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7 LONG TITLE
8 General Description:
9 This bill changes the enhancements for possession of a controlled substance and
10 property crimes.
11 Highlighted Provisions:
12 This bill:
13 ▸ limits the enhancement for multiple possessions of a controlled substance to within
14 seven years of the previous conviction or commission of the offense; and
15 ▸ reduces the enhancement time period for property crimes from ten years to seven.
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 76-6-412, as last amended by Laws of Utah 2019, Chapters 136, 189, and 309
24
25 Be it enacted by the Legislature of the state of Utah:
26 Section 1. Section 58-37-8 is amended to read:
27 58-37-8. Prohibited acts -- Penalties.
28 (1) Prohibited acts A -- Penalties and reporting:
29 (a) Except as authorized by this chapter, it is unlawful for a person to knowingly and
30 intentionally:
31 (i) produce, manufacture, or dispense, or to possess with intent to produce,
32 manufacture, or dispense, a controlled or counterfeit substance;
33 (ii) distribute a controlled or counterfeit substance, or to agree, consent, offer, or
34 arrange to distribute a controlled or counterfeit substance;
35 (iii) possess a controlled or counterfeit substance with intent to distribute; or
36 (iv) engage in a continuing criminal enterprise where:
37 (A) the person participates, directs, or engages in conduct that results in a violation of
38 Chapters 37, Utah Controlled Substances Act, 37a, Utah Drug Paraphernalia Act, 37b,
39 Imitation Controlled Substances Act, 37c, Utah Controlled Substance Precursor Act, or 37d,
40 Clandestine Drug Lab Act, that is a felony; and
41 (B) the violation is a part of a continuing series of two or more violations of Chapters
42 37, Utah Controlled Substances Act, 37a, Utah Drug Paraphernalia Act, 37b, Imitation
43 Controlled Substances Act, 37c, Utah Controlled Substance Precursor Act, or 37d, Clandestine
44 Drug Lab Act, on separate occasions that are undertaken in concert with five or more persons
45 with respect to whom the person occupies a position of organizer, supervisor, or any other
46 position of management.
47 (b) A person convicted of violating Subsection (1)(a) with respect to:
48 (i) a substance or a counterfeit of a substance classified in Schedule I or II, a controlled
49 substance analog, or gammahydroxybutyric acid as listed in Schedule III is guilty of a second
50 degree felony, punishable by imprisonment for not more than 15 years, and upon a second or
51 subsequent conviction is guilty of a first degree felony;
52 (ii) a substance or a counterfeit of a substance classified in Schedule III or IV, or
53 marijuana, or a substance listed in Section 58-37-4.2 is guilty of a third degree felony, and
54 upon a second or subsequent conviction is guilty of a second degree felony; or
55 (iii) a substance or a counterfeit of a substance classified in Schedule V is guilty of a
56 class A misdemeanor and upon a second or subsequent conviction is guilty of a third degree
57 felony.
58 (c) A person who has been convicted of a violation of Subsection (1)(a)(ii) or (iii) may
59 be sentenced to imprisonment for an indeterminate term as provided by law, but if the trier of
60 fact finds a firearm as defined in Section 76-10-501 was used, carried, or possessed on the
61 person or in the person's immediate possession during the commission or in furtherance of the
62 offense, the court shall additionally sentence the person convicted for a term of one year to run
63 consecutively and not concurrently; and the court may additionally sentence the person
64 convicted for an indeterminate term not to exceed five years to run consecutively and not
65 concurrently.
66 (d) A person convicted of violating Subsection (1)(a)(iv) is guilty of a first degree
67 felony punishable by imprisonment for an indeterminate term of not less than seven years and
68 which may be for life. Imposition or execution of the sentence may not be suspended, and the
69 person is not eligible for probation.
70 (e) The Administrative Office of the Courts shall report to the Division of
71 Occupational and Professional Licensing the name, case number, date of conviction, and if
72 known, the date of birth of each person convicted of violating Subsection (1)(a).
73 (2) Prohibited acts B -- Penalties and reporting:
74 (a) It is unlawful:
75 (i) for a person knowingly and intentionally to possess or use a controlled substance
76 analog or a controlled substance, unless it was obtained under a valid prescription or order,
77 directly from a practitioner while acting in the course of the person's professional practice, or as
78 otherwise authorized by this chapter;
79 (ii) for an owner, tenant, licensee, or person in control of a building, room, tenement,
80 vehicle, boat, aircraft, or other place knowingly and intentionally to permit them to be occupied
81 by persons unlawfully possessing, using, or distributing controlled substances in any of those
82 locations; or
83 (iii) for a person knowingly and intentionally to possess an altered or forged
84 prescription or written order for a controlled substance.
85 (b) A person convicted of violating Subsection (2)(a)(i) with respect to:
86 (i) marijuana, if the amount is 100 pounds or more, is guilty of a second degree felony;
87 or
88 (ii) a substance classified in Schedule I or II, or a controlled substance analog, is guilty
89 of a class A misdemeanor on a first or second conviction, and on a third or subsequent
90 conviction if each prior offense was committed within seven years before the date of the
91 current conviction or the date of the offense upon which the current conviction is based is
92 guilty of a third degree felony.
93 (c) Upon a person's conviction of a violation of this Subsection (2) subsequent to a
94 conviction under Subsection (1)(a), that person shall be sentenced to a one degree greater
95 penalty than provided in this Subsection (2).
96 (d) A person who violates Subsection (2)(a)(i) with respect to all other controlled
97 substances not included in Subsection (2)(b)(i) or (ii), including a substance listed in Section
98 58-37-4.2, or marijuana, is guilty of a class B misdemeanor. Upon a third conviction the
99 person is guilty of a class A misdemeanor, and upon a fourth or subsequent conviction within
100 seven years of the date of the previous conviction or the date of the offense upon which the
101 current conviction is based the person is guilty of a third degree felony.
102 (e) A person convicted of violating Subsection (2)(a)(i) while inside the exterior
103 boundaries of property occupied by a correctional facility as defined in Section 64-13-1 or a
104 public jail or other place of confinement shall be sentenced to a penalty one degree greater than
105 provided in Subsection (2)(b), and if the conviction is with respect to controlled substances as
106 listed in:
107 (i) Subsection (2)(b), the person may be sentenced to imprisonment for an
108 indeterminate term as provided by law, and:
109 (A) the court shall additionally sentence the person convicted to a term of one year to
110 run consecutively and not concurrently; and
111 (B) the court may additionally sentence the person convicted for an indeterminate term
112 not to exceed five years to run consecutively and not concurrently; and
113 (ii) Subsection (2)(d), the person may be sentenced to imprisonment for an
114 indeterminate term as provided by law, and the court shall additionally sentence the person
115 convicted to a term of six months to run consecutively and not concurrently.
116 (f) A person convicted of violating Subsection (2)(a)(ii) or (iii) is:
117 (i) on a first conviction, guilty of a class B misdemeanor;
118 (ii) on a second conviction, guilty of a class A misdemeanor; and
119 (iii) on a third or subsequent conviction, guilty of a third degree felony.
120 (g) A person is subject to the penalties under Subsection (2)(h) who, in an offense not
121 amounting to a violation of Section 76-5-207:
122 (i) violates Subsection (2)(a)(i) by knowingly and intentionally having in the person's
123 body any measurable amount of a controlled substance; and
124 (ii) operates a motor vehicle as defined in Section 76-5-207 in a negligent manner,
125 causing serious bodily injury as defined in Section 76-1-601 or the death of another.
126 (h) A person who violates Subsection (2)(g) by having in the person's body:
127 (i) a controlled substance classified under Schedule I, other than those described in
128 Subsection (2)(h)(ii), or a controlled substance classified under Schedule II is guilty of a second
129 degree felony;
130 (ii) marijuana, tetrahydrocannabinols, or equivalents described in Subsection
131 58-37-4(2)(a)(iii)(S) or (AA), or a substance listed in Section 58-37-4.2 is guilty of a third
132 degree felony; or
133 (iii) a controlled substance classified under Schedules III, IV, or V is guilty of a class A
134 misdemeanor.
135 (i) A person is guilty of a separate offense for each victim suffering serious bodily
136 injury or death as a result of the person's negligent driving in violation of Subsection(2)(g)
137 whether or not the injuries arise from the same episode of driving.
138 (j) The Administrative Office of the Courts shall report to the Division of Occupational
139 and Professional Licensing the name, case number, date of conviction, and if known, the date
140 of birth of each person convicted of violating Subsection (2)(a).
141 (3) Prohibited acts C -- Penalties:
142 (a) It is unlawful for a person knowingly and intentionally:
143 (i) to use in the course of the manufacture or distribution of a controlled substance a
144 license number which is fictitious, revoked, suspended, or issued to another person or, for the
145 purpose of obtaining a controlled substance, to assume the title of, or represent oneself to be, a
146 manufacturer, wholesaler, apothecary, physician, dentist, veterinarian, or other authorized
147 person;
148 (ii) to acquire or obtain possession of, to procure or attempt to procure the
149 administration of, to obtain a prescription for, to prescribe or dispense to a person known to be
150 attempting to acquire or obtain possession of, or to procure the administration of a controlled
151 substance by misrepresentation or failure by the person to disclose receiving a controlled
152 substance from another source, fraud, forgery, deception, subterfuge, alteration of a
153 prescription or written order for a controlled substance, or the use of a false name or address;
154 (iii) to make a false or forged prescription or written order for a controlled substance,
155 or to utter the same, or to alter a prescription or written order issued or written under the terms
156 of this chapter; or
157 (iv) to make, distribute, or possess a punch, die, plate, stone, or other thing designed to
158 print, imprint, or reproduce the trademark, trade name, or other identifying mark, imprint, or
159 device of another or any likeness of any of the foregoing upon any drug or container or labeling
160 so as to render a drug a counterfeit controlled substance.
161 (b) (i) A first or second conviction under Subsection (3)(a)(i), (ii), or (iii) is a class A
162 misdemeanor.
163 (ii) A third or subsequent conviction under Subsection (3)(a)(i), (ii), or (iii) is a third
164 degree felony.
165 (c) A violation of Subsection (3)(a)(iv) is a third degree felony.
166 (4) Prohibited acts D -- Penalties:
167 (a) Notwithstanding other provisions of this section, a person not authorized under this
168 chapter who commits any act that is unlawful under Subsection (1)(a) or Section 58-37b-4 is
169 upon conviction subject to the penalties and classifications under this Subsection (4) if the trier
170 of fact finds the act is committed:
171 (i) in a public or private elementary or secondary school or on the grounds of any of
172 those schools during the hours of 6 a.m. through 10 p.m.;
173 (ii) in a public or private vocational school or postsecondary institution or on the
174 grounds of any of those schools or institutions during the hours of 6 a.m. through 10 p.m.;
175 (iii) in or on the grounds of a preschool or child-care facility during the preschool's or
176 facility's hours of operation;
177 (iv) in a public park, amusement park, arcade, or recreation center when the public or
178 amusement park, arcade, or recreation center is open to the public;
179 (v) in or on the grounds of a house of worship as defined in Section 76-10-501;
180 (vi) in or on the grounds of a library when the library is open to the public;
181 (vii) within an area that is within 100 feet of any structure, facility, or grounds included
182 in Subsections (4)(a)(i), (ii), (iii), (iv), (v), and (vi);
183 (viii) in the presence of a person younger than 18 years of age, regardless of where the
184 act occurs; or
185 (ix) for the purpose of facilitating, arranging, or causing the transport, delivery, or
186 distribution of a substance in violation of this section to an inmate or on the grounds of a
187 correctional facility as defined in Section 76-8-311.3.
188 (b) (i) A person convicted under this Subsection (4) is guilty of a first degree felony
189 and shall be imprisoned for a term of not less than five years if the penalty that would
190 otherwise have been established but for this Subsection (4) would have been a first degree
191 felony.
192 (ii) Imposition or execution of the sentence may not be suspended, and the person is
193 not eligible for probation.
194 (c) If the classification that would otherwise have been established would have been
195 less than a first degree felony but for this Subsection (4), a person convicted under this
196 Subsection (4) is guilty of one degree more than the maximum penalty prescribed for that
197 offense. This Subsection (4)(c) does not apply to a violation of Subsection (2)(g).
198 (d) (i) If the violation is of Subsection (4)(a)(ix):
199 (A) the person may be sentenced to imprisonment for an indeterminate term as
200 provided by law, and the court shall additionally sentence the person convicted for a term of
201 one year to run consecutively and not concurrently; and
202 (B) the court may additionally sentence the person convicted for an indeterminate term
203 not to exceed five years to run consecutively and not concurrently; and
204 (ii) the penalties under this Subsection (4)(d) apply also to a person who, acting with
205 the mental state required for the commission of an offense, directly or indirectly solicits,
206 requests, commands, coerces, encourages, or intentionally aids another person to commit a
207 violation of Subsection (4)(a)(ix).
208 (e) It is not a defense to a prosecution under this Subsection (4) that:
209 (i) the actor mistakenly believed the individual to be 18 years of age or older at the
210 time of the offense or was unaware of the individual's true age; or
211 (ii) the actor mistakenly believed that the location where the act occurred was not as
212 described in Subsection (4)(a) or was unaware that the location where the act occurred was as
213 described in Subsection (4)(a).
214 (5) A violation of this chapter for which no penalty is specified is a class B
215 misdemeanor.
216 (6) (a) For purposes of penalty enhancement under Subsections (1) and (2), a plea of
217 guilty or no contest to a violation or attempted violation of this section or a plea which is held
218 in abeyance under Title 77, Chapter 2a, Pleas in Abeyance, is the equivalent of a conviction,
219 even if the charge has been subsequently reduced or dismissed in accordance with the plea in
220 abeyance agreement.
221 (b) A prior conviction used for a penalty enhancement under Subsection (2) shall be a
222 conviction that is:
223 (i) from a separate criminal episode than the current charge; and
224 (ii) from a conviction that is separate from any other conviction used to enhance the
225 current charge.
226 (7) A person may be charged and sentenced for a violation of this section,
227 notwithstanding a charge and sentence for a violation of any other section of this chapter.
228 (8) (a) A penalty imposed for violation of this section is in addition to, and not in lieu
229 of, a civil or administrative penalty or sanction authorized by law.
230 (b) When a violation of this chapter violates a federal law or the law of another state,
231 conviction or acquittal under federal law or the law of another state for the same act is a bar to
232 prosecution in this state.
233 (9) In any prosecution for a violation of this chapter, evidence or proof that shows a
234 person or persons produced, manufactured, possessed, distributed, or dispensed a controlled
235 substance or substances, is prima facie evidence that the person or persons did so with
236 knowledge of the character of the substance or substances.
237 (10) This section does not prohibit a veterinarian, in good faith and in the course of the
238 veterinarian's professional practice only and not for humans, from prescribing, dispensing, or
239 administering controlled substances or from causing the substances to be administered by an
240 assistant or orderly under the veterinarian's direction and supervision.
241 (11) Civil or criminal liability may not be imposed under this section on:
242 (a) a person registered under this chapter who manufactures, distributes, or possesses
243 an imitation controlled substance for use as a placebo or investigational new drug by a
244 registered practitioner in the ordinary course of professional practice or research; or
245 (b) a law enforcement officer acting in the course and legitimate scope of the officer's
246 employment.
247 (12) (a) Civil or criminal liability may not be imposed under this section on any Indian,
248 as defined in Section 58-37-2, who uses, possesses, or transports peyote for bona fide
249 traditional ceremonial purposes in connection with the practice of a traditional Indian religion
250 as defined in Section 58-37-2.
251 (b) In a prosecution alleging violation of this section regarding peyote as defined in
252 Section 58-37-4, it is an affirmative defense that the peyote was used, possessed, or transported
253 by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a
254 traditional Indian religion.
255 (c) (i) The defendant shall provide written notice of intent to claim an affirmative
256 defense under this Subsection (12) as soon as practicable, but not later than 10 days before
257 trial.
258 (ii) The notice shall include the specific claims of the affirmative defense.
259 (iii) The court may waive the notice requirement in the interest of justice for good
260 cause shown, if the prosecutor is not unfairly prejudiced by the lack of timely notice.
261 (d) The defendant shall establish the affirmative defense under this Subsection (12) by
262 a preponderance of the evidence. If the defense is established, it is a complete defense to the
263 charges.
264 (13) (a) It is an affirmative defense that the person produced, possessed, or
265 administered a controlled substance listed in Section 58-37-4.2 if the person was:
266 (i) engaged in medical research; and
267 (ii) a holder of a valid license to possess controlled substances under Section 58-37-6.
268 (b) It is not a defense under Subsection (13)(a) that the person prescribed or dispensed
269 a controlled substance listed in Section 58-37-4.2.
270 (14) It is an affirmative defense that the person possessed, in the person's body, a
271 controlled substance listed in Section 58-37-4.2 if:
272 (a) the person was the subject of medical research conducted by a holder of a valid
273 license to possess controlled substances under Section 58-37-6; and
274 (b) the substance was administered to the person by the medical researcher.
275 (15) The application of any increase in penalty under this section to a violation of
276 Subsection (2)(a)(i) may not result in any greater penalty than a second degree felony. This
277 Subsection (15) takes precedence over any conflicting provision of this section.
278 (16) (a) It is an affirmative defense to an allegation of the commission of an offense
279 listed in Subsection (16)(b) that the person:
280 (i) reasonably believes that the person or another person is experiencing an overdose
281 event due to the ingestion, injection, inhalation, or other introduction into the human body of a
282 controlled substance or other substance;
283 (ii) reports in good faith the overdose event to a medical provider, an emergency
284 medical service provider as defined in Section 26-8a-102, a law enforcement officer, a 911
285 emergency call system, or an emergency dispatch system, or the person is the subject of a
286 report made under this Subsection (16);
287 (iii) provides in the report under Subsection (16)(a)(ii) a functional description of the
288 actual location of the overdose event that facilitates responding to the person experiencing the
289 overdose event;
290 (iv) remains at the location of the person experiencing the overdose event until a
291 responding law enforcement officer or emergency medical service provider arrives, or remains
292 at the medical care facility where the person experiencing an overdose event is located until a
293 responding law enforcement officer arrives;
294 (v) cooperates with the responding medical provider, emergency medical service
295 provider, and law enforcement officer, including providing information regarding the person
296 experiencing the overdose event and any substances the person may have injected, inhaled, or
297 otherwise introduced into the person's body; and
298 (vi) is alleged to have committed the offense in the same course of events from which
299 the reported overdose arose.
300 (b) The offenses referred to in Subsection (16)(a) are:
301 (i) the possession or use of less than 16 ounces of marijuana;
302 (ii) the possession or use of a scheduled or listed controlled substance other than
303 marijuana; and
304 (iii) any violation of Chapter 37a, Utah Drug Paraphernalia Act, or Chapter 37b,
305 Imitation Controlled Substances Act.
306 (c) As used in this Subsection (16) and in Section 76-3-203.11, "good faith" does not
307 include seeking medical assistance under this section during the course of a law enforcement
308 agency's execution of a search warrant, execution of an arrest warrant, or other lawful search.
309 (17) If any provision of this chapter, or the application of any provision to any person
310 or circumstances, is held invalid, the remainder of this chapter shall be given effect without the
311 invalid provision or application.
312 (18) A legislative body of a political subdivision may not enact an ordinance that is
313 less restrictive than any provision of this chapter.
314 (19) If a minor who is under 18 years of age is found by a court to have violated this
315 section, the court may order the minor to complete:
316 (a) a screening as defined in Section 41-6a-501;
317 (b) an assessment as defined in Section 41-6a-501 if the screening indicates an
318 assessment to be appropriate; and
319 (c) an educational series as defined in Section 41-6a-501 or substance use disorder
320 treatment as indicated by an assessment.
321 Section 2. Section 76-6-412 is amended to read:
322 76-6-412. Theft -- Classification of offenses -- Action for treble damages.
323 (1) Theft of property and services as provided in this chapter is punishable:
324 (a) as a second degree felony if the:
325 (i) value of the property or services is or exceeds $5,000;
326 (ii) property stolen is a firearm or an operable motor vehicle; or
327 (iii) property is stolen from the person of another;
328 (b) as a third degree felony if:
329 (i) the value of the property or services is or exceeds $1,500 but is less than $5,000;
330 (ii) the value of the property or services is or exceeds $500 and the actor has been twice
331 before convicted of any of the following offenses, if each prior offense was committed within
332 [
333 the current conviction is based and at least one of those convictions is for a class A
334 misdemeanor:
335 (A) any theft, any robbery, or any burglary with intent to commit theft;
336 (B) any offense under Title 76, Chapter 6, Part 5, Fraud; or
337 (C) any attempt to commit any offense under Subsection (1)(b)(ii)(A) or (B);
338 (iii) (A) the value of property or services is or exceeds $500 but is less than $1,500;
339 (B) the theft occurs on a property where the offender has committed any theft within
340 the past five years; and
341 (C) the offender has received written notice from the merchant prohibiting the offender
342 from entering the property pursuant to Subsection 78B-3-108(4); or
343 (iv) the actor has been previously convicted of a felony violation of any of the offenses
344 listed in Subsections (1)(b)(ii)(A) through (1)(b)(ii)(C), if the prior offense was committed
345 within [
346 which the current conviction is based;
347 (c) as a class A misdemeanor if:
348 (i) the value of the property stolen is or exceeds $500 but is less than $1,500;
349 (ii) (A) the value of property or services is less than $500;
350 (B) the theft occurs on a property where the offender has committed any theft within
351 the past five years; and
352 (C) the offender has received written notice from the merchant prohibiting the offender
353 from entering the property pursuant to Subsection 78B-3-108(4); or
354 (iii) the actor has been twice before convicted of any of the offenses listed in
355 Subsections (1)(b)(ii)(A) through (1)(b)(ii)(C), if each prior offense was committed within 10
356 years before the date of the current conviction or the date of the offense upon which the current
357 conviction is based; or
358 (d) as a class B misdemeanor if the value of the property stolen is less than $500 and
359 the theft is not an offense under Subsection (1)(c).
360 (2) Any individual who violates Subsection 76-6-408(2) or 76-6-413(1), or commits
361 theft of a stallion, mare, colt, gelding, cow, heifer, steer, ox, bull, calf, sheep, goat, mule, jack,
362 jenny, swine, poultry, or a fur-bearing animal raised for commercial purposes, is civilly liable
363 for three times the amount of actual damages, if any sustained by the plaintiff, and for costs of
364 suit and reasonable attorney fees.