1     
DRUG TESTING AND PARAPHERNALIA AMENDMENTS

2     
2023 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Jen Plumb

5     
House Sponsor: Steve Eliason

6     

7     LONG TITLE
8     General Description:
9          This bill concerns drug testing and paraphernalia.
10     Highlighted Provisions:
11          This bill:
12          ▸     creates an exemption from liability under the Utah Controlled Substances Act for
13     certain entities that temporarily possess a controlled or counterfeit substance in
14     order to conduct a test on the substance for a certain reason;
15          ▸     modifies the definition of "drug paraphernalia" to exclude certain testing products
16     or equipment; 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 2022, Chapters 116, 415 and 430
25          58-37a-3, as last amended by Laws of Utah 2011, Chapter 101
26     

27     Be it enacted by the Legislature of the state of Utah:
28          Section 1. Section 58-37-8 is amended to read:

29          58-37-8. Prohibited acts -- Penalties.
30          (1) Prohibited acts A -- Penalties and reporting:
31          (a) Except as authorized by this chapter, it is unlawful for a person to knowingly and
32     intentionally:
33          (i) produce, manufacture, or dispense, or to possess with intent to produce,
34     manufacture, or dispense, a controlled or counterfeit substance;
35          (ii) distribute a controlled or counterfeit substance, or to agree, consent, offer, or
36     arrange to distribute a controlled or counterfeit substance;
37          (iii) possess a controlled or counterfeit substance with intent to distribute; or
38          (iv) engage in a continuing criminal enterprise where:
39          (A) the person participates, directs, or engages in conduct that results in a violation of
40     [Chapter 37, Utah Controlled Substances Act] this chapter, Chapter 37a, Utah Drug
41     Paraphernalia Act, Chapter 37b, Imitation Controlled Substances Act, Chapter 37c, Utah
42     Controlled Substance Precursor Act, or Chapter 37d, Clandestine Drug Lab Act, that is a
43     felony; and
44          (B) the violation is a part of a continuing series of two or more violations of [Chapter
45     37, Utah Controlled Substances Act] this chapter, Chapter 37a, Utah Drug Paraphernalia Act,
46     Chapter 37b, Imitation Controlled Substances Act, Chapter 37c, Utah Controlled Substance
47     Precursor Act, or Chapter 37d, Clandestine Drug Lab Act, on separate occasions that are
48     undertaken in concert with five or more persons with respect to whom the person occupies a
49     position of organizer, supervisor, or any other position of management.
50          (b) A person convicted of violating Subsection (1)(a) with respect to:
51          (i) a substance or a counterfeit of a substance classified in Schedule I or II, a controlled
52     substance analog, or gammahydroxybutyric acid as listed in Schedule III is guilty of a second
53     degree felony, punishable by imprisonment for not more than 15 years, and upon a second or
54     subsequent conviction is guilty of a first degree felony;
55          (ii) a substance or a counterfeit of a substance classified in Schedule III or IV, or

56     marijuana, or a substance listed in Section 58-37-4.2 is guilty of a third degree felony, and
57     upon a second or subsequent conviction is guilty of a second degree felony; or
58          (iii) a substance or a counterfeit of a substance classified in Schedule V is guilty of a
59     class A misdemeanor and upon a second or subsequent conviction is guilty of a third degree
60     felony.
61          (c) A person who has been convicted of a violation of Subsection (1)(a)(ii) or (iii) may
62     be sentenced to imprisonment for an indeterminate term as provided by law, but if the trier of
63     fact finds a firearm as defined in Section 76-10-501 was used, carried, or possessed on the
64     person or in the person's immediate possession during the commission or in furtherance of the
65     offense, the court shall additionally sentence the person convicted for a term of one year to run
66     consecutively and not concurrently; and the court may additionally sentence the person
67     convicted for an indeterminate term not to exceed five years to run consecutively and not
68     concurrently.
69          (d) (i) A person convicted of violating Subsection (1)(a)(iv) is guilty of a first degree
70     felony punishable by imprisonment for an indeterminate term of not less than:
71          (A) seven years and which may be for life; or
72          (B) 15 years and which may be for life if the trier of fact determined that the defendant
73     knew or reasonably should have known that any subordinate under Subsection (1)(a)(iv)(B)
74     was under 18 years old.
75          (ii) Imposition or execution of the sentence may not be suspended, and the person is
76     not eligible for probation.
77          (iii) Subsection (1)(d)(i)(B) does not apply to any defendant who, at the time of the
78     offense, was under 18 years old.
79          (e) The Administrative Office of the Courts shall report to the Division of Professional
80     Licensing the name, case number, date of conviction, and if known, the date of birth of each
81     person convicted of violating Subsection (1)(a).
82          (2) Prohibited acts B -- Penalties and reporting:

83          (a) It is unlawful:
84          (i) for a person knowingly and intentionally to possess or use a controlled substance
85     analog or a controlled substance, unless it was obtained under a valid prescription or order,
86     directly from a practitioner while acting in the course of the person's professional practice, or as
87     otherwise authorized by this chapter;
88          (ii) for an owner, tenant, licensee, or person in control of a building, room, tenement,
89     vehicle, boat, aircraft, or other place knowingly and intentionally to permit them to be occupied
90     by persons unlawfully possessing, using, or distributing controlled substances in any of those
91     locations; or
92          (iii) for a person knowingly and intentionally to possess an altered or forged
93     prescription or written order for a controlled substance.
94          (b) A person convicted of violating Subsection (2)(a)(i) with respect to:
95          (i) marijuana, if the amount is 100 pounds or more, is guilty of a second degree felony;
96     or
97          (ii) a substance classified in Schedule I or II, or a controlled substance analog, is guilty
98     of a class A misdemeanor on a first or second conviction, and on a third or subsequent
99     conviction if each prior offense was committed within seven years before the date of the
100     offense upon which the current conviction is based is guilty of a third degree felony.
101          (c) Upon a person's conviction of a violation of this Subsection (2) subsequent to a
102     conviction under Subsection (1)(a), that person shall be sentenced to a one degree greater
103     penalty than provided in this Subsection (2).
104          (d) A person who violates Subsection (2)(a)(i) with respect to all other controlled
105     substances not included in Subsection (2)(b)(i) or (ii), including a substance listed in Section
106     58-37-4.2, or marijuana, is guilty of a class B misdemeanor.
107          (i) Upon a third conviction the person is guilty of a class A misdemeanor, if each prior
108     offense was committed within seven years before the date of the offense upon which the
109     current conviction is based.

110          (ii) Upon a fourth or subsequent conviction the person is guilty of a third degree felony
111     if each prior offense was committed within seven years before the date of the offense upon
112     which the current conviction is based.
113          (e) A person convicted of violating Subsection (2)(a)(i) while inside the exterior
114     boundaries of property occupied by a correctional facility as defined in Section 64-13-1 or a
115     public jail or other place of confinement shall be sentenced to a penalty one degree greater than
116     provided in Subsection (2)(b), and if the conviction is with respect to controlled substances as
117     listed in:
118          (i) Subsection (2)(b), the person may be sentenced to imprisonment for an
119     indeterminate term as provided by law, and:
120          (A) the court shall additionally sentence the person convicted to a term of one year to
121     run consecutively and not concurrently; and
122          (B) the court may additionally sentence the person convicted for an indeterminate term
123     not to exceed five years to run consecutively and not concurrently; and
124          (ii) Subsection (2)(d), the person may be sentenced to imprisonment for an
125     indeterminate term as provided by law, and the court shall additionally sentence the person
126     convicted to a term of six months to run consecutively and not concurrently.
127          (f) A person convicted of violating Subsection (2)(a)(ii) or (iii) is:
128          (i) on a first conviction, guilty of a class B misdemeanor;
129          (ii) on a second conviction, guilty of a class A misdemeanor; and
130          (iii) on a third or subsequent conviction, guilty of a third degree felony.
131          (g) The Administrative Office of the Courts shall report to the Division of Professional
132     Licensing the name, case number, date of conviction, and if known, the date of birth of each
133     person convicted of violating Subsection (2)(a).
134          (3) Prohibited acts C -- Penalties:
135          (a) It is unlawful for a person knowingly and intentionally:
136          (i) to use in the course of the manufacture or distribution of a controlled substance a

137     license number which is fictitious, revoked, suspended, or issued to another person or, for the
138     purpose of obtaining a controlled substance, to assume the title of, or represent oneself to be, a
139     manufacturer, wholesaler, apothecary, physician, dentist, veterinarian, or other authorized
140     person;
141          (ii) to acquire or obtain possession of, to procure or attempt to procure the
142     administration of, to obtain a prescription for, to prescribe or dispense to a person known to be
143     attempting to acquire or obtain possession of, or to procure the administration of a controlled
144     substance by misrepresentation or failure by the person to disclose receiving a controlled
145     substance from another source, fraud, forgery, deception, subterfuge, alteration of a
146     prescription or written order for a controlled substance, or the use of a false name or address;
147          (iii) to make a false or forged prescription or written order for a controlled substance,
148     or to utter the same, or to alter a prescription or written order issued or written under the terms
149     of this chapter; or
150          (iv) to make, distribute, or possess a punch, die, plate, stone, or other thing designed to
151     print, imprint, or reproduce the trademark, trade name, or other identifying mark, imprint, or
152     device of another or any likeness of any of the foregoing upon any drug or container or labeling
153     so as to render a drug a counterfeit controlled substance.
154          (b) (i) A first or second conviction under Subsection (3)(a)(i), (ii), or (iii) is a class A
155     misdemeanor.
156          (ii) A third or subsequent conviction under Subsection (3)(a)(i), (ii), or (iii) is a third
157     degree felony.
158          (c) A violation of Subsection (3)(a)(iv) is a third degree felony.
159          (4) Prohibited acts D -- Penalties:
160          (a) Notwithstanding other provisions of this section, a person not authorized under this
161     chapter who commits any act that is unlawful under Subsection (1)(a) or Section 58-37b-4 is
162     upon conviction subject to the penalties and classifications under this Subsection (4) if the trier
163     of fact finds the act is committed:

164          (i) in a public or private elementary or secondary school or on the grounds of any of
165     those schools during the hours of 6 a.m. through 10 p.m.;
166          (ii) in a public or private vocational school or postsecondary institution or on the
167     grounds of any of those schools or institutions during the hours of 6 a.m. through 10 p.m.;
168          (iii) in or on the grounds of a preschool or child-care facility during the preschool's or
169     facility's hours of operation;
170          (iv) in a public park, amusement park, arcade, or recreation center when the public or
171     amusement park, arcade, or recreation center is open to the public;
172          (v) in or on the grounds of a house of worship as defined in Section 76-10-501;
173          (vi) in or on the grounds of a library when the library is open to the public;
174          (vii) within an area that is within 100 feet of any structure, facility, or grounds included
175     in Subsections [(4)(a)(i), (ii), (iii), (iv), (v), and] (4)(a)(i) through (vi);
176          (viii) in the presence of a person younger than 18 years old, regardless of where the act
177     occurs; or
178          (ix) for the purpose of facilitating, arranging, or causing the transport, delivery, or
179     distribution of a substance in violation of this section to an inmate or on the grounds of a
180     correctional facility as defined in Section 76-8-311.3.
181          (b) (i) A person convicted under this Subsection (4) is guilty of a first degree felony
182     and shall be imprisoned for a term of not less than five years if the penalty that would
183     otherwise have been established but for this Subsection (4) would have been a first degree
184     felony.
185          (ii) Imposition or execution of the sentence may not be suspended, and the person is
186     not eligible for probation.
187          (c) If the classification that would otherwise have been established would have been
188     less than a first degree felony but for this Subsection (4), a person convicted under this
189     Subsection (4) is guilty of one degree more than the maximum penalty prescribed for that
190     offense.

191          (d) (i) If the violation is of Subsection (4)(a)(ix):
192          (A) the person may be sentenced to imprisonment for an indeterminate term as
193     provided by law, and the court shall additionally sentence the person convicted for a term of
194     one year to run consecutively and not concurrently; and
195          (B) the court may additionally sentence the person convicted for an indeterminate term
196     not to exceed five years to run consecutively and not concurrently; and
197          (ii) the penalties under this Subsection (4)(d) apply also to a person who, acting with
198     the mental state required for the commission of an offense, directly or indirectly solicits,
199     requests, commands, coerces, encourages, or intentionally aids another person to commit a
200     violation of Subsection (4)(a)(ix).
201          (e) It is not a defense to a prosecution under this Subsection (4) that:
202          (i) the actor mistakenly believed the individual to be 18 years old or older at the time of
203     the offense or was unaware of the individual's true age; or
204          (ii) the actor mistakenly believed that the location where the act occurred was not as
205     described in Subsection (4)(a) or was unaware that the location where the act occurred was as
206     described in Subsection (4)(a).
207          (5) A violation of this chapter for which no penalty is specified is a class B
208     misdemeanor.
209          (6) (a) For purposes of penalty enhancement under Subsections (1) and (2), a plea of
210     guilty or no contest to a violation or attempted violation of this section or a plea which is held
211     in abeyance under Title 77, Chapter 2a, Pleas in Abeyance, is the equivalent of a conviction,
212     even if the charge has been subsequently reduced or dismissed in accordance with the plea in
213     abeyance agreement.
214          (b) A prior conviction used for a penalty enhancement under Subsection (2) shall be a
215     conviction that is:
216          (i) from a separate criminal episode than the current charge; and
217          (ii) from a conviction that is separate from any other conviction used to enhance the

218     current charge.
219          (7) A person may be charged and sentenced for a violation of this section,
220     notwithstanding a charge and sentence for a violation of any other section of this chapter.
221          (8) (a) A penalty imposed for violation of this section is in addition to, and not in lieu
222     of, a civil or administrative penalty or sanction authorized by law.
223          (b) When a violation of this chapter violates a federal law or the law of another state,
224     conviction or acquittal under federal law or the law of another state for the same act is a bar to
225     prosecution in this state.
226          (9) In any prosecution for a violation of this chapter, evidence or proof that shows a
227     person or persons produced, manufactured, possessed, distributed, or dispensed a controlled
228     substance or substances, is prima facie evidence that the person or persons did so with
229     knowledge of the character of the substance or substances.
230          (10) This section does not prohibit a veterinarian, in good faith and in the course of the
231     veterinarian's professional practice only and not for humans, from prescribing, dispensing, or
232     administering controlled substances or from causing the substances to be administered by an
233     assistant or orderly under the veterinarian's direction and supervision.
234          (11) Civil or criminal liability may not be imposed under this section on:
235          (a) a person registered under this chapter who manufactures, distributes, or possesses
236     an imitation controlled substance for use as a placebo or investigational new drug by a
237     registered practitioner in the ordinary course of professional practice or research; [or]
238          (b) a law enforcement officer acting in the course and legitimate scope of the officer's
239     employment[.]; or
240          (c) a healthcare facility, substance use harm reduction services program, or drug
241     addiction treatment facility that temporarily possesses a controlled or counterfeit substance to
242     conduct a test or analysis on the controlled or counterfeit substance to identify or analyze the
243     strength, effectiveness, or purity of the substance for a public health or safety reason.
244          (12) (a) Civil or criminal liability may not be imposed under this section on any Indian,

245     as defined in Section 58-37-2, who uses, possesses, or transports peyote for bona fide
246     traditional ceremonial purposes in connection with the practice of a traditional Indian religion
247     as defined in Section 58-37-2.
248          (b) In a prosecution alleging violation of this section regarding peyote as defined in
249     Section 58-37-4, it is an affirmative defense that the peyote was used, possessed, or transported
250     by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a
251     traditional Indian religion.
252          (c) (i) The defendant shall provide written notice of intent to claim an affirmative
253     defense under this Subsection (12) as soon as practicable, but not later than 10 days before
254     trial.
255          (ii) The notice shall include the specific claims of the affirmative defense.
256          (iii) The court may waive the notice requirement in the interest of justice for good
257     cause shown, if the prosecutor is not unfairly prejudiced by the lack of timely notice.
258          (d) The defendant shall establish the affirmative defense under this Subsection (12) by
259     a preponderance of the evidence. If the defense is established, it is a complete defense to the
260     charges.
261          (13) (a) It is an affirmative defense that the person produced, possessed, or
262     administered a controlled substance listed in Section 58-37-4.2 if the person was:
263          (i) engaged in medical research; and
264          (ii) a holder of a valid license to possess controlled substances under Section 58-37-6.
265          (b) It is not a defense under Subsection (13)(a) that the person prescribed or dispensed
266     a controlled substance listed in Section 58-37-4.2.
267          (14) It is an affirmative defense that the person possessed, in the person's body, a
268     controlled substance listed in Section 58-37-4.2 if:
269          (a) the person was the subject of medical research conducted by a holder of a valid
270     license to possess controlled substances under Section 58-37-6; and
271          (b) the substance was administered to the person by the medical researcher.

272          (15) The application of any increase in penalty under this section to a violation of
273     Subsection (2)(a)(i) may not result in any greater penalty than a second degree felony. This
274     Subsection (15) takes precedence over any conflicting provision of this section.
275          (16) (a) It is an affirmative defense to an allegation of the commission of an offense
276     listed in Subsection (16)(b) that the person or bystander:
277          (i) reasonably believes that the person or another person is experiencing an overdose
278     event due to the ingestion, injection, inhalation, or other introduction into the human body of a
279     controlled substance or other substance;
280          (ii) reports, or assists a person who reports, in good faith the overdose event to a
281     medical provider, an emergency medical service provider as defined in Section 26-8a-102, a
282     law enforcement officer, a 911 emergency call system, or an emergency dispatch system, or the
283     person is the subject of a report made under this Subsection (16);
284          (iii) provides in the report under Subsection (16)(a)(ii) a functional description of the
285     actual location of the overdose event that facilitates responding to the person experiencing the
286     overdose event;
287          (iv) remains at the location of the person experiencing the overdose event until a
288     responding law enforcement officer or emergency medical service provider arrives, or remains
289     at the medical care facility where the person experiencing an overdose event is located until a
290     responding law enforcement officer arrives;
291          (v) cooperates with the responding medical provider, emergency medical service
292     provider, and law enforcement officer, including providing information regarding the person
293     experiencing the overdose event and any substances the person may have injected, inhaled, or
294     otherwise introduced into the person's body; and
295          (vi) is alleged to have committed the offense in the same course of events from which
296     the reported overdose arose.
297          (b) The offenses referred to in Subsection (16)(a) are:
298          (i) the possession or use of less than 16 ounces of marijuana;

299          (ii) the possession or use of a scheduled or listed controlled substance other than
300     marijuana; and
301          (iii) any violation of Chapter 37a, Utah Drug Paraphernalia Act, or Chapter 37b,
302     Imitation Controlled Substances Act.
303          (c) As used in this Subsection (16) and in Section 76-3-203.11, "good faith" does not
304     include seeking medical assistance under this section during the course of a law enforcement
305     agency's execution of a search warrant, execution of an arrest warrant, or other lawful search.
306          (17) If any provision of this chapter, or the application of any provision to any person
307     or circumstances, is held invalid, the remainder of this chapter shall be given effect without the
308     invalid provision or application.
309          (18) A legislative body of a political subdivision may not enact an ordinance that is
310     less restrictive than any provision of this chapter.
311          (19) If a minor who is under 18 years old is found by a court to have violated this
312     section or Subsection 76-5-102.1(2)(b) or 76-5-207(2)(b), the court may order the minor to
313     complete:
314          (a) a screening as defined in Section 41-6a-501;
315          (b) an assessment as defined in Section 41-6a-501 if the screening indicates an
316     assessment to be appropriate; and
317          (c) an educational series as defined in Section 41-6a-501 or substance use disorder
318     treatment as indicated by an assessment.
319          Section 2. Section 58-37a-3 is amended to read:
320          58-37a-3. "Drug paraphernalia" defined.
321          (1) As used in this chapter, "drug paraphernalia" means any equipment, product, or
322     material used, or intended for use, to plant, propagate, cultivate, grow, harvest, manufacture,
323     compound, convert, produce, process, prepare, test, analyze, package, repackage, store, contain,
324     conceal, inject, ingest, inhale, or to otherwise introduce a controlled substance into the human
325     body in violation of [Title 58, Chapter 37, Utah Controlled Substances Act, and includes, but is

326     not limited to:] Chapter 37, Utah Controlled Substances Act.
327          [(1)] (2) "Drug paraphernalia" includes:
328          (a) kits used, or intended for use, in planting, propagating, cultivating, growing, or
329     harvesting any species of plant which is a controlled substance or from which a controlled
330     substance can be derived;
331          [(2)] (b) kits used, or intended for use, in manufacturing, compounding, converting,
332     producing, processing, or preparing a controlled substance;
333          [(3)] (c) isomerization devices used, or intended for use, to increase the potency of any
334     species of plant which is a controlled substance;
335          [(4)] (d) except as provided in Subsection (3), testing equipment used, or intended for
336     use, to identify or to analyze the strength, effectiveness, or purity of a controlled substance;
337          [(5)] (e) scales and balances used, or intended for use, in weighing or measuring a
338     controlled substance;
339          [(6)] (f) diluents and adulterants, such as quinine hydrochloride, mannitol, mannited,
340     dextrose and lactose, used, or intended for use to cut a controlled substance;
341          [(7)] (g) separation gins and sifters used, or intended for use to remove twigs, seeds, or
342     other impurities from marihuana;
343          [(8)] (h) blenders, bowls, containers, spoons and mixing devices used, or intended for
344     use to compound a controlled substance;
345          [(9)] (i) capsules, balloons, envelopes, and other containers used, or intended for use to
346     package small quantities of a controlled substance;
347          [(10)] (j) containers and other objects used, or intended for use to store or conceal a
348     controlled substance;
349          [(11)] (k) hypodermic syringes, needles, and other objects used, or intended for use to
350     parenterally inject a controlled substance into the human body, except as provided in Section
351     58-37a-5; and
352          [(12)] (l) objects used, or intended for use to ingest, inhale, or otherwise introduce a

353     controlled substance into the human body, including but not limited to:
354          [(a)] (i) metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without
355     screens, permanent screens, hashish heads, or punctured metal bowls;
356          [(b)] (ii) water pipes;
357          [(c)] (iii) carburetion tubes and devices;
358          [(d)] (iv) smoking and carburetion masks;
359          [(e)] (v) roach clips: meaning objects used to hold burning material, such as a
360     marihuana cigarette, that has become too small or too short to be held in the hand;
361          [(f)] (vi) miniature cocaine spoons and cocaine vials;
362          [(g)] (vii) chamber pipes;
363          [(h)] (viii) carburetor pipes;
364          [(i)] (ix) electric pipes;
365          [(j)] (x) air-driven pipes;
366          [(k)] (xi) chillums;
367          [(l)] (xii) bongs; and
368          [(m)] (xiii) ice pipes or chillers.
369          (3) "Drug paraphernalia" does not include a testing product or equipment, including a
370     fentanyl test strip, used or intended for use to determine whether a substance contains:
371          (a) a controlled substance that can cause physical harm or death; or
372          (b) a chemical or compound that can cause physical harm or death.