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H.B. 34 Enrolled
LONG TITLE
General Description:
This bill amends a Department of Corrections provision, the Utah Controlled Substances
Act, and the Criminal Code regarding bringing controlled substances into correctional
facilities. This bill also provides a specific penalty for bringing tobacco products into a
correctional facility for distribution.
Highlighted Provisions:
This bill:
. requires the Department of Corrections to establish rules for advising persons
visiting inmates at correctional facilities of prohibited items and of searches;
. provides for additional incarceration for a person violating controlled substances
laws at a correctional facility; and
. increases the penalty from a class B misdemeanor to a class A misdemeanor for
persons bringing tobacco products to a correctional facility in violation of state law.
Monies Appropriated in this Bill:
None
Other Special Clauses:
This bill provides an immediate effective date.
Utah Code Sections Affected:
AMENDS:
58-37-8, as last amended by Chapters 10 and 33, Laws of Utah 2003
64-13-17, as last amended by Chapter 36, Laws of Utah 2003
76-8-311.3, as last amended by Chapter 8, Laws of Utah 2002, Fifth Special Session
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, a controlled substance analog, or
gammahydroxybutyric acid as listed in Schedule III 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.
(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
analog or 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 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 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.
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[
substance by a person, that person shall be sentenced to a one degree greater penalty than
provided in this Subsection (2).
[
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.
(e) 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), and if the conviction is with respect to controlled substances as
listed in:
(i) Subsection (2)(b), the person may be sentenced to imprisonment for an indeterminate
term as provided by law, and:
(A) the court shall additionally sentence the person convicted to a term of one year to run
consecutively and not concurrently; and
(B) the court may additionally sentence the person convicted for an indeterminate term
not to exceed five years to run consecutively and not concurrently; and
(ii) Subsection (2)(d), the person may be sentenced to imprisonment for an indeterminate
term as provided by law, and the court shall additionally sentence the person convicted to a term
of six months to run consecutively and not concurrently.
(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.
(g) A person is subject to the penalties under Subsection (4)(c) who, in an offense not
amounting to a violation of Section 76-5-207 :
(i) violates Subsection (2)(a)(i) by knowingly and intentionally having in his body any
measurable amount of a controlled substance; and
(ii) operates a motor vehicle as defined in Section 76-5-207 in a negligent manner,
causing serious bodily injury as defined in Section 76-1-601 or the death of another.
(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 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 this Subsection (4) if the
trier of fact finds 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, 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 or on the grounds of a house of worship as defined in Section 76-10-501 ;
(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); [
(x) in the immediate presence of a person younger than 18 years of age, regardless of
where the act occurs[
(xi) for the purpose of facilitating, arranging, or causing the transport, delivery, or
distribution of a substance in violation of this section to an inmate or on the grounds of any
correctional facility as defined in Section 76-8-311.3 .
(b) A person convicted under this Subsection (4) 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 (4), a person convicted under Subsection (2)(g)
or this Subsection (4) is guilty of one degree more than the maximum penalty prescribed for that
offense.
(d) (i) If the violation is of Subsection (4)(a)(xi):
(A) the person may be sentenced to imprisonment for an indeterminate term as provided
by law, and the court shall additionally sentence the person convicted for a term of one year to
run consecutively and not concurrently; and
(B) the court may additionally sentence the person convicted for an indeterminate term
not to exceed five years to run consecutively and not concurrently; and
(ii) the penalties under this Subsection (4)(d) apply also to any person who, acting with
the mental state required for the commission of an offense, directly or indirectly solicits, requests,
commands, coerces, encourages, or intentionally aids another person to commit a violation of
Subsection (4)(a)(xi).
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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
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.
Section 2. Section 64-13-17 is amended to read:
64-13-17. Visitors to correctional facilities -- Correspondence.
(1) (a) The following persons may visit correctional facilities without the consent of the
department:
(i) the governor;
(ii) the attorney general;
(iii) a justice or judge of the courts of record;
(iv) members of the Board of Pardons and Parole;
(v) members of the Legislature;
(vi) the sheriff, district attorney, and county attorney for the county in which the
correctional facility is located; and
(vii) any other persons authorized under rules prescribed by the department or court
order.
(b) Any person acting under a court order may visit or correspond with any inmate
without the consent of the department provided the department has received notice of, and is
permitted to respond to, the court order. The court shall consider department policy when
making its order.
(c) The department may limit access to correctional facilities when the department or
governor declares an emergency or when there is a riot or other disturbance.
(2) (a) A person may not visit with any offender at any correctional facility, other than
under Subsection (1), without the consent of the department.
(b) Offenders and all visitors, including those listed in Subsection (1), may be required to
submit to a search or inspection of their persons and properties as a condition of visitation.
(3) The department shall make rules under Title 63, Chapter 46a, Utah Administrative
Rulemaking Act, establishing guidelines for providing written notice to visitors regarding
prohibited items and regarding the fact that under state law all visitors may be required to submit
to a search of their persons and properties as a condition of visitation.
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correspondence, subject to the rules of the department. All correspondence is subject to search,
consistent with department rules.
Section 3. Section 76-8-311.3 is amended to read:
76-8-311.3. Items prohibited in correctional and mental health facilities --
Penalties.
(1) As used in this section:
(a) "Contraband" means any item not specifically prohibited for possession by offenders
under this section or Title 58, Chapter 37, Utah Controlled Substances Act.
(b) "Controlled substance" means any substance defined as a controlled substance under
Title 58, Chapter 37, Utah Controlled Substances Act.
(c) "Correctional facility" means:
(i) any facility operated by or contracting with the Department of Corrections to house
offenders in either a secure or nonsecure setting;
(ii) any facility operated by a municipality or a county to house or detain criminal
offenders;
(iii) any juvenile detention facility; and
(iv) any building or grounds appurtenant to the facility or lands granted to the state,
municipality, or county for use as a correctional facility.
(d) "Medicine" means any prescription drug as defined in Title 58, Chapter 17a, Pharmacy
Practice Act, but does not include any controlled substances as defined in Title 58, Chapter 37,
Utah Controlled Substances Act.
(e) "Mental health facility" has the same meaning as defined in Section 62A-15-602 .
(f) "Offender" means a person in custody at a correctional facility.
(g) "Secure area" has the same meaning as provided in Section 76-8-311.1 .
(2) Notwithstanding Section 76-10-500 , a correctional or mental health facility may
provide by rule that no firearm, ammunition, dangerous weapon, implement of escape, explosive,
controlled substance, spirituous or fermented liquor, medicine, or poison in any quantity may be:
(a) transported to or upon a correctional or mental health facility;
(b) sold or given away at any correctional or mental health facility;
(c) given to or used by any offender at a correctional or mental health facility; or
(d) knowingly or intentionally possessed at a correctional or mental health facility.
(3) It is a defense to any prosecution under this section if the accused in committing the
act made criminal by this section:
(a) with respect to a correctional facility operated by the Department of Corrections,
acted in conformity with departmental rule or policy;
(b) with respect to a correctional facility operated by a municipality, acted in conformity
with the policy of the municipality;
(c) with respect to a correctional facility operated by a county, acted in conformity with
the policy of the county; or
(d) with respect to a mental health facility, acted in conformity with the policy of the
mental health facility.
(4) (a) Any person who transports to or upon a correctional facility, or into a secure area
of a mental health facility, any firearm, ammunition, dangerous weapon, or implement of escape
with intent to provide or sell it to any offender, is guilty of a second degree felony.
(b) Any person who provides or sells to any offender at a correctional facility, or any
detainee at a secure area of a mental health facility, any firearm, ammunition, dangerous weapon,
or implement of escape is guilty of a second degree felony.
(c) Any offender who possesses at a correctional facility, or any detainee who possesses
at a secure area of a mental health facility, any firearm, ammunition, dangerous weapon, or
implement of escape is guilty of a second degree felony.
(d) Any person who, without the permission of the authority operating the correctional
facility or the secure area of a mental health facility, knowingly possesses at a correctional facility
or a secure area of a mental health facility any firearm, ammunition, dangerous weapon, or
implement of escape is guilty of a third degree felony.
(e) Any person violates Section 76-10-306 who knowingly or intentionally transports,
possesses, distributes, or sells any explosive in a correctional facility or mental health facility.
(5) (a) A person is guilty of a third degree felony who, without the permission of the
authority operating the correctional facility or secure area of a mental health facility, knowingly
transports to or upon a correctional facility or into a secure area of a mental health facility any:
(i) spirituous or fermented liquor;
(ii) medicine, whether or not lawfully prescribed for the offender; or
(iii) poison in any quantity.
(b) A person is guilty of a third degree felony who knowingly violates correctional or
mental health facility policy or rule by providing or selling to any offender at a correctional facility
or detainee within a secure area of a mental health facility any:
(i) spirituous or fermented liquor;
(ii) medicine, whether or not lawfully prescribed for the offender; or
(iii) poison in any quantity.
(c) An inmate is guilty of a third degree felony who, in violation of correctional or mental
health facility policy or rule, possesses at a correctional facility or in a secure area of a mental
health facility any:
(i) spirituous or fermented liquor;
(ii) medicine, other than medicine provided by the facility's health care providers in
compliance with facility policy; or
(iii) poison in any quantity.
(d) A person is guilty of a class A misdemeanor who, with the intent to directly or
indirectly provide or sell any tobacco product to an offender, directly or indirectly:
(i) transports, delivers, or distributes any tobacco product to an offender or on the
grounds of any correctional facility;
(ii) solicits, requests, commands, coerces, encourages, or intentionally aids another person
to transport any tobacco product to an offender or on any correctional facility, if the person is
acting with the mental state required for the commission of an offense; or
(iii) facilitates, arranges, or causes the transport of any tobacco product in violation of
this section to an offender or on the grounds of any correctional facility.
[
authority operating the correctional or mental health facility, fails to declare or knowingly
possesses at a correctional facility or in a secure area of a mental health facility any:
(i) spirituous or fermented liquor;
(ii) medicine; or
(iii) poison in any quantity.
[
authority operating the correctional facility, knowingly engages in any activity that would
facilitate the possession of any contraband by an offender in a correctional facility. The provisions
of Subsection (5)(d) regarding any tobacco product take precedence over this Subsection (5)(f).
[
Section 64-13-40 .
(6) The possession, distribution, or use of a controlled substance at a correctional facility
or in a secure area of a mental health facility shall be prosecuted in accordance with Title 58,
Chapter 37, Utah Controlled Substances Act.
(7) The department shall make rules under Title 63, Chapter 46a, Utah Administrative
Rulemaking Act, to establish guidelines for providing written notice to visitors that providing any
tobacco product to offenders is a class A misdemeanor.
Section 4. Effective date.
If approved by two-thirds of all the members elected to each house, this bill takes effect
upon approval by the governor, or the day following the constitutional time limit of Utah
Constitution Article VII, Section 8, without the governor's signature, or in the case of a veto, the
date of veto override.
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