Chapter 221

2012 -- S 2253 SUBSTITUTE A AS AMENDED

Enacted 06/13/12

 

A N A C T

RELATING TO FOOD AND DRUGS -- UNIFORM CONTROLLED SUBSTANCES ACT

          

     Introduced By: Senators Miller, Jabour, Perry, Metts, and Nesselbush

     Date Introduced: January 26, 2012

 

It is enacted by the General Assembly as follows:

 

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

Chapter 21-28 entitled "Uniform Controlled Substances Act" are 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 section 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.

      (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 section 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 five

thousand dollars ($5,000), or both;

      (ii) A 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 subdivision 21-28-

4.01(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 21-28.6 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 under the age of eighteen (18) years and

who is not exempted from penalties pursuant to chapter 21-28.6 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 under the

age of eighteen (18) years fails to complete an approved drug awareness program and community

service within one year of the offense, 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 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 (1st) or second (2nd) 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 21-28.6 found in possession of one ounce (1 oz.) or

less of marijuana is guilty of a misdemeanor and upon conviction may be imprisoned for not

more than thirty (30) days or fined not less than two hundred dollars ($200) nor more than five

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

possession of less than one ounce (1 oz.) of marijuana under subparagraphs 21-28-4.01(c)(2)(iii)

or 21-28-4.01(c)(2)(iv) two (2) times in the eighteen (18) months prior to the third (3rd) offense.

     (vi) Any unpaid civil fine issued under subparagraphs 21-28-4.01(c)(2)(iii) or 21-28-

4.01(c)(2)(iv) shall double to three hundred dollars ($300) if not paid within thirty (30) days of

the offense. 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 subparagraphs 21-28-4.01(c)(2)(iii) or

21-28-4.01(c)(2)(iv) 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 that 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 subparagraphs 21-28-4.01(c)(2)(iii) or 21-28-4.01(c)(2)(iv) shall be

considered a violation of parole or probation.

     (ix) Any records collected by any state agency or tribunal that include personally

identifiable information about violations of subparagraphs 21-28-4.01(c)(2)(iii) or 21-28-

4.01(c)(2)(iv) shall be sealed eighteen (18) months after the payment of said civil fine.

     (3) Jurisdiction. Any and all violations of subparagraphs 21-28-4.01(c)(2)(iii) and 21-

28-4.01(c)(2)(iv) shall be the exclusive jurisdiction of the Rhode Island traffic tribunal. All

money associated with the civil fine issued under subparagraphs 21-28-4.01(c)(2)(iii) or 21-28-

4.01(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

subparagraphs 21-28-4.01(c)(2)(iii) or 21-28-4.01(c)(2)(iv) shall be expended on drug awareness

and treatment programs for youth.

      (3) (4) Additionally every person convicted or who pleads nolo contendere under

paragraph (2)(i) of this subsection or convicted or who pleads nolo contendere a second or

subsequent time under paragraph (2)(ii) of this subsection, who is not sentenced to a term of

imprisonment to serve for the offense, shall be required to:

      (i) Perform, up to one hundred (100) hours of community service;

      (ii) Attend and complete a drug counseling and education program as prescribed by the

director of the department of mental health, retardation and hospitals and pay the sum of four

hundred dollars ($400) to help defray the costs of this program which shall be deposited as

general revenues. Failure to attend may result after hearing by the court in jail sentence up to one

year;

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

this subsection, unless the court finds an inability to pay;

      (iv) If the offense involves the use of any automobile to transport the substance or the

substance is found within an automobile, then a person convicted or who pleads nolo contendere

under paragraphs (2)(i) and (ii) of this subsection shall be subject to a loss of license for a period

of six (6) months for a first offense and one year for each offense after this.

      (4) (5) All fees assessed and collected pursuant to paragraph (3)(ii) of this subsection

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

pleads nolo contendere before any other fines authorized by this chapter.

      (d) It shall be unlawful for any person to manufacture, distribute, or possess with intent

to manufacture or distribute, an imitation controlled substance. Any person who violates this

subsection is guilty of a crime, and upon conviction shall be subject to the same term of

imprisonment and/or fine as provided by this chapter for the manufacture or distribution of the

controlled substance which 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.

 

     21-28-4.11. Second offenses. -- (A) (a) Any person convicted of a second offense under

this chapter, except for 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), may be imprisoned for a term up to twice the term authorized, fined an

amount up to twice that authorized, or both.

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

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

chapter, except for 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), or under any statute of the United States or of any state relating to narcotic

drugs, marijuana, depressant, stimulant, or hallucinogenic drugs.

 

     21-28-4.14. Third or subsequent offenses. -- (a) Any person convicted of a third or

subsequent offense under this chapter, except for 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), may be imprisoned for a term up to

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

section 21-28-4.11, or both.

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

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

under this chapter, except for 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), or twice under any statute of the United States or of any

state, or any combination of them, relating to narcotic drugs, marijuana, depressant, stimulant, or

hallucinogenic drug.

 

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

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

 

     21-28-4.22. Preparation of summons and related records -- Consent and form. The

laws related to summonses, subpoenas and related records for violations of subparagraphs 21-28-

4.01(c)(2)(iii) and 21-28-4.01(c)(2)(iv), shall be served and heard in the same manner and in a

similar form as ordinary civil actions in the traffic tribunal, as provided for in sections 31-27-12,

31-27-12.1, 31-41.1-1, and as may be prescribed by rules and regulations promulgated by the

chief magistrate of the traffic tribunal pursuant to section 8-6-2.

 

     SECTION 3. Sections 31-27-2.4 and 31-27-12 of the General Laws in Chapter 31-27

entitled "Motor Vehicle Offenses" are hereby amended to read as follows:

 

     31-27-2.4. Driving while in possession of controlled substances. -- (a) In addition to

any other penalty prescribed by law, whoever operates any motor vehicle while knowingly having

in the motor vehicle or in his or her possession, a controlled substance, as defined in section 21-

28-1.02, except for possession of up to one ounce (1 oz.) of marijuana, shall have his or her

license suspended for a period of six (6) months.

      (b) This section shall not apply to any person who lawfully possesses a controlled

substance, as defined in section 21-28-1.02, as a direct result and pursuant to a valid prescription

from a licensed medical practitioner, or as otherwise authorized by chapter 28 of title 21.

 

     31-27-12. Service of notice -- Summons. -- (a) Any police officer observing the

violation of any statute or ordinance relating to the operation, control, or maintenance of a motor

vehicle or a violation of subparagraphs 21-28-4.01(c)(2)(iii) and 21-28-4.01(c)(2)(iv), shall at the

time or place of the violation or, if it is not possible to halt the alleged offender, as soon as

possible after observing the violation, issue a written notice, of a form and content provided for in

section 31-27-12.1, signed by the police officer and constituting a summons to appear before the

court having jurisdiction at a time and place designated in the notice.

      (b) Nothing in this chapter shall preclude a police officer from exercising in the

alternative his or her statutory powers of arrest, nor shall anything contained in this chapter

preclude the making of additional complaints against the alleged offender arising out of the

violation of any statute or ordinance relating to the operation, control, or maintenance of a motor

vehicle observed by the police officer. Nothing in this chapter shall prevent a person other than a

police officer from applying for a criminal complaint for the violation of any statute or ordinance

relating to the operation, control, or maintenance of a motor vehicle, and the person need not

show that the alleged offender has been issued a summons in connection with the alleged

violation.

 

     SECTION 4. Section 8-8.2-2 of the General Laws in Chapter 8-8.2 entitled "Traffic

tribunal" is hereby amended to read as follows:

 

     8-8.2-2. Jurisdiction. -- (a) Notwithstanding any inconsistent provision of law, all

probationary license hearings as provided in section 31-10-26, all violations of the department of

transportation, department of environmental management or board of governors for higher

education regulations regarding parking, standing, or stopping in areas under the jurisdiction of

said agencies, all violations of state statutes relating to motor vehicles, littering and traffic

offenses, except those traffic offenses committed in places within the exclusive jurisdiction of the

United States, and except driving so as to endanger resulting in death, driving so as to endanger

resulting in personal injury, driving while under the influence of liquor or drugs, driving while

under the influence of liquor or drugs resulting in death, driving while under the influence of

liquor or drugs resulting in serious bodily injury, reckless driving and other offenses against

public safety as provided in section 31-27-4, eluding a law enforcement officer with a motor

vehicle in a high speed pursuit, driving after denial, suspension or revocation of license, and

leaving the scene of an accident in violation of section 31-26-1 and section 31-26-2, and driving

without the consent of the owner and possession of a stolen motor vehicle in violation of section

31-9-1 and section 31-9-2, shall be heard and determined by the traffic tribunal pursuant to the

regulations promulgated by the chief magistrate of the traffic tribunal; provided, however, the

traffic tribunal shall not hear any parking, standing or stopping violations which occur in any city

or town which has established its own municipal court and has jurisdiction over such violations.

Nothing contained herein shall abrogate the powers of the Rhode Island family court under the

provisions of chapter 1 of title 14.

      (b) Notwithstanding any inconsistent provision of law, the traffic tribunal shall have

concurrent jurisdiction to hear and determine, pursuant to rules and regulations promulgated by

the chief magistrate of the traffic tribunal, all violations of any ordinances, rules and regulations

governing the public waters and the speed, management and control of all vessels and the size,

type and location and use of all anchorages and moorings within the jurisdiction of the towns of

North Kingstown, South Kingstown, Portsmouth, Middletown, Narragansett and Tiverton

enforced and supervised by the harbormaster and referred to the traffic tribunal, and the terms

"traffic violations" and "traffic infraction" when used in this chapter shall include the aforesaid

violations and such violations shall be adjudicated in accordance with the provisions of this

chapter. Nothing contained herein shall abrogate the powers of the Rhode Island coastal

management council under the provisions of chapter 23 of title 46.

      (c) Notwithstanding any inconsistent provision of law, the traffic tribunal shall have

jurisdiction to hear and determine, pursuant to rules and regulations promulgated by the chief

magistrate of the Rhode Island traffic tribunal, all civil violations for sections 20-1-12, 20-11-20,

20-16-17, 23-22.5-9, 32-2-4, subparagraphs 21-28-4.01(c)(2)(iii) and 21-28-4.01(c)(2)(iv) and

subsection 46-22-19(1) as set forth in section 42-17.10-1.

      (d) A party aggrieved by a final order of the traffic tribunal appeals panel shall be

entitled to a review of the order by a judge of the district court. Unless otherwise provided in the

rules of procedure of the district court, such review shall be on the record and appellate in nature.

The district court shall by rules of procedure establish procedures for review of an order entered

by the appeals panel of the traffic tribunal.

      (e) Violations of any statute, rule, ordinance or regulation referenced in this section are

subject to fines enumerated in section 31-41.1-4, except for violations of subparagraphs 21-28-

4.01(c)(2)(iii) and 21-28-4.01(c)(2)(iv).

 

     SECTION 5. Chapter 8-8.2 of the General Laws entitled "Traffic tribunal" is hereby

amended by adding thereto the following section:

 

     8-8.2-21. Abstracts of court records -- Traffic tribunal. A full record shall be kept by

the Rhode Island traffic tribunal in this state of every case in which a person is charged with

violating subparagraphs 21-28-4.01(c)(2)(iii) and 21-28-4.01(c)(2)(iv). An abstract of the record

shall be retained by the court. The abstract shall be made upon forms prepared by the chief

magistrate of the Rhode Island traffic tribunal and shall include all necessary information as to

the parties to the cause, the nature of the offense, the date of the hearing, the plea, the decision,

the judgment, and the result, and every abstract shall be certified by the clerk of the court. The

Rhode Island traffic tribunal shall keep the records and they shall not be open to public

inspection. The chief magistrate of the traffic tribunal shall make the records available to Rhode

Island state and local police departments for their inspection of the details of cases which have

been heard before the tribunal.

 

     SECTION 6. This act shall take effect on April 1, 2013.

     

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LC00705/SUB A

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