2020 -- S 2457

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LC004568

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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: Senators McCaffrey, Euer, Lombardi, and McKenney

     Date Introduced: February 13, 2020

     Referred To: Senate Judiciary

     (Attorney General)

It is enacted by the General Assembly as follows:

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     SECTION 1. Sections 21-28-4.01, 21-28-4.01.1, 21-28-4.01.2, 21-28-4.11 and 21-28-4.14

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of the General Laws in Chapter 21-28 entitled "Uniform Controlled Substances Act" is hereby

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amended to read as 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) Except as otherwise provided in §§ 21-28-4.01.1 and 21-28-4.01.2, ten grams (10 g) or

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less of a mixture or substance containing a detectable amount of a controlled substance classified

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in schedules I, II, III, IV, and V, except the substance classified as marijuana, is guilty of a

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misdemeanor and, upon conviction, may be imprisoned for not more than two (2) years, or fined

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not more than five hundred dollars ($500) or both.

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     (i)(ii) Except as provided in §§ 21-28-4.01.1 and 21-28-4.01.2, more than ten grams (10

 

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g), but less than one ounce (1 oz.) of a mixture or substance containing a detectable amount of a A

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controlled substance classified in schedules I, II and III, IV, and V, except the substance classified

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as marijuana, is guilty of a crime felony and, upon conviction, may be imprisoned for not more

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than three (3) years, or fined not less than five hundred dollars ($500) nor more than five thousand

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dollars ($5,000), or both;

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     (ii)(iii) 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)(iv) 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 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)(v) 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 seventeen (17) years of age or older and

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

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

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

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

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

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

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

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

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

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parents or legal guardian of any offender seventeen (17) years of age or older and 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 of

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

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civil penalty shall apply if the offense is the first or second violation within the previous eighteen

 

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(18) months.

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     (v)(vi) 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) (c)(2)(iv) or (c)(2)(iv)

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

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     (vi)(vii) Any unpaid civil fine issued under (c)(2)(iii) (c)(2)(iv) or (c)(2)(iv) (c)(2)(v) shall

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double to three hundred dollars ($300) if not paid within thirty (30) days of the disposition. The

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civil fine shall double again to six hundred dollars ($600) if it has not been paid within ninety (90)

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days.

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

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(c)(2)(v) of this subsection except as provided in this subparagraph. Any person in possession of

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an identification card, license, or other form of identification issued by the state or any state, city,

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or 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 identification

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who fails or refuses to truthfully provide his or her name, address, and date of birth to a police

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officer who has informed such person that the officer intends to provide such individual with a

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citation for possession of one ounce (1 oz.) or less of marijuana, may be arrested.

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     (viii)(ix) No violation of (c)(2)(iii) (c)(2)(iv) or (c)(2)(iv) (c)(2)(v) of this subsection shall

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be considered a violation of parole or probation.

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     (ix)(x) 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) (c)(2)(iv) or (c)(2)(iv) (c)(2)(v)

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shall not be open to 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 (c)(2)(i) shall be within the original

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jurisdiction of the Rhode Island superior court. The department of attorney general shall prosecute

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any and all violations (c)(2)(i).

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

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exclusive jurisdiction of the Rhode Island traffic tribunal. All money associated with the civil fine

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issued under (c)(2)(iii) or (c)(2)(iv) (c)(2)(iv) or (c)(2)(v) shall be payable to the Rhode Island

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

 

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civil penalties issued pursuant to (c)(2)(iii) or (c)(2)(iv) (c)(2)(iv) or (c)(2)(v) shall be expended on

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drug-awareness and treatment programs for youth.

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

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

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(c)(2)(iii), who is not sentenced to a term of imprisonment to serve for the offense, shall be required

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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 behavioral healthcare, developmental disabilities and hospitals and

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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

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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) or (c)(2)(iii) shall be subject to a loss of license for a period of six (6)

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months for a first offense and one year for each offense after.

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     (5) All fees assessed and collected pursuant to (c)(3)(ii) (c)(2)(iii) shall be deposited as

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

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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 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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     21-28-4.01.1. Minimum sentence -- Certain quantities of controlled substances.

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

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sell, or possess with intent to manufacture or sell, a controlled substance classified in schedule I or

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II (excluding marijuana) or to possess or deliver the following enumerated quantities of certain

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controlled substances:

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     (1) One ounce (1 oz.) to one kilogram (1 kg.) of a mixture or substance containing a

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detectable amount of heroin;

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     (2) One ounce (1 oz.) to one kilogram (1 kg.) of a mixture or substance containing a

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detectable amount of:

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     (i) Coca leaves, except coca leaves and extracts of coca leaves from which cocaine,

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ecgonine, and derivatives of ecgonine or their salts have been removed;

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     (ii) Cocaine, its salts, optical and geometric isomers, and salts of isomers;

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     (iii) Ecgonine, its derivatives, their salts, isomers, and salts of isomers; or

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     (iv) Any compound, mixture, or preparation that contains any quantity of any of the

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substances referred to in paragraphs (i) -- (iii) of this subdivision;

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     (3) One gram (1 g.) to ten grams (10 gs.) of phencyclidine (PCP) or one hundred (100) to

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one thousand (1,000) tablets of a mixture or substance containing a detectable amount of

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phencyclidine (PCP);

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     (4) One-tenth of a gram (0.1 g.) to one gram (1 g.) of lysergic acid diethylamide (LSD) or

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one hundred (100) to one thousand (1,000) tablets of a mixture or substance containing a detectable

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amount of lysergic acid diethylamide (LSD);

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     (5) One kilogram (1 kg.) to five kilograms (5 kgs.) of a mixture containing a detectable

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amount of marijuana;

 

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     (6) One ounce (1 oz.) to one kilogram (1 kg.) of a mixture or substance containing a

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detectable amount of synthetic drugs; or

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     (7) One ounce (1 oz.) to one kilogram (1 kg.) of a mixture or substance containing a

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detectable amount of fentanyl or its analogs, including, but not limited to, N-(1-phenethylpiperidin-

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4-yl)–N-phenylacetamide, its optical, positional, and geometric isomers, salts and salts of isomers

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(acetyl fentanyl); N-(1-phenethylpiperidin-4-yl)-N-phenylfuran-2carboxamide (furanyl fentanyl);

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and N-Phenethyl-4-piperidinone (4-AN-PP); or

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     (8) One ounce (1 oz.) to one kilogram (1 kg.) of a mixture or substance containing a

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detectable amount of carfentanil; or

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     (9) One ounce (1 oz.) to one kilogram (1 kg.) of 3,4-methyl-enedioxymethamphetamine

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(MDMA), its optical, positional, and geometric isomers, salts, and salts of isomers; or

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     (10) One ounce (1 oz.) to one kilogram (1 kg.) of amphetamine, its salts, optical isomers,

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and salts of its optical isomers; or

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     (11) One ounce (1 oz.) to one kilogram (1 kg.) of methamphetamine, its salts, and salts of

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its isomers.

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     (b) Any person who violates this section shall be guilty of a crime, and upon conviction,

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may be imprisoned for a term up to fifty (50) years and fined not more than five hundred thousand

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dollars ($500,000).

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     21-28-4.01.2. Minimum sentence -- Certain quantities of controlled substances.

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

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manufacture, sell, or deliver the following enumerated quantities of certain controlled substances:

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     (1) More than one kilogram (1 kg.) of a mixture or substance containing a detectable

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amount of heroin;

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     (2) More than one kilogram (1 kg.) of a mixture or substance containing a detectable

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amount of:

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     (i) Coca leaves, except coca leaves and extracts of coca leaves from which cocaine,

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ecgonine, and derivatives of ecgonine or their salts have been removed;

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     (ii) Cocaine, its salts, optical and geometric isomers, and salts of isomers;

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     (iii) Ecgonine, its derivatives, their salts, isomers, and salts of isomers; or

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     (iv) Any compound, mixture, or preparation that contains any quantity of any of the

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substances referred to in paragraphs (i) -- (iii) of this subdivision;

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     (3) More than ten grams (10 gs.) of phencyclidine (PCP) or more than one thousand (1,000)

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tablets of a mixture or substance containing a detectable amount of phencyclidine (PCP);

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     (4) More than one gram (1 g.) of lysergic acid diethylamide (LSD); or more than one

 

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thousand (1,000) tablets of a mixture or substance containing a detectable amount of lysergic acid

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diethylamide (LSD);

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     (5) More than five kilograms (5 kgs.) of a mixture containing a detectable amount of

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marijuana;

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     (6) More than one kilogram (1 kg.) of a mixture or substance containing a detectable

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amount of synthetic drugs; or

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     (7) More than one kilogram (1 kg.) of a mixture or substance containing a detectable

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amount of fentanyl or its analogs, including, but not limited to, N-(1-phenethylpiperidin-4-yl)–N-

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phenylacetamide, its optical, positional, and geometric isomers, salts and salts of isomers (acetyl

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fentanyl); N-(1-phenethylpiperidin-4-yl)-N-phenylfuran-2carboxamide (furanyl fentanyl); and N-

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Phenethyl-4-piperidinone (4-AN-PP); or

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     (8) More than one kilogram (1 kg.) of a mixture or substance containing a detectable

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amount of carfentanil; or

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     (9) More than one kilogram (1 kg.) of 3,4-methyl-enedioxymethamphetamine (MDMA),

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its optical, positional, and geometric isomers, salts, and salts of isomers; or

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     (10) More than one kilogram (1 kg.) of amphetamine, its salts, optical isomers, and salts of

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its optical isomers; or

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     (11) More than one kilogram (1 kg.) of methamphetamine, its salts, and salts of its isomers.

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     (b) Any person who violates this section shall be guilty of a crime, and upon conviction,

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may be imprisoned for a term up to life and fined not more than one million dollars ($1,000,000).

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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)(iii), 21-28-4.01(c)(2)(iv), or 21-28-

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4.01(c)(2)(v), or 21-28-4.01(c)(2)(vi) 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)(iii), 21-28-4.01(c)(2)(iv)

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

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state 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)(iii), 21-28-4.01(c)(2)(iv) or 21-28-4.01(c)(2)(v) §§

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21-28-4.01(c)(2)(iv), 21-28-4.01(c)(2)(v), or 21-28-4.01(c)(2)(vi), may be imprisoned for a term

 

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up to three (3) times the term authorized, and fined an amount up to three (3) times that authorized

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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)(iii),

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

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

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marijuana, depressant, stimulant, or hallucinogenic drug.

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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 FOOD AND DRUGS -- UNIFORM CONTROLLED SUBSTANCES ACT

***

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     This act amends the uniform controlled substances act and reclassifies simple possession

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of ten grams (10 g.) or less of certain controlled substances as a misdemeanor punishable as a two

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(2) year misdemeanor rather than a felony.

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     This act would take effect upon passage.

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