H.B. 225 Enrolled

1

COUNTERFEIT SUBSTANCE AMENDMENTS
2 2010 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Paul Ray
5 Senate Sponsor: Jon J. Greiner
6
7 LONG TITLE
8 General Description:
9 This bill modifies definitions regarding imitation and counterfeit controlled substances.
10 Highlighted Provisions:
11 This bill:
12 . amends the definition of "counterfeit controlled substance," including adding a
13 reasonable person standard; and
14 . amends the definition of "imitation controlled substance," including providing that
15 an imitation controlled substance resembles any legally or illegally manufactured
16 controlled substance.
17 Monies Appropriated in this Bill:
18 None
19 Other Special Clauses:
20 This bill provides an immediate effective date.
21 Utah Code Sections Affected:
22 AMENDS:
23 58-37-2, as last amended by Laws of Utah 2009, Chapter 42
24 58-37-8, as last amended by Laws of Utah 2009, Chapter 214
25 58-37b-2, as last amended by Laws of Utah 1997, Chapter 64
26 REPEALS:
27 58-37b-3, as last amended by Laws of Utah 1987, Chapter 190
28
29 Be it enacted by the Legislature of the state of Utah:

30 Section 1. Section 58-37-2 is amended to read:
31 58-37-2. Definitions.
32 (1) As used in this chapter:
33 (a) "Administer" means the direct application of a controlled substance, whether by
34 injection, inhalation, ingestion, or any other means, to the body of a patient or research subject
35 by:
36 (i) a practitioner or, in the practitioner's presence, by the practitioner's authorized
37 agent; or
38 (ii) the patient or research subject at the direction and in the presence of the
39 practitioner.
40 (b) "Agent" means an authorized person who acts on behalf of or at the direction of a
41 manufacturer, distributor, or practitioner but does not include a motor carrier, public
42 warehouseman, or employee of any of them.
43 (c) "Consumption" means ingesting or having any measurable amount of a controlled
44 substance in a person's body, but this Subsection (1)(c) does not include the metabolite of a
45 controlled substance.
46 (d) "Continuing criminal enterprise" means any individual, sole proprietorship,
47 partnership, corporation, business trust, association, or other legal entity, and any union or
48 groups of individuals associated in fact although not a legal entity, and includes illicit as well
49 as licit entities created or maintained for the purpose of engaging in conduct which constitutes
50 the commission of episodes of activity made unlawful by Title 58, [Chapters] Chapter 37,
51 Utah Controlled Substances Act, Chapter 37a, Utah Drug Paraphernalia Act, Chapter 37b,
52 Imitation Controlled Substances Act, Chapter 37c, Utah Controlled Substance Precursor Act,
53 or Chapter 37d, Clandestine Drug Lab Act, which episodes are not isolated, but have the same
54 or similar purposes, results, participants, victims, methods of commission, or otherwise are
55 interrelated by distinguishing characteristics. Taken together, the episodes shall demonstrate
56 continuing unlawful conduct and be related either to each other or to the enterprise.
57 (e) "Control" means to add, remove, or change the placement of a drug, substance, or

58 immediate precursor under Section 58-37-3 .
59 (f) (i) "Controlled substance" means a drug or substance included in Schedules I, II,
60 III, IV, or V of Section 58-37-4 , and also includes a drug or substance included in Schedules I,
61 II, III, IV, or V of the federal Controlled Substances Act, Title II, P.L. 91-513, or any
62 controlled substance analog.
63 (ii) "Controlled substance" does not include:
64 (A) distilled spirits, wine, or malt beverages, as those terms are defined or used in Title
65 32A, Alcoholic Beverage Control Act, regarding tobacco or food;
66 (B) any drug intended for lawful use in the diagnosis, cure, mitigation, treatment, or
67 prevention of disease in man or other animals, which contains ephedrine, pseudoephedrine,
68 norpseudoephedrine, or phenylpropanolamine if the drug is lawfully purchased, sold,
69 transferred, or furnished as an over-the-counter medication without prescription; or
70 (C) dietary supplements, vitamins, minerals, herbs, or other similar substances
71 including concentrates or extracts, which are not otherwise regulated by law, which may
72 contain naturally occurring amounts of chemical or substances listed in this chapter, or in rules
73 adopted pursuant to Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
74 (g) (i) "Controlled substance analog" means a substance the chemical structure of
75 which is substantially similar to the chemical structure of a controlled substance listed in
76 Schedules I and II of Section 58-37-4 , or in Schedules I and II of the federal Controlled
77 Substances Act, Title II, P.L. 91-513:
78 (A) which has a stimulant, depressant, or hallucinogenic effect on the central nervous
79 system substantially similar to the stimulant, depressant, or hallucinogenic effect on the central
80 nervous system of controlled substances in the schedules set forth in Subsection (1)(f); or
81 (B) which, with respect to a particular individual, is represented or intended to have a
82 stimulant, depressant, or hallucinogenic effect on the central nervous system substantially
83 similar to the stimulant, depressant, or hallucinogenic effect on the central nervous system of
84 controlled substances in the schedules set forth in this Subsection (1).
85 (ii) "Controlled substance analog" does not include:

86 (A) a controlled substance currently scheduled in Schedules I through V of Section
87 58-37-4 ;
88 (B) a substance for which there is an approved new drug application;
89 (C) a substance with respect to which an exemption is in effect for investigational use
90 by a particular person under Section 505 of the Food, Drug, and Cosmetic Act, 21 U.S.C. 355,
91 to the extent the conduct with respect to the substance is permitted by the exemption;
92 (D) any substance to the extent not intended for human consumption before an
93 exemption takes effect with respect to the substance;
94 (E) any drug intended for lawful use in the diagnosis, cure, mitigation, treatment, or
95 prevention of disease in man or other animals, which contains ephedrine, pseudoephedrine,
96 norpseudoephedrine, or phenylpropanolamine if the drug is lawfully purchased, sold,
97 transferred, or furnished as an over-the-counter medication without prescription; or
98 (F) dietary supplements, vitamins, minerals, herbs, or other similar substances
99 including concentrates or extracts, which are not otherwise regulated by law, which may
100 contain naturally occurring amounts of chemical or substances listed in this chapter, or in rules
101 adopted pursuant to Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
102 (h) "Conviction" means a determination of guilt by verdict, whether jury or bench, or
103 plea, whether guilty or no contest, for any offense proscribed by Title 58, Chapters 37, 37a,
104 37b, 37c, or 37d, or for any offense under the laws of the United States and any other state
105 which, if committed in this state, would be an offense under Title 58, Chapters 37, 37a, 37b,
106 37c, or 37d.
107 (i) "Counterfeit substance" means:
108 (i) any controlled substance or container or labeling of any controlled substance that:
109 (A) without authorization bears the trademark, trade name, or other identifying mark,
110 imprint, number, device, or any likeness of them, of a manufacturer, distributor, or dispenser
111 other than the person or persons who in fact manufactured, distributed, or dispensed the
112 substance which falsely purports to be a controlled substance distributed by[,] any other
113 manufacturer, distributor, or dispenser; [or] and

114 (B) a reasonable person would believe to be a controlled substance distributed by an
115 authorized manufacturer, distributor, or dispenser based on the appearance of the substance as
116 described under Subsection (1)(i)(i)(A) or the appearance of the container of that controlled
117 substance; or
118 (ii) any substance other than under Subsection (1)(i)(i) that:
119 (A) is falsely represented to be [a] any legally or illegally manufactured controlled
120 substance[.]; and
121 (B) a reasonable person would believe to be a legal or illegal controlled substance.
122 (j) "Deliver" or "delivery" means the actual, constructive, or attempted transfer of a
123 controlled substance or a listed chemical, whether or not an agency relationship exists.
124 (k) "Department" means the Department of Commerce.
125 (l) "Depressant or stimulant substance" means:
126 (i) a drug which contains any quantity of barbituric acid or any of the salts of
127 barbituric acid;
128 (ii) a drug which contains any quantity of:
129 (A) amphetamine or any of its optical isomers;
130 (B) any salt of amphetamine or any salt of an optical isomer of amphetamine; or
131 (C) any substance which the Secretary of Health and Human Services or the Attorney
132 General of the United States after investigation has found and by regulation designated
133 habit-forming because of its stimulant effect on the central nervous system;
134 (iii) lysergic acid diethylamide; or
135 (iv) any drug which contains any quantity of a substance which the Secretary of
136 Health and Human Services or the Attorney General of the United States after investigation
137 has found to have, and by regulation designated as having, a potential for abuse because of its
138 depressant or stimulant effect on the central nervous system or its hallucinogenic effect.
139 (m) "Dispense" means the delivery of a controlled substance by a pharmacist to an
140 ultimate user pursuant to the lawful order or prescription of a practitioner, and includes
141 distributing to, leaving with, giving away, or disposing of that substance as well as the

142 packaging, labeling, or compounding necessary to prepare the substance for delivery.
143 (n) "Dispenser" means a pharmacist who dispenses a controlled substance.
144 (o) "Distribute" means to deliver other than by administering or dispensing a
145 controlled substance or a listed chemical.
146 (p) "Distributor" means a person who distributes controlled substances.
147 (q) "Division" means the Division of Occupational and Professional Licensing created
148 in Section 58-1-103 .
149 (r) "Drug" means:
150 (i) articles recognized in the official United States Pharmacopoeia, Official
151 Homeopathic Pharmacopoeia of the United States, or Official National Formulary, or any
152 supplement to any of them;
153 (ii) articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention
154 of disease in man or other animals;
155 (iii) articles, other than food, intended to affect the structure or function of man or
156 other animals; and
157 (iv) articles intended for use as a component of any articles specified in Subsection
158 (1)(r)(i), (ii), or (iii); but does not include devices or their components, parts, or accessories.
159 (s) "Drug dependent person" means any individual who unlawfully and habitually uses
160 any controlled substance to endanger the public morals, health, safety, or welfare, or who is so
161 dependent upon the use of controlled substances as to have lost the power of self-control with
162 reference to the individual's dependency.
163 (t) "Food" means:
164 (i) any nutrient or substance of plant, mineral, or animal origin other than a drug as
165 specified in this chapter, and normally ingested by human beings; and
166 (ii) foods for special dietary uses as exist by reason of a physical, physiological,
167 pathological, or other condition including but not limited to the conditions of disease,
168 convalescence, pregnancy, lactation, allergy, hypersensitivity to food, underweight, and
169 overweight; uses for supplying a particular dietary need which exist by reason of age including

170 but not limited to the ages of infancy and childbirth, and also uses for supplementing and for
171 fortifying the ordinary or unusual diet with any vitamin, mineral, or other dietary property for
172 use of a food. Any particular use of a food is a special dietary use regardless of the nutritional
173 purposes.
174 (u) "Immediate precursor" means a substance which the Attorney General of the
175 United States has found to be, and by regulation designated as being, the principal compound
176 used or produced primarily for use in the manufacture of a controlled substance, or which is an
177 immediate chemical intermediary used or likely to be used in the manufacture of a controlled
178 substance, the control of which is necessary to prevent, curtail, or limit the manufacture of the
179 controlled substance.
180 (v) "Indian" means a member of an Indian tribe.
181 (w) "Indian religion" means any religion:
182 (i) the origin and interpretation of which is from within a traditional Indian culture or
183 community; and
184 (ii) which is practiced by Indians.
185 (x) "Indian tribe" means any tribe, band, nation, pueblo, or other organized group or
186 community of Indians, including any Alaska Native village, which is legally recognized as
187 eligible for and is consistent with the special programs, services, and entitlements provided by
188 the United States to Indians because of their status as Indians.
189 (y) "Manufacture" means the production, preparation, propagation, compounding, or
190 processing of a controlled substance, either directly or indirectly by extraction from substances
191 of natural origin, or independently by means of chemical synthesis or by a combination of
192 extraction and chemical synthesis.
193 (z) "Manufacturer" includes any person who packages, repackages, or labels any
194 container of any controlled substance, except pharmacists who dispense or compound
195 prescription orders for delivery to the ultimate consumer.
196 (aa) "Marijuana" means all species of the genus cannabis and all parts of the genus,
197 whether growing or not; the seeds of it; the resin extracted from any part of the plant; and

198 every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds,
199 or resin. The term does not include the mature stalks of the plant, fiber produced from the
200 stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt,
201 derivative, mixture, or preparation of the mature stalks, except the resin extracted from them,
202 fiber, oil or cake, or the sterilized seed of the plant which is incapable of germination. Any
203 synthetic equivalents of the substances contained in the plant cannabis sativa or any other
204 species of the genus cannabis which are chemically indistinguishable and pharmacologically
205 active are also included.
206 (bb) "Money" means officially issued coin and currency of the United States or any
207 foreign country.
208 (cc) "Narcotic drug" means any of the following, whether produced directly or
209 indirectly by extraction from substances of vegetable origin, or independently by means of
210 chemical synthesis, or by a combination of extraction and chemical synthesis:
211 (i) opium, coca leaves, and opiates;
212 (ii) a compound, manufacture, salt, derivative, or preparation of opium, coca leaves, or
213 opiates;
214 (iii) opium poppy and poppy straw; or
215 (iv) a substance, and any compound, manufacture, salt, derivative, or preparation of
216 the substance, which is chemically identical with any of the substances referred to in
217 Subsection (1)(cc)(i), (ii), or (iii), except narcotic drug does not include decocainized coca
218 leaves or extracts of coca leaves which do not contain cocaine or ecgonine.
219 (dd) "Negotiable instrument" means documents, containing an unconditional promise
220 to pay a sum of money, which are legally transferable to another party by endorsement or
221 delivery.
222 (ee) "Opiate" means any drug or other substance having an addiction-forming or
223 addiction-sustaining liability similar to morphine or being capable of conversion into a drug
224 having addiction-forming or addiction-sustaining liability.
225 (ff) "Opium poppy" means the plant of the species papaver somniferum L., except the

226 seeds of the plant.
227 (gg) "Person" means any corporation, association, partnership, trust, other institution
228 or entity or one or more individuals.
229 (hh) "Poppy straw" means all parts, except the seeds, of the opium poppy, after
230 mowing.
231 (ii) "Possession" or "use" means the joint or individual ownership, control, occupancy,
232 holding, retaining, belonging, maintaining, or the application, inhalation, swallowing,
233 injection, or consumption, as distinguished from distribution, of controlled substances and
234 includes individual, joint, or group possession or use of controlled substances. For a person to
235 be a possessor or user of a controlled substance, it is not required that the person be shown to
236 have individually possessed, used, or controlled the substance, but it is sufficient if it is shown
237 that the person jointly participated with one or more persons in the use, possession, or control
238 of any substances with knowledge that the activity was occurring, or the controlled substance
239 is found in a place or under circumstances indicating that the person had the ability and the
240 intent to exercise dominion and control over it.
241 (jj) "Practitioner" means a physician, dentist, naturopathic physician, veterinarian,
242 pharmacist, scientific investigator, pharmacy, hospital, or other person licensed, registered, or
243 otherwise permitted to distribute, dispense, conduct research with respect to, administer, or
244 use in teaching or chemical analysis a controlled substance in the course of professional
245 practice or research in this state.
246 (kk) "Prescribe" means to issue a prescription orally or in writing.
247 (ll) "Prescription" means an order issued by a licensed practitioner, in the course of
248 that practitioner's professional practice, for a controlled substance, other drug, or device which
249 it dispenses or administers for use by a patient or an animal. The order may be issued by word
250 of mouth, written document, telephone, facsimile transmission, computer, or other electronic
251 means of communication as defined by rule.
252 (mm) "Production" means the manufacture, planting, cultivation, growing, or
253 harvesting of a controlled substance.

254 (nn) "Securities" means any stocks, bonds, notes, or other evidences of debt or of
255 property.
256 (oo) "State" means the state of Utah.
257 (pp) "Ultimate user" means any person who lawfully possesses a controlled substance
258 for the person's own use, for the use of a member of the person's household, or for
259 administration to an animal owned by the person or a member of the person's household.
260 (2) If a term used in this chapter is not defined, the definition and terms of Title 76,
261 Utah Criminal Code, shall apply.
262 Section 2. Section 58-37-8 is amended to read:
263 58-37-8. Prohibited acts -- Penalties.
264 (1) Prohibited acts A -- Penalties:
265 (a) Except as authorized by this chapter, it is unlawful for any person to knowingly
266 and intentionally:
267 (i) produce, manufacture, or dispense, or to possess with intent to produce,
268 manufacture, or dispense, a controlled or counterfeit substance;
269 (ii) distribute a controlled or counterfeit substance, or to agree, consent, offer, or
270 arrange to distribute a controlled or counterfeit substance;
271 (iii) possess a controlled or counterfeit substance with intent to distribute; or
272 (iv) engage in a continuing criminal enterprise where:
273 (A) the person participates, directs, or engages in conduct which results in any
274 violation of any provision of Title 58, Chapters 37, 37a, 37b, 37c, or 37d that is a felony; and
275 (B) the violation is a part of a continuing series of two or more violations of Title 58,
276 Chapters 37, 37a, 37b, 37c, or 37d on separate occasions that are undertaken in concert with
277 five or more persons with respect to whom the person occupies a position of organizer,
278 supervisor, or any other position of management.
279 (b) Any person convicted of violating Subsection (1)(a) with respect to:
280 (i) a substance or a counterfeit of a substance classified in Schedule I or II, a
281 controlled substance analog, or gammahydroxybutyric acid as listed in Schedule III is guilty of

282 a second degree felony and upon a second or subsequent conviction is guilty of a first degree
283 felony;
284 (ii) a substance or a counterfeit of a substance classified in Schedule III or IV, or
285 marijuana, is guilty of a third degree felony, and upon a second or subsequent conviction is
286 guilty of a second degree felony; or
287 (iii) a substance or a counterfeit of a substance classified in Schedule V is guilty of a
288 class A misdemeanor and upon a second or subsequent conviction is guilty of a third degree
289 felony.
290 (c) Any person who has been convicted of a violation of Subsection (1)(a)(ii) or (iii)
291 may be sentenced to imprisonment for an indeterminate term as provided by law, but if the
292 trier of fact finds a firearm as defined in Section 76-10-501 was used, carried, or possessed on
293 his person or in his immediate possession during the commission or in furtherance of the
294 offense, the court shall additionally sentence the person convicted for a term of one year to run
295 consecutively and not concurrently; and the court may additionally sentence the person
296 convicted for an indeterminate term not to exceed five years to run consecutively and not
297 concurrently.
298 (d) Any person convicted of violating Subsection (1)(a)(iv) is guilty of a first degree
299 felony punishable by imprisonment for an indeterminate term of not less than seven years and
300 which may be for life. Imposition or execution of the sentence may not be suspended, and the
301 person is not eligible for probation.
302 (2) Prohibited acts B -- Penalties:
303 (a) It is unlawful:
304 (i) for any person knowingly and intentionally to possess or use a controlled substance
305 analog or a controlled substance, unless it was obtained under a valid prescription or order,
306 directly from a practitioner while acting in the course of [his] the person's professional
307 practice, or as otherwise authorized by this chapter;
308 (ii) for any owner, tenant, licensee, or person in control of any building, room,
309 tenement, vehicle, boat, aircraft, or other place knowingly and intentionally to permit them to

310 be occupied by persons unlawfully possessing, using, or distributing controlled substances in
311 any of those locations; or
312 (iii) for any person knowingly and intentionally to possess an altered or forged
313 prescription or written order for a controlled substance.
314 (b) Any person convicted of violating Subsection (2)(a)(i) with respect to:
315 (i) marijuana, if the amount is 100 pounds or more, is guilty of a second degree felony;
316 (ii) a substance classified in Schedule I or II, marijuana, if the amount is more than 16
317 ounces, but less than 100 pounds, or a controlled substance analog, is guilty of a third degree
318 felony; or
319 (iii) marijuana, if the marijuana is not in the form of an extracted resin from any part
320 of the plant, and the amount is more than one ounce but less than 16 ounces, is guilty of a
321 class A misdemeanor.
322 (c) Upon a person's conviction of a violation of this Subsection (2) subsequent to a
323 conviction under Subsection (1)(a), that person shall be sentenced to a one degree greater
324 penalty than provided in this Subsection (2).
325 (d) Any person who violates Subsection (2)(a)(i) with respect to all other controlled
326 substances not included in Subsection (2)(b)(i), (ii), or (iii), including less than one ounce of
327 marijuana, is guilty of a class B misdemeanor. Upon a second conviction the person is guilty
328 of a class A misdemeanor, and upon a third or subsequent conviction the person is guilty of a
329 third degree felony.
330 (e) Any person convicted of violating Subsection (2)(a)(i) while inside the exterior
331 boundaries of property occupied by any correctional facility as defined in Section 64-13-1 or
332 any public jail or other place of confinement shall be sentenced to a penalty one degree greater
333 than provided in Subsection (2)(b), and if the conviction is with respect to controlled
334 substances as listed in:
335 (i) Subsection (2)(b), the person may be sentenced to imprisonment for an
336 indeterminate term as provided by law, and:
337 (A) the court shall additionally sentence the person convicted to a term of one year to

338 run consecutively and not concurrently; and
339 (B) the court may additionally sentence the person convicted for an indeterminate term
340 not to exceed five years to run consecutively and not concurrently; and
341 (ii) Subsection (2)(d), the person may be sentenced to imprisonment for an
342 indeterminate term as provided by law, and the court shall additionally sentence the person
343 convicted to a term of six months to run consecutively and not concurrently.
344 (f) Any person convicted of violating Subsection (2)(a)(ii) or (2)(a)(iii) is:
345 (i) on a first conviction, guilty of a class B misdemeanor;
346 (ii) on a second conviction, guilty of a class A misdemeanor; and
347 (iii) on a third or subsequent conviction, guilty of a third degree felony.
348 (g) A person is subject to the penalties under Subsection (2)(h) who, in an offense not
349 amounting to a violation of Section 76-5-207 :
350 (i) violates Subsection (2)(a)(i) by knowingly and intentionally having in [his] the
351 person's body any measurable amount of a controlled substance; and
352 (ii) operates a motor vehicle as defined in Section 76-5-207 in a negligent manner,
353 causing serious bodily injury as defined in Section 76-1-601 or the death of another.
354 (h) A person who violates Subsection (2)(g) by having in [his] the person's body:
355 (i) a controlled substance classified under Schedule I, other than those described in
356 Subsection (2)(h)(ii), or a controlled substance classified under Schedule II is guilty of a
357 second degree felony;
358 (ii) marijuana, tetrahydrocannabinols, or equivalents described in Subsection
359 58-37-4 (2)(a)(iii)(S) or (AA) is guilty of a third degree felony; or
360 (iii) any controlled substance classified under Schedules III, IV, or V is guilty of a
361 class A misdemeanor.
362 (i) A person is guilty of a separate offense for each victim suffering serious bodily
363 injury or death as a result of the person's negligent driving in violation of Subsection
364 58-37-8 (2)(g) whether or not the injuries arise from the same episode of driving.
365 (3) Prohibited acts C -- Penalties:

366 (a) It is unlawful for any person knowingly and intentionally:
367 (i) to use in the course of the manufacture or distribution of a controlled substance a
368 license number which is fictitious, revoked, suspended, or issued to another person or, for the
369 purpose of obtaining a controlled substance, to assume the title of, or represent [himself]
370 oneself to be, a manufacturer, wholesaler, apothecary, physician, dentist, veterinarian, or other
371 authorized person;
372 (ii) to acquire or obtain possession of, to procure or attempt to procure the
373 administration of, to obtain a prescription for, to prescribe or dispense to any person known to
374 be attempting to acquire or obtain possession of, or to procure the administration of any
375 controlled substance by misrepresentation or failure by the person to disclose [his] receiving
376 any controlled substance from another source, fraud, forgery, deception, subterfuge, alteration
377 of a prescription or written order for a controlled substance, or the use of a false name or
378 address;
379 (iii) to make any false or forged prescription or written order for a controlled
380 substance, or to utter the same, or to alter any prescription or written order issued or written
381 under the terms of this chapter; or
382 (iv) to make, distribute, or possess any punch, die, plate, stone, or other thing designed
383 to print, imprint, or reproduce the trademark, trade name, or other identifying mark, imprint,
384 or device of another or any likeness of any of the foregoing upon any drug or container or
385 labeling so as to render any drug a counterfeit controlled substance.
386 (b) Any person convicted of violating Subsection (3)(a) is guilty of a third degree
387 felony.
388 (4) Prohibited acts D -- Penalties:
389 (a) Notwithstanding other provisions of this section, a person not authorized under this
390 chapter who commits any act declared to be unlawful under this section, Title 58, Chapter 37a,
391 Utah Drug Paraphernalia Act, or under Title 58, Chapter 37b, Imitation Controlled Substances
392 Act, is upon conviction subject to the penalties and classifications under this Subsection (4) if
393 the trier of fact finds the act is committed:

394 (i) in a public or private elementary or secondary school or on the grounds of any of
395 those schools;
396 (ii) in a public or private vocational school or postsecondary institution or on the
397 grounds of any of those schools or institutions;
398 (iii) in those portions of any building, park, stadium, or other structure or grounds
399 which are, at the time of the act, being used for an activity sponsored by or through a school or
400 institution under Subsections (4)(a)(i) and (ii);
401 (iv) in or on the grounds of a preschool or child-care facility;
402 (v) in a public park, amusement park, arcade, or recreation center;
403 (vi) in or on the grounds of a house of worship as defined in Section 76-10-501 ;
404 (vii) in a shopping mall, sports facility, stadium, arena, theater, movie house,
405 playhouse, or parking lot or structure adjacent thereto;
406 (viii) in or on the grounds of a library;
407 (ix) within any area that is within 1,000 feet of any structure, facility, or grounds
408 included in Subsections (4)(a)(i), (ii), (iv), (vi), and (vii);
409 (x) in the presence of a person younger than 18 years of age, regardless of where the
410 act occurs; or
411 (xi) for the purpose of facilitating, arranging, or causing the transport, delivery, or
412 distribution of a substance in violation of this section to an inmate or on the grounds of any
413 correctional facility as defined in Section 76-8-311.3 .
414 (b) (i) A person convicted under this Subsection (4) is guilty of a first degree felony
415 and shall be imprisoned for a term of not less than five years if the penalty that would
416 otherwise have been established but for this Subsection (4) would have been a first degree
417 felony.
418 (ii) Imposition or execution of the sentence may not be suspended, and the person is
419 not eligible for probation.
420 (c) If the classification that would otherwise have been established would have been
421 less than a first degree felony but for this Subsection (4), a person convicted under this

422 Subsection (4) is guilty of one degree more than the maximum penalty prescribed for that
423 offense. This Subsection (4)(c) does not apply to a violation of Subsection (2)(g).
424 (d) (i) If the violation is of Subsection (4)(a)(xi):
425 (A) the person may be sentenced to imprisonment for an indeterminate term as
426 provided by law, and the court shall additionally sentence the person convicted for a term of
427 one year to run consecutively and not concurrently; and
428 (B) the court may additionally sentence the person convicted for an indeterminate term
429 not to exceed five years to run consecutively and not concurrently; and
430 (ii) the penalties under this Subsection (4)(d) apply also to any person who, acting
431 with the mental state required for the commission of an offense, directly or indirectly solicits,
432 requests, commands, coerces, encourages, or intentionally aids another person to commit a
433 violation of Subsection (4)(a)(xi).
434 (e) It is not a defense to a prosecution under this Subsection (4) that the actor
435 mistakenly believed the individual to be 18 years of age or older at the time of the offense or
436 was unaware of the individual's true age; nor that the actor mistakenly believed that the
437 location where the act occurred was not as described in Subsection (4)(a) or was unaware that
438 the location where the act occurred was as described in Subsection (4)(a).
439 (5) Any violation of this chapter for which no penalty is specified is a class B
440 misdemeanor.
441 (6) For purposes of penalty enhancement under Subsections (1)(b) and (2)(c), a plea of
442 guilty or no contest to a violation of this section which is held in abeyance under Title 77,
443 Chapter 2a, Pleas in Abeyance, is the equivalent of a conviction, even if the charge has been
444 subsequently reduced or dismissed in accordance with the plea in abeyance agreement.
445 (7) A person may be charged and sentenced for a violation of this section,
446 notwithstanding a charge and sentence for a violation of any other section of this chapter.
447 (8) (a) Any penalty imposed for violation of this section is in addition to, and not in
448 lieu of, any civil or administrative penalty or sanction authorized by law.
449 (b) Where violation of this chapter violates a federal law or the law of another state,

450 conviction or acquittal under federal law or the law of another state for the same act is a bar to
451 prosecution in this state.
452 (9) In any prosecution for a violation of this chapter, evidence or proof which shows a
453 person or persons produced, manufactured, possessed, distributed, or dispensed a controlled
454 substance or substances, is prima facie evidence that the person or persons did so with
455 knowledge of the character of the substance or substances.
456 (10) This section does not prohibit a veterinarian, in good faith and in the course of
457 [his] the veterinarian's professional practice only and not for humans, from prescribing,
458 dispensing, or administering controlled substances or from causing the substances to be
459 administered by an assistant or orderly under [his] the veterinarian's direction and supervision.
460 (11) Civil or criminal liability may not be imposed under this section on:
461 (a) any person registered under this chapter who manufactures, distributes, or
462 possesses an imitation controlled substance for use as a placebo or investigational new drug by
463 a registered practitioner in the ordinary course of professional practice or research; or
464 (b) any law enforcement officer acting in the course and legitimate scope of [his] the
465 officer's employment.
466 (12) (a) Civil or criminal liability may not be imposed under this section on any
467 Indian, as defined in Subsection 58-37-2 (1)(v), who uses, possesses, or transports peyote for
468 bona fide traditional ceremonial purposes in connection with the practice of a traditional
469 Indian religion as defined in Subsection 58-37-2 (1)(w).
470 (b) In a prosecution alleging violation of this section regarding peyote as defined in
471 Subsection 58-37-4 (2)(a)(iii)(V), it is an affirmative defense that the peyote was used,
472 possessed, or transported by an Indian for bona fide traditional ceremonial purposes in
473 connection with the practice of a traditional Indian religion.
474 (c) (i) The defendant shall provide written notice of intent to claim an affirmative
475 defense under this Subsection (12) as soon as practicable, but not later than 10 days prior to
476 trial.
477 (ii) The notice shall include the specific claims of the affirmative defense.

478 (iii) The court may waive the notice requirement in the interest of justice for good
479 cause shown, if the prosecutor is not unfairly prejudiced by the lack of timely notice.
480 (d) The defendant shall establish the affirmative defense under this Subsection (12) by
481 a preponderance of the evidence. If the defense is established, it is a complete defense to the
482 charges.
483 (13) If any provision of this chapter, or the application of any provision to any person
484 or circumstances, is held invalid, the remainder of this chapter shall be given effect without
485 the invalid provision or application.
486 Section 3. Section 58-37b-2 is amended to read:
487 58-37b-2. Definitions.
488 As used in this chapter:
489 (1) "Controlled substance" has the same meaning as provided in Section 58-37-2 .
490 (2) "Distribute" means the actual, constructive, or attempted sale, transfer, delivery, or
491 dispensing to another of an imitation controlled substance.
492 (3) "Imitation controlled substance" means a substance [that is not a controlled
493 substance or counterfeit controlled substance, and which by overall dosage unit substantially
494 resembles a specific controlled substance in appearance, including its color, shape, or size.]
495 designed or packaged to substantially resemble any legally or illegally manufactured controlled
496 substance, but that is not:
497 (a) a controlled substance; or
498 (b) represented to be any legally or illegally manufactured controlled substance under
499 Subsection 58-37-2 (1)(i)(ii).
500 (4) "Manufacture" means the production, preparation, compounding, processing,
501 encapsulating, tableting, packaging or repackaging, labeling or relabeling, of an imitation
502 controlled substance.
503 Section 4. Repealer.
504 This bill repeals:
505 Section 58-37b-3, Considerations in determining whether substance is imitation

506 controlled substance.
507 Section 5. Effective date.
508 If approved by two-thirds of all the members elected to each house, this bill takes effect
509 upon approval by the governor, or the day following the constitutional time limit of Utah
510 Constitution Article VII, Section 8, without the governor's signature, or in the case of a veto,
511 the date of veto override.