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H.B. 319 Enrolled

                 

ENHANCEMENT OF PENALTIES IN DRUG OFFENSES

                 
1999 GENERAL SESSION

                 
STATE OF UTAH

                 
Sponsor: A. Lamont Tyler

                  AN ACT RELATING TO CRIMINAL CODE; PROVIDING FOR AN ENHANCEMENT IN
                  SENTENCE FOR USE OF A FIREARM IN RELATION TO THE DISTRIBUTION OF A
                  CONTROLLED OR COUNTERFEIT SUBSTANCE; AND MAKING TECHNICAL
                  CORRECTIONS.
                  This act affects sections of Utah Code Annotated 1953 as follows:
                  AMENDS:
                      58-37-8, as last amended by Chapter 139, Laws of Utah 1998
                  Be it enacted by the Legislature of the state of Utah:
                      Section 1. Section 58-37-8 is amended to read:
                       58-37-8. Prohibited acts -- Penalties.
                      (1) Prohibited acts A -- Penalties:
                      (a) Except as authorized by this chapter, it is unlawful for any person to knowingly and
                  intentionally:
                      (i) produce, manufacture, or dispense, or to possess with intent to produce, manufacture,
                  or dispense, a controlled or counterfeit substance;
                      (ii) distribute a controlled or counterfeit substance, or to agree, consent, offer, or arrange
                  to distribute a controlled or counterfeit substance;
                      (iii) possess a controlled or counterfeit substance with intent to distribute; or
                      (iv) engage in a continuing criminal enterprise where:
                      (A) the person participates, directs, or engages in conduct which results in any violation
                  of any provision of Title 58, Chapters 37, 37a, 37b, 37c, or 37d that is a felony; and
                      (B) the violation is a part of a continuing series of two or more violations of Title 58,
                  Chapters 37, 37a, 37b, 37c, or 37d on separate occasions that are undertaken in concert with five
                  or more persons with respect to whom the person occupies a position of organizer, supervisor, or
                  any other position of management.


                      (b) Any person convicted of violating Subsection (1)(a) with respect to:
                      (i) a substance classified in Schedule I or II or a controlled substance analog is guilty of a
                  second degree felony and upon a second or subsequent conviction is guilty of a first degree felony;
                      (ii) a substance classified in Schedule III or IV, or marijuana, is guilty of a third degree
                  felony, and upon a second or subsequent conviction is guilty of a second degree felony; or
                      (iii) a substance classified in Schedule V is guilty of a class A misdemeanor and upon a
                  second or subsequent conviction is guilty of a third degree felony.
                      (c) Any person who has been convicted of a violation of Subsection (1)(a)(ii) or (iii) may
                  be sentenced to imprisonment for an indeterminate term as provided by law, but if the trier of fact
                  finds a firearm as defined in Section 76-10-501 was used, carried, or possessed on his person or in
                  his immediate possession during the commission or in furtherance of the offense, the court shall
                  additionally sentence the person convicted for a term of one year to run consecutively and not
                  concurrently; and the court may additionally sentence the person convicted for an indeterminate term
                  not to exceed five years to run consecutively and not concurrently.
                      [(c)] (d) Any person convicted of violating Subsection (1)(a)(iv) is guilty of a first degree
                  felony punishable by imprisonment for an indeterminate term of not less than seven years and which
                  may be for life. Imposition or execution of the sentence may not be suspended, and the person is not
                  eligible for probation.
                      (2) Prohibited acts B -- Penalties:
                      (a) It is unlawful:
                      (i) for any person knowingly and intentionally to possess or use a controlled substance,
                  unless it was obtained under a valid prescription or order, directly from a practitioner while acting
                  in the course of his professional practice, or as otherwise authorized by this [subsection] chapter;
                      (ii) for any owner, tenant, licensee, or person in control of any building, room, tenement,
                  vehicle, boat, aircraft, or other place knowingly and intentionally to permit them to be occupied by
                  persons unlawfully possessing, using, or distributing controlled substances in any of those locations;
                  or
                      (iii) for any person knowingly and intentionally to possess an altered or forged prescription

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                  or written order for a controlled substance.
                      (b) Any person convicted of violating Subsection (2)(a)(i) with respect to:
                      (i) marijuana, if the amount is 100 pounds or more, is guilty of a second degree felony;
                      (ii) a substance classified in Schedule I or II, marijuana, if the amount is more than 16
                  ounces, but less than 100 pounds, or a controlled substance analog, is guilty of a third degree felony;
                  or
                      (iii) marijuana, if the marijuana is not in the form of an extracted resin from any part of the
                  plant, and the amount is more than one ounce but less than 16 ounces, is guilty of a class A
                  misdemeanor.
                      (c) Any person convicted of violating Subsection (2)(a)(i) while inside the exterior
                  boundaries of property occupied by any correctional facility as defined in Section 64-13-1 or any
                  public jail or other place of confinement shall be sentenced to a penalty one degree greater than
                  provided in Subsection (2)(b).
                      (d) Upon a second or subsequent conviction of possession of any controlled substance by
                  a person, that person shall be sentenced to a one degree greater penalty than provided in this
                  Subsection (2).
                      (e) Any person who violates Subsection (2)(a)(i) with respect to all other controlled
                  substances not included in Subsection (2)(b)(i), (ii), or (iii), including less than one ounce of
                  marijuana, is guilty of a class B misdemeanor. Upon a second conviction the person is guilty of a
                  class A misdemeanor, and upon a third or subsequent conviction the person is guilty of a third degree
                  felony.
                      (f) Any person convicted of violating Subsection (2)(a)(ii) or (2)(a)(iii) is:
                      (i) on a first conviction, guilty of a class B misdemeanor;
                      (ii) on a second conviction, guilty of a class A misdemeanor; and
                      (iii) on a third or subsequent conviction, guilty of a third degree felony.
                      (3) Prohibited acts C -- Penalties:
                      (a) It is unlawful for any person knowingly and intentionally:
                      (i) to use in the course of the manufacture or distribution of a controlled substance a license

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                  number which is fictitious, revoked, suspended, or issued to another person or, for the purpose of
                  obtaining a controlled substance, to assume the title of, or represent himself to be, a manufacturer,
                  wholesaler, apothecary, physician, dentist, veterinarian, or other authorized person;
                      (ii) to acquire or obtain possession of, to procure or attempt to procure the administration
                  of, to obtain a prescription for, to prescribe or dispense to any person known to be attempting to
                  acquire or obtain possession of, or to procure the administration of any controlled substance by
                  misrepresentation or failure by the person to disclose his receiving any controlled substance from
                  another source, fraud, forgery, deception, subterfuge, alteration of a prescription or written order for
                  a controlled substance, or the use of a false name or address;
                      (iii) to make any false or forged prescription or written order for a controlled substance, or
                  to utter the same, or to alter any prescription or written order issued or written under the terms of this
                  chapter; or
                      (iv) to make, distribute, or possess any punch, die, plate, stone, or other thing designed to
                  print, imprint, or reproduce the trademark, trade name, or other identifying mark, imprint, or device
                  of another or any likeness of any of the foregoing upon any drug or container or labeling so as to
                  render any drug a counterfeit controlled substance.
                      (b) Any person convicted of violating Subsection (3)(a) is guilty of a third degree felony.
                      (4) Prohibited acts D -- Penalties:
                      (a) Notwithstanding other provisions of this section, a person not authorized under this
                  chapter who commits any act declared to be unlawful under this section, Title 58, Chapter 37a, Utah
                  Drug Paraphernalia Act, or under Title 58, Chapter 37b, Imitation Controlled Substances Act, is
                  upon conviction subject to the penalties and classifications under Subsection (4)(b) if the act is
                  committed:
                      (i) in a public or private elementary or secondary school or on the grounds of any of those
                  schools;
                      (ii) in a public or private vocational school or postsecondary institution or on the grounds
                  of any of those schools or institutions;
                      (iii) in those portions of any building, park, stadium, or other structure or grounds which are,

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                  at the time of the act, being used for an activity sponsored by or through a school or institution under
                  Subsections (4)(a)(i) and (ii);
                      (iv) in or on the grounds of a preschool or child-care facility;
                      (v) in a public park, amusement park, arcade, or recreation center;
                      (vi) in a church or synagogue;
                      (vii) in a shopping mall, sports facility, stadium, arena, theater, movie house, playhouse, or
                  parking lot or structure adjacent thereto;
                      (viii) in a public parking lot or structure;
                      (ix) within 1,000 feet of any structure, facility, or grounds included in Subsections (4)(a)(i)
                  through (viii); or
                      (x) with a person younger than 18 years of age, regardless of where the act occurs.
                      (b) A person convicted under this subsection is guilty of a first degree felony and shall be
                  imprisoned for a term of not less than five years if the penalty that would otherwise have been
                  established but for this subsection would have been a first degree felony. Imposition or execution
                  of the sentence may not be suspended, and the person is not eligible for probation.
                      (c) If the classification that would otherwise have been established would have been less
                  than a first degree felony but for this subsection, a person convicted under this Subsection (4) is
                  guilty of one degree more than the maximum penalty prescribed for that offense.
                      (d) It is not a defense to a prosecution under this Subsection (4) that the actor mistakenly
                  believed the individual to be 18 years of age or older at the time of the offense or was unaware of
                  the individual's true age; nor that the actor mistakenly believed that the location where the act
                  occurred was not as described in Subsection (4)(a) or was unaware that the location where the act
                  occurred was as described in Subsection (4)(a).
                      (5) Any violation of this chapter for which no penalty is specified is a class B misdemeanor.
                      (6) (a) Any penalty imposed for violation of this section is in addition to, and not in lieu of,
                  any civil or administrative penalty or sanction authorized by law.
                      (b) Where violation of this chapter violates a federal law or the law of another state,
                  conviction or acquittal under federal law or the law of another state for the same act is a bar to

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                  prosecution in this state.
                      (7) In any prosecution for a violation of this chapter, evidence or proof which shows a person
                  or persons produced, manufactured, possessed, distributed, or dispensed a controlled substance or
                  substances, is prima facie evidence that the person or persons did so with knowledge of the character
                  of the substance or substances.
                      (8) This section does not prohibit a veterinarian, in good faith and in the course of his
                  professional practice only and not for humans, from prescribing, dispensing, or administering
                  controlled substances or from causing the substances to be administered by an assistant or orderly
                  under his direction and supervision.
                      (9) Civil or criminal liability may not be imposed under this section on:
                      (a) any person registered under the Controlled Substances Act who manufactures, distributes,
                  or possesses an imitation controlled substance for use as a placebo or investigational new drug by
                  a registered practitioner in the ordinary course of professional practice or research; or
                      (b) any law enforcement officer acting in the course and legitimate scope of his employment.
                      (10) If any provision of this chapter, or the application of any provision to any person or
                  circumstances, is held invalid, the remainder of this chapter shall be given effect without the invalid
                  provision or application.

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