Senate Bill No. 463
(By Minard, Anderson, Bowman, Schoonover and Deem)
____________
[Introduced February 8, 1999;
referred to the Committee on .]
____________
A BILL to amend and reenact articles one, two, three, four and
five, chapter sixty-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, 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; requiring
monetary assessment of persons convicted of violations to be
used for purposes of drug education and treatment; criminal
forfeiture; civil forfeiture; definitions; agencies
responsible for forfeitures; conduct that subjects property
to forfeiture; property subject to forfeiture; interests
exempt from forfeiture; attorney's fees; seizure of property
for forfeiture; custody and release of seized property;
liens; substitution of property; release of property upon
preliminary hearing; administrative procedures; administrative exemption or substitution of property; demand
for judicial proceedings; summary forfeiture; judicial
procedures; requirements for proceedings in rem;
requirements for proceedings in personam; time for
commencement of proceedings; remedies; excessive
forfeitures; burdens of proof; admissible evidence;
disposition of forfeited property; evading forfeiture;
restriction on actions; remedies; and statute of
limitations.
Be it enacted by the Legislature of West Virginia:
That articles one, two, three, four and five, chapter
sixty-a of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted, 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 is
pursuant 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) of
this 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 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 by
means 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 chemical
synthesis:
(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 isomers, 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 subdivisions (1) through
(7) of this section.
(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, the
Commonwealth 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 of this article 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 or
physiological 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) of this section, 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) of this section or sections two hundred three, two hundred five, two hundred seven, two
hundred nine and two hundred eleven of this article 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 the
provisions 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) of this section or section
two hundred three, two hundred five, two hundred seven, two
hundred nine or two hundred eleven of this article, a final rule
for which notice of proposed rule making 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) of this
section. 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) of this
section.
(e) The state board of pharmacy may, by rule and without
regard to the requirements of subsection (a) of this section,
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 of this article, 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) of this section, and may also consider clandestine
importation, manufacture or distribution, and, if available,
information concerning the other factors set forth in subsection
(a)(1) of this section. A rule may not be adopted under this
subsection until the state board of pharmacy initiates a rule
making proceeding under subsection (a) of this section with
respect to the substance. A rule adopted under this subsection
must be vacated upon the conclusion of the rule making proceeding initiated under subsection (a) of this section 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 of this
article 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)
of this section 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
state or federal 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 any
isomers, esters, ethers, salts and salts of isomers, esters and
ethers of them that are theoretically 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 of them that are
theoretically 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) Material, compound, mixture or preparation containing
any quantity of the following hallucinogenic substances,
including any salts, isomers and salts of isomers of them that
are theoretically possible within the specific chemical
designation:
(A) 4-bromo-2,5-dimethoxy-amphetamine (other names:
4-bromo-2,5-dimethoxy-alpha-methylphenethylamine; 4-bromo-2,
5-DMA.);
(B) 2,5-dimethoxyamphetamine (other names: 2,5-dimethoxy-alpha-methylphenethylamine; 2,5-DMA.);
(C) 4-methoxyamphetamine; (other names: 4-methoxy- alpha-methylphenethylamine; paramenthoxyamphetamine; PMA.);
(D) 5-methoxy-3, 4-methylenedioxy amphetamine;
(E) 4-methyl-2,5-dimethoxy amphetamine (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-methyl-3,4 (methylenedioxy) phenethylamine, N-ethyl
MDA,MDE, MDEA);
(I) N-hydroxy-3,4-methylenedioxy amphetamine (also known as
N-hydroxy-alpha-methyl-3,4 (methylenedioxy) phenethylamine, and
N-hydroxy MDA);
(J) 3,4,5-trimethoxy amphetamine;
(K) Bufotenine (other names: 3-(beta-Dimethylaminoethyl)
-5-hydroxyindole; 3-(2-dimethylaminoethyl) -5-indolol; N,
N-dimethylserotonin; 5-hydroxy-N,N-dimethyltryptamine; mappine.);
(L) Diethyltryptamine (other names: N,N-Diethyltryptamine;
DET.);
(M) Dimethyltryptamine (other names: DMT.);
(N) Ibogaine (other names: (7-Ethyl-6,6B,7, 8,9,10,12,13- octahydro-2-methoxy-6,9-methano-5H-pyrido [1', 2': 1,2] azepino
[5,4-b] indole; tabernanthe iboga.);
(O) Lysergic acid diethylamide;
(P) Marihuana;
(Q) Mescaline;
(R) Parahexyl (other names: 3-Hexyl-1-hydroxy-7,8,9,10- tetrahydro-6,6,9-trimethyl-6H-dibenzo [b,d]pyran; synhexyl.);
(S) Peyote (all parts of the plant classified botanically as
Lophophora williamsii Lemaire, whether growing or not, its seeds,
any extract from any part of the plant and every compound, salts,
derivative, mixture or preparation of the plant, or 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) Delta 1 - cis or trans tetrahydrocannabinol, and their
isomers;
(B) Delta 6 - cis or trans tetrahydrocannabinol, and their
isomers; and
(C) Delta 3,4 - cis or trans tetrahydrocannabinol, and its
isomers (since nomenclature of these substances is not
internationally standardized, compounds of these structures,
regardless of numerical desynatime of atomic positions covered);
(Y) Ethylamine analog of phencyclidine (other names:
N-ethyl-1-phenylcyclohexylamine, (l-phenylcyclohexyl) ethylamine,
N-(l-phenylcyclohexyl) ethylamine, cyclohexamine, PCE.);
(Z) Pyrrolidine analog of phencyclidine (other names:
l-(l-phenylcyclohexyl)-pyrrolidine, PCPy, PHP.);
(AA) Thiophene analog of phencyclidine (other names:
1-[1-(2-thienyl)-cyclohexyl]-piperidine, 2-thienyl analog of
phencyclidine, TPCP, TCP.); and
(BB) TCPy.
(4) 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) Mecloqualone; and
(B) Methaqualone.
(5) 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) of this section 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
state or federal regulation or more specifically included in
another schedule, the following 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 butorphanol, 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; and
(xvi) Thebaine.
(B) A salt, compound, derivative or preparation that is
chemically equivalent or identical with any of the substances
listed in subdivision (1) of this subsection, but not
isoquinoline 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 that is chemically equivalent or identical with any of the
substances listed in this subparagraph, 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 any
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-diphenylpropane-carboxylic 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; and
(Y) Sufentanil.
(3) 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) Material, compound, mixture or preparation containing
any quantity of the following substances having a depressant
effect on the central nervous system, including any 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; and
(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. (Other names for
dronabinol: (6aR-trans)-6a,7,8,10a-tetrahydro-6,6,
9-trimethyl-3-pentyl-6H-dibenzo [b,d] pyran-1-ol, (-)
delta-9-(trans)-tetrahydrocannabinol).
(B) Nabilone (another name for nabilone: (
+) trans-3-(1,
1-dimethylheptyl)-6,6a,7,8,10,10a-hexahydro-1-hydroxy-6,
6-dimethyl-9Hdibenzo [b,d] pyran-9-one).
(6) Material, compound, mixture or preparation containing
any quantity of the following substances:
(A) Immediate precursor to amphetamine and methamphetamine:
phenylacetone (other names: phenyl-2-propanone; P2P; benzyl
methyl ketone; methyl benzyl ketone.);
(B) Immediate precursors to phencyclidine (PCP):
(i) 1-phenylcyclohexylamine; and
(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) of this section 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) Material, compound, mixture or preparation containing
any quantity of the following substances having a stimulant
effect on the central nervous system, including any salts,
isomers and salts of isomers of them that are theoretically
possible within the specific chemical designation:
(A) A 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
quantitative 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; and
(E) Phendimetrazine.
(2) A material, compound, mixture or preparation containing
any quantity of the following substances having a depressant
effect on the central nervous system:
(A) A 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; and
(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; and
(iii) Pentobarbital;
(C) A substance containing any quantity of a derivative of
barbituric acid or any salt of a derivative of barbituric acid;
(D) Chlorhexadol;
(E) Glutethimide;
(F) Lysergic acid;
(G) Lysergic acid amide;
(H) Methyprylon;
(I) Sulfondiethylmethane;
(J) Sulfonethylmethane;
(K) Sulfonmethane; and
(L) Tiletamine and zolazepam or any of their salts (other
names for a tiletamine-zolazepam combination product: Telazol;
other names for tiletamine: 2-(ethylamino)-2-(2-thienyl)- cyclohexanone; other names for zolazepam: 4-(2-fluorophenyl)-6,
8-dihydro-1,3,8-trimethylpyrazolo-[3,4-e][1,4]-diazepin-7(1H)- one; and flupyrazapon).
(3) Nalorphine; and
(4) 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 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:
(i) Anabolic steroids.
(b) The state board of pharmacy may exempt by rule a
compound, mixture or preparation containing a stimulant or
depressant substance listed in subsections (a)(1) and (a)(2) of
this section 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 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 be
rescheduled 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) of this section 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
state or federal regulation or more specifically included in another schedule, the following controlled substances are listed
in Schedule IV:
(1) 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 less
than 25 micrograms of atropine sulfate per dosage unit;
(B) Dextropropoxyphene (alpha-(+)-4-dimethylamino-1,
2-diphenyl-3-methyl-2-propionoxybutane).
(2) 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) Alprazolam;
(B) Barbital;
(C) Bromazepam;
(D) Butorphanol
(E) Camazepam;
(F) Chloral betaine;
(G) Chloral hydrate;
(H) Chlordiazepoxide;
(I) Clobazam;
(J) Clonazepam;
(K) Clorazepate;
(L) Clotiazepam;
(M) Cloxazolam;
(N) Delorazepam;
(O) Diazepam;
(P) Estazolam;
(Q) Ethchlorvynol;
(R) Ethinamate;
(S) Ethyl loflazepate;
(T) Fludiazepam;
(U) Flunitrazepam;
(V) Flurazepam;
(W) Halazepam;
(X) Haloxazolam;
(Y) Ketazolam;
(Z) Loprazolam;
(AA) Lorazepam;
(BB) Lormetazepam;
(CC) Mebutamate;
(DD) Medazepam;
(EE) Meprobamate;
(FF) Methohexital;
(GG) Methylphenobarbital (mephobarbital);
(HH) Midazolam;
(II) Nimetazepam;
(JJ) Nitrazepam;
(KK) Nordiazepam;
(LL) Oxazepam;
(MM) Oxazolam;
(NN) Paraldehyde;
(OO) Petrichloral;
(PP) Phenobarbital;
(QQ) Pinazepam;
(RR) Prazepam;
(SS) Quazepam;
(TT) Temazepam;
(UU) Tetrazepam; and
(VV) Triazolam.
(3) Material, compound, mixture or preparation containing
any quantity of the following substance, including any salts,
isomers and salts of isomers of it that are theoretically possible: Fenfluramine.
(4) 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((+)-norseudoephedrine);
(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) A material, compound, mixture or preparation containing
any quantity of the following substance, including its salts:
Pentazocine.
(b) The state board of pharmacy may exempt by rule any
compound, mixture or preparation containing a depressant
substance listed in subsection (a)(2) of this section from the application of all or 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 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
rescheduled 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 required by subsection (a) of this section 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
state or federal regulation or more specifically included in
another schedule, the following controlled substances are listed
in Schedule V:
(1) A material compound, mixture or preparation containing
any of the following narcotic drug and its salts: Buprenorphine.
(2) A 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) A 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 in subsection (e), section two hundred one of
this article. After final determination that the controlled
substance analog should not be scheduled, 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) of this section does not entitle a registrant to manufacture and distribute controlled
substances in Schedule 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 of this
article 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 of this article 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 registrant
whose 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 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 of
this article, 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 dispense
controlled 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 promulgated by the state board of pharmacy
in accordance with chapter twenty-nine-a of this code.
§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 of this article. 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 determined
under article five, chapter thirty of this 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 shall
regularly 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 fifteen years, fined not more
than twenty-five thousand dollars, 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) of this section;
(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 any
of 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 five years, fined not more than
fifteen thousand dollars, 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)of this
subsection.
(3) A person is guilty of a crime, and, upon conviction, may
be imprisoned for not more than three years, fined not more than
ten thousand dollars, 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 one year, fined not more than
five thousand dollars, 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 six months, fined not more than
one thousand dollars, or both, for a violation of this subsection
in the case of marihuana except as provided in paragraph (1)of
this subsection.
(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 hundred grams, the person is guilty of a crime, and, upon conviction,
shall be imprisoned for not less than fifteen years nor more than
twenty years and fined not less than twenty-five thousand
dollars;
(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 twenty years nor more than
twenty-five years and fined not less than thirty-five thousand
dollars;
(C) Five hundred grams or more, the person is guilty of a
crime, and, upon conviction, shall be imprisoned for not less
than twenty-five years nor more than thirty years and fined not
less than fifty thousand dollars.
(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) of this section. 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 fifteen years nor more than twenty years and fined not less than twenty-five
thousand dollars;
(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 twenty years nor more than
twenty-five years and fined not less than thirty-five thousand
dollars;
(C) One kilogram or more, the person is guilty of a crime,
and, upon conviction, shall be imprisoned for not less than
twenty-five years nor more than thirty years and fined not less
than fifty thousand dollars.
(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 fifteen years nor more than twenty
years and fined not less than twenty-five thousand dollars.
(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 twenty years nor more than twenty-five years and fined not less than thirty-five thousand
dollars.
(C) Fifty grams or more, the person is guilty of a crime,
and, upon conviction, shall be imprisoned for not less than
twenty-five years nor more than thirty years and fined not less
than fifty thousand dollars.
(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 fifteen years nor more than twenty years and
fined not less than twenty-five thousand dollars, 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 twenty years nor more than
twenty-five years and fined not less than thirty-five thousand
dollars;
(C) One hundred grams or more, the person is guilty of a
crime, and, upon conviction, shall be imprisoned for not less
than twenty-five years nor more than thirty years and fined not less than fifty thousand dollars.
(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 fifteen years nor more than twenty
years and fined not less than twenty-five thousand dollars;
(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 twenty years nor more than twenty-five years
and fined not less than thirty-five thousand dollars;
(C) Five grams or more, the person is guilty of a crime,
and, upon conviction, shall be imprisoned for not less than
twenty-five years nor more than thirty years and fined not less
than fifty thousand dollars.
(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 hundred
fifty grams, the person is guilty of a crime, and, upon
conviction, shall be imprisoned for not less than fifteen years
nor more than twenty years and fined not less than twenty-five
thousand dollars.
(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 twenty years nor more than
twenty-five years and fined not less than thirty-five thousand
dollars;
(C) One kilogram or more, the person is guilty of a crime,
and, upon conviction, shall be imprisoned for not less than
twenty-five years nor more than thirty years and fined not less
than fifty thousand dollars.
(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 fifteen years nor more than twenty years and fined not less than twenty-five thousand dollars;
(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 twenty years nor more than
twenty five and fined not less than thirty-five thousand dollars;
(C) One hundred kilograms or more,the person is guilty of a
crime, and, upon conviction, shall be imprisoned for not less
than twenty-five years nor more than thirty years and fined not
less than fifty thousand dollars.
(c) Except as authorized by law, it is unlawful for a person
knowingly 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 fifteen years, fined not more than twenty-five thousand
dollars, or both.
(d) Notwithstanding any other provision of this article,
with respect to any individual who is found to have violated
subsection (b) of this section, 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 of this chapter to
distribute or dispense a controlled substance in violation of
section three hundred eight, article three of this chapter;
(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 this
chapter.
(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) of this
section:
(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) of this section is
guilty of a crime, and, upon conviction, may be imprisoned for
not more than five years, fined not more than twenty-five
thousand dollars, or both, or fined not more than fifty thousand dollars if the person is not an individual.
(g) Except as provided in subsection (f) of this section, a
person who violates this section is guilty of a crime, and, upon
conviction, may be imprisoned for not more than one year, fined
not more than twenty-five thousand dollars, 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
three years, fined not more than thirty thousand dollars, 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 fifteen
years, fined not more than twenty-five thousand dollars, 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 person
reasonably 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 one
year, fined not more than ten thousand dollars, 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 one year, fined not more than five
thousand dollars, or both. Any individual who violates this
section with respect to a substance included in Schedule III, IV
or V is guilty of a misdemeanor, and, upon conviction, may be
imprisoned for not more than six months, fined not more than one
thousand dollars, 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 ninety days, fined not more than one
thousand dollars, 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 of this article.
(b) It is unlawful for any individual to violate section
four hundred one of this article 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 of this article.
(c) An individual who violates subsection (b) of this
section 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
of this article.
(d) It is not a defense to a violation of subsection (a) of
this section 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) of this section 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 two years
for a violation of subsection (a) or (b) of this section; and
(3) The individual is not eligible for parole before serving
the 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) of this
section 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 of this article.
(c) An individual who violates subsection (a) of this
section 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 of this article.
(d) An individual who violates subsection (a) of this
section 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 five years and fined not
more than ten thousand dollars 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 code, 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 two years
for violation of subsection (a) or (b) of this section; 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 of this article 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) of this section
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 of this
article.
(c) Notwithstanding any other provision of this article,
with respect to an individual who is found to have violated subsection (a) or (b) of 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 two years
for a violation of subsection (a) or (b) of this section; and
(3) The individual is not eligible for parole before serving
the mandatory term of imprisonment prescribed by subsection (a)
or (b) of this section.
§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 ten
years, fined not more than fifty thousand dollars 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 subsection (b), section four hundred six;
subsection (a), section four hundred nine; section four hundred
ten; or section four hundred eleven, all of this article.
§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 of this article, 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 and rehabilitation 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 any
violation 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 of this article, shall be assessed
for each offense a 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.
§60A-4-419. Criminal forfeiture.
(a) In addition to other penalties provided in this article,
a person convicted for conduct that subjects property to
forfeiture under section five hundred three, article five of this
chapter, forfeits property related to the offense forfeitable
under article five of this chapter.
(b) An interest in property is subject to forfeiture under this section only if an indictment or information for conduct
that subjects property to forfeiture under section five hundred
three, article five of this chapter, identifies the property and
states that it is subject to forfeiture. The forfeitability of
property under this section is not an element of a criminal
offense.
(c) Except as otherwise provided in this section, an
indictment or information has the same effect as a complaint
required to initiate a judicial forfeiture proceeding in personam
under section five hundred eighteen, article five of this
chapter, and forfeiture under this section is subject to the same
rules, requirements and limitations as a judicial forfeiture
proceeding in personam. A forfeiture proceeding against a
criminal defendant must be conducted pursuant to the rules of
criminal procedure.
(d) The court may bifurcate proceedings relating to the
consideration of evidence regarding a criminal prosecution and a
forfeiture. In determining whether to bifurcate proceedings, in
whole or in part, the court shall consider all relevant factors,
including:
(1) Whether the defendant might testify on the issues of
guilt, forfeiture or both;
(2) Whether the defendant might offer evidence that some,
but not all, of defendant's property is not forfeitable; and
(3) The extent to which separate issues of fact exist
regarding the guilt of the defendant and the forfeitability of
property.
(e) A criminal defendant is entitled to a trial by jury
regarding the forfeiture of property. The state has the burden
of proving by a preponderance of the evidence that the property
is subject to forfeiture under section five hundred three,
article five of this chapter. If a verdict of forfeiture is
returned, the defendant forfeits the defendant's interest in
property subject to forfeiture, unless the property is exempt
from forfeiture or forfeiture is otherwise precluded under
article five of this chapter.
(f) Although a person claiming an interest in property
subject to forfeiture under this section may not intervene in a
trial or appeal of a criminal conviction, the person, after entry
of judgment of forfeiture against the criminal defendant, may
file a claim under subsection (e), section five hundred eighteen,
article five of this chapter, that the interest is not subject to
forfeiture. Before judgment of forfeiture against a criminal
defendant, proceedings may be commenced for the substitution or release of property pursuant to section five hundred ten or five
hundred eleven, article five of this chapter.
(g) Before the commencement of proceedings under subsection
(e), section five hundred eighteen, article five of this chapter,
a person other than the criminal defendant may file a request for
an administrative exemption or substitution of property under
section five hundred thirteen, article five of this chapter. The
pendency of criminal proceedings under this section does not
prevent the filing of a request for an administrative exemption
or substitution of property and the state may not defer action on
a request for an administrative exemption or substitution pending
the initiation of proceedings pursuant to subsection (e), section
five hundred eighteen, article five of this chapter. If an owner
whose interest is determined to be nonexempt in an administrative
proceeding files a demand for a judicial proceeding pursuant to
section five hundred fourteen, article five of this chapter, the
state must commence proceedings as required by subsection (e),
section five hundred eighteen, article five of this chapter,
within thirty days after entry of a judgment of forfeiture
against the criminal defendant.
(h) For purposes of this section, conditional discharge
under section four hundred fourteen of this article, constitutes a conviction. A judgment of forfeiture must be entered,
notwithstanding other provisions permitting probation for the
offender.
(i) Upon motion of the state in a forfeiture proceeding
under this section, the court may order the substitution of
property in lieu of property subject to forfeiture under
subdivision (4), (5) or (7), subsection (a), section five hundred
four, article five of this chapter, if:
(1) An interest in the substituted property is owned by the
criminal defendant, or by a person holding the property for the
benefit of or as a nominee for the criminal defendant; and
(2) As a result of an act or omission of the criminal
defendant, the original property:
(i) Cannot be located;
(ii) Was transferred or conveyed to, sold to or deposited
with another person, including a transfer to an attorney as
consideration for legal services;
(iii) Is beyond the jurisdiction of the court;
(iv) Has been substantially diminished in value while not in
the physical custody of the state, except when the diminution in
value is the result of routine use, casualty loss or the
forfeitability of the property;
(v) Cannot be practicably divided because of commingling; or
(vi) Has become an accession to some other property and
cannot be separated without inordinate expense or without
substantially diminishing the value of either the accession or
the attached goods.
(j) Upon the substitution of property under subsection (i)
of this section, the original property remains subject to
forfeiture, but the total value of property forfeited as the
result of the same conduct may not exceed the value of the
criminal defendant's interest in the original property.
(k) Property substituted under subsection (i) of this
section is not required to be designated in an indictment or
information, but may be designated by the court upon a motion of
the state after notice and an opportunity for an adversarial
hearing. Before the designation of substitute property by the
court, the state may not seize the substituted property or file
or record a forfeiture lien but may seek a temporary restraining
order or preliminary injunction under section five hundred
eighteen, article five of this chapter.
ARTICLE 5. CIVIL FORFEITURE.
§60A-5-501. Definitions.
In this article:
(1) "Actor" means a person whose conduct subjects property
to forfeiture under section five hundred three of this article.
(2) "Attorney for the state" means an officer authorized to
prosecute a forfeiture under subsection (a), section five hundred
two of this article.
(3) "Conduct subjecting property to forfeiture," "conduct
that subjects property to forfeiture" or "conduct" means the
conduct described in section five hundred three of this article.
(4) "Custodial agency" means the agency designated in
subsection (c), section five hundred two of this article.
(5) "Judicial lien" means a lien attached to property and
obtained by judgment, levy, sequestration or other legal or
equitable process or proceeding.
(6) A person "knows" a fact or acts with "knowledge" if the
person is aware of the existence of the fact or displays willful
blindness as to whether the fact exists. A corporation or
unincorporated association knows a fact or acts with knowledge if
an individual for whom criminal liability may be imputed to a
corporation or unincorporated association pursuant to section
2.07 of the model penal code knows the fact or acts with
knowledge of the fact.
(7) "Owner" means a person who has a legal or equitable interest in property, including a security interest.
(8) "Proceeds" includes identifiable property received upon
the sale, exchange or other disposition of property, including
insurance or other proceeds received for loss of or damage to
property, and interest, rents, dividends, collections and other
income derived from an interest in property.
(9) "Property" means all property, whether real, personal,
mixed, tangible or intangible.
(10) "Security interest" means an interest in property that
secures payment or performance of an obligation. The term
includes an interest treated as a security interest under section
1-201(37), chapter forty-six of this code. The term does not
include an interest created by retention of the title to real
property by a seller for less than one year after the buyer
enters into possession.
(11) "Seizing agency" means an agency authorized to seize
property under subsection (b), section five hundred two of this
article.
(12) A person gives "value" for a right if the person
acquires it:
(i) In return for a binding commitment to extend credit or
for the extension of immediately available credit, whether or not drawn upon or a charge-back is provided;
(ii) As security for or in total or partial satisfaction of
a preexisting claim;
(iii) By accepting delivery pursuant to a preexisting
contract for purchase; or
(iv) Generally, in return for consideration sufficient to
support a simple contract.
(13) A person displays "willful blindness" as to whether a
fact exists if the person is aware of a substantial probability
that the fact exists and consciously avoids information
corroborative of the existence of the fact.
§60A-5-502. Agencies responsible for forfeitures.
(a) A forfeiture proceeding under this article may be
prosecuted by the county prosecuting attorney. The
responsibility to prosecute a forfeiture proceeding may not be
delegated to a private attorney.
(b) Property may be seized pursuant to this article only by
an officer or employee of the division of public safety.
(c) Property seized or received before forfeiture under this
article must be placed in the custody of the division of public
safety.
§60A-5-503. Conduct that subjects property to forfeiture.
(a) The following conduct subjects property to forfeiture:
(1) An act or omission punishable under this chapter by
imprisonment for more than one year;
(2) An act or omission committed in furtherance of any act
or omission described in paragraph (1) of this subsection and
punishable by imprisonment for more than one year; or
(3) An act or omission occurring outside this state which:
(i) Is punishable in the state in which it occurred or under
federal law by imprisonment for more than one year; and
(ii) Would be punishable under paragraph (1) or (2) of this
subsection if the act or omission had occurred in this state.
(b) Conduct covered by subsection (a) of this section
subjects property to forfeiture even if it has not been the
subject of a criminal prosecution.
§60A-5-504. Property subject to forfeiture.
(a) The following property is subject to forfeiture:
(1) A controlled substance, controlled substance analog or
imitation controlled substance manufactured, distributed,
dispensed, possessed, acquired or used in violation of this
chapter, or property used to counterfeit a controlled substance
in violation of this chapter;
(2) A controlled substance in Schedule I or II if the owner is unknown;
(3) A plant from which a controlled substance in Schedule I
or II may be derived if it is planted or cultivated in violation
of this chapter, the owner or cultivator is unknown, or it is a
wild growth;
(4) Property furnished or intended to be furnished in an
exchange that constitutes conduct subjecting property to
forfeiture;
(5) Property used or intended to be used to facilitate
conduct subjecting property to forfeiture;
(6) Weapons possessed, used or available for use to
facilitate conduct subjecting property to forfeiture; and
(7) Proceeds traceable to property described in paragraphs
(1) through (6) of this subsection.
(b) The commingling of other property with property subject
to forfeiture does not make the other property forfeitable as
proceeds. Equitable tracing rules may be used to identify
property that is forfeitable as proceeds. Income or gain
attributable to commingled property is subject to forfeiture in
the proportion that the value of the forfeitable property bears
to the value of the commingled property.
(c) Except as otherwise modified by adverse possession or a prescriptive easement, the boundary of real property subject to
forfeiture is the boundary that appears in the recorded legal
description of the lot, portion or parcel. Whether or not a
person whose interest in real property is subject to forfeiture
owns other lots, portions or parcels of property, the property
subject to forfeiture is the lot, portion or parcel upon which
conduct subjecting property to forfeiture occurred, unless the
lots, portions or parcels were separately described of record to
avoid forfeiture, or the lot, portion or parcel would not be
reasonably marketable without inclusion of the owner's contiguous
lots, portions or parcels. Forfeiture of a lot, portion or
parcel of real property includes all appurtenances and
improvements.
§60A-5-505. Interests exempt from forfeiture.
(a) The following interests in property are exempt from
forfeiture:
(1) Property owned by general or special purpose units of
government and other property dedicated to public use;
(2) Statutory or recorded liens for taxes, special
assessments and fees due a governmental entity; and
(3) Utility, road, sewer and other easements of record owned
by or dedicated to a utility or unit of government.
(b) An interest in property acquired by an owner before the
occurrence of conduct that subjects the property to forfeiture is
exempt from forfeiture if:
(1) The owner did not know the conduct would occur at the
time of acquisition of the interest and any later time when an
actor controlled or possessed the property; or
(2) The owner acted in a manner the owner reasonably
believed appropriate to prevent an actor's conduct and assists in
the prosecution of the actor.
(c) An interest in property acquired by the owner after the
occurrence of conduct that subjects property to forfeiture of the
property is exempt from forfeiture if:
(1) The owner acquired the property for value, other than as
consideration for the provision of future services, and at the
time of acquisition did not know that the conduct has occurred or
the property had been seized for forfeiture;
(2) Except as provided by section five hundred six of this
article, the owner acquired the property for value as
consideration for the provision of future services, and at the
time of acquisition did not know that the conduct had occurred or
the property had been seized for forfeiture, but only to the
extent that, at the time of obtaining knowledge of a judicial determination of probable cause that the property is subject to
forfeiture, the owner would be required to provide the services
notwithstanding the forfeiture of the property or would have the
right to retain the interest upon a termination of the contract
by the transferor without cause; or
(3) The owner acquired the property without giving value,
and is the spouse of a person whose interest in the property is
subject to forfeiture, if the property is the spouse's primary
residence or the spouse's only remaining parcel. Whether or not
a person whose interest in real property is subject to forfeiture
owns other lots, portions or parcels of property, the property
subject to forfeiture is the lot, portion or parcel upon which
conduct subjecting property to forfeiture occurred, unless the
lots, portions or parcels were separately described of record to
avoid forfeiture, or the lot, portion or parcel would not be
reasonably marketable without inclusion of the owner's contiguous
lots, portions or parcels. Forfeiture of a lot, portion or
parcel of real property includes all appurtenances and
improvements.
(d) An interest in property is exempt from forfeiture under
subsection (c)(3) of this section, in an amount not to exceed
seventy thousand dollars for a residence and in an amount not to exceed twenty thousand dollars for an automobile.
(e) Except for the owner of an interest in property exempt
from forfeiture under subsection (a), (f) or (j) of this section,
in order to claim an exemption from forfeiture the owner must
file a request for an administrative exemption under section five
hundred thirteen of this article, or a demand for a judicial
proceeding under section five hundred fourteen of this article,
or assert an exemption in a judicial forfeiture proceeding.
(f) The following interests in property owned by a person
other than an actor are regarded as exempt from forfeiture
without filing a request, demand or pleading under subsection (e)
of this section, until the attorney for the state gives notice
under subsection (g) of this section that the interests are
claimed not to be exempt:
(1) Judicial liens and liens created by law;
(2) Easements, covenants, restrictions and reservations
burdening the property;
(3) Rights to remove natural resources from real property,
including water, mineral and timber rights, if the rights have
been severed from other interests in the property;
(4) Interests in substitute property designated pursuant to
subsection (i), section four hundred nineteen, article four of this chapter;
(5) Interests created or acquired in obligations to pay
money, including leases of specific property, and recorded or
perfected security interests, and interests acquired under a
repurchase agreement, if held, as applicable, by a person:
(i) Regularly engaged in leasing specific property or
extending credit on the security of property;
(ii) Regularly engaged in the purchase of obligations to pay
money or property subject to a repurchase agreement;
(iii) That issues, participations in or claims backed by an
identifiable pool of obligations to pay money or security
interests, or both; or
(iv) That sold property and holds the interest as security
for the payment of the purchase price; and
(6) Interests of a lessee or licensee in control of or with
a right to use property if the lessor or licensor is the person
whose conduct subjects the interests to forfeiture.
(g) Notwithstanding the requirements of subsection (a) of
this section, if the attorney for the state has probable cause
that an interest in property described in subsection (f) of this
section is not exempt from forfeiture under subsection (b), (c)
or (l) of this section, the attorney for the state may give notice to the owner that the property is not exempt under
subsection (f) of this section. The notice must:
(1) Specifically state that the interest is subject to
forfeiture;
(2) Be provided to the owner of the interest in the manner
provided by subsection (c), section five hundred twelve of this
article; and
(3) Be received by the owner of the interest before the
conclusion of the forfeiture proceeding.
(h) An owner of property who receives notice under
subsection (g) of this section must claim an exemption from
forfeiture in the manner provided by subsection (e) of this
section. The time limits applicable to filing a request for an
administrative exemption under section five hundred thirteen of
this article, or a demand under section five hundred fourteen of
this article, are extended to the extent necessary to provide a
reasonable opportunity to file a request or a demand.
(i) The transfer of property exempt from forfeiture vests in
the transferee any right to an exemption of the transferor, but
the transferee cannot acquire an exemption by a transfer,
directly or indirectly, if the transferee engaged in conduct that
subjects the property to forfeiture or under subsection (l) of this section bars an exemption.
(j) If an owner of an interest described in subdivision (5),
subsection (f) of this section, received value for a promise to
transfer the property to another person before receiving notice
under subsection (g) of this section, the purchaser's interest is
exempt from forfeiture, but the previous owner's interest in the
property and any value received are not exempt from forfeiture
under subsection (f) of this section.
(k) In addition to other measures that satisfy the
requirements of subdivision (2), subsection (b) of this section,
an owner satisfies the requirements of subdivision (2),
subsection (b) of this section, by:
(1) Notifying an appropriate law-enforcement agency of
information that led the owner to know the conduct would occur
and of other information the law-enforcement agency reasonably
requests to prevent the conduct and prosecute the actor; and
(2) Revoking permission for the actor to use the property or
taking reasonable actions in consultation with a law-enforcement
agency to discourage or prevent the illegal use of the property,
but a person is not required to undertake any action the owner
reasonably believes may threaten any person's personal security
or safety.
(l) Except for property exempt under subsection (a) of this
section, an interest in property is not exempt from forfeiture
under this section if the owner:
(1) Holds the interest for the benefit of or as nominee for
the person whose conduct subjects the property to forfeiture; or
(2) Is criminally responsible for the conduct that subjects
the property to forfeiture, whether or not a prosecution is
initiated.
(m) For purposes of this section and section five hundred
six of this article, an owner acquires an interest in property
pursuant to a contract at the time the contract is made, whether
or not the property is identifiable at that time.
(n) Knowledge of conduct that subjects property to
forfeiture may not be inferred from an owner's awareness that
property has been seized for forfeiture, made subject to a lien
under section five hundred nine of this article, or previously
was the subject of an administrative or judicial forfeiture
proceeding, if the property has been released by the state, any
lien has been removed, or the forfeiture proceeding has been
dismissed.
(o) An interest in property exempt under this section or
section five hundred six of this article may be subordinate to the state's interest created by a lien under section five hundred
nine of this article.
§60A-5-506. Attorney's fees.
(a) An interest in property acquired by an attorney as
payment of or as security for payment of a reasonable fee for
legal services in a criminal matter or for the reimbursement of
reasonable expenses related to those services is exempt from
forfeiture unless the payment or security interest acquired
represents a fraud or sham to protect the interest from
forfeiture.
(b) The state has the burden of proving that an attorney is
not entitled to an exemption claimed under this section. Evidence
made available by the compelled disclosure of confidential
communications between attorney and client, other than
nonprivileged information relating to attorney's fees, is not
admissible to satisfy the state's burden of proof.
§60A-5-507. Seizure of property for forfeiture.
(a) The state may seize property for forfeiture only as
provided by subsection (b) or (c) of this section unless:
(1) In the circumstances, a warrantless seizure would be
lawful if the property were evidence of a crime; or
(2) The person in possession of the property voluntarily delivers it to the seizing or custodial agency.
(b) Upon a showing that probable cause for forfeiture exists
or property has been the subject of a previous final judgment of
forfeiture for conduct that subjects property to forfeiture, the
circuit court shall issue a warrant authorizing seizure of the
property for forfeiture or direct legal process ordering a person
in possession of the property to transfer control of the property
to a custodial agency or law-enforcement official. In issuing a
seizure warrant or directing legal process, the court may order
that the property be seized by or transferred to the custodial
agency. Property lawfully seized as evidence may be held for
forfeiture without the issuance of a separate warrant authorizing
seizure for forfeiture if the seizing agency complies with the
requirements of this section.
(c) The following additional rules apply to a seizure that
affects an interest in real property:
(1) Except as otherwise provided in paragraph (3) of this
subsection, the state may not seize property unless the owner has
first been afforded an opportunity for an adversarial judicial
determination that:
(i) Probable cause for forfeiture exists; and
(ii) An alternative to seizure will not adequately protect the state's interest in forfeiture, including the state's
interest in income generated by the property and in preventing
future violations of law.
(2) For the purposes of paragraph (1)(ii) of this
subsection, alternatives to seizure include the recording of a
notice of lien pursuant to section five hundred nine of this
article, the execution of an occupancy agreement, the designation
of substitute property under section five hundred ten of this
article or the entry of a restraining order.
(3) Upon a finding of probable cause that the property will
continue to be used for activity proscribed by this chapter, a
court may authorize the state to seize the property, without
first providing an opportunity for a hearing under paragraph (1)
of this subsection if the public interest so dictates. Access
may be restricted to the extent reasonably necessary to prevent
the continued illegal use of property and to protect the public
health, safety and welfare.
(d) The opportunity for a hearing under section five hundred
eleven of this article does not meet the requirements of
subsection (c) of this section unless the owner has been notified
that the state intends to seize the property.
(e) At the time of seizure an individual seizing property under this section shall deliver to the person from whose
possession or control the property is seized a written statement
that the property has been seized for forfeiture and a receipt
indicating that custody of the property has been transferred to
the state. If no identified person is in possession or apparent
control, the individual seizing the property shall post the
statement and receipt in a conspicuous place on immovable
property or at the place of seizure of movable property. The
receipt must contain a general description of the property
seized, the date and place of seizure, the name and official
capacity of the individual seizing the property and the address
and telephone number of the individual or agency from which
information about the seizure may be obtained.
(f) As soon as practicable after seizure, the seizing agency
shall prepare an inventory of the property seized and transfer
the property to a custodial agency.
(g) The seizure of property from a person holding a lien on
the property does not affect the person's lien insofar as
possession is a prerequisite to the existence, perfection or
priority of the lien.
(h) Property may be seized before the commencement of an
administrative or judicial proceeding, except as otherwise provided for substituted property forfeitable only under
subsection (i), section four hundred nineteen, article four of
this chapter.
(i) Failure to follow the requirements of this section does
not affect the forfeitability of property. However, property
must be seized or subject to a lien to establish in rem
jurisdiction.
(j) The state's seizure of property does not establish the
priority of the state's interest over later-acquired interests in
the property. The state may establish its priority with respect
to seized property by filing or recording a lien under section
five hundred nine, article five of this chapter.
§60A-5-508. Custody and release of seized property.
(a) Seized property must be placed in the custody of a
custodial agency, but the attorney for the state may authorize
its release.
(b) A custodial agency may:
(1) Remove the property to a place designated by the court;
(2) Retain the property as evidence if authorized by other
law;
(3) Limit access to the property or remove it to a storage
area for safekeeping or otherwise take reasonable measures to preserve its value;
(4) Provide for an agency or receiver, who may be an owner,
to take custody of the property and to service, maintain and
operate it as necessary to maintain its value; and
(5) With the approval of all owners or the court, arrange
the sale of the property before the conclusion of the forfeiture
proceeding.
(c) The court may approve a sale pursuant to subdivision
(5), subsection (b) of this section only if no owner with a right
to possession wishes to provide substitute property pursuant to
section five hundred ten of this article and the cost of
maintaining the property or its likely depreciation makes it
unreasonable to maintain the property until the proceeding is
concluded.
§60A-5-509. Liens.
(a) If there is probable cause that the property is subject
to forfeiture pursuant to this article or if the state prevails
in a forfeiture proceeding, the state may obtain a lien with
respect to an interest in property by filing or recording, as
appropriate, a notice of lien.
(b) A lien has the same effect upon the specified interests
as a judicial lien obtained by a creditor on a simple contract which attached at the time the notice under this section is filed
or recorded, but:
(1) The state may dispose of property subject to the lien
only as provided in this article;
(2) A lien in effect at the time an interest is acquired
does not affect the interest if the lien is subsequently released
pursuant to subsection (b), section five hundred twenty-two of
this article or otherwise;
(3) A lien does not take priority over a previously created
but unperfected security interest if the existence and exemption
of that interest is proven as provided by subsection (b), section
five hundred twenty-one of this article;
(4) A transferee's interest is not subject to the lien if
the transferee would take free of a perfected security interest
in the property; and
(5) A person other than the owner in possession or control
of an interest secured by a lien, including a financial
institution holding accounts, may transfer the interest as
directed by the owner until the person knows of the lien.
(c) A notice of the lien must be:
(1) Recorded upon real property in the office of the county
court of the county in which real property subject to the lien is situated; and
(2) Filed upon personal property, whether tangible or
intangible, as provided by article nine, chapter forty-six of
this code, if the person against whose interest the lien applies
is a corporation, a limited liability company or a partnership
whose principal executive office is in this state, in the office
of the secretary of state and in all other cases, in the office
of the county court of the county where the person against whose
interest the lien applies resides at the time of recording of the
notice of lien.
(d) A notice of lien must set forth:
(1) A description of the property reasonably sufficient for
filing or recording and enabling a person who examines the notice
to identify the property;
(2) The name of the lienor and a statement that the property
may be subject to forfeiture under this article;
(3) The property interest over which a lien is claimed by
the lienor and name of the owner of that interest unless the name
of the owner is unknown; and
(4) The name, address and telephone number of a person who
can provide information as to the nature of the claim of the
lienor.
(e) The attorney for the state may amend or release, in
whole or in part, a notice of lien filed or recorded under this
section at any time by recording or filing an amended notice of
lien.
(f) As soon as practicable after filing or recording a
notice of lien or an amended notice of lien, the attorney for the
state shall furnish a copy of the notice to every person named in
the notice. Failure to give a notice required by this subsection
does not affect the validity of a lien filed or recorded pursuant
to this section.
(g) A lien does not affect an interest exempt from
forfeiture under subsection (a), section five hundred five, of
this article. A lien affects an interest described in subsection
(f), section five hundred five of this article only after the
attorney for the state gives notice under subsection (g), section
five hundred five of this article, that the property is subject
to forfeiture.
§60A-5-510. Substitution of property.
(a) Property may be substituted for property subject to
forfeiture upon a request by an owner. The offered substitute
property must be accepted if:
(1) Its value equals or exceeds the value of the original property upon the date of substitution, but property of lesser
value, including a secured or unsecured agreement to pay to the
state an amount equal to the owner's interest in the released
property, must be accepted if the owner establishes a high
probability that the owner's interest in the original property is
exempt from forfeiture, other than under subsection (f), section
five hundred five of this article;
(2) Conditions are imposed upon the acceptance of the
substituted property to protect the state's interest in the
forfeiture proceeding, to prevent future violations of law, to
preserve other interests in the original property protected by
law, including property interests protected in foreclosure and to
minimize the cost of maintenance or management of the substituted
property;
(3) Other affected owners of the substituted property have
consented to the designation; and
(4) The original property is not contraband, evidence
relevant to a prosecution or, by reason of its design or other
characteristics, particularly suited for use in illegal
activities.
(b) An owner of property subject to forfeiture may request
the substitution of property pursuant to subdivision (3), subsection (a), section five hundred eleven or subsection (a),
section five hundred thirteen, both of this article, or in a
judicial forfeiture proceeding. An owner whose right to
possession of the original property requires a judicial
determination may establish a right to possession by making the
required showing in a proceeding for substitution. An owner may
establish its right to possession of the original property by
proving in a proceeding for substitution that it would have the
right to self-help repossession if the original property were
released by the state.
(c) A surety or collateral bond may be accepted as
substituted property pursuant to standards established by the
supreme court of appeals.
(d) Upon the substitution of property at the request of an
owner, the original property must be released, any lien filed
upon it removed and forfeiture proceedings against it terminated,
and the state shall proceed against the substituted property.
The substituted property is subject to forfeiture to the same
extent as the original property, and the original property is no
longer subject to forfeiture for the same conduct that subjected
the property to seizure or forfeiture.
§60A-5-511. Release of property upon preliminary hearing.
(a) An owner of property seized pursuant to section five
hundred seven of this article or subject to a lien pursuant to
section five hundred nine of this article may obtain release of
the property or lien, or other appropriate relief, if:
(1) The state lacks probable cause for its forfeiture;
(2) The state intends to seize real property notwithstanding
the availability of less restrictive alternatives adequate under
subsection (c), section five hundred seven of this article; or
(3) The owner is entitled to substitute property under
section five hundred ten of this article.
(b) An owner may file a petition under this section in the
circuit court. All petitions relating to the property may be
consolidated for hearing, and the hearing may be consolidated
with a hearing on an application for an injunction under section
five hundred eighteen of this article. The petition must be
served on the attorney for the state by a means authorized for
personal service of process.
(c) The court shall conduct a hearing on the petition upon
at least five days' notice and within thirty days after its
service. The court shall render a ruling as soon as practicable.
Upon good cause shown or with consent of the parties, the court
may depart from the requirements of this subsection for scheduling and notice.
(d) In a proceeding under this section, the state has the
burden of proving that probable cause exists that property is
subject to forfeiture under section five hundred four of this
article. The petitioner has the burden of proof by a
preponderance of the evidence on all other issues.
(e) The owner of property is not entitled to the release of
property or a lien if the property is subject to summary
forfeiture under section five hundred fifteen of this article,
is evidence of a violation of law or is particularly suited by
reason of design or other characteristic for use in illegal
activities.
(f) If the court finds probable cause does not exist that
property is subject to forfeiture, the court shall order the
state to release the property and file notice of release of its
lien.
(g) If the court finds that subsection (c), section five
hundred seven of this article is satisfied by an alternative to
seizure of real property, the court shall order the state not to
seize the property, or to release it, unless the owner rejects
the alternative.
(h) If the court finds probable cause that property is subject to forfeiture under section five hundred four of this
article, the court may order the custodial agency to accept
substituted property and release the original property as
provided by subsection (d), section five hundred ten of this
article.
(i) The release of property or a lien under this section
does not preclude a subsequent seizure for forfeiture, filing of
a lien or commencement of a forfeiture proceeding.
§60A-5-512. Administrative procedures.
(a) The attorney for the state may commence an
administrative forfeiture by serving a notice of proposed
forfeiture.
(b) The notice of proposed forfeiture must contain:
(1) The name and address of the attorney for the state;
(2) A description of the property and the interests sought
to be forfeited;
(3) The date and place of seizure of property and the name
and address of the seizing agency, if applicable;
(4) The reason the property is alleged to be forfeitable;
and
(5) A summary of the procedures and procedural rights
applicable to the forfeiture.
(c) A notice of proposed forfeiture must be served on all
owners of the property subject to forfeiture in accordance with
the following rules:
(1) If the owner's name and current address are known or are
reasonably ascertainable, service must be made by personal
service or by mailing the notice by certified mail, return
receipt requested, to that address.
(2) If the owner's current address is not known and is not
reasonably ascertainable, but to perfect or record an interest in
the property, the owner's address is required to be on file or on
record with an agency of the federal or any state government,
service may be by certified mail, return receipt requested, sent
to the last known address on file or in the record of the agency.
(3) If an owner's interest is not known and is not
reasonably ascertainable or the owner's address is not known and
is not reasonably ascertainable, service may be by publication
for at least three consecutive weeks in one issue weekly of a
newspaper of general circulation in the county in which the
property was located at the time of seizure or, if the property
has not been seized, in the county in which the notice of
proposed forfeiture was issued.
(d) If property subject to an administrative forfeiture has not been seized, the notice of proposed forfeiture must also be
posted as soon as practicable in a conspicuous place on the
property and a forfeiture lien must be filed or recorded pursuant
to section five hundred nine of this article.
(e) An interest in property is forfeited thirty days after
notice of proposed forfeiture is served unless a judicial
forfeiture relating to the property is commenced, or the owner
requests an administrative exemption under section five hundred
thirteen of this article or files a demand for a judicial
proceeding under section five hundred fourteen of this article.
(f) The state may elect to commence a judicial forfeiture
within the time specified in section five hundred nineteen of
this article, notwithstanding the pendency of an administrative
forfeiture or a request for an exemption under section five
hundred thirteen of this article. The commencement of a judicial
forfeiture does not relieve the attorney for the state from the
obligation to produce a statement of exempt and nonexempt
interests if the requirements of section five hundred thirteen of
this article are met.
(g) Chapter twenty-nine-a of this code does not apply to
proceedings conducted under sections five hundred twelve and five
hundred fifteen of this article.
§60A-5-513. Administrative exemption or substitution of
property.
(a) If property has been seized under section five hundred
seven of this article, is subject to a lien under section five
hundred nine of this article or is subject to an administrative
forfeiture under section five hundred twelve of this article, an
owner may request the administrative recognition of an exemption
under section five hundred five or five hundred six of this
article or administrative approval of the substitution of
property under section five hundred ten of this article. The
request must be in substantial compliance with the requirements
of this section, and factual allegations are made under penalty
of perjury.
(b) A request filed pursuant to this section must set forth:
(1) The relief sought;
(2) The name and location of the administrative agency
conducting the proceeding, or if notice of proposed forfeiture
has not been given, a description of the property seized and, if
known, the name of the seizing and custodial agency and the date
and circumstances of the seizure;
(3) The name and address of the owner filing the request;
(4) The nature and extent of the interest claimed by the owner filing the request;
(5) The date and circumstances of the acquisition of the
owner's interest, and the identity of the transferor to the
owner; and
(6) The reason the interest should not be forfeited or that
substitute property should be designated, with facts supporting
the request.
(c) A request must be made within thirty days after service
of a notice of proposed forfeiture. The request may not be made
after a judicial forfeiture has been commenced or by a person who
has filed a demand under section five hundred fourteen of this
article.
(d) A request under this section must be made to the
attorney for the state by a means authorized for personal service
of process.
(e) If a person requests substitution and release of the
original property, the attorney for the state, within thirty days
after receiving the request, shall either direct the custodial
agency to accept the substituted property and release the
original property or deny the request for substitution.
(f) With respect to a person who requests an exemption, the
following rules apply:
(1) The attorney for the state, not later than ninety days
after service of the request upon the state, shall furnish to the
person filing the request a written statement of proposed exempt
and nonexempt interests. Notice of the statement must be given
as prescribed by subsection (c), section five hundred twelve of
this article. The person's interest is exempt if the attorney
for the state fails to furnish a timely statement.
(2) An interest in property determined to be exempt must be
released or disposed of pursuant to section five hundred
twenty-two of this article, unless another person claiming an
interest in the property objects to the statement and files a
demand for a judicial proceeding under section five hundred
fourteen of this article within thirty days after service of the
statement.
(3) An interest in property determined not to be exempt is
forfeited to the state and must be disposed of pursuant to
section five hundred twenty-two of this article unless the owner
files a demand for a judicial proceeding under section five
hundred fourteen of this article within thirty days after service
of the statement.
(4) If a judicial forfeiture proceeding is commenced, the
statement of exempt and nonexempt interests is binding on a person who does not file a timely demand under section five
hundred fourteen of this article but is not effective with
respect to a person who files or has filed a timely demand and is
treated as a rejected offer to compromise the dispute.
§60A-5-514. Demand for judicial proceedings.
(a) An owner of property seized pursuant to section five
hundred seven of this article, subject to a lien under section
five hundred nine of this article or subject to an administrative
forfeiture proceeding may file with the attorney for the state a
demand for a judicial proceeding to determine whether the
interest is exempt from forfeiture or otherwise not forfeitable.
If a demand is filed, the state may not forfeit the property
without commencing a judicial proceeding. An owner who files a
timely demand is not bound by an administrative statement of
exempt and nonexempt interests under section five hundred
thirteen of this article and the state is not bound by the
statement with respect to that owner.
(b) A demand must be served on the same parties and in the
same manner as a request under subsection (d), section five
hundred thirteen of this article.
(c) A demand must be served within thirty days after the
effective date of the notice of proposed forfeiture pursuant to subsection (a), section five hundred twelve of this article or,
if the owner has filed a request for an exemption under section
five hundred thirteen of this article, within thirty days after
notice of the statement of exempt and nonexempt interests.
(d) A demand must set forth the information required by
subdivisions (1) through (4), subsection (b), section five
hundred thirteen of this article, for a request for an exemption.
§60A-5-515. Summary forfeiture.
(a) The following property is subject to summary forfeiture
if it also is subject to forfeiture under section five hundred
four of this article:
(1) A controlled substance in Schedule I or II;
(2) A plant from which a controlled substance in Schedule I
or II may be derived; and
(3) Dangerous, toxic or hazardous property relating to
controlled substances, including raw materials and containers or
equipment from which raw materials cannot be separated safely.
(b) Property that is subject to summary forfeiture is
forfeited to the state upon seizure without further proceedings,
but the state may elect to commence an administrative or judicial
forfeiture proceeding.
(c) Upon a judgment of conviction under this article, the court may order forfeiture of a defendant's interest in a
controlled substance involved in the offense.
(d) This section does not apply to property seized from a
person permitted to possess or cultivate the property unless the
person fails to provide proof of appropriate registration to
possess or cultivate the property.
(e) This section does not affect the obligation of the state
to preserve evidence that may exculpate a criminal defendant.
§60A-5-516. Judicial procedures.
(a) The state may commence a proceeding in rem or in
personam to forfeit property. A judicial forfeiture proceeding
is governed by the West Virginia rules of civil procedure, except
as otherwise provided in this article.
(b) The court may issue restraining orders or injunctions;
require execution of performance bonds; establish receiverships;
appoint conservators, appraisers, accountants, custodians,
guardians or trustees; or take action to seize, secure or
maintain the property or to ensure its availability for
forfeiture, including issuance of process for its seizure or a
writ of attachment, whether before or after the filing of a
notice of proposed forfeiture or a petition for forfeiture.
(c) A party is entitled to a trial by jury in a judicial forfeiture proceeding.
(d) The court may stay civil forfeiture proceedings during
an investigation or trial of a related criminal matter, except
for preliminary hearings under section five hundred eleven of
this article and proceedings relating to substitution under
section five hundred thirteen of this article.
(e) Separate proceedings relating to the same property may
be consolidated on motion by an owner and must be consolidated on
motion by the attorney for the state.
§60A-5-517. Requirements for proceedings in rem.
(a) The attorney for the state shall commence a proceeding
in rem by serving a complaint in the manner and on the persons
required to commence an administrative forfeiture proceeding
under subsection (c), section five hundred twelve of this
article.
(b) To establish jurisdiction in rem, the state shall either
seize the property or file or record a lien pursuant to section
five hundred nine of this article.
§60A-5-518. Requirements for proceedings in personam.
(a) In a forfeiture proceeding in personam, the court may
issue a temporary restraining order ex parte on application of
the attorney for the state, upon a showing that:
(1) The state is likely to prove at trial that the property
is subject to forfeiture under this article;
(2) Notice of the action will jeopardize the availability of
the property; and
(3) The need for the injunction outweighs the likely
hardship on the owners of the property and a less restrictive
alternative likely will be inadequate to protect the state's
interests.
(b) The court may issue a preliminary injunction only upon
notice by the state in the manner and to the persons required for
the commencement of administrative forfeiture proceedings under
subsection (c), section five hundred twelve of this article and
after an opportunity for those persons to appear and be heard.
The hearing must be held at the earliest possible date consistent
with section eight, article five, chapter fifty-three of this
code. The injunction must be issued if the showings required by
subdivisions (1) and (3), subsection (b) of this section, are
made.
(c) A temporary restraining order or a preliminary
injunction does not authorize a seizure that affects an interest
in real property if subsection (c), section five hundred seven of
this article would prohibit the seizure. An owner's rights that could be protected under section five hundred eleven of this
article if the state had seized the property must be similarly
protected under this section.
(d) After a determination in a proceeding in personam that
the defendant's interest is forfeited, the court shall direct
entry of a judgment of forfeiture and may authorize the seizing
agency to seize forfeited property not already in the custody of
the state. The court may issue an appropriate order to protect
the state's interest in the property.
(e) After entry of a judgment of forfeiture, the following
procedures apply:
(1) The attorney for the state shall give notice within
thirty days that every interest in the property, except as
otherwise provided by section five hundred five or section five
hundred six of this article, will be declared forfeited unless a
person claiming an interest in the property files a claim within
the time specified in paragraph (2) of this subsection. Notice
must be given in the manner and to the persons required for
notice of the commencement of an administrative proceeding under
subsection (c), section five hundred twelve of this article.
However, notice need not be given to a defendant against whom the
judgment of forfeiture has been entered. The notice must inform a recipient whose interest has been declared exempt of the right
to be heard respecting disposition of the property.
(2) An owner may make a claim setting forth the information
required by subdivisions (1) through (4), subsection (b), section
five hundred thirteen of this article. The claim must be filed
within thirty days after the notice required by paragraph (1) of
this subsection is given. A person who has received a binding
administrative determination under section five hundred thirteen
of this article that the person's interest is exempt from
forfeiture need not file a claim, and the attorney for the state
shall inform the court that the person's interest is exempt from
forfeiture.
(3) Unless within a reasonable time the attorney for the
state and all claimants agree which interests are exempt from
forfeiture, the attorney for the state shall immediately commence
a proceeding in rem to resolve outstanding claims. The
proceeding must be conducted in accordance with sections five
hundred sixteen and five hundred seventeen of this article.
Notice of the proceeding need not be given to a person who did
not file a claim under paragraph (2) of this subsection.
§60A-5-519. Time for commencement of proceedings; remedies.
(a) An administrative or judicial forfeiture proceeding must be commenced by the attorney for the state within ninety days
after seizing property or filing or recording a forfeiture lien,
whichever is earlier, unless the owners of all interests subject
to forfeiture agree to extend the time, or the court extends the
time for good cause shown.
(b) Except as provided by subsection (g), section four
hundred nineteen, article four of this chapter, the state shall
commence a judicial proceeding within ninety days after the
demand is served unless the owners of all interests subject to
forfeiture agree to extend the time or the court extends the time
for good cause shown.
(c) If a forfeiture proceeding is not commenced within the
time required by subsection (a) or (b) of this section or the
time allowed by subsection (g), section four hundred nineteen,
article four of this chapter:
(1) The custodial agency shall release property seized and
file or record a notice of the release of any lien filed or
recorded under section five hundred nine of this article; and
(2) A seizure, lien or forfeiture proceeding may not be
subsequently undertaken or pursued based upon the same conduct.
§60A-5-520. Excessive forfeitures.
The court shall limit the scope of a forfeiture judgment to the extent the court finds the effect of the forfeiture is
grossly disproportionate to the nature and severity of the
owner's conduct. In determining whether a forfeiture is grossly
disproportionate, the court may consider:
(1) The degree to which the property was used to facilitate
the conduct that subjects property to forfeiture and the
importance of the property to the conduct;
(2) The gain received or expected by an owner from the
conduct that subjects property to forfeiture and the value of the
property subject to forfeiture;
(3) The nature and extent of the owner's culpability; and
(4) The owner's efforts to prevent the conduct or assist in
prosecution.
§60A-5-521. Burdens of proof; admissible evidence.
(a) The state has the burden of proof, by a preponderance of
the evidence, that property is subject to forfeiture under
section five hundred four of this article and that sufficient
notice required by subsection (g), section five hundred five of
this article has been given, and by clear and convincing evidence
that the requirements of subsection (i), section four hundred
nineteen, article four of this chapter, permitting the forfeiture
of substituted property, have been met.
(b) Except as otherwise provided by section five hundred
five of this article, a person claiming an exemption from
forfeiture has the burden of proof by a preponderance of the
evidence that the claimant has an interest in the property and
that the interest is exempt from forfeiture under section five
hundred five of this article. However, if the interest claimed
is an unperfected security interest, the claimant must prove by
clear and convincing evidence that the claimant possesses the
interest and is exempt from forfeiture.
(c) Evidence admissible in determining probable cause for
issuance of a search warrant may be considered in determining
probable cause in a proceeding under section five hundred seven
or five hundred eleven of this article.
§60A-5-522. Disposition of forfeited property.
(a) At the conclusion of administrative or judicial
forfeiture proceedings, property must be disposed of in
accordance with this section.
(b) If no interest in the property is forfeited, the
custodial agency shall release the seized property and file or
record notice of release of any forfeiture lien.
(c) If all interests in the property are forfeited in a
judicial proceeding, the court shall issue an order of forfeiture transferring ownership of the property to the unit of government
with jurisdiction over the attorney for the state. If all
interests in property are forfeited in an administrative
proceeding under section five hundred twelve of this article, the
unit of government with jurisdiction over the attorney for the
state acquires ownership of the property without a court order,
but may request the court to issue an order confirming the
forfeiture or may commence a judicial forfeiture proceeding.
(d) If one or more interests in the property are forfeited
and others are exempt:
(1) In a judicial proceeding, the court shall issue an order
transferring ownership as agreed by the owners of the exempt
interests and the attorney for the state or, if agreement cannot
be reached, in a manner that protects the owners of exempt
interests as completely as they would be protected if the unit of
government with jurisdiction over the attorney for the state was
an ordinary judgment creditor of the owner of the forfeited
interest attempting to execute its judgment; and
(2) In an administrative proceeding, the attorney for the
state shall transfer ownership as agreed by the owners of the
exempt interests and the attorney for the state, or request the
court to issue an order confirming the transfer, but if agreement cannot be reached, the attorney for the state shall request the
court to issue an order transferring ownership of the property in
the manner provided by paragraph (1) of this subsection.
(e) Except as otherwise provided in this section, if
property not harmful to the public is forfeited, the custodial
agency shall sell the property, other than money, by public sale
or other commercially reasonable means, unless the state attorney
general determines that circumstances justify public ownership of
the property for law enforcement or, if authorized, other public
purposes as provided by law, or until a suitable buyer can be
found.
(f) If a forfeiture judgment affecting indivisible property
is modified pursuant to section five hundred twenty of this
article, the custodial agency shall:
(1) Sell the property by public sale, or other commercially
reasonable means and divide the proceeds pursuant to an order of
the court; or
(2) Dispose of the property in accordance with court order.
(g) If a federal agency or an agency of another state has
contributed to the forfeiture, the attorney for the state, with
the approval of the court, may direct the custodial agency to
transfer to the federal agency or the agency of the other state a portion of the proceeds. The transfer must be justified by the
extent to which the agency participated in the investigation that
led to forfeiture or by the extent to which the conduct
subjecting property to forfeiture occurred in the other state.
(h) Money remaining after the satisfaction of the
requirements of subsections (e) through (g) of this section must
be deposited into the general revenue fund of the state.
(i) Property or money received from the federal government
or another state as the result of a forfeiture for conduct that
subjects property to forfeiture under this article must be
disposed of pursuant to subsection (e), (g) and (h) of this
section.
§60-5-523. Evading forfeiture.
In addition to any other remedy provided by law, the state
may maintain a civil action for damages against a person who,
having notice or being aware of the seizure for forfeiture, the
filing or recording of a forfeiture lien or the issuance of an
order or injunction, except as allowed by this article,
intentionally or recklessly causes waste, destroys, encumbers,
disposes of, removes from the jurisdiction of the court, conceals
or otherwise renders the property unavailable for forfeiture. If
a civil proceeding under this article is pending, the action must be heard by the court in which the civil proceeding is pending.
§60A-5-524. Restriction on actions; remedies.
(a) A person claiming an interest in property subject to
forfeiture may not maintain an action for possession or ownership
of the property or removal of a forfeiture lien other than as
provided in this article.
(b) A person claiming an interest in forfeited property may
petition for the reopening of a judgment of forfeiture or an
administrative forfeiture order as otherwise provided by law.
(c) In addition to any other remedy to reopen a judgment or
order of forfeiture, within one year after a judgment of
forfeiture or an administrative forfeiture under section five
hundred twelve of this article, an owner who was prejudiced by
the failure to receive timely notice of the pendency of a
forfeiture proceeding may maintain a civil action against the
state to establish the person's interest in the property.
(d) In a proceeding under subsection (b) or (c) of this
section, if the forfeited property has been sold, a court may
only order the state to compensate the claimant for the value of
the claimant's interest, unless setting aside the sale is
constitutionally required. If the sale is set aside, the state
must reimburse the purchaser for the purchase price and other reasonable expenses incurred in relation to the purchase and
ownership of the property.
(e) If the state was not substantially justified in seizing
property, filing or recording a lien or commencing a proceeding
or action under this article, the court may award costs and
reasonable attorney's fees to the owner.
(f) An owner may maintain a civil action against the state
to recover damages resulting from the negligent management of
property seized for forfeiture.
§60A-5-525. Statute of limitations.
The seizure of property, filing or recording of a lien or
commencement of a proceeding or action under this article must
occur within five years after the last conduct that subjects
property to forfeiture is discovered, unless property subject to
forfeiture has been concealed or removed from 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 and
their 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.
Criminal forfeiture provisions have been added to article 4
and article 5, which provides for civil forfeiture, are new.
Persons convicted of violations would be assessed between
$500.00 to $3000.000, 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, 4 and 5 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 introduction at this session.
Email
Webmaster | © 2024 West Virginia Legislature **
