Senate Bill No. 306
(By Senator Wagner)
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[Introduced March 5, 1993; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact article one, chapter sixty-a of the
code of West Virginia, one thousand nine hundred thirty-one,
as amended; to amend and reenact article two of said
chapter; to further amend said article by adding thereto a
new section, designated section two hundred fourteen; to
amend and reenact article three of said chapter; to further
amend said article by adding thereto a new section,
designated section three hundred nine; to amend and reenact
article four of said chapter; and to further amend said
article by adding thereto ten new sections, designated
sections four hundred nine, four hundred ten, four hundred
eleven, four hundred twelve, four hundred thirteen, four
hundred fourteen, four hundred fifteen, four hundred
sixteen, four hundred seventeen and four hundred eighteen,
all relating to controlled substances; definitions;
enrolling certain chemical substances ranked by the
potential for abuse and usefulness in medical treatment in
five ranked schedules; permitting the state board of
pharmacy to schedule additional substances as controlled
substances; providing for emergency scheduling of chemical
analogues to scheduled controlled substances; regulating the
manufacture, distribution and dispensing of controlled
substances; requiring registration of all persons who
manufacture, distribute or dispense controlled substances;
suspension or revocation of registration; orders to show
cause; diversion prevention and control; requiring the
department of health and human resources to report on
patterns in distribution, diversion and abuse of controlled
substances and to engage in agreements with other agencies
and cooperative programs to identify, prevent and control
diversion; offenses and penalties; adding penalty provisions
for offenses relating to counterfeit and imitation
controlled substances, for solicitation to engage in
violations relating to controlled substances, for
distribution of controlled substances in the vicinity of a
school or college, for using children in the distribution of
controlled substances and for laundering proceeds from
traffic in controlled substances; and requiring monetary
assessment of persons convicted of violations to be used for
purposes of drug education and treatment.
Be it enacted by the Legislature of West Virginia:
That article one, chapter sixty-a of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted; that article two of said chapter be
amended and reenacted; that said article be further amended by
adding thereto a new section, designated section two hundred
fourteen; that article three of said chapter be amended and
reenacted; that said article be further amended by adding thereto
a new section, designated section three hundred nine; that
article four of said chapter be amended and reenacted; and that
said article be further amended by adding thereto ten new
sections, designated sections four hundred nine, four hundred
ten, four hundred eleven, four hundred twelve, four hundred
thirteen, four hundred fourteen, four hundred fifteen, four
hundred sixteen, four hundred seventeen and four hundred
eighteen, all to read as follows:
ARTICLE 1. DEFINITIONS.
§60A-1-101. Definitions.
As used in this chapter:
(a) "Administer" unless the context otherwise requires,
means to apply controlled substance, whether by injection,
inhalation, ingestion or any other means, directly to the body of
a patient or research subject by:
(1) A practitioner (or, in the practitioner's presence, by
the practitioner's authorized agent); or
(2) The patient or research subject at the direction and in
the presence of the practitioner.
(b) "Controlled substance" means a drug, substance or
immediate precursor included in Schedules I through V of article
two.
(c)(1) "Controlled substance analog" means a substance the
chemical structure of which is substantially similar to the
chemical structure of a controlled substance in Schedule I or II;
and
(A) Which has a stimulant, depressant or hallucinogenic
effect on the central nervous system substantially similar to the
stimulant, depressant or hallucinogenic effect on the central
nervous system of a controlled substance included in Schedule I
or II; or
(B) With respect to a particular individual, which the
individual represents or intends to have a stimulant, depressant
or hallucinogenic effect on the central nervous system
substantially similar to the stimulant, depressant or
hallucinogenic effect on the central nervous system of a
controlled substance included in Schedule I or II.
(2) The term does not include:
(A) A controlled substance;
(B) A substance for which there is an approved new drug
application;
(C) A substance with respect to which an exemption is in
effect for investigational use by a particular person under
Section 505 of the Federal Food, Drug and Cosmetic Act (21 U.S.C.
355) to the extent conduct with respect to the substance ispursuant to the exemption; or
(D) Any substance to the extent not intended for human
consumption before an exemption takes effect with respect to the
substance.
(d) "Deliver" or "delivery," unless the context otherwise
requires, means the actual or constructive transfer from one
person to another of a substance, whether or not there is an
agency relationship.
(e) "Dispense" means to deliver a controlled substance to an
ultimate user or 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 that delivery.
(f) "Dispenser" means a practitioner who dispenses.
(g) "Distribute" means to deliver, other than by
administering or dispensing, a controlled substance.
(h) "Distributor" means a person who distributes.
(i) "Drug" means (1) substances recognized as drugs in the
official United States Pharmacopoeia, National Formulary or the
official Homeopathic Pharmacopoeia of the United States, or any
supplement to any of them; (2) substances intended for use in the
diagnosis, cure, mitigation, treatment or prevention of disease
in individuals or animals; (3) substances (other than food)
intended to affect the structure or any function of the body of
individuals or animals; and (4) substances intended for use as a
component of any article specified in clause (1), (2) or (3) ofthis subdivision. The term does not include devices or their
components, parts or accessories.
(j) "Drug enforcement administration" means the drug
enforcement administration in the United States department of
justice, or its successor agency.
(k) "Immediate precursor" means a substance:
(1) That the "state board of board of pharmacy" has found to
be and by rule designates as being the principal compound used,
or produced primarily for use, in the manufacture of a controlled
substance;
(2) That is an immediate chemical intermediary used or
likely to be used in the manufacture of the controlled substance;
and
(3) The control of which is necessary to prevent, curtail or
limit the manufacture of the controlled substance.
(l) "Isomer" means an optical isomer, but in sections
101(o)(5), 204(a)(1)(V), 204(a)(1)(X), 206(a)(1)(D) and
401(a)(1)(B)(ii) the term includes any geometrical isomer; in
sections 204(a)(1)(H), 204(a)(1)(pp) and 210(a)(3) the term
includes any positional isomer; and in sections 204(a)(1)(II),
204(a)(3) and 208(a)(1) the term includes any positional or
geometric isomer.
(m) "Manufacture" means the production, preparation,
propagation, compounding, conversion or processing of a
controlled substance, either directly or indirectly or by
extraction from substances of natural origin, or independently bymeans of chemical synthesis, or by a combination of extraction
and chemical synthesis, and includes any packaging or repackaging
of the substance or labeling or relabeling of its container. The
term does not include the preparation, compounding, packaging,
repackaging, labeling or relabeling of a controlled substance:
(1) By a practitioner as an incident to the practitioner's
administering or dispensing of a controlled substance in the
course of the practitioner's professional practice; or
(2) By a practitioner, or by the practitioner's authorized
agent under the practitioner's supervision, for the purpose of,
or as an incident to, research, teaching, or chemical analysis
and not for sale.
(n) "Marihuana" means all parts of the plant Cannabis,
whether growing or not; the seeds thereof; the resin extracted
from any part of the plant; and every compound, manufacture,
salt, derivative, mixture, or preparation of the plant, its seeds
or resin. The term does not include the mature stalks of the
plant, fiber produced from the stalks, oil or cake made from the
seeds of the plant, any other compound, manufacture, salt,
derivative, mixture, or preparation of the mature stalks (except
the resin extracted therefrom), fiber, oil or cake, or the
sterilized seed of the plant which is incapable of germination.
(o) "Narcotic drug" means any of the following, whether
produced directly or indirectly by extraction from substances of
vegetable origin, or independently by means of chemical
synthesis, or by a combination of extraction and chemicalsynthesis:
(1) Opium, opium derivative and any derivative of opium or
opium derivative, including their salts, isomers and salts of
isomers, whenever the existence of the salts, isomers and salts
of isomers is possible within the specific chemical designation.
The term does not include the isoquinoline alkaloids of opium;
(2) Synthetic opiate and any derivative of synthetic opiate,
including their osomers, esters, ethers, salts and salts of
isomers, esters and ethers, whenever the existence of the
isomers, esters, ethers and salts is possible within the specific
chemical designation;
(3) Poppy straw and concentrate of poppy straw;
(4) Coca leaves, except coca leaves and extracts of coca
leaves from which cocaine, ecgonine and derivatives of ecgonine
or their salts have been removed;
(5) Cocaine, or any salt, isomer or salt of isomer thereof;
(6) Cocaine base;
(7) Ecgonine, or any derivative, salt, isomer or salt of
isomer thereof;
(8) Any compound, mixture or preparation containing any
quantity of any substance referred to in subparagraphs (1)
through (7).
(p) "Opiate" means any substance having an addiction-forming
or addiction-sustaining liability similar to morphine or being
capable of conversion into a drug having addiction-forming or
addiction-sustaining liability. The term includes opium,substances derived from opium (opium derivatives) and synthetic
opiates. The term does not include, unless specifically
designated as controlled under section two hundred one, article
two of this chapter, the dextrorotatory isomer of 3-methoxy-n-
methylmorphinan and its salts (dextromethorphan). The term
includes the racemic and levorotatory forms of dextromethorphan.
(q) "Opium poppy" means the plant of the species Papaver
somniferum L., except its seeds.
(r) "Person" means individual, corporation, business trust,
estate, trust, partnership, association, joint venture,
government or governmental subdivision or agency or any other
legal or commercial entity.
(s) "Poppy straw" means all parts, except the seeds, of the
opium poppy, after mowing.
(t) "Practitioner" means a physician, dentist, veterinarian,
scientific investigator, pharmacy, hospital or other person
licensed, registered or otherwise permitted, by this state, to
distribute, dispense, conduct research with respect to,
administer, or to use in teaching or chemical analysis, a
controlled substance in the course of professional practice or
research.
(u) "Production," unless the context otherwise requires,
includes the manufacturing, planting, cultivating, growing or
harvesting of a controlled substance.
(v) "State," unless the context otherwise requires, means a
state of the United States, the District of Columbia, theCommonwealth of Puerto Rico, or a territory or insular possession
subject to the jurisdiction of the United States.
(w) "Ultimate user" means an individual who lawfully
possesses a controlled substance for the individual's own use or
for the use of a member of an individual's household or for
administering to an animal owned by the individual or by a member
of the individual's household.
ARTICLE 2. STANDARDS AND SCHEDULES.
§60A-2-201. Authority to control.
(a) The state board of pharmacy shall administer the
provisions of this chapter and may add substances to or delete or
reschedule substances listed in sections two hundred four, two
hundred six, two hundred eight, two hundred ten or two hundred
twelve pursuant to the procedures of chapter twenty-nine-a of
this code.
(1) In making a determination regarding a substance, the
state board of pharmacy shall consider the following:
(A) The actual or relative potential for abuse;
(B) The scientific evidence of its pharmacological effect,
if known;
(C) The state of current scientific knowledge regarding the
substance;
(D) The history and current pattern of abuse;
(E) The scope, duration and significance of abuse;
(F) The risk to the public health;
(G) The potential of the substance to produce psychic orphysiological dependence liability; and
(H) Whether the substance is an immediate precursor of a
controlled substance.
(2) The state board of pharmacy may consider findings of the
federal food and drug administration or the drug enforcement
administration as prima facie evidence relating to one or more of
the determinative factors.
(b) After considering the factors enumerated in subsection
(a), the state board of pharmacy shall make findings with respect
thereto and adopt and cause to be published a rule controlling
the substance upon finding the substance has a potential for
abuse.
(c) The state board of pharmacy, without regard to the
findings required by subsection (a) or sections two hundred
three, two hundred five, two hundred seven, two hundred nine and
two hundred eleven or the procedures prescribed by subsections
(a) and (b) of this section, may place an immediate precursor in
the same schedule in which the controlled substance of which it
is an immediate precursor is placed or in any other schedule. If
the state board of pharmacy designates a substance as an
immediate precursor, substances that are precursors of the
controlled precursor are not subject to control solely because
they are precursors of the controlled precursor.
(d) If a substance is designated, rescheduled or deleted as
a controlled substance under federal law, the state board of
pharmacy shall similarly control the substance under theprovisions of this chapter after the expiration of thirty days
from the date of publication in the Federal Register of a final
order designating the substance as a controlled substance or
rescheduling or deleting the substance or from the date of
issuance of an order of temporary scheduling under section 508 of
the federal Dangerous Drug Diversion Control Act of 1984 (21
U.S.C. 811(h)), unless within that thirty-day period, the state
board of pharmacy or an interested party objects to inclusion,
rescheduling, temporary scheduling or deletion. If no objection
is made, the state board of pharmacy shall adopt and cause to be
published, without the necessity of making determinations or
findings as required by subsection (a) or section two hundred
three, two hundred five, two hundred seven, two hundred nine or
two hundred eleven, a final rule for which notice of proposed
rulemaking is omitted, designating, rescheduling, temporarily
scheduling or deleting the substance. If an objection is made,
the state board of pharmacy shall make a determination with
respect to the designation, rescheduling or deletion of the
substance as provided by subsection (a). Upon receipt of an
objection to inclusion, rescheduling or deletion under the
provisions of this chapter by the state board of pharmacy, the
state board of pharmacy shall publish notice of the receipt of
the objection and control under the provisions of this chapter is
stayed until the state board of pharmacy adopts a rule as
provided by subsection (a).
(e) The state board of pharmacy, by rule and without regardto the requirements of subsection (a), may schedule a substance
in Schedule I regardless of whether the substance is
substantially similar to a controlled substance in Schedule I or
II if the state board of pharmacy finds that scheduling of the
substance on an emergency basis is necessary to avoid an imminent
hazard to the public safety and the substance is not included in
any other schedule or no exemption or approval is in effect for
the substance under section 505 of the federal Food, Drug and
Cosmetic Act (21 U.S.C. 355). Upon receipt of notice under
section two hundred fourteen, the state board of pharmacy shall
initiate scheduling of the controlled substance analog on an
emergency basis pursuant to this subsection. The scheduling of
a substance under this subsection expires one year after the
adoption of the scheduling rule. With respect to the finding of
an imminent hazard to the public safety, the state board of
pharmacy shall consider whether the substance has been scheduled
on a temporary basis under federal law or factors set forth in
subsections (a)(1)(D), (E) and (F), and may also consider
clandestine importation, manufacture or distribution, and, if
available, information concerning the other factors set forth in
subsection (a)(1). A rule may not be adopted under this
subsection until the state board of pharmacy initiates a
rulemaking proceeding under subsection (a) with respect to the
substance. A rule adopted under this subsection must be vacated
upon the conclusion of the rulemaking proceeding initiated under
subsection (a) with respect to the substance.
(f) Authority to control under this section does not extend
to distilled spirits, wine, malt beverages or tobacco.
§60A-2-202. Nomenclature.
The controlled substances listed or to be included in the
schedules in sections two hundred four, two hundred six, two
hundred eight, two hundred ten and two hundred twelve are
included by whatever official, common, usual, chemical or trade
name designated.
§60A-2-203. Schedule I tests.
(a) The state board of pharmacy shall place a substance in
Schedule I upon finding that the substance:
(1) Has high potential for abuse;
(2) Has no currently accepted medical use in treatment in
the United States; and
(3) Lacks accepted safety for use under medical supervision.
(b) The state board of pharmacy may place a substance in
Schedule I without making the findings required by subsection (a)
if the substance is controlled under Schedule I of the federal
Controlled Substances Act by a federal agency as the result of an
international treaty, convention or protocol.
§60A-2-204. Schedule I.
(a) Unless specifically excepted by state or federal law or
regulation or more specifically included in another schedule, the
following controlled substances are listed in Schedule I:
(1) Any of the following synthetic opiates, including their
isomers, esters, ethers, salts and salts of isomers, esters andethers whenever the existence of those isomers, esters, ethers
and salts is possible within the specific chemical designation:
(A) Acetyl-alpha-methylfentanyl (N-[1-(-methyl-2-phenethyl)
-4-piperidinyl]-N-phenylacetamide);
(B) Acetylmethadol;
(C) Allylprodine;
(D) Alphacetylmethadol;
(E) Alphameprodine;
(F) Alphamethadol;
(G) Alpha-methylfentanyl (N-[1-(alpha-methyl-beta-phenyl)
ethyl-4-piperidyl] propionanilide; 1-(1-methyl-2-phenylethyl)-4-
(N-propanilido) piperidine);
(H) Alpha-methylthiofentanyl (N-[1-methyl-2-(2-thienyl)
ethyl-4-piperidinyl]-N-phenylpropanamide);
(I) Benzethidine;
(J) Betacetylmethadol;
(K) Beta-hydroxyfentanyl (N-[1-(2-hydroxy-2-phenethyl) -4-
piperidinyl]-N-phenylpropanamide);
(L) Beta-hydroxy-3-methylfentanyl (other name:
N-[1-(2-hydroxy-2-phenethyl)-3-methyl-4-piperidinyl] -N-
phenylpropanamide);
(M)
Betameprodine;
(N) Betamethadol;
(O) Betaprodine;
(P) Clonitazene;
(Q)
Dextromoramide;
(R) Diampromide;
(S) Diethylthiambutene;
(T) Difenoxin;
(U) Dimenoxadol;
(V) Dimepheptanol;
(W) Dimethylthiambutene;
(X) Dioxaphetyl butyrate;
(Y) Dipipanone;
(Z) Ethylmethylthiambutene;
(AA) Etonitazene;
(BB) Etoxeridine;
(CC) Furethidine;
(DD) Hydroxypethidine;
(EE) Ketobemidone;
(FF) Levomoramide;
(GG) Levophenacylmorphan;
(HH) 3-Methylfentanyl
(N-[3-methyl-1-(2-phenylethyl)-4-piperidyl]-N-phenylpropanamide);
(II) 3-methylthiofentanyl (N-[3-methyl-1-(2-thienyl)
ethyl-4-piperinyl]-N-phenylpropanamide);
(JJ) Morpheridine;
(KK) MPPP (1-methyl-4-phenyl-4-propionoxypiperidine);
(LL) Noracymethadol;
(MM) Norlevorphanol;
(NN) Normethadone;
(OO) Norpipanone;
(PP) Para-fluorofentanyl (N-(4-fluorophenyl)
-N-[1-(2-phenethyl)-4-piperidinly]-propanamide);
(QQ) PEPAP(1-(-2-phenethyl)-4-phenyl-4-acetoxypiperidine);
(RR) Phenadoxone;
(SS) Phenampromide;
(TT) Phenomorphan;
(UU) Phenoperidine;
(VV) Piritramide;
(WW) Proheptazine;
(XX) Properidine;
(YY) Propiram;
(ZZ) Racemoramide;
(AAA) Thiofentanyl
(N-phenyl-N-[1-(2-thienyl)ethyl-4-piperidinyl]-propanamide);
(BBB) Tilidine;
(CCC) Trimeperidine.
(2) Any of the following opium derivatives, including their
salts, isomers and salts of isomers whenever the existence of
those salts, isomers and salts of isomers is possible within the
specific chemical designation:
(A) Acetorphine;
(B) Acetyldihydrocodeine;
(C) Benzylmorphine;
(D) Codeine methylbromide;
(E) Codeine-N-Oxide;
(F) Cyprenorphine;
(G) Desomorphine;
(H) Dihydromorphine;
(I) Drotebanol;
(J) Etorphine, except hydrocholoride salt);
(K) Heroin;
(L) Hydromorphinol;
(M) Methyldesorphine;
(N) Methyldihydromorphine;
(O) Morphine methylbromide;
(P) Morphine methylsulfonate;
(Q) Morphine-N-Oxide;
(R) Myrophine;
(S) Nicocodeine;
(T) Nicomorphine;
(U) Normorphine;
(V) Pholcodine;
(W) Thebacon.
(3) Any material, compound, mixture or preparation
containing any quantity of the following hallucinogenic
substances, including their salts, isomers and salts of isomers
whenever the existence of those salts, isomers and salts of
isomers is possible within the specific chemical designation:
(A) 4-bromo-2,5-dimethoxy-amphetamine (Some trade or other
names: 4-bromo-2,5-dimethoxy-alpha-methylphenethylamine; 4-
bromo-2,5-DMA.);
(B) 2,5-dimethoxyamphetamine (Some trade or other names: 2,5-dimethoxy-alpha-methylphenethylamine; 2,5-DMA.);
(C) 4-methoxyamphetamine; (Some trade or other names: 4-
methoxy-alpha-methylphenethylamine; paramenthoxyamphetamine;
PMA.);
(D) 5-methloxy-3, 4-methylenedioxy amphetamine;
(E) 4-methyl-2,5-dimethoxy amphetamine (Some trade and other
names: 4-methyl-2,5-dimethoxy-alpha-methylphenethylamine; DOM;
and STP.);
(F) 3,4-methylenedioxy amphetamine;
(G) 3,4-methylenedioxymethamphetamine (MDMA);
(H) methylenedioxy-N-ethylamphetamine (also known as
N-ethyl-alpha-methy1-3,4 (methylenedioxy) phenethylamine, N-ethyl
MDA,MDE, MDEA);
(I) N-hydroxy-3,4-methylenedioxy amphetamine (also knwon as
N-hydroxy-alpha-methyl-3,4 (methylenedioxy) phenethylamine, and
N-hydroxy MDA);
(J) 3,4,5-trimethoxy amphetamine;
(K) Bufotenine (Some trade and other names: 3-(beta-
Dimethylaminoethyl) -5-hydroxyindole; 3-(2-dimethylaminoethyl) -
5-indolol; N, N-dimethylserotonin; 5-hydroxy-N,N-
dimethyltryptamine; mappine.);
(L) Diethyltryptamine (Some trade or other names: N,N-
Diethyltryptamine; DET.);
(M) Dimethyltryptamine (Some trade or other names: DMT.);
(N) Ibogaine (Some trade and other names: (7-Ethyl-6,6B,7,
8,9,10,12,13-octahydro-2-methoxy-6,9-methano-5H-pyrido [1', 2': 1,2] azepine [5,4-b] indole; Tabernanthe iboga.);
(O) Lysergic acid diethylamide;
(P) Marihuana;
(Q) Mescaline;
(R) Parahexyl (Some trade or other names: 3-Hexyl-1-
hydroxy-7,8,9,10-tetrahydro-6,6,9-trimethyl-6H-dibenzo
[b,d]pyran; Synhexyl.);
(S) Peyote (Meaning all parts of the plant presently
classified botanically as Lophophora Williamsii Lemaire, whether
growing or not, the seeds thereof, any extract from any part of
the plant and every compound, manufacture, salts, derivative,
mixture or preparation of the plant, its seeds or extracts.);
(T) N-ethyl-3-piperidyl benzilate;
(U) N-methyl-3-piperidyl benzilate;
(V) Psilocybin;
(W) Psilocyn;
(X) Tetrahydrocannabinols, synthetic equivalents of the
substances contained in the plant, or in the resinous extractives
of cannabis, sp. and/or synthetic substances, derivatives, and
their isomers with similar chemical structure and pharmacological
activity such as the following:
(A) 1 - cis or trans tetrahydrocannabinol, and their
isomers;
(B) 6 - cis or trans tetrahydrocannabinol, and their
isomers; and
(C) 3,4 - cis or trans tetrahydrocannabinol, and its isomers(since nomenclature of these substances is not internationally
standarized, compounds of these structures, regardless of
numerical desynatime of atomic positions covered);
(Y) Ethylamine analog of phencyclidine (Some trade or other
names: N-ethyl-1-phenylcyclohexylamine, (l-phenylcyclohexyl)
ethylamine, N-(l-phenylcyclohexyl) ethylamine, cyclohexamine,
PCE.);
(Z) Pyrrolidine analog of phencyclidine (Some trade or
other names: l-(l-phenylcyclohexyl)-pyrrolidine, PCPy, PHP.);
(AA) Thiophene analog of phencyclidine (Some trade or other
names: 1-[1-(2-thienyl)-cyclohexyl]-piperidine, 2-thienyl analog
of phencyclidine, TPCP, TCP.); and
(BB) TCPy.
(4) Any material, compound, mixture or preparation
containing any quantity of the following substances having a
depressant effect on the central nervous system, including their
salts, isomers and salts of isomers whenever the existence of
those salts, isomers and salts of isomers is possible within the
specific chemical designation:
(A) Mecloqualone;
(B) Methaqualone.
(5) Any material, compound, mixture or preparation
containing any quantity of the following substances having a
stimulant effect on the central nervous system, including their
salts, isomers and salts of isomers:
(A) Fenethylline;
(B) N-ethylamphetamine;
(C) (+) Cis-4-methylaminorex ((+) cis-4,5-
dihydro-4-methyl-5-phenyl-2-oxazolamine); and
(D) N,N-dimethylamphetamine (also known as
N,n-alpha-trimethyl-benzeneethanamine;
N-N-alpha-trimethylphenethylamine).
(b) The controlled substances listed in this section may be
rescheduled or deleted as provided for in section two hundred
one.
§60A-2-205. Schedule II tests.
(a) The state board of pharmacy shall place a substance in
Schedule II upon finding that:
(1) The substance has high potential for abuse;
(2) The substance has currently accepted medical use in
treatment in the United States, or currently accepted medical use
with severe restrictions; and
(3) The abuse of the substance may lead to severe
psychological or physical dependence.
(b) The state board of pharmacy may place a substance in
Schedule II without making the findings required by subsection
(a) if the substance is controlled under Schedule II of the
federal Controlled Substances Act by a federal agency as the
result of an international treaty, convention or protocol.
§60A-2-206. Schedule II.
(a) Unless specifically excepted by state or federal law or
regulation or more specifically included in another schedule, thefollowing controlled substances are listed in Schedule II:
(1) Any of the following substances, however manufactured:
(A) Opium and opium derivative, and any salt, compound,
derivative or preparation of opium or opium derivative, excluding
apomorphine, thebaine-derived buto.phanol, dextrorphan,
nalbuphine, butorphanol, nalmefene, naloxone and naltrexone, but
including:
(i) Raw opium;
(ii) Opium extracts;
(iii) Opium fluid;
(iv) Powdered opium;
(v) Granulated opium;
(vi) Tincture of opium;
(vii) Codeine;
(viii) Ethylmorphine;
(ix) Etorphine hydrocholoride;
(x) Hydrocodone;
(xi) Hydromorphone;
(xii) Metopon;
(xiii) Morphine;
(xiv) Oxycodone;
(xv) Oxymorphone;
(xvi) Thebaine.
(B) Any salt, compound, derivative or preparation thereof
that is chemically equivalent or identical with any of the
substances referred to in subdivision (1), but not including theisoquinoline alkaloids of opium.
(C) Opium poppy and poppy straw;
(D) Coca leaves and any salt, compound, derivative or
preparation of coca leaves, including cocaine and ecgonine and
their salts, isomers, derivatives and salts of isomers and
derivatives, and any salt, compound, derivative or preparation
thereof that is chemically equivalent or identical with any of
these substances, but not including decocainized coca leaves or
extractions of coca leaves which do not contain cocaine or
ecgonine;
(E) Concentrate of poppy straw (the crude extract of poppy
straw in either liquid, solid or powder form which contains the
phenanthrene alkaloids of the opium poppy).
(2) Any of the following synthetic opiates, including their
isomers, esters, ethers, salts and salts of isomers, esters and
ethers of them that are theoretically possible within the
specific chemical designation, dextiorphan and levopropoxyphene
excepted:
(A) Alfentanil;
(B) Alphaprodine;
(C) Anileridine;
(D) Bezitramide;
(E) Carfental;
(F) Bulk dextropropoxyphene (nondosage forms);
(G) Dihydrocodeine;
(H) Diphenoxylate;
(I) Fentanyl;
(J) Isomethadone;
(K) Levomethorphan;
(L) Levorphanol;
(M) Metazocine;
(N) Methadone;
(O) Methadone-Intermediate, 4-cyano-2-dimethylamino-4,
4-diphenyl butane;
(P) Moramide-Intermediate, 2-methyl-3-morpholino-1,
1-diphenylpropanecarboxylic acid;
(Q) Pethidine (meperidine);
(R) Pethidine-Intermediate-A,
4-cyano-1-methyl-4-phenylpiperidine;
(S) Pethidine-Intermediate-B,
ethyl-4-phenylpiperidine-4-carboxylate;
(T) Pethidine-Intermediate-C,
1-methyl-4-phenylpiperidine-4-carboxylic acid;
(U) Phenazocine;
(V) Piminodine;
(W) Racemethorphan;
(X) Racemorphan;
(Y) Sufentanil.
(3) Any material, compound, mixture or preparation
containing any quantity of the following substances, their salts,
isomers or salts of isomers, having a stimulant effect on the
central nervous system:
(A) Amphetamine;
(B) Methamphetamine;
(C) Phenmetrazine; and
(D) Methylphenidate.
(4) Any material, compound, mixture or preparation
containing any quantity of the following substances having a
depressant effect on the central nervous system, including their
salts, isomers and salts of isomers of them that are
theoretically possible within the specific chemical designation:
(A) Amobarbital;
(B) Glutethimide;
(C) Pentobarbital;
(D) Phencyclidine;
(E) Secobarbital.
(5)(A) Dronabinol (synthetic) in sesame oil and encapsulated
in a soft gelatin capsule in a federal food and drug
administration approved drug product. (Some other names for
dronabinol: (6aR-trans)-6a, 7, 8, 10a-tetrahydro-6, 6, 9-
trimethyl-3-pentyl-6H-dibenzo [b,d] pyran-1- ol, or (-) -delta-9-
(trans)-tetrahydrocannabinol).
(B) Nabilone (Another name for nabilone: (+) trans-3-(1, 1-
demethylheptyl)-6, 6a, 7, 8, 10, 10a-hexahydro-1-hydroxy-6, 6-
dimethyl-9Hdibenzo [b,d] pyran-9-one).
(6) Any material, compound, mixture or preparation
containing any quantity of the following substances:
(A) Immediate precursor to amphetamine and methamphetamine: phenylacetone (Some trade or other names: phenyl-2-propanone;
P2P; benzyl methyl ketone; methyl benzyl ketone.);
(B) Immediate precursors to phencyclidine:
(i) 1-phenylcyclohexylamine;
(ii) 1-piperidinocyclohexanecarbonitrile (PCC).
(b) The controlled substances listed in this section may be
rescheduled or deleted as provided for in section two hundred
one.
§60A-2-207. Schedule III tests.
(a) The state board of pharmacy shall place a substance in
Schedule III upon finding that:
(1) The substance has a potential for abuse less than the
substances included in Schedules I and II;
(2) The substance has currently accepted medical use in
treatment in the United States; and
(3) Abuse of the substance may lead to moderate or low
physical dependence or high psychological dependence.
(b) The state board of pharmacy may place a substance in
Schedule III without making the findings required by subsection
(a) if the substance is controlled under Schedule III of the
federal Controlled Substances Act by a federal agency as the
result of an international treaty, convention or protocol.
§60A-2-208. Schedule III.
(a) Unless specifically excepted by state or federal law or
regulation or more specifically included in another schedule, the
following controlled substances are listed in Schedule III:
(1) Any material, compound, mixture or preparation
containing any quantity of the following substances having a
stimulant effect on the central nervous system, including their
salts, isomers and salts of isomers whenever the existence of
those salts, isomers and salts of isomers is possible within the
specific chemical designation:
(A) Any compound, mixture or preparation in dosage unit form
containing any stimulant substance included in Schedule II and
which was listed as an excepted compound on the twenty-fifth day
of August, one thousand nine hundred seventy-one, pursuant to the
federal Controlled Substances Act, and any other drug of the
quantative composition shown in that list for those drugs or
which is the same except for containing a lesser quantity of
controlled substances;
(B) Benzphetamine;
(C) Chlorphentermine;
(D) Clortermine;
(E) Phendimetrazine.
(2) Any material, compound, mixture or preparation
containing any quantity of the following substances having a
depressant effect on the central nervous system:
(A) Any compound, mixture or preparation containing any of
the following drugs or their salts and one or more other active
medicinal ingredients not included in any schedule:
(i) Amobarbital;
(ii) Secobarbital;
(iii) Pentobarbital;
(B) Any of the following drugs, or their salts, in
suppository dosage form, approved by the federal Food and Drug
Administration for marketing only as a suppository:
(i) Amobarbital;
(ii) Secobarbital;
(iii) Pentobarbital;
(C) Any substance containing any quantity of a derivative of
barbituric acid or any salt of a derivative of barbituric acid;
(i) Chlorhexadol;
(ii) Glutethimide;
(iii) Lysergic acid;
(iv) Lysergic acid amide;
(v) Methyprylon;
(vi) Sulfondiethylmethane;
(vii) Sulfonethylmethane;
(viii) Sulfonmethane;
(ix) Tiletamine and zolazepam or any of their salts (Some
trade or other names for a tiletamine-zolazepam combination
product: Telazol. Some trade or other names for tiletamine: 2-
(ethylamino)-2-(2-thienyl)-cyclohexanone. Some trade or other
names for zolazepam: 4-(2-fluorophenyl)-6, 8-dihydro-1, 3, 8-
trimethylpyrazolo-[3,4-e] [1,4]-diazepin-7(1H)-one.
flupyrazapon).
(3) Nalorphine.
(4) Any material, compound, mixture or preparationcontaining any of the following narcotic drugs, or their salts
calculated as the free anhydrous base or alkaloid, in limited
quantities as set forth below:
(A) Not more than 1.8 grams of codeine per 100 milliliters
or not more than 90 milligrams per dosage unit, with an equal or
greater quantity of an isoquinoline alkaloid of opium;
(B) Not more than 1.8 grams of codeine per 100 milliliters
or not more than 90 milligrams per dosage unit, with one or more
active, nonnarcotic ingredients in recognized therapeutic
amounts;
(C) Not more than 300 milligrams of dihydrocodeinone
(hydrocodone) per 100 milliliters or not more than 15 milligrams
per dosage unit, with a fourfold or greater quantity of an
isoquinoline alkaloid of opium;
(D) Not more than 300 milligrams of dihydrocodeinone
(hydrocodone) per 100 milliliters or not more than 15 milligrams
per dosage unit, with one or more active, nonnarcotic ingredients
in recognized therapeutic amounts;
(E) Not more than 1.8 grams of dihydrocodeine per 100
milliliters or not more than 90 milligrams per dosage unit, with
one or more active, nonnarcotic ingredients in recognized
therapeutic amounts;
(F) Not more than 300 milligrams of ethylmorphine per 100
milliliters or not more than 15 milligrams per dosage unit, with
one or more active, nonnarcotic ingredients in recognized
therapeutic amounts;
(G) Not more than 500 milligrams of opium per 100
milliliters or per 100 grams, or not more than 25 milligrams per
dosage unit, with one or more active, nonnarcotic ingredients in
recognized therapeutic amounts;
(H) Not more than 50 milligrams of morphine per 100
milliliters or per 100 grams with one or more active, nonnarcotic
ingredients in recognized therapeutic amounts; and
(I) Anabolic steroids. Unless specifically excepted or
unless listed in another schedule, any material, compound,
mixture, or preparation containing any quantity of the following
substances, including any salts, isomers, and salts of isomers of
them that are theoretically possible within the specific chemical
designation:
(A) Anabolic steriods.
(b) The state board of pharmacy may except by rule any
compound, mixture or preparation containing any stimulant or
depressant substance listed in subsections (a)(1) and (a)(2) from
the application of all or any part of the provisions of this
chapter if the compound, mixture or preparation contains one or
more active medicinal ingredients not having a stimulant or
depressant effect on the central nervous system, and if the
admixtures are in combinations, quantity, proportion or
concentration that vitiate the potential for abuse of the
substances having a stimulant or depressant effect on the central
nervous system.
(c) The controlled substances listed in this section may berescheduled or deleted as provided for in section two hundred
one.
§60A-2-209. Schedule IV tests.
(a) The state board of pharmacy shall place a substance in
Schedule IV upon finding that:
(1) The substance has a low potential for abuse relative to
substances included in Schedule III;
(2) The substance has currently accepted medical use in
treatment in the United States; and
(3) Abuse of the substance may lead to limited physical
dependence or psychological dependence relative to the substances
included in Schedule III.
(b) The state board of pharmacy may place a substance in
Schedule IV without making the findings required by subsection
(a) if the substance is controlled under Schedule IV of the
federal Controlled Substances Act by a federal agency as the
result of an international treaty, convention or protocol.
§60A-2-210. Schedule IV.
(a) Unless specifically excepted by state or federal law or
regulation or more specifically included in another schedule, the
following controlled substances are listed in Schedule IV:
(1) Any material, compound, mixture or preparation
containing any of the following narcotic drugs, or their salts
calculated as the free anhydrous base or alkaloid, in limited
quantities as set forth below:
(A) Not more than one milligram of difenoxin and not lessthan 25 micrograms of atropine sulfate per dosage unit;
(B) Dextropropoxyphene (alpha-(+)-4-dimethylamino-1, 2-
diphenyl-3-methyl-2-propionoxybutane).
(2) Any material, compound, mixture or preparation
containing any quantity of the following substances having a
depressant effect on the central nervous system, including their
salts, isomers and salts of isomers whenever the existence of
those salts, isomers and salts of isomers is possible within the
specific chemical designation:
(A) Alprazolam;
(B) Barbital;
(C) Bromazepam;
(D) Camazepam;
(E) Chloral betaine;
(F) Chloral hydrate;
(G) Chlordiazepoxide;
(H) Clobazam;
(I) Clonazepam;
(J) Clorazepate;
(K) Clotiazepam;
(L) Cloxazolam;
(M) Delorazepam;
(N) Diazepam;
(O) Estazolam;
(P) Ethchlorvynol;
(Q) Ethinamate;
(R) Ethyl loflazepate;
(S) Fludiazepam;
(T) Flunitrazepam;
(U) Flurazepam;
(V) Halazepam;
(W) Haloxazolam;
(X) Ketazolam;
(Y) Loprazolam;
(Z) Lorazepam;
(AA) Lormetazepam;
(BB) Mebutamate;
(CC) Medazepam;
(DD) Meprobamate;
(EE) Methohexital;
(FF) Methylphenobarbital (mephobarbital);
(GG) Midazolam;
(HH) Nimetazepam;
(II) Nitrazepam;
(JJ) Nordiazepam;
(KK) Oxazepam;
(LL) Oxazolam;
(MM) Paraldehyde;
(NN) Petrichloral;
(OO) Phenobarbital;
(PP) Pinazepam;
(QQ) Prazepam;
(RR) Quazepam;
(SS) Temazepam;
(TT) Tetrazepam;
(UU) Triazolam.
(3) Any material, compound, mixture or preparation
containing any quantity of the following substance, including its
salts, isomers and salts of isomers, whenever the existence of
the salts, isomers and salts of isomers is possible:
Fenfluramine.
(4) Any material, compound, mixture or preparation
containing any quantity of the following substances having a
stimulant effect on the central nervous system, including their
salts, isomers and salts of isomers:
(A) Cathine((+)-norseudophedrine);
(B) Diethylpropion;
(C) Fencamfamin;
(D) Fenproporex;
(E) Mazindol;
(F) Mefenorex;
(G) Pemoline (including organometallic complexes and
chelates thereof);
(H) Phentermine;
(I) Pipradrol; and
(J) SPA ((-)-1-dimethylamino-1, 2-diphenylethane).
(5) Any material, compound, mixture or preparation
containing any quantity of the following substance, including itssalts: pentazocine.
(b) The state board of pharmacy may except by rule any
compound, mixture or preparation containing any depressant
substance listed in subsection (a)(2) from the application of all
or any part of the provisions of this chapter if the compound,
mixture or preparation contains one or more active medicinal
ingredients not having a depressant effect on the central nervous
system, and if the admixtures are in combinations, quantity,
proportion or concentration that vitiate the potential for abuse
of the substances having a depressant effect on the central
nervous system.
(c) The controlled substances listed in this section may be
reschedule or deleted as provided for in section two hundred one
of this article.
§60A-2-211. Schedule V tests.
(a) The state board of pharmacy shall place a substance in
Schedule V upon finding that:
(1) The substance has a low potential for abuse relative to
substances listed in Schedule IV;
(2) The substance has currently accepted medical use in
treatment in the United States; and
(3) Abuse of the substance may lead to limited physical
dependence or psychological dependence relative to the substances
included in Schedule IV.
(b) The state board of pharmacy may place a substance in
Schedule V without being required to make the findings requiredby subsection (a) if the substance is controlled under Schedule
V of the federal Controlled Substances Act by a federal agency as
the result of an international treaty, convention or protocol.
§60A-2-212. Schedule V.
(a) Unless specifically excepted by state or federal law or
regulation or more specifically included in another schedule, the
following controlled substances are listed in Schedule V:
(1) Any material compound, mixture or preparation containing
any of the following narcotic drug and its salts: buprenorphine.
(2) Any compound, mixture or preparation containing any of
the following narcotic drugs, or their salts calculated as the
free anhydrous base or alkaloid, in limited quantities as set
forth below, which also contains one or more nonnarcotic active
medicinal ingredients in sufficient proportion to confer upon the
compound, mixture or preparation valuable medicinal qualities
other than those possessed by the narcotic drug alone:
(A) Not more than 200 milligrams of codeine per 100
milliliters or per 100 grams;
(B) Not more than 100 milligrams of dihydrocodeine per 100
milliliters or per 100 grams;
(C) Not more than 100 milligrams of ethylmorphine per 100
milliliters or per 100 grams;
(D) Not more than 2.5 milligrams of diphenoxylate and not
less than 25 micrograms of atropine sulfate per dosage unit;
(E) Not more than 100 milligrams of opium per 100
milliliters or per 100 grams;
(F) Not more than 0.5 milligrams of difenoxin and not less
than 25 micrograms of atropine sulfate per dosage unit.
(3) Any material, compound, mixture or preparation
containing any quantity of the following substances having a
stimulant effect on the central nervous system, including their
salts, isomers and salts of isomers:
(A) Pyrovalerone.
(b) The controlled substances listed in this section may be
rescheduled or deleted as provided for in section two hundred
one.
§60A-2-213. Publishing of schedules.
The state board of pharmacy shall publish updated schedules
annually. Failure to publish updated schedules is not a defense
in any administrative or judicial proceeding under the provisions
of this chapter.
§60A-2-214. Controlled substance analog treated as Schedule I
substance.
A controlled substance analog, to the extent intended for
human consumption, must be treated, for the purposes of the
provisions of this chapter, as a substance included in Schedule
I. Within ten days after the initiation of prosecution with
respect to a controlled substance analog by indictment or
information, the prosecuting attorney shall notify the state
board of pharmacy of information relevant to emergency scheduling
as provided for section two hundred one (e). After final
determination that the controlled substance analog should not bescheduled, no prosecution relating to that substance as a
controlled substance analog may continue or take place.
ARTICLE 3. REGULATION OF MANUFACTURE, DISTRIBUTION AND
DISPENSING OF CONTROLLED SUBSTANCES.
§60A-3-301. Rules.
The state board of pharmacy may adopt rules and charge fees
relating to the registration and control of the manufacture,
distribution and dispensing of controlled substances within this
state.
§60A-3-302. Registration requirements.
(a) Every person who manufactures, distributes or dispenses
any controlled substance within this state or who proposes to
engage in the manufacture, distribution or dispensing of any
controlled substance within this state, shall obtain annually a
registration issued by the state board of pharmacy in accordance
with rules adopted by the state board of pharmacy.
(b) A person registered by the state board of pharmacy
under the provisions of this chapter to manufacture, distribute,
dispense or conduct research with controlled substances may
possess, manufacture, distribute, dispense or conduct research
with those substances to the extent authorized by the
registration and in conformity with this article.
(c) The following persons need not register and may lawfully
possess controlled substances under the provisions of this
chapter:
(1) An agent or employee of any registered manufacturer,distributor or dispenser of any controlled substance if the agent
or employee is acting in the usual course of his business or
employment;
(2) A common or contract carrier or warehouseman, or an
employee thereof, whose possession of any controlled substance is
in the usual course of business or employment;
(3) An ultimate user or a person in possession of any
controlled substance pursuant to a lawful order of a practitioner
or in lawful possession of a substance included in Schedule V.
(d) The state board of pharmacy may waive by rule the
requirement for registration of certain manufacturers,
distributors or dispensers upon finding it consistent with the
public health and safety.
(e) A separate registration is required at each principal
place of business or professional practice where the applicant
manufactures, distributes or dispenses controlled substances.
(f) The state board of pharmacy may inspect the
establishment of a registrant or applicant for registration in
accordance with rules adopted by the state board of pharmacy.
§60A-3-303. Registration.
(a) The state board of pharmacy shall register an applicant
to manufacture or distribute controlled substances included in
Schedules I
through V unless it determines that the issuance of
that registration would be inconsistent with the public interest.
In determining the public interest, the state board of pharmacy
shall consider the following factors:
(1) Maintenance of effective controls against diversion of
controlled substances into other than legitimate medical,
scientific, research or industrial channels;
(2) Compliance with applicable state and local law;
(3) Promotion of technical advances in the art of
manufacturing controlled substances and the development of new
substances;
(4) Any convictions of the applicant under any laws of
another country or federal or state laws relating to any
controlled substance;
(5) Past experience in the manufacture or distribution of
controlled substances, and the existence in the applicant's
establishment of effective controls against diversion of
controlled substances into other than legitimate medical,
scientific, research or industrial channels;
(6) Furnishing by the applicant of false or fraudulent
material in any application filed under the provisions of this
chapter;
(7) Suspension or revocation of the applicant's federal
registration or the applicant's registration of another state to
manufacture, distribute or dispense controlled substances as
authorized by federal law; and
(8) Any other factors relevant to and consistent with the
public health and safety.
(b) Registration under subsection (a) does not entitle a
registrant to manufacture and distribute controlled substances inSchedule I or II other than those specified in the registration.
(c) Practitioners must be registered to dispense any
controlled substances or to conduct research with controlled
substances included in Schedules II through V if they are
authorized to dispense or conduct research under the law of this
state. The state board of pharmacy need not require separate
registration under this article for practitioners engaging in
research with nonnarcotic substances in Schedules II through V
where the registrant is already registered under this article in
another capacity. Practitioners registered under federal law to
conduct research with substances in Schedule I may conduct
research with substances included in Schedule I within this state
upon furnishing the state board of pharmacy evidence of that
federal registration.
(d) A manufacturer or distributor registered under the
federal Controlled Substances Act (21 U.S.C. 801 et seq.) may
submit a copy of the federal application as an application for
registration as a manufacturer or distributor under this section.
The state board of pharmacy may require a manufacturer or
distributor to submit information in addition to the application
for registration under the federal act.
§60A-3-304. Suspension or revocation of registration.
(a) A registration under section three hundred three to
manufacture, distribute or dispense a controlled substance may be
suspended or revoked by the state board of pharmacy upon finding
that the registrant has:
(1) Furnished false or fraudulent material information in
any application filed under the provisions of this chapter;
(2) Been convicted of a felony under any state or federal
law relating to any controlled substance;
(3) Had the registrant's federal registration suspended or
revoked and is no longer authorized by federal law to
manufacture, distribute or dispense controlled substances; or
(4) Committed acts that would render registration under
section three hundred three inconsistent with the public interest
as determined under that section.
(b) The state board of pharmacy may limit revocation or
suspension of a registration to the particular controlled
substance with respect to which grounds for revocation or
suspension exist.
(c) If the state board of pharmacy suspends or revokes a
registration, all controlled substances owned or possessed by the
registrant at the time of suspension or the effective date of the
revocation order may be placed under seal. No disposition may be
made of substances under seal until the time for taking an appeal
has elapsed or until all appeals have been concluded unless a
court, upon application, orders the sale of perishable substances
and the deposit of the proceeds of the sale with the court. Upon
a revocation order becoming final, all controlled substances may
be forfeited to the state.
(d) The state board of pharmacy may seize or place under
seal any controlled substance owned or possessed by a registrantwhose registration has expired or who has ceased to practice or
do business in the manner contemplated by the registration. The
controlled substance must be held for the benefit of the
registrant or the registrant's successor in interest. The state
board of pharmacy shall notify a registrant, or the registrant's
successor in interest, who has any controlled substance seized or
placed under seal, of the procedures to be followed to secure the
return of the controlled substance and the conditions under which
it will be returned. The state board of pharmacy may not dispose
of any controlled substance seized or placed under seal under
this subsection until the expiration of one hundred eighty days
after the controlled substance was seized or placed under seal.
The costs incurred by the state board of pharmacy in seizing,
placing under seal, maintaining custody and disposing of any
controlled substance under this subsection may be recovered from
the registrant, any proceeds obtained from the disposition of the
controlled substance, or from both. Any balance remaining after
the costs have been recovered from the proceeds of any
disposition must be delivered to the registrant or the
registrant's successor in interest.
(e) The state board of pharmacy shall promptly notify the
Drug Enforcement Administration of all orders restricting,
suspending or revoking registration and all forfeitures of
controlled substances.
§60A-3-305. Order to show cause.
(a) Before denying, suspending or revoking a registration,or refusing a renewal of registration, the state board of
pharmacy shall serve upon the applicant or registrant an order to
show cause why registration should not be denied, revoked or
suspended, or why the renewal should not be refused. The order
to show cause must contain a statement of the basis therefor and
must call upon the applicant or registrant to appear before the
state board of pharmacy at a time and place not less than thirty
days after the date of service of the order, but in the case of
a denial or renewal of registration the show cause order must be
served not later than thirty days before the expiration of the
registration. These proceedings must be conducted in accordance
with article five, chapter twenty-nine-a of this code. These
proceedings to refuse renewal of registration do not abate the
existing registration, which remains in effect pending the
outcome of the administrative hearing.
(b) The state board of pharmacy may suspend, without an
order to show cause, any registration simultaneously with the
institution of proceedings under section three hundred four, or
where renewal of registration is refused, if it finds that there
is an imminent danger to the public health or safety which
warrants this action. The suspension continues in effect until
the conclusion of the proceedings, including judicial review
thereof, unless sooner withdrawn by the state board of pharmacy
or dissolved by a court of competent jurisdiction.
§60A-3-306. Records of registrants.
Persons registered to manufacture, distribute or dispensecontrolled substances under the provisions of this chapter shall
keep records and maintain inventories in conformance with the
record keeping and inventory requirements of federal law and with
any additional rules the state board of pharmacy.
§60A-3-307. Order forms.
A substance included in Schedules I and II may be
distributed by a registrant to another registrant only pursuant
to an order form. Compliance with the provisions of federal law
respecting order forms constitutes compliance with this section.
§60A-3-308. Prescriptions.
(a) A controlled substance may be dispensed only as provided
in this section.
(b) Except when dispensed directly by a practitioner, other
than a pharmacy, to an ultimate user, a substance included in
Schedule II may not be dispensed without the written prescription
of a practitioner.
(c) In emergency situations, as defined by rule of the state
board of pharmacy, a substance included in Schedule II may be
dispensed upon oral prescription of a practitioner, reduced
promptly to writing, signed by the practitioner and filed by the
pharmacy. Prescriptions must be retained in conformity with the
requirements of section three hundred six. A prescription for a
substance in Schedule II may not be refilled.
(d) Except when dispensed directly by a practitioner, other
than a pharmacy, to an ultimate user, a substance included in
Schedule III or IV, which is a prescription drug as determinedunder article five, chapter thirty of the code, may not be
dispensed without a written or oral prescription of a
practitioner. The prescription must not be filled or refilled
more than six months after the date thereof or be refilled more
than five times, unless renewed by the practitioner.
(e) A substance included in Schedule V must not be
distributed or dispensed other than for a medicinal purpose:
(f) A practitioner may dispense or deliver a controlled
substance to or for an individual or animal only for medical
treatment or authorized research in the ordinary course of that
practitioner's profession. Medical treatment includes dispensing
or administering a narcotic drug for pain, including intractable
pain.
(g) No civil or criminal liability or administrative
sanction may be imposed on a pharmacist for action taken in
reliance on a reasonable belief that an order purporting to be a
prescription was issued by a practitioner in the usual course of
professional treatment or in authorized research.
(h) An individual practitioner may not dispense a substance
included in Schedule II, III or IV for that individual
practitioner's personal use except in a medical emergency.
§60A-3-309. Diversion prevention and control.
(a) As used in this section, "diversion" means the transfer
of any controlled substance from a licit to an illicit channel of
distribution or use.
(b) The department of health and human resources shallregularly prepare and make available to other state regulatory,
licensing and law enforcement agencies a report on the patterns
and trends of actual distribution, diversion and abuse of
controlled substances.
(c) The department of health and human resources shall enter
into written agreements with local, state and federal agencies
for the purpose of improving identification of sources of
diversion and to improve enforcement of and compliance with the
provisions of this chapter and other laws and regulations
pertaining to unlawful conduct involving controlled substances.
An agreement shall specify the roles and responsibilities of each
agency that has information or authority to identify, prevent and
control drug diversion and drug abuse. The department of health
and human resources shall convene periodic meetings to coordinate
a state diversion prevention and control program. The department
of health and human resources shall arrange for cooperation and
exchange of information among agencies and with neighboring
states and the federal government.
(d) The department of health and human resources shall
annually report to the governor and to the presiding officer of
each house of the Legislature on the outcome of this program with
respect to its effects on distribution and abuse of controlled
substances, including recommendations for improving control and
prevention of the diversion of controlled substances in this
state.
ARTICLE 4. OFFENSES AND PENALTIES.
§60A-4-401. Prohibited acts A; penalties.
(a) Except as authorized by the provisions of this chapter,
it is unlawful for any person knowingly or intentionally to
manufacture, distribute, deliver or possess with intent to
manufacture, distribute or deliver a controlled substance.
(1) A person is guilty of a crime and, upon conviction, may
be imprisoned for not more than [ ], fined not more than [ ],
or both, for a violation of this subsection with respect to:
(A) A mixture or substance containing heroin;
(B) A mixture or substance containing:
(i) Coca leaves, except coca leaves and extracts of coca
leaves from which cocaine, ecgonine and derivatives of ecgonine
or their salts have been removed;
(ii) Cocaine, or any salt, isomer or salt of isomer thereof;
(iii) Ecgonine, or any derivative, salt, isomer or salt or
isomer thereof; or
(iv) Any compound, mixture or preparation containing any
quantity of any substance referred to in clauses (i) through
(iii);
(C) A mixture or substance described in subparagraph (B)
which contains cocaine base;
(D) Phencyclidine or a mixture or substance containing
phencyclidine;
(E) A mixture or substance containing lysergic acid
diethylamide;
(F) A mixture or substance containing methamphetamine or anyof its salts, isomers or salts of isomers; or
(G) A mixture or substance containing twenty-nine grams or
more of marihuana.
(2) A person is guilty of a crime and, upon conviction, may
be imprisoned for not more than [ ], fined not more than [ ],
or both, for a violation of this subsection in the case of a
controlled substance in Schedule I or II except as provided in
paragraphs (1) and (5).
(3) A person is guilty of a crime and, upon conviction, may
be imprisoned for not more than [ ], fined not more than [ ],
or both, for a violation of this subsection in the case of a
controlled substance in Schedule II.
(4) A person is guilty of a crime and, upon conviction, may
be imprisoned for not more than [ ], fined not more than [ ],
or both, for a violation of this subsection in the case of a
controlled substance in Schedule IV and V.
(5) A person is guilty of a crime and, upon conviction, may
be imprisoned for not more than [ ], fined not more than [ ],
or both, for a violation of this subsection in the case of
marihuana except as provided in paragraph (1).
(b) Notwithstanding any other provision of this chapter:
(1) It is unlawful for any person knowingly or intentionally
to distribute, purchase, manufacture or bring into this state, or
possess twenty-eight grams or more of any mixture or substance
containing heroin. If the quantity involved is:
(A) Twenty-eight grams or more, but less than one hundredgrams, the person is guilty of a crime and, upon conviction,
shall be imprisoned for not less than [ ] nor more than [ ]
and fined not less than [ ];
(B) One hundred grams or more, but less than five hundred
grams, the person is guilty of a crime and, upon conviction,
shall be imprisoned for not less than [ ] nor more than [ ]
and fined not less than [ ];
(C) Five hundred grams or more, the person is guilty of a
crime and, upon conviction, shall be imprisoned for not less than
[ ] nor more than [ ] and fined not less than [ ].
(2) It is unlawful for any person knowingly or intentionally
to manufacture, distribute, purchase or bring into this state, or
possess fifty-six grams or more of any mixture or substance
containing cocaine or its related substances as described in
subsection (a)(1)(B). If the quantity involved is:
(A) Fifty-six grams or more, but less than four hundred
fifty grams, the person is guilty of a crime and, upon
conviction, shall be imprisoned for not less than [ ] nor more
than [ ] and fined not less than [ ];
(B) Four hundred fifty grams or more, but less than one
kilogram, the person is guilty of a crime and, upon conviction,
shall be imprisoned for not less than [ ] nor more than [ ]
and fined not less than [ ];
(C) One kilogram or more, the person is guilty of a crime
and, upon conviction, shall be imprisoned for not less than [
] nor more than [ ] and fined not less than [ ].
(3) It is unlawful for any person knowingly or intentionally
to manufacture, distribute, purchase or bring into this state, or
possess five grams or more of any mixture or substance containing
cocaine base. If the quantity involved is:
(A) Five grams or more, but less than twenty-five grams, the
person is guilty of a crime and, upon conviction, shall be
imprisoned for not less than [ ] nor more than [ ] and fined
not less than [ ].
(B) Twenty-five grams or more, but less than fifty grams,
the person is guilty of a crime and, upon conviction, shall be
imprisoned for not less than [ ] nor more than [ ] and fined
not less than [ ].
(C) Fifty grams or more, the person is guilty of a crime
and, upon conviction, shall be imprisoned for not less than [
] nor more than [ ] and fined not less than [ ].
(4) It is unlawful for any person knowingly or intentionally
to distribute, purchase, manufacture or bring into this state, or
possess ten grams or more of any mixture or substance containing
phencyclidine. If the quantity involved is:
(A) Ten grams or more, but less than fifty grams, the person
is guilty of a crime and, upon conviction, shall be imprisoned
for not less than [ ] nor more than [ ] and fined not less
than [ ], or both;
(B) Fifty grams or more, but less than one hundred grams,
the person is guilty of a crime and, upon conviction, shall be
imprisoned for not less than [ ] nor more than [ ] and finednot less than [ ];
(C) One hundred grams or more, the person is guilty of a
crime and, upon conviction, shall be imprisoned for not less than
[ ] nor more than [ ] and fined not less than [ ].
(5) It is unlawful for any person knowingly or intentionally
to distribute, purchase, manufacture or bring into this state, or
possess five hundred milligrams or more of any mixture or
substance containing lysergic acid diethylamide. If the quantity
involved is:
(A) Five hundred milligrams or more, but less than one gram,
the person is guilty of a crime and, upon conviction, shall be
imprisoned for not less than [ ] nor more than [ ] and fined
not less than [ ];
(B) One gram or more, but less than five grams, the person
is guilty of a crime and, upon conviction, shall be imprisoned
for not less than [ ] nor more than [ ] and fined not less
than [ ];
(C) Five grams or more, the person is guilty of a crime and,
upon conviction, shall be imprisoned for not less than [ ] nor
more than [ ] and fined not less than [ ].
(6) It is unlawful for any person knowingly or intentionally
to distribute, purchase, manufacture or bring into this state, or
possess fifty-six grams or more of any mixture or substance
containing methamphetamine or any of its salts, isomers or salts
of isomers. If the quantity involved is:
(A) Fifty-six grams or more, but less than four hundredfifty grams, the person is guilty of a crime and, upon
conviction, shall be imprisoned for not less than [ ] nor more
than [ ] and fined not less than [ ].
(B) Four hundred fifty grams or more, but less than one
kilogram, the person is guilty of a crime and, upon conviction,
shall be imprisoned for not less than [ ] nor more than [ ]
and fined not less than [ ];
(C) One kilogram or more, the person is guilty of a crime
and, upon conviction, shall be imprisoned for not less than [
] nor more than [ ] and fined not less than [ ].
(7) It is unlawful for any person knowingly or intentionally
to distribute, purchase, manufacture or bring into this state, or
possess ten kilograms or more of marihuana. If the quantity of
marihuana involved is:
(A) Ten kilograms or more, but less than fifty kilograms,
the person is guilty of a crime and, upon conviction, shall be
imprisoned for not less than [ ] nor more than [ ] and fined
not less than [ ];
(B) Fifty kilograms or more, but less than one hundred
kilograms, the person is guilty of a crime and, upon conviction,
shall be imprisoned for not less than [ ] nor more than [ ]
and fined not less than [ ];
(C) One hundred kilograms or more,the person is guilty of a
crime and, upon conviction, shall be imprisoned for not less than
[ ] nor more than [ ] and fined not less than [ ].
(c) Except as authorized by law, it is unlawful for a personknowingly or intentionally to possess any piperidine with intent
to manufacture a controlled substance, or knowingly or
intentionally to possess any piperidine knowing, or having
reasonable cause to believe, that the piperidine will be used to
manufacture a controlled substance contrary to the provisions of
this chapter. A person who violates this subsection is guilty of
a crime and, upon conviction, may be imprisoned for not more than
[ ], fined not more than [ ], or both.
(d) Notwithstanding any other provision of this article,
with respect to any individual who is found to have violated
subsection (b), adjudication of guilt or imposition of sentence
may not be suspended, deferred or withheld, nor may the
individual be eligible for parole before serving the mandatory
term of imprisonment prescribed by this section.
(e) Notwithstanding any other provision of this article, the
defendant or the attorney for the state may request the
sentencing court to reduce or suspend the sentence of any
individual who is convicted of a violation of this section and
who provides substantial assistance in the identification, arrest
or conviction of any person for a violation of the provisions of
this chapter. The arresting agency must be given an opportunity
to be heard in reference to the request. Upon good cause shown,
the request may be filed and heard in camera. The judge hearing
the motion may reduce or suspend the sentence if the judge finds
that the assistance rendered was substantial.
§60A-4-402. Prohibited acts B; penalties.
(a) It is unlawful for any person:
(1) Who is subject to article three to distribute or
dispense a controlled substance in violation of section three
hundred eight;
(2) Who is a registrant, to manufacture a controlled
substance not authorized by his registration, or to distribute or
dispense a controlled substance not authorized by his
registration to another registrant or other authorized person;
(3) To refuse or fail to make, keep or furnish any record,
notification, order form, statement, invoice or information
required under the provisions of this chapter; or
(4) To refuse an entry into any premises for any inspection
authorized by the provisions of this article.
(b) It is unlawful for any manufacturer or distributor, or
agent or employee of a manufacturer or distributor, having
reasonable cause to believe that a person will possess or
distribute a controlled substance in violation of the provisions
of this chapter, to deliver the controlled substance to that
person.
(c) It is unlawful for any person knowingly or intentionally
to keep, maintain, control, rent, lease or make available for use
any store, shop, warehouse, dwelling, building, vehicle, vessel,
aircraft, room, enclosure or other structure or place, which that
person knows is resorted to for the purpose of keeping for
distribution, transporting for distribution or distributing
controlled substances in violation of the provisions of thischapter.
(d) Except as authorized by the provisions of this chapter,
it is unlawful for any person:
(1) Knowingly or intentionally to open or maintain any place
which that person knows is resorted to for the purpose of
unlawfully manufacturing a controlled substance; or
(2) To manage or control any building, room or enclosure,
either as an owner, lessee, agent, employee or mortgagee, and
knowingly or intentionally rent, lease or make available for use,
with or without compensation, the building, room or enclosure
which that person knows is resorted to for the purpose of
unlawfully manufacturing a controlled substance.
(e) A person does not violate subsection (c):
(1) By reason of any act committed by another person while
that other person is unlawfully on or in the structure or place,
if the person lacked knowledge of the unlawful presence of that
other person; or
(2) If the person has notified a law-enforcement agency of
the illegal conduct.
(f) A person who violates subsection (d) is guilty of a
crime and, upon conviction, may be imprisoned for not more than
[ ] years, fined not more than [ ], or both, or fined not
more than [ ] if the person is not an individual.
(g) Except as provided in subsection (f), a person who
violates this section is guilty of a crime and, upon conviction,
may be imprisoned for not more than [ ], fined not more than[ ], or both.
§60A-4-403. Prohibited acts C; penalties.
(a) It is unlawful for any person knowingly or
intentionally:
(1) To distribute as a registrant a controlled substance
included in Schedule I or II, except pursuant to an order form as
required by section three hundred seven;
(2) To use in the course of the manufacture, distribution or
dispensing of a controlled substance, or to use for the purpose
of acquiring or obtaining a controlled substance, a registration
number that is fictitious, revoked, suspended or issued to
another person;
(3) To acquire or obtain possession of a controlled
substance by misrepresentation, fraud, forgery, deception or
subterfuge;
(4) To furnish false or fraudulent material information in,
or omit any material information from, any application, report or
other document required to be kept or filed under the provisions
of this chapter, or any record required to be kept by the
provisions of this chapter; or
(5) To possess a false or fraudulent prescription with
intent to obtain a controlled substance.
(b) Any person who violates this section is guilty of a
crime and, upon conviction, may be imprisoned for not less than
[ ], fined not more than [ ], or both.
§60A-4-404. Counterfeit substances prohibited; penalty.
(a) It is unlawful for any person knowingly or intentionally
to manufacture, deliver or possess with intent to manufacture or
deliver, a controlled substance which, or the container or
labeling of which, without authorization, bears the trademark,
trade name or other identifying mark, imprint, number or device,
or any likeness thereof, of a manufacturer, distributor or
dispenser, other than the person who in fact manufactured,
distributed or dispensed the substance.
(b) It is unlawful for any person knowingly or intentionally
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 thereof.
(c) A person who violates this section is guilty of a crime
and, upon conviction, may be imprisoned for not more than [ ],
fined not more than [ ], or both.
§60A-4-405. Imitation controlled substances prohibited; penalty.
(a) It is unlawful for any person knowingly or intentionally
to deliver, or possess with intent to deliver, a noncontrolled
substance represented by that person to be a controlled
substance.
(b) It is unlawful for any person knowingly or intentionally
to deliver or possess with intent to deliver, a noncontrolled
substance intended by that person for use or distribution as a
controlled substance or under circumstances in which that personreasonably should know that the noncontrolled substance will be
used or distributed for use as a controlled substance.
(c) It is not a defense that the accused believed the
noncontrolled substance to be a controlled substance.
(d) A person who violates this section is guilty of a crime
and, upon conviction, may be imprisoned for not more than [ ],
fined not more than [ ], or both.
§60A-4-406. Possession as prohibited act; penalties.
It is unlawful for any individual knowingly or intentionally
to possess a controlled substance unless the substance was
obtained directly from, or pursuant to, a valid prescription or
order of a practitioner while acting in the course of the
practitioner's professional practice, or except as otherwise
authorized by the provisions of this chapter. Any individual who
violates this section with respect to a substance included in
Schedule I or II, except for less than twenty-nine grams of
marihuana, is guilty of a felony and, upon conviction, may be
imprisoned for not more than [ ], fined not more than [ ], or
both. Any individual who violates this section with respect to
a substance included in Schedule III, IV or V is guilty of a
[felony] [misdemeanor] and, upon conviction, may be imprisoned
for not more than [ ], fined not more than [ ], or both. Any
individual who violates this section with respect to less than
twenty-nine grams of marihuana is guilty of a misdemeanor and,
upon conviction, may be imprisoned for not more than [ ], fined
not more than [ ], or both.
§60A-4-407. Conspiracy; penalty.
It is unlawful for any person to conspire to commit a
violation of the provisions of this article. A person who
violates this section is guilty of a crime and, upon conviction,
is subject to the same penalty as provided for the offense that
was the object of the conspiracy.
§60A-4-408. Solicitation; [attempt;] penalty.
(a) It is unlawful for any person knowingly or intentionally
to solicit, induce or intimidate an individual to engage in
specific conduct constituting a violation of the provisions of
this chapter.
(b) It is unlawful for any person to attempt to commit a
violation of the provisions of this chapter.
(c) A person who violates this section is guilty of a crime
and, upon conviction, is subject to the same penalty as provided
for the offense that was the object of the solicitation [or
attempt].
§60A-4-409. Distribution to individual under age eighteen;
distribution near schools or colleges; penalties.
(a) An individual eighteen or more years of age who violates
section four hundred one of this article by distributing a
controlled substance to an individual under eighteen years of age
who is at least two years that individual's junior is guilty of
a crime and, upon conviction, is punishable by a term of
imprisonment and fine not exceeding [two times] that authorized
by section four hundred one.
(b) It is unlawful for any individual to violate section
four hundred one in or on, or within one thousand feet [300.48
meters] of the real property comprising a public playground, a
public or private elementary or secondary school, a public
vocational school or a public or private college or university.
An individual who violates this subsection is guilty of a crime
and, upon conviction, is punishable by a term of imprisonment and
fine not exceeding two times that authorized by section four
hundred one.
(c) An individual who violates subsection (b) after a
previous conviction under that subsection has become final is
punishable by a term of imprisonment not exceeding [three times]
that authorized by section four hundred one.
(d) It is not a defense to a violation of subsection (a)
that the accused did not know the age of an individual to whom a
controlled substance was distributed.
(e) It is not a defense to a violation of subsection (b) or
(c) that the accused did not know the distance involved.
(f) Notwithstanding any other provision of this article,
with respect to an individual who is found to have violated this
section:
(1) Adjudication of guilt or imposition of sentence may not
be suspended, deferred or withheld;
(2) The individual must be imprisoned for at least [ ] for
a violation of subsection (a) or (b); and
(3) The individual is not eligible for parole before servingthe mandatory term of imprisonment prescribed by this section.
§60A-4-410. Employment or use of individual under eighteen years
of age in drug operations; penalties.
(a) It is unlawful for any individual eighteen or more years
of age knowingly or intentionally to employ, hire, use, persuade,
induce, entice or coerce an individual under eighteen years of
age to violate or assist in avoiding detection or apprehension
for a violation of the provisions of this chapter.
(b) An individual who violates subsection (a) is guilty of
a crime and, upon conviction, is punishable by a term of
imprisonment and fine not exceeding two times that authorized by
section four hundred one.
(c) An individual who violates subsection (a) after a
previous conviction under that subsection has become final is
punishable by a term of imprisonment not exceeding three times
that authorized by subsection (a), section four hundred one.
(d) An individual who violates subsection (a) by employing,
hiring, using, persuading, inducing, enticing or coercing an
individual who is under fifteen years of age may be imprisoned
for not more than [ ] years and fined not more than [ ] in
addition to any other punishment authorized by this section.
(e) It is not a defense to a violation of this section that
the accused did not know the age of an individual protected under
this section.
(f) Notwithstanding any other provision of this article,
with respect to an individual who is found to have violated thissection:
(1) Adjudication of guilt or imposition of sentence may not
be suspended, deferred or withheld;
(2) The individual must be imprisoned for at least [ ] for
violation of subsection (a) or (b); and
(3) The individual is not eligible for parole before serving
the mandatory term of imprisonment prescribed by this section.
§60A-4-411. Continuing criminal enterprise; penalty.
(a) A person who engages in a continuing criminal enterprise
is guilty of a crime and, upon conviction, is punishable by a
term of imprisonment and fine not exceeding two times that
authorized by section four hundred one for the underlying
offense. For purposes of this subsection, a person is engaged in
a continuing criminal enterprise if:
(1) The person violates any provision of this chapter which
is a felony; and
(2) The violation is a part of a continuing series of two or
more violations of the provisions of this chapter on separate
occasions:
(A) Which are undertaken by that person in concert with five
or more other persons with respect to whom that person occupies
a position of organizer, supervisor or any other position of
management; and
(B) From which that person obtained substantial income or
resources.
(b) A person who violates subsection (a) after a previousconviction under that subsection has become final is punishable
by a term of imprisonment not exceeding three times that
authorized by section four hundred one.
(c) Notwithstanding any other provision of this article,
with respect to an individual who is found to have violated
subsection (a) or (b):
(1) Adjudication of guilt or imposition of sentence may not
be suspended, deferred or withheld;
(2) The individual must be imprisoned for at least [ ] for
a violation of subsection (a) or (b); and
(3) The individual is not eligible for parole before serving
the mandatory term of imprisonment prescribed by subsection (a)
or (b).
§60A-4-412. Money laundering and illegal investment; penalty.
(a) It is unlawful for any person knowingly or intentionally
to receive or acquire proceeds, or engage in transactions
involving proceeds, known to be derived from any violation of the
provisions of this chapter. This subsection does not apply to
any transaction between an individual and that individual's
counsel necessary to preserve that individual's right to
representation, as guaranteed by article III, section fourteen of
the state constitution and by the Sixth Amendment of the United
States Constitution; however, this exception does not create any
presumption against or prohibition of the right of the state to
seek and obtain forfeiture of any proceeds derived from a
violation of the provisions of this chapter.
(b) It is unlawful for any person knowingly or intentionally
to give, sell, transfer, trade, invest, conceal, transport or
otherwise make available anything of value which that person
knows is intended to be used for the purpose of committing or
furthering the commission of any violation of the provisions of
this chapter.
(c) It is unlawful for any person knowingly or intentionally
to direct, plan, organize, initiate, finance, manage, supervise
or facilitate the transportation or transfer of proceeds known to
be derived from any violation of the provision of this chapter.
(d) It is unlawful for any person knowingly or intentionally
to conduct a financial transaction involving proceeds derived
from a violation of the provisions of this chapter when the
transaction is designed, in whole or in part, to conceal or
disguise the nature, location, source, ownership or control of
the proceeds known to be derived from a violation of the
provisions of this chapter or to avoid a transaction reporting
requirement under state or federal law.
(e) A person who violates this section is guilty of a crime
and, upon conviction, may be imprisoned for not more than [ ]
years, fined not more than [ ] or both.
§60A-4-413. Second or subsequent offenses; penalties.
(a) Any person convicted of a second or subsequent offense
under the provisions of this chapter may be imprisoned for a term
up to two times the term otherwise authorized and fined an amount
up to two times that otherwise authorized.
(b) For purposes of this section, an offense is considered
a second or subsequent offense, if, before conviction of the
offense, the offender has at any time been convicted under the
provisions of this chapter or under any statute of the United
States or of any state relating to narcotic drugs, marihuana,
stimulant, depressant or hallucinogenic substances and that
conviction has become final.
(c) This section does not apply to a second or subsequent
offense under section four hundred six, subsection (b); section
four hundred nine, subsection (a); section four hundred ten; or
section four hundred eleven.
§60A-4-414. Conditional discharge for possession as first
offense.
Whenever any person who has not been convicted previously
within the past ten years of any offense under the provisions of
this chapter or under any statute of the United States or of any
state relating to narcotic drugs, marihuana or stimulant,
depressant or hallucinogenic substances, tenders a plea of
admission, guilty, no contest, nolo contendere or similar plea to
a charge of possession of a controlled substance under section
four hundred six, or is found guilty of that charge, the court,
without entering a judgment of guilt and with the consent of the
accused, may defer further proceedings and place that individual
on probation upon terms and conditions that must include
attendance and successful completion of an education program or,
in the case of a drug dependent individual, of a treatment andrehabilitation program. Upon violation of a term or condition,
the court may enter a judgment of conviction and proceed as
otherwise provided. Upon fulfillment of the terms and
conditions, the court shall discharge the individual and dismiss
the proceedings against that individual. A nonpublic record of
the dismissal must be retained by the division of public safety
solely for the purpose of use by the courts in determining
whether, in later proceedings, the individual qualifies under
this section. Discharge and dismissal under this section is
without adjudication of guilt and is not a conviction for
purposes of this section or for purposes of employment, civil
rights or any statute or regulation or license or questionnaire
or any other public or private purpose, but not including
additional penalties imposed for second or subsequent convictions
or the setting of bail. Discharge and dismissal restores the
individual, in the contemplation of the law, to the status
occupied before the arrest, indictment or information. The
individual may not be held thereafter under any provision of any
law to be guilty of perjury or otherwise giving a false statement
by reason of failure to recite or acknowledge that arrest,
indictment or information, or trial in response to any inquiry
made of that individual for any purpose. Discharge and dismissal
under this section may occur only once with respect to any
individual.
§60A-4-415. Treatment option for violation of chapter.
Whenever an individual is adjudicated guilty of anyviolation of the provision of this chapter for which the
individual is eligible for probation, the court may impose a
sentence as authorized by this article, may place that individual
on probation as authorized by this section or may impose a
combination of a sentence and probation as authorized by this
section. The court, with the consent of that individual and with
the consent of a treatment facility having inpatient or
outpatient programs for the treatment of drug dependent
individuals, may place the individual, if found by the court to
be in need of treatment, on probation upon terms and conditions,
including participation in a treatment program of that facility.
Treatment must be for the period the treatment facility considers
necessary. Treatment or a combination of a sentence and
probation including treatment may not exceed the maximum sentence
allowable unless the convicted individual consents to continued
treatment. Upon violation of a term or condition, including
failure to participate in the treatment program, the court may
revoke the probation and proceed as otherwise provided. Upon
fulfillment of the terms and conditions, including attendance and
successful completion of the treatment program, the court shall
terminate the probation.
§60A-4-416. Assessment for education and treatment;
appropriation of moneys.
(a) Every person convicted of a violation of the provisions
of this chapter, and every individual placed on probation under
section four hundred fourteen, shall be assessed for each offensea sum of not less than five hundred dollars nor more than three
thousand dollars. The assessment is in addition to, and not in
lieu of, any fines, restitution costs, other assessments of
forfeitures authorized or required by law.
(b) All moneys collected under this section shall be
forwarded to the department of health and human resources to be
used for purposes of drug abuse education and treatment.
(c) The department of health and human resources shall
administer expenditures from the fund. Expenditures may be made
only for drug abuse education, prevention and treatment services.
Moneys from the fund may not supplant other local, state or
federal funds.
§60A-4-417. Penalties under other laws.
Any penalty imposed for violation of the provisions of this
chapter and any civil remedy imposed under the provisions of this
chapter are in addition to, and not in lieu of, any civil remedy,
administrative penalty, or sanction otherwise authorized by law.
§60A-4-418. Bar to prosecution.
If a violation of the provisions of this chapter is a
violation of a federal law or the law of another state, a
conviction or acquittal under federal law or the law of another
state for the same act is a bar to prosecution in this state.
NOTE: The purpose of this bill is to revise the Uniform
Controlled Substances Act. All narcotic or otherwise dangerous
substances developed or discovered since the Uniform Controlled
Substances Act was first promulgated in 1971 are enrolled in five
schedules, ranked according to their potential for abuse andtheir usefulness in medical treatment. Provision is made for
emergency scheduling of chemical analogues (popularly called
"designer drugs") to scheduled controlled substances.
New provisions are added to deal with the diversion of legal
substances to illegal markets. The Department of Health and
Human Resources is required to report on patterns in
distribution, diversion and abuse of controlled substances and to
engage in agreements with other agencies and cooperative programs
to identify, prevent and control diversion.
Penalties are revised, and enhanced penalties are provided
for some offenses. New penalty provisions are added for offenses
relating to counterfeit and imitation controlled substances, for
solicitation to engage in violations relating to controlled
substances, for distribution of controlled substances in the
vicinity of a school or college, for using children in the
distribution of controlled substances, and for laundering
proceeds from traffic in controlled substances.
Persons convicted of violations would be assessed between
$500.00 and $3000.00, and the proceeds from assessments would be
paid to the Department of Health and Human Resources to be used
for purposes of drug education and treatment.
Articles 1, 2, 3 and 4 of Chapter 60A have been completely
rewritten; therefore, strike-throughs and underscoring have been
omitted.
This bill was recommended by the Commission on Interstate
Cooperation for passage at this session.