First Substitute H.B. 343

Representative LaVar Christensen proposes the following substitute bill:

1 AMENDMENTS REGARDING ILLEGAL DRUGS
2 IN CORRECTIONAL FACILITIES
3 2003 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: LaVar Christensen
6 This act modifies the Utah Controlled Substances Act regarding controlled substances
7 offenses to provide incarceration for violations of drug laws while at a correctional
8 facility.
9 This act affects sections of Utah Code Annotated 1953 as follows:
10 AMENDS:
11 58-37-8, as last amended by Chapters 12 and 303, Laws of Utah 1999
12 Be it enacted by the Legislature of the state of Utah:
13 Section 1. Section 58-37-8 is amended to read:
14 58-37-8. Prohibited acts -- Penalties.
15 (1) Prohibited acts A -- Penalties:
16 (a) Except as authorized by this chapter, it is unlawful for any person to knowingly and
17 intentionally:
18 (i) produce, manufacture, or dispense, or to possess with intent to produce,
19 manufacture, or dispense, a controlled or counterfeit substance;
20 (ii) distribute a controlled or counterfeit substance, or to agree, consent, offer, or
21 arrange to distribute a controlled or counterfeit substance;
22 (iii) possess a controlled or counterfeit substance with intent to distribute; or
23 (iv) engage in a continuing criminal enterprise where:
24 (A) the person participates, directs, or engages in conduct which results in any
25 violation of any provision of Title 58, Chapters 37, 37a, 37b, 37c, or 37d that is a felony; and

26 (B) the violation is a part of a continuing series of two or more violations of Title 58,
27 Chapters 37, 37a, 37b, 37c, or 37d on separate occasions that are undertaken in concert with
28 five or more persons with respect to whom the person occupies a position of organizer,
29 supervisor, or any other position of management.
30 (b) Any person convicted of violating Subsection (1)(a) with respect to:
31 (i) a substance classified in Schedule I or II or a controlled substance analog is guilty of
32 a second degree felony and upon a second or subsequent conviction is guilty of a first degree
33 felony;
34 (ii) a substance classified in Schedule III or IV, or marijuana, is guilty of a third degree
35 felony, and upon a second or subsequent conviction is guilty of a second degree felony; or
36 (iii) a substance classified in Schedule V is guilty of a class A misdemeanor and upon a
37 second or subsequent conviction is guilty of a third degree felony.
38 (c) Any person who has been convicted of a violation of Subsection (1)(a)(ii) or (iii)
39 may be sentenced to imprisonment for an indeterminate term as provided by law, but if the trier
40 of fact finds a firearm as defined in Section 76-10-501 was used, carried, or possessed on his
41 person or in his immediate possession during the commission or in furtherance of the offense,
42 the court shall additionally sentence the person convicted for a term of one year to run
43 consecutively and not concurrently; and the court may additionally sentence the person
44 convicted for an indeterminate term not to exceed five years to run consecutively and not
45 concurrently.
46 (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
54 acting in the course of his professional practice, or as otherwise authorized by this chapter;
55 (ii) for any owner, tenant, licensee, or person in control of any building, room,
56 tenement, vehicle, boat, aircraft, or other place knowingly and intentionally to permit them to

57 be occupied by persons unlawfully possessing, using, or distributing controlled substances in
58 any of those locations; or
59 (iii) for any person knowingly and intentionally to possess an altered or forged
60 prescription 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
71 any public jail or other place of confinement shall be sentenced to a penalty one degree greater
72 than provided in Subsection (2)(b).]
73 [(d)] (c) Upon a second or subsequent conviction of possession of any controlled
74 substance by a person, that person shall be sentenced to a one degree greater penalty than
75 provided in this Subsection (2).
76 [(e)] (d) Any person who violates Subsection (2)(a)(i) with respect to all other
77 controlled substances not included in Subsection (2)(b)(i), (ii), or (iii), including less than one
78 ounce of marijuana, is guilty of a class B misdemeanor. Upon a second conviction the person
79 is guilty of a class A misdemeanor, and upon a third or subsequent conviction the person is
80 guilty of a third degree felony.
81 [(f)] (e) 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
91 person;
92 (ii) to acquire or obtain possession of, to procure or attempt to procure the
93 administration of, to obtain a prescription for, to prescribe or dispense to any person known to
94 be attempting to acquire or obtain possession of, or to procure the administration of any
95 controlled substance by misrepresentation or failure by the person to disclose his receiving any
96 controlled substance from another source, fraud, forgery, deception, subterfuge, alteration of a
97 prescription or written order for a controlled substance, or the use of a false name or address;
98 (iii) to make any false or forged prescription or written order for a controlled substance,
99 or to utter the same, or to alter any prescription or written order issued or written under the
100 terms of this chapter; or
101 (iv) to make, distribute, or possess any punch, die, plate, stone, or other thing designed
102 to print, imprint, or reproduce the trademark, trade name, or other identifying mark, imprint, or
103 device of another or any likeness of any of the foregoing upon any drug or container or labeling
104 so as to render any drug a counterfeit controlled substance.
105 (b) Any person convicted of violating Subsection (3)(a) is guilty of a third degree
106 felony.
107 (4) Prohibited acts D -- Penalties:
108 (a) Notwithstanding any other provisions of this section, a person not authorized under
109 this chapter who commits any act declared to be unlawful under this section, Title 58, Chapter
110 37a, Utah Drug Paraphernalia Act, or under Title 58, Chapter 37b, Imitation Controlled
111 Substances Act, is upon conviction subject to the penalties and classifications as specified
112 under Subsection (4)(b), (c), or (d) if the trier of fact finds the act is committed:
113 (i) in a public or private elementary or secondary school or on the grounds of any of
114 those schools;
115 (ii) in a public or private vocational school or postsecondary institution or on the
116 grounds of any of those schools or institutions;
117 (iii) in those portions of any building, park, stadium, or other structure or grounds
118 which are, at the time of the act, being used for an activity sponsored by or through a school or

119 institution under Subsections (4)(a)(i) and (ii);
120 (iv) in or on the grounds of a preschool or child-care facility;
121 (v) in a public park, amusement park, arcade, or recreation center;
122 (vi) in a church or synagogue;
123 (vii) in a shopping mall, sports facility, stadium, arena, theater, movie house,
124 playhouse, or parking lot or structure adjacent thereto;
125 (viii) in a public parking lot or structure;
126 (ix) within 1,000 feet of any structure, facility, or grounds included in Subsections
127 (4)(a)(i) through (viii); [or]
128 (x) in the immediate presence of a person younger than 18 years of age, regardless of
129 where the act occurs[.]; or
130 (xi) in or on the grounds of any correctional facility as defined in Section 76-8-311.3 .
131 (b) A person convicted under this Subsection (4) is guilty of a first degree felony and
132 shall be imprisoned for a term of not less than five years if the penalty that would otherwise
133 have been established but for this subsection would have been a first degree felony. Imposition
134 or execution of the sentence may not be suspended, and the person is not eligible for probation.
135 (c) If the classification that would otherwise have been established would have been
136 less than a first degree felony but for this Subsection (4), a person convicted under this
137 Subsection (4) is guilty of one degree more than the maximum penalty prescribed for that
138 offense, except as provided in Subsection (4)(d).
139 (d) If the violation is of Subsection (4)(a)(xi) and the classification that would
140 otherwise have been established would have been less than a first degree felony but for this
141 Subsection (4), the person may be sentenced to imprisonment for an indeterminate term as
142 provided by law, and the court shall additionally sentence the person convicted for a term of
143 one year to run consecutively and not concurrently; and the court may additionally sentence the
144 person convicted for an indeterminate term not to exceed five years to run consecutively and
145 not concurrently. The penalties under this Subsection (4)(d) apply to any person who, acting
146 with the mental state required for the commission of an offense, solicits, requests, commands,
147 encourages, or intentionally aids another person to commit a violation of Subsection (4)(a)(xi).
148 [(d)] (e) It is not a defense to a prosecution under this Subsection (4) that the actor
149 mistakenly believed the individual to be 18 years of age or older at the time of the offense or

150 was unaware of the individual's true age; nor that the actor mistakenly believed that the
151 location where the act occurred was not as described in Subsection (4)(a) or was unaware that
152 the location where the act occurred was as described in Subsection (4)(a).
153 (5) Any violation of this chapter for which no penalty is specified is a class B
154 misdemeanor.
155 (6) (a) Any penalty imposed for violation of this section is in addition to, and not in
156 lieu of, any civil or administrative penalty or sanction authorized by law.
157 (b) Where violation of this chapter violates a federal law or the law of another state,
158 conviction or acquittal under federal law or the law of another state for the same act is a bar to
159 prosecution in this state.
160 (7) In any prosecution for a violation of this chapter, evidence or proof which shows a
161 person or persons produced, manufactured, possessed, distributed, or dispensed a controlled
162 substance or substances, is prima facie evidence that the person or persons did so with
163 knowledge of the character of the substance or substances.
164 (8) This section does not prohibit a veterinarian, in good faith and in the course of his
165 professional practice only and not for humans, from prescribing, dispensing, or administering
166 controlled substances or from causing the substances to be administered by an assistant or
167 orderly under his direction and supervision.
168 (9) Civil or criminal liability may not be imposed under this section on:
169 (a) any person registered under the Controlled Substances Act who manufactures,
170 distributes, or possesses an imitation controlled substance for use as a placebo or
171 investigational new drug by a registered practitioner in the ordinary course of professional
172 practice or research; or
173 (b) any law enforcement officer acting in the course and legitimate scope of his
174 employment.
175 (10) If any provision of this chapter, or the application of any provision to any person
176 or circumstances, is held invalid, the remainder of this chapter shall be given effect without the
177 invalid provision or application.