H.B. 311 Enrolled

CONTROLLED SUBSTANCE LAW AMENDMENTS
2005 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Brad L. Dee
Senate Sponsor: Gregory S. Bell

LONG TITLE
General Description:
This bill provides a definition of the term "consumption" as it relates to possession of a
controlled substance.
Highlighted Provisions:
This bill:
. defines consumption of a controlled substance as having any measurable amount of
a controlled substance in a person's body and clarifies that controlled substance does
not include the metabolite of a controlled substance; and
. provides that a person who is found to be driving with any measurable controlled
substance in the body is subject to conviction and sentencing under the relevant DUI
law and controlled substance law.
Monies Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
41-6a-517, as renumbered and amended by Chapter 2, Laws of Utah 2005
58-37-2, as last amended by Chapter 241, Laws of Utah 2004

Be it enacted by the Legislature of the state of Utah:
Section 1. Section 41-6a-517 is amended to read:

41-6a-517. Definitions -- Driving with any measurable controlled substance in the
body -- Penalties -- Arrest without warrant.
(1) As used in this section:
(a) "Controlled substance" means any substance scheduled under Section 58-37-4 .
(b) "Practitioner" has the same meaning as provided in Section 58-37-2 .
(c) "Prescribe" has the same meaning as provided in Section 58-37-2 .
(d) "Prescription" has the same meaning as provided in Section 58-37-2 .
(2) In cases not amounting to a violation of Section 41-6a-502 , a person may not operate
or be in actual physical control of a motor vehicle within this state if the person has any
measurable controlled substance or metabolite of a controlled substance in the person's body.
(3) It is an affirmative defense to prosecution under this section that the controlled
substance was involuntarily ingested by the accused or prescribed by a practitioner for use by the
accused.
(4) (a) A person convicted of a violation of Subsection (2) is guilty of a class B
misdemeanor.
(b) A person who violates this section is subject to conviction and sentencing under both
this section and any applicable offense under Section 58-37-8 .
(5) A peace officer may, without a warrant, arrest a person for a violation of this section
when the officer has probable cause to believe the violation has occurred, although not in the
officer's presence, and if the officer has probable cause to believe that the violation was
committed by the person.
(6) The Driver License Division shall:
(a) suspend, for 90 days, the driver license of a person convicted under Subsection (2);
(b) revoke, for one year, the driver license of a person convicted of a second or
subsequent offense under Subsection (2) or if the person has a prior conviction as defined under
Subsection 41-6a-501 (2), if the violation is committed within a period of ten years after the date
of the prior violation; and
(c) subtract from any suspension or revocation period the number of days for which a

license was previously suspended under Section 53-3-223 or 53-3-231 , if the previous suspension
was based on the same occurrence upon which the record of conviction is based.
(7) (a) The court shall notify the Driver License Division if a person fails to:
(i) complete all court ordered screening and assessment, educational series, and
substance abuse treatment; or
(ii) pay all fines and fees, including fees for restitution and treatment costs.
(b) Upon receiving the notification, the division shall suspend the person's driving
privilege in accordance with Subsections 53-3-221 (2) and (3).
(8) The court shall order supervised probation in accordance with Section 41-6a-507 for
a person convicted under Subsection (2).
Section 2. Section 58-37-2 is amended to read:
58-37-2. Definitions.
(1) As used in this chapter:
(a) "Administer" means the direct application of a controlled substance, whether by
injection, inhalation, ingestion, or any other means, to the body of a patient or research subject
by:
(i) a practitioner or, in his presence, by his authorized agent; or
(ii) the patient or research subject at the direction and in the presence of the practitioner.
(b) "Agent" means an authorized person who acts on behalf of or at the direction of a
manufacturer, distributor, or practitioner but does not include a motor carrier, public
warehouseman, or employee of any of them.
(c) "Consumption" means ingesting or having any measurable amount of a controlled
substance in a person's body, but this Subsection (1)(c) does not include the metabolite of a
controlled substance.
[(c)] (d) "Continuing criminal enterprise" means any individual, sole proprietorship,
partnership, corporation, business trust, association, or other legal entity, and any union or groups
of individuals associated in fact although not a legal entity, and includes illicit as well as licit
entities created or maintained for the purpose of engaging in conduct which constitutes the

commission of episodes of activity made unlawful by Title 58, Chapters 37, 37a, 37b, 37c, or
37d, which episodes are not isolated, but have the same or similar purposes, results, participants,
victims, methods of commission, or otherwise are interrelated by distinguishing characteristics.
Taken together, the episodes shall demonstrate continuing unlawful conduct and be related either
to each other or to the enterprise.
[(d)] (e) "Control" means to add, remove, or change the placement of a drug, substance,
or immediate precursor under Section 58-37-3 .
[(e)] (f) (i) "Controlled substance" means a drug or substance included in Schedules I, II,
III, IV, or V of Section 58-37-4 , and also includes a drug or substance included in Schedules I, II,
III, IV, or V of the federal Controlled Substances Act, Title II, P.L. 91-513, or any controlled
substance analog.
(ii) "Controlled substance" does not include:
(A) distilled spirits, wine, or malt beverages, as those terms are defined or used in Title
32A, regarding tobacco or food;
(B) any drug intended for lawful use in the diagnosis, cure, mitigation, treatment, or
prevention of disease in man or other animals, which contains ephedrine, pseudoephedrine,
norpseudoephedrine, or phenylpropanolamine if the drug is lawfully purchased, sold, transferred,
or furnished as an over-the-counter medication without prescription; or
(C) dietary supplements, vitamins, minerals, herbs, or other similar substances including
concentrates or extracts, which are not otherwise regulated by law, which may contain naturally
occurring amounts of chemical or substances listed in this chapter, or in rules adopted pursuant to
Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
[(f)] (g) (i) "Controlled substance analog" means a substance the chemical structure of
which is substantially similar to the chemical structure of a controlled substance listed in
Schedules I and II of Section 58-37-4 , or in Schedules I and II of the federal Controlled
Substances Act, Title II, P.L. 91-513:
(A) which has a stimulant, depressant, or hallucinogenic effect on the central nervous
system substantially similar to the stimulant, depressant, or hallucinogenic effect on the central

nervous system of controlled substances in the schedules set forth in [this] Subsection (1)(f); or
(B) which, with respect to a particular individual, is represented or intended to have a
stimulant, depressant, or hallucinogenic effect on the central nervous system substantially similar
to the stimulant, depressant, or hallucinogenic effect on the central nervous system of controlled
substances in the schedules set forth in this Subsection (1).
(ii) "Controlled substance analog" does not include:
(A) a controlled substance currently scheduled in Schedules I through V of Section
58-37-4 ;
(B) a substance for which there is an approved new drug application;
(C) a substance with respect to which an exemption is in effect for investigational use by
a particular person under Section 505 of the Food, Drug, and Cosmetic Act, 21 U.S.C. 366, to the
extent the conduct with respect to the substance is permitted by the exemption;
(D) any substance to the extent not intended for human consumption before an
exemption takes effect with respect to the substance;
(E) any drug intended for lawful use in the diagnosis, cure, mitigation, treatment, or
prevention of disease in man or other animals, which contains ephedrine, pseudoephedrine,
norpseudoephedrine, or phenylpropanolamine if the drug is lawfully purchased, sold, transferred,
or furnished as an over-the-counter medication without prescription; or
(F) dietary supplements, vitamins, minerals, herbs, or other similar substances including
concentrates or extracts, which are not otherwise regulated by law, which may contain naturally
occurring amounts of chemical or substances listed in this chapter, or in rules adopted pursuant to
Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
[(g)] (h) "Conviction" means a determination of guilt by verdict, whether jury or bench,
or plea, whether guilty or no contest, for any offense proscribed by Title 58, Chapters 37, 37a,
37b, 37c, or 37d, or for any offense under the laws of the United States and any other state which,
if committed in this state, would be an offense under Title 58, Chapters 37, 37a, 37b, 37c, or 37d.
[(h)] (i) "Counterfeit substance" means:
(i) any substance or container or labeling of any substance that without authorization

bears the trademark, trade name, or other identifying mark, imprint, number, device, or any
likeness of them, of a manufacturer, distributor, or dispenser other than the person or persons
who in fact manufactured, distributed, or dispensed the substance which falsely purports to be a
controlled substance distributed by, any other manufacturer, distributor, or dispenser; or
(ii) any substance that is represented to be a controlled substance.
[(i)] (j) "Deliver" or "delivery" means the actual, constructive, or attempted transfer of a
controlled substance or a listed chemical, whether or not an agency relationship exists.
[(j)] (k) "Department" means the Department of Commerce.
[(k)] (l) "Depressant or stimulant substance" means:
(i) a drug which contains any quantity of barbituric acid or any of the salts of barbituric
acid;
(ii) a drug which contains any quantity of:
(A) amphetamine or any of its optical isomers;
(B) any salt of amphetamine or any salt of an optical isomer of amphetamine; or
(C) any substance which the Secretary of Health and Human Services or the Attorney
General of the United States after investigation has found and by regulation designated
habit-forming because of its stimulant effect on the central nervous system; [or]
(iii) lysergic acid diethylamide; or
(iv) any drug which contains any quantity of a substance which the Secretary of Health
and Human Services or the Attorney General of the United States after investigation has found to
have, and by regulation designated as having, a potential for abuse because of its depressant or
stimulant effect on the central nervous system or its hallucinogenic effect.
[(l)] (m) "Dispense" means the delivery of a controlled substance by a pharmacist to an
ultimate user pursuant to the lawful order or prescription of a practitioner, and includes
distributing to, leaving with, giving away, or disposing of that substance as well as the
packaging, labeling, or compounding necessary to prepare the substance for delivery.
[(m)] (n) "Dispenser" means a pharmacist who dispenses a controlled substance.
[(n)] (o) "Distribute" means to deliver other than by administering or dispensing a

controlled substance or a listed chemical.
[(o)] (p) "Distributor" means a person who distributes controlled substances.
[(p)] (q) "Division" means the Division of Occupational and Professional Licensing
created in Section 58-1-103 .
[(q)] (r) "Drug" means:
(i) articles recognized in the official United States Pharmacopoeia, Official Homeopathic
Pharmacopoeia of the United States, or Official National Formulary, or any supplement to any of
them;
(ii) articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of
disease in man or other animals;
(iii) articles, other than food, intended to affect the structure or function of man or other
animals; and
(iv) articles intended for use as a component of any articles specified in Subsection
(1)(q)(i), (ii), or (iii); but does not include devices or their components, parts, or accessories.
[(r)] (s) "Drug dependent person" means any individual who unlawfully and habitually
uses any controlled substance to endanger the public morals, health, safety, or welfare, or who is
so dependent upon the use of controlled substances as to have lost the power of self-control with
reference to his dependency.
[(s)] (t) "Food" means:
(i) any nutrient or substance of plant, mineral, or animal origin other than a drug as
specified in this chapter, and normally ingested by human beings; and
(ii) foods for special dietary uses as exist by reason of a physical, physiological,
pathological, or other condition including but not limited to the conditions of disease,
convalescence, pregnancy, lactation, allergy, hypersensitivity to food, underweight, and
overweight; uses for supplying a particular dietary need which exist by reason of age including
but not limited to the ages of infancy and childbirth, and also uses for supplementing and for
fortifying the ordinary or unusual diet with any vitamin, mineral, or other dietary property for use
of a food. Any particular use of a food is a special dietary use regardless of the nutritional

purposes.
[(t)] (u) "Immediate precursor" means a substance which the Attorney General of the
United States has found to be, and by regulation designated as being, the principal compound
used or produced primarily for use in the manufacture of a controlled substance, or which is an
immediate chemical intermediary used or likely to be used in the manufacture of a controlled
substance, the control of which is necessary to prevent, curtail, or limit the manufacture of the
controlled substance.
[(u)] (v) "Manufacture" means the production, preparation, propagation, compounding,
or processing of a controlled substance, either directly or indirectly by extraction from substances
of natural origin, or independently by means of chemical synthesis or by a combination of
extraction and chemical synthesis.
[(v)] (w) "Manufacturer" includes any person who packages, repackages, or labels any
container of any controlled substance, except pharmacists who dispense or compound
prescription orders for delivery to the ultimate consumer.
[(w)] (x) "Marijuana" means all species of the genus cannabis and all parts of the genus,
whether growing or not; the seeds of it; the resin extracted from any part of the plant; and every
compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin.
The term does not include the mature stalks of the plant, fiber produced from the stalks, oil or
cake made from the seeds of the plant, any other compound, manufacture, salt, derivative,
mixture, or preparation of the mature stalks, except the resin extracted from them, fiber, oil or
cake, or the sterilized seed of the plant which is incapable of germination. Any synthetic
equivalents of the substances contained in the plant cannabis sativa or any other species of the
genus cannabis which are chemically indistinguishable and pharmacologically active are also
included.
[(x)] (y) "Money" means officially issued coin and currency of the United States or any
foreign country.
[(y)] (z) "Narcotic drug" means any of the following, whether produced directly or
indirectly by extraction from substances of vegetable origin, or independently by means of

chemical synthesis, or by a combination of extraction and chemical synthesis:
(i) opium, coca leaves, and opiates;
(ii) a compound, manufacture, salt, derivative, or preparation of opium, coca leaves, or
opiates;
(iii) opium poppy and poppy straw; or
(iv) a substance, and any compound, manufacture, salt, derivative, or preparation of the
substance, which is chemically identical with any of the substances referred to in Subsection
(1)[(y)] (z)(i), (ii), or (iii), except narcotic drug does not include decocainized coca leaves or
extracts of coca leaves which do not contain cocaine or ecgonine.
[(z)] (aa) "Negotiable instrument" means documents, containing an unconditional
promise to pay a sum of money, which are legally transferable to another party by endorsement
or delivery.
[(aa)] (bb) "Opiate" means any drug or other substance having an addiction-forming or
addiction-sustaining liability similar to morphine or being capable of conversion into a drug
having addiction-forming or addiction-sustaining liability.
[(bb)] (cc) "Opium poppy" means the plant of the species papaver somniferum L., except
the seeds of the plant.
[(cc)] (dd) "Person" means any corporation, association, partnership, trust, other
institution or entity or one or more individuals.
[(dd)] (ee) "Poppy straw" means all parts, except the seeds, of the opium poppy, after
mowing.
[(ee)] (ff) "Possession" or "use" means the joint or individual ownership, control,
occupancy, holding, retaining, belonging, maintaining, or the application, inhalation, swallowing,
injection, or consumption, as distinguished from distribution, of controlled substances and
includes individual, joint, or group possession or use of controlled substances. For a person to be
a possessor or user of a controlled substance, it is not required that he be shown to have
individually possessed, used, or controlled the substance, but it is sufficient if it is shown that the
person jointly participated with one or more persons in the use, possession, or control of any

substances with knowledge that the activity was occurring, or the controlled substance is found in
a place or under circumstances indicating that the person had the ability and the intent to exercise
dominion and control over it.
[(ff)] (gg) "Practitioner" means a physician, dentist, veterinarian, pharmacist, scientific
investigator, pharmacy, hospital, or other person licensed, registered, or otherwise permitted to
distribute, dispense, conduct research with respect to, administer, or use in teaching or chemical
analysis a controlled substance in the course of professional practice or research in this state.
[(gg)] (hh) "Prescribe" means to issue a prescription orally or in writing.
[(hh)] (ii) "Prescription" means an order issued by a licensed practitioner, in the course of
that practitioner's professional practice, for a controlled substance, other drug, or device which it
dispenses or administers for use by a patient or an animal. The order may be issued by word of
mouth, written document, telephone, facsimile transmission, computer, or other electronic means
of communication as defined by rule.
[(ii)] (jj) "Production" means the manufacture, planting, cultivation, growing, or
harvesting of a controlled substance.
[(jj)] (kk) "Securities" means any stocks, bonds, notes, or other evidences of debt or of
property.
[(kk)] (ll) "State" means the state of Utah.
[(ll)] (mm) "Ultimate user" means any person who lawfully possesses a controlled
substance for his own use, for the use of a member of his household, or for administration to an
animal owned by him or a member of his household.
(2) If a term used in this chapter is not defined, the definition and terms of Title 76, Utah
Criminal Code, shall apply.