2020 -- H 7637

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LC004787

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2020

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A N   A C T

RELATING TO FOOD AND DRUGS -- UNIFORM CONTROLLED SUBSTANCES ACT

     

     Introduced By: Representatives Vella-Wilkinson, Edwards, Bennett, Williams, and
Shekarchi

     Date Introduced: February 14, 2020

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

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     SECTION 1. Sections 21-28-4.01, 21-28-4.11 and 21-28-4.14 of the General Laws in

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Chapter 21-28 entitled "Uniform Controlled Substances Act" are hereby amended to read as

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follows:

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     21-28-4.01. Prohibited acts A -- Penalties.

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     (a)(1) Except as authorized by this chapter, it shall be unlawful for any person to

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manufacture, deliver, or possess with intent to 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(20), 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 the

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person delivering the substance was, at the time of delivery, a drug-addicted person as defined in §

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21-28-1.02(20).

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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, deliver,

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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 controlled

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substance, unless the substance was obtained directly from, or pursuant to, a valid prescription or

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order of a practitioner while acting in the course of his or her professional practice, or except as

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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 buprenorphine and marijuana, is guilty of a crime misdemeanor and, upon

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conviction, may be imprisoned for not more than three (3) two (2) years, or fined not less than five

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hundred dollars ($500) nor more than five thousand dollars ($5,000), more than five hundred

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dollars ($500) or both;. Nothing in this subsection shall be construed to prohibit the charging and

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prosecution of any applicable felony offense pursuant to this chapter when the facts so warrant.

 

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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 (a)(1), and, upon

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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 of

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one ounce (1 oz.) or less of marijuana by a person who is eighteen (18) years of age or older, 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, but not to any other form of criminal or civil punishment or

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disqualification. Notwithstanding any public, special, or general law to the contrary, this civil

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penalty of one hundred fifty dollars ($150) and forfeiture of the marijuana shall apply if the offense

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is the first (1st) or second (2nd) violation within the previous eighteen (18) months.

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     (iv) Notwithstanding any public, special, or general law to the contrary, possession of one

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ounce (1 oz.) or less of marijuana by a person who is seventeen (17) years of age or older and under

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the age of eighteen (18) years, and who is not exempted from penalties pursuant to chapter 28.6 of

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this title, shall constitute a civil offense, rendering the offender liable to a civil penalty in the amount

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of one hundred fifty dollars ($150) and forfeiture of the marijuana; provided the minor offender

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completes an approved, drug-awareness program and community service as determined by the

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court. If the person seventeen (17) years of age or older and under the age of eighteen (18) years

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fails to complete an approved, drug-awareness program and community service within one year of

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the disposition, the penalty shall be a three hundred dollar ($300) civil fine and forfeiture of the

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marijuana, except that if no drug-awareness program or community service is available, the penalty

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shall be a fine of one hundred fifty dollars ($150) and forfeiture of the marijuana. The parents or

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legal guardian of any offender seventeen (17) years of age or older and under the age of eighteen

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

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program. The drug-awareness program must be approved by the court, but shall, at a minimum,

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provide four (4) hours of instruction or group discussion and ten (10) hours of community service.

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Notwithstanding any other public, special, or general law to the contrary, this civil penalty shall

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apply if the offense is the first or second violation within the 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 five

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

 

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possession of less than one ounce (1 oz.) of marijuana under (c)(2)(iii) or (c)(2)(iv) two (2) times

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in the eighteen (18) months prior to the third (3rd) offense.

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     (vi) Any unpaid civil fine issued under (c)(2)(iii) or (c)(2)(iv) shall double to three hundred

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dollars ($300) if not paid within thirty (30) days of the disposition. The civil fine shall double again

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to six hundred dollars ($600) if it has not been paid within ninety (90) days.

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     (vii) No person may be arrested for a violation of (c)(2)(iii) or (c)(2)(iv) of this subsection

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except as provided in this subparagraph. Any person in possession of an identification card, license,

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or other form of identification issued by the state or any state, city, or town, or any college or

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university, who fails to produce the same upon request of a police officer who informs the person

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that he or she has been found in possession of what appears to the officer to be one ounce (1 oz.)

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or less of marijuana, or any person without any such forms of identification who fails or refuses to

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truthfully provide his or her name, address, and date of birth to a police officer who has informed

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such person that the officer intends to provide such individual with a citation for possession of one

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ounce (1 oz.) or less of marijuana, may be arrested.

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     (viii) No violation of (c)(2)(iii) or (c)(2)(iv) of this subsection 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, tribunal, or the family court that include

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personally identifiable information about violations of (c)(2)(iii) or (c)(2)(iv) shall not be open to

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public inspection in accordance with § 8-8.2-21.

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     (3) Jurisdiction.

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     (i) Any and all adjudications of violations of subsection (c)(2)(i) of this section shall fall

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under the original jurisdiction of the Rhode Island superior court. The attorney general shall

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prosecute any and all violations of subsection (c)(2)(i) of this section.

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     (ii) Any and all violations of (c)(2)(iii) and (c)(2)(iv) shall be the exclusive jurisdiction of

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the Rhode Island traffic tribunal. All money associated with the civil fine issued under (c)(2)(iii)

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or (c)(2)(iv) shall be payable to the Rhode Island traffic tribunal. Fifty percent (50%) of all fines

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collected by the Rhode Island traffic tribunal from civil penalties issued pursuant to (c)(2)(iii) or

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

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     (iii) Any person who violates subsection (c)(2)(i) of this section may be evaluated on an

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out-patient basis by a licensed clinician with specific expertise in diagnosing and treating substance

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use disorder, who shall:

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     (A) Advise the person, if appropriate, of voluntary services available to address their

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substance use disorder; and

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     (B) Report findings to the judiciary as to whether they deem the person to be drug addicted

 

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as defined in § 21-28-1.02(20) for the purpose of determining whether the person should be

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required to attend the program prescribed in subsection (c)(4)(ii) of this section.

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     (4) Additionally, every drug addicted person convicted or who pleads nolo contendere

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under (c)(2)(i) who is not sentenced to a term of imprisonment to serve for the offense, or every

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

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is not sentenced to a term of imprisonment to 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) If determined to be a drug addicted person, attend Attend and complete a drug-

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counseling and education program, as prescribed, by the director of the department of behavioral

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healthcare, developmental disabilities and hospitals and pay the sum of four hundred dollars ($400)

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to help defray the costs of this program which shall be deposited as general revenues. Failure to

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attend may result, after hearing by the court, in jail sentence up to one year;

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     (iii) The court shall not suspend any part or all of the imposition of the fee required by this

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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 (c)(2)(i) and (c)(2)(ii) shall be subject to a loss of license for a period of six (6) months for a

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first offense and one year for each offense after.

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     (5) All fees assessed and collected pursuant to (c)(3)(ii) shall be deposited as general

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revenues and shall be collected from the person convicted or who pleads nolo contendere before

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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 to

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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 is

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

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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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     21-28-4.11. Second offenses.

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     (a) Any person convicted of a second offense under this chapter, except for violations of

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subparagraphs §§ 21-28-4.01(c)(2)(i), 21-28-4.01(c)(2)(ii), 21-28-4.01(c)(2)(iii), 21-28-

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4.01(c)(2)(iv) or 21-28-4.01(c)(2)(v), may be imprisoned for a term up to twice the term authorized,

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fined an amount up to twice that authorized, or both.

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     (b) For purposes of this section, an offense is considered a second offense if, prior to his or

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her conviction of the offense, the offender has at any time been convicted under this chapter, except

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for violations of subparagraphs §§ 21-28-4.01(c)(2)(i), 21-28-4.01(c)(2)(ii), 21-28-4.01(c)(2)(iii),

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21-28-4.01(c)(2)(iv) or 21-28-4.01(c)(2)(v), or under any statute of the United States or of any state

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relating to narcotic drugs, marijuana, depressant, stimulant, or hallucinogenic drugs.

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     21-28-4.14. Third or subsequent offenses.

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     (a) Any person convicted of a third or subsequent offense under this chapter, except for

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violations of subparagraphs §§ 21-28-4.01(c)(2)(i), 21-28-4.01(c)(2)(ii), 21-28-4.01(c)(2)(iii), 21-

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28-4.01(c)(2)(iv) or 21-28-4.01(c)(2)(v), may be imprisoned for a term up to three (3) times the

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term authorized, and fined an amount up to three (3) times that authorized by § 21-28-4.11, or both.

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     (b) For purposes of this section, an offense is considered a third or subsequent offense if,

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prior to his or her conviction of the offense, the offender has at any time been convicted twice under

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this chapter, except for violations of subparagraphs §§ 21-28-4.01(c)(2)(i), 21-28-4.01(c)(2)(ii),

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21-28-4.01(c)(2)(iii), 21-28-4.01(c)(2)(iv) or 21-28-4.01(c)(2)(v), or twice under any statute of the

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United States or of any state, or any combination of them, relating to narcotic drugs, marijuana,

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depressant, stimulant, or hallucinogenic drug.

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     SECTION 2. Chapter 21-28 of the General Laws entitled "Uniform Controlled Substances

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Act" is hereby amended by adding thereto the following section:

 

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     21-28-4.23. Law enforcement reports.

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     In the first week of January, 2021, and each year thereafter, the attorney general shall, in

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cooperation with local law enforcement agencies and the state police, submit to the general

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assembly a report summarizing the impact of § 21-28-4.01(c)(2)(i) on law enforcement. The report

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shall include the number of people prosecuted under § 21-28-4.01(c)(2)(i), including the

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breakdown by race and gender of those people prosecuted and the sentence imposed.

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     SECTION 3. 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 amend the Uniform Controlled Substances Act to reclassify simple

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possession of a controlled substance classified in schedules I, II, III, IV and IV, unless otherwise

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provided in §§ 21-28-4.01.1 and 21-28-4.01.2, as a misdemeanor instead of a felony and excludes

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the possession of buprenorphine from those controlled substances that can result in criminal

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penalties.

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     This act would take effect upon passage.

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