1     
DRUG POSSESSION PENALTY AMENDMENTS

2     
2023 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Gay Lynn Bennion

5     
Senate Sponsor: Todd D. Weiler

6     

7     LONG TITLE
8     Committee Note:
9          The Law Enforcement and Criminal Justice Interim Committee recommended this bill.
10               Legislative Vote:     14 voting for     0 voting against     3 absent
11     General Description:
12          This bill amends provisions relating to the possession of a weapon.
13     Highlighted Provisions:
14          This bill:
15          ▸     amends the definition of a restricted person in possession of a dangerous weapon
16     and a controlled substance; and
17          ▸     reduces the penalty, in certain circumstances, for a restricted person in possession of
18     marijuana.
19     Money Appropriated in this Bill:
20          None
21     Other Special Clauses:
22          None
23     Utah Code Sections Affected:
24     AMENDS:
25          76-10-503, as last amended by Laws of Utah 2021, Chapter 262
26     

27     Be it enacted by the Legislature of the state of Utah:

28          Section 1. Section 76-10-503 is amended to read:
29          76-10-503. Restrictions on possession, purchase, transfer, and ownership of
30     dangerous weapons by certain persons -- Exceptions.
31          (1) For purposes of this section:
32          (a) A Category I restricted person is a person who:
33          (i) has been convicted of any violent felony as defined in Section 76-3-203.5;
34          (ii) is on probation or parole for any felony;
35          (iii) is on parole from secure care, as defined in Section 80-1-102;
36          (iv) within the last 10 years has been adjudicated under Section 80-6-701 for an offense
37     which if committed by an adult would have been a violent felony as defined in Section
38     76-3-203.5;
39          (v) is an alien who is illegally or unlawfully in the United States; or
40          (vi) is on probation for a conviction of possessing:
41          (A) a substance classified in Section 58-37-4 as a Schedule I or II controlled substance;
42          (B) a controlled substance analog; or
43          (C) a substance listed in Section 58-37-4.2.
44          (b) A Category II restricted person is a person who:
45          (i) has been convicted of any felony;
46          (ii) within the last seven years has been adjudicated delinquent for an offense which if
47     committed by an adult would have been a felony;
48          (iii) is an unlawful user of a controlled substance as defined in Section 58-37-2;
49          (iv) [is in possession of ] knowingly or intentionally:
50          (A) possesses a dangerous weapon; and
51          (B) [is knowingly and intentionally in unlawful possession of a] possesses an unlawful
52     Schedule I or II controlled substance as defined in Section 58-37-2;
53          (v) has been found not guilty by reason of insanity for a felony offense;
54          (vi) has been found mentally incompetent to stand trial for a felony offense;
55          (vii) has been adjudicated as mentally defective as provided in the Brady Handgun
56     Violence Prevention Act, Pub. L. No. 103-159, 107 Stat. 1536 (1993), or has been committed
57     to a mental institution;
58          (viii) has been dishonorably discharged from the armed forces;

59          (ix) has renounced the individual's citizenship after having been a citizen of the United
60     States;
61          (x) is a respondent or defendant subject to a protective order or child protective order
62     that is issued after a hearing for which the respondent or defendant received actual notice and at
63     which the respondent or defendant has an opportunity to participate, that restrains the
64     respondent or defendant from harassing, stalking, threatening, or engaging in other conduct that
65     would place an intimate partner, as defined in 18 U.S.C. Sec. 921, or a child of the intimate
66     partner, in reasonable fear of bodily injury to the intimate partner or child of the intimate
67     partner, and that:
68          (A) includes a finding that the respondent or defendant represents a credible threat to
69     the physical safety of an individual who meets the definition of an intimate partner in 18 U.S.C.
70     Sec. 921 or the child of the individual; or
71          (B) explicitly prohibits the use, attempted use, or threatened use of physical force that
72     would reasonably be expected to cause bodily harm against an intimate partner or the child of
73     an intimate partner; or
74          (xi) has been convicted of the commission or attempted commission of assault under
75     Section 76-5-102 or aggravated assault under Section 76-5-103 against a current or former
76     spouse, parent, guardian, individual with whom the restricted person shares a child in common,
77     individual who is cohabitating or has cohabitated with the restricted person as a spouse, parent,
78     or guardian, or against an individual similarly situated to a spouse, parent, or guardian of the
79     restricted person.
80          (c) As used in this section, a conviction of a felony or adjudication of delinquency for
81     an offense which would be a felony if committed by an adult does not include:
82          (i) a conviction or an adjudication under Section 80-6-701 for an offense pertaining to
83     antitrust violations, unfair trade practices, restraint of trade, or other similar offenses relating to
84     the regulation of business practices not involving theft or fraud; or
85          (ii) a conviction or an adjudication under Section 80-6-701 which, according to the law
86     of the jurisdiction in which it occurred, has been expunged, set aside, reduced to a
87     misdemeanor by court order, pardoned or regarding which the person's civil rights have been
88     restored unless the pardon, reduction, expungement, or restoration of civil rights expressly
89     provides that the person may not ship, transport, possess, or receive firearms.

90          (d) It is the burden of the defendant in a criminal case to provide evidence that a
91     conviction or an adjudication under Section 80-6-701 is subject to an exception provided in
92     Subsection (1)(c), after which it is the burden of the state to prove beyond a reasonable doubt
93     that the conviction or the adjudication is not subject to that exception.
94          (2) A Category I restricted person who intentionally or knowingly agrees, consents,
95     offers, or arranges to purchase, transfer, possess, use, or have under the person's custody or
96     control, or who intentionally or knowingly purchases, transfers, possesses, uses, or has under
97     the person's custody or control:
98          (a) any firearm is guilty of a second degree felony; or
99          (b) any dangerous weapon other than a firearm is guilty of a third degree felony.
100          (3) A Category II restricted person who intentionally or knowingly purchases, transfers,
101     possesses, uses, or has under the person's custody or control any firearm, is guilty of:
102          (a) [any firearm is guilty of] a third degree felony; or
103          (b) a class A misdemeanor if:
104          (i) the person is a Category II restricted person solely due to Subsection (1)(b)(iv);
105          (ii) the only controlled substance unlawfully in the restricted person's possession is
106     marijuana;
107          (iii) the restricted person does not unlawfully possess any marijuana with the intent to
108     produce, manufacture, or dispense the marijuana; and
109          (iv) the restricted person does not unlawfully have a controlled substance in the
110     restricted person's body, except 11-nor-9-carboxy-tetrahydrocannabinol.
111          [(b)] (4) A Category II restricted person who intentionally or knowingly purchases,
112     transfers, possesses, uses, or has under the person's custody or control any dangerous weapon
113     other than a firearm is guilty of a class A misdemeanor.
114          [(4)] (5) A person may be subject to the restrictions of both categories at the same time.
115          [(5)] (6) If a higher penalty than is prescribed in this section is provided in another
116     section for one who purchases, transfers, possesses, uses, or has under this custody or control
117     any dangerous weapon, the penalties of that section control.
118          [(6)] (7) It is an affirmative defense to a charge based on the definition in Subsection
119     (1)(b)(iv) that the person was:
120          (a) in possession of a controlled substance pursuant to a lawful order of a practitioner

121     for use of a member of the person's household or for administration to an animal owned by the
122     person or a member of the person's household; or
123          (b) otherwise authorized by law to possess the substance.
124          [(7)] (8) (a) It is an affirmative defense to transferring a firearm or other dangerous
125     weapon by a person restricted under Subsection (2) or (3) that the firearm or dangerous
126     weapon:
127          (i) was possessed by the person or was under the person's custody or control before the
128     person became a restricted person;
129          (ii) was not used in or possessed during the commission of a crime or subject to
130     disposition under Section 24-3-103;
131          (iii) is not being held as evidence by a court or law enforcement agency;
132          (iv) was transferred to a person not legally prohibited from possessing the weapon; and
133          (v) unless a different time is ordered by the court, was transferred within 10 days of the
134     person becoming a restricted person.
135          (b) Subsection [(7)(a)] (8)(a) is not a defense to the use, purchase, or possession on the
136     person of a firearm or other dangerous weapon by a restricted person.
137          [(8)] (9) (a) A person may not sell, transfer, or otherwise dispose of any firearm or
138     dangerous weapon to any person, knowing that the recipient is a person described in
139     Subsection (1)(a) or (b).
140          (b) A person who violates Subsection [(8)(a)] (9)(a) when the recipient is:
141          (i) a person described in Subsection (1)(a) and the transaction involves a firearm, is
142     guilty of a second degree felony;
143          (ii) a person described in Subsection (1)(a) and the transaction involves any dangerous
144     weapon other than a firearm, and the transferor has knowledge that the recipient intends to use
145     the weapon for any unlawful purpose, is guilty of a third degree felony;
146          (iii) a person described in Subsection (1)(b) and the transaction involves a firearm, is
147     guilty of a third degree felony; or
148          (iv) a person described in Subsection (1)(b) and the transaction involves any dangerous
149     weapon other than a firearm, and the transferor has knowledge that the recipient intends to use
150     the weapon for any unlawful purpose, is guilty of a class A misdemeanor.
151          [(9)] (10) (a) A person may not knowingly solicit, persuade, encourage or entice a

152     dealer or other person to sell, transfer or otherwise dispose of a firearm or dangerous weapon
153     under circumstances which the person knows would be a violation of the law.
154          (b) A person may not provide to a dealer or other person any information that the
155     person knows to be materially false information with intent to deceive the dealer or other
156     person about the legality of a sale, transfer or other disposition of a firearm or dangerous
157     weapon.
158          (c) "Materially false information" means information that portrays an illegal transaction
159     as legal or a legal transaction as illegal.
160          (d) A person who violates this Subsection [(9)] (10) is guilty of:
161          (i) a third degree felony if the transaction involved a firearm; or
162          (ii) a class A misdemeanor if the transaction involved a dangerous weapon other than a
163     firearm.