2021 -- S 0188

========

LC001093

========

     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: Senators McCaffrey, Goodwin, Miller, Euer, Lombardi, Kallman,
Archambault, Valverde, DiMario, and DiPalma

     Date Introduced: February 05, 2021

     Referred To: Senate Judiciary

     (Attorney General)

It is enacted by the General Assembly as follows:

     SECTION 1. Sections 21-28-4.01, 21-28-4.01.1, 21-28-4.01.2, 21-28-4.11 and 21-28-4.14

of the General Laws in Chapter 21-28 entitled "Uniform Controlled Substances Act" is 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) Except as otherwise provided in §§ 21-28-4.01.1 and 21-28-4.01.2, ten grams (10 g) or

less of a mixture or substance containing a detectable amount of a controlled substance classified

in schedules I, II, III, IV, and V, except the substance classified as marijuana, is guilty of a

misdemeanor and, upon conviction, may be imprisoned for not more than two (2) years, or fined

not more than five hundred dollars ($500) or both.

     (i)(ii) Except as provided in §§ 21-28-4.01.1 and 21-28-4.01.2, more than ten grams (10

LC001093 - Page 2 of 10

g), but less than one ounce (1 oz.) of a mixture or substance containing a detectable amount of a A

controlled substance classified in schedules I, II and III, IV, and V, except the substance classified

as marijuana, is guilty of a crime felony 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)(iii) 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)(iv) 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)(v) 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

LC001093 - Page 3 of 10

(18) months.

     (v)(vi) 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

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

(c)(2)(v) two (2) times in the eighteen (18) months prior to the third (3rd) offense.

     (vi)(vii) Any unpaid civil fine issued under (c)(2)(iii) (c)(2)(iv) or (c)(2)(iv) (c)(2)(v) 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)(viii) No person may be arrested for a violation of (c)(2)(iii) (c)(2)(iv) or (c)(2)(iv)

(c)(2)(v) 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)(ix) No violation of (c)(2)(iii) (c)(2)(iv) or (c)(2)(iv) (c)(2)(v) of this subsection shall

be considered a violation of parole or probation.

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

personally identifiable information about violations of (c)(2)(iii) (c)(2)(iv) or (c)(2)(iv) (c)(2)(v)

shall not be open to public inspection in accordance with § 8-8.2-21.

     (3) Jurisdiction.

     (i) Any and all adjudications of violations of (c)(2)(i) shall be within the original

jurisdiction of the Rhode Island superior court. The department of attorney general shall prosecute

any and all violations of (c)(2)(i).

     (ii) Any and all violations of (c)(2)(iii) (c)(2)(iv) and (c)(2)(iv) (c)(2)(v) 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) (c)(2)(iv) or (c)(2)(v) shall be payable to the Rhode Island

traffic tribunal. Fifty percent (50%) of all fines collected by the Rhode Island traffic tribunal from

LC001093 - Page 4 of 10

civil penalties issued pursuant to (c)(2)(iii) or (c)(2)(iv) (c)(2)(iv) or (c)(2)(v) shall be expended on

drug-awareness and treatment programs for youth.

     (4) Additionally, every person convicted or who pleads nolo contendere under (c)(2)(i) or

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

(c)(2)(iii), 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) 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) or (c)(2)(iii) 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) (c)(2)(iii) 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

LC001093 - Page 5 of 10

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.

     21-28-4.01.1. Minimum sentence -- Certain quantities of controlled substances.

     (a) Except as authorized by this chapter, it shall be unlawful for any person to manufacture,

sell, or possess with intent to manufacture or sell, a controlled substance classified in schedule I or

II (excluding marijuana) or to possess or deliver the following enumerated quantities of certain

controlled substances:

     (1) One ounce (1 oz.) to one kilogram (1 kg.) of a mixture or substance containing a

detectable amount of heroin;

     (2) One ounce (1 oz.) to one kilogram (1 kg.) of a mixture or substance containing a

detectable amount of:

     (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, its salts, optical and geometric isomers, and salts of isomers;

     (iii) Ecgonine, its derivatives, their salts, isomers, and salts of isomers; or

     (iv) Any compound, mixture, or preparation that contains any quantity of any of the

substances referred to in paragraphs (i) -- (iii) of this subdivision;

     (3) One gram (1 g.) to ten grams (10 gs.) of phencyclidine (PCP) or one hundred (100) to

one thousand (1,000) tablets of a mixture or substance containing a detectable amount of

phencyclidine (PCP);

     (4) One-tenth of a gram (0.1 g.) to one gram (1 g.) of lysergic acid diethylamide (LSD) or

one hundred (100) to one thousand (1,000) tablets of a mixture or substance containing a detectable

amount of lysergic acid diethylamide (LSD);

     (5) One kilogram (1 kg.) to five kilograms (5 kgs.) of a mixture containing a detectable

amount of marijuana;

LC001093 - Page 6 of 10

     (6) One ounce (1 oz.) to one kilogram (1 kg.) of a mixture or substance containing a

detectable amount of synthetic drugs; or

     (7) One ounce (1 oz.) to one kilogram (1 kg.) of a mixture or substance containing a

detectable amount of fentanyl or its analogs, including, but not limited to, N-(1-phenethylpiperidin-

4-yl)–N-phenylacetamide, its optical, positional, and geometric isomers, salts and salts of isomers

(acetyl fentanyl); N-(1-phenethylpiperidin-4-yl)-N-phenylfuran-2carboxamide (furanyl fentanyl);

and N-Phenethyl-4-piperidinone (4-AN-PP); or

     (8) One ounce (1 oz.) to one kilogram (1 kg.) of a mixture or substance containing a

detectable amount of carfentanil; or

     (9) One ounce (1 oz.) to one kilogram (1 kg.) of 3,4-methyl-enedioxymethamphetamine

(MDMA), its optical, positional, and geometric isomers, salts, and salts of isomers; or

     (10) One ounce (1 oz.) to one kilogram (1 kg.) of amphetamine, its salts, optical isomers,

and salts of its optical isomers; or

     (11) One ounce (1 oz.) to one kilogram (1 kg.) of methamphetamine, its salts, and salts of

its isomers.

     (b) Any person who violates this section shall be guilty of a crime, and upon conviction,

may be imprisoned for a term up to fifty (50) years and fined not more than five hundred thousand

dollars ($500,000).

     21-28-4.01.2. Minimum sentence -- Certain quantities of controlled substances.

     (a) Except as authorized by the chapter, it shall be unlawful for any person to possess,

manufacture, sell, or deliver the following enumerated quantities of certain controlled substances:

     (1) More than one kilogram (1 kg.) of a mixture or substance containing a detectable

amount of heroin;

     (2) More than one kilogram (1 kg.) of a mixture or substance containing a detectable

amount of:

     (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, its salts, optical and geometric isomers, and salts of isomers;

     (iii) Ecgonine, its derivatives, their salts, isomers, and salts of isomers; or

     (iv) Any compound, mixture, or preparation that contains any quantity of any of the

substances referred to in paragraphs (i) -- (iii) of this subdivision;

     (3) More than ten grams (10 gs.) of phencyclidine (PCP) or more than one thousand (1,000)

tablets of a mixture or substance containing a detectable amount of phencyclidine (PCP);

     (4) More than one gram (1 g.) of lysergic acid diethylamide (LSD); or more than one

LC001093 - Page 7 of 10

thousand (1,000) tablets of a mixture or substance containing a detectable amount of lysergic acid

diethylamide (LSD);

     (5) More than five kilograms (5 kgs.) of a mixture containing a detectable amount of

marijuana;

     (6) More than one kilogram (1 kg.) of a mixture or substance containing a detectable

amount of synthetic drugs; or

     (7) More than one kilogram (1 kg.) of a mixture or substance containing a detectable

amount of fentanyl or its analogs, including, but not limited to, N-(1-phenethylpiperidin-4-yl)–N-

phenylacetamide, its optical, positional, and geometric isomers, salts and salts of isomers (acetyl

fentanyl); N-(1-phenethylpiperidin-4-yl)-N-phenylfuran-2carboxamide (furanyl fentanyl); and N-

Phenethyl-4-piperidinone (4-AN-PP); or

     (8) More than one kilogram (1 kg.) of a mixture or substance containing a detectable

amount of carfentanil; or

     (9) More than one kilogram (1 kg.) of 3,4-methyl-enedioxymethamphetamine (MDMA),

its optical, positional, and geometric isomers, salts, and salts of isomers; or

     (10) More than one kilogram (1 kg.) of amphetamine, its salts, optical isomers, and salts of

its optical isomers; or

     (11) More than one kilogram (1 kg.) of methamphetamine, its salts, and salts of its isomers.

     (b) Any person who violates this section shall be guilty of a crime, and upon conviction,

may be imprisoned for a term up to life and fined not more than one million dollars ($1,000,000).

     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)(iii), 21-28-4.01(c)(2)(iv), or 21-28-

4.01(c)(2)(v), or 21-28-4.01(c)(2)(vi) 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)(iii), 21-28-4.01(c)(2)(iv)

or 21-28-4.01(c)(2)(v), or 21-28-4.01(c)(2)(vi) 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)(iii), 21-28-4.01(c)(2)(iv) or 21-28-4.01(c)(2)(v) §§

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

LC001093 - Page 8 of 10

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)(iii),

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

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

marijuana, depressant, stimulant, or hallucinogenic drug.

     SECTION 2. This act shall take effect upon passage.

========

LC001093

========

LC001093 - Page 9 of 10

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO FOOD AND DRUGS -- UNIFORM CONTROLLED SUBSTANCES ACT

***

     This act amends the uniform controlled substances act and reclassifies simple possession

of ten grams (10 g.) or less of certain controlled substances as a misdemeanor punishable as a two

(2) year misdemeanor rather than a felony.

     This act would take effect upon passage.

========

LC001093

========

LC001093 - Page 10 of 10