Bill Text: IA HF296 | 2017-2018 | 87th General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: A bill for an act relating to controlled substances, including by temporarily designating substances as controlled substances, modifying the penalties for imitation controlled substances and certain controlled substances, modifying the controlled substances listed in schedules I, III, and IV, modifying requirements for electronic prescriptions, and providing penalties. (Formerly HSB 61.) Effective 7-1-17.

Spectrum: Committee Bill

Status: (Passed) 2017-05-11 - Signed by Governor. H.J. 1147. [HF296 Detail]

Download: Iowa-2017-HF296-Introduced.html

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House File 296 - Introduced




                                 HOUSE FILE       
                                 BY  COMMITTEE ON PUBLIC
                                     SAFETY

                                 (SUCCESSOR TO HSB 61)

                                      A BILL FOR

  1 An Act relating to controlled substances, including by
  2    temporarily designating substances as controlled substances,
  3    modifying the penalties for imitation controlled substances
  4    and certain controlled substances, modifying the controlled
  5    substances listed in schedules I, III, and IV, and providing
  6    penalties.
  7 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
    TLSB 1759HV (1) 87
    jm/nh

PAG LIN



  1  1                           DIVISION I
  1  2                 TEMPORARY CONTROLLED SUBSTANCES
  1  3    Section 1.  Section 124.201, subsection 4, Code 2017, is
  1  4 amended to read as follows:
  1  5    4.  If any new substance is designated as a controlled
  1  6 substance under federal law and notice of the designation is
  1  7 given to the board, the board shall similarly designate as
  1  8 controlled the new substance under this chapter after the
  1  9 expiration of thirty days from publication in the federal
  1 10 register of a final order designating a new substance as a
  1 11 controlled substance, unless within that thirty=day period
  1 12 the board objects to the new designation. In that case the
  1 13 board shall publish the reasons for objection and afford
  1 14 all interested parties an opportunity to be heard. At
  1 15 the conclusion of the hearing the board shall announce its
  1 16 decision. Upon publication of objection to a new substance
  1 17 being designated as a controlled substance under this chapter
  1 18 by the board, control under this chapter is stayed until the
  1 19 board publishes its decision. If a substance is designated
  1 20 as controlled by the board under this subsection the control
  1 21 shall be considered a temporary and if, within sixty days after
  1 22 the next regular session of the general assembly convenes,
  1 23 the general assembly has not made the corresponding changes
  1 24 in this chapter, the temporary designation of control of
  1 25 the substance by the board shall be nullified amendment to
  1 26 the schedules of controlled substances in this chapter.  If
  1 27 the board so designates a substance as controlled, which
  1 28 is considered a temporary amendment to the schedules of
  1 29 controlled substances in this chapter, and if the general
  1 30 assembly does not amend this chapter to enact the temporary
  1 31 amendment and make the enactment effective within two years
  1 32 from the date the temporary amendment first became effective,
  1 33 the temporary amendment is repealed by operation of law two
  1 34 years from the effective date of the temporary amendment.  A
  1 35 temporary amendment repealed by operation of law is subject to
  2  1 section 4.13 relating to the construction of statutes and the
  2  2 application of a general savings provision.
  2  3                           DIVISION II
  2  4                 IMITATION CONTROLLED SUBSTANCES
  2  5    Sec. 2.  Section 124.101, Code 2017, is amended by adding the
  2  6 following new subsection:
  2  7    NEW SUBSECTION.  15A.  "Imitation controlled substance" means
  2  8 a substance which is not a controlled substance but which by
  2  9 color, shape, size, markings, and other aspects of dosage unit
  2 10 appearance, and packaging or other factors, appears to be or
  2 11 resembles a controlled substance. The board may designate a
  2 12 substance as an imitation controlled substance pursuant to the
  2 13 board's rulemaking authority and in accordance with chapter
  2 14 17A.  "Imitation controlled substance" also means any substance
  2 15 determined to be an imitation controlled substance pursuant to
  2 16 section 124.101B.
  2 17    Sec. 3.  NEW SECTION.  124.101B  Factors indicating an
  2 18 imitation controlled substance.
  2 19    If a substance has not been designated as an imitation
  2 20 controlled substance by the board and if dosage unit appearance
  2 21 alone does not establish that a substance is an imitation
  2 22 controlled substance, the following factors may be considered
  2 23 in determining whether the substance is an imitation controlled
  2 24 substance:
  2 25    1.  The person in control of the substance expressly or
  2 26 impliedly represents that the substance has the effect of a
  2 27 controlled substance.
  2 28    2.  The person in control of the substance expressly
  2 29 or impliedly represents that the substance because of its
  2 30 nature or appearance can be sold or delivered as a controlled
  2 31 substance or as a substitute for a controlled substance.
  2 32    3.  The person in control of the substance either demands or
  2 33 receives money or other property having a value substantially
  2 34 greater than the actual value of the substance as consideration
  2 35 for delivery of the substance.
  3  1    Sec. 4.  Section 124.401, subsection 1, unnumbered paragraph
  3  2 1, Code 2017, is amended to read as follows:
  3  3    Except as authorized by this chapter, it is unlawful for any
  3  4 person to manufacture, deliver, or possess with the intent to
  3  5 manufacture or deliver, a controlled substance, a counterfeit
  3  6 substance, or a simulated controlled substance, or an imitation
  3  7 controlled substance, or to act with, enter into a common
  3  8 scheme or design with, or conspire with one or more other
  3  9 persons to manufacture, deliver, or possess with the intent to
  3 10 manufacture or deliver a controlled substance, a counterfeit
  3 11 substance, or a simulated controlled substance, or an imitation
  3 12 controlled substance.
  3 13    Sec. 5.  Section 124.401, subsection 1, paragraph a,
  3 14 unnumbered paragraph 1, Code 2017, is amended to read as
  3 15 follows:
  3 16    Violation of this subsection, with respect to the following
  3 17 controlled substances, counterfeit substances, or simulated
  3 18 controlled substances, or imitation controlled substances, is a
  3 19 class "B" felony, and notwithstanding section 902.9, subsection
  3 20 1, paragraph "b", shall be punished by confinement for no
  3 21 more than fifty years and a fine of not more than one million
  3 22 dollars:
  3 23    Sec. 6.  Section 124.401, subsection 1, paragraph b,
  3 24 unnumbered paragraph 1, Code 2017, is amended to read as
  3 25 follows:
  3 26    Violation of this subsection with respect to the following
  3 27 controlled substances, counterfeit substances, or simulated
  3 28 controlled substances, or imitation controlled substances is a
  3 29 class "B" felony, and in addition to the provisions of section
  3 30 902.9, subsection 1, paragraph "b", shall be punished by a
  3 31 fine of not less than five thousand dollars nor more than one
  3 32 hundred thousand dollars:
  3 33    Sec. 7.  Section 124.401, subsection 1, paragraph c,
  3 34 unnumbered paragraph 1, Code 2017, is amended to read as
  3 35 follows:
  4  1 Violation of this subsection with respect to the following
  4  2 controlled substances, counterfeit substances, or simulated
  4  3 controlled substances, or imitation controlled substances is a
  4  4 class "C" felony, and in addition to the provisions of section
  4  5 902.9, subsection 1, paragraph "d", shall be punished by a
  4  6 fine of not less than one thousand dollars nor more than fifty
  4  7 thousand dollars:
  4  8    Sec. 8.  Section 124.401, subsection 1, paragraph c,
  4  9 subparagraph (8), Code 2017, is amended to read as follows:
  4 10    (8)  Any other controlled substance, counterfeit substance,
  4 11 or simulated controlled substance, or imitation controlled
  4 12 substance classified in schedule I, II, or III, except as
  4 13 provided in paragraph "d".
  4 14    Sec. 9.  Section 124.401, subsection 2, Code 2017, is amended
  4 15 to read as follows:
  4 16    2.  If the same person commits two or more acts which are in
  4 17 violation of subsection 1 and the acts occur in approximately
  4 18 the same location or time period so that the acts can be
  4 19 attributed to a single scheme, plan, or conspiracy, the acts
  4 20 may be considered a single violation and the weight of the
  4 21 controlled substances, counterfeit substances, or simulated
  4 22 controlled substances, or imitation controlled substances
  4 23  involved may be combined for purposes of charging the offender.
  4 24    Sec. 10.  Section 124.401, subsection 5, unnumbered
  4 25 paragraph 1, Code 2017, is amended to read as follows:
  4 26    It is unlawful for any person knowingly or intentionally
  4 27 to possess a controlled substance unless such substance was
  4 28 obtained directly from, or pursuant to, a valid prescription
  4 29 or order of a practitioner while acting in the course of the
  4 30 practitioner's professional practice, or except as otherwise
  4 31 authorized by this chapter. Any person who violates this
  4 32 subsection is guilty of a serious misdemeanor for a first
  4 33 offense. A person who commits a violation of this subsection
  4 34 and who has previously been convicted of violating this chapter
  4 35 or chapter 124A, 124B, or 453B, or chapter 124A as it existed
  5  1 prior to July 1, 2017, is guilty of an aggravated misdemeanor.
  5  2 A person who commits a violation of this subsection and has
  5  3 previously been convicted two or more times of violating this
  5  4 chapter or chapter 124A, 124B, or 453B, or chapter 124A as it
  5  5 existed prior to July 1, 2017, is guilty of a class "D" felony.
  5  6    Sec. 11.  Section 124.401A, Code 2017, is amended to read as
  5  7 follows:
  5  8    124.401A  Enhanced penalty for manufacture or distribution to
  5  9 persons on certain real property.
  5 10    In addition to any other penalties provided in this chapter,
  5 11 a person who is eighteen years of age or older who unlawfully
  5 12 manufactures with intent to distribute, distributes, or
  5 13 possesses with intent to distribute a substance or counterfeit
  5 14 substance listed in schedule I, II, or III, or a simulated or
  5 15 imitation controlled substance represented to be a controlled
  5 16 substance classified in schedule I, II, or III, to another
  5 17 person who is eighteen years of age or older in or on, or within
  5 18 one thousand feet of the real property comprising a public or
  5 19 private elementary or secondary school, public park, public
  5 20 swimming pool, public recreation center, or on a marked school
  5 21 bus, may be sentenced up to an additional term of confinement
  5 22 of five years.
  5 23    Sec. 12.  Section 124.401B, Code 2017, is amended to read as
  5 24 follows:
  5 25    124.401B  Possession of controlled substances on certain real
  5 26 property ==== additional penalty.
  5 27    In addition to any other penalties provided in this chapter
  5 28 or another chapter, a person who unlawfully possesses a
  5 29 substance listed in schedule I, II, or III, or a simulated or
  5 30 imitation controlled substance represented to be a controlled
  5 31 substance classified in schedule I, II, or III, in or on, or
  5 32 within one thousand feet of the real property comprising a
  5 33 public or private elementary or secondary school, public park,
  5 34 public swimming pool, public recreation center, or on a marked
  5 35 school bus, may be sentenced to one hundred hours of community
  6  1 service work for a public agency or a nonprofit charitable
  6  2 organization. The court shall provide the offender with a
  6  3 written statement of the terms and monitoring provisions of the
  6  4 community service.
  6  5    Sec. 13.  Section 124.406, subsection 2, Code 2017, is
  6  6 amended to read as follows:
  6  7    2.  A person who is eighteen years of age or older who:
  6  8    a.  Unlawfully distributes or possesses with the intent to
  6  9 distribute a counterfeit substance listed in schedule I or II,
  6 10 or a simulated or imitation controlled substance represented
  6 11 to be a substance classified in schedule I or II, to a person
  6 12 under eighteen years of age commits a class "B" felony.
  6 13 However, if the substance was distributed in or on, or within
  6 14 one thousand feet of, the real property comprising a public or
  6 15 private elementary or secondary school, public park, public
  6 16 swimming pool, public recreation center, or on a marked school
  6 17 bus, the person shall serve a minimum term of confinement of
  6 18 ten years.
  6 19    b.  Unlawfully distributes or possesses with intent to
  6 20 distribute a counterfeit substance listed in schedule III, or
  6 21 a simulated or imitation controlled substance represented to
  6 22 be any substance listed in schedule III, to a person under
  6 23 eighteen years of age who is at least three years younger than
  6 24 the violator commits a class "C" felony.
  6 25    c.  Unlawfully distributes a counterfeit substance listed
  6 26 in schedule IV or V, or a simulated or imitation controlled
  6 27 substance represented to be a substance listed in schedule IV
  6 28 or V, to a person under eighteen years of age who is at least
  6 29 three years younger than the violator commits an aggravated
  6 30 misdemeanor.
  6 31    Sec. 14.  Section 124.415, Code 2017, is amended to read as
  6 32 follows:
  6 33    124.415  Parental and school notification ==== persons under
  6 34 eighteen years of age.
  6 35    A peace officer shall make a reasonable effort to identify a
  7  1 person under the age of eighteen discovered to be in possession
  7  2 of a controlled substance, counterfeit substance, or simulated
  7  3 controlled substance, or imitation controlled substance in
  7  4 violation of this chapter, and if the person is not referred
  7  5 to juvenile court, the law enforcement agency of which the
  7  6 peace officer is an employee shall make a reasonable attempt
  7  7 to notify the person's custodial parent or legal guardian
  7  8 of such possession, whether or not the person is arrested,
  7  9 unless the officer has reasonable grounds to believe that such
  7 10 notification is not in the best interests of the person or will
  7 11 endanger that person. If the person is taken into custody,
  7 12 the peace officer shall notify a juvenile court officer who
  7 13 shall make a reasonable effort to identify the elementary or
  7 14 secondary school the person attends, if any, and to notify the
  7 15 superintendent of the school district, the superintendent's
  7 16 designee, or the authorities in charge of the nonpublic school
  7 17 of the taking into custody. A reasonable attempt to notify
  7 18 the person includes but is not limited to a telephone call or
  7 19 notice by first=class mail.
  7 20    Sec. 15.  NEW SECTION.  124.417  Imitation controlled
  7 21 substances ==== exceptions.
  7 22    It is not unlawful under this chapter for a person registered
  7 23 under section 124.302, to manufacture, deliver, or possess with
  7 24 the intent to manufacture or deliver, or to act with, one or
  7 25 more other persons to manufacture, deliver, or possess with
  7 26 the intent to manufacture or deliver an imitation controlled
  7 27 substance for use as a placebo by a registered practitioner in
  7 28 the course of professional practice or research.
  7 29    Sec. 16.  Section 124.502, subsection 1, paragraph a, Code
  7 30 2017, is amended to read as follows:
  7 31    a.  A district judge or district associate judge, within
  7 32 the court's jurisdiction, and upon proper oath or affirmation
  7 33 showing probable cause, may issue warrants for the purpose of
  7 34 conducting administrative inspections under this chapter or
  7 35 a related rule or under chapter 124A.  The warrant may also
  8  1 permit seizures of property appropriate to the inspections.
  8  2 For purposes of the issuance of administrative inspection
  8  3 warrants, probable cause exists upon showing a valid public
  8  4 interest in the effective enforcement of the statute or related
  8  5 rules, sufficient to justify administrative inspection of the
  8  6 area, premises, building, or conveyance in the circumstances
  8  7 specified in the application for the warrant.
  8  8    Sec. 17.  Section 155A.6, subsection 3, Code 2017, is amended
  8  9 to read as follows:
  8 10    3.  The board shall establish standards for
  8 11 pharmacist=intern registration and may deny, suspend,
  8 12 or revoke a pharmacist=intern registration for failure to meet
  8 13 the standards or for any violation of the laws of this state,
  8 14 another state, or the United States relating to prescription
  8 15 drugs, controlled substances, or nonprescription drugs, or for
  8 16 any violation of this chapter or chapter 124, 124A, 124B, 126,
  8 17 147, or 205, or any rule of the board.
  8 18    Sec. 18.  Section 155A.6A, subsection 5, Code 2017, is
  8 19 amended to read as follows:
  8 20    5.  The board may deny, suspend, or revoke the registration
  8 21 of, or otherwise discipline, a registered pharmacy technician
  8 22 for any violation of the laws of this state, another state, or
  8 23 the United States relating to prescription drugs, controlled
  8 24 substances, or nonprescription drugs, or for any violation of
  8 25 this chapter or chapter 124, 124A, 124B, 126, 147, 205, or
  8 26 272C, or any rule of the board.
  8 27    Sec. 19.  Section 155A.6B, subsection 5, Code 2017, is
  8 28 amended to read as follows:
  8 29    5.  The board may deny, suspend, or revoke the registration
  8 30 of a pharmacy support person or otherwise discipline the
  8 31 pharmacy support person for any violation of the laws of
  8 32 this state, another state, or the United States relating to
  8 33 prescription drugs, controlled substances, or nonprescription
  8 34 drugs, or for any violation of this chapter or chapter 124,
  8 35 124A, 124B, 126, 147, 205, or 272C, or any rule of the board.
  9  1    Sec. 20.  Section 155A.13A, subsection 5, paragraph d, Code
  9  2 2017, is amended to read as follows:
  9  3    d.  Any violation of this chapter or chapter 124, 124A, 124B,
  9  4 126, or 205, or rule of the board.
  9  5    Sec. 21.  Section 155A.17, subsection 2, Code 2017, is
  9  6 amended to read as follows:
  9  7    2.  The board shall establish standards for drug wholesaler
  9  8 licensure and may define specific types of wholesaler licenses.
  9  9 The board may deny, suspend, or revoke a drug wholesale license
  9 10 for failure to meet the applicable standards or for a violation
  9 11 of the laws of this state, another state, or the United
  9 12 States relating to prescription drugs, devices, or controlled
  9 13 substances, or for a violation of this chapter, chapter 124,
  9 14 124A, 124B, 126, or 205, or a rule of the board.
  9 15    Sec. 22.  Section 155A.42, subsection 4, Code 2017, is
  9 16 amended to read as follows:
  9 17    4.  The board may deny, suspend, or revoke a limited drug and
  9 18 device distributor's license for failure to meet the applicable
  9 19 standards or for a violation of the laws of this state, another
  9 20 state, or the United States relating to prescription drugs or
  9 21 controlled substances, or for a violation of this chapter,
  9 22 chapter 124, 124A, 124B, 126, 205, or 272C, or a rule of the
  9 23 board.
  9 24    Sec. 23.  REPEAL.  Chapter 124A, Code 2017, is repealed.
  9 25                          DIVISION III
  9 26               CONTROLLED SUBSTANCES == PENALTIES
  9 27    Sec. 24.  Section 124.401, subsection 1, paragraph a, Code
  9 28 2017, is amended by adding the following new subparagraph:
  9 29    NEW SUBPARAGRAPH.  (8)  More than ten kilograms of a
  9 30 mixture or substance containing any detectable amount of those
  9 31 substances identified in section 124.204, subsection 9.
  9 32    Sec. 25.  Section 124.401, subsection 1, paragraph b, Code
  9 33 2017, is amended by adding the following new subparagraph:
  9 34    NEW SUBPARAGRAPH.  (9)  More than five kilograms but not
  9 35 more than ten kilograms of a mixture or substance containing
 10  1 any detectable amount of those substances identified in section
 10  2 124.204, subsection 9.
 10  3    Sec. 26.  Section 124.401, subsection 1, paragraph c, Code
 10  4 2017, is amended by adding the following new subparagraph:
 10  5    NEW SUBPARAGRAPH.  (7A)  Five kilograms or less of a
 10  6 mixture or substance containing any detectable amount of those
 10  7 substances identified in section 124.204, subsection 9.
 10  8    Sec. 27.  Section 124.401, subsection 1, paragraph d, Code
 10  9 2017, is amended to read as follows:
 10 10    d.  Violation of this subsection, with respect to any other
 10 11 controlled substances, counterfeit substances, or simulated
 10 12 controlled substances classified in section 124.204, subsection
 10 13 4, paragraph "ai", or section 124.204, subsection 6, paragraph
 10 14 "i", or, or imitation controlled substances classified in
 10 15 schedule IV or V is an aggravated misdemeanor. However,
 10 16 violation of this subsection involving fifty kilograms or less
 10 17 of marijuana or involving flunitrazepam is a class "D" felony.
 10 18                           EXPLANATION
 10 19 The inclusion of this explanation does not constitute agreement with
 10 20 the explanation's substance by the members of the general assembly.
 10 21    This bill relates to controlled substances, including by
 10 22 modifying procedures relating to the temporary designation
 10 23 of substances as controlled substances, and modifying the
 10 24 penalties for imitation controlled substances and certain
 10 25 controlled substances.
 10 26    TEMPORARY CONTROLLED SUBSTANCE DESIGNATION.  Under current
 10 27 law and in the bill, the board of pharmacy may designate a new
 10 28 substance as a controlled substance, by administrative rule,
 10 29 without legislation amending Code chapter 124, only if the
 10 30 substance is designated as a controlled substance under federal
 10 31 law.
 10 32    If the board of pharmacy designates a substance as
 10 33 controlled, the bill specifies that the temporary designation
 10 34 is considered a temporary amendment to the schedules of
 10 35 controlled substances in Code chapter 124, and if the general
 11  1 assembly does not amend Code chapter 124 to enact the  temporary
 11  2 amendment and make the enactment effective within two years
 11  3 from the date the temporary amendment first became effective,
 11  4 the temporary amendment is repealed by operation of law two
 11  5 years from the effective date of the temporary amendment.  A
 11  6 temporary amendment repealed by operation of law is subject to
 11  7 Code section 4.13 relating to the construction of statutes and
 11  8 the application of a general savings provision.
 11  9    Current law provides that if within 60 days after the next
 11 10 general assembly convenes the general assembly has not made
 11 11 the corresponding changes in Code chapter 124, the temporary
 11 12 designation of a substance as a controlled substance is
 11 13 nullified.
 11 14    IMITATION CONTROLLED SUBSTANCES.  Under current law,
 11 15 imitation controlled substances are regulated under Code
 11 16 chapter 124A.  The bill repeals Code chapter 124A and transfers
 11 17 the regulation of imitation controlled substances to Code
 11 18 chapter 124.  The definition and designation of an imitation
 11 19 controlled substance in Code chapter 124 remains identical
 11 20 to the definition and designation of an imitation controlled
 11 21 substance under current law in Code chapter 124A.
 11 22    Under the bill and in current law, an imitation controlled
 11 23 substance means a substance which is not a controlled substance
 11 24 but by color, shape, size, markings, and other aspects of
 11 25 dosage unit appearance, and packaging or other factors, appears
 11 26 to be or resembles a controlled substance. The board of
 11 27 pharmacy may designate a substance as an imitation controlled
 11 28 substance pursuant to the board's rulemaking authority and in
 11 29 accordance with Code chapter 17A.
 11 30    In addition, under current law and in the bill, if a
 11 31 substance has not been designated as an imitation controlled
 11 32 substance by the board of pharmacy and when dosage unit
 11 33 appearance alone does not establish that a substance is an
 11 34 imitation controlled substance, the following factors may
 11 35 be considered in determining whether the substance is an
 12  1 imitation controlled substance: the substance is represented
 12  2 as having the effect of a controlled substance; the substance
 12  3 is represented as a controlled substance or as a substitute for
 12  4 a controlled substance because of its nature or appearance;
 12  5 or a person receives money or other property having a value
 12  6 substantially greater than the actual value of the substance
 12  7 when sold.
 12  8    Under the bill, if a person unlawfully manufactures,
 12  9 delivers, or possesses with the intent to deliver an imitation
 12 10 controlled substance containing any detectable amount of those
 12 11 substances identified in Code section 124.204(9), or unlawfully
 12 12 acts with, enters into a common scheme or design with, or
 12 13 conspires with one or more persons to manufacture, deliver,
 12 14 or possess such imitation controlled substances, the person
 12 15 commits the following offense: a class "B" felony punishable
 12 16 by confinement of no more than 50 years and a fine of not more
 12 17 than $1 million if the imitation controlled substance is more
 12 18 than 10 kilograms; a class "B" felony punishable by confinement
 12 19 of no more than 25 years and a fine of not less than $5,000 but
 12 20 not more than $100,000 if the imitation controlled substance
 12 21 is more than five kilograms but not more than 10 kilograms; a
 12 22 class "C" felony punishable by a fine of not less than $1,000
 12 23 but not more than $50,000 if the imitation controlled substance
 12 24 is five kilograms or less; or an aggravated misdemeanor if the
 12 25 imitation controlled substance is classified in schedule IV or
 12 26 V; or a serious misdemeanor for a first possession offense,
 12 27 an aggravated misdemeanor for a second possession offense,
 12 28 or a class "D" felony for two or more previous possession
 12 29 offenses. Current law in Code section 124A.4 provides that if
 12 30 a person unlawfully manufactures, delivers, or possesses with
 12 31 intent to deliver an imitation controlled substance, the person
 12 32 commits an aggravated misdemeanor, or if the person delivers
 12 33 to a person under 18 years of age who is at least three years
 12 34 younger than the violator, the person commits a class "D"
 12 35 felony.  In addition, under current law, if a person unlawfully
 13  1 and knowingly publishes an advertisement or distributes in a
 13  2 public place a promotion for an imitation controlled substance
 13  3 the person commits a serious misdemeanor.
 13  4    The bill provides that if the same person commits two or
 13  5 more acts which are in violation of Code section 124.401(1)
 13  6 and the acts occur in the same location or time period so the
 13  7 acts are attributable to a single scheme, the acts may be
 13  8 considered a single violation and the weights of the imitation
 13  9 controlled substance may be combined for purposes of charging
 13 10 the offender.
 13 11    The amendment to Code section 124.401A provides that
 13 12 a person who is 18 years of age or older who unlawfully
 13 13 manufactures with the intent to distribute, distributes,
 13 14 or possesses with the intent to distribute an imitation
 13 15 controlled substance to another person 18 years of age or older
 13 16 within 1,000 feet of the real property comprising a public or
 13 17 nonpublic school, may be sentenced up to an additional term of
 13 18 confinement of five years in addition to any other penalty.
 13 19    The amendment to Code section 124.401B provides that
 13 20 a person who unlawfully possesses an imitation controlled
 13 21 substance within 1,000 feet of the real property comprising a
 13 22 school, public park, public pool, public recreation center, or
 13 23 marked school bus may be sentenced up to 100 hours of community
 13 24 service.
 13 25    The amendments to Code section 124.406 relate to the
 13 26 distribution or possession with the intent to distribute an
 13 27 imitation controlled substance to a person under 18 years of
 13 28 age.  A person who distributes or possesses with the intent to
 13 29 distribute an imitation controlled substance, represented to
 13 30 be a substance listed in schedule I or schedule II, to a person
 13 31 under 18 years of age commits a class "B" felony. The required
 13 32 penalty for such a violation is a minimum term of confinement
 13 33 of 10 years if the substance was distributed within 1,000
 13 34 feet of the real property comprising a public or nonpublic
 13 35 school, public park, public pool, or public recreation center.
 14  1 A person who distributes or possesses with the intent to
 14  2 distribute an imitation controlled substance, represented to be
 14  3 a substance listed in schedule III, to a person under 18 years
 14  4 of age, who is at least three years younger than the violator,
 14  5 commits a class "C" felony.  A person who distributes or
 14  6 possesses with the intent to distribute an imitation controlled
 14  7 substance, represented to be a substance listed in schedule
 14  8 IV or schedule V, to a person under 18 years of age, who is
 14  9 at least three years younger than the violator, commits an
 14 10 aggravated misdemeanor.
 14 11    The amendment to Code section 124.415 requires that a peace
 14 12 officer make a reasonable effort to identify a person under 18
 14 13 years of age discovered to be in possession of an imitation
 14 14 controlled substance, and if the person is not referred to
 14 15 juvenile court, the peace officer shall make a reasonable
 14 16 effort to notify the person's custodial parent of the
 14 17 possession unless the officer has reasonable grounds to believe
 14 18 such notification is not in the best interests of the person.
 14 19 The bill specifies that if the person is taken into custody
 14 20 the juvenile court officer shall make a reasonable effort to
 14 21 identify the school of attendance and to notify the school or
 14 22 nonpublic school of the taking into custody of the person.
 14 23    The bill creates Code section 124.417, which is similar to
 14 24 Code section 124A.5 repealed by the bill.  A person registered
 14 25 under Code section 124.302 does not violate the bill if the
 14 26 person manufactures, delivers, possesses, or possesses with the
 14 27 intent to manufacture or deliver, or acts with others to do
 14 28 such activities, if the person uses the imitation controlled
 14 29 substance for use as a placebo by a registered practitioner in
 14 30 the court of professional practice or research.
 14 31    CONTROLLED SUBSTANCES == PENALTIES.  The bill enhances the
 14 32 criminal penalties for controlled substances classified in Code
 14 33 sections 124.204(4)(ai) and 124.204(6)(i) from an aggravated
 14 34 misdemeanor to a class "C" felony punishable pursuant to Code
 14 35 section 124.401(1)(c)(8).  This change equalizes the criminal
 15  1 penalties with violations involving other schedule I controlled
 15  2 substances.
 15  3    The bill enhances the criminal penalties for a schedule I
 15  4 controlled substance identified in Code section 124.204(9).
 15  5 Under the bill, a person commits a class "B" felony punishable
 15  6 by confinement for no more than 50 years and a fine of not more
 15  7 than $1 million for a violation of Code section 124.401(1)(a)
 15  8 involving more than 10 kilograms of a mixture or substance
 15  9 containing any detectable amount of those substances identified
 15 10 in Code section 124.204(9).  A person commits a class "B"
 15 11 felony punishable by confinement for no more than 25 years and
 15 12 a fine of not less than $5,000 but not more than $100,000 for
 15 13 a violation of Code section 124.401(1)(b) involving more than
 15 14 five kilograms but not more than 10 kilograms of a mixture or
 15 15 substance containing any detectable amount of those substances
 15 16 identified in Code section 124.204(9).  A person commits a
 15 17 class "C" felony punishable by confinement for no more than
 15 18 10 years and a fine of not less than $1,000 but not more than
 15 19 $50,000 for a violation of Code section 124.401(1)(c) involving
 15 20 five kilograms or less of a mixture or substance containing
 15 21 any detectable amount of those substances identified in Code
 15 22 section 124.204(9).  Currently, all violations involving a
 15 23 schedule I controlled substance identified in Code section
 15 24 124.204(9) are punishable under Code section 124.401(1)(c)(8)
 15 25 as a class "C" felony by confinement for no more than 10 years
 15 26 and a fine of at least $1,000 but not more than $10,000,
 15 27 regardless of the amount of the controlled substance involved.
 15 28    A person who illegally possesses a controlled substance
 15 29 commits a criminal violation which ranges in punishment from a
 15 30 serious misdemeanor to a class "D" felony under Code section
 15 31 124.401(5).
       LSB 1759HV (1) 87
       jm/nh