2012 -- S 2253 SUBSTITUTE A AS AMENDED

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LC00705/SUB A

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO FOOD AND DRUGS -- UNIFORM CONTROLLED SUBSTANCES ACT

     Introduced By: Senators Miller, Jabour, Perry, Metts, and Nesselbush

     Date Introduced: January 26, 2012

     Referred To: Senate Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Sections 21-28-4.01, 21-28-4.11 and 21-28-4.14 of the General Laws in

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

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follows:

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

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

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manufacture or deliver a controlled substance.

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      (2) Any person who is not a drug addicted person, as defined in section 21-28-1.02(18),

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who violates this subsection with respect to a controlled substance classified in schedule I or II,

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except the substance classified as marijuana, is guilty of a crime and upon conviction may be

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imprisoned to a term up to life, or fined not more than five hundred thousand dollars ($500,000)

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

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

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

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the person delivering the substance was at the time of delivery, a drug addicted person as defined

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in section 21-28-1.02(18).

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

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this subsection with respect to:

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

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

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

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

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

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

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

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

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

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

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dollars ($10,000), or both.

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

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

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

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

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

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

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

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

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

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

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

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

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

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dollars ($10,000), or both.

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      (c) (1) It shall be unlawful for any person knowingly or intentionally to possess a

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controlled substance, unless the substance was obtained directly from or pursuant to a valid

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prescription or order of a practitioner while acting in the course of his or her professional

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practice, or except as otherwise authorized by this chapter.

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

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

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

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

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

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      (ii) A More than one ounce (1 oz.) of a controlled substance classified in schedule I as

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marijuana is guilty of a misdemeanor except for those persons subject to subdivision 21-28-

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4.01(a)(1) and upon conviction may be imprisoned for not more than one year or fined not less

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

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     (iii) Notwithstanding any public, special or general law to the contrary, the possession of

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one ounce (1 oz.) or less of marijuana by a person who is eighteen (18) years of age or older and

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who is not exempted from penalties pursuant to chapter 21-28.6 shall constitute a civil offense,

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rendering the offender liable to a civil penalty in the amount of one hundred fifty dollars ($150)

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and forfeiture of the marijuana, but not to any other form of criminal or civil punishment or

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disqualification. Notwithstanding any public, special or general law to the contrary, this civil

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penalty of one hundred fifty dollars ($150) and forfeiture of the marijuana shall apply if the

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offense is the first (1st) or second (2nd) violation within the previous eighteen (18) months.

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     (iv) Notwithstanding any public, special or general law to the contrary, possession of one

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ounce (1 oz.) or less of marijuana by a person who is under the age of eighteen (18) years and

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who is not exempted from penalties pursuant to chapter 21-28.6 shall constitute a civil offense,

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rendering the offender liable to a civil penalty in the amount of one hundred fifty dollars ($150)

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and forfeiture of the marijuana; provided the minor offender completes an approved drug

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awareness program and community service as determined by the court. If the person under the

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age of eighteen (18) years fails to complete an approved drug awareness program and community

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service within one year of the offense, the penalty shall be a three hundred dollar ($300) civil fine

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and forfeiture of the marijuana, except that if no drug awareness program or community service is

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available, the penalty shall be a fine of one hundred fifty dollars ($150) and forfeiture of the

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marijuana. The parents or legal guardian of any offender under the age of eighteen (18) shall be

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notified of the offense and the availability of a drug awareness and community service program.

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The drug awareness program must be approved by the court, but shall, at a minimum, provide

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four (4) hours of instruction or group discussion, and ten (10) hours of community service.

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Notwithstanding any other public, special or general law to the contrary, this civil penalty shall

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apply if the offense is the first (1st) or second (2nd) violation within the previous eighteen (18)

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months.

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     (v) Notwithstanding any public, special, or general law to the contrary, a person not

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exempted from penalties pursuant to chapter 21-28.6 found in possession of one ounce (1 oz.) or

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less of marijuana is guilty of a misdemeanor and upon conviction may be imprisoned for not

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more than thirty (30) days or fined not less than two hundred dollars ($200) nor more than five

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hundred dollars ($500), or both, if that person has been previously adjudicated on a violation for

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possession of less than one ounce (1 oz.) of marijuana under subparagraphs 21-28-4.01(c)(2)(iii)

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or 21-28-4.01(c)(2)(iv) two (2) times in the eighteen (18) months prior to the third (3rd) offense.

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     (vi) Any unpaid civil fine issued under subparagraphs 21-28-4.01(c)(2)(iii) or 21-28-

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4.01(c)(2)(iv) shall double to three hundred dollars ($300) if not paid within thirty (30) days of

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the offense. The civil fine shall double again to six hundred dollars ($600) if it has not been paid

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within ninety (90) days.

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     (vii) No person may be arrested for a violation of subparagraphs 21-28-4.01(c)(2)(iii) or

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21-28-4.01(c)(2)(iv) except as provided in this subparagraph. Any person in possession of an

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identification card, license, or other form of identification issued by the state or any state, city or

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town, or any college or university, who fails to produce the same upon request of a police officer

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who informs the person that he or she has been found in possession of what appears to the officer

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to be one ounce (1 oz.) or less of marijuana, or any person without any such forms of

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identification that fails or refuses to truthfully provide his or her name, address, and date of birth

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to a police officer who has informed such person that the officer intends to provide such

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individual with a citation for possession of one ounce (1 oz.) or less of marijuana, may be

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arrested.

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     (viii) No violation of subparagraphs 21-28-4.01(c)(2)(iii) or 21-28-4.01(c)(2)(iv) shall be

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considered a violation of parole or probation.

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     (ix) Any records collected by any state agency or tribunal that include personally

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identifiable information about violations of subparagraphs 21-28-4.01(c)(2)(iii) or 21-28-

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4.01(c)(2)(iv) shall be sealed eighteen (18) months after the payment of said civil fine.

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     (3) Jurisdiction. – Any and all violations of subparagraphs 21-28-4.01(c)(2)(iii) and 21-

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28-4.01(c)(2)(iv) shall be the exclusive jurisdiction of the Rhode Island traffic tribunal. All

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money associated with the civil fine issued under subparagraphs 21-28-4.01(c)(2)(iii) or 21-28-

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4.01(c)(2)(iv) shall be payable to the Rhode Island traffic tribunal. Fifty percent (50%) of all fines

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collected by the Rhode Island traffic tribunal from civil penalties issued pursuant to

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subparagraphs 21-28-4.01(c)(2)(iii) or 21-28-4.01(c)(2)(iv) shall be expended on drug awareness

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and treatment programs for youth.

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

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

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

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imprisonment to serve for the offense, shall be required to:

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      (i) Perform, up to one hundred (100) hours of community service;

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

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director of the department of mental health, retardation and hospitals and pay the sum of four

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hundred dollars ($400) to help defray the costs of this program which shall be deposited as

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general revenues. Failure to attend may result after hearing by the court in jail sentence up to one

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year;

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

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

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

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

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

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

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      (4) (5) All fees assessed and collected pursuant to paragraph (3)(ii) of this subsection

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

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pleads nolo contendere before any other fines authorized by this chapter.

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

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

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

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

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

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

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

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($20,000).

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

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

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

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

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

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

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     21-28-4.11. Second offenses. -- (A) (a) Any person convicted of a second offense under

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this chapter, except for violations of subparagraphs 21-28-4.01(c)(2)(iii), 21-28-4.01(c)(2)(iv) or

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21-28-4.01(c)(2)(v), may be imprisoned for a term up to twice the term authorized, fined an

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amount up to twice that authorized, or both.

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      (B) (b) For purposes of this section, an offense is considered a second offense if, prior to

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his or her conviction of the offense, the offender has at any time been convicted under this

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chapter, except for violations of subparagraphs 21-28-4.01(c)(2)(iii), 21-28-4.01(c)(2)(iv) or 21-

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28-4.01(c)(2)(v), or under any statute of the United States or of any state relating to narcotic

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drugs, marijuana, depressant, stimulant, or hallucinogenic drugs.

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     21-28-4.14. Third or subsequent offenses. -- (a) Any person convicted of a third or

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subsequent offense under this chapter, except for violations of subparagraphs 21-28-

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4.01(c)(2)(iii), 21-28-4.01(c)(2)(iv) or 21-28-4.01(c)(2)(v), may be imprisoned for a term up to

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three (3) times the term authorized, and fined an amount up to three (3) times that authorized by

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section 21-28-4.11, or both.

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      (b) For purposes of this section, an offense is considered a third or subsequent offense if,

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prior to his or her conviction of the offense, the offender has at any time been convicted twice

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under this chapter, except for violations of subparagraphs 21-28-4.01(c)(2)(iii), 21-28-

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4.01(c)(2)(iv) or 21-28-4.01(c)(2)(v), or twice under any statute of the United States or of any

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state, or any combination of them, relating to narcotic drugs, marijuana, depressant, stimulant, or

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hallucinogenic drug.

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     SECTION 2. Chapter 21-28 of the General Laws entitled "Uniform Controlled

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Substances Act" is hereby amended by adding thereto the following section:

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     21-28-4.22. Preparation of summons and related records -- Consent and form. – The

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laws related to summonses, subpoenas and related records for violations of subparagraphs 21-28-

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4.01(c)(2)(iii) and 21-28-4.01(c)(2)(iv), shall be served and heard in the same manner and in a

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similar form as ordinary civil actions in the traffic tribunal, as provided for in sections 31-27-12,

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31-27-12.1, 31-41.1-1, and as may be prescribed by rules and regulations promulgated by the

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chief magistrate of the traffic tribunal pursuant to section 8-6-2.

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     SECTION 3. Sections 31-27-2.4 and 31-27-12 of the General Laws in Chapter 31-27

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entitled "Motor Vehicle Offenses" are hereby amended to read as follows:

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     31-27-2.4. Driving while in possession of controlled substances. -- (a) In addition to

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any other penalty prescribed by law, whoever operates any motor vehicle while knowingly having

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in the motor vehicle or in his or her possession, a controlled substance, as defined in section 21-

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28-1.02, except for possession of up to one ounce (1 oz.) of marijuana, shall have his or her

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license suspended for a period of six (6) months.

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      (b) This section shall not apply to any person who lawfully possesses a controlled

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substance, as defined in section 21-28-1.02, as a direct result and pursuant to a valid prescription

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from a licensed medical practitioner, or as otherwise authorized by chapter 28 of title 21.

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     31-27-12. Service of notice -- Summons. -- (a) Any police officer observing the

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violation of any statute or ordinance relating to the operation, control, or maintenance of a motor

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vehicle or a violation of subparagraphs 21-28-4.01(c)(2)(iii) and 21-28-4.01(c)(2)(iv), shall at the

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time or place of the violation or, if it is not possible to halt the alleged offender, as soon as

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possible after observing the violation, issue a written notice, of a form and content provided for in

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section 31-27-12.1, signed by the police officer and constituting a summons to appear before the

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court having jurisdiction at a time and place designated in the notice.

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      (b) Nothing in this chapter shall preclude a police officer from exercising in the

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alternative his or her statutory powers of arrest, nor shall anything contained in this chapter

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preclude the making of additional complaints against the alleged offender arising out of the

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violation of any statute or ordinance relating to the operation, control, or maintenance of a motor

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vehicle observed by the police officer. Nothing in this chapter shall prevent a person other than a

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police officer from applying for a criminal complaint for the violation of any statute or ordinance

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relating to the operation, control, or maintenance of a motor vehicle, and the person need not

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show that the alleged offender has been issued a summons in connection with the alleged

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violation.

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     SECTION 4. Section 8-8.2-2 of the General Laws in Chapter 8-8.2 entitled "Traffic

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tribunal" is hereby amended to read as follows:

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     8-8.2-2. Jurisdiction. -- (a) Notwithstanding any inconsistent provision of law, all

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probationary license hearings as provided in section 31-10-26, all violations of the department of

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transportation, department of environmental management or board of governors for higher

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education regulations regarding parking, standing, or stopping in areas under the jurisdiction of

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said agencies, all violations of state statutes relating to motor vehicles, littering and traffic

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offenses, except those traffic offenses committed in places within the exclusive jurisdiction of the

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United States, and except driving so as to endanger resulting in death, driving so as to endanger

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resulting in personal injury, driving while under the influence of liquor or drugs, driving while

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under the influence of liquor or drugs resulting in death, driving while under the influence of

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liquor or drugs resulting in serious bodily injury, reckless driving and other offenses against

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public safety as provided in section 31-27-4, eluding a law enforcement officer with a motor

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vehicle in a high speed pursuit, driving after denial, suspension or revocation of license, and

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leaving the scene of an accident in violation of section 31-26-1 and section 31-26-2, and driving

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without the consent of the owner and possession of a stolen motor vehicle in violation of section

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31-9-1 and section 31-9-2, shall be heard and determined by the traffic tribunal pursuant to the

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regulations promulgated by the chief magistrate of the traffic tribunal; provided, however, the

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traffic tribunal shall not hear any parking, standing or stopping violations which occur in any city

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or town which has established its own municipal court and has jurisdiction over such violations.

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Nothing contained herein shall abrogate the powers of the Rhode Island family court under the

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provisions of chapter 1 of title 14.

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      (b) Notwithstanding any inconsistent provision of law, the traffic tribunal shall have

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concurrent jurisdiction to hear and determine, pursuant to rules and regulations promulgated by

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the chief magistrate of the traffic tribunal, all violations of any ordinances, rules and regulations

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governing the public waters and the speed, management and control of all vessels and the size,

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type and location and use of all anchorages and moorings within the jurisdiction of the towns of

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North Kingstown, South Kingstown, Portsmouth, Middletown, Narragansett and Tiverton

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enforced and supervised by the harbormaster and referred to the traffic tribunal, and the terms

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"traffic violations" and "traffic infraction" when used in this chapter shall include the aforesaid

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violations and such violations shall be adjudicated in accordance with the provisions of this

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chapter. Nothing contained herein shall abrogate the powers of the Rhode Island coastal

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management council under the provisions of chapter 23 of title 46.

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      (c) Notwithstanding any inconsistent provision of law, the traffic tribunal shall have

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jurisdiction to hear and determine, pursuant to rules and regulations promulgated by the chief

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magistrate of the Rhode Island traffic tribunal, all civil violations for sections 20-1-12, 20-11-20,

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20-16-17, 23-22.5-9, 32-2-4, subparagraphs 21-28-4.01(c)(2)(iii) and 21-28-4.01(c)(2)(iv) and

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subsection 46-22-19(1) as set forth in section 42-17.10-1.

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      (d) A party aggrieved by a final order of the traffic tribunal appeals panel shall be

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entitled to a review of the order by a judge of the district court. Unless otherwise provided in the

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rules of procedure of the district court, such review shall be on the record and appellate in nature.

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The district court shall by rules of procedure establish procedures for review of an order entered

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by the appeals panel of the traffic tribunal.

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      (e) Violations of any statute, rule, ordinance or regulation referenced in this section are

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subject to fines enumerated in section 31-41.1-4, except for violations of subparagraphs 21-28-

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4.01(c)(2)(iii) and 21-28-4.01(c)(2)(iv).

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     SECTION 5. Chapter 8-8.2 of the General Laws entitled "Traffic tribunal" is hereby

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amended by adding thereto the following section:

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     8-8.2-21. Abstracts of court records -- Traffic tribunal. – A full record shall be kept by

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the Rhode Island traffic tribunal in this state of every case in which a person is charged with

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violating subparagraphs 21-28-4.01(c)(2)(iii) and 21-28-4.01(c)(2)(iv). An abstract of the record

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shall be retained by the court. The abstract shall be made upon forms prepared by the chief

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magistrate of the Rhode Island traffic tribunal and shall include all necessary information as to

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the parties to the cause, the nature of the offense, the date of the hearing, the plea, the decision,

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the judgment, and the result, and every abstract shall be certified by the clerk of the court. The

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Rhode Island traffic tribunal shall keep the records and they shall not be open to public

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inspection. The chief magistrate of the traffic tribunal shall make the records available to Rhode

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Island state and local police departments for their inspection of the details of cases which have

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been heard before the tribunal.

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     SECTION 6. This act shall take effect on April 1, 2013.

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LC00705/SUB A

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO FOOD AND DRUGS -- UNIFORM CONTROLLED SUBSTANCES ACT

***

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     This act would decriminalize the possession of one ounce (1 oz.) or less of marijuana and

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make it a civil offense in most cases, and would impose civil penalties starting at one hundred

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fifty dollars ($150).

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     This act would take effect on April 1, 2013.

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LC00705/SUB A

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