Bill Summary – FastDemocracy

Enrolled Copy                                                                        S.B. 86
              DRUG TESTING AND PARAPHERNALIA AMENDMENTS
                                       2023 GENERAL SESSION
                                           STATE OF UTAH
                                    Chief Sponsor: Jen Plumb
                                  House Sponsor: Steve Eliason
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 LONG TITLE
 General Description:
        This bill concerns drug testing and paraphernalia.
 Highlighted Provisions:
        This bill:
        < creates an exemption from liability under the Utah Controlled Substances Act for
 certain entities that temporarily possess a controlled or counterfeit substance in
 order to conduct a test on the substance for a certain reason;
        < modifies the definition of "drug paraphernalia" to exclude certain testing products
 or equipment; and
        < makes technical and conforming changes.
 Money Appropriated in this Bill:
        None
 Other Special Clauses:
        None
 Utah Code Sections Affected:
 AMENDS:
        58-37-8, as last amended by Laws of Utah 2022, Chapters 116, 415 and 430
        58-37a-3, as last amended by Laws of Utah 2011, Chapter 101
26
 Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 58-37-8 is amended to read:
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        58-37-8. Prohibited acts -- Penalties.
        (1) Prohibited acts A -- Penalties and reporting:
        (a) Except as authorized by this chapter, it is unlawful for a person to knowingly and
 intentionally:
        (i) produce, manufacture, or dispense, or to possess with intent to produce,
 manufacture, or dispense, a controlled or counterfeit substance;
        (ii) distribute a controlled or counterfeit substance, or to agree, consent, offer, or
 arrange to distribute a controlled or counterfeit substance;
        (iii) possess a controlled or counterfeit substance with intent to distribute; or
        (iv) engage in a continuing criminal enterprise where:
        (A) the person participates, directs, or engages in conduct that results in a violation of
 [Chapter 37, Utah Controlled Substances Act] this chapter, Chapter 37a, Utah Drug
 Paraphernalia Act, Chapter 37b, Imitation Controlled Substances Act, Chapter 37c, Utah
 Controlled Substance Precursor Act, or Chapter 37d, Clandestine Drug Lab Act, that is a
 felony; and
        (B) the violation is a part of a continuing series of two or more violations of [Chapter
 37, Utah Controlled Substances Act] this chapter, Chapter 37a, Utah Drug Paraphernalia Act,
 Chapter 37b, Imitation Controlled Substances Act, Chapter 37c, Utah Controlled Substance
 Precursor Act, or Chapter 37d, Clandestine Drug Lab Act, on separate occasions that are
 undertaken in concert with five or more persons with respect to whom the person occupies a
 position of organizer, supervisor, or any other position of management.
        (b) A person convicted of violating Subsection (1)(a) with respect to:
        (i) a substance or a counterfeit of a substance classified in Schedule I or II, a controlled
 substance analog, or gammahydroxybutyric acid as listed in Schedule III is guilty of a second
 degree felony, punishable by imprisonment for not more than 15 years, and upon a second or
 subsequent conviction is guilty of a first degree felony;
        (ii) a substance or a counterfeit of a substance classified in Schedule III or IV, or
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 marijuana, or a substance listed in Section 58-37-4.2 is guilty of a third degree felony, and
 upon a second or subsequent conviction is guilty of a second degree felony; or
           (iii) a substance or a counterfeit of a substance classified in Schedule V is guilty of a
 class A misdemeanor and upon a second or subsequent conviction is guilty of a third degree
 felony.
           (c) A person who has been convicted of a violation of Subsection (1)(a)(ii) or (iii) may
 be sentenced to imprisonment for an indeterminate term as provided by law, but if the trier of
 fact finds a firearm as defined in Section 76-10-501 was used, carried, or possessed on the
 person or in the person's immediate possession during the commission or in furtherance of the
 offense, the court shall additionally sentence the person convicted for a term of one year to run
 consecutively and not concurrently; and the court may additionally sentence the person
 convicted for an indeterminate term not to exceed five years to run consecutively and not
 concurrently.
           (d) (i) A person convicted of violating Subsection (1)(a)(iv) is guilty of a first degree
 felony punishable by imprisonment for an indeterminate term of not less than:
           (A) seven years and which may be for life; or
           (B) 15 years and which may be for life if the trier of fact determined that the defendant
 knew or reasonably should have known that any subordinate under Subsection (1)(a)(iv)(B)
 was under 18 years old.
           (ii) Imposition or execution of the sentence may not be suspended, and the person is
 not eligible for probation.
           (iii) Subsection (1)(d)(i)(B) does not apply to any defendant who, at the time of the
 offense, was under 18 years old.
           (e) The Administrative Office of the Courts shall report to the Division of Professional
 Licensing the name, case number, date of conviction, and if known, the date of birth of each
 person convicted of violating Subsection (1)(a).
           (2) Prohibited acts B -- Penalties and reporting:
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        (a) It is unlawful:
        (i) for a person knowingly and intentionally to possess or use a controlled substance
 analog or a controlled substance, unless it was obtained under a valid prescription or order,
 directly from a practitioner while acting in the course of the person's professional practice, or as
 otherwise authorized by this chapter;
        (ii) for an owner, tenant, licensee, or person in control of a building, room, tenement,
 vehicle, boat, aircraft, or other place knowingly and intentionally to permit them to be occupied
 by persons unlawfully possessing, using, or distributing controlled substances in any of those
 locations; or
        (iii) for a person knowingly and intentionally to possess an altered or forged
 prescription or written order for a controlled substance.
        (b) A person convicted of violating Subsection (2)(a)(i) with respect to:
        (i) marijuana, if the amount is 100 pounds or more, is guilty of a second degree felony;
 or
        (ii) a substance classified in Schedule I or II, or a controlled substance analog, is guilty
 of a class A misdemeanor on a first or second conviction, and on a third or subsequent
 conviction if each prior offense was committed within seven years before the date of the
 offense upon which the current conviction is based is guilty of a third degree felony.
        (c) Upon a person's conviction of a violation of this Subsection (2) subsequent to a
 conviction under Subsection (1)(a), that person shall be sentenced to a one degree greater
 penalty than provided in this Subsection (2).
        (d) A person who violates Subsection (2)(a)(i) with respect to all other controlled
 substances not included in Subsection (2)(b)(i) or (ii), including a substance listed in Section
 58-37-4.2, or marijuana, is guilty of a class B misdemeanor.
        (i) Upon a third conviction the person is guilty of a class A misdemeanor, if each prior
 offense was committed within seven years before the date of the offense upon which the
 current conviction is based.
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        Enrolled Copy                                                                              S.B. 86
         (ii) Upon a fourth or subsequent conviction the person is guilty of a third degree felony
 if each prior offense was committed within seven years before the date of the offense upon
 which the current conviction is based.
         (e) A person convicted of violating Subsection (2)(a)(i) while inside the exterior
 boundaries of property occupied by a correctional facility as defined in Section 64-13-1 or a
 public jail or other place of confinement shall be sentenced to a penalty one degree greater than
 provided in Subsection (2)(b), and if the conviction is with respect to controlled substances as
 listed in:
         (i) Subsection (2)(b), the person may be sentenced to imprisonment for an
 indeterminate term as provided by law, and:
         (A) the court shall additionally sentence the person convicted to a term of one year to
 run consecutively and not concurrently; and
         (B) the court may additionally sentence the person convicted for an indeterminate term
 not to exceed five years to run consecutively and not concurrently; and
         (ii) Subsection (2)(d), the person may be sentenced to imprisonment for an
 indeterminate term as provided by law, and the court shall additionally sentence the person
 convicted to a term of six months to run consecutively and not concurrently.
         (f) A person convicted of violating Subsection (2)(a)(ii) or (iii) is:
         (i) on a first conviction, guilty of a class B misdemeanor;
         (ii) on a second conviction, guilty of a class A misdemeanor; and
         (iii) on a third or subsequent conviction, guilty of a third degree felony.
         (g) The Administrative Office of the Courts shall report to the Division of Professional
 Licensing the name, case number, date of conviction, and if known, the date of birth of each
 person convicted of violating Subsection (2)(a).
         (3) Prohibited acts C -- Penalties:
         (a) It is unlawful for a person knowingly and intentionally:
         (i) to use in the course of the manufacture or distribution of a controlled substance a
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 license number which is fictitious, revoked, suspended, or issued to another person or, for the
 purpose of obtaining a controlled substance, to assume the title of, or represent oneself to be, a
 manufacturer, wholesaler, apothecary, physician, dentist, veterinarian, or other authorized
 person;
           (ii) to acquire or obtain possession of, to procure or attempt to procure the
 administration of, to obtain a prescription for, to prescribe or dispense to a person known to be
 attempting to acquire or obtain possession of, or to procure the administration of a controlled
 substance by misrepresentation or failure by the person to disclose receiving a controlled
 substance from another source, fraud, forgery, deception, subterfuge, alteration of a
 prescription or written order for a controlled substance, or the use of a false name or address;
           (iii) to make a false or forged prescription or written order for a controlled substance,
 or to utter the same, or to alter a prescription or written order issued or written under the terms
 of this chapter; or
           (iv) to make, distribute, or possess a punch, die, plate, stone, or other thing designed to
 print, imprint, or reproduce the trademark, trade name, or other identifying mark, imprint, or
 device of another or any likeness of any of the foregoing upon any drug or container or labeling
 so as to render a drug a counterfeit controlled substance.
           (b) (i) A first or second conviction under Subsection (3)(a)(i), (ii), or (iii) is a class A
 misdemeanor.
           (ii) A third or subsequent conviction under Subsection (3)(a)(i), (ii), or (iii) is a third
 degree felony.
           (c) A violation of Subsection (3)(a)(iv) is a third degree felony.
           (4) Prohibited acts D -- Penalties:
           (a) Notwithstanding other provisions of this section, a person not authorized under this
 chapter who commits any act that is unlawful under Subsection (1)(a) or Section 58-37b-4 is
 upon conviction subject to the penalties and classifications under this Subsection (4) if the trier
 of fact finds the act is committed:
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           (i) in a public or private elementary or secondary school or on the grounds of any of
 those schools during the hours of 6 a.m. through 10 p.m.;
           (ii) in a public or private vocational school or postsecondary institution or on the
 grounds of any of those schools or institutions during the hours of 6 a.m. through 10 p.m.;
           (iii) in or on the grounds of a preschool or child-care facility during the preschool's or
 facility's hours of operation;
           (iv) in a public park, amusement park, arcade, or recreation center when the public or
 amusement park, arcade, or recreation center is open to the public;
           (v) in or on the grounds of a house of worship as defined in Section 76-10-501;
           (vi) in or on the grounds of a library when the library is open to the public;
           (vii) within an area that is within 100 feet of any structure, facility, or grounds included
 in Subsections [(4)(a)(i), (ii), (iii), (iv), (v), and] (4)(a)(i) through (vi);
           (viii) in the presence of a person younger than 18 years old, regardless of where the act
 occurs; or
           (ix) for the purpose of facilitating, arranging, or causing the transport, delivery, or
 distribution of a substance in violation of this section to an inmate or on the grounds of a
 correctional facility as defined in Section 76-8-311.3.
           (b) (i) A person convicted under this Subsection (4) is guilty of a first degree felony
 and shall be imprisoned for a term of not less than five years if the penalty that would
 otherwise have been established but for this Subsection (4) would have been a first degree
 felony.
           (ii) Imposition or execution of the sentence may not be suspended, and the person is
 not eligible for probation.
           (c) If the classification that would otherwise have been established would have been
 less than a first degree felony but for this Subsection (4), a person convicted under this
 Subsection (4) is guilty of one degree more than the maximum penalty prescribed for that
 offense.
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        (d) (i) If the violation is of Subsection (4)(a)(ix):
        (A) the person may be sentenced to imprisonment for an indeterminate term as
 provided by law, and the court shall additionally sentence the person convicted for a term of
 one year to run consecutively and not concurrently; and
        (B) the court may additionally sentence the person convicted for an indeterminate term
 not to exceed five years to run consecutively and not concurrently; and
        (ii) the penalties under this Subsection (4)(d) apply also to a person who, acting with
 the mental state required for the commission of an offense, directly or indirectly solicits,
 requests, commands, coerces, encourages, or intentionally aids another person to commit a
 violation of Subsection (4)(a)(ix).
        (e) It is not a defense to a prosecution under this Subsection (4) that:
        (i) the actor mistakenly believed the individual to be 18 years old or older at the time of
 the offense or was unaware of the individual's true age; or
        (ii) the actor mistakenly believed that the location where the act occurred was not as
 described in Subsection (4)(a) or was unaware that the location where the act occurred was as
 described in Subsection (4)(a).
        (5) A violation of this chapter for which no penalty is specified is a class B
 misdemeanor.
        (6) (a) For purposes of penalty enhancement under Subsections (1) and (2), a plea of
 guilty or no contest to a violation or attempted violation of this section or a plea which is held
 in abeyance under Title 77, Chapter 2a, Pleas in Abeyance, is the equivalent of a conviction,
 even if the charge has been subsequently reduced or dismissed in accordance with the plea in
 abeyance agreement.
        (b) A prior conviction used for a penalty enhancement under Subsection (2) shall be a
 conviction that is:
        (i) from a separate criminal episode than the current charge; and
        (ii) from a conviction that is separate from any other conviction used to enhance the
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        Enrolled Copy                                                                              S.B. 86
 current charge.
         (7) A person may be charged and sentenced for a violation of this section,
 notwithstanding a charge and sentence for a violation of any other section of this chapter.
         (8) (a) A penalty imposed for violation of this section is in addition to, and not in lieu
 of, a civil or ad