1     
CRIME ENHANCEMENT AMENDMENTS

2     
2020 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Stephanie Pitcher

5     
Senate Sponsor: Todd Weiler

6     Cosponsor:
7     Melissa G. Ballard


8     

9     LONG TITLE
10     General Description:
11          This bill changes the enhancements for possession of a controlled substance.
12     Highlighted Provisions:
13          This bill:
14          ▸     limits the enhancement for multiple possessions of a controlled substance to within
15     seven years of the previous conviction or commission of the offense.
16     Money Appropriated in this Bill:
17          None
18     Other Special Clauses:
19          None
20     Utah Code Sections Affected:
21     AMENDS:
22          58-37-8, as last amended by Laws of Utah 2019, Chapter 58
23     

24     Be it enacted by the Legislature of the state of Utah:
25          Section 1. Section 58-37-8 is amended to read:
26          58-37-8. Prohibited acts -- Penalties.
27          (1) Prohibited acts A -- Penalties and reporting:
28          (a) Except as authorized by this chapter, it is unlawful for a person to knowingly and

29     intentionally:
30          (i) produce, manufacture, or dispense, or to possess with intent to produce,
31     manufacture, or dispense, a controlled or counterfeit substance;
32          (ii) distribute a controlled or counterfeit substance, or to agree, consent, offer, or
33     arrange to distribute a controlled or counterfeit substance;
34          (iii) possess a controlled or counterfeit substance with intent to distribute; or
35          (iv) engage in a continuing criminal enterprise where:
36          (A) the person participates, directs, or engages in conduct that results in a violation of
37     Chapters 37, Utah Controlled Substances Act, 37a, Utah Drug Paraphernalia Act, 37b,
38     Imitation Controlled Substances Act, 37c, Utah Controlled Substance Precursor Act, or 37d,
39     Clandestine Drug Lab Act, that is a felony; and
40          (B) the violation is a part of a continuing series of two or more violations of Chapters
41     37, Utah Controlled Substances Act, 37a, Utah Drug Paraphernalia Act, 37b, Imitation
42     Controlled Substances Act, 37c, Utah Controlled Substance Precursor Act, or 37d, Clandestine
43     Drug Lab Act, on separate occasions that are undertaken in concert with five or more persons
44     with respect to whom the person occupies a position of organizer, supervisor, or any other
45     position of management.
46          (b) A person convicted of violating Subsection (1)(a) with respect to:
47          (i) a substance or a counterfeit of a substance classified in Schedule I or II, a controlled
48     substance analog, or gammahydroxybutyric acid as listed in Schedule III is guilty of a second
49     degree felony, punishable by imprisonment for not more than 15 years, and upon a second or
50     subsequent conviction is guilty of a first degree felony;
51          (ii) a substance or a counterfeit of a substance classified in Schedule III or IV, or
52     marijuana, or a substance listed in Section 58-37-4.2 is guilty of a third degree felony, and
53     upon a second or subsequent conviction is guilty of a second degree felony; or
54          (iii) a substance or a counterfeit of a substance classified in Schedule V is guilty of a
55     class A misdemeanor and upon a second or subsequent conviction is guilty of a third degree
56     felony.

57          (c) A person who has been convicted of a violation of Subsection (1)(a)(ii) or (iii) may
58     be sentenced to imprisonment for an indeterminate term as provided by law, but if the trier of
59     fact finds a firearm as defined in Section 76-10-501 was used, carried, or possessed on the
60     person or in the person's immediate possession during the commission or in furtherance of the
61     offense, the court shall additionally sentence the person convicted for a term of one year to run
62     consecutively and not concurrently; and the court may additionally sentence the person
63     convicted for an indeterminate term not to exceed five years to run consecutively and not
64     concurrently.
65          (d) A person convicted of violating Subsection (1)(a)(iv) is guilty of a first degree
66     felony punishable by imprisonment for an indeterminate term of not less than seven years and
67     which may be for life. Imposition or execution of the sentence may not be suspended, and the
68     person is not eligible for probation.
69          (e) The Administrative Office of the Courts shall report to the Division of
70     Occupational and Professional Licensing the name, case number, date of conviction, and if
71     known, the date of birth of each person convicted of violating Subsection (1)(a).
72          (2) Prohibited acts B -- Penalties and reporting:
73          (a) It is unlawful:
74          (i) for a person knowingly and intentionally to possess or use a controlled substance
75     analog or a controlled substance, unless it was obtained under a valid prescription or order,
76     directly from a practitioner while acting in the course of the person's professional practice, or as
77     otherwise authorized by this chapter;
78          (ii) for an owner, tenant, licensee, or person in control of a building, room, tenement,
79     vehicle, boat, aircraft, or other place knowingly and intentionally to permit them to be occupied
80     by persons unlawfully possessing, using, or distributing controlled substances in any of those
81     locations; or
82          (iii) for a person knowingly and intentionally to possess an altered or forged
83     prescription or written order for a controlled substance.
84          (b) A person convicted of violating Subsection (2)(a)(i) with respect to:

85          (i) marijuana, if the amount is 100 pounds or more, is guilty of a second degree felony;
86     or
87          (ii) a substance classified in Schedule I or II, or a controlled substance analog, is guilty
88     of a class A misdemeanor on a first or second conviction, and on a third or subsequent
89     conviction if each prior offense was committed within seven years before the date of the
90     current conviction or the date of the offense upon which the current conviction is based is
91     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) A 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.
98          (i) Upon a third conviction the person is guilty of a class A misdemeanor, if each prior
99     offense was committed within seven years before the date of the current conviction or the date
100     of the offense upon which the current conviction is based. [and upon]
101          (ii) Upon a fourth or subsequent conviction the person is guilty of a third degree felony
102     if each prior offense was committed within seven years of the date of the current conviction or
103     the date of the offense upon which the current conviction is based [the person is guilty of a
104     third degree felony].
105          (e) A person convicted of violating Subsection (2)(a)(i) while inside the exterior
106     boundaries of property occupied by a correctional facility as defined in Section 64-13-1 or a
107     public jail or other place of confinement shall be sentenced to a penalty one degree greater than
108     provided in Subsection (2)(b), and if the conviction is with respect to controlled substances as
109     listed in:
110          (i) Subsection (2)(b), the person may be sentenced to imprisonment for an
111     indeterminate term as provided by law, and:
112          (A) the court shall additionally sentence the person convicted to a term of one year to

113     run consecutively and not concurrently; and
114          (B) the court may additionally sentence the person convicted for an indeterminate term
115     not to exceed five years to run consecutively and not concurrently; and
116          (ii) Subsection (2)(d), the person may be sentenced to imprisonment for an
117     indeterminate term as provided by law, and the court shall additionally sentence the person
118     convicted to a term of six months to run consecutively and not concurrently.
119          (f) A person convicted of violating Subsection (2)(a)(ii) or (iii) is:
120          (i) on a first conviction, guilty of a class B misdemeanor;
121          (ii) on a second conviction, guilty of a class A misdemeanor; and
122          (iii) on a third or subsequent conviction, guilty of a third degree felony.
123          (g) A person is subject to the penalties under Subsection (2)(h) who, in an offense not
124     amounting to a violation of Section 76-5-207:
125          (i) violates Subsection (2)(a)(i) by knowingly and intentionally having in the person's
126     body any measurable amount of a controlled substance; and
127          (ii) operates a motor vehicle as defined in Section 76-5-207 in a negligent manner,
128     causing serious bodily injury as defined in Section 76-1-601 or the death of another.
129          (h) A person who violates Subsection (2)(g) by having in the person's body:
130          (i) a controlled substance classified under Schedule I, other than those described in
131     Subsection (2)(h)(ii), or a controlled substance classified under Schedule II is guilty of a second
132     degree felony;
133          (ii) marijuana, tetrahydrocannabinols, or equivalents described in Subsection
134     58-37-4(2)(a)(iii)(S) or (AA), or a substance listed in Section 58-37-4.2 is guilty of a third
135     degree felony; or
136          (iii) a controlled substance classified under Schedules III, IV, or V is guilty of a class A
137     misdemeanor.
138          (i) A person is guilty of a separate offense for each victim suffering serious bodily
139     injury or death as a result of the person's negligent driving in violation of Subsection(2)(g)
140     whether or not the injuries arise from the same episode of driving.

141          (j) The Administrative Office of the Courts shall report to the Division of Occupational
142     and Professional Licensing the name, case number, date of conviction, and if known, the date
143     of birth of each person convicted of violating Subsection (2)(a).
144          (3) Prohibited acts C -- Penalties:
145          (a) It is unlawful for a person knowingly and intentionally:
146          (i) to use in the course of the manufacture or distribution of a controlled substance a
147     license number which is fictitious, revoked, suspended, or issued to another person or, for the
148     purpose of obtaining a controlled substance, to assume the title of, or represent oneself to be, a
149     manufacturer, wholesaler, apothecary, physician, dentist, veterinarian, or other authorized
150     person;
151          (ii) to acquire or obtain possession of, to procure or attempt to procure the
152     administration of, to obtain a prescription for, to prescribe or dispense to a person known to be
153     attempting to acquire or obtain possession of, or to procure the administration of a controlled
154     substance by misrepresentation or failure by the person to disclose receiving a controlled
155     substance from another source, fraud, forgery, deception, subterfuge, alteration of a
156     prescription or written order for a controlled substance, or the use of a false name or address;
157          (iii) to make a false or forged prescription or written order for a controlled substance,
158     or to utter the same, or to alter a prescription or written order issued or written under the terms
159     of this chapter; or
160          (iv) to make, distribute, or possess a punch, die, plate, stone, or other thing designed to
161     print, imprint, or reproduce the trademark, trade name, or other identifying mark, imprint, or
162     device of another or any likeness of any of the foregoing upon any drug or container or labeling
163     so as to render a drug a counterfeit controlled substance.
164          (b) (i) A first or second conviction under Subsection (3)(a)(i), (ii), or (iii) is a class A
165     misdemeanor.
166          (ii) A third or subsequent conviction under Subsection (3)(a)(i), (ii), or (iii) is a third
167     degree felony.
168          (c) A violation of Subsection (3)(a)(iv) is a third degree felony.

169          (4) Prohibited acts D -- Penalties:
170          (a) Notwithstanding other provisions of this section, a person not authorized under this
171     chapter who commits any act that is unlawful under Subsection (1)(a) or Section 58-37b-4 is
172     upon conviction subject to the penalties and classifications under this Subsection (4) if the trier
173     of fact finds the act is committed:
174          (i) in a public or private elementary or secondary school or on the grounds of any of
175     those schools during the hours of 6 a.m. through 10 p.m.;
176          (ii) in a public or private vocational school or postsecondary institution or on the
177     grounds of any of those schools or institutions during the hours of 6 a.m. through 10 p.m.;
178          (iii) in or on the grounds of a preschool or child-care facility during the preschool's or
179     facility's hours of operation;
180          (iv) in a public park, amusement park, arcade, or recreation center when the public or
181     amusement park, arcade, or recreation center is open to the public;
182          (v) in or on the grounds of a house of worship as defined in Section 76-10-501;
183          (vi) in or on the grounds of a library when the library is open to the public;
184          (vii) within an area that is within 100 feet of any structure, facility, or grounds included
185     in Subsections (4)(a)(i), (ii), (iii), (iv), (v), and (vi);
186          (viii) in the presence of a person younger than 18 years of age, regardless of where the
187     act occurs; or
188          (ix) for the purpose of facilitating, arranging, or causing the transport, delivery, or
189     distribution of a substance in violation of this section to an inmate or on the grounds of a
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)(ix):
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 a 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)(ix).
211          (e) It is not a defense to a prosecution under this Subsection (4) that:
212          (i) the actor mistakenly believed the individual to be 18 years of age or older at the
213     time of the offense or was unaware of the individual's true age; or
214          (ii) the actor mistakenly believed that the location where the act occurred was not as
215     described in Subsection (4)(a) or was unaware that the location where the act occurred was as
216     described in Subsection (4)(a).
217          (5) A violation of this chapter for which no penalty is specified is a class B
218     misdemeanor.
219          (6) (a) For purposes of penalty enhancement under Subsections (1) and (2), a plea of
220     guilty or no contest to a violation or attempted violation of this section or a plea which is held
221     in abeyance under Title 77, Chapter 2a, Pleas in Abeyance, is the equivalent of a conviction,
222     even if the charge has been subsequently reduced or dismissed in accordance with the plea in
223     abeyance agreement.
224          (b) A prior conviction used for a penalty enhancement under Subsection (2) shall be a

225     conviction that is:
226          (i) from a separate criminal episode than the current charge; and
227          (ii) from a conviction that is separate from any other conviction used to enhance the
228     current charge.
229          (7) A person may be charged and sentenced for a violation of this section,
230     notwithstanding a charge and sentence for a violation of any other section of this chapter.
231          (8) (a) A penalty imposed for violation of this section is in addition to, and not in lieu
232     of, a civil or administrative penalty or sanction authorized by law.
233          (b) When a violation of this chapter violates a federal law or the law of another state,
234     conviction or acquittal under federal law or the law of another state for the same act is a bar to
235     prosecution in this state.
236          (9) In any prosecution for a violation of this chapter, evidence or proof that shows a
237     person or persons produced, manufactured, possessed, distributed, or dispensed a controlled
238     substance or substances, is prima facie evidence that the person or persons did so with
239     knowledge of the character of the substance or substances.
240          (10) This section does not prohibit a veterinarian, in good faith and in the course of the
241     veterinarian's professional practice only and not for humans, from prescribing, dispensing, or
242     administering controlled substances or from causing the substances to be administered by an
243     assistant or orderly under the veterinarian's direction and supervision.
244          (11) Civil or criminal liability may not be imposed under this section on:
245          (a) a person registered under this chapter who manufactures, distributes, or possesses
246     an imitation controlled substance for use as a placebo or investigational new drug by a
247     registered practitioner in the ordinary course of professional practice or research; or
248          (b) a law enforcement officer acting in the course and legitimate scope of the officer's
249     employment.
250          (12) (a) Civil or criminal liability may not be imposed under this section on any Indian,
251     as defined in Section 58-37-2, who uses, possesses, or transports peyote for bona fide
252     traditional ceremonial purposes in connection with the practice of a traditional Indian religion

253     as defined in Section 58-37-2.
254          (b) In a prosecution alleging violation of this section regarding peyote as defined in
255     Section 58-37-4, it is an affirmative defense that the peyote was used, possessed, or transported
256     by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a
257     traditional Indian religion.
258          (c) (i) The defendant shall provide written notice of intent to claim an affirmative
259     defense under this Subsection (12) as soon as practicable, but not later than 10 days before
260     trial.
261          (ii) The notice shall include the specific claims of the affirmative defense.
262          (iii) The court may waive the notice requirement in the interest of justice for good
263     cause shown, if the prosecutor is not unfairly prejudiced by the lack of timely notice.
264          (d) The defendant shall establish the affirmative defense under this Subsection (12) by
265     a preponderance of the evidence. If the defense is established, it is a complete defense to the
266     charges.
267          (13) (a) It is an affirmative defense that the person produced, possessed, or
268     administered a controlled substance listed in Section 58-37-4.2 if the person was:
269          (i) engaged in medical research; and
270          (ii) a holder of a valid license to possess controlled substances under Section 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 the minor to complete:
319          (a) a screening as defined in Section 41-6a-501;
320          (b) an assessment as defined in Section 41-6a-501 if the screening indicates an
321     assessment to be appropriate; and
322          (c) an educational series as defined in Section 41-6a-501 or substance use disorder
323     treatment as indicated by an assessment.