Bill Text: MI HB5834 | 2023-2024 | 102nd Legislature | Introduced

Michigan House Bill 5834

Introduced

Bill Title: Crimes: drugs; illicit use of xylazine; prohibit, and provide penalties. Amends secs. 7103, 7105, 7106, 7401, 7403, 7403a, 7451, 7453 & 7455 of 1978 PA 368 (MCL 333.7103 et seq.).

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Introduced) 2024-06-26 - Bill Electronically Reproduced 06/26/2024 [HB5834 Detail]

Download: Michigan-2023-HB5834-Introduced.html

HOUSE BILL NO. 5834

June 25, 2024, Introduced by Reps. Breen and Hope and referred to the Committee on Judiciary.

A bill to amend 1978 PA 368, entitled

"Public health code,"

by amending sections 7103, 7105, 7106, 7401, 7403, 7403a, 7451, 7453, and 7455 (MCL 333.7103, 333.7105, 333.7106, 333.7401, 333.7403, 333.7403a, 333.7451, 333.7453, and 333.7455), section 7103 as amended by 1988 PA 60, section 7105 as amended by 1993 PA 80, section 7106 as amended by 2021 PA 60, section 7401 as amended by 2016 PA 548, section 7403 as amended by 2016 PA 307, section 7403a as added by 2010 PA 354, section 7451 as added by 1988 PA 139, section 7453 as amended by 2024 PA 18, and section 7455 as amended by 2024 PA 19.

the people of the state of michigan enact:

Sec. 7103. (1) "Administer" means the direct application of a controlled substance or xylzaine, whether by injection, inhalation, ingestion, or other means, to the body of a patient or research subject by a practitioner, or in the practitioner's presence by his or her the practitioner's authorized agent, or the patient or research subject at the direction and in the presence of the practitioner.

(2) "Administrator" means the Michigan board of pharmacy or its designated or established authority.

(3) "Agent" means an authorized person who acts on behalf of or at the direction of a manufacturer, distributor, dispenser, or prescriber. It does not include a common or contract carrier, public warehouseman, or employee of the carrier or warehouseman.

Sec. 7105. (1) "Deliver" or "delivery" means the actual, constructive, or attempted transfer from 1 person to another of a controlled substance or xylazine, whether or not there is an agency relationship.

(2) "Disciplinary subcommittee" means the disciplinary subcommittee for the board of pharmacy appointed under section 16216.

(3) "Dispense" means to deliver or issue a controlled substance or xylazine to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering, or compounding necessary to prepare the substance for the delivery or issuance.

(4) "Dispenser" means a practitioner who dispenses.

(5) "Distribute" means to deliver other than by administering or dispensing a controlled substance.

(6) "Distributor" means a person who distributes.

(7) "Drug" means a substance recognized as a drug in the official United States pharmacopoeia, Pharmacopoeia, official homeopathic pharmacopoeia Homoeopathic Pharmacopoeia of the United States, or official national formulary, National Formulary, or any supplement to any of them; a substance intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in human beings or animals; a substance other than food intended to affect the structure or any function of the body of human beings or animals; or, a substance intended for use as a component of any article specified in this subsection. It does not include a device or its components, parts, or accessories.

(8) "Human consumption" means application, injection, inhalation, or ingestion by a human being.

Sec. 7106. (1) "Illicit use" means a use of xylazine that is not licit use of xylazine.

(2) "Immediate precursor" means a substance that the administrator has found to be and by rule designates as being the principal compound commonly used or produced primarily for use and that is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance, the control of which is necessary to prevent, curtail, or limit manufacture.

(3) (2) "Industrial hemp" means that term as defined in section 3 of the Michigan Regulation and Taxation of Marihuana Act, 2018 IL 1, MCL 333.27953.

(4) "Licit use of xylazine" means 1 or more of the following:

(a) Buying, possessing, or administering xylazine hydrochloride in compliance with section 7333.

(b) Dispensing, prescribing, or administering a drug containing xylazine to an animal if the dispensing, prescribing, or administering is approved by the Secretary of the United States Department of Health and Human Services under 21 USC 360b, or is authorized under 21 USC 360b(a)(4).

(c) Manufacturing, distributing, or using xylazine as an active pharmaceutical ingredient to manufacture a drug approved for animal use under 21 USC 360b, or a drug issued an investigational use exemption for animals under 21 USC 360b(j).

(d) Manufacturing, distributing, or using xylazine as a bulk chemical for pharmaceutical compounding by a pharmacist or veterinarian.

(e) Any other use of xylazine approved or authorized under 21 USC 321 to 399i.

(5) (3) "Manufacture" means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance or xylazine, 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. It includes the packaging or repackaging of the substance or labeling or relabeling of its container, except that it does not include either of the following:

(a) The preparation or compounding of a controlled substance or xylazine by an individual for his or her the individual's own use.

(b) The preparation, compounding packaging, or labeling of a controlled substance or xylazine by either of the following:

(i) A practitioner as an incident to the practitioner's administering or dispensing of a the controlled substance or xylazine in the course of his or her the practitioner's professional practice.

(ii) A practitioner, or by the practitioner's authorized agent under his or her the practitioner's supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis, and not for sale.

(6) (4) "Marihuana" means that term as defined in section 3 of the Michigan Regulation and Taxation of Marihuana Act, 2018 IL 1, MCL 333.27953.

Sec. 7401. (1) Except as authorized by this article, a person shall not manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled substance, xylazine for illicit use, a prescription form, or a counterfeit prescription form. A practitioner licensed by the administrator under this article shall not dispense, prescribe, or administer a controlled substance for other than legitimate and professionally recognized therapeutic or scientific purposes or outside the scope of practice of the practitioner, licensee, or applicant. A practitioner licensed by the administrator under this article shall not dispense, prescribe, or administer xylazine for a use other than a licit use of xylazine or outside the scope of practice of the practitioner, licensee, or applicant.

(2) A person who violates this section as to:

(a) A controlled substance classified in schedule 1 or 2 that is a narcotic drug or a drug described in section 7214(a)(iv) and:

(i) Which is in an amount of 1,000 grams or more of any mixture containing that substance is guilty of a felony punishable by imprisonment for life or any term of years or a fine of not more than $1,000,000.00, or both.

(ii) Which is in an amount of 450 grams or more, but less than 1,000 grams, of any mixture containing that substance is guilty of a felony and punishable by imprisonment for not more than 30 years or a fine of not more than $500,000.00, or both.

(iii) Which is in an amount of 50 grams or more, but less than 450 grams, of any mixture containing that substance is guilty of a felony punishable by imprisonment for not more than 20 years or a fine of not more than $250,000.00, or both.

(iv) Which is in an amount less than 50 grams, of any mixture containing that substance is guilty of a felony punishable by imprisonment for not more than 20 years or a fine of not more than $25,000.00, or both.

(b) Either of the following:

(i) A substance described in section 7212(1)(h) or 7214(c)(ii) is guilty of a felony punishable by imprisonment for not more than 20 years or a fine of not more than $25,000.00, or both.

(ii) Any other controlled substance classified in schedule 1, 2, or 3, except marihuana or a substance listed in section 7212(1)(d), is guilty of a felony punishable by imprisonment for not more than 7 years or a fine of not more than $10,000.00, or both.

(c) A substance classified in schedule 4 is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $2,000.00, or both.

(d) Marihuana, a mixture containing marihuana, or a substance listed in section 7212(1)(d) is guilty of a felony punishable as follows:

(i) If the amount is 45 kilograms or more, or 200 plants or more, by imprisonment for not more than 15 years or a fine of not more than $10,000,000.00, or both.

(ii) If the amount is 5 kilograms or more but less than 45 kilograms, or 20 plants or more but fewer than 200 plants, by imprisonment for not more than 7 years or a fine of not more than $500,000.00, or both.

(iii) If the amount is less than 5 kilograms or fewer than 20 plants, by imprisonment for not more than 4 years or a fine of not more than $20,000.00, or both.

(e) A substance classified in schedule 5 is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both.

(f) A prescription form or a counterfeit prescription form is guilty of a felony punishable by imprisonment for not more than 7 years or a fine of not more than $5,000.00, or both.

(g) Xylazine is guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not more than $15,000.00, or both.

(3) A term of imprisonment imposed under subsection (2)(a) may be imposed to run consecutively with any term of imprisonment imposed for the commission of another felony.

(4) If an individual was sentenced to lifetime probation under subsection (2)(a)(iv) as it existed before March 1, 2003 and the individual has served 5 or more years of that probationary period, the probation officer for that individual may recommend to the court that the court discharge the individual from probation. If an individual's probation officer does not recommend discharge as provided in this subsection, with notice to the prosecutor, the individual may petition the court seeking resentencing under the court rules. The court may discharge an individual from probation as provided in this subsection. An individual may file more than 1 motion seeking resentencing under this subsection.

(5) As used in this section, "plant" means a marihuana plant that has produced cotyledons or a cutting of a marihuana plant that has produced cotyledons.

Sec. 7403. (1) A person shall not knowingly or intentionally possess a controlled substance, a controlled substance analogue, or a prescription form unless the controlled substance, controlled substance analogue, or prescription form was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice, or except as otherwise authorized by this article. A person shall not knowingly or intentionally possess xylazine for illicit use.

(2) A person who violates this section as to:

(a) A controlled substance classified in schedule 1 or 2 that is a narcotic drug or a drug described in section 7214(a)(iv), and:

(i) That is in an amount of 1,000 grams or more of any mixture containing that substance is guilty of a felony punishable by imprisonment for life or any term of years or a fine of not more than $1,000,000.00, or both.

(ii) That is in an amount of 450 grams or more, but less than 1,000 grams, of any mixture containing that substance is guilty of a felony punishable by imprisonment for not more than 30 years or a fine of not more than $500,000.00, or both.

(iii) That is in an amount of 50 grams or more, but less than 450 grams, of any mixture containing that substance is guilty of a felony punishable by imprisonment for not more than 20 years or a fine of not more than $250,000.00, or both.

(iv) That is in an amount of 25 grams or more, but less than 50 grams of any mixture containing that substance is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $25,000.00, or both.

(v) That is in an amount less than 25 grams of any mixture containing that substance is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $25,000.00, or both.

(b) Either of the following:

(i) A substance described in section 7212(1)(h) or 7214(c)(ii) is guilty of a felony punishable by imprisonment for not more than 10 years or a fine of not more than $15,000.00, or both.

(ii) A controlled substance classified in schedule 1, 2, 3, or 4, except a controlled substance for which a penalty is prescribed in subparagraph (i) or subdivision (a), (c), or (d), or a controlled substance analogue is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both.

(c) Lysergic acid diethylamide, peyote, mescaline, dimethyltryptamine, psilocyn, psilocybin, or a controlled substance classified in schedule 5 is guilty of a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $2,000.00, or both.

(d) Marihuana or a substance listed in section 7212(1)(d) is guilty of a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $2,000.00, or both.

(e) A prescription form is guilty of a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1,000.00, or both.

(f) Xylazine is guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not more than $15,000.00, or both.

(3) The following individuals are not in violation of this section:

(a) An individual who seeks medical assistance for himself or herself the individual's self or who requires medical assistance and is presented for assistance by another individual if he or she the individual is incapacitated because of a drug overdose or other perceived medical emergency arising from the use of a controlled substance, xylazine, or a controlled substance analogue that he or she the individual possesses or possessed in an amount sufficient only for personal use and the evidence of his or her the individual's violation of this section is obtained as a result of the individual's seeking or being presented for medical assistance.

(b) An individual who in good faith attempts to procure medical assistance for another individual or who accompanies another individual who requires medical assistance for a drug overdose or other perceived medical emergency arising from the use of a controlled substance, xylazine, or a controlled substance analogue that he or she the individual possesses or possessed in an amount sufficient only for personal use and the evidence of his or her the individual's violation of this section is obtained as a result of the individual's attempting to procure medical assistance for another individual or as a result of the individual's accompanying another individual who requires medical assistance to a health facility or agency.

(4) A health facility or agency shall develop a process for notification of the parent or parents, guardian, or custodian of a minor under the age of 18 who is not emancipated under 1968 PA 293, MCL 722.1 to 722.6, and who voluntarily presents himself or herself, the individual's self, or is presented by another individual if he or she the individual is incapacitated, to a health facility or agency for emergency medical treatment as provided in subsection (3). A health facility or agency shall not provide notification to a parent or parents, guardian, or custodian under this subsection for nonemergency treatment without obtaining the minor's consent.

(5) The exemption from prosecution under this section provided in subsection (3) does not prevent the investigation, arrest, charging, or prosecution of an individual for any other violation of the laws of this state or be grounds for suppression of evidence in the prosecution of any other criminal charges.

(6) If an individual was sentenced to lifetime probation under subsection (2)(a)(iv) as it existed before March 1, 2003 and the individual has served 5 or more years of that probationary period, the probation officer for that individual may recommend to the court that the court discharge the individual from probation. If an individual's probation officer does not recommend discharge as provided in this subsection, with notice to the prosecutor, the individual may petition the court seeking resentencing under the court rules. The court may discharge an individual from probation as provided in this subsection. An individual may file more than 1 motion seeking resentencing under this subsection.

(7) As used in this section:

(a) "Drug overdose" means a condition including, but not limited to, extreme physical illness, decreased level of consciousness, respiratory depression, coma, mania, or death, that is the result of consumption or use of a controlled substance, xylazine, or a controlled substance analogue or a substance with which the controlled substance or controlled substance analogue was combined, or that a layperson would reasonably believe to be a drug overdose that requires medical assistance.

(b) "Seeks medical assistance" means reporting a drug overdose or other medical emergency to law enforcement, the 9-1-1 system, a poison control center, or a medical provider, or assisting someone in reporting a drug overdose or other medical emergency.

Sec. 7403a. (1) A person shall not fraudulently obtain or attempt to obtain a controlled substance, xylazine for illicit use, or a prescription for a controlled substance from a health care provider.

(2) The following privileges do not apply to medical records or information released or made available under subsection (1):

(a) The physician-patient privilege created in section 2157 of the revised judicature act of 1961, 1961 PA 236, MCL 600.2157.

(b) The dentist-patient privilege created in section 16648.

(3) To the extent not protected by the immunity conferred by 1964 PA 170, MCL 691.1401 to 691.1419, an individual who in good faith provides access to medical records or information under this section is immune from civil or administrative liability arising from that conduct, unless the conduct was gross negligence or willful and wanton misconduct.

(4) A person who violates this section is guilty of a crime as follows:

(a) Except as provided in subsection (5) and subdivision (b), the person is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $5,000.00, or both.

(b) Except as provided in subsection (5), if the violation involves xylazine, the person is guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not more than $15,000.00, or both.

(5) The court may place a person who has not previously been convicted of violating this section on probation subject to the terms and conditions set forth in section 7411.

(6) The court may order any person convicted of violating this section to undergo screening and assessment by a person or agency designated by the bureau of substance abuse and addiction services, use, gambling, and epidemiology to determine whether the person is likely to benefit from rehabilitative services, including alcohol or drug education and alcohol or drug treatment programs. As part of the sentence imposed under this section, the court may order the person to participate in and successfully complete 1 or more appropriate rehabilitative programs. The person shall pay for the costs of the screening, assessment, and rehabilitative services. Failure to complete a program shall be considered is a violation of the terms of the probation.

(7) This section does not prohibit the person from being charged with, convicted of, or sentenced for any other violation of law arising out of the violation of this section.

(8) As used in this section, "health care provider" means that term as defined in section 9206.

Sec. 7451. As used in sections 7453 to 7461 and section 7521, "drug paraphernalia" means any equipment, product, material, or combination of equipment, products, or materials, which is specifically designed for use in planting; propagating; cultivating; growing; harvesting; manufacturing; compounding; converting; producing; processing; preparing; testing; analyzing; packaging; repackaging; storing; containing; concealing; injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance or xylazine for illicit use; including, but not limited to, all of the following:

(a) An isomerization device specifically designed for use in increasing the potency of any species of plant which plant that is a controlled substance.

(b) Testing equipment specifically designed for use in identifying or in analyzing the strength, effectiveness, or purity of a controlled substance or xylazine.

(d) A diluent or adulterant, including, but not limited to, quinine hydrochloride, mannitol, mannite, dextrose, and lactose, specifically designed for use with a controlled substance or xylazine.

(e) A separation gin or sifter specifically designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, marihuana.

(f) An object specifically designed for use in ingesting, inhaling, or otherwise introducing marihuana, cocaine, hashish, or hashish oil into the human body.

(g) A kit specifically designed for use in planting, propagating, cultivating, growing, or harvesting any species of plant which that is a controlled substance or from which a controlled substance can be derived.

(h) A kit specifically designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances or xylazine.

(i) A device, commonly known as a cocaine kit, that is specifically designed for use in ingesting, inhaling, or otherwise introducing controlled substances into the human body, and which consists of at least a razor blade and a mirror.

(j) A device, commonly known as a bullet, that is specifically designed to deliver a measured amount of controlled substances to the user.

(k) A device, commonly known as a snorter, that is specifically designed to carry a small amount of controlled substances or xylazine to the user's nose.

(l) A device, commonly known as an automotive safe, that is specifically designed to carry and conceal a controlled substance in an automobile, including, but not limited to, a can used for brake fluid, oil, or carburetor cleaner which contains a compartment for carrying and concealing controlled substances or xylazine.

(m) A spoon, with or without a chain attached, that has a small diameter bowl and that is specifically designed for use in ingesting, inhaling, or otherwise introducing controlled substances or xylazine into the human body.

Sec. 7453. (1) Subject to subsection (2), a person shall not sell or offer for sale an object specifically designed for inhaling nitrous oxide for recreational purposes or drug paraphernalia, knowing that the object specifically designed for inhaling nitrous oxide for recreational purposes will be used to inhale nitrous oxide for recreational purposes or that the drug paraphernalia will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance or xylazine.

(2) Before a person is arrested for a violation of subsection (1), the attorney general or a prosecuting attorney shall notify the person in writing, not less than 2 business days before the person is to be arrested, that the person is in possession of specific, defined material that has been determined by the attorney general or prosecuting attorney to be an object specifically designed for inhaling nitrous oxide for recreational purposes or drug paraphernalia. The notice also must request that the person refrain from selling or offering for sale the material and must state that if the person complies with the notice, no arrest will be made for a violation of subsection (1).

(3) If a person complies with a notice sent under subsection (2), the compliance is a complete defense in a prosecution under this section, as long as the compliance continues.

Sec. 7455. (1) Except as provided in subsection (2), a A person who violates section 7453 is guilty of a crime as follows:

(a) If the violation involves xylazine, a felony, punishable by imprisonment for not more than 5 years or a fine of not more than $15,000.00, or both.

(b) Except as provided under subsection (2) and subdivision (a), a misdemeanor, punishable by imprisonment for not more than 90 days, or a fine of not more than $5,000.00, or both.

(2) A person 18 years of age or older who violates section 7453 by selling or offering to sell an object specifically designed for inhaling nitrous oxide for recreational purposes or drug paraphernalia to a person less than 18 years of age is guilty of a misdemeanor, punishable by imprisonment for not more than 1 year, or a fine of not more than $7,500.00, or both.