H.B. 225

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 agent;
37 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, Utah
51 Controlled Substances Act, Chapter 37a, Utah Drug Paraphernalia Act, Chapter 37b, Imitation
52 Controlled Substances Act, Chapter 37c, Utah Controlled Substance Precursor Act, or Chapter
53 37d, Clandestine Drug Lab Act, which episodes are not isolated, but have the same or similar
54 purposes, results, participants, victims, methods of commission, or otherwise are interrelated
55 by distinguishing characteristics. Taken together, the episodes shall demonstrate continuing
56 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, III,
60 IV, or V of Section 58-37-4 , and also includes a drug or substance included in Schedules I, II,
61 III, IV, or V of the federal Controlled Substances Act, Title II, P.L. 91-513, or any controlled
62 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 barbituric
127 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 Health
136 and Human Services or the Attorney General of the United States after investigation has found
137 to have, and by regulation designated as having, a potential for abuse because of its depressant
138 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 controlled
145 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 United
175 States has found to be, and by regulation designated as being, the principal compound used or
176 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 every
198 compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or
199 resin. The term does not include the mature stalks of the plant, fiber produced from the stalks,
200 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 the
216 substance, which is chemically identical with any of the substances referred to in Subsection
217 (1)(cc)(i), (ii), or (iii), except narcotic drug does not include decocainized coca leaves or
218 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 or
228 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, injection,
233 or consumption, as distinguished from distribution, of controlled substances and includes
234 individual, joint, or group possession or use of controlled substances. For a person to be a
235 possessor or user of a controlled substance, it is not required that the person be shown to have
236 individually possessed, used, or controlled the substance, but it is sufficient if it is shown that
237 the person jointly participated with one or more persons in the use, possession, or control of
238 any substances with knowledge that the activity was occurring, or the controlled substance is
239 found in a place or under circumstances indicating that the person had the ability and the intent
240 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 use
244 in teaching or chemical analysis a controlled substance in the course of professional practice or

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

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

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

369 oneself to be, a manufacturer, wholesaler, apothecary, physician, dentist, veterinarian, or other
370 authorized person;
371 (ii) to acquire or obtain possession of, to procure or attempt to procure the
372 administration of, to obtain a prescription for, to prescribe or dispense to any person known to
373 be attempting to acquire or obtain possession of, or to procure the administration of any
374 controlled substance by misrepresentation or failure by the person to disclose [his] receiving
375 any controlled substance from another source, fraud, forgery, deception, subterfuge, alteration
376 of a prescription or written order for a controlled substance, or the use of a false name or
377 address;
378 (iii) to make any false or forged prescription or written order for a controlled substance,
379 or to utter the same, or to alter any prescription or written order issued or written under the
380 terms of this chapter; or
381 (iv) to make, distribute, or possess any punch, die, plate, stone, or other thing designed
382 to print, imprint, or reproduce the trademark, trade name, or other identifying mark, imprint, or
383 device of another or any likeness of any of the foregoing upon any drug or container or labeling
384 so as to render any drug a counterfeit controlled substance.
385 (b) Any person convicted of violating Subsection (3)(a) is guilty of a third degree
386 felony.
387 (4) Prohibited acts D -- Penalties:
388 (a) Notwithstanding other provisions of this section, a person not authorized under this
389 chapter who commits any act declared to be unlawful under this section, Title 58, Chapter 37a,
390 Utah Drug Paraphernalia Act, or under Title 58, Chapter 37b, Imitation Controlled Substances
391 Act, is upon conviction subject to the penalties and classifications under this Subsection (4) if
392 the trier of fact finds the act is committed:
393 (i) in a public or private elementary or secondary school or on the grounds of any of
394 those schools;
395 (ii) in a public or private vocational school or postsecondary institution or on the
396 grounds of any of those schools or institutions;
397 (iii) in those portions of any building, park, stadium, or other structure or grounds
398 which are, at the time of the act, being used for an activity sponsored by or through a school or
399 institution under Subsections (4)(a)(i) and (ii);

400 (iv) in or on the grounds of a preschool or child-care facility;
401 (v) in a public park, amusement park, arcade, or recreation center;
402 (vi) in or on the grounds of a house of worship as defined in Section 76-10-501 ;
403 (vii) in a shopping mall, sports facility, stadium, arena, theater, movie house,
404 playhouse, or parking lot or structure adjacent thereto;
405 (viii) in or on the grounds of a library;
406 (ix) within any area that is within 1,000 feet of any structure, facility, or grounds
407 included in Subsections (4)(a)(i), (ii), (iv), (vi), and (vii);
408 (x) in the presence of a person younger than 18 years of age, regardless of where the act
409 occurs; or
410 (xi) for the purpose of facilitating, arranging, or causing the transport, delivery, or
411 distribution of a substance in violation of this section to an inmate or on the grounds of any
412 correctional facility as defined in Section 76-8-311.3 .
413 (b) (i) A person convicted under this Subsection (4) is guilty of a first degree felony
414 and shall be imprisoned for a term of not less than five years if the penalty that would
415 otherwise have been established but for this Subsection (4) would have been a first degree
416 felony.
417 (ii) Imposition or execution of the sentence may not be suspended, and the person is
418 not eligible for probation.
419 (c) If the classification that would otherwise have been established would have been
420 less than a first degree felony but for this Subsection (4), a person convicted under this
421 Subsection (4) is guilty of one degree more than the maximum penalty prescribed for that
422 offense. This Subsection (4)(c) does not apply to a violation of Subsection (2)(g).
423 (d) (i) If the violation is of Subsection (4)(a)(xi):
424 (A) the person may be sentenced to imprisonment for an indeterminate term as
425 provided by law, and the court shall additionally sentence the person convicted for a term of
426 one year to run consecutively and not concurrently; and
427 (B) the court may additionally sentence the person convicted for an indeterminate term
428 not to exceed five years to run consecutively and not concurrently; and
429 (ii) the penalties under this Subsection (4)(d) apply also to any person who, acting with
430 the mental state required for the commission of an offense, directly or indirectly solicits,

431 requests, commands, coerces, encourages, or intentionally aids another person to commit a
432 violation of Subsection (4)(a)(xi).
433 (e) It is not a defense to a prosecution under this Subsection (4) that the actor
434 mistakenly believed the individual to be 18 years of age or older at the time of the offense or
435 was unaware of the individual's true age; nor that the actor mistakenly believed that the
436 location where the act occurred was not as described in Subsection (4)(a) or was unaware that
437 the location where the act occurred was as described in Subsection (4)(a).
438 (5) Any violation of this chapter for which no penalty is specified is a class B
439 misdemeanor.
440 (6) For purposes of penalty enhancement under Subsections (1)(b) and (2)(c), a plea of
441 guilty or no contest to a violation of this section which is held in abeyance under Title 77,
442 Chapter 2a, Pleas in Abeyance, is the equivalent of a conviction, even if the charge has been
443 subsequently reduced or dismissed in accordance with the plea in abeyance agreement.
444 (7) A person may be charged and sentenced for a violation of this section,
445 notwithstanding a charge and sentence for a violation of any other section of this chapter.
446 (8) (a) Any penalty imposed for violation of this section is in addition to, and not in
447 lieu of, any civil or administrative penalty or sanction authorized by law.
448 (b) Where violation of this chapter violates a federal law or the law of another state,
449 conviction or acquittal under federal law or the law of another state for the same act is a bar to
450 prosecution in this state.
451 (9) In any prosecution for a violation of this chapter, evidence or proof which shows a
452 person or persons produced, manufactured, possessed, distributed, or dispensed a controlled
453 substance or substances, is prima facie evidence that the person or persons did so with
454 knowledge of the character of the substance or substances.
455 (10) This section does not prohibit a veterinarian, in good faith and in the course of
456 [his] the veterinarian's professional practice only and not for humans, from prescribing,
457 dispensing, or administering controlled substances or from causing the substances to be
458 administered by an assistant or orderly under [his] the veterinarian's direction and supervision.
459 (11) Civil or criminal liability may not be imposed under this section on:
460 (a) any person registered under this chapter who manufactures, distributes, or possesses
461 an imitation controlled substance for use as a placebo or investigational new drug by a

462 registered practitioner in the ordinary course of professional practice or research; or
463 (b) any law enforcement officer acting in the course and legitimate scope of [his] the
464 officer's employment.
465 (12) (a) Civil or criminal liability may not be imposed under this section on any Indian,
466 as defined in Subsection 58-37-2 (1)(v), who uses, possesses, or transports peyote for bona fide
467 traditional ceremonial purposes in connection with the practice of a traditional Indian religion
468 as defined in Subsection 58-37-2 (1)(w).
469 (b) In a prosecution alleging violation of this section regarding peyote as defined in
470 Subsection 58-37-4 (2)(a)(iii)(V), it is an affirmative defense that the peyote was used,
471 possessed, or transported by an Indian for bona fide traditional ceremonial purposes in
472 connection with the practice of a traditional Indian religion.
473 (c) (i) The defendant shall provide written notice of intent to claim an affirmative
474 defense under this Subsection (12) as soon as practicable, but not later than 10 days prior to
475 trial.
476 (ii) The notice shall include the specific claims of the affirmative defense.
477 (iii) The court may waive the notice requirement in the interest of justice for good
478 cause shown, if the prosecutor is not unfairly prejudiced by the lack of timely notice.
479 (d) The defendant shall establish the affirmative defense under this Subsection (12) by
480 a preponderance of the evidence. If the defense is established, it is a complete defense to the
481 charges.
482 (13) If any provision of this chapter, or the application of any provision to any person
483 or circumstances, is held invalid, the remainder of this chapter shall be given effect without the
484 invalid provision or application.
485 Section 3. Section 58-37b-2 is amended to read:
486 58-37b-2. Definitions.
487 As used in this chapter:
488 (1) "Controlled substance" has the same meaning as provided in Section 58-37-2 .
489 (2) "Distribute" means the actual, constructive, or attempted sale, transfer, delivery, or
490 dispensing to another of an imitation controlled substance.
491 (3) "Imitation controlled substance" means a substance [that is not a controlled
492 substance or counterfeit controlled substance, and which by overall dosage unit substantially

493 resembles a specific controlled substance in appearance, including its color, shape, or size.]
494 designed or packaged to substantially resemble any legally or illegally manufactured controlled
495 substance, but that is not:
496 (a) a controlled substance; or
497 (b) represented to be any legally or illegally manufactured controlled substance under
498 Subsection 58-37-2 (1)(i)(ii).
499 (4) "Manufacture" means the production, preparation, compounding, processing,
500 encapsulating, tableting, packaging or repackaging, labeling or relabeling, of an imitation
501 controlled substance.
502 Section 4. Repealer.
503 This bill repeals:
504 Section 58-37b-3, Considerations in determining whether substance is imitation
505 controlled substance.
506 Section 5. Effective date.
507 If approved by two-thirds of all the members elected to each house, this bill takes effect
508 upon approval by the governor, or the day following the constitutional time limit of Utah
509 Constitution Article VII, Section 8, without the governor's signature, or in the case of a veto,
510 the date of veto override.




Legislative Review Note
as of 12-4-09 3:11 PM

Office of Legislative Research and General Counsel