Chapter 104

2005 -- H 5954

Enacted 06/30/05

A N A C T

RELATING TO STATUTES AND STATUTORY CONSTRUCTION

Introduced By: Representatives McNamara, Sullivan, Dennigan, Loughlin, and Singleton

Date Introduced: March 01, 2005

It is enacted by the General Assembly as follows:

SECTION 1. Sections 21-28-1.02, 21-28-3.20 and 21-28-4.01 of the General Laws in

Chapter 21-28 entitled "Uniform Controlled Substances Act" are hereby amended to read as

follows:

21-28-1.02. Definitions. -- Unless the context otherwise requires, the words and phrases

as defined in this section are used in this chapter in the sense given them in the following

definitions:

(1) "Administer" refers to the direct application of controlled substances to the body of a

patient or research subject by:

(i) A practitioner, or, in his or her presence by his or her authorized agent; or

(ii) The patient or research subject at the direction and in the presence of the practitioner

whether the application is by injection, inhalation, ingestion, or any other means.

(2) "Agent" means an authorized person who acts on behalf of or at the direction of a

manufacturer, wholesaler, distributor, or dispenser; except that these terms do not include a

common or contract carrier or warehouse operator, when acting in the usual and lawful course of

the carrier's or warehouse operator's business.

(3) "Apothecary" means a registered pharmacist as defined by the laws of this state and,

where the context requires, the owner of a licensed pharmacy or other place of business where

controlled substances are compounded or dispensed by a registered pharmacist; and includes

registered assistant pharmacists as defined by existing law, but nothing in this chapter shall be

construed as conferring on a person who is not registered as a pharmacist any authority, right, or

privilege that is not granted to him or her by the pharmacy laws of the state.

(4) "Automated data processing system" means a system utilizing computer software and

hardware for the purposes of record keeping.

(5) "Computer" means programmable electronic device capable of multi-functions,

including, but not limited to, storage, retrieval, and processing of information.

(6) "Control" means to add a drug or other substance or immediate precursor to a

schedule under this chapter, whether by transfer from another schedule or otherwise.

(7) "Controlled substance" means a drug, substance, or immediate precursor in schedules

I -- V of this chapter. The term shall not include distilled spirits, wine, or malt beverages, as those

terms are defined or used in chapter 1 of title 3, nor tobacco.

(8) "Counterfeit substance" means 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 of them, of a manufacturer, distributor, or

dispenser, other than the person or persons who in fact manufactured, distributed, or dispensed

the substance and which thereby falsely purports or is represented to be the product of, or to have

been distributed by, the other manufacturer, distributor, or dispenser, or which substance is

falsely purported to be or represented to be one of the controlled substances by a manufacturer,

distributor, or dispenser.

(9) "CRT" means cathode ray tube used to impose visual information on a screen.

(10) "Deliver" or "delivery" means the actual, constructive, or attempted transfer of a

controlled substance or imitation controlled substance, whether or not there exists an agency

relationship.

(11) "Department" means the department of health of this state.

(12) "Depressant or stimulant drug" means:

(i) A drug which contains any quantity of:

(A) Barbituric acid or derivatives, compounds, mixtures, or preparations of barbituric

acid; and

(B) "Barbiturate" or "barbiturates" includes all hypnotic and/or somnifacient drugs,

whether or not derivatives of barbituric acid, except that this definition shall not include bromides

and narcotics.

(ii) A drug which contains any quantity of:

(A) Amphetamine or any of its optical isomers;

(B) Any salt of amphetamine and/or desoxyephedrine or any salt of an optical isomer of

amphetamine and/or desoxyephedrine, or any compound, mixture, or preparation of them.

(iii) A drug which contains any quantity of coca leaves. "Coca leaves" includes cocaine,

or any compound, manufacture, salt, derivative, mixture, or preparation of coca leaves, except

derivatives of coca leaves, which do not contain cocaine, ecgonine, or substance from which

cocaine or ecgonine may be synthesized or made.

(iv) Any other drug or substance which contains any quantity of a substance which the

attorney general of the United States, or the director of health, after investigation, has found to

have, or by regulation designates as having, a potential for abuse because of its depressant or

stimulant effect on the central nervous system.

(13) "Director" means the director of health.

(14) "Dispense" means to deliver, distribute, leave with, give away, or dispose of a

controlled substance to the ultimate user or human research subject by or pursuant to the lawful

order of a practitioner, including the packaging, labeling, or compounding necessary to prepare

the substance for that delivery.

(15) "Dispenser" is a practitioner who delivers a controlled substance to the ultimate user

or human research subject.

(16) "Distribute" means to deliver (other than by administering or dispensing) a

controlled substance or an imitation controlled substance and includes actual constructive, or

attempted transfer. "Distributor" means a person who so delivers a controlled substance or an

imitation controlled substance.

(17) "Downtime" means that period of time when a computer is not operable.

(18) ~~"Drug dependent person" means a person who is using a controlled substance and~~

~~who is in the state of psychic or physical dependence, or both, arising from the use of that~~

~~controlled substance on a continuous basis. Drug dependence is characterized by behavioral and~~

~~other responses, which include, but shall not be limited to, compulsion to take the substance on a~~

~~continuous basis in order to experience its psychic or physical effect, or to avoid the discomfort~~

~~of its absence.~~ "Drug addicted person" means a person who exhibits a maladaptive pattern of

behavior resulting from drug use, including one or more of the following: impaired control over

drug use; compulsive use; and/or continued use despite harm, and craving.

(19) "Drug Enforcement Administration" means the Drug Enforcement Administration

United States Department of Justice or its successor.

(20) "Federal law" means the Comprehensive Drug Abuse Prevention and Control Act of

1970, (84 stat. 1236)(see generally 21 U.S.C. section 801 et seq.), and all regulations pertaining to

that federal act.

(21) "Hardware" means the fixed component parts of a computer.

(22) "Hospital" means an institution as defined in chapter 17 of title 23.

(23) "Imitation controlled substance" means a substance that is not a controlled

substance, which by dosage unit, appearance (including color, shape, size, and markings), or by

representations made, would lead a reasonable person to believe that the substance is a controlled

substance and, which imitation controlled substances contain substances which if ingested, could

be injurious to the health of a person. In those cases when the appearance of the dosage unit is not

reasonably sufficient to establish that the substance is an "imitation controlled substance" (for

example in the case of powder or liquid), the court or authority concerned should consider, in

addition to all other logically relevant factors, the following factors as related to "representations

made" in determining whether the substance is an "imitation controlled substance":

(i) Statement made by an owner, possessor, transferor, recipient, or by anyone else in

control of the substance concerning the nature of the substance, or its use or effect.

(ii) Statements made by the owner, possessor, or transferor, to the recipient that the

substance may be resold for substantial profit.

(iii) Whether the substance is packaged in a manner reasonably similar to packaging of

illicit controlled substances.

(iv) Whether the distribution or attempted distribution included an exchange of or

demand for money or other property as consideration, and whether the amount of the

consideration was substantially greater than the reasonable value of the non-controlled substance.

(24) "Immediate precursor" means a substance:

(i) Which the director of health has found to be and by regulation designated as being the

principal compound used, or produced primarily for use, in the manufacture of a controlled

substance;

(ii) Which is an immediate chemical intermediary used or likely to be used in the

manufacture of those controlled substances; and

(iii) The control of which is necessary to prevent, curtail, or limit the manufacture of that

controlled substance.

(25) "Laboratory" means a laboratory approved by the department of health as proper to

be entrusted with controlled substances and the use of controlled substances for scientific and

medical purposes and for the purposes of instruction.

(26) "Marijuana" means all parts of the plant cannabis sativa L., whether growing or not;

the seeds of the plant; 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, but shall 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

mature stalks, (except the resin extracted from it), fiber, oil or cake, or the sterilized seed from the

plant which is incapable of germination.

(27) "Manufacture" means the production, preparation, propagation, cultivation,

compounding, or processing of a drug or other substance, including an imitation 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 in conformity with the general laws of this state except by a practitioner as an

incident to his or her administration or dispensing of the drug or substance in the course of his or

her professional practice.

(28) "Manufacturer" means a person who manufactures but does not include an

apothecary who compounds controlled substances to be sold or dispensed on prescriptions.

(29) "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:

(i) Opium and opiates.

(ii) A compound, manufacture, salt, derivative, or preparation of opium or opiates.

(iii) A substance (and any compound, manufacture, salt, derivative, or preparation of it)

which is chemically identical with any of the substances referred to in paragraphs (i) and (ii) of

this subdivision.

(iv) Any other substance which the attorney general of the United States, or his or her

successor, or the director of health, after investigation, has found to have, and by regulation

designates as having, a potential for abuse similar to opium and opiates.

(30) "Official written order" means an order written on a form provided for that purpose

by the Drug Enforcement Administration under any laws of the United States making provision

for an official form, if order forms are authorized and required by federal law, and if no order

form is provided then on an official form provided for that purpose by the director of health.

(31) "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.

(32) "Opium poppy" means the plant of the species papaver somniferum L., except the

seeds of the plant.

(33) "Ounce" means an avoirdupois ounce as applied to solids and semi-solids, and a

fluid ounce as applied to liquids.

(34) "Person" means any corporation, association, partnership, or one or more

individuals.

(35) "Physical dependence" means a state of adaptation that is manifested by a drug class

specific withdrawal syndrome that can be produced by abrupt cessation, rapid dose reduction,

decreasing blood level of the drug, and/or administration of an antagonist.

~~(35)~~ (36) "Poppy straw" means all parts, except the seeds, of the opium poppy, after

mowing.

~~(36)~~ (37) "Practitioner" means:

(i) A physician, osteopath, dentist, chiropodist, veterinarian, scientific investigator, or

other person licensed, registered or permitted to distribute, dispense, conduct research with

respect to or to administer a controlled substance in the course of professional practice or research

in this state.

(ii) A pharmacy, hospital, or other institution licensed, registered or permitted to

distribute, dispense, conduct research with respect to, or to administer a controlled substance in

the course of professional practice or research in this state.

~~(37)~~ (38) "Printout" means a hard copy produced by computer that is readable without

the aid of any special device.

~~(38)~~ (39) "Production" includes the manufacture, planting, cultivation, growing, or

harvesting of a controlled substance.

~~(39)~~ (40) "Researcher" means a person authorized by the director of health to conduct a

laboratory as defined in this chapter.

~~(40)~~ (41) "Sell" includes sale, barter, gift, transfer, or delivery in any manner to another,

or to offer or agree to do the same.

~~(41)~~ (42) "Software" means programs, procedures and storage of required information

data.

~~(42)~~ (43) "Ultimate user" means a person who lawfully possesses a controlled substance

for his or her own use or for the use of a member of his or her household, or for administering to

an animal owned by him or her or by a member of his or her household.

~~(43)~~ (44) "Wholesaler" means a person who sells, vends, or distributes at wholesale, or

as a jobber, broker agent, or distributor, or for resale in any manner in this state any controlled

substance.

21-28-3.20. ~~Authority of practitioner to prescribe, administer, and dispense --~~

~~Report of continued use~~ Authority of practitioner to prescribe, administer, and dispense. --

-- A practitioner, in good faith and in the course of his or her professional practice only, may

prescribe, administer, and dispense controlled substances, or he or she may cause the controlled

substances to be administered by a nurse or intern under his or her direction and supervision. If

~~the practitioner uses a narcotic drug in schedule II in the care and treatment of any individual case~~

~~for a period of three (3) months, he or she shall at the expiration of the period of three (3) months~~

~~report the use to the director of health, together with the name of the patient and the nature of the~~

~~disease or ailment which the patient has. A practitioner prescribing schedule II narcotic drugs for~~

~~a patient with a medical diagnosis documenting a terminal illness will only be required to file an~~

~~initial report, and will be exempt from filing subsequent reports for those patients.~~

21-28-4.01. Prohibited acts A -- Penalties. -- (a) (1) Except as authorized by this

chapter, it shall be unlawful for any person to manufacture, deliver, or possess with intent to

manufacture or deliver a controlled substance.

(2) Any person who is not a drug ~~dependent~~ addicted person, as defined in section 21-

28-1.02(18), who violates this subsection with respect to a controlled substance classified in

schedule I or II, except the substance classified as marijuana, is guilty of a crime and upon

conviction may be imprisoned to a term up to life, or fined not more than five hundred thousand

dollars ($500,000) nor less than ten thousand dollars ($10,000), or both.

(3) Where the deliverance as prohibited in this subsection shall be the proximate cause of

death to the person to whom the controlled substance is delivered, it shall not be a defense that

the person delivering the substance was at the time of delivery, a drug ~~dependent~~ addicted person

as defined in section 21-28-1.02(18).

(4) Any person, except as provided for in subdivision (2) of this subsection, who violates

this subsection with respect to:

(i) A controlled substance classified in schedule I or II, is guilty of a crime and upon

conviction may be imprisoned for not more than thirty (30) years, or fined not more than one

hundred thousand dollars ($100,000) nor less than three thousand dollars ($3,000), or both;

(ii) A controlled substance classified in schedule III or IV, is guilty of a crime and upon

conviction may be imprisoned for not more than twenty (20) years, or fined not more than forty

thousand dollars ($40,000), or both; provided, with respect to a controlled substance classified in

schedule III(d), upon conviction may be imprisoned for not more than five (5) years, or fined not

more than twenty thousand dollars ($20,000), or both.

(iii) A controlled substance classified in schedule V, is guilty of a crime and upon

conviction may be imprisoned for not more than one year, or fined not more than ten thousand

dollars ($10,000), or both.

(b) (1) Except as authorized by this chapter, it is unlawful for any person to create,

deliver, or possess with intent to deliver, a counterfeit substance.

(2) Any person who violates this subsection with respect to:

(i) A counterfeit substance classified in schedule I or II, is guilty of a crime and upon

conviction may be imprisoned for not more than thirty (30) years, or fined not more than one

hundred thousand dollars ($100,000), or both;

(ii) A counterfeit substance classified in schedule III or IV, is guilty of a crime and upon

conviction may be imprisoned for not more than twenty (20) years, or fined not more than forty

thousand dollars ($40,000), or both; provided, with respect to a controlled substance classified in

schedule III(d), upon conviction may be imprisoned for not more than five (5) years, or fined not

more than twenty thousand dollars ($20,000) or both.

(iii) A counterfeit substance classified in schedule V, is guilty of a crime and upon

conviction may be imprisoned for not more than one year, or fined not more than ten thousand

dollars ($10,000), or both.

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 his or her professional

practice, or except as otherwise authorized by this chapter.

(2) Any person who violates this subsection with respect to:

(i) A controlled substance classified in schedules I, II and III, IV, and V, except the

substance classified as marijuana, is guilty of a crime and upon conviction may be imprisoned for

not more than three (3) years or fined not less than five hundred dollars ($500) nor more than five

thousand dollars ($5,000), or both;

(ii) A controlled substance classified in schedule I as marijuana is guilty of a

misdemeanor and upon conviction may be imprisoned for not more than one year or fined not less

than two hundred dollars ($200) nor more than five hundred dollars ($500), or both.

(3) Additionally every person convicted or who pleads nolo contendere under paragraph

(2)(i) of this subsection or convicted or who pleads nolo contendere a second or subsequent time

under paragraph (2)(ii) of this subsection, who is not sentenced to a term of imprisonment to

serve for the offense, shall be required to:

(i) Perform no less than one hundred (100) hours of community service;

(ii) Be referred to Treatment Alternatives to Street Crime (TASC) to determine the

existence of problems of drug abuse. Should TASC determine the person needs treatment, it will

arrange for the treatment to be provided and after completion of the treatment, the person shall

perform his or her required community service and attend the drug education program;

(iii) Attend and complete a drug counseling and education program as prescribed by the

director of the department of health and pay the sum of four hundred dollars ($400) to help defray

the costs of this program which shall be deposited as general revenues. Failure to attend may

result after hearing by the court in jail sentence up to one year;

(iv) The court shall not suspend any part or all of the imposition of the fee required by

this subsection, unless the court finds an inability to pay;

(v) If the offense involves the use of any automobile to transport the substance or the

substance is found within an automobile, then a person convicted or who pleads nolo contendere

under paragraphs (2)(i) and (ii) of this subsection shall be subject to a loss of license for a period

of six (6) months for a first offense and one year for each offense after this.

(4) All fees assessed and collected pursuant to paragraph (3)(iii) of this subsection shall

be deposited as general revenues and shall be collected from the person convicted or who pleads

nolo contendere before any other fines authorized by this chapter.

(d) It shall be unlawful for any person to manufacture, distribute, or possess with intent

to manufacture or distribute, an imitation controlled substance. Any person who violates this

subsection is guilty of a crime, and upon conviction shall be subject to the same term of

imprisonment and/or fine as provided by this chapter for the manufacture or distribution of the

controlled substance which the particular imitation controlled substance forming the basis of the

prosecution was designed to resemble and/or represented to be; but in no case shall the

imprisonment be for more than five (5) years nor the fine for more than twenty thousand dollars

($20,000).

(e) It shall be unlawful for a practitioner to prescribe, order, distribute, supply, or sell an

anabolic steroid or human growth hormone for: (1) enhancing performance in an exercise, sport,

or game, or (2) hormonal manipulation intended to increase muscle mass, strength, or weight

without a medical necessity. Any person who violates this subsection is guilty of a misdemeanor

and upon conviction may be imprisoned for not more than six (6) months or a fine of not more

than one thousand dollars ($1,000), or both.

SECTION 2. Section 5-37.4-2 of the General Laws in Chapter 5-37.4 entitled "Intractable

Pain Treatment" is hereby amended to read as follows:

5-37.4-2. Definitions. -- For purposes of this chapter:

(1) "Director" means the director of the department of health of the state of Rhode

Island.

(2) "Intractable pain" means a pain state ~~in which the cause of pain cannot be removed or~~

~~otherwise treated and which in the generally accepted course of medical practice no relief or cure~~

~~of the cause of the pain is possible or none has been found after reasonable efforts that have been~~

~~documented in the practitioner's medical records;~~ that persists beyond the usual course of an acute

disease or healing of an injury or results from a chronic disease or condition that causes

continuous or intermittent pain over a period of months or years.

(3) "Practitioner" means health care professionals licensed to distribute, dispense, or

administer controlled substances in the course of professional practice as defined in section 21-

28-1.02(36).

(4) "Therapeutic purpose" means the use of controlled substances ~~in acceptable doses~~

~~with appropriate indication for the treatment of pain.~~ for the treatment of pain in appropriate

doses as indicated by the patient's medical record. Any other use is nontherapeutic.

SECTION 3. This act shall take effect on August 1, 2005.

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LC01938

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