2015 -- H 5874 SUBSTITUTE A

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2015

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A N   A C T

RELATING TO UNIFORM CONTROLLED SUBSTANCES ACT - OFFENSES AND

PENALTIES

     Introduced By: Representatives Jacquard, Johnston, Lima, and Nunes

     Date Introduced: March 12, 2015

     Referred To: House Judiciary

     (Judiciary)

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 § 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 § 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 § 21-28-4.01(a)(1) and

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upon conviction may be imprisoned for not more than one year or fined not less 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 28.6 of this title 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 under the age of eighteen (18) years and

who is not exempted from penalties pursuant to chapter 28.6 of this title 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 disposition, 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 28.6 of this title 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 § 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.

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

shall double to three hundred dollars ($300) if not paid within thirty (30) days of the offense

disposition. 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 § 21-28-4.01(c)(2)(iii) or 21-28-

4.01(c)(2)(iv) 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 § 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 that include personally

identifiable information about violations of § 21-28-4.01(c)(2)(iii) or 21-28-4.01(c)(2)(iv) shall

not be sealed eighteen (18) months after the payment of said civil fine open to public inspection

in accordance with § 8-8.2-21.

      (3) Jurisdiction. - Any and all violations of § 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 § 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 § 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.

      (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 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

general revenues. 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;

      (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.

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

be deposited as general revenues 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 that 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.

      (f) It is unlawful for any person to knowingly or intentionally possess, manufacture,

distribute, or possess with intent to manufacture or distribute any extract, compound, salt

derivative, or mixture of salvia divinorum or datura stramonium or its extracts unless the person

is exempt pursuant to the provisions of § 21-28-3.30. Notwithstanding any laws to the contrary,

any person who violates this section is guilty of a misdemeanor, and, upon conviction, may be

imprisoned for not more than one year, or fined not more than one thousand dollars ($1,000), or

both. The provisions of this section shall not apply to licensed physicians, pharmacists, and

accredited hospitals and teaching facilities engaged in the research or study of salvia divinorum or

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datura stramonium and shall not apply to any person participating in clinical trials involving the

use of salvia divinorum or datura stramonium.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO UNIFORM CONTROLLED SUBSTANCES ACT - OFFENSES AND

PENALTIES

***

     This act would provide that records pertaining to marijuana violations under §§ 21-28-

4.01(c)(2)(ii) and 21-28-4.01 (c)(2)(iv) would not be open to the public consistent with § 8-8.2-21

and would eliminate the provision of law providing for the sealing of records eighteen (18)

months after payment of a civil fine. The act would also provide that the time period for the

doubling and tripling of fines would start at the time of disposition rather than at the time of the

commission of the offense.

     § 8-8.2-21, for the purpose of explanation, is set forth below:

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

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

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

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

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

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

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

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

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

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

been heard before the tribunal."

     This act would take effect upon passage.

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