2017 -- H 5415

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LC001269

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2017

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A N   A C T

RELATING TO FOOD AND DRUGS-UNIFORM CONTROLLED SUBSTANCES ACT

     Introduced By: Representatives McNamara, Vella-Wilkinson, and Bennett

     Date Introduced: February 08, 2017

     Referred To: House 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; provided, however, notwithstanding any

public, special or general law to the contrary, not to any regulation promulgated thereunder, the

manufacture, delivery or possession of a substance legally prescribed, which has been approved

for marketing as a prescription medication by the FDA shall be excepted from the penalties

provided under the provisions of this chapter.

     (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

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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), 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

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

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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) 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) 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, tribunal, or the family court that include

personally identifiable information about violations of (c)(2)(iii) or (c)(2)(iv) 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) 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) 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) shall be expended on drug-awareness and treatment programs

for youth.

     (4) Additionally, every person convicted or who pleads nolo contendere under (c)(2)(i) or

convicted or who pleads nolo contendere a second or subsequent time under (c)(2)(ii), 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

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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 (c)(2)(i) and (c)(2)(ii) 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 (c)(3)(ii) 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

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.

     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 FOOD AND DRUGS-UNIFORM CONTROLLED SUBSTANCES ACT

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     This act would make those persons who are convicted of the manufacture, delivery or

possession with the intent to manufacture, deliver or possess with the intent to manufacture or

deliver of a controlled substance no longer subject to a life sentence or subject the fines structure

provided in §21-28-4.01(a)(2) provided that the controlled substance is one legally prescribed and

which has been approved for marketing as a prescription medication by the FDA.

     This act would take effect upon passage.

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