2015 -- S 0518

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LC001899

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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: Senator Michael J. McCaffrey

     Date Introduced: February 26, 2015

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

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

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Controlled Substances Act" is hereby amended to read as 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 § 21-28-1.02(18), who

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

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

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to a term up to life or fined not more than five hundred thousand dollars ($500,000) nor less than

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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 § 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) 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 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

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

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

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

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and who is not exempted from penalties pursuant to chapter 28.6 of this title shall constitute a

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civil offense, rendering the offender liable to a civil penalty in the amount of one hundred fifty

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dollars ($150) and forfeiture of the marijuana, but not to any other form of criminal or civil

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punishment or disqualification. Notwithstanding any public, special, or general law to the

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contrary, this civil penalty of one hundred fifty dollars ($150) and forfeiture of the marijuana

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shall apply if the offense is the first (1st) or second (2nd) violation 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

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one 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 28.6 of this title shall constitute a civil

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offense, rendering the offender liable to a civil penalty in the amount of one hundred fifty dollars

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($150) 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. If the person under the

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

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community service within one year of the offense disposition, the penalty shall be a three hundred

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dollar ($300) civil fine and forfeiture of the marijuana, except that if no drug-awareness program

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or community service is available, the penalty shall be a fine of one hundred fifty dollars ($150)

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and forfeiture of the marijuana. The parents or legal guardian of any offender under the age of

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eighteen (18) shall be notified of the offense and the availability of a drug-awareness and

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community-service program. The drug-awareness program must be approved by the court, but

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shall, at a minimum, provide four (4) hours of instruction or group discussion, and ten (10) hours

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of community service. Notwithstanding any other public, special or general law to the contrary,

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this civil penalty shall apply if the offense is the first (1st) or second (2nd) violation 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 28.6 of this title found in possession of one ounce (1

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oz.) or less of marijuana is guilty of a misdemeanor and upon conviction may be imprisoned for

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

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

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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.

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

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

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

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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 § 21-28-4.01(c)(2)(iii) or 21-28-4.01(c)(2)(iv) shall be considered a

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violation of parole or probation.

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

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

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sealed eighteen (18) months after the payment of said civil fine.

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

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

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associated with the civil fine issued under § 21-28-4.01(c)(2)(iii) or 21-28-4.01(c)(2)(iv) shall be

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payable to the Rhode Island traffic tribunal. Fifty percent (50%) of all fines collected by the

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Rhode Island traffic tribunal from civil penalties issued pursuant to § 21-28-4.01(c)(2)(iii) or 21-

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28-4.01(c)(2)(iv) shall be expended on drug awareness and treatment programs for youth.

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

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

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

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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

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one 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.

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

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

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

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

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

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

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

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

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

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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

 

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use of salvia divinorum or datura stramonium.

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     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

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     This act would provide that records pertaining to marijuana violations would not be open

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to the public and would not be available from the traffic tribunal. In addition, the time period for

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

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the commission of the offense.

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     This act would take effect upon passage.

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