2016 -- S 2544

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LC004506

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2016

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A N   A C T

RELATING TO DELINQUENT AND DEPENDENT CHILDREN-FOOD AND DRUGS-

UNIFORM CONTROLLED SUBSTANCES ACT

     Introduced By: Senators McCaffrey, Felag, and Walaska

     Date Introduced: February 25, 2016

     Referred To: Senate Judiciary

     (Attorney General)

It is enacted by the General Assembly as follows:

     SECTION 1. Section 14-1-3 of the General Laws in Chapter 14-1 entitled "Proceedings

in Family Court" is hereby amended to read as follows:

     14-1-3. Definitions. -- The following words and phrases when used in this chapter shall,

unless the context otherwise requires, be construed as follows:

      (1) "Adult" means a person eighteen (18) years of age or older, except that "adult"

includes any person seventeen (17) years of age or older who is charged with a delinquent offense

involving murder, first degree sexual assault, first degree child molestation, or assault with intent

to commit murder, and that person shall not be subject to the jurisdiction of the family court as set

forth in §§ 14-1-5 and 14-1-6 if after a hearing, the family court determines that probable cause

exists to believe that the offense charged has been committed and that the person charged has

committed the offense.

      (2) "Appropriate person," as used in §§ 14-1-10 and 14-1-11, except in matters relating

to adoptions and child marriages, means and includes:

      (i) Any police official of this state, or of any city or town within this state;

      (ii) Any duly qualified prosecuting officer of this state, or of any city or town within this

state;

      (iii) Any director of public welfare of any city or town within this state, or his or her duly

authorized subordinate;

      (iv) Any truant officer or other school official of any city or town within this state;

      (v) Any duly authorized representative of any public or duly licensed private agency or

institution established for purposes similar to those specified in § 8-10-2 or 14-1-2; or

      (vi) Any maternal or paternal grandparent, who alleges that the surviving parent, in those

cases in which one parent is deceased, is an unfit and improper person to have custody of any

child or children.

      (3) "Child" means a person under eighteen (18) years of age.

      (4) "The court" means the family court of the state of Rhode Island.

      (5) "Delinquent" when applied to a child means and includes any child who has

committed any offense which, if committed by an adult, would constitute a felony, or who has on

more than one occasion violated any of the other laws of the state or of the United States or any

of the ordinances of cities and towns, other than ordinances relating to the operation of motor

vehicles.

      (6) "Dependent" means any child who requires the protection and assistance of the court

when his or her physical or mental health or welfare is harmed or threatened with harm due to the

inability of the parent or guardian, through no fault of the parent or guardian, to provide the child

with a minimum degree of care or proper supervision because of:

      (i) The death or illness of a parent; or

      (ii) The special medical, educational, or social service needs of the child which the

parent is unable to provide.

      (7) "Justice" means a justice of the family court.

      (8) "Neglect" means a child who requires the protection and assistance of the court when

his or her physical or mental health or welfare is harmed or threatened with harm when the

parents or guardian:

      (i) Fails to supply the child with adequate food, clothing, shelter, or medical care, though

financially able to do so or offered financial or other reasonable means to do so;

      (ii) Fails to provide the child proper education as required by law; or

      (iii) Abandons and/or deserts the child.

      (9) "Wayward" when applied to a child means and includes any child:

      (i) Who has deserted his or her home without good or sufficient cause;

      (ii) Who habitually associates with dissolute, vicious, or immoral persons;

      (iii) Who is leading an immoral or vicious life;

      (iv) Who is habitually disobedient to the reasonable and lawful commands of his or her

parent or parents, guardian, or other lawful custodian;

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      (v) Who, being required by chapter 19 of title 16 to attend school, willfully and

habitually absents himself or herself from school or habitually violates the rules and regulations

of the school when he or she attends; or

      (vi) Who has on any occasion violated any of the laws of the state or of the United States

or any of the ordinances of cities and towns, other than ordinances relating to the operation of

motor vehicles.; or

     (vii) Any child under seventeen (17) years of age who is in possession of one ounce (1

oz.) or less of marijuana, as defined in §21-28-1.02, and who is not exempted from the penalties

pursuant to chapter 28.6 of title 21.

      (10) The singular shall be construed to include the plural, the plural the singular, and the

masculine the feminine, when consistent with the intent of this chapter.

      (11) For the purposes of this chapter, "electronic surveillance and monitoring devices"

means any "radio frequency identification device (RFID)" OR "global positioning device" that is

either tethered to a person or is intended to be kept with a person and is used for the purposes of

tracking the whereabouts of that person within the community.

     SECTION 2. Chapter 14-5 of the General Laws entitled "Treatment of Juveniles for

Chemical Dependency" is hereby amended by adding thereto the following section:

     14-5-8. Possession of one ounce (1 oz.) or less of marijuana. – Notwithstanding any

public, special, or general law to the contrary, possession of one ounce (1 oz.) or less of

marijuana, as defined in §21-28-1.02, by a child under seventeen (17) years of age and who is not

exempted from penalties pursuant to chapter 28.6 of title 21, shall constitute a status offense

pursuant to §14-1-3 (9)(vii) and forfeiture of the marijuana. The family court may order a

substance abuse assessment and, if recommended, substance abuse treatment. The parents or legal

guardian of any child under seventeen (17) years of age shall be notified of the offense.

     SECTION 3. 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 § 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.

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      (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

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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 (a)(1) of this section and

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 seventeen (17) years of age or older and

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 seventeen (17) years of age or older and under the age of

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

service within one year of the 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 seventeen (17) years of age or

older and 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

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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 or second 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 (c)(2)(iii) or (c)(2)(iv) of this

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

      (vi) Any unpaid civil fine issued under (c)(2)(iii) or (c)(2)(iv) of this subsection shall

double to three hundred dollars ($300) if not paid within thirty (30) days of the 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 (c)(2)(iii) or (c)(2)(iv) of this

subsection 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 who

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 (c)(2)(iii) or (c)(2)(iv) of this subsection 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 (c)(2)(iii) or (c)(2)(iv) of this

subsection shall not be open to public inspection in accordance with § 8-8.2-21.

      (3) Jurisdiction. - Any and all violations of (c)(2)(iii) and (c)(2)(iv) of this subsection

shall be the exclusive jurisdiction of the Rhode Island traffic tribunal. All money associated with

the civil fine issued under (c)(2)(iii) or (c)(2)(iv) of this subsection 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 (c)(2)(iii) or (c)(2)(iv) of this subsection 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

(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 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. 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,

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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 4. This act shall take effect on September 1, 2016.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO DELINQUENT AND DEPENDENT CHILDREN-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 seventeen (17) years from the Rhode Island Traffic

Tribunal to the Rhode Island Family Court. The act would also provide the Family Court with

jurisdiction to order substance abuse assessments and treatment for persons 17 years of age or

older and under the age of 18 years who commit this offense.

     This act would take effect on September 1, 2016.

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