Bill Text: AZ HB2303 | 2018 | Fifty-third Legislature 2nd Regular | Introduced
Bill Title: Sentencing; drug offenses; repetitive offenders
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2018-01-18 - House read second time [HB2303 Detail]
Download: Arizona-2018-HB2303-Introduced.html
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REFERENCE TITLE: sentencing; drug offenses; repetitive offenders |
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State of Arizona House of Representatives Fifty-third Legislature Second Regular Session 2018
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HB 2303 |
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Introduced by Representatives Stringer: Bolding, Bowers, Campbell, Clodfelter, Engel, Hernandez, Navarrete, Toma
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AN ACT
amending sections 13‑105, 13‑701, 13‑703, 13‑704, 13‑705, 13‑709, 13‑3401, 13‑3405, 13‑3407, 13‑3408, 13‑3409 and 13‑3411, Arizona Revised Statutes; repealing section 13‑3419, Arizona Revised Statutes; relating to sentencing.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 13-105, Arizona Revised Statutes, is amended to read:
13-105. Definitions
In this title, unless the context otherwise requires:
1. "Absconder" means a probationer who has moved from the probationer's primary residence without permission of the probation officer, who cannot be located within ninety days of the previous contact and against whom a petition to revoke has been filed in the superior court alleging that the probationer's whereabouts are unknown. A probationer is no longer deemed an absconder when the probationer is voluntarily or involuntarily returned to probation service.
2. "Act" means a bodily movement.
3. "Benefit" means anything of value or advantage, present or prospective.
4. "Calendar year" means three hundred sixty‑five days' actual time served without release, suspension or commutation of sentence, probation, pardon or parole, work furlough or release from confinement on any other basis.
5. "Community supervision" means that portion of a felony sentence that is imposed by the court pursuant to section 13‑603, subsection I and that is served in the community after completing a period of imprisonment or served in prison in accordance with section 41‑1604.07.
6. "Conduct" means an act or omission and its accompanying culpable mental state.
7. "Crime" means a misdemeanor or a felony.
8. "Criminal street gang" means an ongoing formal or informal association of persons in which members or associates individually or collectively engage in the commission, attempted commission, facilitation or solicitation of any felony act and that has at least one individual who is a criminal street gang member.
9. "Criminal street gang member" means an individual to whom at least two of the following seven criteria that indicate criminal street gang membership apply:
(a) Self‑proclamation.
(b) Witness testimony or official statement.
(c) Written or electronic correspondence.
(d) Paraphernalia or photographs.
(e) Tattoos.
(f) Clothing or colors.
(g) Any other indicia of street gang membership.
10. "Culpable mental state" means intentionally, knowingly, recklessly or with criminal negligence as those terms are defined in this paragraph:
(a) "Intentionally" or "with the intent to" means, with respect to a result or to conduct described by a statute defining an offense, that a person's objective is to cause that result or to engage in that conduct.
(b) "Knowingly" means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that the person's conduct is of that nature or that the circumstance exists. It does not require any knowledge of the unlawfulness of the act or omission.
(c) "Recklessly" means, with respect to a result or to a circumstance described by a statute defining an offense, that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but who is unaware of such risk solely by reason of voluntary intoxication also acts recklessly with respect to such risk.
(d) "Criminal negligence" means, with respect to a result or to a circumstance described by a statute defining an offense, that a person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.
11. "Dangerous drug" means dangerous drug as defined in section 13‑3401.
12. "Dangerous instrument" means anything that under the circumstances in which it is used, attempted to be used or threatened to be used is readily capable of causing death or serious physical injury.
13. "Dangerous offense" means an offense involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury on another person.
14. "Deadly physical force" means force that is used with the purpose of causing death or serious physical injury or in the manner of its use or intended use is capable of creating a substantial risk of causing death or serious physical injury.
15. "Deadly weapon" means anything designed for lethal use, including a firearm.
16. "Economic loss" means any loss incurred by a person as a result of the commission of an offense. Economic loss includes lost interest, lost earnings and other losses that would not have been incurred but for the offense. Economic loss does not include losses incurred by the convicted person, damages for pain and suffering, punitive damages or consequential damages.
17. "Enterprise" includes any corporation, association, labor union or other legal entity.
18. "Felony" means an offense for which a sentence to a term of imprisonment in the custody of the state department of corrections is authorized by any law of this state.
19. "Firearm" means any loaded or unloaded handgun, pistol, revolver, rifle, shotgun or other weapon that will or is designed to or may readily be converted to expel a projectile by the action of expanding gases, except that it does not include a firearm in permanently inoperable condition.
20. "Government" means the state, any political subdivision of the state or any department, agency, board, commission, institution or governmental instrumentality of or within the state or political subdivision.
21. "Government function" means any activity that a public servant is legally authorized to undertake on behalf of a government.
22. "Historical prior felony conviction" means:
(a) Any prior felony conviction for which the offense of conviction either:
(i) Mandated a term of imprisonment except for a violation of chapter 34 of this title involving a drug below the threshold amount.
(ii) Involved a dangerous offense.
(iii) Involved the illegal control of a criminal enterprise.
(iv) Involved aggravated driving under the influence of intoxicating liquor or drugs.
(v) Involved any dangerous crime against children as defined in section 13‑705.
(b) Any class 2 or 3 felony, except the offenses listed in subdivision (a) of this paragraph, that was committed within the ten years immediately preceding the date of the present offense. Any time spent on absconder status while on probation, on escape status or incarcerated is excluded in calculating if the offense was committed within the preceding ten years. If a court determines a person was not on absconder status while on probation or escape status, that time is not excluded. For the purposes of this subdivision, "escape" means:
(i) A departure from custody or from a juvenile secure care facility, a juvenile detention facility or an adult correctional facility in which the person is held or detained, with knowledge that the departure is not permitted, or the failure to return to custody or detention following a temporary leave granted for a specific purpose or for a limited period.
(ii) A failure to report as ordered to custody or detention to begin serving a term of incarceration.
(c) Any class 4, 5 or 6 felony, except the offenses listed in subdivision (a) of this paragraph, an offense in violation of section 13‑3405, subsection A, paragraph 1, section 13‑3407, subsection A, paragraph 1 or section 13‑3408, subsection A, paragraph 1 or any other offense included in chapter 34 of this title, whether a completed or preparatory offense, involving a drug below the threshold amount, that was committed within the five years immediately preceding the date of the present offense. Any time spent on absconder status while on probation, on escape status or incarcerated is excluded in calculating if the offense was committed within the preceding five years. If a court determines a person was not on absconder status while on probation or escape status, that time is not excluded. For the purposes of this subdivision, "escape" has the same meaning prescribed in subdivision (b) of this paragraph.
(d) Any felony conviction that is a third or more prior felony conviction, except a conviction for a violation of section 13‑3405, subsection A, paragraph 1, section 13‑3407, subsection A, paragraph 1 or section 13‑3408, subsection A, paragraph 1 or for any other offense included in chapter 34 of this title, whether a completed or preparatory offense, involving a drug below the threshold amount. For the purposes of this subdivision, "prior felony conviction" includes any offense committed outside the jurisdiction of this state that was punishable by that jurisdiction as a felony, except an offense that has the same or similar elements as section 13‑3405, subsection A, paragraph 1, section 13‑3407, subsection A, paragraph 1 or section 13‑3408, subsection A, paragraph 1 or any other offense included in chapter 34 of this title, whether a completed or preparatory offense, involving a drug below the threshold amount.
(e) Any offense committed outside the jurisdiction of this state that was punishable by that jurisdiction as a felony and that was committed within the five years immediately preceding the date of the present offense, except an offense that has the same or similar elements as section 13‑3405, subsection A, paragraph 1, section 13‑3407, subsection A, paragraph 1 or section 13‑3408, subsection A, paragraph 1 or any other offense included in chapter 34 of this title, whether a completed or preparatory offense, involving a drug below the threshold amount. Any time spent on absconder status while on probation, on escape status or incarcerated is excluded in calculating if the offense was committed within the preceding five years. If a court determines a person was not on absconder status while on probation or escape status, that time is not excluded. For the purposes of this subdivision, "escape" has the same meaning prescribed in subdivision (b) of this paragraph.
(f) Any offense committed outside the jurisdiction of this state that involved the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of death or serious physical injury and that was punishable by that jurisdiction as a felony. A person who has been convicted of a felony weapons possession violation in any court outside the jurisdiction of this state that would not be punishable as a felony under the laws of this state is not subject to this paragraph.
23. "Human smuggling organization" means an ongoing formal or informal association of persons in which members or associates individually or collectively engage in the smuggling of human beings.
24. "Intoxication" means any mental or physical incapacity resulting from use of drugs, toxic vapors or intoxicating liquors.
25. "Misdemeanor" means an offense for which a sentence to a term of imprisonment other than to the custody of the state department of corrections is authorized by any law of this state.
26. "Narcotic drug" means narcotic drugs as defined in section 13‑3401.
27. "Offense" or "public offense" means conduct for which a sentence to a term of imprisonment or of a fine is provided by any law of the state in which it occurred or by any law, regulation or ordinance of a political subdivision of that state and, if the act occurred in a state other than this state, it would be so punishable under the laws, regulations or ordinances of this state or of a political subdivision of this state if the act had occurred in this state.
28. "Omission" means the failure to perform an act as to which a duty of performance is imposed by law.
29. "Peace officer" means any person vested by law with a duty to maintain public order and make arrests and includes a constable.
30. "Person" means a human being and, as the context requires, an enterprise, a public or private corporation, an unincorporated association, a partnership, a firm, a society, a government, a governmental authority or an individual or entity capable of holding a legal or beneficial interest in property.
31. "Petty offense" means an offense for which a sentence of a fine only is authorized by law.
32. "Physical force" means force used upon or directed toward the body of another person and includes confinement, but does not include deadly physical force.
33. "Physical injury" means the impairment of physical condition.
34. "Possess" means knowingly to have physical possession or otherwise to exercise dominion or control over property.
35. "Possession" means a voluntary act if the defendant knowingly exercised dominion or control over property.
36. "Preconviction custody" means the confinement of a person in a jail in this state or another state after the person is arrested for or charged with a felony offense.
37. "Property" means anything of value, tangible or intangible.
38. "Public servant":
(a) Means any officer or employee of any branch of government, whether elected, appointed or otherwise employed, including a peace officer, and any person participating as an advisor or consultant or otherwise in performing a governmental function.
(b) Does not include jurors or witnesses.
(c) Includes those who have been elected, appointed, employed or designated to become a public servant although not yet occupying that position.
39. "Serious physical injury" includes physical injury that creates a reasonable risk of death, or that causes serious and permanent disfigurement, serious impairment of health or loss or protracted impairment of the function of any bodily organ or limb.
40. "Unlawful" means contrary to law or, where the context so requires, not permitted by law.
41. "Vehicle" means a device in, upon or by which any person or property is, may be or could have been transported or drawn upon a highway, waterway or airway, excepting devices moved by human power or used exclusively upon stationary rails or tracks.
42. "Voluntary act" means a bodily movement performed consciously and as a result of effort and determination.
43. "Voluntary intoxication" means intoxication caused by the knowing use of drugs, toxic vapors or intoxicating liquors by a person, the tendency of which to cause intoxication the person knows or ought to know, unless the person introduces them pursuant to medical advice or under such duress as would afford a defense to an offense.
Sec. 2. Section 13-701, Arizona Revised Statutes, is amended to read:
13-701. Sentence of imprisonment for felony; presentence report; aggravating and mitigating factors; consecutive terms of imprisonment; definition
A. A sentence of imprisonment for a felony shall be a definite term of years and the person sentenced, unless otherwise provided by law, shall be committed to the custody of the state department of corrections.
B. No prisoner may be transferred to the custody of the state department of corrections without a certified copy of the judgment and sentence, signed by the sentencing judge, and a copy of a recent presentence investigation report unless the court has waived preparation of the report.
C. The minimum or maximum term imposed pursuant to section 13‑702, 13‑703, 13‑704, 13‑705, 13‑708, 13‑710, 13‑1406, or 13‑3212 or 13‑3419 may be imposed only if one or more of the circumstances alleged to be in aggravation of the crime are found to be true by the trier of fact beyond a reasonable doubt or are admitted by the defendant, except that an alleged aggravating circumstance under subsection D, paragraph 11 of this section shall be found to be true by the court, or in mitigation of the crime are found to be true by the court, on any evidence or information introduced or submitted to the court or the trier of fact before sentencing or any evidence presented at trial, and factual findings and reasons in support of such findings are set forth on the record at the time of sentencing.
D. For the purpose of determining the sentence pursuant to subsection C of this section, the trier of fact shall determine and the court shall consider the following aggravating circumstances, except that the court shall determine an aggravating circumstance under paragraph 11 of this subsection:
1. Infliction or threatened infliction of serious physical injury, except if this circumstance is an essential element of the offense of conviction or has been utilized to enhance the range of punishment under section 13‑704.
2. Use, threatened use or possession of a deadly weapon or dangerous instrument during the commission of the crime, except if this circumstance is an essential element of the offense of conviction or has been utilized to enhance the range of punishment under section 13‑704.
3. If the offense involves the taking of or damage to property, the value of the property taken or damaged.
4. Presence of an accomplice.
5. Especially heinous, cruel or depraved manner in which the offense was committed.
6. The defendant committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value.
7. The defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value.
8. At the time of the commission of the offense, the defendant was a public servant and the offense involved conduct directly related to the defendant's office or employment.
9. The victim or, if the victim has died as a result of the conduct of the defendant, the victim's immediate family suffered physical, emotional or financial harm.
10. During the course of the commission of the offense, the death of an unborn child at any stage of its development occurred.
11. The defendant was previously convicted of a felony within the ten years immediately preceding the date of the offense. A conviction outside the jurisdiction of this state for an offense that if committed in this state would be punishable as a felony is a felony conviction for the purposes of this paragraph.
12. The defendant was wearing body armor as defined in section 13‑3116.
13. The victim of the offense is at least sixty‑five years of age or is a person with a disability as defined in section 38‑492, subsection B.
14. The defendant was appointed pursuant to title 14 as a fiduciary and the offense involved conduct directly related to the defendant's duties to the victim as fiduciary.
15. Evidence that the defendant committed the crime out of malice toward a victim because of the victim's identity in a group listed in section 41‑1750, subsection A, paragraph 3 or because of the defendant's perception of the victim's identity in a group listed in section 41‑1750, subsection A, paragraph 3.
16. The defendant was convicted of a violation of section 13‑1102, section 13‑1103, section 13‑1104, subsection A, paragraph 3 or section 13‑1204, subsection A, paragraph 1 or 2 arising from an act that was committed while driving a motor vehicle and the defendant's alcohol concentration at the time of committing the offense was 0.15 or more. For the purposes of this paragraph, "alcohol concentration" has the same meaning prescribed in section 28‑101.
17. Lying in wait for the victim or ambushing the victim during the commission of any felony.
18. The offense was committed in the presence of a child and any of the circumstances exists that are set forth in section 13‑3601, subsection A.
19. The offense was committed in retaliation for a victim either reporting criminal activity or being involved in an organization, other than a law enforcement agency, that is established for the purpose of reporting or preventing criminal activity.
20. The defendant was impersonating a peace officer as defined in section 1‑215.
21. The defendant was in violation of 8 United States Code section 1323, 1324, 1325, 1326 or 1328 at the time of the commission of the offense.
22. The defendant used a remote stun gun or an authorized remote stun gun in the commission of the offense. For the purposes of this paragraph:
(a) "Authorized remote stun gun" means a remote stun gun that has all of the following:
(i) An electrical discharge that is less than one hundred thousand volts and less than nine joules of energy per pulse.
(ii) A serial or identification number on all projectiles that are discharged from the remote stun gun.
(iii) An identification and tracking system that, on deployment of remote electrodes, disperses coded material that is traceable to the purchaser through records that are kept by the manufacturer on all remote stun guns and all individual cartridges sold.
(iv) A training program that is offered by the manufacturer.
(b) "Remote stun gun" means an electronic device that emits an electrical charge and that is designed and primarily employed to incapacitate a person or animal either through contact with electrodes on the device itself or remotely through wired probes that are attached to the device or through a spark, plasma, ionization or other conductive means emitting from the device.
23. During or immediately following the commission of the offense, the defendant committed a violation of section 28‑661, 28‑662 or 28‑663.
24. The defendant was convicted of a violation of section 13‑1307 or 13‑1308 or section 13‑3212, subsection A, paragraph 9 or 10 and the defendant recruited, enticed or obtained the victim from a shelter that is designed to serve runaway youth, foster children, homeless persons or victims of human trafficking, domestic violence or sexual assault.
25. The defendant was convicted of a violation of section 13‑1204 and there is evidence that the defendant committed the crime out of malice toward a victim because of the victim's employment as a peace officer.
26. Any other factor that the state alleges is relevant to the defendant's character or background or to the nature or circumstances of the crime.
E. For the purpose of determining the sentence pursuant to subsection C of this section, the court shall consider the following mitigating circumstances:
1. The age of the defendant.
2. The defendant's capacity to appreciate the wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution.
3. The defendant was under unusual or substantial duress, although not to a degree that would constitute a defense to prosecution.
4. The degree of the defendant's participation in the crime was minor, although not so minor as to constitute a defense to prosecution.
5. During or immediately following the commission of the offense, the defendant complied with all duties imposed under sections 28‑661, 28‑662 and 28‑663.
6. The defendant's participation in the offense was motivated or substantially attributable to a documented or diagnosed pattern of:
(a) Mental illness, a cognitive deficit or a history of persistent or serious substance abuse or addiction.
(b) Physical or psychological trauma that is a result of active duty in a combat zone of an armed conflict while serving in a branch of the United States armed forces.
(c) Victimization stemming from any combination of physical, mental, emotional or psychological abuse or domestic violence if the offense was committed at the direction of another person who:
(i) was a more culpable participant in the offense or who played a SIGNIFICANTLY greater role in the offense.
(ii) Effectively coerced the defendant's involvement in the offense by means of a threat or abuse either directly from the other person or through any other person or group.
6. 7. Any other factor that is relevant to the defendant's character or background or to the nature or circumstances of the crime and that the court finds to be mitigating.
F. If the trier of fact finds at least one aggravating circumstance, the trial court may find by a preponderance of the evidence additional aggravating circumstances. In determining what sentence to impose, the court shall take into account the amount of aggravating circumstances and whether the amount of mitigating circumstances is sufficiently substantial to justify the lesser term. If the trier of fact finds aggravating circumstances and the court does not find any mitigating circumstances, the court shall impose an aggravated sentence.
G. The court in imposing a sentence shall consider the evidence and opinions presented by the victim or the victim's immediate family at any aggravation or mitigation proceeding or in the presentence report.
H. This section does not affect any provision of law that imposes the death penalty, that expressly provides for imprisonment for life or that authorizes or restricts the granting of probation and suspending the execution of sentence.
I. The intentional failure by the court to impose the mandatory sentences or probation conditions provided in this title is malfeasance.
J. For the purposes of this section, "trier of fact" means a jury, unless the defendant and the state waive a jury in which case the trier of fact means the court.
Sec. 3. Section 13-703, Arizona Revised Statutes, is amended to read:
13-703. Repetitive offenders; sentencing
A. If a person is convicted of multiple felony offenses that were not committed on the same occasion but that either are consolidated for trial purposes or are not historical prior felony convictions, the person shall be sentenced as a first time felony offender pursuant to section 13‑702 for the first offense, as a category one repetitive offender for the second offense, and as a category two repetitive offender for the third and subsequent offenses.
B. Except as provided in section 13‑704 or 13‑705, a person shall be sentenced as a category two repetitive offender if the person is at least eighteen years of age or has been tried as an adult and stands convicted of a felony and has one historical prior felony conviction.
C. Except as provided in section 13‑704 or 13‑705, a person shall be sentenced as a category three repetitive offender if the person is at least eighteen years of age or has been tried as an adult and stands convicted of a felony and has two or more historical prior felony convictions.
D. The presumptive term set by this section may be aggravated or mitigated within the range under this section pursuant to section 13‑701, subsections C, D and E.
E. If a person is sentenced as a category one repetitive offender pursuant to subsection A of this section and if at least two aggravating circumstances listed in section 13‑701, subsection D apply or at least two mitigating circumstances listed in section 13‑701, subsection E apply, the court may impose a mitigated or aggravated sentence pursuant to subsection H of this section.
F. If a person is sentenced as a category two repetitive offender pursuant to subsection A or B of this section and if at least two aggravating circumstances listed in section 13‑701, subsection D apply or at least two mitigating circumstances listed in section 13‑701, subsection E apply, the court may impose a mitigated or aggravated sentence pursuant to subsection I of this section.
G. If a person is sentenced as a category three repetitive offender pursuant to subsection C of this section and at least two aggravating circumstances listed in section 13‑701, subsection D or at least two mitigating circumstances listed in section 13‑701, subsection E apply, the court may impose a mitigated or aggravated sentence pursuant to subsection J of this section.
H. A category one repetitive offender shall be sentenced within the following ranges:
Felony Mitigated Minimum Presumptive Maximum Aggravated
Class 2 3 years 4 years 5 years 10 years 12.5 years
Class 3 2 years 2.5 years 3.5 years 7 years 8.75 years
Class 4 1 year 1.5 years 2.5 years 3 years 3.75 years
Class 5 .5 years .75 years 1.5 years 2 years 2.5 years
Class 6 .25 years .5 years 1 year 1.5 years 2 years
I. A category two repetitive offender shall be sentenced within the following ranges:
Felony Mitigated Minimum Presumptive Maximum Aggravated
Class 2 4.5 years 6 years 9.25 years 18.5 years 23 years
Class 3 3.25 years 4.5 years 6.5 years 13 years 16.25 years
Class 4 2.25 years 3 years 4.5 years 6 years 7.5 years
Class 5 1 year 1.5 years 2.25 years 3 years 3.75 years
Class 6 .75 years 1 year 1.75 years 2.25 years 2.75 years
J. A category three repetitive offender shall be sentenced within the following ranges:
Felony Mitigated Minimum Presumptive Maximum Aggravated
Class 2 10.5 years 14 years 15.75 years 28 years 35 years
Class 3 7.5 years 10 years 11.25 years 20 years 25 years
Class 4 6 years 8 years 10 years 12 years 15 years
Class 5 3 years 4 years 5 years 6 years 7.5 years
Class 6 2.25 years 3 years 3.75 years 4.5 years 5.75 years
K. The aggravated or mitigated term imposed pursuant to subsection H, I or J of this section may be imposed only if at least two of the aggravating circumstances are found beyond a reasonable doubt to be true by the trier of fact or are admitted by the defendant, except that an aggravating circumstance under section 13‑701, subsection D, paragraph 11 shall be found to be true by the court, or in mitigation of the crime are found to be true by the court, on any evidence or information introduced or submitted to the court or the trier of fact before sentencing or any evidence presented at trial, and factual findings and reasons in support of these findings are set forth on the record at the time of sentencing.
L. Convictions for two or more offenses committed on the same occasion shall be counted as only one conviction for the purposes of subsections B and C of this section.
M. A person who has been convicted in any court outside the jurisdiction of this state of an offense that was punishable by that jurisdiction as a felony is subject to this section. A person who has been convicted as an adult of an offense punishable as a felony under the provisions of any prior code in this state or the jurisdiction in which the offense was committed is subject to this section. A person who has been convicted of a felony weapons possession violation in any court outside the jurisdiction of this state that would not be punishable as a felony under the laws of this state is not subject to this section.
N. The penalties prescribed by this section shall be substituted for the penalties otherwise authorized by law if an allegation of prior conviction is charged in the indictment or information and admitted or found by the court. The release provisions prescribed by this section shall not be substituted for any penalties required by the substantive offense or a provision of law that specifies a later release or completion of the sentence imposed before release. The court shall allow the allegation of a prior conviction at any time before the date the case is actually tried unless the allegation is filed fewer than twenty days before the case is actually tried and the court finds on the record that the person was in fact prejudiced by the untimely filing and states the reasons for these findings. If the allegation of a prior conviction is filed, the state must make available to the person a copy of any material or information obtained concerning the prior conviction. The charge of previous conviction shall not be read to the jury. For the purposes of this subsection, "substantive offense" means the felony offense that the trier of fact found beyond a reasonable doubt the person committed. Substantive offense does not include allegations that, if proven, would enhance the sentence of imprisonment or fine to which the person otherwise would be subject.
O. A person who is sentenced pursuant to this section is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis, except as specifically authorized by section 31‑233, subsection A or B, until the sentence imposed by the court has been served, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted.
P. The court shall inform all of the parties before sentencing occurs of its intent to impose an aggravated or mitigated sentence pursuant to subsection H, I or J of this section. If the court fails to inform the parties, a party waives its right to be informed unless the party timely objects at the time of sentencing.
Q. The court in imposing a sentence shall consider the evidence and opinions presented by the victim or the victim's immediate family at any aggravation or mitigation proceeding or in the presentence report.
Sec. 4. Section 13-704, Arizona Revised Statutes, is amended to read:
13-704. Dangerous offenders; sentencing
A. Except as provided in section 13‑705, a person who is at least eighteen years of age or who has been tried as an adult and who stands convicted of a felony that is a dangerous offense shall be sentenced to a term of imprisonment as follows:
Felony Minimum Presumptive Maximum
Class 2 7 years 10.5 years 21 years
Class 3 5 years 7.5 years 15 years
Class 4 4 years 6 years 8 years
Class 5 2 years 3 years 4 years
Class 6 1.5 years 2.25 years 3 years
B. Except as provided in section 13‑705, a person who is convicted of a class 4, 5 or 6 felony that is a dangerous offense and who has one historical prior felony conviction involving a dangerous offense shall be sentenced to a term of imprisonment as follows:
Felony Minimum Presumptive Maximum
Class 4 8 years 10 years 12 years
Class 5 4 years 5 years 6 years
Class 6 3 years 3.75 years 4.5 years
C. Except as provided in section 13‑705 or section 13‑706, subsection A, a person who is convicted of a class 4, 5 or 6 felony that is a dangerous offense and who has two or more historical prior felony convictions involving dangerous offenses shall be sentenced to a term of imprisonment as follows:
Felony Minimum Presumptive Maximum
Class 4 12 years 14 years 16 years
Class 5 6 years 7 years 8 years
Class 6 4.5 years 5.25 years 6 years
D. Except as provided in section 13‑705 or section 13‑706, subsection A, a person who is convicted of a class 2 or 3 felony involving a dangerous offense and who has one historical prior felony conviction that is a class 1, 2 or 3 felony involving a dangerous offense shall be sentenced to a term of imprisonment as follows:
Felony Minimum Presumptive Maximum
Class 2 14 years 15.75 years 28 years
Class 3 10 years 11.25 years 20 years
E. Except as provided in section 13‑705 or section 13‑706, subsection A, a person who is convicted of a class 2 or 3 felony involving a dangerous offense and who has two or more historical prior felony convictions that are class 1, 2 or 3 felonies involving dangerous offenses shall be sentenced to a term of imprisonment as follows:
Felony Minimum Presumptive Maximum
Class 2 21 years 28 years 35 years
Class 3 15 years 20 years 25 years
F. A person who is convicted of two or more felony offenses that are dangerous offenses and that were not committed on the same occasion but that are consolidated for trial purposes or that are not historical prior felony convictions shall be sentenced, for the second or subsequent offense, pursuant to this subsection. For a person sentenced pursuant to this subsection, the minimum term prescribed shall be the presumptive term. If the court increases or decreases a sentence pursuant to this subsection, the court shall state on the record the reasons for the increase or decrease. The court shall inform all of the parties before the sentencing occurs of its intent to increase or decrease a sentence pursuant to this subsection. If the court fails to inform the parties, a party waives its right to be informed unless the party timely objects at the time of sentencing. The terms are as follows:
1. For the second dangerous offense:
Increased
Felony Minimum Maximum Maximum
Class 2 10.5 years 21 years 26.25 years
Class 3 7.5 years 15 years 18.75 years
Class 4 6 years 8 years 10 years
Class 5 3 years 4 years 5 years
Class 6 2.25 years 3 years 3.75 years
2. For any dangerous offense subsequent to the second dangerous felony offense:
Increased
Felony Minimum Maximum Maximum
Class 2 15.75 years 28 years 35 years
Class 3 11.25 years 20 years 25 years
Class 4 10 years 12 years 15 years
Class 5 5 years 6 years 7.5 years
Class 6 3.75 years 4.5 years 5.6 years
G. A person who is sentenced pursuant to subsection A, B, C, D, E or F of this section is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis, except as specifically authorized by section 31‑233, subsection A or B, until the sentence imposed by the court has been served, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted.
H. The presumptive term authorized by this section may be mitigated or aggravated pursuant to the terms of section 13‑701, subsections C, D and E.
I. For the purposes of determining the applicability of the penalties provided in subsection A, D or E of this section for second or subsequent class 2 or 3 felonies, the conviction for any felony committed before October 1, 1978 that, if committed after October 1, 1978, could be a dangerous offense under subsection A, D or E of this section may be designated by the state as a prior felony.
J. Convictions for two or more offenses committed on the same occasion shall be counted as only one conviction for the purposes of subsection A, B, C, D or E of this section.
K. A person who has been convicted in any court outside the jurisdiction of this state of an offense that was punishable by that jurisdiction as a felony is subject to subsection A, B, C, D or E of this section. A person who has been convicted of an offense punishable as a felony under the provisions of any prior code in this state or the jurisdiction in which the offense was committed is subject to subsection A, B, C, D or E of this section. A person who has been convicted of a felony weapons possession violation in any court outside the jurisdiction of this state that would not be punishable as a felony under the laws of this state is not subject to this section.
L. The penalties prescribed by this section shall be substituted for the penalties otherwise authorized by law if an allegation of prior conviction is charged in the indictment or information and admitted or found by the court or if an allegation of dangerous offense is charged in the indictment or information and admitted or found by the trier of fact. The release provisions prescribed by this section shall not be substituted for any penalties required by the substantive offense or provision of law that specifies a later release or completion of the sentence imposed before release. The court shall allow the allegation of a prior conviction or the allegation of a dangerous offense at any time before the date the case is actually tried unless the allegation is filed fewer than twenty days before the case is actually tried and the court finds on the record that the defendant was in fact prejudiced by the untimely filing and states the reasons for these findings. If the allegation of a prior conviction is filed, the state must make available to the defendant a copy of any material or information obtained concerning the prior conviction. The charge of prior conviction shall not be read to the jury. For the purposes of this subsection, "substantive offense" means the felony that the trier of fact found beyond a reasonable doubt the defendant committed. Substantive offense does not include allegations that, if proven, would enhance the sentence of imprisonment or fine to which the defendant otherwise would be subject.
M. Except as provided in section 13‑705 or 13‑751, if the victim is an unborn child in the womb at any stage of its development, the defendant shall be sentenced pursuant to this section.
Sec. 5. Section 13-705, Arizona Revised Statutes, is amended to read:
13-705. Dangerous crimes against children; sentences; definitions
A. A person who is at least eighteen years of age and who is convicted of a dangerous crime against children in the first degree involving sexual assault of a minor who is twelve years of age or younger or sexual conduct with a minor who is twelve years of age or younger shall be sentenced to life imprisonment and is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31‑233, subsection A or B until the person has served thirty‑five years or the sentence is commuted. This subsection does not apply to masturbatory contact.
B. Except as otherwise provided in this section, a person who is at least eighteen years of age or who has been tried as an adult and who is convicted of a dangerous crime against children in the first degree involving attempted first degree murder of a minor who is under twelve years of age, second degree murder of a minor who is under twelve years of age, sexual assault of a minor who is under twelve years of age, sexual conduct with a minor who is under twelve years of age or manufacturing methamphetamine under circumstances that cause physical injury to a minor who is under twelve years of age may be sentenced to life imprisonment and is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31‑233, subsection A or B until the person has served thirty‑five years or the sentence is commuted. If a life sentence is not imposed pursuant to this subsection, the person shall be sentenced to a term of imprisonment as follows:
Minimum Presumptive Maximum
13 years 20 years 27 years
C. Except as otherwise provided in this section, a person who is at least eighteen years of age or who has been tried as an adult and who is convicted of a dangerous crime against children in the first degree involving attempted first degree murder of a minor who is twelve, thirteen or fourteen years of age, second degree murder of a minor who is twelve, thirteen or fourteen years of age, sexual assault of a minor who is twelve, thirteen or fourteen years of age, taking a child for the purpose of prostitution, child sex trafficking, sexual conduct with a minor who is twelve, thirteen or fourteen years of age, continuous sexual abuse of a child or manufacturing methamphetamine under circumstances that cause physical injury to a minor who is twelve, thirteen or fourteen years of age or involving or using minors in drug offenses shall be sentenced to a term of imprisonment as follows:
Minimum Presumptive Maximum
13 years 20 years 27 years
A person who has been previously convicted of one predicate felony shall be sentenced to a term of imprisonment as follows:
Minimum Presumptive Maximum
23 years 30 years 37 years
D. Except as otherwise provided in this section, a person who is at least eighteen years of age or who has been tried as an adult and who is convicted of a dangerous crime against children in the first degree involving aggravated assault, unlawful mutilation, molestation of a child, commercial sexual exploitation of a minor, sexual exploitation of a minor, aggravated luring a minor for sexual exploitation, child abuse or kidnapping shall be sentenced to a term of imprisonment as follows:
Minimum Presumptive Maximum
10 years 17 years 24 years
A person who has been previously convicted of one predicate felony shall be sentenced to a term of imprisonment as follows:
Minimum Presumptive Maximum
21 years 28 years 35 years
E. Except as otherwise provided in this section, if a person is at least eighteen years of age or has been tried as an adult and is convicted of a dangerous crime against children involving luring a minor for sexual exploitation or unlawful age misrepresentation and is sentenced to a term of imprisonment, the term of imprisonment is as follows and the person is not eligible for release from confinement on any basis except as specifically authorized by section 31‑233, subsection A or B until the sentence imposed by the court has been served, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted:
Minimum Presumptive Maximum
5 years 10 years 15 years
A person who has been previously convicted of one predicate felony shall be sentenced to a term of imprisonment as follows and the person is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31‑233, subsection A or B until the sentence imposed by the court has been served, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted:
Minimum Presumptive Maximum
8 years 15 years 22 years
F. Except as otherwise provided in this section, if a person is at least eighteen years of age or has been tried as an adult and is convicted of a dangerous crime against children involving sexual abuse or bestiality under section 13‑1411, subsection A, paragraph 2 and is sentenced to a term of imprisonment, the term of imprisonment is as follows and the person is not eligible for release from confinement on any basis except as specifically authorized by section 31‑233, subsection A or B until the sentence imposed by the court has been served, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted:
Minimum Presumptive Maximum
2.5 years 5 years 7.5 years
A person who has been previously convicted of one predicate felony shall be sentenced to a term of imprisonment as follows and the person is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31‑233, subsection A or B until the sentence imposed by the court has been served, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted:
Minimum Presumptive Maximum
8 years 15 years 22 years
G. The presumptive sentences prescribed in subsections B, C and D of this section or subsections E and F of this section if the person has previously been convicted of a predicate felony may be increased or decreased pursuant to section 13‑701, subsections C, D and E.
H. Except as provided in subsection F of this section, a person who is sentenced for a dangerous crime against children in the first degree pursuant to this section is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31‑233, subsection A or B until the sentence imposed by the court has been served or commuted.
I. A person who is convicted of any dangerous crime against children in the first degree pursuant to subsection C or D of this section and who has been previously convicted of two or more predicate felonies shall be sentenced to life imprisonment and is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31‑233, subsection A or B until the person has served not fewer than thirty‑five years or the sentence is commuted.
J. Notwithstanding chapter 10 of this title, a person who is at least eighteen years of age or who has been tried as an adult and who is convicted of a dangerous crime against children in the second degree pursuant to subsection B, C or D of this section is guilty of a class 3 felony and if the person is sentenced to a term of imprisonment, the term of imprisonment is as follows and the person is not eligible for release from confinement on any basis except as specifically authorized by section 31‑233, subsection A or B until the person has served the sentence imposed by the court, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted:
Minimum Presumptive Maximum
5 years 10 years 15 years
K. A person who is convicted of any dangerous crime against children in the second degree and who has been previously convicted of one or more predicate felonies is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31‑233, subsection A or B until the sentence imposed by the court has been served, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted.
L. Section 13‑704, subsection J and section 13‑707, subsection B apply to the determination of prior convictions.
M. The sentence imposed on a person by the court for a dangerous crime against children under subsection D of this section involving child molestation or sexual abuse pursuant to subsection F of this section may be served concurrently with other sentences if the offense involved only one victim. The sentence imposed on a person for any other dangerous crime against children in the first or second degree shall be consecutive to any other sentence imposed on the person at any time, including child molestation and sexual abuse of the same victim.
N. In this section, for purposes of punishment an unborn child shall be treated like a minor who is under twelve years of age.
O. A dangerous crime against children is in the first degree if it is a completed offense and is in the second degree if it is a preparatory offense, except attempted first degree murder is a dangerous crime against children in the first degree.
P. For the purposes of this section:
1. "Dangerous crime against children" means any of the following that is committed against a minor who is under fifteen years of age:
(a) Second degree murder.
(b) Aggravated assault resulting in serious physical injury or involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument.
(c) Sexual assault.
(d) Molestation of a child.
(e) Sexual conduct with a minor.
(f) Commercial sexual exploitation of a minor.
(g) Sexual exploitation of a minor.
(h) Child abuse as prescribed in section 13‑3623, subsection A, paragraph 1.
(i) Kidnapping.
(j) Sexual abuse.
(k) Taking a child for the purpose of prostitution as prescribed in section 13‑3206.
(l) Child sex trafficking as prescribed in section 13‑3212.
(m) Involving or using minors in drug offenses.
(n) (m) Continuous sexual abuse of a child.
(o) (n) Attempted first degree murder.
(p) (o) Sex trafficking.
(q) (p) Manufacturing methamphetamine under circumstances that cause physical injury to a minor.
(r) (q) Bestiality as prescribed in section 13‑1411, subsection A, paragraph 2.
(s) (r) Luring a minor for sexual exploitation.
(t) (s) Aggravated luring a minor for sexual exploitation.
(u) (t) Unlawful age misrepresentation.
(v) (u) Unlawful mutilation.
2. "Predicate felony" means any felony involving child abuse pursuant to section 13‑3623, subsection A, paragraph 1, a sexual offense, conduct involving the intentional or knowing infliction of serious physical injury or the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument, or a dangerous crime against children in the first or second degree.
Sec. 6. Section 13-709, Arizona Revised Statutes, is amended to read:
13-709. Offenses committed in school safety zone; sentences; definitions
A. Except as otherwise prescribed in section 13‑3411, a person who is convicted of a felony offense that is committed in a school safety zone is guilty of the same class of felony that the person would otherwise be guilty of if the violation had not occurred within a school safety zone, except that the court may impose a sentence that is one year longer than the minimum, maximum and presumptive sentence for that violation if the person is not a criminal street gang member or up to five years longer than the minimum, maximum and presumptive sentence for that violation if the person is a criminal street gang member. The additional sentence imposed under this subsection is in addition to any other enhanced punishment that may be applicable under section 13-703, section 13‑704, section 13-706, section 13‑708, subsection D or chapter 34 of this title.
B. In addition to any other penalty prescribed by this title, the court may order a person who is subject to subsection A of this section to pay a fine of not less than two thousand dollars and not more than the maximum authorized by chapter 8 of this title.
C. Each school district governing board or its designee, or chief administrative officer in the case of a nonpublic or charter school, may place and maintain permanently affixed signs that are located in a visible manner at the main entrance of each school and that identify the school and its accompanying grounds as a school safety zone. A school may include information regarding the school safety zone boundaries on a sign that identifies the area as a drug free zone and not post separate school safety zone signs.
D. For the purposes of determining the additional sentence pursuant to this section, The trier of fact shall determine and the court shall consider the following factors:
1. Whether children were present during the commission of the offense.
2. If another person was present during the commission of the offense, The age and relationship of the defendant to that person.
3. The time of day that the offense occurred.
4. The presence of any aggravating or mitigating circumstances pursuant to section 13‑701, subsections D and E.
5. If applicable, the extent to which the location of the offense was determined or controlled by an undercover law enforcement agent, whether an undercover law enforcement agent requested any action at the location or whether a confidential informant was involved in the offense.
D. E. For the purposes of this section:
1. "School" means any public or nonpublic kindergarten program, common school or high school.
2. "School safety zone" means any of the following:
(a) The area within three hundred feet of a school or its accompanying grounds.
(b) Any public property within one thousand feet of a school or its accompanying grounds.
(c) (b) Any school bus.
(d) (c) A bus contracted to transport pupils to any school during the time when the contracted vehicle is transporting pupils on behalf of the school.
(e) (d) A school bus stop.
(f) (e) Any bus stop where school children are awaiting, boarding or exiting a bus contracted to transport pupils to any school.
Sec. 7. Section 13-3401, Arizona Revised Statutes, is amended to read:
13-3401. Definitions
In this chapter, unless the context otherwise requires:
1. "Administer" means to apply, inject or facilitate the inhalation or ingestion of a substance to the body of a person.
2. "Amidone" means any substance identified chemically as (4‑4‑diphenyl‑6‑dimethylamine‑heptanone‑3), or any salt of such substance, by whatever trade name designated.
3. "Board" means the Arizona state board of pharmacy.
4. "Cannabis" means the following substances under whatever names they may be designated:
(a) The resin extracted from any part of a plant of the genus cannabis, and every compound, manufacture, salt, derivative, mixture or preparation of such plant, its seeds or its resin. Cannabis does not include oil or cake made from the seeds of such plant, any fiber, compound, manufacture, salt, derivative, mixture or preparation of the mature stalks of such plant except the resin extracted from the stalks or any fiber, oil or cake or the sterilized seed of such plant which that is incapable of germination.
(b) Every compound, manufacture, salt, derivative, mixture or preparation of such resin or tetrahydrocannabinol.
5. "Coca leaves" means cocaine, its optical isomers and any compound, manufacture, salt, derivative, mixture or preparation of coca leaves, except derivatives of coca leaves which that do not contain cocaine, ecgonine or substances from which cocaine or ecgonine may be synthesized or made.
6. "Dangerous drug" means the following by whatever official, common, usual, chemical or trade name designated:
(a) Any material, compound, mixture or preparation that contains any quantity of the following hallucinogenic substances and their salts, isomers, whether optical, positional or geometric, and salts of isomers, unless specifically excepted, whenever the existence of such salts, isomers and salts of isomers is possible within the specific chemical designation:
(i) Alpha-ethyltryptamine.
(ii) Alpha-methyltryptamine.
(iii) (2-aminopropyl) benzofuran (APB).
(iv) (2-aminopropyl)-2, 3-dihydrobenzofuran (APDB).
(v) Aminorex.
(vi) 4-bromo-2, 5-dimethoxyphenethylamine.
(vii) 4‑bromo‑2, 5‑dimethoxyamphetamine.
(viii) Bufotenine.
(ix) [3-(3-carbamoylphenyl)phenyl]N-cyclohexyl carbamate (URB-597).
(x) Diethyltryptamine.
(xi) 2, 5‑dimethoxyamphetamine.
(xii) Dimethyltryptamine.
(xiii) (2-ethylaminopropyl)-benzofuran (EAPB).
(xiv) 5-methoxy-alpha-methyltryptamine.
(xv) 5‑methoxy‑3, 4‑methylenedioxyamphetamine.
(xvi) 4‑methyl‑2, 5‑dimethoxyamphetamine.
(xvii) (2-methylaminopropyl)-benzofuran (MAPB).
(xviii) Ibogaine.
(xix) Lysergic acid amide.
(xx) Lysergic acid diethylamide.
(xxi) Mescaline.
(xxii) 4-methoxyamphetamine.
(xxiii) Methoxymethylenedioxyamphetamine (MMDA).
(xxiv) Methylenedioxyamphetamine (MDA).
(xxv) 3, 4‑methylenedioxymethamphetamine.
(xxvi) 3, 4‑methylenedioxy‑N‑ethylamphetamine.
(xxvii) N‑ethyl‑3‑piperidyl benzilate (JB‑318).
(xxviii) N‑hydroxy‑3, 4‑methylenedioxyamphetamine.
(xxix) N‑methyl‑3‑piperidyl benzilate (JB‑336).
(xxx) N-methyltryptamine mimetic substances that are any substances derived from N-methyltryptamine by any substitution at the nitrogen, any substitution at the indole ring, any substitution at the alpha carbon, any substitution at the beta carbon or any combination of the above. N‑methyltryptamine mimetic substances do not include melatonin (5-methoxy-n-acetyltryptamine). Substances in the N-methyltryptamine generic definition include AcO-DMT, Baeocystine, Bromo-DALT, DiPT, DMT, DPT, HO-DET, HO-DiPT, HO-DMT, HO-DPT, HO-MET, MeO-DALT, MeO-DET, MeO-DiPT, MeO-DMT, MeO-DPT, MeO‑NMT, MET, NMT and Norbufotenin.
(xxxi) N‑(1‑phenylcyclohexyl) ethylamine (PCE).
(xxxii) Nabilone.
(xxxiii) 1‑(1‑phenylcyclohexyl) pyrrolidine (PHP).
(xxxiv) 1‑(1‑(2‑thienyl)‑cyclohexyl) piperidine (TCP).
(xxxv) 1‑(1‑(2‑thienyl)‑cyclohexyl) pyrrolidine.
(xxxvi) Para‑methoxyamphetamine (PMA).
(xxxvii) Psilacetin.
(xxxviii) Psilocybin.
(xxxix) Psilocyn.
(xl) Synhexyl.
(xli) Trifluoromethylphenylpiperazine (TFMPP).
(xlii) Trimethoxyamphetamine (TMA).
(xliii) 1-pentyl-3-(naphthoyl)indole (JWH-018 and isomers).
(xliv) 1-butyl-3-(naphthoyl)indole (JWH-073 and isomers).
(xlv) 1-hexyl-3-(naphthoyl)indole (JWH-019 and isomers).
(xlvi) 1-pentyl-3-(4-chloro naphthoyl)indole (JWH-398 and isomers).
(xlvii) 1-(2-(4-(morpholinyl)ethyl))-3-(naphthoyl)indole (JWH-200 and isomers).
(xlviii) 1-pentyl-3-(methoxyphenylacetyl)indole (JWH-250 and isomers).
(xlix) (2-methyl-1-propyl-1H-indol-3-YL)-1-naphthalenyl-methanone (JWH‑015 and isomers).
(l) (6AR, 10AR)-9-(hydroxymethyl)-6,6-dimethyl-3-(2-methyloctan2-YL)-6a,7,10,10a-tetrahydrobenzo[c]chromen-1-ol) (HU-210).
(li) 5-(1,1-dimethylheptyl)-2-(3-hydroxycyclohexyl)-phenol
(CP 47,497 and isomers).
(lii) 5-(1,1-dimethyloctyl)-2-(3-hydroxycyclohexyl)-phenol
(cannabicyclohexanol, CP-47,497 C8 homologue and isomers).
(b) Any material, compound, mixture or preparation that contains any quantity of cannabimimetic substances and their salts, isomers, whether optical, positional or geometric, and salts of isomers, unless specifically excepted, whenever the existence of such salts, isomers and salts of isomers is possible within the specific chemical designation. For the purposes of this subdivision, "cannabimimetic substances" means any substances within the following structural classes:
(i) 2‑(3-hydroxycyclohexyl)phenol with substitution at the 5‑position of the phenolic ring by alkyl or alkenyl, whether or not substituted on the cyclohexyl ring to any extent. Substances in the 2‑(3‑hydroxycyclohexyl)phenol generic definition include CP‑47,497, CP‑47,497 C8-Homolog, CP‑55,940 and CP‑56,667.
(ii) 3‑(naphthoyl)indole or 3‑(naphthylmethane)indole by substitution at the nitrogen atom of the indole ring, whether or not further substituted on the indole ring to any extent, whether or not substituted on the naphthoyl or naphthyl ring to any extent. Substances in the 3-(naphthoyl)indole generic definition include AM‑678, AM‑2201, JWH‑004, JWH‑007, JWH‑009, JWH‑015, JWH‑016, JWH‑018, JWH‑019, JWH‑020, JWH‑046, JWH‑047, JWH‑048, JWH‑049, JWH‑050, JWH‑070, JWH‑071, JWH‑072, JWH‑073, JWH‑076, JWH‑079, JWH‑080, JWH‑081, JWH‑082, JWH‑094, JWH‑096, JWH‑098, JWH‑116, JWH‑120, JWH‑122, JWH‑148, JWH‑149, JWH‑175, JWH‑180, JWH‑181, JWH‑182, JWH‑184, JWH‑185, JWH‑189, JWH‑192, JWH‑193, JWH‑194, JWH‑195, JWH‑196, JWH‑197, JWH‑199, JWH‑200, JWH‑210, JWH‑211, JWH‑212, JWH‑213, JWH‑234, JWH‑235, JWH‑236, JWH‑239, JWH‑240, JWH‑241, JWH‑242, JWH‑262, JWH‑386, JWH‑387, JWH‑394, JWH‑395, JWH‑397, JWH‑398, JWH‑399, JWH‑400, JWH‑412, JWH‑413, JWH‑414 and JWH‑415.
(iii) 3‑naphthoyl-indazole or 3‑(naphthylmethane)‑indazole by substitution at one or both of the nitrogen atoms of the indazole ring, whether or not further substituted on the indazole ring to any extent, whether or not substituted on the naphthoyl ring to any extent. Substances in the 3‑naphthoyl-indazole or 3‑(naphthylmethane)‑indazole generic definition include THJ2201 and THJ-018.
(iv) 3‑(naphthoyl)pyrrole by substitution at the nitrogen atom of the pyrrole ring, whether or not further substituted in the pyrrole ring to any extent, whether or not substituted on the naphthoyl ring to any extent. Substances in the 3‑(naphthoyl)pyrrole generic definition include JWH‑030, JWH‑145, JWH‑146, JWH‑147, JWH‑150, JWH‑156, JWH‑243, JWH‑244, JWH‑245, JWH‑246, JWH‑292, JWH‑293, JWH‑307, JWH‑308, JWH‑346, JWH‑348, JWH‑363, JWH‑364, JWH‑365, JWH‑367, JWH‑368, JWH‑369, JWH‑370, JWH‑371, JWH‑373 and JWH‑392.
(v) 1‑(naphthylmethylene)indene by substitution of the 3‑position of the indene ring, whether or not further substituted in the indene ring to any extent, whether or not substituted on the naphthyl ring to any extent. Substances in the 1‑(naphthylmethylene)indene generic definition include JWH‑176.
(vi) 3‑(phenylacetyl)indole or 3-(benzoyl)indole by substitution at the nitrogen atom of the indole ring, whether or not further substituted in the indole ring to any extent, whether or not substituted on the phenyl ring to any extent. Substances in the 3‑(phenylacetyl)indole generic definition include AM‑694, AM‑2233, JWH‑167, JWH‑201, JWH‑202, JWH‑203, JWH‑204, JWH‑205, JWH‑206, JWH‑207, JWH‑208, JWH‑209, JWH-‑237, JWH‑248, JWH‑250, JWH‑251, JWH‑253, JWH‑302, JWH‑303, JWH‑304, JWH‑305, JWH‑306, JWH‑311, JWH‑312, JWH‑313, JWH‑314, JWH‑315, JWH‑316, RCS-4, RCS‑8, SR‑18 and SR‑19.
(vii) 3‑(cyclopropylmethanone) indole or 3‑(cyclobutylmethanone) indole or 3‑(cyclopentylmethanone) indole by substitution at the nitrogen atom of the indole ring, whether or not further substituted in the indole ring to any extent, whether or not substituted on the cyclopropyl, cyclobutyl or cyclopentyl rings to any extent. Substances in the 3‑(cyclopropylmethanone) indole generic definition include UR‑144, fluoro‑UR‑144 and XLR‑11.
(viii) 3‑adamantoylindole with substitution at the nitrogen atom of the indole ring, whether or not further substituted on the indole ring to any extent, whether or not substituted on the adamantyl ring to any extent. Substances in the 3-adamantoylindole generic definition include AB‑001.
(ix) N‑(adamantyl)-indole-3-carboxamide with substitution at the nitrogen atom of the indole ring, whether or not further substituted on the indole ring to any extent, whether or not substituted on the adamantyl ring to any extent. Substances in the N‑(adamantyl)‑indole-3-carboxamide generic definition include SDB‑001.
(x) Indole-3-carboxamide oriIndazole-3-carboxamide with substitution at the nitrogen atom of the indole ring or by substitution at one or both of the nitrogen atoms of the indazole ring, whether or not further substituted on the indole ring or the indazole ring to any extent, whether or not substituted on the nitrogen of the carboxamide to any extent. Substances in the indole-3‑carboxamide or indazole‑3‑carboxamide generic definition include AKB‑48, fluoro-AKB‑48, APINACA, AB-PINACA, AB‑FUBINACA, ABICA and ADBICA.
(xi) 8‑Quinolinyl-indole-3‑carboxylate or 8‑quinolinyl‑indazole‑3‑carboxylate by substitution at the nitrogen atom of the indole ring or by substitution at one or both of the nitrogen atoms of the indazole ring, whether or not further substituted in the indole ring or indazole ring to any extent, whether or not substituted on the quinoline ring to any extent. Substances in the 8‑quinolinyl‑indole-3‑carboxylate or the 8‑quinolinyl‑indazole‑3‑carboxylate generic definition include PB‑22, fluoro‑PB‑22, NPB‑22 and fluoro‑NPB-22.
(xii) Naphthalenyl‑indole‑3‑carboxylate or naphthalenyl‑indazole‑3‑carboxylate by substitution at the nitrogen atom of the indole ring or by substitution at one or both of the nitrogen atoms of the indazole ring, whether or not further substituted in the indole or indazole ring to any extent, whether or not substituted on the naphthalenyl ring to any extent. Substances in the naphthalenyl‑indole-3‑carboxylate or naphthalenyl‑indazole‑3‑carboxylate generic definition include NM2201, FDU‑PB‑22, SDB‑005 and fluoro SDB‑005.
(c) Any material, compound, mixture or preparation that contains any quantity of the following substances and their salts, isomers, whether optical, positional or geometric, and salts of isomers having a potential for abuse associated with a stimulant effect on the central nervous system:
(i) Alpha‑pyrrolidinobutiophenone (Alpha‑PBP).
(ii) Alpha‑pyrrolidinopropiophenone (Alpha‑PPP).
(iii) Alpha‑pyrrolidinovalerophenone (Alpha‑PVP).
(iv) Alpha‑pyrrolidinovalerothiophenone (Alpha-PVT).
(v) Aminoindane mimetic substances that are derived from aminoindane by any substitution at the indane ring, replacement of the amino group with another N group or any combination of the above. Substances in the aminoindane generic definition include MDAI, MMAI, IAI and AMMI.
(vi) Amphetamine.
(vii) Benzphetamine.
(viii) Benzylpiperazine (BZP).
(ix) Beta‑keto‑n‑methylbenzodioxolylbutanamine (Butylone).
(x) Beta‑keto‑n‑methylbenzodioxolylpentanamine (Pentylone).
(xi) Butorphanol.
(xii) Cathine ((+)‑norpseudoephedrine).
(xiii) Cathinomimetic substances that are any substances derived from cathinone, (2‑amino‑1‑phenyl‑1‑propanone) by any substitution at the phenyl ring, any substitution at the 3 position, any substitution at the nitrogen atom or any combination of the above substitutions.
(xiv) Cathinone.
(xv) 2‑(4‑Chloro‑2,5‑dimethoxyphenyl)ethanamine (2C‑C).
(xvi) Chlorphentermine.
(xvii) Clortermine.
(xviii) Diethylpropion.
(xix) Dihydro‑5H‑indeno‑(5,6‑d)‑1,3‑dioxol‑6‑amine) (MDAI).
(xx) 2‑(2,5‑Dimethoxy‑4‑ethylphenyl)ethanamine (2C‑E).
(xxi) 2‑(2,5‑Dimethoxy‑4‑methylphenyl)ethanamine (2C‑D).
(xxii) 2‑(2,5‑Dimethoxy‑4‑nitro‑phenyl)ethanamine (2C‑N).
(xxiii) 2‑(2,5-Dimethoxy‑4‑(n)‑propylphenyl)ethanamine (2C‑P).
(xxiv) 2‑(2,5‑Dimethoxyphenyl)ethanamine (2C‑H).
(xxv) Dimethylcathinone (Metamfepramone).
(xxvi) Ethcathinone.
(xxvii) 2‑[4‑(Ethylthio)‑2,5‑dimethoxyphenyl]ethanamine (2C‑T‑2).
(xxviii) Fencamfamin.
(xxix) Fenethylline.
(xxx) Fenproporex.
(xxxi) Fluoroamphetamine.
(xxxii) Fluoromethamphetamine.
(xxxiii) Fluoromethcathinone.
(xxxiv) 2‑(4‑Iodo‑2,5-dimethoxyphenyl)ethanamine (2C‑I).
(xxxv) 2‑[4‑(Isopropylthio)‑2,5‑dimethoxyphenyl]ethanamine(2C‑T‑4).
(xxxvi) Mazindol.
(xxxvii) Mefenorex.
(xxxviii) Methamphetamine.
(xxxix) Methcathinone.
(xl) Methiopropamine.
(xli) Methoxy-alpha-pyrrolidinopropiophenone (MOPPP).
(xlii) Methoxymethcathinone (methedrone).
(xliii) Methoxyphenethylamine mimetic substances that are any substances derived from 2, 5-dimethoxy-phenethylamine by any substitution at the phenyl ring, any substitution at the nitrogen atom, any substitutions at the carbon atoms of the ethylamine, or any combination of the above substitutions.
(xliv) 4‑methylaminorex.
(xlv) Methyl‑a‑pyrrolidinobutiophenone (MPBP).
(xlvi) Methylenedioxy‑alphapyrrolidinopropiophenone (MDPPP).
(xlvii) Methylenedioxyethcathinone (Ethylone).
(xlviii) Methylenedioxymethcathinone (Methylone).
(xlix) Methylenedioxypyrovalerone (MDPV).
(l) Methylmethcathinone (Mephedrone).
(li) Methylphenidate.
(lii) Modafinil.
(liii) Naphthylpyrovalerone (Naphyrone).
(liv) N‑ethylamphetamine.
(lv) N, N‑dimethylamphetamine.
(lvi) Pemoline.
(lvii) Phendimetrazine.
(lviii) Phenmetrazine.
(lix) Phentermine.
(lx) Pipradol.
(lxi) Propylhexedrine.
(lxii) Pyrovalerone.
(lxiii) Sibutramine.
(lxiv) Spa ((-)‑1‑dimethylamino‑1,2‑diphenylethane).
(d) Any material, compound, mixture or preparation that contains any quantity of the following substances having a potential for abuse associated with a depressant effect on the central nervous system:
(i) Any substance which contains any quantity of a derivative of barbituric acid, or any salt of a derivative of barbituric acid, unless specifically excepted.
(ii) Alprazolam.
(iii) Bromazepam.
(iv) Camazepam.
(v) Carisoprodol.
(vi) Chloral betaine.
(vii) Chloral hydrate.
(viii) Chlordiazepoxide.
(ix) Chlorhexadol.
(x) Clobazam.
(xi) Clonazepam.
(xii) Clorazepate.
(xiii) Clotiazepam.
(xiv) Cloxazolam.
(xv) Delorazepam.
(xvi) Diazepam.
(xvii) Dichloralphenazone.
(xviii) Estazolam.
(xix) Ethchlorvynol.
(xx) Ethinamate.
(xxi) Ethyl loflazepate.
(xxii) Etizolam.
(xxiii) Fenfluramine.
(xxiv) Fludiazepam.
(xxv) Flunitrazepam.
(xxvi) Flurazepam.
(xxvii) Gamma hydroxy butyrate.
(xxviii) Glutethimide.
(xxix) Halazepam.
(xxx) Haloxazolam.
(xxxi) Hydroxyphencyclidine (HO-PCP).
(xxxii) Ketamine.
(xxxiii) Ketazolam.
(xxxiv) Loprazolam.
(xxxv) Lorazepam.
(xxxvi) Lormetazepam.
(xxxvii) Lysergic acid.
(xxxviii) Mebutamate.
(xxxix) Mecloqualone.
(xl) Medazepam.
(xli) Meprobamate.
(xlii) Methaqualone.
(xliii) Methohexital.
(xliv) 2‑(methoxyphenyl)‑2‑(ethylamino)cyclohexanone
(Methoxetamine).
(xlv) 2‑(methoxyphenyl)‑2‑(methylamino)cyclohexanone
(Methoxyketamine).
(xlvi) Methoxyphencyclidine(MeO-PCP).
(xlvii) Methyprylon.
(xlviii) Midazolam.
(xlix) Nimetazepam.
(l) Nitrazepam.
(li) Nordiazepam.
(lii) Oxazepam.
(liii) Oxazolam.
(liv) Paraldehyde.
(lv) Petrichloral.
(lvi) Phencyclidine (PCP).
(lvii) Phencyclidine mimetic substances that are any substances derived from phenylcyclohexylpiperidine by any substitution at the phenyl ring, any substitution at the piperidine ring, any substitution at the cyclohexyl ring, any replacement of the phenyl ring or any combination of the above. Substances in the phenylcyclohexylpiperidine generic definition include Amino‑PCP, BCP, Bromo‑PCP, BTCP, Chloro‑PCP, Fluoro‑PCP, HO‑PCP, MeO‑PCP, Methyl‑PCP, Nitro‑PCP, Oxo‑PCP, PCE, PCM, PCPY, TCP and TCPY.
(lviii) Pinazepam.
(lix) Prazepam.
(lx) Scopolamine.
(lxi) Sulfondiethylmethane.
(lxii) Sulfonethylmethane.
(lxiii) Sulfonmethane.
(lxiv) Quazepam.
(lxv) Temazepam.
(lxvi) Tetrazepam.
(lxvii) Tiletamine.
(lxviii) Triazolam.
(lxix) Zaleplon.
(lxx) Zolazepam.
(lxxi) Zolpidem.
(lxxii) Zopiclone.
(e) Any material, compound, mixture or preparation that contains any quantity of the following anabolic steroids and their salts, isomers or esters:
(i) Boldenone.
(ii) Clostebol (4‑chlorotestosterone).
(iii) Dehydrochloromethyltestosterone.
(iv) Drostanolone.
(v) Ethylestrenol.
(vi) Fluoxymesterone.
(vii) Formebulone (formebolone).
(viii) Mesterolone.
(ix) Methandriol.
(x) Methandrostenolone (methandienone).
(xi) Methenolone.
(xii) Methyltestosterone.
(xiii) Mibolerone.
(xiv) Nandrolone.
(xv) Norethandrolon.
(xvi) Oxandrolone.
(xvii) Oxymesterone.
(xviii) Oxymetholone.
(xix) Stanolone (4‑dihydrotestosterone).
(xx) Stanozolol.
(xxi) Testolactone.
(xxii) Testosterone.
(xxiii) Trenbolone.
7. "Deliver" means the actual, constructive or attempted exchange from one person to another, whether or not there is an agency relationship.
8. "Director" means the director of the department of health services.
9. "Dispense" means distribute, leave with, give away, dispose of or deliver.
10. "Drug court program" means a program that is established pursuant to section 13‑3422 by the presiding judge of the superior court in cooperation with the county attorney in a county for the purpose of prosecuting, adjudicating and treating drug dependent persons who meet the criteria and guidelines for entry into the program that are developed and agreed on by the presiding judge and the prosecutor.
11. "Drug dependent person" means a person who is using a substance that is listed in paragraph 6, 19, 20, 21 or 28 of this section and who is in a state of psychological or physical dependence, or both, arising from the use of that substance.
12. "Federal act" has the same meaning prescribed in section 32‑1901.
13. "Isoamidone" means any substance identified chemically as (4‑4‑diphenyl‑5-methyl‑6-dimethylaminohexanone‑3), or any salt of such substance, by whatever trade name designated.
14. "Isonipecaine" means any substance identified chemically as (1‑methyl‑4‑phenyl‑piperidine‑4‑carboxylic acid ethyl ester), or any salt of such substance, by whatever trade name designated.
15. "Ketobemidone" means any substance identified chemically as (4‑(3‑hydroxyphenyl)‑1‑methyl‑4‑piperidylethyl ketone hydrochloride), or any salt of such substance, by whatever trade name designated.
16. "Licensed" or "permitted" means authorized by the laws of this state to do certain things.
17. "Manufacture" means produce, prepare, propagate, compound, mix or process, directly or indirectly, by extraction from substances of natural origin or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis. Manufacture includes any packaging or repackaging or labeling or relabeling of containers. Manufacture does not include any producing, preparing, propagating, compounding, mixing, processing, packaging or labeling done in conformity with applicable state and local laws and rules by a licensed practitioner incident to and in the course of his licensed practice.
18. "Manufacturer" means a person who manufactures a narcotic or dangerous drug or other substance controlled by this chapter.
19. "Marijuana" means all parts of any plant of the genus cannabis, from which the resin has not been extracted, whether growing or not, and the seeds of such plant. Marijuana does not include the mature stalks of such plant or the sterilized seed of such plant which that is incapable of germination.
20. "Narcotic drugs" means the following, whether of natural or synthetic origin and any substance neither chemically nor physically distinguishable from them:
(a) Acetyl‑alpha-methylfentanyl.
(b) Acetylmethadol.
(c) Alfentanil.
(d) Allylprodine.
(e) Alphacetylmethadol.
(f) Alphameprodine.
(g) Alphamethadol.
(h) Alpha‑methylfentanyl.
(i) Alpha‑methylthiofentanyl.
(j) Alphaprodine.
(k) Amidone (methadone).
(l) Anileridine.
(m) Benzethidine.
(n) Benzylfentanyl.
(o) Betacetylmethadol.
(p) Beta‑hydroxyfentanyl.
(q) Beta‑hydroxy‑3‑methylfentanyl.
(r) Betameprodine.
(s) Betamethadol.
(t) Betaprodine.
(u) Bezitramide.
(v) Buprenorphine and its salts.
(w) Cannabis.
(x) Carfentanil.
(y) 4‑chloro‑n‑[‑1‑[2‑(4‑nitrophenyl)ethyl]‑2‑piperidinylidene]benzenesulfonamide (W-18).
(z) 4‑chloro‑n-[1‑(2‑pheylethyl)‑2‑piperidinylidene] benzenesulfonamide (W‑15).
(aa) Clonitazene.
(bb) Coca leaves.
(cc) 1‑cyclohexyl-4-(1,2-diphenylethyl)piperazine (MT‑45).
(dd) Dextromoramide.
(ee) Dextropropoxyphene.
(ff) Diampromide.
(gg) 3,4‑dichloro‑n‑(‑[1‑(dimethylamino)cyclohexyl]methyl)‑benzamide (AH-7921).
(hh) 3,4‑dichloro‑n‑[2‑(dimethylamino)cyclohexyl]‑N‑methylbenzamide (U‑47700).
(ii) Diethylthiambutene.
(jj) Difenoxin.
(kk) Dihydrocodeine.
(ll) Dimenoxadol.
(mm) Dimepheptanol.
(nn) Dimethylthiambutene.
(oo) Dioxaphetyl butyrate.
(pp) Diphenidine (DEP).
(qq) Diphenoxylate.
(rr) Dipipanone.
(ss) Ephenidine.
(tt) Ethylmethylthiambutene.
(uu) Etonitazene.
(vv) Etoxeridine.
(ww) Fentanyl.
(xx) Fentanyl mimetic substances that are any substances derived from fentanyl by any substitution in the phenethyl group, any substitution in the piperidine ring, any substitution in the aniline ring, any replacement of the phenyl portion of the phenethyl group, any replacement of the N-propionyl group or any combination of the above.
(yy) Furethidine.
(zz) Hydroxypethidine.
(aaa) Isoamidone (isomethadone).
(bbb) Isophenidine.
(ccc) Pethidine (meperidine).
(ddd) Ketobemidone.
(eee) Lefetamine.
(fff) Levomethorphan.
(ggg) Levomoramide.
(hhh) Levophenacylmorphan.
(iii) Levorphanol.
(jjj) Metazocine.
(kkk) Methoxphenidine (MXP).
(lll) 3‑methylfentanyl.
(mmm) 1‑methyl‑4‑phenyl‑4‑propionoxypiperidine (MPPP).
(nnn) 3‑methylthiofentanyl.
(ooo) Morpheridine.
(ppp) Noracymethadol.
(qqq) Norlevorphanol.
(rrr) Normethadone.
(sss) Norpipanone.
(ttt) Opium.
(uuu) Para‑fluorofentanyl.
(vvv) Pentazocine.
(www) Phenadoxone.
(xxx) Phenampromide.
(yyy) Phenazocine.
(zzz) 1‑(2‑phenethyl)‑4-phenyl‑4‑acetoxypiperidine (PEPAP).
(aaaa) Phenomorphan.
(bbbb) Phenoperidine.
(cccc) Piminodine.
(dddd) Piritramide.
(eeee) Proheptazine.
(ffff) Properidine.
(gggg) Propiram.
(hhhh) Racemethorphan.
(iiii) Racemoramide.
(jjjj) Racemorphan.
(kkkk) Remifentanil.
(llll) Sufentanil.
(mmmm) Thenylfentanyl.
(nnnn) Thiofentanyl.
(oooo) Tilidine.
(pppp) Tramadol, 2-[(dimethylamino)methyl]-1-(3-methoxyphenyl) cyclohexanol, and its salts, optical and geometric isomers, and its salts of isomers.
(qqqq) Trimeperidine.
21. "Opium" means any compound, manufacture, salt, isomer, salt of isomer, derivative, mixture or preparation of the following, but does not include apomorphine or any of its salts:
(a) Acetorphine.
(b) Acetyldihydrocodeine.
(c) Benzylmorphine.
(d) Codeine.
(e) Codeine methylbromide.
(f) Codeine‑N‑oxide.
(g) Cyprenorphine.
(h) Desomorphine.
(i) Dihydromorphine.
(j) Drotebanol.
(k) Ethylmorphine.
(l) Etorphine.
(m) Heroin.
(n) Hydrocodone.
(o) Hydromorphinol.
(p) Hydromorphone.
(q) Levo-alphacetylmethadol.
(r) Methyldesorphine.
(s) Methyldihydromorphine.
(t) Metopon.
(u) Morphine.
(v) Morphine methylbromide.
(w) Morphine methylsulfonate.
(x) Morphine‑N‑oxide.
(y) Myrophine.
(z) Nalorphine.
(aa) Nicocodeine.
(bb) Nicomorphine.
(cc) Normorphine.
(dd) Oxycodone.
(ee) Oxymorphone.
(ff) Pholcodine.
(gg) Thebacon.
(hh) Thebaine.
22. "Ordinary ephedrine, pseudoephedrine, (-)‑norpseudoephedrine or phenylpropanolamine product" means a product that contains ephedrine, pseudoephedrine, (-)‑norpseudoephedrine or phenylpropanolamine and that is all of the following:
(a) Approved for sale under the federal act.
(b) Labeled, advertised and marketed only for an indication that is approved by the federal food and drug administration.
(c) Either:
(i) A nonliquid that is sold in package sizes of not more than three grams of ephedrine, pseudoephedrine, (-)‑norpseudoephedrine or phenlypropanolamine and that is packaged in blister packs containing not more than two dosage units or, if the use of blister packs is technically infeasible, that is packaged in unit dose packets or pouches.
(ii) A liquid that is sold in package sizes of not more than three grams of ephedrine, pseudoephedrine, (-)‑norpseudoephedrine or phenylpropanolamine.
23. "Peyote" means any part of a plant of the genus lophophora, known as the mescal button.
24. "Pharmacy" means a licensed business where drugs are compounded or dispensed by a licensed pharmacist.
25. "Practitioner" means a person licensed to prescribe and administer drugs.
26. "Precursor chemical I" means any material, compound, mixture or preparation which that contains any quantity of the following substances and their salts, optical isomers or salts of optical isomers:
(a) N‑acetylanthranilic acid.
(b) Anthranilic acid.
(c) Ephedrine.
(d) Ergotamine.
(e) Isosafrole.
(f) Lysergic acid.
(g) Methylamine.
(h) N‑ethylephedrine.
(i) N‑ethylpseudoephedrine.
(j) N‑methylephedrine.
(k) N‑methylpseudoephedrine.
(l) Norephedrine.
(m) (-)‑Norpseudoephedrine.
(n) Phenylacetic acid.
(o) Phenylpropanolamine.
(p) Piperidine.
(q) Pseudoephedrine.
27. "Precursor chemical II" means any material, compound, mixture or preparation which that contains any quantity of the following substances and their salts, optical isomers or salts of optical isomers:
(a) 4‑cyano‑2‑dimethylamino-4, 4‑diphenyl butane.
(b) 4‑cyano-1‑methyl‑4‑phenylpiperidine.
(c) Chlorephedrine.
(d) Chlorpseudoephedrine.
(e) Ethyl‑4‑phenylpiperidine‑4‑carboxylate.
(f) 2‑methyl‑3‑morpholino‑1, 1‑diphenylpropane‑carboxylic acid.
(g) 1‑methyl‑4‑phenylpiperidine‑4‑carboxylic acid.
(h) N‑formyl amphetamine.
(i) N‑formyl methamphetamine.
(j) Phenyl‑2‑propanone.
(k) 1‑piperidinocyclohexane carbonitrile.
(l) 1‑pyrrolidinocyclohexane carbonitrile.
28. "Prescription‑only drug" does not include a dangerous drug or narcotic drug but means:
(a) Any drug which that because of its toxicity or other potentiality for harmful effect, or the method of its use, or the collateral measures necessary to its use, is not generally recognized among experts, qualified by scientific training and experience to evaluate its safety and efficacy, as safe for use except by or under the supervision of a medical practitioner.
(b) Any drug that is limited by an approved new drug application under the federal act or section 32‑1962 to use under the supervision of a medical practitioner.
(c) Every potentially harmful drug, the labeling of which does not bear or contain full and adequate directions for use by the consumer.
(d) Any drug required by the federal act to bear on its label the legend "Caution: Federal law prohibits dispensing without prescription" or "Rx only".
29. "Produce" means grow, plant, cultivate, harvest, dry, process or prepare for sale.
30. "Regulated chemical" means the following substances in bulk form that are not a useful part of an otherwise lawful product:
(a) Acetic anhydride.
(b) Hypophosphorous acid.
(c) Iodine.
(d) Sodium acetate.
(e) Red phosphorus.
(f) Gamma butyrolactone (GBL).
(g) 1, 4‑butanediol.
(h) Butyrolactone.
(i) 1, 2 butanolide.
(j) 2‑oxanalone.
(k) Tetrahydro‑2‑furanone.
(l) Dihydro‑2(3H)‑furanone.
(m) Tetramethylene glycol.
31. "Retailer" means either:
(a) A person other than a practitioner who sells any precursor chemical or regulated chemical to another person for purposes of consumption and not resale, whether or not the person possesses a permit issued pursuant to title 32, chapter 18.
(b) A person other than a manufacturer or wholesaler who purchases, receives or acquires more than twenty-four grams of a precursor chemical.
32. "Sale" or "sell" means an exchange for anything of value or advantage, present or prospective.
33. "Sale for personal use" means the retail sale for a legitimate medical use in a single transaction to an individual customer, to an employer for dispensing to employees from first aid kits or medicine chests or to a school for administration pursuant to section 15‑344.
34. "Scientific purpose" means research, teaching or chemical analysis.
35. "Suspicious transaction" means a transaction to which any of the following applies:
(a) A report is required under the federal act.
(b) The circumstances would lead a reasonable person to believe that any person is attempting to possess a precursor chemical or regulated chemical for the purpose of unlawful manufacture of a dangerous drug or narcotic drug, based on such factors as the amount involved, the method of payment, the method of delivery and any past dealings with any participant.
(c) The transaction involves payment for precursor or regulated chemicals in cash or money orders in a total amount of more than two hundred dollars.
(d) The transaction involves a sale, a transfer or furnishing to a retailer for resale without a prescription of ephedrine, pseudoephedrine, (‑)‑norpseudoephedrine or phenylpropanolamine that is not an ordinary ephedrine, pseudoephedrine, (-)‑norpseudoephedrine or phenylpropanolamine product.
36. "Threshold amount" means a weight, market value or other form of measurement of an unlawful substance as follows:
(a) One gram Ten grams of heroin.
(b) Nine One hundred grams of cocaine, cocaine base or hydrolyzed cocaine.
(c) Seven hundred fifty milligrams of cocaine base or hydrolyzed cocaine.
(c) Five MILLIGRAMS of fentanyl.
(d) Four eight grams or 50 one hundred milliliters of PCP.
(e) Nine Twenty‑eight grams of methamphetamine, including methamphetamine in liquid suspension.
(f) Nine Twenty‑eight grams of amphetamine, including amphetamine in liquid suspension.
(g) One‑half One milliliter of lysergic acid diethylamide, or in the case of blotter dosage units fifty one hundred dosage units.
(h) Two Five pounds of marijuana.
(i) For any combination consisting solely of those unlawful substances listed in subdivisions (a) through (h) of this paragraph, an amount equal to or in excess of the threshold amount, as determined by the application of section 13‑3420.
(j) For any unlawful substance not listed in subdivisions (a) through (h) of this paragraph or any combination involving any unlawful substance not listed in subdivisions (a) through (h) of this paragraph, a value of at least one thousand dollars.
37. "Transfer" means furnish, deliver or give away.
38. "Vapor‑releasing substance containing a toxic substance" means a material which that releases vapors or fumes containing any of the following:
(a) Ketones, including acetone, methyl ethyl ketone, mibk, miak, isophorone and mesityl oxide.
(b) Hydrocarbons, including propane, butane, pentane, hexane, heptane and halogenated hydrocarbons.
(c) Ethylene dichloride.
(d) Pentachlorophenol.
(e) Chloroform.
(f) Methylene chloride.
(g) Trichloroethylene.
(h) Difluoroethane.
(i) Tetrafluoroethane.
(j) Aldehydes, including formaldehyde.
(k) Acetates, including ethyl acetate and butyl acetate.
(l) Aromatics, including benzene, toluene, xylene, ethylbenzene and cumene.
(m) Alcohols, including methyl alcohol, ethyl alcohol, isopropyl alcohol, butyl alcohol and diacetone alcohol.
(n) Ether, including Diethyl ether and petroleum ether.
(o) Nitrous oxide.
(p) Amyl nitrite.
(q) Isobutyl nitrite.
39. "Weight" unless otherwise specified includes the entire weight of any mixture or substance that contains a detectable amount of an unlawful substance. If a mixture or substance contains more than one unlawful substance, the weight of the entire mixture or substance is assigned to the unlawful substance that results in the greater offense. If a mixture or substance contains lysergic acid diethylamide, the offense that results from the unlawful substance shall be based on the greater offense as determined by the entire weight of the mixture or substance or the number of blotter dosage units. For the purposes of this paragraph, "mixture" means any combination of substances from which the unlawful substance cannot be removed without a chemical process.
40. "Wholesaler" means a person who in the usual course of business lawfully supplies narcotic drugs, dangerous drugs, precursor chemicals or regulated chemicals that he himself has not produced or prepared, but not to a person for the purpose of consumption by the person, whether or not the wholesaler has a permit that is issued pursuant to title 32, chapter 18. Wholesaler includes a person who sells, delivers or dispenses a precursor chemical in an amount or under circumstances that would require registration as a distributor of precursor chemicals under the federal act.
Sec. 8. Section 13-3405, Arizona Revised Statutes, is amended to read:
13-3405. Possession, use, production, sale or transportation of marijuana; classification
A. A person shall not knowingly:
1. Possess or use marijuana.
2. Possess marijuana for sale.
3. Produce marijuana.
4. Transport for sale, import into this state or offer to transport for sale or import into this state, sell, transfer or offer to sell or transfer marijuana.
B. A person who violates:
1. Subsection A, paragraph 1 of this section involving an amount of marijuana not possessed for sale having a weight of less than two five pounds is guilty of a class 6 felony 1 misdemeanor.
2. Subsection A, paragraph 1 of this section involving an amount of marijuana not possessed for sale having a weight of at least two five pounds but less than four pounds or more is guilty of a class 5 6 felony.
3. Subsection A, paragraph 1 of this section involving an amount of marijuana not possessed for sale having a weight of four pounds or more is guilty of a class 4 felony.
4. 3. Subsection A, paragraph 2 of this section involving an amount of marijuana having a weight of less than two five pounds is guilty of a class 4 6 felony.
5. 4. Subsection A, paragraph 2 of this section involving an amount of marijuana having a weight of at least two five pounds but not more than four pounds or more is guilty of a class 3 5 felony.
6. Subsection A, paragraph 2 of this section involving an amount of marijuana having a weight of more than four pounds is guilty of a class 2 felony.
7. 5. Subsection A, paragraph 3 of this section involving an amount of marijuana having a weight of less than two five pounds is guilty of a class 5 6 felony.
8. 6. Subsection A, paragraph 3 of this section involving an amount of marijuana having a weight of at least two five pounds but not more than four pounds or more is guilty of a class 4 5 felony.
9. Subsection A, paragraph 3 of this section involving an amount of marijuana having a weight of more than four pounds is guilty of a class 3 felony.
10. 7. Subsection A, paragraph 4 of this section involving an amount of marijuana having a weight of less than two five pounds is guilty of a class 3 4 felony.
11. 8. Subsection A, paragraph 4 of this section involving an amount of marijuana having a weight of two five pounds or more is guilty of a class 2 3 felony.
C. If the aggregate amount of marijuana involved in one offense or all of the offenses that are consolidated for trial equals or exceeds the statutory threshold amount, a person who is sentenced pursuant to subsection B, paragraph 5, 6, 8, 9 or 11 of this section is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis until the person has served the sentence imposed by the court, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted.
D. C. In addition to any other penalty prescribed by this title, the court shall order a person who is convicted of a violation of any provision of this section to pay a fine of not less than seven hundred fifty dollars or three times the value as determined by the court of the marijuana involved in or giving rise to the charge, whichever is greater, and not more than the maximum authorized by chapter 8 of this title. A judge shall not suspend any part or all of the imposition of any fine required by this subsection.
E. D. A person who is convicted of a felony violation of any provision of this section for which probation or release before the expiration of the sentence imposed by the court is authorized is prohibited from using any marijuana, dangerous drug or narcotic drug except as lawfully administered by a practitioner and as a condition of any probation or release shall be required to submit to drug testing administered under the supervision of the probation department of the county or the state department of corrections as appropriate during the duration of the term of probation or before the expiration of the sentence imposed.
F. E. If the aggregate amount of marijuana involved in one offense or all of the offenses that are consolidated for trial is less than the statutory threshold amount, a person who is sentenced pursuant to subsection B, paragraph 4 3, 5 or 7 or 10 and who is granted probation by the court shall be ordered by the court that as a condition of probation the person perform not less than two hundred forty hours of community restitution with an agency or organization providing counseling, rehabilitation or treatment for alcohol or drug abuse, an agency or organization that provides medical treatment to persons who abuse controlled substances, an agency or organization that serves persons who are victims of crime or any other appropriate agency or organization.
G. F. If a person who is sentenced pursuant to subsection B, paragraph 1, or 2 or 3 of this section is granted probation for a felony violation of this section, the court shall order that as a condition of probation the person perform not less than twenty‑four hours of community restitution with an agency or organization providing counseling, rehabilitation or treatment for alcohol or drug abuse, an agency or organization that provides medical treatment to persons who abuse controlled substances, an agency or organization that serves persons who are victims of crime or any other appropriate agency or organization.
H. G. If a person is granted probation for a misdemeanor violation of this section, the court shall order as a condition of probation that the person attend eight hours of instruction on the nature and harmful effects of narcotic drugs, marijuana and other dangerous drugs on the human system, and on the laws related to the control of these substances, or perform twenty‑four hours of community restitution.
H. For the purposes of determining the sentence for a violation of this section, The trier of fact shall determine and the court shall consider the following factors:
1. Whether the offense involved more or less than the statutory amount of marijuana.
2. The defendant's role in committing the offense.
3. the duration of the defendant's participation in the offense.
4. Whether the defendant PROFITED from the offense.
5. If the offense involved more than one defendant, the sentence of any other SIMILARLY situated defendant.
6. The defendant's need for and amenability to drug or mental health treatment or other rehabilitative services.
7. The presence of any aggravating or mitigating circumstances pursuant to section 13‑701, subsections D and E.
8. If applicable, the extent to which the quantity of the marijuana was provided, requested, determined or controlled by an undercover law enforcement agent or whether a confidential informant was involved in the offense.
Sec. 9. Section 13-3407, Arizona Revised Statutes, is amended to read:
13-3407. Possession, use, administration, acquisition, sale, manufacture or transportation of dangerous drugs; classification
A. A person shall not knowingly:
1. Possess or use a dangerous drug.
2. Possess a dangerous drug for sale.
3. Possess equipment or chemicals, or both, for the purpose of manufacturing a dangerous drug.
4. Manufacture a dangerous drug.
5. Administer a dangerous drug to another person.
6. Obtain or procure the administration of a dangerous drug by fraud, deceit, misrepresentation or subterfuge.
7. Transport for sale, import into this state or offer to transport for sale or import into this state, sell, transfer or offer to sell or transfer a dangerous drug.
B. A person who violates:
1. Subsection A, paragraph 1 of this section is guilty of a class 4 6 felony. Unless the drug involved is lysergic acid diethylamide, methamphetamine, amphetamine or phencyclidine or the person was previously convicted of a felony offense or a violation of this section or section 13‑3408, the court on motion of the state, considering the nature and circumstances of the offense, for a person not previously convicted of any felony offense or a violation of this section or section 13‑3408 may enter judgment of conviction for a class 1 misdemeanor and make disposition accordingly or may place the defendant on probation in accordance with chapter 9 of this title and refrain from designating the offense as a felony or misdemeanor until the probation is successfully terminated. The offense shall be treated as a felony for all purposes until the court enters an order designating the offense a misdemeanor.
2. Subsection A, paragraph 2 or 6 of this section is guilty of a class 2 5 felony.
3. Subsection A, paragraph 3 of this section is guilty of a class 3 5 felony, except that if the offense involved methamphetamine, the person is guilty of a class 2 4 felony.
4. Subsection A, paragraph 4, 5 or 7 of this section is guilty of a class 2 4 felony.
5. Subsection A, paragraph 5 of this section is guilty of a class 2 felony.
6. Subsection A, paragraph 6 of this section is guilty of a class 3 felony.
7. Subsection A, paragraph 7 of this section is guilty of a class 2 felony.
C. Except as provided in subsection E of this section, a person who is convicted of a violation of subsection A, paragraph 1, 3 or 6 and who has not previously been convicted of any felony or who has not been sentenced pursuant to section 13‑703, section 13‑704, section 13‑706, subsection A, section 13‑708, subsection D or any other law making the convicted person ineligible for probation is eligible for probation.
D. Except as provided in subsection E of this section, if the aggregate amount of dangerous drugs involved in one offense or all of the offenses that are consolidated for trial equals or exceeds the statutory threshold amount, a person who is convicted of a violation of subsection A, paragraph 2, 5 or 7 of this section is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis until the person has served the sentence imposed by the court, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted.
E. If the person is convicted of a violation of subsection A, paragraph 2, 3, 4 or 7 of this section and the drug involved is methamphetamine, the person shall be sentenced as follows:
Minimum Presumptive Maximum
5 calendar years 10 calendar years 15 calendar years
A person who has previously been convicted of a violation of subsection A, paragraph 2, 3, 4 or 7 of this section involving methamphetamine or section 13‑3407.01 shall be sentenced as follows:
Minimum Presumptive Maximum
10 calendar years 15 calendar years 20 calendar years
F. A person who is convicted of a violation of subsection A, paragraph 4 of this section or subsection A, paragraph 2, 3 or 7 of this section involving methamphetamine is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis until the person has served the sentence imposed by the court, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted.
G. If a person is convicted of a violation of subsection A, paragraph 5 of this section, if the drug is administered without the other person's consent, if the other person is under eighteen years of age and if the drug is flunitrazepam, gamma hydroxy butrate or ketamine hydrochloride, the convicted person is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis until the person has served the sentence imposed by the court, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted.
C. For the purposes of determining the sentence for a violation of this section, The trier of fact shall determine and the court shall consider the following factors:
1. Whether the offense involved more or less than the statutory amount of a dangerous drug.
2. The defendant's role in committing the offense.
3. the duration of the defendant's participation in the offense.
4. Whether the defendant PROFITED from the offense.
5. If the offense involved more than one defendant, the sentence of any other SIMILARLY situated defendant.
6. The defendant's need for and amenability to drug or mental health treatment or other rehabilitative services.
7. The presence of any aggravating or mitigating circumstances pursuant to section 13‑701, subsections D and E.
8. If applicable, the extent to which the quantity of the dangerous drug was provided, requested, determined or controlled by an undercover law enforcement agent or whether a confidential informant was involved in the offense.
H. D. In addition to any other penalty prescribed by this title, the court shall order a person who is convicted of a violation of this section to pay a fine of not less than one thousand dollars or three times the value as determined by the court of the dangerous drugs involved in or giving rise to the charge, whichever is greater, and not more than the maximum authorized by chapter 8 of this title. A judge shall not suspend any part or all of the imposition of any fine required by this subsection.
I. E. A person who is convicted of a violation of this section for which probation or release before the expiration of the sentence imposed by the court is authorized is prohibited from using any marijuana, dangerous drug, narcotic drug or prescription‑only drug except as lawfully administered by a health care practitioner and as a condition of any probation or release shall be required to submit to drug testing administered under the supervision of the probation department of the county or the state department of corrections, as appropriate, during the duration of the term of probation or before the expiration of the sentence imposed.
J. F. If a person who is convicted of a violation of this section is granted probation, the court shall order that as a condition of probation the person perform not less than three hundred sixty hours of community restitution with an agency or organization that provides counseling, rehabilitation or treatment for alcohol or drug abuse, an agency or organization that provides medical treatment to persons who abuse controlled substances, an agency or organization that serves persons who are victims of crime or any other appropriate agency or organization.
K. The presumptive term imposed pursuant to subsection E of this section may be mitigated or aggravated pursuant to section 13‑701, subsections D and E.
Sec. 10. Section 13-3408, Arizona Revised Statutes, is amended to read:
13-3408. Possession, use, administration, acquisition, sale, manufacture or transportation of narcotic drugs; classification
A. A person shall not knowingly:
1. Possess or use a narcotic drug.
2. Possess a narcotic drug for sale.
3. Possess equipment or chemicals, or both, for the purpose of manufacturing a narcotic drug.
4. Manufacture a narcotic drug.
5. Administer a narcotic drug to another person.
6. Obtain or procure the administration of a narcotic drug by fraud, deceit, misrepresentation or subterfuge.
7. Transport for sale, import into this state, offer to transport for sale or import into this state, sell, transfer or offer to sell or transfer a narcotic drug.
B. A person who violates:
1. Subsection A, paragraph 1 of this section is guilty of a class 4 6 felony.
2. Subsection A, paragraph 2, 3 or 6 of this section is guilty of a class 2 5 felony.
3. Subsection A, paragraph 3 of this section is guilty of a class 3 felony.
4. 3. Subsection A, paragraph 4, 5 or 7 of this section is guilty of a class 2 4 felony.
5. Subsection A, paragraph 5 of this section is guilty of a class 2 felony.
6. Subsection A, paragraph 6 of this section is guilty of a class 3 felony.
7. Subsection A, paragraph 7 of this section is guilty of a class 2 felony.
C. A person who is convicted of a violation of subsection A, paragraph 1, 3 or 6 of this section and who has not previously been convicted of any felony or who has not been sentenced pursuant to section 13-703, section 13‑704, subsection A, B, C, D or E, section 13-706, subsection A, section 13‑708, subsection D or any other provision of law making the convicted person ineligible for probation is eligible for probation.
D. If the aggregate amount of narcotic drugs involved in one offense or all of the offenses that are consolidated for trial equals or exceeds the statutory threshold amount, a person who is convicted of a violation of subsection A, paragraph 2, 5 or 7 of this section is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis until the person has served the sentence imposed by the court, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted.
E. A person who is convicted of a violation of subsection A, paragraph 4 of this section is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis until the person has served the sentence imposed by the court, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted.
C. For the purposes of determining the sentence for a violation of this section, The trier of fact shall determine and the court shall consider the following factors:
1. Whether the offense involved more or less than the statutory amount of a narcotic drug.
2. The defendant's role in committing the offense.
3. the duration of the defendant's participation in the offense.
4. Whether the defendant PROFITED from the offense.
5. If the offense involved more than one defendant, the sentence of any other SIMILARLY situated defendant.
6. The defendant's need for and amenability to drug or mental health treatment or other rehabilitative services.
7. The presence of any aggravating or mitigating circumstances pursuant to section 13‑701, subsections D and E.
8. If applicable, the extent to which the quantity of the narcotic drug was provided, requested, determined or controlled by an undercover law enforcement agent or whether a confidential informant was involved in the offense.
F. D. In addition to any other penalty prescribed by this title, the court shall order a person who is convicted of a violation of this section to pay a fine of not less than two thousand dollars or three times the value as determined by the court of the narcotic drugs involved in or giving rise to the charge, whichever is greater, and not more than the maximum authorized by chapter 8 of this title. A judge shall not suspend any part or all of the imposition of any fine required by this subsection.
G. E. A person who is convicted of a violation of this section for which probation or release before the expiration of the sentence imposed by the court is authorized is prohibited from using any marijuana, dangerous drug, narcotic drug or prescription‑only drug except as lawfully administered by a health care practitioner and as a condition of any probation or release shall be required to submit to drug testing administered under the supervision of the probation department of the county or the state department of corrections, as appropriate, during the duration of the term of probation or before the expiration of the sentence imposed.
H. F. If a person who is convicted of a violation of this section is granted probation, the court shall order that as a condition of probation the person perform not less than three hundred sixty hours of community restitution with an agency or organization that provides counseling, rehabilitation or treatment for alcohol or drug abuse, an agency or organization that provides medical treatment to persons who abuse controlled substances, an agency or organization that serves persons who are victims of crime or any other appropriate agency or organization.
Sec. 11. Section 13-3409, Arizona Revised Statutes, is amended to read:
13-3409. Involving or using minors in drug offenses; classification
A. A person shall not knowingly:
1. Hire, employ or use a minor to engage in any conduct, completed or preparatory, that is prohibited by sections 13‑3404, 13‑3404.01, 13‑3405, 13‑3406, 13-3407 and 13‑3408.
2. Sell, transfer or offer to sell or transfer to a minor any substance if its possession is prohibited by sections 13‑3404, 13‑3404.01, 13‑3405, 13‑3407 and 13‑3408.
B. A person who violates this section is guilty of a class 2 felony and is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis until the sentence imposed by the court has been served or commuted, and if the minor is under fifteen years of age it is punishable pursuant to section 13-705, subsection C.
C. In addition to any other penalty prescribed by this title, the court shall order a person who is convicted of a violation of this section to pay a fine of not less than two thousand dollars or three times the value as determined by the court of the substance involved in or giving rise to the charge, whichever is greater, and not more than the maximum authorized by chapter 8 of this title. A judge shall not suspend any part or all of the imposition of any fine required by this subsection.
Sec. 12. Section 13-3411, Arizona Revised Statutes, is amended to read:
13-3411. Possession, use, sale or transfer of marijuana, peyote, prescription drugs, dangerous drugs or narcotic drugs or manufacture of dangerous drugs in a drug free school zone; violation; classification; definitions
A. It is unlawful for a person to do any of the following:
1. Intentionally be present in a drug free school zone to sell or transfer marijuana, peyote, prescription‑only drugs, dangerous drugs or narcotic drugs.
2. Possess or use marijuana, peyote, dangerous drugs or narcotic drugs in a drug free school zone.
3. Manufacture dangerous drugs in a drug free school zone.
B. A person who violates subsection A of this section is guilty of the same class of felony that the person would otherwise be guilty of had the violation not occurred within a drug free school zone, except that the presumptive, minimum and maximum sentence shall be increased by one year. The additional sentence imposed under this subsection is in addition to any enhanced punishment that may be applicable under section 13‑703, section 13‑704, section 13‑708, subsection D or any provision in this chapter. A person is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except pursuant to section 31‑233, subsection A or B until the sentence imposed by the court has been served or commuted.
C. In addition to any other penalty prescribed by this title, the court shall order a person who is convicted of a violation of this section to pay a fine of not less than two thousand dollars or three times the value as determined by the court of the drugs involved in or giving rise to the charge, whichever is greater, and not more than the maximum authorized by chapter 8 of this title. A judge shall not suspend any part or all of the imposition of any fine required by this subsection.
D. Each school district's governing board or its designee, or the chief administrative officer in the case of a nonpublic school, shall place and maintain permanently affixed signs located in a visible manner at the main entrance of each school that identifies the school and its accompanying grounds as a drug free school zone.
E. The drug free school zone map prepared pursuant to title 15 shall constitute an official record as to the location and boundaries of each drug free school zone. The school district's governing board or its designee, or the chief administrative officer in the case of any nonpublic school, shall promptly notify the county attorney of any changes in the location and boundaries of any school property and shall file with the county recorder the original map prepared pursuant to title 15.
F. All school personnel who observe a violation of this section shall immediately report the violation to a school administrator. The administrator shall immediately report the violation to a peace officer. It is unlawful for any school personnel or school administrator to fail to report a violation as prescribed in this section.
G. School personnel having custody or control of school records of a student involved in an alleged violation of this section shall make the records available to a peace officer upon on written request signed by a magistrate. Records disclosed pursuant to this subsection are confidential and may be used only in a judicial or administrative proceeding. A person furnishing records required under this subsection or a person participating in a judicial or administrative proceeding or investigation resulting from the furnishing of records required under this subsection is immune from civil or criminal liability by reason of such action unless the person acted with malice.
H. For the purposes of determining the additional sentence pursuant to this section, The trier of fact shall determine and the court shall consider the following factors:
1. Whether children were present during the commission of the offense.
2. If another person was present during the commission of the offense, The age and relationship of the defendant to that person.
3. The time of day that the offense occurred.
4. The presence of any aggravating or mitigating circumstances pursuant to section 13‑701, subsections D and E.
5. If applicable, the extent to which the location of the offense was determined or controlled by an undercover law enforcement agent, whether an undercover law enforcement agent requested any action at the location or whether a confidential informant was involved in the offense.
H. I. A person who violates subsection F of this section is guilty of a class 3 misdemeanor.
I. J. For the purposes of this section:
1. "Drug free school zone" means the area within three hundred feet of a school or its accompanying grounds, any public property within one thousand feet of a school or its accompanying grounds, a school bus stop or on any school bus or bus contracted to transport pupils to any school.
2. "School" means any public or nonpublic kindergarten program, common school or high school.
Sec. 13. Repeal
Section 13-3419, Arizona Revised Statutes, is repealed.
