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H.B. 319

             1     

ENHANCEMENT OF PENALTIES IN DRUG

             2     
OFFENSES

             3     
1999 GENERAL SESSION

             4     
STATE OF UTAH

             5     
Sponsor: A. Lamont Tyler

             6      AN ACT RELATING TO CRIMINAL CODE; PROVIDING FOR AN ENHANCEMENT IN
             7      SENTENCE FOR USE OF A FIREARM IN RELATION TO THE DISTRIBUTION OF A
             8      CONTROLLED OR COUNTERFEIT SUBSTANCE; AND MAKING TECHNICAL
             9      CORRECTIONS.
             10      This act affects sections of Utah Code Annotated 1953 as follows:
             11      AMENDS:
             12          58-37-8, as last amended by Chapter 139, Laws of Utah 1998
             13      Be it enacted by the Legislature of the state of Utah:
             14          Section 1. Section 58-37-8 is amended to read:
             15           58-37-8. Prohibited acts -- Penalties.
             16          (1) Prohibited acts A -- Penalties:
             17          (a) Except as authorized by this chapter, it is unlawful for any person to knowingly and
             18      intentionally:
             19          (i) produce, manufacture, or dispense, or to possess with intent to produce, manufacture,
             20      or dispense, a controlled or counterfeit substance;
             21          (ii) distribute a controlled or counterfeit substance, or to agree, consent, offer, or arrange
             22      to distribute a controlled or counterfeit substance;
             23          (iii) possess a controlled or counterfeit substance with intent to distribute; or
             24          (iv) engage in a continuing criminal enterprise where:
             25          (A) the person participates, directs, or engages in conduct which results in any violation
             26      of any provision of Title 58, Chapters 37, 37a, 37b, 37c, or 37d that is a felony; and
             27          (B) the violation is a part of a continuing series of two or more violations of Title 58,


             28      Chapters 37, 37a, 37b, 37c, or 37d on separate occasions that are undertaken in concert with five
             29      or more persons with respect to whom the person occupies a position of organizer, supervisor, or
             30      any other position of management.
             31          (b) Any person convicted of violating Subsection (1)(a) with respect to:
             32          (i) a substance classified in Schedule I or II or a controlled substance analog is guilty of
             33      a second degree felony and upon a second or subsequent conviction is guilty of a first degree
             34      felony;
             35          (ii) a substance classified in Schedule III or IV, or marijuana, is guilty of a third degree
             36      felony, and upon a second or subsequent conviction is guilty of a second degree felony; or
             37          (iii) a substance classified in Schedule V is guilty of a class A misdemeanor and upon a
             38      second or subsequent conviction is guilty of a third degree felony.
             39          (c) Any person who has been convicted of a violation of Subsection (1)(a)(ii) or (iii) may
             40      be sentenced to imprisonment for an indeterminate term as provided by law, but if the trier of fact
             41      finds a firearm as defined in Section 76-10-501 was used, carried, or possessed S ON HIS PERSON
             41a      OR IN HIS IMMEDIATE POSSESSION s during the
             42      commission or in furtherance of the offense, the court shall additionally sentence the person
             43      convicted for a term of one year to run consecutively and not concurrently; and the court may
             44      additionally sentence the person convicted for an indeterminate term not to exceed five years to
             45      run consecutively and not concurrently.
             46          [(c)] (d) Any person convicted of violating Subsection (1)(a)(iv) is guilty of a first degree
             47      felony punishable by imprisonment for an indeterminate term of not less than seven years and
             48      which may be for life. Imposition or execution of the sentence may not be suspended, and the
             49      person is not eligible for probation.
             50          (2) Prohibited acts B -- Penalties:
             51          (a) It is unlawful:
             52          (i) for any person knowingly and intentionally to possess or use a controlled substance,
             53      unless it was obtained under a valid prescription or order, directly from a practitioner while acting
             54      in the course of his professional practice, or as otherwise authorized by this [subsection] chapter;
             55          (ii) for any owner, tenant, licensee, or person in control of any building, room, tenement,
             56      vehicle, boat, aircraft, or other place knowingly and intentionally to permit them to be occupied
             57      by persons unlawfully possessing, using, or distributing controlled substances in any of those
             58      locations; or


             59          (iii) for any person knowingly and intentionally to possess an altered or forged prescription
             60      or written order for a controlled substance.
             61          (b) Any person convicted of violating Subsection (2)(a)(i) with respect to:
             62          (i) marijuana, if the amount is 100 pounds or more, is guilty of a second degree felony;
             63          (ii) a substance classified in Schedule I or II, marijuana, if the amount is more than 16
             64      ounces, but less than 100 pounds, or a controlled substance analog, is guilty of a third degree
             65      felony; or
             66          (iii) marijuana, if the marijuana is not in the form of an extracted resin from any part of
             67      the plant, and the amount is more than one ounce but less than 16 ounces, is guilty of a class A
             68      misdemeanor.
             69          (c) Any person convicted of violating Subsection (2)(a)(i) while inside the exterior
             70      boundaries of property occupied by any correctional facility as defined in Section 64-13-1 or any
             71      public jail or other place of confinement shall be sentenced to a penalty one degree greater than
             72      provided in Subsection (2)(b).
             73          (d) Upon a second or subsequent conviction of possession of any controlled substance by
             74      a person, that person shall be sentenced to a one degree greater penalty than provided in this
             75      Subsection (2).
             76          (e) Any person who violates Subsection (2)(a)(i) with respect to all other controlled
             77      substances not included in Subsection (2)(b)(i), (ii), or (iii), including less than one ounce of
             78      marijuana, is guilty of a class B misdemeanor. Upon a second conviction the person is guilty of
             79      a class A misdemeanor, and upon a third or subsequent conviction the person is guilty of a third
             80      degree felony.
             81          (f) Any person convicted of violating Subsection (2)(a)(ii) or (2)(a)(iii) is:
             82          (i) on a first conviction, guilty of a class B misdemeanor;
             83          (ii) on a second conviction, guilty of a class A misdemeanor; and
             84          (iii) on a third or subsequent conviction, guilty of a third degree felony.
             85          (3) Prohibited acts C -- Penalties:
             86          (a) It is unlawful for any person knowingly and intentionally:
             87          (i) to use in the course of the manufacture or distribution of a controlled substance a
             88      license number which is fictitious, revoked, suspended, or issued to another person or, for the
             89      purpose of obtaining a controlled substance, to assume the title of, or represent himself to be, a


             90      manufacturer, wholesaler, apothecary, physician, dentist, veterinarian, or other authorized person;
             91          (ii) to acquire or obtain possession of, to procure or attempt to procure the administration
             92      of, to obtain a prescription for, to prescribe or dispense to any person known to be attempting to
             93      acquire or obtain possession of, or to procure the administration of any controlled substance by
             94      misrepresentation or failure by the person to disclose his receiving any controlled substance from
             95      another source, fraud, forgery, deception, subterfuge, alteration of a prescription or written order
             96      for a controlled substance, or the use of a false name or address;
             97          (iii) to make any false or forged prescription or written order for a controlled substance,
             98      or to utter the same, or to alter any prescription or written order issued or written under the terms
             99      of this chapter; or
             100          (iv) to make, distribute, or possess any punch, die, plate, stone, or other thing designed to
             101      print, imprint, or reproduce the trademark, trade name, or other identifying mark, imprint, or
             102      device of another or any likeness of any of the foregoing upon any drug or container or labeling
             103      so as to render any drug a counterfeit controlled substance.
             104          (b) Any person convicted of violating Subsection (3)(a) is guilty of a third degree felony.
             105          (4) Prohibited acts D -- Penalties:
             106          (a) Notwithstanding other provisions of this section, a person not authorized under this
             107      chapter who commits any act declared to be unlawful under this section, Title 58, Chapter 37a,
             108      Utah Drug Paraphernalia Act, or under Title 58, Chapter 37b, Imitation Controlled Substances Act,
             109      is upon conviction subject to the penalties and classifications under Subsection (4)(b) if the act is
             110      committed:
             111          (i) in a public or private elementary or secondary school or on the grounds of any of those
             112      schools;
             113          (ii) in a public or private vocational school or postsecondary institution or on the grounds
             114      of any of those schools or institutions;
             115          (iii) in those portions of any building, park, stadium, or other structure or grounds which
             116      are, at the time of the act, being used for an activity sponsored by or through a school or institution
             117      under Subsections (4)(a)(i) and (ii);
             118          (iv) in or on the grounds of a preschool or child-care facility;
             119          (v) in a public park, amusement park, arcade, or recreation center;
             120          (vi) in a church or synagogue;


             121          (vii) in a shopping mall, sports facility, stadium, arena, theater, movie house, playhouse,
             122      or parking lot or structure adjacent thereto;
             123          (viii) in a public parking lot or structure;
             124          (ix) within 1,000 feet of any structure, facility, or grounds included in Subsections (4)(a)(i)
             125      through (viii); or
             126          (x) with a person younger than 18 years of age, regardless of where the act occurs.
             127          (b) A person convicted under this subsection is guilty of a first degree felony and shall be
             128      imprisoned for a term of not less than five years if the penalty that would otherwise have been
             129      established but for this subsection would have been a first degree felony. Imposition or execution
             130      of the sentence may not be suspended, and the person is not eligible for probation.
             131          (c) If the classification that would otherwise have been established would have been less
             132      than a first degree felony but for this subsection, a person convicted under this Subsection (4) is
             133      guilty of one degree more than the maximum penalty prescribed for that offense.
             134          (d) It is not a defense to a prosecution under this Subsection (4) that the actor mistakenly
             135      believed the individual to be 18 years of age or older at the time of the offense or was unaware of
             136      the individual's true age; nor that the actor mistakenly believed that the location where the act
             137      occurred was not as described in Subsection (4)(a) or was unaware that the location where the act
             138      occurred was as described in Subsection (4)(a).
             139          (5) Any violation of this chapter for which no penalty is specified is a class B
             140      misdemeanor.
             141          (6) (a) Any penalty imposed for violation of this section is in addition to, and not in lieu
             142      of, any civil or administrative penalty or sanction authorized by law.
             143          (b) Where violation of this chapter violates a federal law or the law of another state,
             144      conviction or acquittal under federal law or the law of another state for the same act is a bar to
             145      prosecution in this state.
             146          (7) In any prosecution for a violation of this chapter, evidence or proof which shows a
             147      person or persons produced, manufactured, possessed, distributed, or dispensed a controlled
             148      substance or substances, is prima facie evidence that the person or persons did so with knowledge
             149      of the character of the substance or substances.
             150          (8) This section does not prohibit a veterinarian, in good faith and in the course of his
             151      professional practice only and not for humans, from prescribing, dispensing, or administering


             152      controlled substances or from causing the substances to be administered by an assistant or orderly
             153      under his direction and supervision.
             154          (9) Civil or criminal liability may not be imposed under this section on:
             155          (a) any person registered under the Controlled Substances Act who manufactures,
             156      distributes, or possesses an imitation controlled substance for use as a placebo or investigational
             157      new drug by a registered practitioner in the ordinary course of professional practice or research;
             158      or
             159          (b) any law enforcement officer acting in the course and legitimate scope of his
             160      employment.
             161          (10) If any provision of this chapter, or the application of any provision to any person or
             162      circumstances, is held invalid, the remainder of this chapter shall be given effect without the
             163      invalid provision or application.




Legislative Review Note
    as of 2-2-99 3:48 PM


A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel


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