of the offense, the penalty shall be a civil fine of three

hundred dollars ($300) and forfeiture of the marijuana, except that if no drug awareness program

or community service is available, the penalty shall be a civil fine of one hundred fifty dollars

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

age of sixteen (16) shall be notified of the offense and the availability of a drug awareness and

community service program, and the mandatory substance abuse assessment. The drug awareness

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program must be approved by the court, but shall, at a minimum, provide four (4) hours of

instruction or group discussion, and ten (10) hours of community service. Notwithstanding any

other public, special or general law to the contrary, this civil penalty shall apply if the offense is

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

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

21-28-4.01(c)(2)(iv) shall be the exclusive jurisdiction of the Rhode Island traffic tribunal. All

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

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

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

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

and treatment programs for youth shall be deposited with and administered by the department of

behavioral healthcare, developmental disabilities and hospitals (BHDDH) to fund prevention and

treatment services for youth.

     (ii) Any and all violations of § 21-28-4.01(c)(2)(x) shall be within the exclusive

jurisdiction of the Rhode Island family court. All money associated with the civil fine issued

under § 21-28-4.01(c)(2)(x) shall be payable to the Rhode Island family court. Fifty percent

(50%) of all fines collected by the Rhode Island family court from civil penalties issued pursuant

to § 21-28-4.01(c)(2)(x) shall be deposited with and administered by the department of behavioral

healthcare, developmental disabilities and hospitals (BHDDH) to fund prevention and treatment

services for youth.

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

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

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

serve for the offense, shall be required to:

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

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

director of the department of mental health, retardation and hospitals department of behavioral

healthcare, developmental disabilities and hospitals and pay the sum of four hundred dollars

($400) to help defray the costs of this program which shall be deposited as general revenues with

and administered by the department of behavioral healthcare, developmental disabilities and

hospitals (BHDDH) to fund prevention and treatment services. Failure to attend may result after

hearing by the court in jail sentence up to one year;

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

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

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

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

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

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

be deposited as general revenues with and administered by the department of behavioral

healthcare, developmental disabilities and hospitals (BHDDH) to fund prevention and treatment

services and shall be collected from the person convicted or who pleads nolo contendere before

any other fines authorized by this chapter.

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

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

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

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

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

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

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

($20,000).

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

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

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

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

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

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

     SECTION 2. This act shall take effect on September 1, 2014.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO FOOD AND DRUGS - UNIFORM CONTROLLED SUBSTANCES ACT

***

     This act would transfer the jurisdiction of possession of one ounce (1 oz.) or less of

marijuana by a person who is under the age of eighteen (18) years from the Rhode Island traffic

tribunal to the Rhode Island family court. The act would also require the family court to order a

substance abuse assessment and, if recommended, substance abuse treatment, for such violations.

     This act would take effect on September 1, 2014.

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