This document includes House Floor Amendments incorporated into the bill on Thu, Mar 2, 2017 at 3:43 PM by ryoung.
Representative Joel K. Briscoe proposes the following substitute bill:


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HOMELESS RESOURCE CENTER ZONE AMENDMENTS

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2017 GENERAL SESSION

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STATE OF UTAH

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Chief Sponsor: Joel K. Briscoe

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Senate Sponsor: Todd Weiler

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7     LONG TITLE
8     General Description:
9           This bill modifies the Utah Controlled Substances Act.
10     Highlighted Provisions:
11          This bill:
12          ▸      modifies penalties related to violations of the Utah Controlled Substances Act when
13     the violation occurs in or near a homeless shelter; and
14          ▸     makes technical changes.
15     Money Appropriated in this Bill:
16          None
17     Other Special Clauses:
18          None
19     Utah Code Sections Affected:
20     AMENDS:
21          58-37-8, as last amended by Laws of Utah 2016, Chapters 99 and 348
22     

23     Be it enacted by the Legislature of the state of Utah:
24          Section 1. Section 58-37-8 is amended to read:
25          58-37-8. Prohibited acts -- Penalties.
26          (1) Prohibited acts A -- Penalties and reporting:
27          (a) Except as authorized by this chapter, it is unlawful for any person to knowingly and
28     intentionally:
29          (i) produce, manufacture, or dispense, or to possess with intent to produce,
30     manufacture, or dispense, a controlled or counterfeit substance;
31          (ii) distribute a controlled or counterfeit substance, or to agree, consent, offer, or
32     arrange to distribute a controlled or counterfeit substance;
33          (iii) possess a controlled or counterfeit substance with intent to distribute; or
34          (iv) engage in a continuing criminal enterprise where:
35          (A) the person participates, directs, or engages in conduct that results in any violation
36     of any provision of Title 58, Chapters 37, Utah Controlled Substances Act, 37a, Utah Drug
37     Paraphernalia Act, 37b, Imitation Controlled Substances Act, 37c, Utah Controlled Substance
38     Precursor Act, or 37d, Clandestine Drug Lab Act, that is a felony; and
39          (B) the violation is a part of a continuing series of two or more violations of Title 58,
40     Chapters 37, Utah Controlled Substances Act, 37a, Utah Drug Paraphernalia Act, 37b,
41     Imitation Controlled Substances Act, 37c, Utah Controlled Substance Precursor Act, or 37d,
42     Clandestine Drug Lab Act, on separate occasions that are undertaken in concert with five or
43     more persons with respect to whom the person occupies a position of organizer, supervisor, or
44     any other position of management.
45          (b) Any person convicted of violating Subsection (1)(a) with respect to:
46          (i) a substance or a counterfeit of a substance classified in Schedule I or II, a controlled
47     substance analog, or gammahydroxybutyric acid as listed in Schedule III is guilty of a second
48     degree felony, punishable by imprisonment for not more than 15 years, and upon a second or
49     subsequent conviction is guilty of a first degree felony;
50          (ii) a substance or a counterfeit of a substance classified in Schedule III or IV, or
51     marijuana, or a substance listed in Section 58-37-4.2 is guilty of a third degree felony, and
52     upon a second or subsequent conviction is guilty of a second degree felony; or
53          (iii) a substance or a counterfeit of a substance classified in Schedule V is guilty of a
54     class A misdemeanor and upon a second or subsequent conviction is guilty of a third degree
55     felony.
56          (c) Any person who has been convicted of a violation of Subsection (1)(a)(ii) or (iii)
57     may be sentenced to imprisonment for an indeterminate term as provided by law, but if the trier
58     of fact finds a firearm as defined in Section 76-10-501 was used, carried, or possessed on his
59     person or in his immediate possession during the commission or in furtherance of the offense,
60     the court shall additionally sentence the person convicted for a term of one year to run
61     consecutively and not concurrently; and the court may additionally sentence the person
62     convicted for an indeterminate term not to exceed five years to run consecutively and not
63     concurrently.
64          (d) Any person convicted of violating Subsection (1)(a)(iv) is guilty of a first degree
65     felony punishable by imprisonment for an indeterminate term of not less than seven years and
66     which may be for life. Imposition or execution of the sentence may not be suspended, and the
67     person is not eligible for probation.
68          (e) The Administrative Office of the Courts shall report to the Division of
69     Occupational and Professional Licensing the name, case number, date of conviction, and if
70     known, the date of birth of each person convicted of violating Subsection (2)(a).
71          (2) Prohibited acts B -- Penalties and reporting:
72          (a) It is unlawful:
73          (i) for any person knowingly and intentionally to possess or use a controlled substance
74     analog or a controlled substance, unless it was obtained under a valid prescription or order,
75     directly from a practitioner while acting in the course of the person's professional practice, or as
76     otherwise authorized by this chapter;
77          (ii) for any owner, tenant, licensee, or person in control of any building, room,
78     tenement, vehicle, boat, aircraft, or other place knowingly and intentionally to permit them to
79     be occupied by persons unlawfully possessing, using, or distributing controlled substances in
80     any of those locations; or
81          (iii) for any person knowingly and intentionally to possess an altered or forged
82     prescription or written order for a controlled substance.
83          (b) Any person convicted of violating Subsection (2)(a)(i) with respect to:
84          (i) marijuana, if the amount is 100 pounds or more, is guilty of a second degree felony;
85     or
86          (ii) a substance classified in Schedule I or II, or a controlled substance analog, is guilty
87     of a class A misdemeanor on a first or second conviction, and on a third or subsequent
88     conviction is guilty of a third degree felony.
89          (c) Upon a person's conviction of a violation of this Subsection (2) subsequent to a
90     conviction under Subsection (1)(a), that person shall be sentenced to a one degree greater
91     penalty than provided in this Subsection (2).
92          (d) Any person who violates Subsection (2)(a)(i) with respect to all other controlled
93     substances not included in Subsection (2)(b)(i) or (ii), including a substance listed in Section
94     58-37-4.2, or marijuana, is guilty of a class B misdemeanor. Upon a third conviction the
95     person is guilty of a class A misdemeanor, and upon a fourth or subsequent conviction the
96     person is guilty of a third degree felony.
97          (e) Any person convicted of violating Subsection (2)(a)(i) while inside the exterior
98     boundaries of property occupied by any correctional facility as defined in Section 64-13-1 or
99     any public jail or other place of confinement shall be sentenced to a penalty one degree greater
100     than provided in Subsection (2)(b), and if the conviction is with respect to controlled
101     substances as listed in:
102          (i) Subsection (2)(b), the person may be sentenced to imprisonment for an
103     indeterminate term as provided by law, and:
104          (A) the court shall additionally sentence the person convicted to a term of one year to
105     run consecutively and not concurrently; and
106          (B) the court may additionally sentence the person convicted for an indeterminate term
107     not to exceed five years to run consecutively and not concurrently; and
108          (ii) Subsection (2)(d), the person may be sentenced to imprisonment for an
109     indeterminate term as provided by law, and the court shall additionally sentence the person
110     convicted to a term of six months to run consecutively and not concurrently.
111          (f) Any person convicted of violating Subsection (2)(a)(ii) or(iii) is:
112          (i) on a first conviction, guilty of a class B misdemeanor;
113          (ii) on a second conviction, guilty of a class A misdemeanor; and
114          (iii) on a third or subsequent conviction, guilty of a third degree felony.
115          (g) A person is subject to the penalties under Subsection (2)(h) who, in an offense not
116     amounting to a violation of Section 76-5-207:
117          (i) violates Subsection (2)(a)(i) by knowingly and intentionally having in the person's
118     body any measurable amount of a controlled substance; and
119          (ii) operates a motor vehicle as defined in Section 76-5-207 in a negligent manner,
120     causing serious bodily injury as defined in Section 76-1-601 or the death of another.
121          (h) A person who violates Subsection (2)(g) by having in the person's body:
122          (i) a controlled substance classified under Schedule I, other than those described in
123     Subsection (2)(h)(ii), or a controlled substance classified under Schedule II is guilty of a second
124     degree felony;
125          (ii) marijuana, tetrahydrocannabinols, or equivalents described in Subsection
126     58-37-4(2)(a)(iii)(S) or (AA), or a substance listed in Section 58-37-4.2 is guilty of a third
127     degree felony; or
128          (iii) any controlled substance classified under Schedules III, IV, or V is guilty of a class
129     A misdemeanor.
130          (i) A person is guilty of a separate offense for each victim suffering serious bodily
131     injury or death as a result of the person's negligent driving in violation of Subsection
132     [58-37-8](2)(g) whether or not the injuries arise from the same episode of driving.
133          (j) The Administrative Office of the Courts shall report to the Division of Occupational
134     and Professional Licensing the name, case number, date of conviction, and if known, the date
135     of birth of each person convicted of violating Subsection (2)(a).
136          (3) Prohibited acts C -- Penalties:
137          (a) It is unlawful for any person knowingly and intentionally:
138          (i) to use in the course of the manufacture or distribution of a controlled substance a
139     license number which is fictitious, revoked, suspended, or issued to another person or, for the
140     purpose of obtaining a controlled substance, to assume the title of, or represent oneself to be, a
141     manufacturer, wholesaler, apothecary, physician, dentist, veterinarian, or other authorized
142     person;
143          (ii) to acquire or obtain possession of, to procure or attempt to procure the
144     administration of, to obtain a prescription for, to prescribe or dispense to any person known to
145     be attempting to acquire or obtain possession of, or to procure the administration of any
146     controlled substance by misrepresentation or failure by the person to disclose receiving any
147     controlled substance from another source, fraud, forgery, deception, subterfuge, alteration of a
148     prescription or written order for a controlled substance, or the use of a false name or address;
149          (iii) to make any false or forged prescription or written order for a controlled substance,
150     or to utter the same, or to alter any prescription or written order issued or written under the
151     terms of this chapter; or
152          (iv) to make, distribute, or possess any punch, die, plate, stone, or other thing designed
153     to print, imprint, or reproduce the trademark, trade name, or other identifying mark, imprint, or
154     device of another or any likeness of any of the foregoing upon any drug or container or labeling
155     so as to render any drug a counterfeit controlled substance.
156          (b) (i) A first or second conviction under Subsection (3)(a)(i), (ii), or (iii) is a class A
157     misdemeanor.
158          (ii) A third or subsequent conviction under Subsection (3)(a)(i), (ii), or (iii) is a third
159     degree felony.
160          (c) A violation of Subsection (3)(a)(iv) is a third degree felony.
161          (4) Prohibited acts D -- Penalties:
162          (a) Notwithstanding other provisions of this section, a person not authorized under this
163     chapter who commits any act that is unlawful under Subsection (1)(a),
163a      Ĥ→ [Section 58-37a-5] Subsection 58-37a-5(2)(a) ←Ĥ , or
164     Section 58-37b-4 is upon conviction subject to the penalties and classifications under this
165     Subsection (4) if the trier of fact finds the act is committed:
166          (i) in a public or private elementary or secondary school or on the grounds of any of
167     those schools during the hours of 6 a.m. through 10 p.m.;
168          (ii) in a public or private vocational school or postsecondary institution or on the
169     grounds of any of those schools or institutions during the hours of 6 a.m. through 10 p.m.;
170          (iii) in or on the grounds of a preschool or child-care facility during the preschool's or
171     facility's hours of operation;
172          (iv) in a public park, amusement park, arcade, or recreation center when the public or
173     amusement park, arcade, or recreation center is open to the public;
174          (v) in or on the grounds of a house of worship as defined in Section 76-10-501;
175          (vi) in or on the grounds of a library when the library is open to the public;
176          (vii) in or on the grounds of a permanent housing, permanent supporting, or transitional
177     facility, as defined in Section 35A-5-302;
178          [(vii)] (viii) within any area that is within 100 feet of any structure, facility, or grounds
179     included in [Subsections] Subsection (4)(a)(i), (ii), (iii), (iv), (v), [and] (vi), or (vii);
180          [(viii)] (ix) in the presence of a person younger than 18 years of age, regardless of
181     where the act occurs; or
182          [(ix)] (x) for the purpose of facilitating, arranging, or causing the transport, delivery, or
183     distribution of a substance in violation of this section to an inmate or on the grounds of any
184     correctional facility as defined in Section 76-8-311.3.
185          (b) (i) A person convicted under this Subsection (4) is guilty of a first degree felony
186     and shall be imprisoned for a term of not less than five years if the penalty that would
187     otherwise have been established but for this Subsection (4) would have been a first degree
188     felony.
189          (ii) Imposition or execution of the sentence may not be suspended, and the person is
190     not eligible for probation.
191          (c) If the classification that would otherwise have been established would have been
192     less than a first degree felony but for this Subsection (4), a person convicted under this
193     Subsection (4) is guilty of one degree more than the maximum penalty prescribed for that
194     offense. This Subsection (4)(c) does not apply to a violation of Subsection (2)(g).
195          (d) (i) If the violation is of Subsection (4)(a)[(ix)](x):
196          (A) the person may be sentenced to imprisonment for an indeterminate term as
197     provided by law, and the court shall additionally sentence the person convicted for a term of
198     one year to run consecutively and not concurrently; and
199          (B) the court may additionally sentence the person convicted for an indeterminate term
200     not to exceed five years to run consecutively and not concurrently; and
201          (ii) the penalties under this Subsection (4)(d) apply also to any person who, acting with
202     the mental state required for the commission of an offense, directly or indirectly solicits,
203     requests, commands, coerces, encourages, or intentionally aids another person to commit a
204     violation of Subsection (4)(a)[(ix)](x).
205          (e) It is not a defense to a prosecution under this Subsection (4) that the actor
206     mistakenly believed the individual to be 18 years of age or older at the time of the offense or
207     was unaware of the individual's true age; nor that the actor mistakenly believed that the
208     location where the act occurred was not as described in Subsection (4)(a) or was unaware that
209     the location where the act occurred was as described in Subsection (4)(a).
210          (5) Any violation of this chapter for which no penalty is specified is a class B
211     misdemeanor.
212          (6) (a) For purposes of penalty enhancement under Subsections (1) and (2), a plea of
213     guilty or no contest to a violation or attempted violation of this section or a plea which is held
214     in abeyance under Title 77, Chapter 2a, Pleas in Abeyance, is the equivalent of a conviction,
215     even if the charge has been subsequently reduced or dismissed in accordance with the plea in
216     abeyance agreement.
217          (b) A prior conviction used for a penalty enhancement under Subsection (2) shall be a
218     conviction that is:
219          (i) from a separate criminal episode than the current charge; and
220          (ii) from a conviction that is separate from any other conviction used to enhance the
221     current charge.
222          (7) A person may be charged and sentenced for a violation of this section,
223     notwithstanding a charge and sentence for a violation of any other section of this chapter.
224          (8) (a) Any penalty imposed for violation of this section is in addition to, and not in
225     lieu of, any civil or administrative penalty or sanction authorized by law.
226          (b) Where violation of this chapter violates a federal law or the law of another state,
227     conviction or acquittal under federal law or the law of another state for the same act is a bar to
228     prosecution in this state.
229          (9) In any prosecution for a violation of this chapter, evidence or proof that shows a
230     person or persons produced, manufactured, possessed, distributed, or dispensed a controlled
231     substance or substances, is prima facie evidence that the person or persons did so with
232     knowledge of the character of the substance or substances.
233          (10) This section does not prohibit a veterinarian, in good faith and in the course of the
234     veterinarian's professional practice only and not for humans, from prescribing, dispensing, or
235     administering controlled substances or from causing the substances to be administered by an
236     assistant or orderly under the veterinarian's direction and supervision.
237          (11) Civil or criminal liability may not be imposed under this section on:
238          (a) any person registered under this chapter who manufactures, distributes, or possesses
239     an imitation controlled substance for use as a placebo or investigational new drug by a
240     registered practitioner in the ordinary course of professional practice or research; or
241          (b) any law enforcement officer acting in the course and legitimate scope of the
242     officer's employment.
243          (12) (a) Civil or criminal liability may not be imposed under this section on any Indian,
244     as defined in Subsection 58-37-2(1)(v), who uses, possesses, or transports peyote for bona fide
245     traditional ceremonial purposes in connection with the practice of a traditional Indian religion
246     as defined in Subsection 58-37-2(1)(w).
247          (b) In a prosecution alleging violation of this section regarding peyote as defined in
248     Subsection 58-37-4(2)(a)(iii)(V), it is an affirmative defense that the peyote was used,
249     possessed, or transported by an Indian for bona fide traditional ceremonial purposes in
250     connection with the practice of a traditional Indian religion.
251          (c) (i) The defendant shall provide written notice of intent to claim an affirmative
252     defense under this Subsection (12) as soon as practicable, but not later than 10 days prior to
253     trial.
254          (ii) The notice shall include the specific claims of the affirmative defense.
255          (iii) The court may waive the notice requirement in the interest of justice for good
256     cause shown, if the prosecutor is not unfairly prejudiced by the lack of timely notice.
257          (d) The defendant shall establish the affirmative defense under this Subsection (12) by
258     a preponderance of the evidence. If the defense is established, it is a complete defense to the
259     charges.
260          (13) (a) It is an affirmative defense that the person produced, possessed, or
261     administered a controlled substance listed in Section 58-37-4.2 if the person:
262          (i) was engaged in medical research; and
263          (ii) was a holder of a valid license to possess controlled substances under Section
264     58-37-6.
265          (b) It is not a defense under Subsection (13)(a) that the person prescribed or dispensed
266     a controlled substance listed in Section 58-37-4.2.
267          (14) It is an affirmative defense that the person possessed, in the person's body, a
268     controlled substance listed in Section 58-37-4.2 if:
269          (a) the person was the subject of medical research conducted by a holder of a valid
270     license to possess controlled substances under Section 58-37-6; and
271          (b) the substance was administered to the person by the medical researcher.
272          (15) The application of any increase in penalty under this section to a violation of
273     Subsection (2)(a)(i) may not result in any greater penalty than a second degree felony. This
274     Subsection (15) takes precedence over any conflicting provision of this section.
275          (16) (a) It is an affirmative defense to an allegation of the commission of an offense
276     listed in Subsection (16)(b) that the person:
277          (i) reasonably believes that the person or another person is experiencing an overdose
278     event due to the ingestion, injection, inhalation, or other introduction into the human body of a
279     controlled substance or other substance;
280          (ii) reports in good faith the overdose event to a medical provider, an emergency
281     medical service provider as defined in Section 26-8a-102, a law enforcement officer, a 911
282     emergency call system, or an emergency dispatch system, or the person is the subject of a
283     report made under this Subsection (16);
284          (iii) provides in the report under Subsection (16)(a)(ii) a functional description of the
285     actual location of the overdose event that facilitates responding to the person experiencing the
286     overdose event;
287          (iv) remains at the location of the person experiencing the overdose event until a
288     responding law enforcement officer or emergency medical service provider arrives, or remains
289     at the medical care facility where the person experiencing an overdose event is located until a
290     responding law enforcement officer arrives;
291          (v) cooperates with the responding medical provider, emergency medical service
292     provider, and law enforcement officer, including providing information regarding the person
293     experiencing the overdose event and any substances the person may have injected, inhaled, or
294     otherwise introduced into the person's body; and
295          (vi) is alleged to have committed the offense in the same course of events from which
296     the reported overdose arose.
297          (b) The offenses referred to in Subsection (16)(a) are:
298          (i) the possession or use of less than 16 ounces of marijuana;
299          (ii) the possession or use of a scheduled or listed controlled substance other than
300     marijuana; and
301          (iii) any violation of Chapter 37a, Utah Drug Paraphernalia Act, or Chapter 37b,
302     Imitation Controlled Substances Act.
303          (c) As used in this Subsection (16) and in Section 76-3-203.11, "good faith" does not
304     include seeking medical assistance under this section during the course of a law enforcement
305     agency's execution of a search warrant, execution of an arrest warrant, or other lawful search.
306          (17) If any provision of this chapter, or the application of any provision to any person
307     or circumstances, is held invalid, the remainder of this chapter shall be given effect without the
308     invalid provision or application.
309          (18) A legislative body of a political subdivision may not enact an ordinance that is
310     less restrictive than any provision of this chapter.
311          (19) (a) If a minor who is under 18 years of age is found by a court to have violated this
312     section and the violation is the minor's first violation of this section, the court may:
313          (i) order the minor to complete a screening as defined in Section 41-6a-501;
314          (ii) order the minor to complete an assessment as defined in Section 41-6a-501 if the
315     screening indicates an assessment to be appropriate; and
316          (iii) order the minor to complete an educational series as defined in Section 41-6a-501
317     or substance abuse treatment as indicated by an assessment.
318          (b) If a minor who is under 18 years of age is found by a court to have violated this
319     section and the violation is the minor's second or subsequent violation of this section, the court
320     shall:
321          (i) order the minor to complete a screening as defined in Section 41-6a-501;
322          (ii) order the minor to complete an assessment as defined in Section 41-6a-501 if the
323     screening indicates an assessment to be appropriate; and
324          (iii) order the minor to complete an educational series as defined in Section 41-6a-501
325     or substance abuse treatment as indicated by an assessment.