2023 -- H 5582

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2023

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A N   A C T

RELATING TO FOOD AND DRUGS -- UNIFORM CONTROLLED SUBSTANCES ACT

     Introduced By: Representatives Batista, Potter, Cruz, Alzate, Felix, and Craven

     Date Introduced: February 15, 2023

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. 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. [As amended by P.L. 2021, ch. 286, § 2 and

P.L. 2021, ch. 287, § 2.]

     (a) Except as provided in §§ 21-28-4.01.1 and 21-28-4.01.2, the possession of a controlled

substance shall be a civil violation punishable by a fine of one hundred dollars ($100) for a first

offense, and up to three hundred dollars ($300) for each subsequent offense.

     (a)(1) Except as authorized by this chapter and chapters 28.6 and 28.11 of title 21, 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, 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.

     (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.

     (4) Any person, except as provided for in subsection (a)(2), 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 or chapters 28.6 and 28.11 of title 21.

     (2) Any person who violates this subsection with respect to:

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

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 buprenorphine and the substance classified as marijuana,

is guilty of a misdemeanor and, upon conviction, may be imprisoned for not more than two (2)

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

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

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

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

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

for not more than three (3) years, or fined not more than five thousand dollars ($5,000), or both.

     (iii) Except as otherwise provided in §§ 21-28-4.01.1 and 21-28-4.01.2, more than two

ounces (2 oz.) or the equivalent amount in the form of cannabis concentrate of a controlled

substance classified in schedule I as marijuana is guilty of a misdemeanor unless possessed inside

one’s own primary residence, except for those persons subject to (a)(1), and, upon conviction, may

be imprisoned for not more than one year, or fined not more than five hundred dollars ($500), or

both. Exclusive of live marijuana plants, more than ten ounces (10 oz.) of a controlled substance

classified in schedule I as marijuana or the equivalent amount in the form of cannabis concentrate,

when possessed within one’s personal residence 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.

Possession of live marijuana plants in excess of the number authorized pursuant to § 21-28.11-22

but less than twenty-five (25) marijuana plants 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.

     Possession of twenty-five (25) or more live marijuana plants is guilty of a felony, except

for those persons subject to (a)(1), and upon conviction, may be imprisoned for not more than three

(3) years or fined not more than five thousand dollars ($5,000), or both.

     (iv)(2) Notwithstanding any public, special, or general law to the contrary, and except as

otherwise provided in §§ 21-28-4.01.1 and 21-28-4.01.2, the possession of more than one ounce (1

oz.) but not more than two ounces (2 oz.) of marijuana or the equivalent amount in the form of

cannabis concentrate by a person who is at least twenty-one (21) years old, 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

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second (2nd) violation within the previous eighteen (18) months.

     (v)(3) Notwithstanding any public, special, or general law to the contrary, possession of

two ounces (2 oz.) or less of marijuana or the equivalent amount in the form of cannabis concentrate

by a person between seventeen (17) and twenty (20) years old, 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.

     (vi) [Deleted by P.L. 2022, ch. 31, § 10 and P.L. 2022, ch. 32, § 10.]

     (vii)(4) Any unpaid civil fine issued under (c)(2)(iv) or (c)(2)(v) 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.

     (viii)(5) No person may be arrested for a violation of (c)(2)(iv) or (c)(2)(v) 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 more

than one ounce (1 oz.) of marijuana, or the equivalent amount in the form of cannabis concentrate

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 more than one ounce (1

oz.) but less than two ounces (2 oz.) of marijuana or the equivalent amount in the form of cannabis

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concentrate, may be arrested.

     (ix)(6) No violation of (c)(2)(iv) or (c)(2)(v) this subsection shall be considered a violation

of parole or probation.

     (x)(7) Any records collected by any state agency, tribunal, or the family court that include

personally identifiable information about violations of (c)(2)(iv) or (c)(2)(v) this subsection shall

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

     (3)(d) Jurisdiction.

     (i) Any and all adjudications of violations of (c)(2)(i) shall be within the original

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

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

     (ii)(1) Any and all violations of (c)(2)(iv) and (c)(2)(v) this section shall be the exclusive

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

under (c)(2)(iv) or (c)(2)(v) this section 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)(iv) or (c)(2)(v) this section shall be expended on drug-awareness and treatment

programs for youth.

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

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

(c)(2)(iii), who is not sentenced to a term of imprisonment to serve for the offense, this section 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

(BHDDH) similar to that in § 21-28.11-27.2, 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 (c)(2)(i), (c)(2)(ii) or (c)(2)(iii) this section 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)(3) All fees assessed and collected pursuant to (c)(2)(iii) this subsection and shall be

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

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contendere before any other fines authorized by this chapter expended pursuant to subsection (d)(1)

of this section.

     (d)(e) 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

use of salvia divinorum or datura stramonium.

     (f) Notwithstanding any public, special, or general law to the contrary, the possession of a

controlled substance for personal use, shall result in the forfeiture of the controlled substance;

provided, however, the possession of a controlled substance for personal use shall not constitute

reasonable suspicion or probable cause to conduct a search of a motor vehicle or the premises where

the controlled substance is discovered.

     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

***

     This act would make the possession of schedule I through V controlled substances civil

violations punishable by a one hundred dollar ($100) fine for a first offense and up to three hundred

dollars ($300) for subsequent offenses. Repeat offenders would also have to complete drug

counseling and community service.

     This act would take effect upon passage.

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