Bill Summary – FastDemocracy

LB89                                                                                  LB89
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                              LEGISLATURE OF NEBRASKA
                          ONE HUNDRED SIXTH LEGISLATURE
                                   FIRST SESSION
                         LEGISLATIVE BILL 89
       Introduced by Wayne, 13.
       Read first time January 10, 2019
       Committee: Judiciary
   A BILL FOR AN ACT relating to the Uniform Controlled Substances Act; to
       amend sections   28-416   and    28-1354,   Revised Statutes Cumulative
      Supplement,   2018;    to change certain marijuana penalties;    to
      harmonize provisions; and to repeal the original sections.
  Be it enacted by the people of the State of Nebraska,
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          Section 1. Section 28-416, Revised Statutes Cumulative Supplement,
   2018, is amended to read:
         28-416 (1) Except as authorized by the Uniform Controlled Substances
  Act, it shall be unlawful for any person knowingly or intentionally: (a)
  To manufacture, distribute, deliver, dispense, or possess with intent to
  manufacture, distribute, deliver, or dispense a controlled substance; or
   (b)    to create,       distribute,      or possess with intent to     distribute      a
   counterfeit controlled substance.
         (2) Except as provided in subsections (4), (5), (7), (8), (9), and
   (10), and (11) of this section, any person who violates subsection (1) of
  this section with respect to: (a) A controlled substance classified in
   Schedule I, II, or III of section 28-405 which is an exceptionally
  hazardous drug shall be guilty of a Class II felony; (b) any other
   controlled substance classified in Schedule I, II, or III of section
  28-405      shall be    guilty of   a Class IIA    felony;      or   (c)     a controlled
   substance classified in Schedule IV or V of section 28-405 shall be
   guilty of a Class IIIA felony.
          (3)    A    person knowingly or    intentionally possessing        a controlled
   substance, except marijuana or any substance containing a quantifiable
   amount of the substances, chemicals, or compounds described, defined, or
   delineated in subdivision (c)(25) of Schedule I of section 28-405, unless
  such substance was obtained directly or pursuant to a medical order
  issued by a practitioner authorized to prescribe while acting in the
   course of    his or    her professional practice,      or except as    otherwise
  authorized by the act, shall be guilty of a Class IV felony. A person
  shall not be in violation of this subsection if section 28-472 applies.
          (4)(a) Except as authorized by the Uniform Controlled Substances
   Act,    any person eighteen years of    age or    older who knowingly or
   intentionally manufactures,           distributes,            delivers,         dispenses,        or
   possesses with intent to manufacture, distribute, deliver, or dispense a
  controlled substance or    a counterfeit controlled substance         (i)   to    a
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   person under the age of eighteen years, (ii) in, on, or within one
  thousand feet of    the real property comprising        a public or   private
   elementary,       vocational,        or secondary school,      a community college,     a
   public or    private college,    junior college,         or university,       or    a
   playground, or (iii) within one hundred feet of a public or private youth
   center, public swimming pool, or video arcade facility shall be punished
   by the next higher penalty classification than the penalty prescribed in
  subsection       (2),      (7),    (8),    (9),   or    (10),   or     (11)    of this section,
  depending upon the controlled substance involved, for the first violation
  and for a second or subsequent violation shall be punished by the next
  higher penalty classification than that prescribed for a first violation
   of this subsection, but in no event shall such person be punished by a
   penalty greater than a Class IB felony.
       (b) For purposes of this subsection:
       (i) Playground means any outdoor facility, including any parking lot
   appurtenant to the facility, intended for recreation, open to the public,
   and with any portion containing three or more apparatus intended for the
  recreation of     children,         including sliding boards,       swingsets,        and
  teeterboards;
       (ii) Video arcade facility means any facility legally accessible to
   persons under eighteen years of age, intended primarily for the use of
   pinball and video machines for amusement, and containing a minimum of ten
   pinball or video machines; and
       (iii) Youth center means any recreational facility or gymnasium,
   including any parking lot appurtenant to    the facility or   gymnasium,
  intended primarily for use by persons under eighteen years of age which
  regularly provides athletic, civic, or cultural activities.
       (5)(a) Except as authorized by the Uniform Controlled Substances
   Act, it shall be unlawful for any person eighteen years of age or older
   to knowingly and intentionally employ, hire, use, cause, persuade, coax,
   induce, entice, seduce, or coerce any person under the age of eighteen
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   years to manufacture, transport, distribute, carry, deliver, dispense,
   prepare for delivery, offer for delivery, or possess with intent to do
   the same a controlled substance or a counterfeit controlled substance.
       (b) Except as authorized by the Uniform Controlled Substances Act,
   it shall be unlawful for any person eighteen years of age or older to
   knowingly and intentionally employ, hire, use, cause, persuade, coax,
   induce, entice, seduce, or coerce any person under the age of eighteen
   years to aid and abet any person in the manufacture, transportation,
   distribution, carrying, delivery, dispensing, preparation for delivery,
   offering for delivery, or possession with intent to do the same of a
   controlled substance or a counterfeit controlled substance.
       (c)   Any person who violates subdivision   (a)   or    (b)   of this
   subsection shall be punished by the next higher penalty classification
   than the penalty prescribed in subsection (2), (7), (8), (9), or (10), or
   (11) of this section, depending upon the controlled substance involved,
   for the first violation and for a second or subsequent violation shall be
   punished by the next higher penalty classification than that prescribed
   for a first violation of this subsection, but in no event shall such
   person be punished by a penalty greater than a Class IB felony.
       (6)   It shall not be   a defense to   prosecution for violation of
   subsection (4) or (5) of this section that the defendant did not know the
   age of the person through whom the defendant violated such subsection.
       (7) Any person who violates subsection (1) of this section with
   respect to cocaine or any mixture or substance containing a detectable
   amount of cocaine in a quantity of:
       (a) One hundred forty grams or more shall be guilty of a Class IB
   felony;
       (b) At least twenty-eight grams but less than one hundred forty
   grams shall be guilty of a Class IC felony; or
       (c) At least ten grams but less than twenty-eight grams shall be
   guilty of a Class ID felony.
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      (8) Any person who violates subsection (1) of this section with
  respect to base cocaine (crack) or any mixture or substance containing a
  detectable amount of base cocaine in a quantity of:
       (a) One hundred forty grams or more shall be guilty of a Class IB
   felony;
      (b) At least twenty-eight grams but less than one hundred forty
  grams shall be guilty of a Class IC felony; or
      (c) At least ten grams but less than twenty-eight grams shall be
  guilty of a Class ID felony.
      (9) Any person who violates subsection (1) of this section with
  respect to heroin or any mixture or substance containing a detectable
  amount of heroin in a quantity of:
      (a) One hundred forty grams or more shall be guilty of a Class IB
  felony;
      (b) At least twenty-eight grams but less than one hundred forty
  grams shall be guilty of a Class IC felony; or
       (c) At least ten grams but less than twenty-eight grams shall be
   guilty of a Class ID felony.
      (10) Any person who violates subsection (1) of this section with
  respect to amphetamine, its salts, optical isomers, and salts of its
   isomers, or with respect to methamphetamine, its salts, optical isomers,
   and salts of its isomers, in a quantity of:
      (a) One hundred forty grams or more shall be guilty of a Class IB
  felony;
      (b) At least twenty-eight grams but less than one hundred forty
  grams shall be guilty of a Class IC felony; or
      (c) At least ten grams but less than twenty-eight grams shall be
  guilty of a Class ID felony.
      (11) Any person who violates subsection (1) of this section with
  respect to marijuana in a quantity of:
       (a) Five pounds or less shall be guilty of a Class IV felony; and
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      (b) More than five pounds shall be guilty of a Class IIA felony.
      (12) (11) Any person knowingly or intentionally possessing marijuana
  weighing more than three ounces one ounce but not more than one pound
  shall be guilty of a Class III misdemeanor.
      (13)       Any person knowingly or   intentionally possessing marijuana
   weighing more than one pound but not more than five pounds shall be
   guilty of a Class I misdemeanor.
       (14) (12) Any person knowingly or intentionally possessing marijuana
   weighing more than five pounds one pound shall be guilty of a Class IV
   felony.
       (15) (13) Any person knowingly or intentionally possessing marijuana
  weighing one ounce or less or any substance containing a quantifiable
  amount of the substances, chemicals, or compounds described, defined, or
  delineated in subdivision (c)(25) of Schedule I of section 28-405 shall:
       (a) For the first offense, be guilty of an infraction, receive a
  citation, be fined three hundred dollars, and be assigned to attend a
   course as prescribed in section 29-433 if the judge determines that
   attending such course is    in the best interest of   the individual
   defendant;
      (b) For the second offense, be guilty of a Class IV misdemeanor,
  receive    a citation,      and be    fined four hundred dollars and may be
  imprisoned not to exceed five days; and
       (c) For the third and all subsequent offenses, be guilty of a Class
  IIIA misdemeanor, receive a citation, be fined five hundred dollars, and
  be imprisoned not to exceed seven days.
       (16) (14) Any person convicted of violating this section, if placed
  on probation, shall, as a condition of probation, satisfactorily attend
   and complete appropriate treatment and counseling on drug abuse provided
   by a program authorized under the Nebraska Behavioral Health Services Act
   or other licensed drug treatment facility.
       (17)       (15)    Any person convicted of   violating this section,    if
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   sentenced to   the Department of     Correctional Services,      shall attend
   appropriate treatment and counseling on drug abuse.
         (18) (16) Any person knowingly or intentionally possessing a firearm
  while in violation of subsection (1) of this section shall be punished by
  the next higher penalty classification than the penalty prescribed in
  subsection (2), (7), (8), (9), or (10), or (11) of this section, but in
  no event shall such person be punished by a penalty greater than a Class
  IB felony.
         (19) (17) A person knowingly or intentionally in possession of money
  used or intended to be used to facilitate a violation of subsection (1)
  of this section shall be guilty of a Class IV felony.
         (20) (18) In addition to the existing penalties available for a
  violation of     subsection    (1)     of this section,    including any criminal
  attempt or    conspiracy to   violate subsection       (1)   of this section,   a
   sentencing court may order that any money,    securities,       negotiable
   instruments, firearms, conveyances, or electronic communication devices
   as defined in section 28-833 or any equipment, components, peripherals,
  software, hardware, or accessories related to electronic communication
  devices be forfeited as a part of the sentence imposed if it finds by
  clear and convincing evidence adduced at a separate hearing in the same
  prosecution, following conviction for a violation of subsection (1) of
  this section, and conducted pursuant to section 28-1601, that any or all
  such property was derived from,       used,    or intended to     be used to
  facilitate a violation of subsection (1) of this section.
         (21) (19) In addition to the penalties provided in this section:
          (a) If the person convicted or adjudicated of violating this section
  is eighteen years of age or younger and has one or more licenses or
  permits issued under the Motor Vehicle Operator's License Act:
          (i) For the first offense, the court may, as a part of the judgment
   of conviction or adjudication, (A) impound any such licenses or permits
   for thirty days and (B) require such person to attend a drug education
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   class;
       (ii) For a second offense, the court may, as a part of the judgment
   of conviction or adjudication, (A) impound any such licenses or permits
   for ninety days and (B) require such person to complete no fewer than
   twenty and no more than forty hours of community service and to attend a
   drug education class; and
       (iii) For a third or subsequent offense, the court may, as a part of
   the judgment of conviction or adjudication, (A) impound any such licenses
   or permits for twelve months and (B) require such person to complete no
   fewer than sixty hours of community service, to attend a drug education
   class, and to submit to a drug assessment by a licensed alcohol and drug
   counselor; and
       (b) If the person convicted or adjudicated of violating this section
   is eighteen years of age or younger and does not have a permit or license
   issued under the Motor Vehicle Operator's License Act:
       (i) For the first offense, the court may, as part of the judgment of
   conviction or adjudication, (A) prohibit such person from obtaining any
   permit or any license pursuant to the act for which such person would
   otherwise be eligible until thirty days after the date of such order and
   (B) require such person to attend a drug education class;
       (ii) For a second offense, the court may, as part of the judgment of
   conviction or adjudication, (A) prohibit such person from obtaining any
   permit or any license pursuant to the act for which such person would
   otherwise be eligible until ninety days after the date of such order and
   (B) require such person to complete no fewer than twenty hours and no
   more than forty hours of community service and to attend a drug education
   class; and
       (iii) For a third or subsequent offense, the court may, as part of
   the judgment of conviction or adjudication, (A) prohibit such person from
   obtaining any permit or any license pursuant to the act for which such
   person would otherwise be eligible until twelve months after the date of
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