2015 -- S 0323

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LC000377

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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 THE UNIFORMED CONTROLLED SUBSTANCES ACT

     Introduced By: Senators Miller, Goldin, Nesselbush, and Jabour

     Date Introduced: February 12, 2015

     Referred To: Senate Health & Human Services

     It is enacted by the General Assembly as follows:

     SECTION 1. Section 21-28-4.1 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 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 a drug

awareness program approved by the department of behavioral healthcare, developmental

disabilities and hospitals 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) 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) 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) 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 that include personally

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

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

      (3) Jurisdiction. - 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 deposited as general revenues as determined by the department of behavioral

healthcare, developmental disabilities and hospitals (BHDDH) and used to fund substance abuse

prevention programs and student assistance programs for youth pursuant to chapters 21.2 and

21.3 of title 16, and in accordance with the criteria identified in §§ 16-21.2-4(a) and 16-21.3-2(a).

      (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;

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

director of the department of mental health, retardation 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 as determined by the department of

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

abuse prevention programs and student assistance programs for youth pursuant to chapters 21.2

and 21.3 of title 16 and in accordance with the criteria identified in §§ 16-21.2-4(a) and 16-21.3-

2(a). 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 this.

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

shall be deposited as general revenues as determined by the department of behavioral healthcare,

developmental disabilities and hospitals (BHDDH) to fund substance abuse prevention programs

and student assistance programs for youth pursuant to chapters 21.2 and 21.3 of title 16 and in

accordance with the criteria identified in §§ 16-21.2-4(a) and 16-21.3-2(a) 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

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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

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

use of salvia divinorum or datura stramonium.

     SECTION 2. Sections 16-21.2-4 and 16-21.2-5 of the General Laws in Chapter 16-21.2

entitled "The Rhode Island Substance Abuse Prevention Act" are hereby amended to read as

follows:

     16-21.2-4. Substance abuse prevention program. -- (a) The department of behavioral

healthcare, developmental disabilities and hospitals shall be charged with the administration of

this chapter and shall:

     (i) Identify funding distribution criteria;

     (ii) Identify criteria for effective substance abuse prevention programs; and

     (iii) Provide provide grants to assist in the planning, establishment, and operation and

reporting of substance abuse prevention programs that incorporate such criteria. Grants under this

section shall be made to municipal governments or their designated agents according to the

following guidelines:

      (1) The maximum grant shall be one hundred twenty-five thousand dollars ($125,000);

provided, however, in the event that available funding exceeds $1.6 million in a fiscal year, those

surplus funds are to be divided proportionately among the cities and towns on a per capita basis

but in no event shall the city of Providence exceed a maximum grant cap of $175,000.00.

      (2) In order to obtain a grant, the municipality or its designated agent must in the first

year:

      (i) Demonstrate the municipality's need for a comprehensive substance abuse program in

the areas of prevention and education.

      (ii) Demonstrate that the municipality to be served has established by appropriate

legislative or executive action, a substance abuse prevention council which shall assist in

assessing the needs and resources of the community, developing a three (3) year plan of action

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addressing the identified needs, the operation and implementation of the overall substance abuse

prevention program; coordinating existing services such as law enforcement, prevention,

treatment, and education; consisting of representatives of the municipal government,

representatives of the school system, parents, and human service providers.

      (iii) Demonstrate the municipality's ability to develop a plan of implementation of a

comprehensive three (3) year substance abuse prevention program based on the specific needs of

the community to include high risk populations of adolescents, children of substance abusers, and

primary education school aged children.

      (iv) Agree to conduct a survey/questionnaire of the student population designed to

establish the extent of the use and abuse of drugs and alcohol in students throughout the local

community's school population.

      (v) Demonstrate that at least twenty percent (20%) of the cost of the proposed program

will be contributed either in cash or in-kind by public or private resources within the

municipality.

     (3) Each municipality that receives a grant must demonstrate in an annual written report

submitted to the department of behavioral healthcare, developmental disabilities and hospitals

that the funding issued is expended on substance abuse prevention programs that reflect the

criteria pursuant to subsection (a) of this section.

      (b) The department of behavioral healthcare, developmental disabilities and hospitals

shall adopt rules and regulations necessary and appropriate to carry out the purposes of this

section.

     16-21.2-5. Funding of substance abuse prevention program. -- (a)(1) Money to fund

the Rhode Island Substance Abuse Prevention Act shall be appropriated from state general

revenues and shall be raised by assessing an additional penalty of thirty dollars ($30.00) for all

speeding violations as set forth in section 31-43-5.1.

     (2) Money to fund the Rhode Island substance abuse prevention program shall be

appropriated from state general revenues collected by the Rhode Island traffic tribunal from civil

penalties issued pursuant to §§ 21-28-4.01(c)(2)(iii) and 21-28-4.01(c)(2)(iv) in accordance with

the distribution criteria identified by the department of behavioral healthcare, developmental

disabilities and hospitals identified in § 16-21.2-4(a).

     (b) The money shall be deposited as general revenues. The department of behavioral

healthcare, developmental disabilities and hospitals may utilize up to ten percent (10%) of the

sums appropriated for the purpose of administering the substance abuse prevention program.

      (b)(c) Grants made under this chapter shall not exceed money available in the substance

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abuse prevention program.

     SECTION 3. Sections 16-21.3-2 and 16-21.3-3 of the General Laws in Chapter 16-21.3

entitled "The Rhode Island Student Assistance Junior High/ Middle School Act" are hereby

amended to read as follows:

     16-21.3-2. Junior high/middle school student assistance program High School/junior

high/middle school student assistance program. -- (a) The department of behavioral healthcare,

developmental disabilities and hospitals shall be charged with the administration of this chapter

and shall:

     (1) Identify funding distribution criteria;

     (2) Identify criteria for effective substance abuse prevention programs; and

     (3) Contract contract with appropriate substance abuse prevention/intervention agencies

to provide student assistance services that incorporate such criteria in high school/junior

high/middle schools.

      (b) Following the first complete year of operation, school systems receiving high

school/junior high/middle school student assistance services will be required to contribute twenty

percent (20%) of the costs of student assistance counselors to the service provider agency in order

to continue the services.

     16-21.3-3. Funding of junior high/middle school student assistance program

Funding of high school/junior high/middle school student assistance program. -- (a) (1)

Money to fund this program shall be raised by assessing an additional substance abuse prevention

assessment of thirty dollars ($30.00) for all moving motor vehicle violations handled by the

traffic tribunal including, but not limited to, those violations set forth in section 31-41.1-4, except

for speeding. The money shall be deposited in a restricted purpose receipt account separate from

all other accounts within the department of behavioral healthcare, developmental disabilities and

hospitals. The restricted purpose receipt account shall be known as the high school/junior

high/middle school student assistance fund and the traffic tribunal shall transfer money from the

high school/junior high/middle school student assistance fund to the department of behavioral

healthcare, developmental disabilities and hospitals for the administration of the Rhode Island

Student Assistance High School/Junior High/Middle School Act.

     (2) Money to fund the student assistance programs shall be appropriated from state

general revenues collected by the Rhode Island traffic tribunal from civil penalties issued

pursuant to §§ 21-28-4.01(c)(2)(iii) and 21-28-4.01(c)(2)(iv) in accordance with the distribution

criteria identified by the department of behavioral healthcare, developmental disabilities and

hospitals identified in § 16-21.2-4(a).

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     (b) The department of behavioral healthcare, developmental disabilities and hospitals

may utilize up to ten percent (10%) of the sums collected from the additional penalty for the

purpose of administering the program.

     SECTION 4. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO THE UNIFORMED CONTROLLED SUBSTANCES ACT

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     This act would: (1) place approval of drug awareness programs for minors charged with

civil marijuana offenses in the discretion of the department of behavioral healthcare,

developmental disabilities and hospitals (BHDDH); (2) redirect funds from civil fines imposed to

the general revenue fund to be expended by BHDDH to fund substance abuse and student

assistance programs for youth; (3) mandate that BHDDH establish funding criteria for

distribution of funds and require that municipalities receiving funds file annual reports verifying

that the funds are being used for substance abuse prevention programs; and (4) make high schools

eligible for assistance programs.

     This act would take effect upon passage.

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