| Introduced By: Senators Cote, Celona, Badeau, Kelly and Montalbano |
| Date Introduced: January 15, 1997 |
| Referred To: Senate Committee on Judiciary |
It is enacted by the General Assembly as follows
SECTION 1. Section 21-28-1.02 of the General Laws in Chapter 21-28 entitled "Uniform Controlled Substances Act" is hereby amended to read as follows:
21-28-1.02. Definitions. -- Unless the context otherwise requires, the words and phrases herein defined 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:
(a) A practitioner, or, in his or her presence by his or her authorized agent, or
(b) 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 warehouseman, when acting in the usual and lawful course of the carrier's or warehouseman's business.
(3) "Apothecary" means a registered pharmacist as defined by the laws of this state and, where the context so 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) "Drug enforcement administration" means the drug enforcement administration United States department of justice or its successor.
(5) "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.
(6) "Controlled substance" means a drug, substance, or immediate precursor in schedules I through 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 of the general laws of Rhode Island, 1956, as amended, nor tobacco.
(7) "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 thereof, 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.
(8) "Deliver" or "delivery" means the actual, constructive, or attempted transfer of a controlled substance whether or not there exists an agency relationship.
(9) "Department" means the department of health of this state.
(10) "Depressant or stimulant drug" means:
(a) A drug which contains any quantity of:
(i) Barbituric acid or derivatives, compounds, mixtures, or preparations thereof, and
(ii) "Barbiturate" or "barbiturates" shall include all hypnotic and/or somnifacient drugs, whether or not derivatives of barbituric acid, except that this definition shall not include bromides and narcotics.
(b) A drug which contains any quantity of:
(i) Amphetamine or any of its optical isomers,
(ii) 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 thereof.
(c) 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.
(d) 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.
(11) "Director" means the director of health of the state of Rhode Island.
(12) "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.
(13) "Dispenser" is a practitioner who delivers a controlled substance to the ultimate user or human research subject.
(14) "Distribute" means to deliver (other than by administering or dispensing) a controlled substance and includes actual constructive, or attempted transfer. "Distributor" means a person who so delivers a controlled substance.
(15) "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.
(16) "Federal law" means the Comprehensive Drug Abuse Prevention and Control Act of 1970, (84 stat. 1236) ›codified in U.S. Code, Titles 18, 19, 21, 26, 31, 40, 42, 46, 49!, and all regulations pertaining thereto.
(17) "Hospital" means an institution as defined in chapter 17, title 23, of the general laws of Rhode Island, 1956, as amended.
(18) "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.
(19) "Marijuana" means all parts of the plant cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin, but shall not include the mature stalks of the plant, fiber produced from such stalks, oil or cake made from the seeds of such plants, any other compound, manufacture, salt, derivative, mixture, or preparation of mature stalks, (except the resin extracted therefrom), fiber, oil or cake, or the sterilized seed from such plant which is incapable of germination.
(20) "Manufacture" means the production, preparation, propagation, cultivation, compounding, or processing of a drug or other 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.(21) "Manufacturer" means a person who manufactures but does not include an apothecary who compounds controlled substances to be sold or dispensed on prescriptions.
(22) "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:
(a) opium and opiates.
(b) a compound, manufacture, salt, derivative, or preparation of opium or opiates.
(c) a substance (and any compound, manufacture, salt, derivative, or preparation thereof) which is chemically identical with any of the substances referred to in subsections (22)(a) and (b).
(d) 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.
(23) "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 therefor, if such order forms are authorized and required by federal law, and if no such order form is provided then on an official form provided for that purpose by the director of health.
(24) "Opiate" means any substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having such addiction-forming or addiction-sustaining liability.
(25) "Opium poppy" means the plant of the species papaver somniferum L., except the seeds thereof.
(26) "Ounce" means an avoirdupois ounce as applied to solids and semi-solids, and a fluid ounce as applied to liquids.
(27) "Person" means any corporation, association, partnership, or one or more individuals.
(28) "Poppy straw" means all parts, except the seeds, of the opium poppy, after mowing.
(29) "Practitioner" means:
(a) A physician, osteopath, dentist, podiatrist, veterinarian,
scientific investigator, or other person licensed, registered or otherwise 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.(b) A pharmacy, hospital, or other institution licensed, registered or otherwise 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.
(30) "Production" includes the manufacture, planting, cultivation, growing, or harvesting of a controlled substance.
(31) "Immediate precursor" means a substance:
(a) 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; and
(b) which is an immediate chemical intermediary used or likely to be used in the manufacture of those controlled substances; and
(c) the control of which is necessary to prevent, curtail, or limit the manufacture of that controlled substance.
(32) "Researcher" means a person authorized by the director of health to conduct a laboratory as defined in this chapter.
(33) "Sell" includes, sale, barter, gift, transfer, or delivery
in any manner to another, or to offer or agree to do the same.(34) "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 household, or for administering to an animal owned by him or by a member of his or her household.
(35) "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.
(36) "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 limitation 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":
(a) Statement made by an owner, possessor, transferor, recipient, or by anyone else in control of substance concerning the nature of the substance, or its use or effect.
(b) Statements made by the owner, possessor, or transferor, to the recipient that the substance may be resold for substantial profit.
(c) Whether the substance is packaged in a manner reasonably similar to packaging of illicit controlled substances.
(d) 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 noncontrolled substance. (37) "Automated data processing system" means a system utilizing computer software and hardware for the purposes of recordkeeping.
(38) "CRT" means cathode ray tube used to impose visual information on a screen.
(39) "Computer" means programmable electronic device capable of multifunctions, including but not limited to, storage, retrieval, and processing of information.
(40) "Downtime" means that period of time when a computer is not operable.
(41) "Hardware" means the fixed component parts of a computer.
(42) "Printout" means a hard copy produced by computer that is readable without the aid of any special device.
(43) "Software" means programs, procedures and storage of required information data.
{ADD (44) "Illegal drug" means a drug whose distribution is a violation of state law.
(45) "Illegal drug market" means the support system of illegal drug-related operations, from production to retail sales, through which an illegal drug reaches the user.
(46) "Participate in the illegal drug market" means to distribute, possess with an intent to distribute, commit an act intended to facilitate the marketing or distribution of, or agree to distribute, possess with an intent to distribute, or commit an act intended to facilitate the marketing and distribution of an illegal drug. "Participate in the illegal drug market" does not include the purchase or receipt of an illegal drug for personal use only. ADD}
SECTION 2. Chapter 21-28 of the General Laws entitled "Uniform Controlled Substances Act" is hereby amended by adding thereto the following sections:
{ADD 21-28-4.06.1. Prohibited acts G - Civil liability. -- ADD} {ADD (A) A person who knowingly participates in the illegal drug market within this state is liable for civil damages. A person may recover damages under this chapter for injury resulting from use of an illegal drug by that person.
(B) A law enforcement officer or agency, the state, or a person acting at the direction of a law enforcement officer or agency of the state is not liable for participating in the illegal drug market, if the participation is in furtherance of an official investigation.
(C) One or more of the following persons may bring an action for damages caused by use of an illegal drug by an individual:
(1) A parent, legal guardian, child, spouse, or sibling of the individual drug user;
(2) An individual who was exposed to an illegal drug in utero;
(3) An employer of the individual drug user; and
(4) A medical facility, insurer, governmental entity, employer, or other entity that funds a drug treatment program or employee assistance program for the individual drug user or that otherwise expended money on behalf of the individual drug user.
(D) A person entitled to bring an action under this chapter may seek damages fromthe following:
A person who knowingly distributed, or knowingly participated in the illegal marketing of, an illegal drug that was actually used by an individual drug user.
(E) A person entitled to bring an action under this section may recover all of the following damages:
(1) Economic damages including, but not limited to, the cost of treatment and rehabilitation, medical expenses, loss of economic or educational potential, loss of productivity, absenteeism, support expenses, accidents or injury, and any other pecuniary loss proximately caused by the illegal drug use;
(2) Noneconomic damages, including, but not limited to, physical and emotional pain, suffering, physical impairment, emotional distress, mental anguish, disfigurement, loss of enjoyment, loss of companionship, services and consortium, and other nonpecuniary losses proximately caused by an individual's use of an illegal drug;
(3) Exemplary damages;
(4) Reasonable attorney fees; and
(5) Cost of suit, including but not limited to, reasonable expenses for expert testimony. ADD}
{ADD 21-28-4.06.2. Civil liability - Reformed drug users. -- ADD} {ADD (A) An individual drug user shall not bring an action for damages caused by the use of an illegal drug, except as otherwise provided in this subsection. An individual drug user may bring an action for damages caused by the use of an illegal drug only if all of the following conditions are met:
(1) The individual personally discloses to narcotics enforcement authorities, more than six (6) months before filing the action, all the information known to the individual regarding their source of illegal drugs;
(2) The individual has not used an illegal drug within the six (6) months before filing the action; and
(3) The individual continues to remain free of the use of an illegal drug throughout the pendency of the action.
(B) A person entitled to bring an action under this section may seek damages only from a person who knowingly distributed or knowingly participated in the illegal marketing of an illegal drug that was actually used by the individual drug user.
(C) A person entitled to bring an action under this section may recover only the following damages:
(1) Economic damages, including but not limited to the cost of treatment, rehabilitation, and medical expenses, loss of economic or educational potential, loss of productivity, absenteeism, accidents or injury, and other pecuniary loss proximately caused by the person's illegal drug use;
(2) Reasonable attorney fees; and
(3) Costs of suit, including but not limited to reasonable expenses for expert testimony.
(D) A third party shall not pay damages awarded under this chapter or provide a defense or money for a defense, on behalf of an insured under a contract of insurance or indemnification. ADD}
{ADD 21-28-4.06.4. Satisfaction of judgment. -- ADD} {ADD Any assets sought to satisfy a judgment under this chapter that are named in a forfeiture action or have been seized for forfeiture by any federal, state or local agency may not be used to satisfy a judgment unless and until the assets have been released following the conclusion of the forfeiture action or released by the agency that seized the assets. ADD}
{ADD 21-28-4.06.5. Limitation of actions. -- ADD} {ADD (A) Except as otherwise provided in this section, a claim under this chapter shall not be brought more than two (2) years after the cause of action accrues. A cause of action accrues under this chapter when a person who may recover has reason to know of the harm from illegal drug use that is the basis for the cause of action and has reason to know that the illegal drug use is the cause of the harm.
(B) For a plaintiff, who suffers from an incapacity or who is incapacitated by the use of an illegal drug to the extent that the individual cannot reasonably be expected to seek recovery under this act or as otherwise provided for by law, the statute of limitations is tolled until the plaintiff no longer suffers from said incapacity. ADD}
SECTION 3. This act shall take effect upon passage.
* * *
This act would create a civil cause of action for certain persons who are harmed by illegal drug activity.
This act would take effect upon passage.
