Bill Text: AZ HB2402 | 2019 | Fifty-fourth Legislature 1st Regular | Introduced
Bill Title: Drug possession; classification
Spectrum: Moderate Partisan Bill (Democrat 4-1)
Status: (Introduced - Dead) 2019-01-28 - House read second time [HB2402 Detail]
Download: Arizona-2019-HB2402-Introduced.html
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REFERENCE TITLE: drug possession; classification |
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State of Arizona House of Representatives Fifty-fourth Legislature First Regular Session 2019
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HB 2402 |
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Introduced by Representatives Engel: Blanc, Rodriguez, Stringer, Senator Mendez
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AN ACT
amending sections 13‑3403, 13‑3404.01, 13‑3407 and 13‑3408, Arizona Revised Statutes; relating to drug offenses.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 13-3403, Arizona Revised Statutes, is amended to read:
13-3403. Possession and sale of a vapor‑releasing substance containing a toxic substance; regulation of sale; exceptions; classification
A. A person shall not knowingly:
1. Breathe, inhale or drink a vapor‑releasing substance containing a toxic substance.
2. Sell, transfer or offer to sell or transfer a vapor‑releasing substance containing a toxic substance to a person who is under eighteen years of age.
3. Sell, transfer or offer to sell or transfer a vapor‑releasing substance containing a toxic substance if such the person is not, at the time of sale, transfer or offer, employed by or engaged in operating a licensed commercial establishment at a fixed location regularly offering such substance for sale and such the sale, transfer or offer is made in the course of employment or operation.
B. A person making a sale or transfer of a vapor‑releasing glue containing a toxic substance shall:
1. Require identification of the purchaser and shall record:
1. (a) The name of the glue.
2. (b) The date and hour of delivery.
3. (c) The intended use of the glue.
4. (d) The signature and address of the purchaser.
5. (e) The signature of the seller or deliverer.
Such record shall be kept
2. Keep the record prescribed in paragraph 7 of this subsection for three years and be make the record available to board inspectors and peace officers.
C. The operator of a commercial establishment shall keep all vapor‑releasing glue containing a toxic substance in a place that is unavailable to customers without the assistance of the operator or an employee of the establishment.
D. The operator of a commercial establishment selling vapor‑releasing paints and varnishes containing a toxic substance dispensed by the use of any aerosol spray device shall conspicuously display an easily legible sign of not less than eleven by fourteen inches which that states: "Warning: inhalation of vapors can be dangerous".
E. This section is not applicable to the transfer of a vapor‑releasing substance containing a toxic substance from a parent or guardian to his the parent's or guardian's child or ward, or the sale or transfer made for manufacturing or industrial purposes.
F. Subsection A, paragraphs 2 and 3 and subsections B and C of this section do not apply to substances certified by the department of health services as containing an additive that inhibits inhalation or induces sneezing.
G. A person who violates any provision:
1. Subsection A, paragraph 2 or 3 or subsection B, C or D of this section is guilty of a class 5 felony, but the court, having regard to the nature and circumstances of the offense, 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 terminated. The offense shall be treated as a felony for all purposes until such time as the court enters an order designating the offense a misdemeanor.
2. Subsection A, paragraph 1 of this section is guilty of a class 6 felony.
H. For the purposes of subsections A and E of this section, "vapor‑releasing substance containing a toxic substance" means paint or varnish dispensed by the use of aerosol spray, or any glue, that releases vapors or fumes containing acetone, volatile acetates, benzene, butyl alcohol, ethyl alcohol, ethylene dichloride, isopropyl alcohol, methyl alcohol, methyl ethyl ketone, pentachlorophenol, petroleum ether, toluene, volatile ketones, isophorone, chloroform, methylene chloride, mesityl oxide, xylene, cumene, ethylbenzene, trichloroethylene, mibk, miak, mek or diacetone alcohol or isobutyl nitrite.
Sec. 2. Section 13-3404.01, Arizona Revised Statutes, is amended to read:
13-3404.01. Possession or sale of precursor chemicals, regulated chemicals, substances or equipment; exceptions; classification
A. A person shall not do any of the following:
1. Knowingly possess a precursor chemical II.
2. Knowingly possess more than twenty‑four grams of pseudoephedrine, (-)-norpseudoephedrine or phenylpropanolamine without a license or permit issued pursuant to title 32, chapter 18.
3. Knowingly purchase more than three packages, not to exceed nine grams of pseudoephedrine, (‑)‑norpseudoephedrine or phenylpropanolamine without a valid prescription order as defined in section 32‑1901 or a license or permit issued pursuant to title 32, chapter 18.
4. Knowingly possess any ephedrine that is uncombined or that is the sole active ingredient of a product or more than twenty‑four grams of ephedrine that is combined with another active ingredient in any ephedrine product without a license or permit issued pursuant to title 32, chapter 18.
5. Knowingly purchase any ephedrine that is uncombined or is the sole active ingredient of a product or more than three packages, not to exceed nine grams of ephedrine that is combined with another active ingredient in any ephedrine product without a license or permit issued pursuant to title 32, chapter 18.
6. Sell, transfer or otherwise furnish any precursor chemical, regulated chemical or other substance or equipment with knowledge that the recipient will use the precursor chemical, regulated chemical, substance or equipment to unlawfully manufacture a dangerous drug or narcotic drug.
7. As a manufacturer, wholesaler or retailer, knowingly possess any precursor chemical or regulated chemical from which the label, the national drug control number or the manufacturer's lot number has been removed, altered or obliterated, except that a licensed manufacturer may relabel products as permitted under the federal act.
8. Knowingly sell, transfer or otherwise furnish more than nine grams of any precursor chemical without a license or permit issued pursuant to title 32, chapter 18.
9. Sell, transfer or furnish ephedrine, pseudoephedrine, (‑)‑norpseudoephedrine or phenylpropanolamine in a total amount of more than nine grams in a single transaction in this state unless the recipient possesses a valid and current permit issued by the board pursuant to title 32, chapter 18.
10. Sell, transfer or otherwise furnish a precursor chemical in violation of any rule of the board or the department of public safety.
11. As a wholesaler or retailer, purchase or otherwise acquire or receive a precursor chemical from any person who does not possess a valid and current permit issued pursuant to title 32, chapter 18.
12. Knowingly participate in any transaction or series of transactions that is structured by any person with the intent to avoid or circumvent the prohibitions or limits on sales established by this section.
B. A retailer shall not knowingly sell, transfer or otherwise furnish a precursor chemical unless:
1. The transaction occurs in the normal course of business at premises that are permitted pursuant to title 32, chapter 18.
2. The retailer has a valid and current permit that is issued pursuant to title 32, chapter 18 and that is prominently displayed at the premises where the transaction occurs.
C. A retailer shall not sell more than a total of three packages, not to exceed nine grams of ephedrine, pseudoephedrine, (‑)‑norpseudoephedrine or phenylpropanolamine in a single transaction unless the person has a valid prescription order as defined in section 32‑1901.
D. A wholesaler shall not sell, transfer or otherwise furnish a precursor chemical to any person unless:
1. The wholesaler has a valid and current permit issued pursuant to title 32, chapter 18.
2. The recipient has a permit issued pursuant to title 32, chapter 18, is a pharmacy or is a practitioner.
3. The transaction does not involve payment in cash or money orders in an amount of more than one thousand dollars.
E. A manufacturer shall not sell, transfer or otherwise furnish a precursor chemical to any person unless:
1. The recipient is licensed or has a permit issued pursuant to title 32, chapter 18, is a pharmacy or is a practitioner.
2. The transaction does not involve payment in cash or money orders in an amount of more than one thousand dollars.
F. This section does not apply to any of the following:
1. The transfer by a licensee or permittee to a reclamation facility for destruction.
2. The movement from one facility of a licensee or permittee to another facility of the same licensee or permittee without sale.
G. Notwithstanding any other law, a county, city or town shall not enact an ordinance that is more restrictive than the requirements of this section.
H. A violation of subsection A, paragraph 1 or 6 of this section is a class 2 felony. A violation of subsection A, paragraph 2, 3, 4, 5, 7, 9, 11 or 12 of this section is a class 5 felony. A violation of subsection A, paragraph 1, 2, 3, 8 or 10 of this section is a class 6 felony. A violation of subsection B, D or E of this section is a class 5 felony. A violation of subsection C of this section is a class 5 felony, except that if the violation involves less than a total of fifty grams of ephedrine, pseudoephedrine, (‑)‑norpseudoephedrine or phenylpropanolamine, the first violation is a class 2 misdemeanor and the second violation is a class 1 misdemeanor. An enterprise is not criminally accountable for a violation of subsection C of this section unless the conduct constituting the offense is engaged in, authorized, commanded or recklessly tolerated by the directors of the enterprise in any manner or by a high managerial agent acting within the scope of employment.
Sec. 3. 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 of this section is guilty of a class 2 felony.
3. Subsection A, paragraph 3 of this section is guilty of a class 3 felony, except that if the offense involved methamphetamine, the person is guilty of a class 2 felony.
4. Subsection A, paragraph 4 of this section is guilty of a class 2 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.
H. 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 $1,000 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. 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. 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. 4. 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 of this section is guilty of a class 2 felony.
3. Subsection A, paragraph 3 of this section is guilty of a class 3 felony.
4. Subsection A, paragraph 4 of this section is guilty of a class 2 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.
F. 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 $2,000 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. 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. 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.
