1     
DRUG PARAPHERNALIA PENALTY AMENDMENTS

2     
2019 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Stephanie Pitcher

5     
Senate Sponsor: Todd Weiler

6     

7     LONG TITLE
8     General Description:
9          This bill addresses drug paraphernalia.
10     Highlighted Provisions:
11          This bill:
12          ▸     removes certain enhancements for offenses related to drug paraphernalia; and
13          ▸     makes technical changes.
14     Money Appropriated in this Bill:
15          None
16     Other Special Clauses:
17          None
18     Utah Code Sections Affected:
19     AMENDS:
20          58-37-8, as last amended by Laws of Utah 2017, Chapter 330
21     

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