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H.B. 409
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9 LONG TITLE
10 General Description:
11 This bill requires that, when a person is sentenced for certain drug or alcohol related
12 offenses, if the person was pregnant at the time of the offense, the court shall order that
13 the person participate in drug or alcohol treatment.
14 Highlighted Provisions:
15 This bill:
16 . requires that when a person is convicted of possession of a controlled substance, or
17 driving under the influence of alcohol, drugs, or a combination of both, or with
18 specified or unsafe blood alcohol concentration, the court shall order, as part of the
19 person's sentence, that the person participate in drug or alcohol treatment, if, at the
20 time of the offense upon which the conviction is based, the person was pregnant;
21 and
22 . makes technical changes.
23 Monies Appropriated in this Bill:
24 None
25 Other Special Clauses:
26 None
27 Utah Code Sections Affected:
28 AMENDS:
29 41-6a-505, as enacted by Chapter 2, Laws of Utah 2005
30 58-37-8, as last amended by Chapters 8 and 30, Laws of Utah 2006
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32 Be it enacted by the Legislature of the state of Utah:
33 Section 1. Section 41-6a-505 is amended to read:
34 41-6a-505. Sentencing requirements for driving under the influence of alcohol,
35 drugs, or a combination of both violations.
36 (1) As part of any sentence for a first conviction of Section 41-6a-502 :
37 (a) the court shall:
38 (i) (A) impose a jail sentence of not less than 48 consecutive hours;
39 (B) require the person to work in a compensatory-service work program for not less
40 than 48 hours; or
41 (C) require the person to participate in home confinement through the use of electronic
42 monitoring in accordance with Section 41-6a-506 ;
43 (ii) order the person to participate in a screening;
44 (iii) order the person to participate in an assessment, if it is found appropriate by a
45 screening under Subsection (1)(a)(ii);
46 (iv) order the person to participate in an educational series if the court does not order
47 substance abuse treatment as described under Subsection (1)(b);
48 (v) impose a fine of not less than $700; and
49 (vi) order probation for the person in accordance with Section 41-6a-507 , if there is
50 admissible evidence that the person had a blood alcohol level of .16 or higher; and
51 (b) the court may:
52 (i) order the person to obtain substance abuse treatment if the substance abuse
53 treatment program determines that substance abuse treatment is appropriate; or
54 (ii) order probation for the person in accordance with Section 41-6a-507 .
55 (2) If a person is convicted under Section 41-6a-502 within ten years of a prior
56 conviction as defined in Subsection 41-6a-501 (2):
57 (a) the court shall:
58 (i) (A) impose a jail sentence of not less than 240 consecutive hours;
59 (B) require the person to work in a compensatory-service work program for not less
60 than 240 hours; or
61 (C) require the person to participate in home confinement through the use of electronic
62 monitoring in accordance with Section 41-6a-506 ;
63 (ii) order the person to participate in a screening;
64 (iii) order the person to participate in an assessment, if it is found appropriate by a
65 screening under Subsection (2)(a)(ii);
66 (iv) order the person to participate in an educational series if the court does not order
67 substance abuse treatment as described under Subsection (2)(b);
68 (v) impose a fine of not less than $800; and
69 (vi) order probation for the person in accordance with Section 41-6a-507 ; and
70 (b) the court may order the person to obtain substance abuse treatment if the substance
71 abuse treatment program determines that substance abuse treatment is appropriate.
72 (3) Under Subsection 41-6a-503 (2), if the court suspends the execution of a prison
73 sentence and places the defendant on probation:
74 (a) the court shall impose:
75 (i) a fine of not less than $1,500;
76 (ii) a jail sentence of not less than 1,500 hours;
77 (iii) supervised probation; and
78 (iv) an order requiring the person to obtain a screening and assessment and substance
79 abuse treatment at a substance abuse treatment program providing intensive care or inpatient
80 treatment and long-term closely supervised follow-through after treatment for not less than 240
81 hours; and
82 (b) the court may require the person to participate in home confinement through the use
83 of electronic monitoring in accordance with Section 41-6a-506 .
84 (4) (a) The requirements of Subsections (1)(a), (2)(a), and (3)(a) may not be suspended.
85 (b) Probation or parole resulting from a conviction for a violation under this section
86 may not be terminated.
87 (5) If a person is convicted of a violation of Section 41-6a-502 and there is admissible
88 evidence that the person had a blood alcohol level of .16 or higher, the court shall order the
89 following, or describe on record why the order or orders are not appropriate:
90 (a) treatment as described under Subsection (1)(b), (2)(b), or (3)(a)(iv); and
91 (b) one or both of the following:
92 (i) the installation of an ignition interlock system as a condition of probation for the
93 person in accordance with Section 41-6a-518 ; or
94 (ii) the imposition of home confinement through the use of electronic monitoring in
95 accordance with Section 41-6a-506 .
96 (6) (a) As part of a sentence imposed for a conviction under Section 41-6a-502 , the
97 court shall order that the person participate in drug or alcohol treatment if, at the time of the
98 offense upon which the conviction is based, the person was pregnant.
99 (b) The sentencing provision described in Subsection (6)(a) may not be suspended by
100 the court.
101 (c) The drug or alcohol treatment described in this section shall include, if available,
102 education on the risks of consuming drugs or alcohol during a pregnancy.
103 (d) The provisions of this Subsection (6) supercede any other provision of law that
104 conflicts with the provisions of this Subsection (6).
105 Section 2. Section 58-37-8 is amended to read:
106 58-37-8. Prohibited acts -- Penalties.
107 (1) Prohibited acts A -- Penalties:
108 (a) Except as authorized by this chapter, it is unlawful for any person to knowingly and
109 intentionally:
110 (i) produce, manufacture, or dispense, or to possess with intent to produce,
111 manufacture, or dispense, a controlled or counterfeit substance;
112 (ii) distribute a controlled or counterfeit substance, or to agree, consent, offer, or
113 arrange to distribute a controlled or counterfeit substance;
114 (iii) possess a controlled or counterfeit substance with intent to distribute; or
115 (iv) engage in a continuing criminal enterprise where:
116 (A) the person participates, directs, or engages in conduct which results in any
117 violation of any provision of [
118 (B) the violation is a part of a continuing series of two or more violations of [
119 Chapters 37, 37a, 37b, 37c, or 37d on separate occasions that are undertaken in concert with
120 five or more persons with respect to whom the person occupies a position of organizer,
121 supervisor, or any other position of management.
122 (b) Any person convicted of violating Subsection (1)(a) with respect to:
123 (i) a substance classified in Schedule I or II, a controlled substance analog, or
124 gammahydroxybutyric acid as listed in Schedule III is guilty of a second degree felony and
125 upon a second or subsequent conviction is guilty of a first degree felony;
126 (ii) a substance classified in Schedule III or IV, or marijuana, is guilty of a third degree
127 felony, and upon a second or subsequent conviction is guilty of a second degree felony; or
128 (iii) a substance classified in Schedule V is guilty of a class A misdemeanor and upon a
129 second or subsequent conviction is guilty of a third degree felony.
130 (c) Any person who has been convicted of a violation of Subsection (1)(a)(ii) or (iii)
131 may be sentenced to imprisonment for an indeterminate term as provided by law, but if the trier
132 of fact finds a firearm as defined in Section 76-10-501 was used, carried, or possessed on his
133 person or in his immediate possession during the commission or in furtherance of the offense,
134 the court shall additionally sentence the person convicted for a term of one year to run
135 consecutively and not concurrently; and the court may additionally sentence the person
136 convicted for an indeterminate term not to exceed five years to run consecutively and not
137 concurrently.
138 (d) Any person convicted of violating Subsection (1)(a)(iv) is guilty of a first degree
139 felony punishable by imprisonment for an indeterminate term of not less than seven years and
140 which may be for life. Imposition or execution of the sentence may not be suspended, and the
141 person is not eligible for probation.
142 (2) Prohibited acts B -- Penalties:
143 (a) It is unlawful:
144 (i) for any person knowingly and intentionally to possess or use a controlled substance
145 analog or a controlled substance, unless it was obtained under a valid prescription or order,
146 directly from a practitioner while acting in the course of his professional practice, or as
147 otherwise authorized by this chapter;
148 (ii) for any owner, tenant, licensee, or person in control of any building, room,
149 tenement, vehicle, boat, aircraft, or other place knowingly and intentionally to permit them to
150 be occupied by persons unlawfully possessing, using, or distributing controlled substances in
151 any of those locations; or
152 (iii) for any person knowingly and intentionally to possess an altered or forged
153 prescription or written order for a controlled substance.
154 (b) Any person convicted of violating Subsection (2)(a)(i) with respect to:
155 (i) marijuana, if the amount is 100 pounds or more, is guilty of a second degree felony;
156 (ii) a substance classified in Schedule I or II, marijuana, if the amount is more than 16
157 ounces, but less than 100 pounds, or a controlled substance analog, is guilty of a third degree
158 felony; or
159 (iii) marijuana, if the marijuana is not in the form of an extracted resin from any part of
160 the plant, and the amount is more than one ounce but less than 16 ounces, is guilty of a class A
161 misdemeanor.
162 (c) Upon a person's conviction of a violation of this Subsection (2) subsequent to a
163 conviction under Subsection (1)(a), that person shall be sentenced to a one degree greater
164 penalty than provided in this Subsection (2).
165 (d) Any person who violates Subsection (2)(a)(i) with respect to all other controlled
166 substances not included in Subsection (2)(b)(i), (ii), or (iii), including less than one ounce of
167 marijuana, is guilty of a class B misdemeanor. Upon a second conviction the person is guilty
168 of a class A misdemeanor, and upon a third or subsequent conviction the person is guilty of a
169 third degree felony.
170 (e) Any person convicted of violating Subsection (2)(a)(i) while inside the exterior
171 boundaries of property occupied by any correctional facility as defined in Section 64-13-1 or
172 any public jail or other place of confinement shall be sentenced to a penalty one degree greater
173 than provided in Subsection (2)(b), and if the conviction is with respect to controlled
174 substances as listed in:
175 (i) Subsection (2)(b), the person may be sentenced to imprisonment for an
176 indeterminate term as provided by law, and:
177 (A) the court shall additionally sentence the person convicted to a term of one year to
178 run consecutively and not concurrently; and
179 (B) the court may additionally sentence the person convicted for an indeterminate term
180 not to exceed five years to run consecutively and not concurrently; and
181 (ii) Subsection (2)(d), the person may be sentenced to imprisonment for an
182 indeterminate term as provided by law, and the court shall additionally sentence the person
183 convicted to a term of six months to run consecutively and not concurrently.
184 (f) Any person convicted of violating Subsection (2)(a)(ii) or (2)(a)(iii) is:
185 (i) on a first conviction, guilty of a class B misdemeanor;
186 (ii) on a second conviction, guilty of a class A misdemeanor; and
187 (iii) on a third or subsequent conviction, guilty of a third degree felony.
188 (g) A person is subject to the penalties under Subsection (2)(h) who, in an offense not
189 amounting to a violation of Section 76-5-207 :
190 (i) violates Subsection (2)(a)(i) by knowingly and intentionally having in his body any
191 measurable amount of a controlled substance; and
192 (ii) operates a motor vehicle as defined in Section 76-5-207 in a negligent manner,
193 causing serious bodily injury as defined in Section 76-1-601 or the death of another.
194 (h) A person who violates Subsection (2)(g) by having in his body:
195 (i) a controlled substance classified under Schedule I, other than those described in
196 Subsection (2)(h)(ii), or a controlled substance classified under Schedule II is guilty of a second
197 degree felony;
198 (ii) marijuana, tetrahydrocannabinols, or equivalents described in Subsection
199 58-37-4 (2)(a)(iii)(S) or (AA) is guilty of a third degree felony; or
200 (iii) any controlled substance classified under Schedules III, IV, or V is guilty of a class
201 A misdemeanor.
202 (3) Prohibited acts C -- Penalties:
203 (a) It is unlawful for any person knowingly and intentionally:
204 (i) to use in the course of the manufacture or distribution of a controlled substance a
205 license number which is fictitious, revoked, suspended, or issued to another person or, for the
206 purpose of obtaining a controlled substance, to assume the title of, or represent himself to be, a
207 manufacturer, wholesaler, apothecary, physician, dentist, veterinarian, or other authorized
208 person;
209 (ii) to acquire or obtain possession of, to procure or attempt to procure the
210 administration of, to obtain a prescription for, to prescribe or dispense to any person known to
211 be attempting to acquire or obtain possession of, or to procure the administration of any
212 controlled substance by misrepresentation or failure by the person to disclose his receiving any
213 controlled substance from another source, fraud, forgery, deception, subterfuge, alteration of a
214 prescription or written order for a controlled substance, or the use of a false name or address;
215 (iii) to make any false or forged prescription or written order for a controlled substance,
216 or to utter the same, or to alter any prescription or written order issued or written under the
217 terms of this chapter; or
218 (iv) to make, distribute, or possess any punch, die, plate, stone, or other thing designed
219 to print, imprint, or reproduce the trademark, trade name, or other identifying mark, imprint, or
220 device of another or any likeness of any of the foregoing upon any drug or container or labeling
221 so as to render any drug a counterfeit controlled substance.
222 (b) Any person convicted of violating Subsection (3)(a) is guilty of a third degree
223 felony.
224 (4) Prohibited acts D -- Penalties:
225 (a) Notwithstanding other provisions of this section, a person not authorized under this
226 chapter who commits any act declared to be unlawful under this section, Title 58, Chapter 37a,
227 Utah Drug Paraphernalia Act, or under Title 58, Chapter 37b, Imitation Controlled Substances
228 Act, is upon conviction subject to the penalties and classifications under this Subsection (4) if
229 the trier of fact finds the act is committed:
230 (i) in a public or private elementary or secondary school or on the grounds of any of
231 those schools;
232 (ii) in a public or private vocational school or postsecondary institution or on the
233 grounds of any of those schools or institutions;
234 (iii) in those portions of any building, park, stadium, or other structure or grounds
235 which are, at the time of the act, being used for an activity sponsored by or through a school or
236 institution under Subsections (4)(a)(i) and (ii);
237 (iv) in or on the grounds of a preschool or child-care facility;
238 (v) in a public park, amusement park, arcade, or recreation center;
239 (vi) in or on the grounds of a house of worship as defined in Section 76-10-501 ;
240 (vii) in a shopping mall, sports facility, stadium, arena, theater, movie house,
241 playhouse, or parking lot or structure adjacent thereto;
242 (viii) in a public parking lot or structure;
243 (ix) within 1,000 feet of any structure, facility, or grounds included in Subsections
244 (4)(a)(i) through (viii);
245 (x) in the immediate presence of a person younger than 18 years of age, regardless of
246 where the act occurs; or
247 (xi) for the purpose of facilitating, arranging, or causing the transport, delivery, or
248 distribution of a substance in violation of this section to an inmate or on the grounds of any
249 correctional facility as defined in Section 76-8-311.3 .
250 (b) A person convicted under this Subsection (4) is guilty of a first degree felony and
251 shall be imprisoned for a term of not less than five years if the penalty that would otherwise
252 have been established but for this subsection would have been a first degree felony. Imposition
253 or execution of the sentence may not be suspended, and the person is not eligible for probation.
254 (c) If the classification that would otherwise have been established would have been
255 less than a first degree felony but for this Subsection (4), a person convicted under this
256 Subsection (4) is guilty of one degree more than the maximum penalty prescribed for that
257 offense. This Subsection (4)(c) does not apply to a violation of Subsection (2)(g).
258 (d) (i) If the violation is of Subsection (4)(a)(xi):
259 (A) the person may be sentenced to imprisonment for an indeterminate term as
260 provided by law, and the court shall additionally sentence the person convicted for a term of
261 one year to run consecutively and not concurrently; and
262 (B) the court may additionally sentence the person convicted for an indeterminate term
263 not to exceed five years to run consecutively and not concurrently; and
264 (ii) the penalties under this Subsection (4)(d) apply also to any person who, acting with
265 the mental state required for the commission of an offense, directly or indirectly solicits,
266 requests, commands, coerces, encourages, or intentionally aids another person to commit a
267 violation of Subsection (4)(a)(xi).
268 (e) It is not a defense to a prosecution under this Subsection (4) that the actor
269 mistakenly believed the individual to be 18 years of age or older at the time of the offense or
270 was unaware of the individual's true age; nor that the actor mistakenly believed that the
271 location where the act occurred was not as described in Subsection (4)(a) or was unaware that
272 the location where the act occurred was as described in Subsection (4)(a).
273 (5) Any violation of this chapter for which no penalty is specified is a class B
274 misdemeanor.
275 (6) (a) Any penalty imposed for violation of this section is in addition to, and not in
276 lieu of, any civil or administrative penalty or sanction authorized by law.
277 (b) Where violation of this chapter violates a federal law or the law of another state,
278 conviction or acquittal under federal law or the law of another state for the same act is a bar to
279 prosecution in this state.
280 (7) In any prosecution for a violation of this chapter, evidence or proof which shows a
281 person or persons produced, manufactured, possessed, distributed, or dispensed a controlled
282 substance or substances, is prima facie evidence that the person or persons did so with
283 knowledge of the character of the substance or substances.
284 (8) This section does not prohibit a veterinarian, in good faith and in the course of his
285 professional practice only and not for humans, from prescribing, dispensing, or administering
286 controlled substances or from causing the substances to be administered by an assistant or
287 orderly under his direction and supervision.
288 (9) Civil or criminal liability may not be imposed under this section on:
289 (a) any person registered under this chapter who manufactures, distributes, or possesses
290 an imitation controlled substance for use as a placebo or investigational new drug by a
291 registered practitioner in the ordinary course of professional practice or research; or
292 (b) any law enforcement officer acting in the course and legitimate scope of his
293 employment.
294 (10) (a) Civil or criminal liability may not be imposed under this section on any Indian,
295 as defined in Subsection 58-37-2 (1)(v), who uses, possesses, or transports peyote for bona fide
296 traditional ceremonial purposes in connection with the practice of a traditional Indian religion
297 as defined in Subsection 58-37-2 (1)(w).
298 (b) In a prosecution alleging violation of this section regarding peyote as defined in
299 Subsection 58-37-4 (2)(a)(iii)(V), it is an affirmative defense that the peyote was used,
300 possessed, or transported by an Indian for bona fide traditional ceremonial purposes in
301 connection with the practice of a traditional Indian religion.
302 (c) (i) The defendant shall provide written notice of intent to claim an affirmative
303 defense under this Subsection (10) as soon as practicable, but not later than ten days prior to
304 trial.
305 (ii) The notice shall include the specific claims of the affirmative defense.
306 (iii) The court may waive the notice requirement in the interest of justice for good
307 cause shown, if the prosecutor is not unfairly prejudiced by the lack of timely notice.
308 (d) The defendant shall establish the affirmative defense under this Subsection (10) by
309 a preponderance of the evidence. If the defense is established, it is a complete defense to the
310 charges.
311 (11) (a) As part of a sentence imposed for a conviction under Subsection (2)(a)(i), the
312 court shall order that the person participate in drug treatment if, at the time of the offense upon
313 which the conviction is based, the person was pregnant.
314 (b) The sentencing provision described in Subsection (11)(a) may not be suspended by
315 the court.
316 (c) The drug treatment described in this section shall include, if available, education on
317 the risks of consuming drugs during a pregnancy.
318 (d) The provisions of this Subsection (11) supercede any other provision of law that
319 conflicts with the provisions of this Subsection (11).
320 [
321 person or circumstances, is held invalid, the remainder of this chapter shall be given effect
322 without the invalid provision or application.
Legislative Review Note
as of 2-22-07 4:12 PM