An Act to revise and establish certain provisions related to drug crimes and enforcement and create a penalty therefor.
Be it enacted by the Legislature of the State of South Dakota:
Section 1. That 22-42-1 be AMENDED.
22-42-1. Definitions.
Terms used in this chapter mean:
(1) "Controlled drug or substance," a drug or substance, or an immediate precursor of a drug or substance, listed in Schedules I through IV. The term includes an altered state of a drug or substance listed in Schedules I through IV absorbed into the human body;
(2) "Counterfeit substance," a controlled drug or substance which, or the container of labeling of which, without authorization, bears the trade mark, trade name, or other identifying mark, imprint, number, or device, or any likeness thereof, of a manufacturer, distributor, or dispenser other than the person or persons who manufactured, distributed, or dispensed such substance and which thereby falsely purports or is represented to be the product of, or to have been distributed by, such other manufacturer, distributor, or dispenser;
(3) "Deliver" or "delivery," the actual or constructive transfer of a controlled drug, substance, or marijuana whether or not there exists an agency relationship;
(4) "Dispense," to deliver a controlled drug or substance to the ultimate user or human research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering, packaging, labeling, or compounding necessary to prepare the substance for such delivery, and a dispenser is one who dispenses;
(5) "Distribute," to deliver a controlled drug, substance, or marijuana. Distribution means the delivery of a controlled drug, substance, or marijuana;
(6) "Manufacture," the production, preparation, propagation, compounding, or processing of a controlled drug or substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis. A manufacturer includes any person who packages, repackages, or labels any container of any controlled drug or substance, except practitioners who dispense or compound prescription orders for delivery to the ultimate user;
(7) "Marijuana," all parts of any plant of the genus cannabis, whether growing or not, in its natural and unaltered state, except for drying or curing and crushing or crumbling. The term includes an altered state of marijuana absorbed into the human body. The term does not include fiber produced from the mature stalks of such plant, or oil or cake made from the seeds of such plant. The term does not include the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than three-tenths of one percent on a dry weight basis;
(8) "Marijuana concentrate," the resin extracted from any part of a marijuana plant and every compound, manufacture, salt, derivative, mixture, or preparation from such resin;
(9) "Practitioner," a doctor of medicine, osteopathy, podiatry, dentistry, optometry, or veterinary medicine licensed to practice his profession, or pharmacists licensed to practice their profession; physician's assistants certified to practice their profession; government employees acting within the scope of their employment; and persons permitted by certificates issued by the Department of Health to distribute, dispense, conduct research with respect to, or administer a substance controlled by chapter 34-20B;
(9)(10) "Precursor"
or "immediate precursor," a substance which the Department
of Health has found to be and by rule designates as being a principal
compound commonly used or produced primarily for use, and which is an
immediate chemical intermediary used or likely to be used, in the
manufacture of a controlled drug or substance, the control of which
is necessary to prevent, curtail, or limit such manufacture;
(10)(11) "Schedule
I," "Schedule II," "Schedule III," and
"Schedule IV," those schedules of drugs, substances, and
immediate precursors listed in chapter 34-20B;
(11)(12) "Ultimate
user," a person who lawfully possesses a controlled drug or
substance for that person's own use or for the use of a member of
that person's household or for administration to an animal owned by
that person or by a member of that person's household.
Section 2. That 22-42-2 be AMENDED.
22-42-2. Unauthorized manufacture, distribution, counterfeiting or possession of Schedule I or II substances as felony--Mandatory sentences.
Except as authorized by this chapter or chapter 34-20B, no person may manufacture, distribute, or dispense a substance listed in Schedules I or II; possess with intent to manufacture, distribute, or dispense a substance listed in Schedules I or II; create or distribute a counterfeit substance listed in Schedules I or II; or possess with intent to distribute a counterfeit substance listed in Schedules I or II. A violation of this section is a Class 4 felony. However, a violation of this section is a Class 3 felony if the person is in possession of three or more of the following:
(1) Three hundred dollars or more in cash;
(2) A firearm or other weapon pursuant to 22-14-6, 22-14-15, 22-14-15.1, 22-14-15.3, and subdivision 22-1-2(8);
(3) Bulk materials used for the packaging of controlled substances;
(4) Materials used to manufacture a controlled substance including recipes, precursor chemicals, laboratory equipment, lighting, ventilating or power generating equipment; or
(5) Drug transaction records or customer lists.
The distribution of a substance listed in Schedules I or II to a minor is a Class 2 felony. A first conviction under this section shall be punished by a mandatory sentence in the state penitentiary of at least one year, which sentence may not be suspended. Probation, suspended imposition of sentence, or suspended execution of sentence may not form the basis for reducing the mandatory time of incarceration required by this section. A second or subsequent conviction under this section shall be punished by a mandatory sentence in the state penitentiary of at least ten years, which sentence may not be suspended. Probation, suspended imposition of sentence, or suspended execution of sentence may not form the basis for reducing the mandatory time of incarceration required by this section. However, a first conviction for distribution to a minor under this section shall be punished by a mandatory sentence in the state penitentiary of at least five years, which sentence may not be suspended. Probation, suspended imposition of sentence, or suspended execution of sentence may not form the basis for reducing the mandatory time of incarceration required by this section. A second or subsequent conviction for distribution to a minor under this section shall be punished by a mandatory sentence in the state penitentiary of at least fifteen years, which sentence may not be suspended. Probation, suspended imposition of sentence, or suspended execution of sentence, may not form the basis for reducing the mandatory time of incarceration required by this section.
Any person who, for consideration, intentionally distributes any controlled substance or counterfeit substance in violation of this section and another person dies as a direct result of using that substance, the sentence for the principal felony shall be enhanced by increasing the class of the principal felony two levels. The enhancement may not exceed the sentence for a Class C felony.
A civil penalty may be imposed, in addition to any criminal penalty, upon a conviction of a violation of this section not to exceed ten thousand dollars. A conviction for the purposes of the mandatory sentence provisions of this chapter is the acceptance by a court of any plea, other than not guilty, including nolo contendere, or a finding of guilt by a jury or court.
A charge for unauthorized manufacture, distribution, or possession with intent to manufacture or distribute marijuana concentrate shall be charged under 22-42-7.5 or 22-42-7.6.
Section 3. That 22-42-5 be AMENDED.
22-42-5. Unauthorized possession of controlled drug or substance as felony.
No person may knowingly possess a controlled drug or substance unless the substance was obtained directly or pursuant to a valid prescription or order from a practitioner, while acting in the course of the practitioner's professional practice or except as otherwise authorized by chapter 34-20B. A charge for unauthorized possession of controlled substance when absorbed into the human body as set forth in subdivision 22-42-1(1) shall only be charged under the provisions of 22-42-5.1. A violation of this section for a substance in Schedules I or II is a Class 5 felony. A violation of this section for a substance in Schedule III and IV is a Class 6 felony. A charge for unauthorized possession of marijuana concentrate shall be charged under 22-42-7.4.
Section 4. That 22-42-5.1 be AMENDED.
22-42-5.1. Unauthorized ingestion of controlled drug or substance as felony.
No person may knowingly ingest a controlled drug or substance or have a controlled drug or substance in an altered state in the body unless the substance was obtained directly or pursuant to a valid prescription or order from a practitioner, while acting in the course of the practitioner's professional practice or except as otherwise authorized by chapter 34-20B. A violation of this section for a substance in Schedules I or II is a Class 5 felony. A violation of this section for a substance in Schedules III or IV is a Class 6 felony. This section does not apply to ingesting marijuana concentrate or having marijuana concentrate in an altered state in the body.
Section 5. That 22-42-6 be AMENDED.
22-42-6. Possession of certain amounts of marijuana prohibited--Degrees according to amount.
No person may knowingly
possess marijuana. It
is a Class 1
Class 2 misdemeanor to
possess two ounces
of marijuana or less
more than one ounce but less than eight ounces of marijuana.
It is a Class 6
felony Class 1
misdemeanor to possess
more than two ounces of marijuana but less than one half pound
eight to sixteen ounces
of marijuana. It is a
Class 5 Class
6 felony to possess
one half pound but less than one pound
more than sixteen ounces
of marijuana. It
is a Class 4 felony to possess one to ten pounds of marijuana. It is
a Class 3 felony to possess more than ten pounds of marijuana. A
civil penalty may be imposed, in addition to any criminal penalty,
upon a conviction of a violation of this section not to exceed ten
thousand dollars.
This section does not apply to any person licensed or registered with
the state to undertake an activity involving the possession of
marijuana who acts in compliance with the authorizing law. This
section does not apply to any person possessing marijuana complying
with the provisions of chapter 34-20G.
Section 6. That 22-42-7 be AMENDED.
22-42-7. Distribution or possession with intent to distribute specified amounts of marijuana--Degrees according to amount.
The distribution, or possession
with intent to distribute,
of less than one-half ounce of marijuana without consideration is a
Class 1 misdemeanor; otherwise, the distribution, or possession with
intent to distribute, of one ounce or less of marijuana is a Class 6
felony less
than two ounces of marijuana is a Class 2 misdemeanor.
The distribution, or possession with intent to distribute,
of more than one ounce but less than one-half pound of marijuana is a
Class 5 felony
two ounces but less than sixteen ounces of marijuana is a Class 1
misdemeanor.
The distribution, or possession with intent to distribute,
of one-half pound but less than one pound of marijuana is a Class 4
felony
sixteen ounces but less than five pounds of marijuana is a Class 6
felony. The
distribution, or possession with intent to distribute,
of one pound or more of marijuana is a Class 3 felony. The
distribution, or possession with intent to distribute, of less than
o