2015 -- S 0323

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2015

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A N   A C T

RELATING TO THE UNIFORMED CONTROLLED SUBSTANCES ACT

     

     Introduced By: Senators Miller, Goldin, Nesselbush, and Jabour

     Date Introduced: February 12, 2015

     Referred To: Senate Health & Human Services

     It is enacted by the General Assembly as follows:

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     SECTION 1. Section 21-28-4.1 of the General Laws in Chapter 21-28 entitled "Uniform

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Controlled Substances Act" is hereby amended to read as follows:

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     21-28-4.01. Prohibited acts A -- Penalties. -- (a) (1) Except as authorized by this

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chapter, it shall be unlawful for any person to manufacture, deliver, or possess with intent to

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manufacture or deliver a controlled substance.

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      (2) Any person who is not a drug addicted person, as defined in section 21-28-1.02(18),

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who violates this subsection with respect to a controlled substance classified in schedule I or II,

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except the substance classified as marijuana, is guilty of a crime and upon conviction may be

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imprisoned to a term up to life, or fined not more than five hundred thousand dollars ($500,000)

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nor less than 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

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

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in section 21-28-1.02(18).

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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,

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deliver, 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

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

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prescription or order of a practitioner while acting in the course of his or her professional

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practice, or except as 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 marijuana, is guilty of a crime and upon conviction may be imprisoned for

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

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

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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 subdivision 21-28-

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4.01(a)(1) and upon conviction may be imprisoned for not more than one year or fined not less

 

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than two hundred 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 21-28.6 shall constitute a civil offense,

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rendering the offender liable to a civil penalty in the amount of one hundred fifty dollars ($150)

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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

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offense 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 under the age of eighteen (18) years and

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who is not exempted from penalties pursuant to chapter 21-28.6 shall constitute a civil offense,

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rendering the offender liable to a civil penalty in the amount of one hundred fifty dollars ($150)

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and forfeiture of the marijuana; provided the minor offender completes an approved a drug

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awareness program approved by the department of behavioral healthcare, developmental

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disabilities and hospitals and community service as determined by the court. If the person under

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

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community service within one year of the offense, the penalty shall be a three hundred dollar

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($300) civil fine and forfeiture of the marijuana, except that if no drug awareness program or

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community service is available, the penalty shall be a fine of one hundred fifty dollars ($150) and

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forfeiture of the marijuana. The parents or legal guardian of any offender 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

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

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this civil penalty shall apply if the offense is the first (1st) or second (2nd) violation within the

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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 21-28.6 found in possession of one ounce (1 oz.) or

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

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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 subparagraphs 21-28-4.01(c)(2)(iii)

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

 

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

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

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the offense. The civil fine shall double again to six hundred dollars ($600) if it has not been paid

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within ninety (90) days.

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      (vii) No person may be arrested for a violation of subparagraphs 21-28-4.01(c)(2)(iii) or

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21-28-4.01(c)(2)(iv) except as provided in this subparagraph. Any person in possession of an

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

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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

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identification that fails or refuses to truthfully provide his or her name, address, and date of birth

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

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

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arrested.

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      (viii) No violation of subparagraphs 21-28-4.01(c)(2)(iii) or 21-28-4.01(c)(2)(iv) shall be

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considered a violation of parole or probation.

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

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

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

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

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

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

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4.01(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

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

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and treatment deposited as general revenues as determined by the department of behavioral

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healthcare, developmental disabilities and hospitals (BHDDH) and used to fund substance abuse

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prevention programs and student assistance programs for youth pursuant to chapters 21.2 and

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21.3 of title 16, and in accordance with the criteria identified in §§ 16-21.2-4(a) and 16-21.3-2(a).

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

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

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

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

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director of the department of mental health, retardation behavioral healthcare, developmental

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disabilities and hospitals and pay the sum of four hundred dollars ($400) to help defray the costs

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of this program which shall be deposited as general revenues as determined by the department of

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behavioral healthcare, developmental disabilities and hospitals (BHDDH) to fund substance

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abuse prevention programs and student assistance programs for youth pursuant to chapters 21.2

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and 21.3 of title 16 and in accordance with the criteria identified in §§ 16-21.2-4(a) and 16-21.3-

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2(a). Failure to 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

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

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

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

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shall be deposited as general revenues as determined by the department of behavioral healthcare,

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developmental disabilities and hospitals (BHDDH) to fund substance abuse prevention programs

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and student assistance programs for youth pursuant to chapters 21.2 and 21.3 of title 16 and in

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accordance with the criteria identified in §§ 16-21.2-4(a) and 16-21.3-2(a) and shall be collected

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from the person convicted or who pleads nolo contendere before any other fines authorized by

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this chapter.

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

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to 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 which 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

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

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any 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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     SECTION 2. Sections 16-21.2-4 and 16-21.2-5 of the General Laws in Chapter 16-21.2

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entitled "The Rhode Island Substance Abuse Prevention Act" are hereby amended to read as

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follows:

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     16-21.2-4. Substance abuse prevention program. -- (a) The department of behavioral

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healthcare, developmental disabilities and hospitals shall be charged with the administration of

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this chapter and shall:

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     (i) Identify funding distribution criteria;

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     (ii) Identify criteria for effective substance abuse prevention programs; and

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     (iii) Provide provide grants to assist in the planning, establishment, and operation and

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reporting of substance abuse prevention programs that incorporate such criteria. Grants under this

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section shall be made to municipal governments or their designated agents according to the

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following guidelines:

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      (1) The maximum grant shall be one hundred twenty-five thousand dollars ($125,000);

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provided, however, in the event that available funding exceeds $1.6 million in a fiscal year, those

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surplus funds are to be divided proportionately among the cities and towns on a per capita basis

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but in no event shall the city of Providence exceed a maximum grant cap of $175,000.00.

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      (2) In order to obtain a grant, the municipality or its designated agent must in the first

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year:

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      (i) Demonstrate the municipality's need for a comprehensive substance abuse program in

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the areas of prevention and education.

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      (ii) Demonstrate that the municipality to be served has established by appropriate

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legislative or executive action, a substance abuse prevention council which shall assist in

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assessing the needs and resources of the community, developing a three (3) year plan of action

 

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addressing the identified needs, the operation and implementation of the overall substance abuse

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prevention program; coordinating existing services such as law enforcement, prevention,

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treatment, and education; consisting of representatives of the municipal government,

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representatives of the school system, parents, and human service providers.

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      (iii) Demonstrate the municipality's ability to develop a plan of implementation of a

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comprehensive three (3) year substance abuse prevention program based on the specific needs of

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the community to include high risk populations of adolescents, children of substance abusers, and

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primary education school aged children.

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      (iv) Agree to conduct a survey/questionnaire of the student population designed to

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establish the extent of the use and abuse of drugs and alcohol in students throughout the local

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community's school population.

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      (v) Demonstrate that at least twenty percent (20%) of the cost of the proposed program

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will be contributed either in cash or in-kind by public or private resources within the

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municipality.

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     (3) Each municipality that receives a grant must demonstrate in an annual written report

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submitted to the department of behavioral healthcare, developmental disabilities and hospitals

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that the funding issued is expended on substance abuse prevention programs that reflect the

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criteria pursuant to subsection (a) of this section.

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      (b) The department of behavioral healthcare, developmental disabilities and hospitals

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shall adopt rules and regulations necessary and appropriate to carry out the purposes of this

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section.

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     16-21.2-5. Funding of substance abuse prevention program. -- (a)(1) Money to fund

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the Rhode Island Substance Abuse Prevention Act shall be appropriated from state general

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revenues and shall be raised by assessing an additional penalty of thirty dollars ($30.00) for all

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speeding violations as set forth in section 31-43-5.1.

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     (2) Money to fund the Rhode Island substance abuse prevention program shall be

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appropriated from state general revenues collected by the Rhode Island traffic tribunal from civil

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penalties issued pursuant to §§ 21-28-4.01(c)(2)(iii) and 21-28-4.01(c)(2)(iv) in accordance with

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the distribution criteria identified by the department of behavioral healthcare, developmental

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disabilities and hospitals identified in § 16-21.2-4(a).

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     (b) The money shall be deposited as general revenues. The department of behavioral

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healthcare, developmental disabilities and hospitals may utilize up to ten percent (10%) of the

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sums appropriated for the purpose of administering the substance abuse prevention program.

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      (b)(c) Grants made under this chapter shall not exceed money available in the substance

 

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abuse prevention program.

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     SECTION 3. Sections 16-21.3-2 and 16-21.3-3 of the General Laws in Chapter 16-21.3

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entitled "The Rhode Island Student Assistance Junior High/ Middle School Act" are hereby

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amended to read as follows:

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     16-21.3-2. Junior high/middle school student assistance program High School/junior

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high/middle school student assistance program. -- (a) The department of behavioral healthcare,

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developmental disabilities and hospitals shall be charged with the administration of this chapter

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and shall:

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     (1) Identify funding distribution criteria;

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     (2) Identify criteria for effective substance abuse prevention programs; and

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     (3) Contract contract with appropriate substance abuse prevention/intervention agencies

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to provide student assistance services that incorporate such criteria in high school/junior

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high/middle schools.

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      (b) Following the first complete year of operation, school systems receiving high

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school/junior high/middle school student assistance services will be required to contribute twenty

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percent (20%) of the costs of student assistance counselors to the service provider agency in order

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to continue the services.

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     16-21.3-3. Funding of junior high/middle school student assistance program

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Funding of high school/junior high/middle school student assistance program. -- (a) (1)

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Money to fund this program shall be raised by assessing an additional substance abuse prevention

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assessment of thirty dollars ($30.00) for all moving motor vehicle violations handled by the

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traffic tribunal including, but not limited to, those violations set forth in section 31-41.1-4, except

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for speeding. The money shall be deposited in a restricted purpose receipt account separate from

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all other accounts within the department of behavioral healthcare, developmental disabilities and

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hospitals. The restricted purpose receipt account shall be known as the high school/junior

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high/middle school student assistance fund and the traffic tribunal shall transfer money from the

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high school/junior high/middle school student assistance fund to the department of behavioral

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healthcare, developmental disabilities and hospitals for the administration of the Rhode Island

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Student Assistance High School/Junior High/Middle School Act.

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     (2) Money to fund the student assistance programs shall be appropriated from state

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general revenues collected by the Rhode Island traffic tribunal from civil penalties issued

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pursuant to §§ 21-28-4.01(c)(2)(iii) and 21-28-4.01(c)(2)(iv) in accordance with the distribution

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criteria identified by the department of behavioral healthcare, developmental disabilities and

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hospitals identified in § 16-21.2-4(a).

 

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     (b) The department of behavioral healthcare, developmental disabilities and hospitals

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may utilize up to ten percent (10%) of the sums collected from the additional penalty for the

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purpose of administering the program.

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     SECTION 4. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO THE UNIFORMED CONTROLLED SUBSTANCES ACT

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     This act would: (1) place approval of drug awareness programs for minors charged with

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civil marijuana offenses in the discretion of the department of behavioral healthcare,

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developmental disabilities and hospitals (BHDDH); (2) redirect funds from civil fines imposed to

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the general revenue fund to be expended by BHDDH to fund substance abuse and student

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assistance programs for youth; (3) mandate that BHDDH establish funding criteria for

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distribution of funds and require that municipalities receiving funds file annual reports verifying

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that the funds are being used for substance abuse prevention programs; and (4) make high schools

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eligible for assistance programs.

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     This act would take effect upon passage.

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