H.B. 55 Enrolled

DRUG OFFENSE PENALTY ENHANCEMENTS
2005 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Brad L. Dee
Senate Sponsor: Gregory S. Bell

LONG TITLE
General Description:
This bill amends controlled substances laws to provide increased penalties for
possession offenses committed subsequent to an offense involving distribution or
manufacturing of a controlled substance.
Highlighted Provisions:
This bill:
. provides that a first offense involving unlawful possession of a controlled substance
is to be sentenced with the increased penalty for a second offense if the defendant
has previously committed an offense involving unlawful distribution or
manufacturing of a controlled substance.
Monies Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
58-37-8, as last amended by Chapter 36, Laws of Utah 2004

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.
(c) Upon a [second or subsequent conviction of possession of any controlled substance
by a person] person's conviction of a violation of this Subsection (2) subsequent to a conviction
under Subsection (1)(a), that person shall be sentenced to a one degree greater penalty than

provided in this Subsection (2).
(d) 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.
(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; or
(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).
(e) 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
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.