2021 -- H 5384

========

LC000796

========

     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2021

____________

A N   A C T

RELATING TO FOOD AND DRUGS -- UNIFORM CONTROLLED SUBSTANCES ACT

     Introduced By: Representatives Vella-Wilkinson, Williams, Kazarian, Shanley, and
Casimiro

     Date Introduced: February 05, 2021

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

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

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

follows:

     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-addicted person, as defined in § 21-28-1.02(20), 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-addicted person as defined in §

21-28-1.02(20).

     (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.

     (c)(1) It shall be unlawful for any person 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 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 buprenorphine and marijuana, is guilty of a crime misdemeanor and, upon

conviction, may be imprisoned for not more than three (3) two (2) years, or fined not less than five

hundred dollars ($500) nor more than five thousand dollars ($5,000), more than five hundred

dollars ($500) or both;. Nothing in this subsection shall be construed to prohibit the charging and

prosecution of any applicable felony offense pursuant to this chapter when the facts so warrant.

LC000796 - Page 2 of 8

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

marijuana is guilty of a misdemeanor, except for those persons subject to (a)(1), 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.

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

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

who is not exempted from penalties pursuant to chapter 28.6 of this title, shall constitute a civil

offense, rendering the offender liable to a civil penalty in the amount of one hundred fifty dollars

($150) and forfeiture of the marijuana, but not to any other form of criminal or civil punishment or

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

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

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

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

ounce (1 oz.) or less of marijuana by a person who is seventeen (17) years of age or older and under

the age of eighteen (18) years, and who is not exempted from penalties pursuant to chapter 28.6 of

this title, shall constitute a civil offense, rendering the offender liable to a civil penalty in the amount

of one hundred fifty dollars ($150) and forfeiture of the marijuana; provided the minor offender

completes an approved, drug-awareness program and community service as determined by the

court. If the person seventeen (17) years of age or older and under the age of eighteen (18) years

fails to complete an approved, drug-awareness program and community service within one year of

the disposition, the penalty shall be a three hundred dollar ($300) civil fine and forfeiture of the

marijuana, except that if no drug-awareness program or community service is available, the penalty

shall be a fine of one hundred fifty dollars ($150) and forfeiture of the marijuana. The parents or

legal guardian of any offender seventeen (17) years of age or older and under the age of eighteen

(18) shall be notified of the offense and the availability of a drug-awareness and community-service

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

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

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

apply if the offense is the first or second violation within the previous eighteen (18) months.

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

exempted from penalties pursuant to chapter 28.6 of this title found in possession of one ounce (1

oz.) or less of marijuana is guilty of a misdemeanor and, upon conviction, may be imprisoned for

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

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

LC000796 - Page 3 of 8

possession of less than one ounce (1 oz.) of marijuana under (c)(2)(iii) or (c)(2)(iv) two (2) times

in the eighteen (18) months prior to the third (3rd) offense.

     (vi) Any unpaid civil fine issued under (c)(2)(iii) or (c)(2)(iv) shall double to three hundred

dollars ($300) if not paid within thirty (30) days of the disposition. The civil fine shall double again

to six hundred dollars ($600) if it has not been paid within ninety (90) days.

     (vii) No person may be arrested for a violation of (c)(2)(iii) or (c)(2)(iv) of this subsection

except as provided in this subparagraph. Any person in possession of an identification card, license,

or other form of identification issued by the state or any state, city, or town, or any college or

university, who fails to produce the same upon request of a police officer who informs the person

that he or she has been found in possession of what appears to the officer to be one ounce (1 oz.)

or less of marijuana, or any person without any such forms of identification who fails or refuses to

truthfully provide his or her name, address, and date of birth to a police officer who has informed

such person that the officer intends to provide such individual with a citation for possession of one

ounce (1 oz.) or less of marijuana, may be arrested.

     (viii) No violation of (c)(2)(iii) or (c)(2)(iv) of this subsection shall be considered a

violation of parole or probation.

     (ix) Any records collected by any state agency, tribunal, or the family court that include

personally identifiable information about violations of (c)(2)(iii) or (c)(2)(iv) shall not be open to

public inspection in accordance with § 8-8.2-21.

     (3) Jurisdiction.

     (i) Any and all adjudications of violations of subsection (c)(2)(i) of this section shall fall

under the original jurisdiction of the Rhode Island superior court. The attorney general shall

prosecute any and all violations of subsection (c)(2)(i) of this section.

     (ii) Any and all violations of (c)(2)(iii) and (c)(2)(iv) shall be the exclusive jurisdiction of

the Rhode Island traffic tribunal. All money associated with the civil fine issued under (c)(2)(iii)

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

collected by the Rhode Island traffic tribunal from civil penalties issued pursuant to (c)(2)(iii) or

(c)(2)(iv) shall be expended on drug-awareness and treatment programs for youth.

     (iii) Any person who violates subsection (c)(2)(i) of this section may be evaluated on an

out-patient basis by a licensed clinician with specific expertise in diagnosing and treating substance

use disorder, who shall:

     (A) Advise the person, if appropriate, of voluntary services available to address their

substance use disorder; and

     (B) Report findings to the judiciary as to whether they deem the person to be drug addicted

LC000796 - Page 4 of 8

as defined in § 21-28-1.02(20) for the purpose of determining whether the person should be

required to attend the program prescribed in subsection (c)(4)(ii) of this section.

     (4) Additionally, every drug addicted person convicted or who pleads nolo contendere

under (c)(2)(i) who is not sentenced to a term of imprisonment to serve for the offense, or every

person convicted or who pleads nolo contendere a second or subsequent time under (c)(2)(ii), who

is not sentenced to a term of imprisonment to serve for the offense, shall be required to:

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

     (ii) If determined to be a drug addicted person, attend Attend and complete a drug-

counseling and education program, as prescribed, by the director of the department of behavioral

healthcare, developmental disabilities and hospitals 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;

     (iii) 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;

     (iv) 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 (c)(2)(i) and (c)(2)(ii) 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.

     (5) All fees assessed and collected pursuant to (c)(3)(ii) 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 that 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

LC000796 - Page 5 of 8

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

     (f) It is unlawful for any person to knowingly or intentionally possess, manufacture,

distribute, or possess with intent to manufacture or distribute, any extract, compound, salt

derivative, or mixture of salvia divinorum or datura stramonium or its extracts unless the person is

exempt pursuant to the provisions of § 21-28-3.30. Notwithstanding any laws to the contrary, any

person who violates this section is guilty of a misdemeanor and, upon conviction, may be

imprisoned for not more than one year, or fined not more than one thousand dollars ($1,000), or

both. The provisions of this section shall not apply to licensed physicians, pharmacists, and

accredited hospitals and teaching facilities engaged in the research or study of salvia divinorum or

datura stramonium and shall not apply to any person participating in clinical trials involving the

use of salvia divinorum or datura stramonium.

     21-28-4.11. Second offenses.

     (a) Any person convicted of a second offense under this chapter, except for violations of

subparagraphs §§ 21-28-4.01(c)(2)(i), 21-28-4.01(c)(2)(ii), 21-28-4.01(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 twice the term authorized,

fined an amount up to twice that authorized, or both.

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

her conviction of the offense, the offender has at any time been convicted under this chapter, except

for violations of subparagraphs §§ 21-28-4.01(c)(2)(i), 21-28-4.01(c)(2)(ii), 21-28-4.01(c)(2)(iii),

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

relating to narcotic drugs, marijuana, depressant, stimulant, or hallucinogenic drugs.

     21-28-4.14. Third or subsequent offenses.

     (a) Any person convicted of a third or subsequent offense under this chapter, except for

violations of subparagraphs §§ 21-28-4.01(c)(2)(i), 21-28-4.01(c)(2)(ii), 21-28-4.01(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 three (3) times the

term authorized, and fined an amount up to three (3) times that authorized by § 21-28-4.11, or both.

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

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

this chapter, except for violations of subparagraphs §§ 21-28-4.01(c)(2)(i), 21-28-4.01(c)(2)(ii),

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

United States or of any state, or any combination of them, relating to narcotic drugs, marijuana,

depressant, stimulant, or hallucinogenic drug.

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

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

LC000796 - Page 6 of 8

     21-28-4.23. Law enforcement reports.

     In the first week of January, 2022, and each year thereafter, the attorney general shall, in

cooperation with local law enforcement agencies and the state police, submit to the general

assembly a report summarizing the impact of § 21-28-4.01(c)(2)(i) on law enforcement. The report

shall include the number of people prosecuted under § 21-28-4.01(c)(2)(i), including the

breakdown by race and gender of those people prosecuted and the sentence imposed.

     SECTION 3. This act shall take effect upon passage.

========

LC000796

========

LC000796 - Page 7 of 8

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO FOOD AND DRUGS -- UNIFORM CONTROLLED SUBSTANCES ACT

***

     This act would amend the Uniform Controlled Substances Act to reclassify simple

possession of a controlled substance classified in schedules I, II, III, IV and IV, unless otherwise

provided in §§ 21-28-4.01.1 and 21-28-4.01.2, as a misdemeanor instead of a felony and excludes

the possession of buprenorphine from those controlled substances that can result in criminal

penalties.

     This act would take effect upon passage.

========

LC000796

========

LC000796 - Page 8 of 8