This document includes Senate Committee Amendments incorporated into the bill on Mon, Feb 12, 2024 at 11:19 AM by lpoole.
This document includes Senate 3rd Reading Floor Amendments incorporated into the bill on Tue, Feb 27, 2024 at 9:19 PM by lpoole.
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7 LONG TITLE
8 General Description:
9 This bill addresses the sentencing for an individual Ŝ→ [
10 weapon readily accessible for immediate use while
10a in certain circumstances ←Ŝ .
11 Highlighted Provisions:
12 This bill:
13 ▸ Ŝ→ [
13a
14 dangerous weapon readily accessible for immediate use while distributing illegal
15 drugs to an indeterminate prison term
15a individual convicted of distributing drugs to an indeterminate prison term if the individual,
15b while
15c distributing the drugs, intentionally or knowingly:
15d • had a dangerous weapon readily accessible for immediate use; or
15e • distributed a firearm or possessed a firearm with intent to distribute the firearm ←Ŝ ;
15f and
16 ▸ makes technical and conforming changes.
17 Money Appropriated in this Bill:
18 None
19 Other Special Clauses:
20 This bill provides a special effective date.
21 Utah Code Sections Affected:
22 AMENDS:
23 58-37-8 (Superseded 07/01/24), as last amended by Laws of Utah 2023, Chapters 312,
24 329
25 58-37-8 (Effective 07/01/24), as last amended by Laws of Utah 2023, Chapters 310,
26 312 and 329
27
28 Be it enacted by the Legislature of the state of Utah:
29 Section 1. Section 58-37-8 (Superseded 07/01/24) is amended to read:
30 58-37-8 (Superseded 07/01/24). Prohibited acts -- Penalties.
31 (1) Prohibited acts A -- Penalties and reporting:
32 (a) Except as authorized by this chapter, it is unlawful for a person to knowingly and
33 intentionally:
34 (i) produce, manufacture, or dispense, or to possess with intent to produce,
35 manufacture, or dispense, a controlled or counterfeit substance;
36 (ii) distribute a controlled or counterfeit substance, or to agree, consent, offer, or
37 arrange to distribute a controlled or counterfeit substance;
38 (iii) possess a controlled or counterfeit substance with intent to distribute; or
39 (iv) engage in a continuing criminal enterprise where:
40 (A) the person participates, directs, or engages in conduct that results in a violation of
41 this chapter, Chapter 37a, Utah Drug Paraphernalia Act, Chapter 37b, Imitation Controlled
42 Substances Act, Chapter 37c, Utah Controlled Substance Precursor Act, or Chapter 37d,
43 Clandestine Drug Lab Act, that is a felony; and
44 (B) the violation is a part of a continuing series of two or more violations of this
45 chapter, Chapter 37a, Utah Drug Paraphernalia Act, Chapter 37b, Imitation Controlled
46 Substances Act, Chapter 37c, Utah Controlled Substance Precursor Act, or Chapter 37d,
47 Clandestine Drug Lab Act, on separate occasions that are undertaken in concert with five or
48 more persons with respect to whom the person occupies a position of organizer, supervisor, or
49 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) (i) [
62 of a violation of Subsection (1)(a)(ii) or (iii) may be sentenced to imprisonment for an
63 indeterminate term as [
64
65
66
67
68
69 Title 76, Chapter 3, Punishments.
70 (ii) The court shall impose Ŝ→ [
70a a
71 person who has been convicted of a violation of Subsection (1)(a)(ii) or (iii) that is a first
72 degree felony or a second degree felony if the trier of fact finds beyond a reasonable doubt that,
73 during the commission or furtherance of the violation, the person Ŝ→ intentionally or knowingly
73a ←Ŝ :
74 (A) used, drew, or exhibited a dangerous weapon, as that term is defined in Section
75 76-10-501, that is not a firearm, in an angry, threatening, intimidating, or coercive manner; Ŝ→ [
75a ←Ŝ
76 (B) used a firearm or had a firearm readily accessible for immediate use, as those terms
77 are defined in Section 76-10-501 Ŝ→ [
77a (C) distributed a firearm, as that term is defined in Section 76-10-501, or possessed a
77b firearm with intent to distribute the firearm. ←Ŝ
78 (iii) Notwithstanding Subsection (1)(c)(ii), a court may suspend the indeterminate
79 prison term for a person convicted under Subsection (1)(c)(ii) if the court:
80 (A) details on the record the reasons why it is in the interests of justice not to impose
81 the indeterminate prison term;
82 (B) makes a finding on the record that the person does not pose a significant safety risk
83 to the public; and
84 (C) orders the person to complete the terms and conditions of supervised probation
85 provided by the Department of Corrections.
86 (d) (i) A person convicted of violating Subsection (1)(a)(iv) is guilty of a first degree
87 felony punishable by imprisonment for an indeterminate term of not less than:
88 (A) seven years and which may be for life; or
89 (B) 15 years and which may be for life if the trier of fact determined that the defendant
90 knew or reasonably should have known that any subordinate under Subsection (1)(a)(iv)(B)
91 was under 18 years old.
92 (ii) Imposition or execution of the sentence may not be suspended, and the person is
93 not eligible for probation.
94 (iii) Subsection (1)(d)(i)(B) does not apply to any defendant who, at the time of the
95 offense, was under 18 years old.
96 (e) The Administrative Office of the Courts shall report to the Division of Professional
97 Licensing the name, case number, date of conviction, and if known, the date of birth of each
98 person convicted of violating Subsection (1)(a).
99 (2) Prohibited acts B -- Penalties and reporting:
100 (a) It is unlawful:
101 (i) for a person knowingly and intentionally to possess or use a controlled substance
102 analog or a controlled substance, unless it was obtained under a valid prescription or order,
103 directly from a practitioner while acting in the course of the person's professional practice, or as
104 otherwise authorized by this chapter;
105 (ii) for an owner, tenant, licensee, or person in control of a building, room, tenement,
106 vehicle, boat, aircraft, or other place knowingly and intentionally to permit them to be occupied
107 by persons unlawfully possessing, using, or distributing controlled substances in any of those
108 locations; or
109 (iii) for a person knowingly and intentionally to possess an altered or forged
110 prescription or written order for a controlled substance.
111 (b) A person convicted of violating Subsection (2)(a)(i) with respect to:
112 (i) marijuana, if the amount is 100 pounds or more, is guilty of a second degree felony;
113 or
114 (ii) a substance classified in Schedule I or II, or a controlled substance analog, is guilty
115 of a class A misdemeanor on a first or second conviction, and on a third or subsequent
116 conviction if each prior offense was committed within seven years before the date of the
117 offense upon which the current conviction is based is guilty of a third degree felony.
118 (c) Upon a person's conviction of a violation of this Subsection (2) subsequent to a
119 conviction under Subsection (1)(a), that person shall be sentenced to a one degree greater
120 penalty than provided in this Subsection (2).
121 (d) A person who violates Subsection (2)(a)(i) with respect to all other controlled
122 substances not included in Subsection (2)(b)(i) or (ii), including a substance listed in Section
123 58-37-4.2, or marijuana, is guilty of a class B misdemeanor.
124 (i) Upon a third conviction the person is guilty of a class A misdemeanor, if each prior
125 offense was committed within seven years before the date of the offense upon which the
126 current conviction is based.
127 (ii) Upon a fourth or subsequent conviction the person is guilty of a third degree felony
128 if each prior offense was committed within seven years before the date of the offense upon
129 which the current conviction is based.
130 (e) A person convicted of violating Subsection (2)(a)(i) while inside the exterior
131 boundaries of property occupied by a correctional facility as defined in Section 64-13-1 or a
132 public jail or other place of confinement shall be sentenced to a penalty one degree greater than
133 provided in Subsection (2)(b), and if the conviction is with respect to controlled substances as
134 listed in:
135 (i) Subsection (2)(b), the person may be sentenced to imprisonment for an
136 indeterminate term as provided by law, and:
137 (A) the court shall additionally sentence the person convicted to a term of one year to
138 run consecutively and not concurrently; and
139 (B) the court may additionally sentence the person convicted for an indeterminate term
140 not to exceed five years to run consecutively and not concurrently; and
141 (ii) Subsection (2)(d), the person may be sentenced to imprisonment for an
142 indeterminate term as provided by law, and the court shall additionally sentence the person
143 convicted to a term of six months to run consecutively and not concurrently.
144 (f) A person convicted of violating Subsection (2)(a)(ii) or (iii) is:
145 (i) on a first conviction, guilty of a class B misdemeanor;
146 (ii) on a second conviction, guilty of a class A misdemeanor; and
147 (iii) on a third or subsequent conviction, guilty of a third degree felony.
148 (g) The Administrative Office of the Courts shall report to the Division of Professional
149 Licensing the name, case number, date of conviction, and if known, the date of birth of each
150 person convicted of violating Subsection (2)(a).
151 (3) Prohibited acts C -- Penalties:
152 (a) It is unlawful for a person knowingly and intentionally:
153 (i) to use in the course of the manufacture or distribution of a controlled substance a
154 license number which is fictitious, revoked, suspended, or issued to another person or, for the
155 purpose of obtaining a controlled substance, to assume the title of, or represent oneself to be, a
156 manufacturer, wholesaler, apothecary, physician, dentist, veterinarian, or other authorized
157 person;
158 (ii) to acquire or obtain possession of, to procure or attempt to procure the
159 administration of, to obtain a prescription for, to prescribe or dispense to a person known to be
160 attempting to acquire or obtain possession of, or to procure the administration of a controlled
161 substance by misrepresentation or failure by the person to disclose receiving a controlled
162 substance from another source, fraud, forgery, deception, subterfuge, alteration of a
163 prescription or written order for a controlled substance, or the use of a false name or address;
164 (iii) to make a false or forged prescription or written order for a controlled substance,
165 or to utter the same, or to alter a prescription or written order issued or written under the terms
166 of this chapter; or
167 (iv) to make, distribute, or possess a punch, die, plate, stone, or other thing designed to
168 print, imprint, or reproduce the trademark, trade name, or other identifying mark, imprint, or
169 device of another or any likeness of any of the foregoing upon any drug or container or labeling
170 so as to render a drug a counterfeit controlled substance.
171 (b) (i) A first or second conviction under Subsection (3)(a)(i), (ii), or (iii) is a class A
172 misdemeanor.
173 (ii) A third or subsequent conviction under Subsection (3)(a)(i), (ii), or (iii) is a third
174 degree felony.
175 (c) A violation of Subsection (3)(a)(iv) is a third degree felony.
176 (4) Prohibited acts D -- Penalties:
177 (a) Notwithstanding other provisions of this section, a person not authorized under this
178 chapter who commits any act that is unlawful under Subsection (1)(a) or Section 58-37b-4 is
179 upon conviction subject to the penalties and classifications under this Subsection (4) if the trier
180 of fact finds the act is committed:
181 (i) in a public or private elementary or secondary school or on the grounds of any of
182 those schools during the hours of 6 a.m. through 10 p.m.;
183 (ii) in a public or private vocational school or postsecondary institution or on the
184 grounds of any of those schools or institutions during the hours of 6 a.m. through 10 p.m.;
185 (iii) in or on the grounds of a preschool or child-care facility during the preschool's or
186 facility's hours of operation;
187 (iv) in a public park, amusement park, arcade, or recreation center when the public or
188 amusement park, arcade, or recreation center is open to the public;
189 (v) in or on the grounds of a house of worship as defined in Section 76-10-501;
190 (vi) in or on the grounds of a library when the library is open to the public;
191 (vii) within an area that is within 100 feet of any structure, facility, or grounds included
192 in Subsections (4)(a)(i) through (vi);
193 (viii) in the presence of a person younger than 18 years old, regardless of where the act
194 occurs; or
195 (ix) for the purpose of facilitating, arranging, or causing the transport, delivery, or
196 distribution of a substance in violation of this section to an inmate or on the grounds of a
197 correctional facility as defined in Section 76-8-311.3.
198 (b) (i) A person convicted under this Subsection (4) is guilty of a first degree felony
199 and shall be imprisoned for a term of not less than five years if the penalty that would
200 otherwise have been established but for this Subsection (4) would have been a first degree
201 felony.
202 (ii) Imposition or execution of the sentence may not be suspended, and the person is
203 not eligible for probation.
204 (c) If the classification that would otherwise have been established would have been
205 less than a first degree felony but for this Subsection (4), a person convicted under this
206 Subsection (4) is guilty of one degree more than the maximum penalty prescribed for that
207 offense.
208 (d) (i) If the violation is of Subsection (4)(a)(ix):
209 (A) the person may be sentenced to imprisonment for an indeterminate term as
210 provided by law, and the court shall additionally sentence the person convicted for a term of
211 one year to run consecutively and not concurrently; and
212 (B) the court may additionally sentence the person convicted for an indeterminate term
213 not to exceed five years to run consecutively and not concurrently; and
214 (ii) the penalties under this Subsection (4)(d) apply also to a person who, acting with
215 the mental state required for the commission of an offense, directly or indirectly solicits,
216 requests, commands, coerces, encourages, or intentionally aids another person to commit a
217 violation of Subsection (4)(a)(ix).
218 (e) It is not a defense to a prosecution under this Subsection (4) that:
219 (i) the actor mistakenly believed the individual to be 18 years old or older at the time of
220 the offense or was unaware of the individual's true age; or
221 (ii) the actor mistakenly believed that the location where the act occurred was not as
222 described in Subsection (4)(a) or was unaware that the location where the act occurred was as
223 described in Subsection (4)(a).
224 (5) A violation of this chapter for which no penalty is specified is a class B
225 misdemeanor.
226 (6) (a) For purposes of penalty enhancement under Subsections (1) and (2), a plea of
227 guilty or no contest to a violation or attempted violation of this section or a plea which is held
228 in abeyance under Title 77, Chapter 2a, Pleas in Abeyance, is the equivalent of a conviction,
229 even if the charge has been subsequently reduced or dismissed in accordance with the plea in
230 abeyance agreement.
231 (b) A prior conviction used for a penalty enhancement under Subsection (2) shall be a
232 conviction that is:
233 (i) from a separate criminal episode than the current charge; and
234 (ii) from a conviction that is separate from any other conviction used to enhance the
235 current charge.
236 (7) A person may be charged and sentenced for a violation of this section,
237 notwithstanding a charge and sentence for a violation of any other section of this chapter.
238 (8) (a) A penalty imposed for violation of this section is in addition to, and not in lieu
239 of, a civil or administrative penalty or sanction authorized by law.
240 (b) When a violation of this chapter violates a federal law or the law of another state,
241 conviction or acquittal under federal law or the law of another state for the same act is a bar to
242 prosecution in this state.
243 (9) In any prosecution for a violation of this chapter, evidence or proof that shows a
244 person or persons produced, manufactured, possessed, distributed, or dispensed a controlled
245 substance or substances, is prima facie evidence that the person or persons did so with
246 knowledge of the character of the substance or substances.
247 (10) This section does not prohibit a veterinarian, in good faith and in the course of the
248 veterinarian's professional practice only and not for humans, from prescribing, dispensing, or
249 administering controlled substances or from causing the substances to be administered by an
250 assistant or orderly under the veterinarian's direction and supervision.
251 (11) Civil or criminal liability may not be imposed under this section on:
252 (a) a person registered under this chapter who manufactures, distributes, or possesses
253 an imitation controlled substance for use as a placebo or investigational new drug by a
254 registered practitioner in the ordinary course of professional practice or research;
255 (b) a law enforcement officer acting in the course and legitimate scope of the officer's
256 employment; or
257 (c) a healthcare facility, substance use harm reduction services program, or drug
258 addiction treatment facility that temporarily possesses a controlled or counterfeit substance to
259 conduct a test or analysis on the controlled or counterfeit substance to identify or analyze the
260 strength, effectiveness, or purity of the substance for a public health or safety reason.
261 (12) (a) Civil or criminal liability may not be imposed under this section on any Indian,
262 as defined in Section 58-37-2, who uses, possesses, or transports peyote for bona fide
263 traditional ceremonial purposes in connection with the practice of a traditional Indian religion
264 as defined in Section 58-37-2.
265 (b) In a prosecution alleging violation of this section regarding peyote as defined in
266 Section 58-37-4, it is an affirmative defense that the peyote was used, possessed, or transported
267 by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a
268 traditional Indian religion.
269 (c) (i) The defendant shall provide written notice of intent to claim an affirmative
270 defense under this Subsection (12) as soon as practicable, but not later than 10 days before
271 trial.
272 (ii) The notice shall include the specific claims of the affirmative defense.
273 (iii) The court may waive the notice requirement in the interest of justice for good
274 cause shown, if the prosecutor is not unfairly prejudiced by the lack of timely notice.
275 (d) The defendant shall establish the affirmative defense under this Subsection (12) by
276 a preponderance of the evidence. If the defense is established, it is a complete defense to the
277 charges.
278 (13) (a) It is an affirmative defense that the person produced, possessed, or
279 administered a controlled substance listed in Section 58-37-4.2 if the person was:
280 (i) engaged in medical research; and
281 (ii) a holder of a valid license to possess controlled substances under Section 58-37-6.
282 (b) It is not a defense under Subsection (13)(a) that the person prescribed or dispensed
283 a controlled substance listed in Section 58-37-4.2.
284 (14) It is an affirmative defense that the person possessed, in the person's body, a
285 controlled substance listed in Section 58-37-4.2 if:
286 (a) the person was the subject of medical research conducted by a holder of a valid
287 license to possess controlled substances under Section 58-37-6; and
288 (b) the substance was administered to the person by the medical researcher.
289 (15) The application of any increase in penalty under this section to a violation of
290 Subsection (2)(a)(i) may not result in any greater penalty than a second degree felony. This
291 Subsection (15) takes precedence over any conflicting provision of this section.
292 (16) (a) It is an affirmative defense to an allegation of the commission of an offense
293 listed in Subsection (16)(b) that the person or bystander:
294 (i) reasonably believes that the person or another person is experiencing an overdose
295 event due to the ingestion, injection, inhalation, or other introduction into the human body of a
296 controlled substance or other substance;
297 (ii) reports, or assists a person who reports, in good faith the overdose event to a
298 medical provider, an emergency medical service provider as defined in Section 26B-4-101, a
299 law enforcement officer, a 911 emergency call system, or an emergency dispatch system, or the
300 person is the subject of a report made under this Subsection (16);
301 (iii) provides in the report under Subsection (16)(a)(ii) a functional description of the
302 actual location of the overdose event that facilitates responding to the person experiencing the
303 overdose event;
304 (iv) remains at the location of the person experiencing the overdose event until a
305 responding law enforcement officer or emergency medical service provider arrives, or remains
306 at the medical care facility where the person experiencing an overdose event is located until a
307 responding law enforcement officer arrives;
308 (v) cooperates with the responding medical provider, emergency medical service
309 provider, and law enforcement officer, including providing information regarding the person
310 experiencing the overdose event and any substances the person may have injected, inhaled, or
311 otherwise introduced into the person's body; and
312 (vi) is alleged to have committed the offense in the same course of events from which
313 the reported overdose arose.
314 (b) The offenses referred to in Subsection (16)(a) are:
315 (i) the possession or use of less than 16 ounces of marijuana;
316 (ii) the possession or use of a scheduled or listed controlled substance other than
317 marijuana; and
318 (iii) any violation of Chapter 37a, Utah Drug Paraphernalia Act, or Chapter 37b,
319 Imitation Controlled Substances Act.
320 (c) As used in this Subsection (16) and in Section 76-3-203.11, "good faith" does not
321 include seeking medical assistance under this section during the course of a law enforcement
322 agency's execution of a search warrant, execution of an arrest warrant, or other lawful search.
323 (17) If any provision of this chapter, or the application of any provision to any person
324 or circumstances, is held invalid, the remainder of this chapter shall be given effect without the
325 invalid provision or application.
326 (18) A legislative body of a political subdivision may not enact an ordinance that is
327 less restrictive than any provision of this chapter.
328 (19) If a minor who is under 18 years old is found by a court to have violated this
329 section or Subsection 76-5-102.1(2)(b) or 76-5-207(2)(b), the court may order the minor to
330 complete:
331 (a) a screening as defined in Section 41-6a-501;
332 (b) an assessment as defined in Section 41-6a-501 if the screening indicates an
333 assessment to be appropriate; and
334 (c) an educational series as defined in Section 41-6a-501 or substance use disorder
335 treatment as indicated by an assessment.
336 Section 2. Section 58-37-8 (Effective 07/01/24) is amended to read:
337 58-37-8 (Effective 07/01/24). Prohibited acts -- Penalties.
338 (1) Prohibited acts A -- Penalties and reporting:
339 (a) Except as authorized by this chapter, it is unlawful for a person to knowingly and
340 intentionally:
341 (i) produce, manufacture, or dispense, or to possess with intent to produce,
342 manufacture, or dispense, a controlled or counterfeit substance;
343 (ii) distribute a controlled or counterfeit substance, or to agree, consent, offer, or
344 arrange to distribute a controlled or counterfeit substance;
345 (iii) possess a controlled or counterfeit substance with intent to distribute; or
346 (iv) engage in a continuing criminal enterprise where:
347 (A) the person participates, directs, or engages in conduct that results in a violation of
348 this chapter, Chapter 37a, Utah Drug Paraphernalia Act, Chapter 37b, Imitation Controlled
349 Substances Act, Chapter 37c, Utah Controlled Substance Precursor Act, or Chapter 37d,
350 Clandestine Drug Lab Act, that is a felony; and
351 (B) the violation is a part of a continuing series of two or more violations of this
352 chapter, Chapter 37a, Utah Drug Paraphernalia Act, Chapter 37b, Imitation Controlled
353 Substances Act, Chapter 37c, Utah Controlled Substance Precursor Act, or Chapter 37d,
354 Clandestine Drug Lab Act, on separate occasions that are undertaken in concert with five or
355 more persons with respect to whom the person occupies a position of organizer, supervisor, or
356 any other position of management.
357 (b) A person convicted of violating Subsection (1)(a) with respect to:
358 (i) a substance or a counterfeit of a substance classified in Schedule I or II, a controlled
359 substance analog, or gammahydroxybutyric acid as listed in Schedule III is guilty of a second
360 degree felony, punishable by imprisonment for not more than 15 years, and upon a second or
361 subsequent conviction is guilty of a first degree felony;
362 (ii) a substance or a counterfeit of a substance classified in Schedule III or IV, or
363 marijuana, or a substance listed in Section 58-37-4.2 is guilty of a third degree felony, and
364 upon a second or subsequent conviction is guilty of a second degree felony; or
365 (iii) a substance or a counterfeit of a substance classified in Schedule V is guilty of a
366 class A misdemeanor and upon a second or subsequent conviction is guilty of a third degree
367 felony.
368 (c) (i) [
369 of a violation of Subsection (1)(a)(ii) or (iii) may be sentenced to imprisonment for an
370 indeterminate term as [
371
372
373
374
375
376 Title 76, Chapter 3, Punishments.
377 (ii) The court shall impose Ŝ→ [
377a a
378 person who has been convicted of a violation of Subsection (1)(a)(ii) or (iii) that is a first
379 degree felony or a second degree felony if the trier of fact finds beyond a reasonable doubt that,
380 during the commission or furtherance of the violation, the person Ŝ→ intentionally or knowingly
380a ←Ŝ :
381 (A) used, drew, or exhibited a dangerous weapon, as that term is defined in Section
382 76-10-501, that is not a firearm, in an angry, threatening, intimidating, or coercive manner; Ŝ→ [
382a ←Ŝ
383 (B) used a firearm or had a firearm readily accessible for immediate use, as those terms
384 are defined in Section 76-10-501 Ŝ→ [
384a (C) distributed a firearm, as that term is defined in Section 76-10-501, or possessed a
384b firearm with intent to distribute the firearm. ←Ŝ
385 (iii) Notwithstanding Subsection (1)(c)(ii), a court may suspend the indeterminate
386 prison term for a person convicted under Subsection (1)(c)(ii) if the court:
387 (A) details on the record the reasons why it is in the interests of justice not to impose
388 the indeterminate prison term;
389 (B) makes a finding on the record that the person does not pose a significant safety risk
390 to the public; and
391 (C) orders the person to complete the terms and conditions of supervised probation
392 provided by the Department of Corrections.
393 (d) (i) A person convicted of violating Subsection (1)(a)(iv) is guilty of a first degree
394 felony punishable by imprisonment for an indeterminate term of not less than:
395 (A) seven years and which may be for life; or
396 (B) 15 years and which may be for life if the trier of fact determined that the defendant
397 knew or reasonably should have known that any subordinate under Subsection (1)(a)(iv)(B)
398 was under 18 years old.
399 (ii) Imposition or execution of the sentence may not be suspended, and the person is
400 not eligible for probation.
401 (iii) Subsection (1)(d)(i)(B) does not apply to any defendant who, at the time of the
402 offense, was under 18 years old.
403 (e) The Administrative Office of the Courts shall report to the Division of Professional
404 Licensing the name, case number, date of conviction, and if known, the date of birth of each
405 person convicted of violating Subsection (1)(a).
406 (2) Prohibited acts B -- Penalties and reporting:
407 (a) It is unlawful:
408 (i) for a person knowingly and intentionally to possess or use a controlled substance
409 analog or a controlled substance, unless it was obtained under a valid prescription or order,
410 directly from a practitioner while acting in the course of the person's professional practice, or as
411 otherwise authorized by this chapter;
412 (ii) for an owner, tenant, licensee, or person in control of a building, room, tenement,
413 vehicle, boat, aircraft, or other place knowingly and intentionally to permit them to be occupied
414 by persons unlawfully possessing, using, or distributing controlled substances in any of those
415 locations; or
416 (iii) for a person knowingly and intentionally to possess an altered or forged
417 prescription or written order for a controlled substance.
418 (b) A person convicted of violating Subsection (2)(a)(i) with respect to:
419 (i) marijuana, if the amount is 100 pounds or more, is guilty of a second degree felony;
420 or
421 (ii) a substance classified in Schedule I or II, or a controlled substance analog, is guilty
422 of a class A misdemeanor on a first or second conviction, and on a third or subsequent
423 conviction if each prior offense was committed within seven years before the date of the
424 offense upon which the current conviction is based is guilty of a third degree felony.
425 (c) Upon a person's conviction of a violation of this Subsection (2) subsequent to a
426 conviction under Subsection (1)(a), that person shall be sentenced to a one degree greater
427 penalty than provided in this Subsection (2).
428 (d) A person who violates Subsection (2)(a)(i) with respect to all other controlled
429 substances not included in Subsection (2)(b)(i) or (ii), including a substance listed in Section
430 58-37-4.2, or marijuana, is guilty of a class B misdemeanor.
431 (i) Upon a third conviction the person is guilty of a class A misdemeanor, if each prior
432 offense was committed within seven years before the date of the offense upon which the
433 current conviction is based.
434 (ii) Upon a fourth or subsequent conviction the person is guilty of a third degree felony
435 if each prior offense was committed within seven years before the date of the offense upon
436 which the current conviction is based.
437 (e) A person convicted of violating Subsection (2)(a)(i) while inside the exterior
438 boundaries of property occupied by a correctional facility as defined in Section 64-13-1 or a
439 public jail or other place of confinement shall be sentenced to a penalty one degree greater than
440 provided in Subsection (2)(b), and if the conviction is with respect to controlled substances as
441 listed in:
442 (i) Subsection (2)(b), the person may be sentenced to imprisonment for an
443 indeterminate term as provided by law, and:
444 (A) the court shall additionally sentence the person convicted to a term of one year to
445 run consecutively and not concurrently; and
446 (B) the court may additionally sentence the person convicted for an indeterminate term
447 not to exceed five years to run consecutively and not concurrently; and
448 (ii) Subsection (2)(d), the person may be sentenced to imprisonment for an
449 indeterminate term as provided by law, and the court shall additionally sentence the person
450 convicted to a term of six months to run consecutively and not concurrently.
451 (f) A person convicted of violating Subsection (2)(a)(ii) or (iii) is:
452 (i) on a first conviction, guilty of a class B misdemeanor;
453 (ii) on a second conviction, guilty of a class A misdemeanor; and
454 (iii) on a third or subsequent conviction, guilty of a third degree felony.
455 (g) The Administrative Office of the Courts shall report to the Division of Professional
456 Licensing the name, case number, date of conviction, and if known, the date of birth of each
457 person convicted of violating Subsection (2)(a).
458 (3) Prohibited acts C -- Penalties:
459 (a) It is unlawful for a person knowingly and intentionally:
460 (i) to use in the course of the manufacture or distribution of a controlled substance a
461 license number which is fictitious, revoked, suspended, or issued to another person or, for the
462 purpose of obtaining a controlled substance, to assume the title of, or represent oneself to be, a
463 manufacturer, wholesaler, apothecary, physician, dentist, veterinarian, or other authorized
464 person;
465 (ii) to acquire or obtain possession of, to procure or attempt to procure the
466 administration of, to obtain a prescription for, to prescribe or dispense to a person known to be
467 attempting to acquire or obtain possession of, or to procure the administration of a controlled
468 substance by misrepresentation or failure by the person to disclose receiving a controlled
469 substance from another source, fraud, forgery, deception, subterfuge, alteration of a
470 prescription or written order for a controlled substance, or the use of a false name or address;
471 (iii) to make a false or forged prescription or written order for a controlled substance,
472 or to utter the same, or to alter a prescription or written order issued or written under the terms
473 of this chapter; or
474 (iv) to make, distribute, or possess a punch, die, plate, stone, or other thing designed to
475 print, imprint, or reproduce the trademark, trade name, or other identifying mark, imprint, or
476 device of another or any likeness of any of the foregoing upon any drug or container or labeling
477 so as to render a drug a counterfeit controlled substance.
478 (b) (i) A first or second conviction under Subsection (3)(a)(i), (ii), or (iii) is a class A
479 misdemeanor.
480 (ii) A third or subsequent conviction under Subsection (3)(a)(i), (ii), or (iii) is a third
481 degree felony.
482 (c) A violation of Subsection (3)(a)(iv) is a third degree felony.
483 (4) Prohibited acts D -- Penalties:
484 (a) Notwithstanding other provisions of this section, a person not authorized under this
485 chapter who commits any act that is unlawful under Subsection (1)(a) or Section 58-37b-4 is
486 upon conviction subject to the penalties and classifications under this Subsection (4) if the trier
487 of fact finds the act is committed:
488 (i) in a public or private elementary or secondary school or on the grounds of any of
489 those schools during the hours of 6 a.m. through 10 p.m.;
490 (ii) in a public or private vocational school or postsecondary institution or on the
491 grounds of any of those schools or institutions during the hours of 6 a.m. through 10 p.m.;
492 (iii) in or on the grounds of a preschool or child-care facility during the preschool's or
493 facility's hours of operation;
494 (iv) in a public park, amusement park, arcade, or recreation center when the public or
495 amusement park, arcade, or recreation center is open to the public;
496 (v) in or on the grounds of a house of worship as defined in Section 76-10-501;
497 (vi) in or on the grounds of a library when the library is open to the public;
498 (vii) within an area that is within 100 feet of any structure, facility, or grounds included
499 in Subsections (4)(a)(i) through (vi);
500 (viii) in the presence of a person younger than 18 years old, regardless of where the act
501 occurs; or
502 (ix) for the purpose of facilitating, arranging, or causing the transport, delivery, or
503 distribution of a substance in violation of this section to an inmate or on the grounds of a
504 correctional facility as defined in Section 76-8-311.3.
505 (b) (i) A person convicted under this Subsection (4) is guilty of a first degree felony
506 and shall be imprisoned for a term of not less than five years if the penalty that would
507 otherwise have been established but for this Subsection (4) would have been a first degree
508 felony.
509 (ii) Imposition or execution of the sentence may not be suspended, and the person is
510 not eligible for probation.
511 (c) If the classification that would otherwise have been established would have been
512 less than a first degree felony but for this Subsection (4), a person convicted under this
513 Subsection (4) is guilty of one degree more than the maximum penalty prescribed for that
514 offense.
515 (d) (i) If the violation is of Subsection (4)(a)(ix):
516 (A) the person may be sentenced to imprisonment for an indeterminate term as
517 provided by law, and the court shall additionally sentence the person convicted for a term of
518 one year to run consecutively and not concurrently; and
519 (B) the court may additionally sentence the person convicted for an indeterminate term
520 not to exceed five years to run consecutively and not concurrently; and
521 (ii) the penalties under this Subsection (4)(d) apply also to a person who, acting with
522 the mental state required for the commission of an offense, directly or indirectly solicits,
523 requests, commands, coerces, encourages, or intentionally aids another person to commit a
524 violation of Subsection (4)(a)(ix).
525 (e) It is not a defense to a prosecution under this Subsection (4) that:
526 (i) the actor mistakenly believed the individual to be 18 years old or older at the time of
527 the offense or was unaware of the individual's true age; or
528 (ii) the actor mistakenly believed that the location where the act occurred was not as
529 described in Subsection (4)(a) or was unaware that the location where the act occurred was as
530 described in Subsection (4)(a).
531 (5) A violation of this chapter for which no penalty is specified is a class B
532 misdemeanor.
533 (6) (a) For purposes of penalty enhancement under Subsections (1) and (2), a plea of
534 guilty or no contest to a violation or attempted violation of this section or a plea which is held
535 in abeyance under Title 77, Chapter 2a, Pleas in Abeyance, is the equivalent of a conviction,
536 even if the charge has been subsequently reduced or dismissed in accordance with the plea in
537 abeyance agreement.
538 (b) A prior conviction used for a penalty enhancement under Subsection (2) shall be a
539 conviction that is:
540 (i) from a separate criminal episode than the current charge; and
541 (ii) from a conviction that is separate from any other conviction used to enhance the
542 current charge.
543 (7) A person may be charged and sentenced for a violation of this section,
544 notwithstanding a charge and sentence for a violation of any other section of this chapter.
545 (8) (a) A penalty imposed for violation of this section is in addition to, and not in lieu
546 of, a civil or administrative penalty or sanction authorized by law.
547 (b) When a violation of this chapter violates a federal law or the law of another state,
548 conviction or acquittal under federal law or the law of another state for the same act is a bar to
549 prosecution in this state.
550 (9) In any prosecution for a violation of this chapter, evidence or proof that shows a
551 person or persons produced, manufactured, possessed, distributed, or dispensed a controlled
552 substance or substances, is prima facie evidence that the person or persons did so with
553 knowledge of the character of the substance or substances.
554 (10) This section does not prohibit a veterinarian, in good faith and in the course of the
555 veterinarian's professional practice only and not for humans, from prescribing, dispensing, or
556 administering controlled substances or from causing the substances to be administered by an
557 assistant or orderly under the veterinarian's direction and supervision.
558 (11) Civil or criminal liability may not be imposed under this section on:
559 (a) a person registered under this chapter who manufactures, distributes, or possesses
560 an imitation controlled substance for use as a placebo or investigational new drug by a
561 registered practitioner in the ordinary course of professional practice or research;
562 (b) a law enforcement officer acting in the course and legitimate scope of the officer's
563 employment; or
564 (c) a healthcare facility, substance use harm reduction services program, or drug
565 addiction treatment facility that temporarily possesses a controlled or counterfeit substance to
566 conduct a test or analysis on the controlled or counterfeit substance to identify or analyze the
567 strength, effectiveness, or purity of the substance for a public health or safety reason.
568 (12) (a) Civil or criminal liability may not be imposed under this section on any Indian,
569 as defined in Section 58-37-2, who uses, possesses, or transports peyote for bona fide
570 traditional ceremonial purposes in connection with the practice of a traditional Indian religion
571 as defined in Section 58-37-2.
572 (b) In a prosecution alleging violation of this section regarding peyote as defined in
573 Section 58-37-4, it is an affirmative defense that the peyote was used, possessed, or transported
574 by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a
575 traditional Indian religion.
576 (c) (i) The defendant shall provide written notice of intent to claim an affirmative
577 defense under this Subsection (12) as soon as practicable, but not later than 10 days before
578 trial.
579 (ii) The notice shall include the specific claims of the affirmative defense.
580 (iii) The court may waive the notice requirement in the interest of justice for good
581 cause shown, if the prosecutor is not unfairly prejudiced by the lack of timely notice.
582 (d) The defendant shall establish the affirmative defense under this Subsection (12) by
583 a preponderance of the evidence. If the defense is established, it is a complete defense to the
584 charges.
585 (13) (a) It is an affirmative defense that the person produced, possessed, or
586 administered a controlled substance listed in Section 58-37-4.2 if the person was:
587 (i) engaged in medical research; and
588 (ii) a holder of a valid license to possess controlled substances under Section 58-37-6.
589 (b) It is not a defense under Subsection (13)(a) that the person prescribed or dispensed
590 a controlled substance listed in Section 58-37-4.2.
591 (14) It is an affirmative defense that the person possessed, in the person's body, a
592 controlled substance listed in Section 58-37-4.2 if:
593 (a) the person was the subject of medical research conducted by a holder of a valid
594 license to possess controlled substances under Section 58-37-6; and
595 (b) the substance was administered to the person by the medical researcher.
596 (15) The application of any increase in penalty under this section to a violation of
597 Subsection (2)(a)(i) may not result in any greater penalty than a second degree felony. This
598 Subsection (15) takes precedence over any conflicting provision of this section.
599 (16) (a) It is an affirmative defense to an allegation of the commission of an offense
600 listed in Subsection (16)(b) that the person or bystander:
601 (i) reasonably believes that the person or another person is experiencing an overdose
602 event due to the ingestion, injection, inhalation, or other introduction into the human body of a
603 controlled substance or other substance;
604 (ii) reports, or assists a person who reports, in good faith the overdose event to a
605 medical provider, an emergency medical service provider as defined in Section 53-2d-101, a
606 law enforcement officer, a 911 emergency call system, or an emergency dispatch system, or the
607 person is the subject of a report made under this Subsection (16);
608 (iii) provides in the report under Subsection (16)(a)(ii) a functional description of the
609 actual location of the overdose event that facilitates responding to the person experiencing the
610 overdose event;
611 (iv) remains at the location of the person experiencing the overdose event until a
612 responding law enforcement officer or emergency medical service provider arrives, or remains
613 at the medical care facility where the person experiencing an overdose event is located until a
614 responding law enforcement officer arrives;
615 (v) cooperates with the responding medical provider, emergency medical service
616 provider, and law enforcement officer, including providing information regarding the person
617 experiencing the overdose event and any substances the person may have injected, inhaled, or
618 otherwise introduced into the person's body; and
619 (vi) is alleged to have committed the offense in the same course of events from which
620 the reported overdose arose.
621 (b) The offenses referred to in Subsection (16)(a) are:
622 (i) the possession or use of less than 16 ounces of marijuana;
623 (ii) the possession or use of a scheduled or listed controlled substance other than
624 marijuana; and
625 (iii) any violation of Chapter 37a, Utah Drug Paraphernalia Act, or Chapter 37b,
626 Imitation Controlled Substances Act.
627 (c) As used in this Subsection (16) and in Section 76-3-203.11, "good faith" does not
628 include seeking medical assistance under this section during the course of a law enforcement
629 agency's execution of a search warrant, execution of an arrest warrant, or other lawful search.
630 (17) If any provision of this chapter, or the application of any provision to any person
631 or circumstances, is held invalid, the remainder of this chapter shall be given effect without the
632 invalid provision or application.
633 (18) A legislative body of a political subdivision may not enact an ordinance that is
634 less restrictive than any provision of this chapter.
635 (19) If a minor who is under 18 years old is found by a court to have violated this
636 section or Subsection 76-5-102.1(2)(b) or 76-5-207(2)(b), the court may order the minor to
637 complete:
638 (a) a screening as defined in Section 41-6a-501;
639 (b) an assessment as defined in Section 41-6a-501 if the screening indicates an
640 assessment to be appropriate; and
641 (c) an educational series as defined in Section 41-6a-501 or substance use disorder
642 treatment as indicated by an assessment.
643 Section 3. Effective date.
644 (1) Except as provided in Subsection (2), this bill takes effect on May 1, 2024.
645 (2) The actions affecting Section 58-37-8 (Effective 07/01/24) take effect on July 1,
646 2024.