1
2
3
4
5
6
7 LONG TITLE
8 General Description:
9 This bill modifies provisions related to penalties for certain prohibited acts related to a
10 controlled substance.
11 Highlighted Provisions:
12 This bill:
13 ▸ modifies penalties for certain prohibited acts related to a controlled substance when
14 committed in or on the grounds of a homeless shelter with at least:
15 • 200 beds and is located in a county of the first or second class; or
16 • 20 beds and is located in a county of the third, fourth, fifth, or sixth class; and
17 ▸ makes technical and conforming changes.
18 Money Appropriated in this Bill:
19 None
20 Other Special Clauses:
21 None
22 Utah Code Sections Affected:
23 AMENDS:
24 58-37-8, as last amended by Laws of Utah 2017, Chapter 330
25
26 Be it enacted by the Legislature of the state of Utah:
27 Section 1. Section 58-37-8 is amended to read:
28 58-37-8. Prohibited acts -- Penalties.
29 (1) Prohibited acts A -- Penalties and reporting:
30 (a) Except as authorized by this chapter, it is unlawful for any person to knowingly and
31 intentionally:
32 (i) produce, manufacture, or dispense, or to possess with intent to produce,
33 manufacture, or dispense, a controlled or counterfeit substance;
34 (ii) distribute a controlled or counterfeit substance, or to agree, consent, offer, or
35 arrange to distribute a controlled or counterfeit substance;
36 (iii) possess a controlled or counterfeit substance with intent to distribute; or
37 (iv) engage in a continuing criminal enterprise where:
38 (A) the person participates, directs, or engages in conduct that results in any violation
39 of any provision of Title 58, Chapters 37, Utah Controlled Substances Act, 37a, Utah Drug
40 Paraphernalia Act, 37b, Imitation Controlled Substances Act, 37c, Utah Controlled Substance
41 Precursor Act, or 37d, Clandestine Drug Lab Act, that is a felony; and
42 (B) the violation is a part of a continuing series of two or more violations of Title 58,
43 Chapters 37, Utah Controlled Substances Act, 37a, Utah Drug Paraphernalia Act, 37b,
44 Imitation Controlled Substances Act, 37c, Utah Controlled Substance Precursor Act, or 37d,
45 Clandestine Drug Lab Act, on separate occasions that are undertaken in concert with five or
46 more persons with respect to whom the person occupies a position of organizer, supervisor, or
47 any other position of management.
48 (b) Any person convicted of violating Subsection (1)(a) with respect to:
49 (i) a substance or a counterfeit of a substance classified in Schedule I or II, a controlled
50 substance analog, or gammahydroxybutyric acid as listed in Schedule III is guilty of a second
51 degree felony, punishable by imprisonment for not more than 15 years, and upon a second or
52 subsequent conviction is guilty of a first degree felony;
53 (ii) a substance or a counterfeit of a substance classified in Schedule III or IV, or
54 marijuana, or a substance listed in Section 58-37-4.2 is guilty of a third degree felony, and
55 upon a second or subsequent conviction is guilty of a second degree felony; or
56 (iii) a substance or a counterfeit of a substance classified in Schedule V is guilty of a
57 class A misdemeanor and upon a second or subsequent conviction is guilty of a third degree
58 felony.
59 (c) Any person who has been convicted of a violation of Subsection (1)(a)(ii) or (iii)
60 may be sentenced to imprisonment for an indeterminate term as provided by law, but if the trier
61 of fact finds a firearm as defined in Section 76-10-501 was used, carried, or possessed on the
62 person or in the person's immediate possession during the commission or in furtherance of the
63 offense, the court shall additionally sentence the person convicted for a term of one year to run
64 consecutively and not concurrently; and the court may additionally sentence the person
65 convicted for an indeterminate term not to exceed five years to run consecutively and not
66 concurrently.
67 (d) Any person convicted of violating Subsection (1)(a)(iv) is guilty of a first degree
68 felony punishable by imprisonment for an indeterminate term of not less than seven years and
69 which may be for life. Imposition or execution of the sentence may not be suspended, and the
70 person is not eligible for probation.
71 (e) The Administrative Office of the Courts shall report to the Division of
72 Occupational and Professional Licensing the name, case number, date of conviction, and if
73 known, the date of birth of each person convicted of violating Subsection (2)(a).
74 (2) Prohibited acts B -- Penalties and reporting:
75 (a) It is unlawful:
76 (i) for any person knowingly and intentionally to possess or use a controlled substance
77 analog or a controlled substance, unless it was obtained under a valid prescription or order,
78 directly from a practitioner while acting in the course of the person's professional practice, or as
79 otherwise authorized by this chapter;
80 (ii) for any owner, tenant, licensee, or person in control of any building, room,
81 tenement, vehicle, boat, aircraft, or other place knowingly and intentionally to permit them to
82 be occupied by persons unlawfully possessing, using, or distributing controlled substances in
83 any of those locations; or
84 (iii) for any person knowingly and intentionally to possess an altered or forged
85 prescription or written order for a controlled substance.
86 (b) Any person convicted of violating Subsection (2)(a)(i) with respect to:
87 (i) marijuana, if the amount is 100 pounds or more, is guilty of a second degree felony;
88 or
89 (ii) a substance classified in Schedule I or II, or a controlled substance analog, is guilty
90 of a class A misdemeanor on a first or second conviction, and on a third or subsequent
91 conviction is guilty of a third degree felony.
92 (c) Upon a person's conviction of a violation of this Subsection (2) subsequent to a
93 conviction under Subsection (1)(a), that person shall be sentenced to a one degree greater
94 penalty than provided in this Subsection (2).
95 (d) Any person who violates Subsection (2)(a)(i) with respect to all other controlled
96 substances not included in Subsection (2)(b)(i) or (ii), including a substance listed in Section
97 58-37-4.2, or marijuana, is guilty of a class B misdemeanor. Upon a third conviction the
98 person is guilty of a class A misdemeanor, and upon a fourth or subsequent conviction the
99 person is guilty of a third degree felony.
100 (e) Any person convicted of violating Subsection (2)(a)(i) while inside the exterior
101 boundaries of property occupied by any correctional facility as defined in Section 64-13-1 or
102 any public jail or other place of confinement shall be sentenced to a penalty one degree greater
103 than provided in Subsection (2)(b), and if the conviction is with respect to controlled
104 substances as listed in:
105 (i) Subsection (2)(b), the person may be sentenced to imprisonment for an
106 indeterminate term as provided by law, and:
107 (A) the court shall additionally sentence the person convicted to a term of one year to
108 run consecutively and not concurrently; and
109 (B) the court may additionally sentence the person convicted for an indeterminate term
110 not to exceed five years to run consecutively and not concurrently; and
111 (ii) Subsection (2)(d), the person may be sentenced to imprisonment for an
112 indeterminate term as provided by law, and the court shall additionally sentence the person
113 convicted to a term of six months to run consecutively and not concurrently.
114 (f) Any person convicted of violating Subsection (2)(a)(ii) or (iii) is:
115 (i) on a first conviction, guilty of a class B misdemeanor;
116 (ii) on a second conviction, guilty of a class A misdemeanor; and
117 (iii) on a third or subsequent conviction, guilty of a third degree felony.
118 (g) A person is subject to the penalties under Subsection (2)(h) who, in an offense not
119 amounting to a violation of Section 76-5-207:
120 (i) violates Subsection (2)(a)(i) by knowingly and intentionally having in the person's
121 body any measurable amount of a controlled substance; and
122 (ii) operates a motor vehicle as defined in Section 76-5-207 in a negligent manner,
123 causing serious bodily injury as defined in Section 76-1-601 or the death of another.
124 (h) A person who violates Subsection (2)(g) by having in the person's body:
125 (i) a controlled substance classified under Schedule I, other than those described in
126 Subsection (2)(h)(ii), or a controlled substance classified under Schedule II is guilty of a second
127 degree felony;
128 (ii) marijuana, tetrahydrocannabinols, or equivalents described in Subsection
129 58-37-4(2)(a)(iii)(S) or (AA), or a substance listed in Section 58-37-4.2 is guilty of a third
130 degree felony; or
131 (iii) any controlled substance classified under Schedules III, IV, or V is guilty of a class
132 A misdemeanor.
133 (i) A person is guilty of a separate offense for each victim suffering serious bodily
134 injury or death as a result of the person's negligent driving in violation of Subsection (2)(g)
135 whether or not the injuries arise from the same episode of driving.
136 (j) The Administrative Office of the Courts shall report to the Division of Occupational
137 and Professional Licensing the name, case number, date of conviction, and if known, the date
138 of birth of each person convicted of violating Subsection (2)(a).
139 (3) Prohibited acts C -- Penalties:
140 (a) It is unlawful for any person knowingly and intentionally:
141 (i) to use in the course of the manufacture or distribution of a controlled substance a
142 license number which is fictitious, revoked, suspended, or issued to another person or, for the
143 purpose of obtaining a controlled substance, to assume the title of, or represent oneself to be, a
144 manufacturer, wholesaler, apothecary, physician, dentist, veterinarian, or other authorized
145 person;
146 (ii) to acquire or obtain possession of, to procure or attempt to procure the
147 administration of, to obtain a prescription for, to prescribe or dispense to any person known to
148 be attempting to acquire or obtain possession of, or to procure the administration of any
149 controlled substance by misrepresentation or failure by the person to disclose receiving any
150 controlled substance from another source, fraud, forgery, deception, subterfuge, alteration of a
151 prescription or written order for a controlled substance, or the use of a false name or address;
152 (iii) to make any false or forged prescription or written order for a controlled substance,
153 or to utter the same, or to alter any prescription or written order issued or written under the
154 terms of this chapter; or
155 (iv) to make, distribute, or possess any punch, die, plate, stone, or other thing designed
156 to print, imprint, or reproduce the trademark, trade name, or other identifying mark, imprint, or
157 device of another or any likeness of any of the foregoing upon any drug or container or labeling
158 so as to render any drug a counterfeit controlled substance.
159 (b) (i) A first or second conviction under Subsection (3)(a)(i), (ii), or (iii) is a class A
160 misdemeanor.
161 (ii) A third or subsequent conviction under Subsection (3)(a)(i), (ii), or (iii) is a third
162 degree felony.
163 (c) A violation of Subsection (3)(a)(iv) is a third degree felony.
164 (4) Prohibited acts D -- Penalties:
165 (a) Notwithstanding other provisions of this section, a person not authorized under this
166 chapter who commits any act that is unlawful under Subsection (1)(a), Section 58-37a-5, or
167 Section 58-37b-4 is upon conviction subject to the penalties and classifications under this
168 Subsection (4) if the trier of fact finds the act is committed:
169 (i) in a public or private elementary or secondary school or on the grounds of any of
170 those schools during the hours of 6 a.m. through 10 p.m.;
171 (ii) in a public or private vocational school or postsecondary institution or on the
172 grounds of any of those schools or institutions during the hours of 6 a.m. through 10 p.m.;
173 (iii) in or on the grounds of a preschool or child-care facility during the preschool's or
174 facility's hours of operation;
175 (iv) in a public park, amusement park, arcade, or recreation center when the public or
176 amusement park, arcade, or recreation center is open to the public;
177 (v) in or on the grounds of a house of worship as defined in Section 76-10-501;
178 (vi) in or on the grounds of a library when the library is open to the public;
179 (vii) in or on the grounds of a homeless shelter that has the capacity to provide
180 temporary shelter to at least:
181 (A) 200 individuals per night and is located in a county of the first or second class; or
182 (B) 20 individuals per night and is located in a county of the third, fourth, fifth, or sixth
183 class;
184 [
185 included in [
186 [
187 where the act occurs; or
188 [
189 distribution of a substance in violation of this section to an inmate or on the grounds of any
190 correctional facility as defined in Section 76-8-311.3.
191 (b) (i) A person convicted under this Subsection (4) is guilty of a first degree felony
192 and shall be imprisoned for a term of not less than five years if the penalty that would
193 otherwise have been established but for this Subsection (4) would have been a first degree
194 felony.
195 (ii) Imposition or execution of the sentence may not be suspended, and the person is
196 not eligible for probation.
197 (c) If the classification that would otherwise have been established would have been
198 less than a first degree felony but for this Subsection (4), a person convicted under this
199 Subsection (4) is guilty of one degree more than the maximum penalty prescribed for that
200 offense. This Subsection (4)(c) does not apply to a violation of Subsection (2)(g).
201 (d) (i) If the violation is of Subsection (4)(a)[
202 (A) the person may be sentenced to imprisonment for an indeterminate term as
203 provided by law, and the court shall additionally sentence the person convicted for a term of
204 one year to run consecutively and not concurrently; and
205 (B) the court may additionally sentence the person convicted for an indeterminate term
206 not to exceed five years to run consecutively and not concurrently; and
207 (ii) the penalties under this Subsection (4)(d) apply also to any person who, acting with
208 the mental state required for the commission of an offense, directly or indirectly solicits,
209 requests, commands, coerces, encourages, or intentionally aids another person to commit a
210 violation of Subsection (4)(a)[
211 (e) It is not a defense to a prosecution under this Subsection (4) that the actor
212 mistakenly believed the individual to be 18 years of age or older at the time of the offense or
213 was unaware of the individual's true age; nor that the actor mistakenly believed that the
214 location where the act occurred was not as described in Subsection (4)(a) or was unaware that
215 the location where the act occurred was as described in Subsection (4)(a).
216 (5) Any violation of this chapter for which no penalty is specified is a class B
217 misdemeanor.
218 (6) (a) For purposes of penalty enhancement under Subsections (1) and (2), a plea of
219 guilty or no contest to a violation or attempted violation of this section or a plea which is held
220 in abeyance under Title 77, Chapter 2a, Pleas in Abeyance, is the equivalent of a conviction,
221 even if the charge has been subsequently reduced or dismissed in accordance with the plea in
222 abeyance agreement.
223 (b) A prior conviction used for a penalty enhancement under Subsection (2) shall be a
224 conviction that is:
225 (i) from a separate criminal episode than the current charge; and
226 (ii) from a conviction that is separate from any other conviction used to enhance the
227 current charge.
228 (7) A person may be charged and sentenced for a violation of this section,
229 notwithstanding a charge and sentence for a violation of any other section of this chapter.
230 (8) (a) Any penalty imposed for violation of this section is in addition to, and not in
231 lieu of, any civil or administrative penalty or sanction authorized by law.
232 (b) Where violation of this chapter violates a federal law or the law of another state,
233 conviction or acquittal under federal law or the law of another state for the same act is a bar to
234 prosecution in this state.
235 (9) In any prosecution for a violation of this chapter, evidence or proof that shows a
236 person or persons produced, manufactured, possessed, distributed, or dispensed a controlled
237 substance or substances, is prima facie evidence that the person or persons did so with
238 knowledge of the character of the substance or substances.
239 (10) This section does not prohibit a veterinarian, in good faith and in the course of the
240 veterinarian's professional practice only and not for humans, from prescribing, dispensing, or
241 administering controlled substances or from causing the substances to be administered by an
242 assistant or orderly under the veterinarian's direction and supervision.
243 (11) Civil or criminal liability may not be imposed under this section on:
244 (a) any person registered under this chapter who manufactures, distributes, or possesses
245 an imitation controlled substance for use as a placebo or investigational new drug by a
246 registered practitioner in the ordinary course of professional practice or research; or
247 (b) any law enforcement officer acting in the course and legitimate scope of the
248 officer's employment.
249 (12) (a) Civil or criminal liability may not be imposed under this section on any Indian,
250 as defined in Subsection 58-37-2(1)(v), who uses, possesses, or transports peyote for bona fide
251 traditional ceremonial purposes in connection with the practice of a traditional Indian religion
252 as defined in Subsection 58-37-2(1)(w).
253 (b) In a prosecution alleging violation of this section regarding peyote as defined in
254 Subsection 58-37-4(2)(a)(iii)(V), it is an affirmative defense that the peyote was used,
255 possessed, or transported by an Indian for bona fide traditional ceremonial purposes in
256 connection with the practice of a traditional Indian religion.
257 (c) (i) The defendant shall provide written notice of intent to claim an affirmative
258 defense under this Subsection (12) as soon as practicable, but not later than 10 days before
259 trial.
260 (ii) The notice shall include the specific claims of the affirmative defense.
261 (iii) The court may waive the notice requirement in the interest of justice for good
262 cause shown, if the prosecutor is not unfairly prejudiced by the lack of timely notice.
263 (d) The defendant shall establish the affirmative defense under this Subsection (12) by
264 a preponderance of the evidence. If the defense is established, it is a complete defense to the
265 charges.
266 (13) (a) It is an affirmative defense that the person produced, possessed, or
267 administered a controlled substance listed in Section 58-37-4.2 if the person:
268 (i) was engaged in medical research; and
269 (ii) was a holder of a valid license to possess controlled substances under Section
270 58-37-6.
271 (b) It is not a defense under Subsection (13)(a) that the person prescribed or dispensed
272 a controlled substance listed in Section 58-37-4.2.
273 (14) It is an affirmative defense that the person possessed, in the person's body, a
274 controlled substance listed in Section 58-37-4.2 if:
275 (a) the person was the subject of medical research conducted by a holder of a valid
276 license to possess controlled substances under Section 58-37-6; and
277 (b) the substance was administered to the person by the medical researcher.
278 (15) The application of any increase in penalty under this section to a violation of
279 Subsection (2)(a)(i) may not result in any greater penalty than a second degree felony. This
280 Subsection (15) takes precedence over any conflicting provision of this section.
281 (16) (a) It is an affirmative defense to an allegation of the commission of an offense
282 listed in Subsection (16)(b) that the person:
283 (i) reasonably believes that the person or another person is experiencing an overdose
284 event due to the ingestion, injection, inhalation, or other introduction into the human body of a
285 controlled substance or other substance;
286 (ii) reports in good faith the overdose event to a medical provider, an emergency
287 medical service provider as defined in Section 26-8a-102, a law enforcement officer, a 911
288 emergency call system, or an emergency dispatch system, or the person is the subject of a
289 report made under this Subsection (16);
290 (iii) provides in the report under Subsection (16)(a)(ii) a functional description of the
291 actual location of the overdose event that facilitates responding to the person experiencing the
292 overdose event;
293 (iv) remains at the location of the person experiencing the overdose event until a
294 responding law enforcement officer or emergency medical service provider arrives, or remains
295 at the medical care facility where the person experiencing an overdose event is located until a
296 responding law enforcement officer arrives;
297 (v) cooperates with the responding medical provider, emergency medical service
298 provider, and law enforcement officer, including providing information regarding the person
299 experiencing the overdose event and any substances the person may have injected, inhaled, or
300 otherwise introduced into the person's body; and
301 (vi) is alleged to have committed the offense in the same course of events from which
302 the reported overdose arose.
303 (b) The offenses referred to in Subsection (16)(a) are:
304 (i) the possession or use of less than 16 ounces of marijuana;
305 (ii) the possession or use of a scheduled or listed controlled substance other than
306 marijuana; and
307 (iii) any violation of Chapter 37a, Utah Drug Paraphernalia Act, or Chapter 37b,
308 Imitation Controlled Substances Act.
309 (c) As used in this Subsection (16) and in Section 76-3-203.11, "good faith" does not
310 include seeking medical assistance under this section during the course of a law enforcement
311 agency's execution of a search warrant, execution of an arrest warrant, or other lawful search.
312 (17) If any provision of this chapter, or the application of any provision to any person
313 or circumstances, is held invalid, the remainder of this chapter shall be given effect without the
314 invalid provision or application.
315 (18) A legislative body of a political subdivision may not enact an ordinance that is
316 less restrictive than any provision of this chapter.
317 (19) If a minor who is under 18 years of age is found by a court to have violated this
318 section, the court may order:
319 (a) the minor to complete a screening as defined in Section 41-6a-501;
320 (b) the minor to complete an assessment as defined in Section 41-6a-501 if the
321 screening indicates an assessment to be appropriate; and
322 (c) the minor to complete an educational series as defined in Section 41-6a-501 or
323 substance use disorder treatment as indicated by an assessment.