STATE OF OKLAHOMA

1st Session of the 53rd Legislature (2011)

SENATE BILL 326	By:	Lerblance

AS INTRODUCED

An Act relating to crimes and punishments; amending 21 O.S. 2001, Section 12.1, which relates to required minimum sentences; modifying mandatory sentence percentage; amending 21 O.S. 2001, Section 13.1, as last amended by Section 117, Chapter 234, O.S.L. 2009 (21 O.S. Supp. 2010, Section 13.1), which relates to required minimum sentence crimes; modifying mandatory sentence percentage; amending 63 O.S. 2001, Sections 2-401, as last amended by Section 4, Chapter 283, O.S.L. 2005 and 2-415, as last amended by Section 5, Chapter 199, O.S.L. 2007 (63 O.S. Supp. 2010, Sections 2-401 and 2-415), which relate to drug offense penalties; modifying mandatory sentence percentage; and providing an effective date.

BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1.     AMENDATORY     21 O.S. 2001, Section 12.1, is amended to read as follows:
Section 12.1.  A person committing a felony offense listed in Section 30 of this act 13.1 of this title on or after March 1, 2000 the effective date of this act, and convicted of the offense shall serve not less than eighty-five percent (85%) sixty-five percent (65%) of the sentence of imprisonment imposed within the Department of Corrections.  Such person shall not be eligible for parole consideration prior to serving eighty-five percent (85%) sixty-five percent (65%) of the sentence imposed and such person shall not be eligible for earned credits or any other type of credits which have the effect of reducing the length of the sentence to less than eighty-five percent (85%) sixty-five percent (65%) of the sentence imposed.
SECTION 2.     AMENDATORY     21 O.S. 2001, Section 13.1, as last amended by Section 117, Chapter 234, O.S.L. 2009 (21 O.S. Supp. 2010, Section 13.1), is amended to read as follows:
Section 13.1  Persons For convictions occurring on or after the effective date of this act, persons convicted of:
1.  First degree murder as defined in Section 701.7 of this title;
2.  Second degree murder as defined by Section 701.8 of this title;
3.  Manslaughter in the first degree as defined by Section 711 of this title;
4.  Poisoning with intent to kill as defined by Section 651 of this title;
5.  Shooting with intent to kill, use of a vehicle to facilitate use of a firearm, crossbow or other weapon, assault, battery, or assault and battery with a deadly weapon or by other means likely to produce death or great bodily harm, as provided for in Section 652 of this title;
6.  Assault with intent to kill as provided for in Section 653 of this title;
7.  Conjoint robbery as defined by Section 800 of this title;
8.  Robbery with a dangerous weapon as defined in Section 801 of this title;
9.  First degree robbery as defined in Section 797 of this title;
10.  First degree rape as provided for in Section 1115 of this title;
11.  First degree arson as defined in Section 1401 of this title;
12.  First degree burglary as provided for in Section 1436 of this title;
13.  Bombing as defined in Section 1767.1 of this title;
14.  Any crime against a child provided for in Section 843.5 of this title;
15.  Forcible sodomy as defined in Section 888 of this title;
16.  Child pornography as defined in Section 1021.2, 1021.3 or 1024.1 of this title;
17.  Child prostitution as defined in Section 1030 of this title;
18.  Lewd molestation of a child as defined in Section 1123 of this title; 
19.  Abuse of a vulnerable adult as defined in Section 10-103 of Title 43A of the Oklahoma Statutes who is a resident of a nursing facility; or
20.  Aggravated trafficking as provided for in subsection C of Section 2-415 of Title 63 of the Oklahoma Statutes,
shall be required to serve not less than eighty-five percent (85%) sixty-five percent (65%) of any sentence of imprisonment imposed by the judicial system prior to becoming eligible for consideration for parole.  Persons convicted of these offenses shall not be eligible for earned credits or any other type of credits which have the effect of reducing the length of the sentence to less than eighty-five percent (85%) sixty-five percent (65%) of the sentence imposed.
SECTION 3.     AMENDATORY     63 O.S. 2001, Section 2-401, as last amended by Section 4, Chapter 283, O.S.L. 2005 (63 O.S. Supp. 2010, Section 2-401), is amended to read as follows:
Section 2-401.  A.  Except as authorized by the Uniform Controlled Dangerous Substances Act it shall be unlawful for any person:
1.  To distribute, dispense, transport with intent to distribute or dispense, possess with intent to manufacture, distribute, or dispense, a controlled dangerous substance or to solicit the use of or use the services of a person less than eighteen (18) years of age to cultivate, distribute or dispense a controlled dangerous substance;
2.  To create, distribute, transport with intent to distribute or dispense, or possess with intent to distribute, a counterfeit controlled dangerous substance; or
3.  To distribute any imitation controlled substance as defined by Section 2-101 of this title, except when authorized by the Food and Drug Administration of the United States Department of Health and Human Services.
B.  Any person who violates the provisions of this section with respect to:
1.  A substance classified in Schedule I or II which is a narcotic drug, lysergic acid diethylamide (LSD), gamma butyrolactone, gamma hydroxyvalerate, gamma valerolactone, 1,4 butanediol, or gamma-hydroxybutyric acid as defined in Sections 2-204 and 2-208 of this title, upon conviction, shall be guilty of a felony and shall be sentenced to a term of imprisonment for not less than five (5) years nor more than life and a fine of not more than One Hundred Thousand Dollars ($100,000.00), which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment.  Any sentence to the custody of the Department of Corrections shall not be subject to statutory provisions for suspended sentences, deferred sentences, or probation except when the conviction is for a first offense;
2.  Any other controlled dangerous substance classified in Schedule I, II, III, or IV, upon conviction, shall be guilty of a felony and shall be sentenced to a term of imprisonment for not less than two (2) years nor more than life and a fine of not more than Twenty Thousand Dollars ($20,000.00), which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment.  Any sentence to the custody of the Department of Corrections shall not be subject to statutory provisions for suspended sentences, deferred sentences, or probation except when the conviction is for a first offense;
3.  A substance classified in Schedule V, upon conviction, shall be guilty of a felony and shall be sentenced to a term of imprisonment for not more than five (5) years and a fine of not more than One Thousand Dollars ($1,000.00), which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment; or
4.  An imitation controlled substance as defined by Section 2-101 of this title, upon conviction, shall be guilty of a misdemeanor and shall be sentenced to a term of imprisonment in the county jail for a period of not more than one (1) year and a fine of not more than One Thousand Dollars ($1,000.00).  A person convicted of a second violation of the provisions of this paragraph shall be guilty of a felony and shall be sentenced to a term of imprisonment for not more than five (5) years and a fine of not more than Five Thousand Dollars ($5,000.00), which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment.
C.  1.  Except when authorized by the Food and Drug Administration of the United States Department of Health and Human Services, it shall be unlawful for any person to manufacture, cultivate, distribute, or possess with intent to distribute a synthetic controlled substance.
2.  Any person convicted of violating the provisions of this paragraph is guilty of a felony and shall be punished by imprisonment in the State Penitentiary for a term not to exceed life and a fine of not more than Twenty-five Thousand Dollars ($25,000.00), which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment.
3.  A second or subsequent conviction for the violation of the provisions of this paragraph is a felony punishable as a habitual offender pursuant to Section 51.1 of Title 21 of the Oklahoma Statutes.
4.  In addition the violator shall be fined an amount not more than One Hundred Thousand Dollars ($100,000.00), which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment.
D.  1.  Any person convicted of a second or subsequent felony violation of the provisions of this section, except for paragraph 4 of subsection B of this section, shall be punished as a habitual offender pursuant to Section 51.1 of Title 21 of the Oklahoma Statutes.
2.  In addition the violator shall be fined twice the fine otherwise authorized, which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment.
3.  Convictions for second or subsequent violations of the provisions of this section shall not be subject to statutory provisions for suspended sentences, deferred sentences, or probation.
E.  Any person who is at least eighteen (18) years of age and who violates the provisions of this section by using or soliciting the use of services of a person less than eighteen (18) years of age to distribute, dispense, transport with intent to distribute or dispense or cultivate a controlled dangerous substance or by distributing a controlled dangerous substance to a person under eighteen (18) years of age is punishable by twice the fine and by twice the imprisonment otherwise authorized.
F.  Any person who violates any provision of this section by transporting with intent to distribute or dispense, distributing or possessing with intent to distribute a controlled dangerous substance to a person, or violation of subsection G of this section, in or on, or within two thousand (2,000) feet of the real property comprising a public or private elementary or secondary school, public vocational school, public or private college or university, or other institution of higher education, recreation center or public park, including state parks and recreation areas, public housing project, or child care facility as defined by Section 402 of Title 10 of the Oklahoma Statutes shall be punished by:
1.  For a first offense, a term of imprisonment, or by the imposition of a fine or by both, not exceeding twice that authorized by the appropriate provision of this section and shall serve a minimum of fifty percent (50%) of the sentence received prior to becoming eligible for state correctional institution earned credits toward the completion of said sentence; or
2.  For a second or subsequent offense, a term of imprisonment as provided for a habitual offender pursuant to Section 51.1 of Title 21 of the Oklahoma Statutes.  In addition, for sentences received on or after the effective date of this act, the violator shall serve eighty-five percent (85%) sixty-five percent (65%) of the sentence received prior to becoming eligible for state correctional institution earned credits toward the completion of said sentence or eligibility for parole.
G.  1.  Except as authorized by the Uniform Controlled Dangerous Substances Act, it shall be unlawful for any person to manufacture or attempt to manufacture any controlled dangerous substance or possess any substance listed in Section 2-322 of this title or any substance containing any detectable amount of pseudoephedrine or its salts, optical isomers or salts of optical isomers, iodine or its salts, optical isomers or salts of optical isomers, hydriodic acid, sodium metal, lithium metal, anhydrous ammonia, phosphorus, or organic solvents with the intent to use that substance to manufacture a controlled dangerous substance.
2.  Any person violating the provisions of this subsection with respect to the unlawful manufacturing or attempting to unlawfully manufacture any controlled dangerous substance, or possessing any substance listed in this subsection or Section 2-322 of this title, upon conviction, is guilty of a felony and shall be punished by imprisonment in the State Penitentiary for not less than seven (7) years nor more than life and by a fine of not less than Fifty Thousand Dollars ($50,000.00), which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment.  The possession of any amount of anhydrous ammonia in an unauthorized container shall be prima facie evidence of intent to use such substance to manufacture a controlled dangerous substance.
3.  Any person violating the provisions of this subsection with respect to the unlawful manufacturing or attempting to unlawfully manufacture any controlled dangerous substance in the following amounts:
a.	one (1) kilogram or more of a mixture or substance containing a detectable amount of heroin,
b.	five (5) kilograms or more of a mixture or substance containing a detectable amount of:
(1)	coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed,
(2)	cocaine, its salts, optical and geometric isomers, and salts of isomers,
(3)	ecgonine, its derivatives, their salts, isomers, and salts of isomers, or
(4)	any compound, mixture, or preparation which contains any quantity of any of the substances referred to in divisions (1) through (3) of this subparagraph,
c.	fifty (50) grams or more of a mixture or substance described in division (2) of subparagraph b of this paragraph which contains cocaine base,
d.	one hundred (100) grams or more of phencyclidine (PCP) or 1 kilogram or more of a mixture or substance containing a detectable amount of phencyclidine (PCP),
e.	ten (10) grams or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD),
f.	four hundred (400) grams or more of a mixture or substance containing a detectable amount of N-phenyl-N-[1-(2-pheylethy)-4-piperidinyl] propanamide or 100 grams or more of a mixture or substance containing a detectable amount of any analogue of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide,
g.	one thousand (1,000) kilograms or more of a mixture or substance containing a detectable amount of marihuana or one thousand (1000) or more marihuana plants regardless of weight, or
h.	fifty (50) grams or more of methamphetamine, its salts, isomers, and salts of its isomers or 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers,
upon conviction, is guilty of aggravated manufacturing a controlled dangerous substance punishable by imprisonment in the State Penitentiary for not less than twenty (20) years nor more than life and by a fine of not less than Fifty Thousand Dollars ($50,000.00), which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment.  Any For convictions received on or after the effective date of this act, any person convicted of a violation of the provisions of this paragraph shall be required to serve a minimum of eighty-five percent (85%) sixty-five percent (65%) of the sentence received prior to becoming eligible for state correctional earned credits towards the completion of the sentence or eligible for parole.
4.  Any sentence to the custody of the Department of Corrections for any violation of paragraph 3 of this subsection shall not be subject to statutory provisions for suspended sentences, deferred sentences, or probation.  A For convictions received on or after the effective date of this act, a person convicted of a second or subsequent violation of the provisions of paragraph 3 of this subsection shall be punished as a habitual offender pursuant to Section 51.1 of Title 21 of the Oklahoma Statutes and shall be required to serve a minimum of eighty-five percent (85%) sixty-five percent (65%) of the sentence received prior to becoming eligible for state correctional earned credits or eligibility for parole.
H.  Any person convicted of any offense described in the Uniform Controlled Dangerous Substances Act may, in addition to the fine imposed, be assessed an amount not to exceed ten percent (10%) of the fine imposed.  Such assessment shall be paid into a revolving fund for enforcement of controlled dangerous substances created pursuant to Section 2-506 of this title.
I.  Any person convicted of any offense described in this section shall, in addition to any fine imposed, pay a special assessment trauma-care fee of One Hundred Dollars ($100.00) to be deposited into the Trauma Care Assistance Revolving Fund created in Section 1-2522 of this title.
J.  For purposes of this section, "public housing project" means any dwelling or accommodations operated as a state or federally subsidized multifamily housing project by any housing authority, nonprofit corporation or municipal developer or housing projects created pursuant to the Oklahoma Housing Authorities Act.
K.  When a person is found guilty of a violation of the provisions of this section, the court shall order, in addition to any other penalty, the defendant to pay a one-hundred-dollar assessment to be deposited in the Drug Abuse Education and Treatment Revolving Fund created in Section 2-503.2 of this title, upon collection.
SECTION 4.     AMENDATORY     63 O.S. 2001, Section 2-415, as last amended by Section 5, Chapter 199, O.S.L. 2007 (63 O.S. Supp. 2010, Section 2-415), is amended to read as follows:
Section 2-415.  A.  The provisions of the Trafficking in Illegal Drugs Act shall apply to persons convicted of violations with respect to the following substances:
1.  Marihuana;
2.  Cocaine or coca leaves;
3.  Heroin;
4.  Amphetamine or methamphetamine;
5.  Lysergic acid diethylamide (LSD);
6.  Phencyclidine (PCP); 
7.  Cocaine base, commonly known as “crack” or “rock”; or
8.  3,4-Methylenedioxy methamphetamine, commonly known as “ecstasy” or MDMA.
B.  Except as otherwise authorized by the Uniform Controlled Dangerous Substances Act, it shall be unlawful for any person to:
1.  Knowingly distribute, manufacture, bring into this state or possess a controlled substance specified in subsection A of this section in the quantities specified in subsection C of this section; 
2.  Possess any controlled substance with the intent to manufacture a controlled substance specified in subsection A of this section in quantities specified in subsection C of this section; or
3.  Use or solicit the use of services of a person less than eighteen (18) years of age to distribute or manufacture a controlled dangerous substance specified in subsection A of this section in quantities specified in subsection C of this section.
Violation of this section shall be known as “trafficking in illegal drugs”.  Separate types of controlled substances described in subsection A of this section when possessed at the same time in violation of any provision of this section shall constitute a separate offense for each substance.
Any person who commits the conduct described in paragraph 1, 2 or 3 of this subsection and represents the quantity of the controlled substance to be an amount described in subsection C of this section shall be punished under the provisions appropriate for the amount of controlled substance represented, regardless of the actual amount.
C.  In the case of a violation of the provisions of subsection B of this section, involving:
1.  Marihuana:
a.	twenty‑five (25) pounds or more of a mixture or substance containing a detectable amount of marihuana, such violation shall be punishable by a fine of not less than Twenty‑five Thousand Dollars ($25,000.00) and not more than One Hundred Thousand Dollars ($100,000.00), or
b.	one thousand (1,000) pounds or more of a mixture or substance containing a detectable amount of marihuana, such violation shall be deemed aggravated trafficking punishable by a fine of not less than One Hundred Thousand Dollars ($100,000.00) and not more than Five Hundred Thousand Dollars ($500,000.00);
2.  Cocaine or coca leaves:
a.	twenty‑eight (28) grams or more of a mixture or substance containing a detectable amount of cocaine or coca leaves, such violation shall be punishable by a fine of not less than Twenty‑five Thousand Dollars ($25,000.00) and not more than One Hundred Thousand Dollars ($100,000.00),
b.	three hundred (300) grams or more of a mixture or substance containing a detectable amount of cocaine or coca leaves, such violation shall be punishable by a fine of not less than One Hundred Thousand Dollars ($100,000.00) and not more than Five Hundred Thousand Dollars ($500,000.00), or
c.	one (1) pound or more of a mixture or substance containing a detectable amount of cocaine or coca leaves, such violation shall be deemed aggravated trafficking punishable by a fine of not less than One Hundred Thousand Dollars ($100,000.00) and not more than Five Hundred Thousand Dollars ($500,000.00);
3.  Heroin:
a.	ten (10) grams or more of a mixture or substance containing a detectable amount of heroin, such violation shall be punishable by a fine of not less than Twenty‑five Thousand Dollars ($25,000.00) and not more than Fifty Thousand Dollars ($50,000.00), or
b.	twenty‑eight (28) grams or more of a mixture or substance containing a detectable amount of heroin, such violation shall be punishable by a fine of not less than Fifty Thousand Dollars ($50,000.00) and not more than Five Hundred Thousand Dollars ($500,000.00);
4.  Amphetamine or methamphetamine:
a.	twenty (20) grams or more of a mixture or substance containing a detectable amount of amphetamine or methamphetamine, such violation shall be punishable by a fine of not less than Twenty‑five Thousand Dollars ($25,000.00) and not more than Two Hundred Thousand Dollars ($200,000.00),
b.	two hundred (200) grams or more of a mixture or substance containing a detectable amount of amphetamine or methamphetamine, such violation shall be punishable by a fine of not less than Fifty Thousand Dollars ($50,000.00) and not more than Five Hundred Thousand Dollars ($500,000.00), or
c.	one (1) pound or more of a mixture or substance containing a detectable amount of amphetamine or methamphetamine, such violation shall be deemed aggravated trafficking punishable by a fine of not less than Fifty Thousand Dollars ($50,000.00) and not more than Five Hundred Thousand Dollars ($500,000.00);
5.  Lysergic acid diethylamide (LSD):
a.	if the quantity involved is not less than fifty (50) dosage units and not more than one thousand (1,000) dosage units, such violation shall be punishable by a fine of not less than Fifty Thousand Dollars ($50,000.00) and not more than One Hundred Thousand Dollars ($100,000.00), or
b.	if the quantity involved is more than one thousand (1,000) dosage units, such violation shall be punishable by a fine of not less than One Hundred Thousand Dollars ($100,000.00) and not more than Two Hundred Fifty Thousand Dollars ($250,000.00);
6.  Phencyclidine (PCP):
a.	one (1) ounce or more of a substance containing a mixture or substance containing a detectable amount of phencyclidine (PCP), such violation shall be punishable by a fine of not less than Twenty Thousand Dollars ($20,000.00) and not more than Fifty Thousand Dollars ($50,000.00), or
b.	eight (8) ounces or more of a substance containing a mixture or substance containing a detectable amount of phencyclidine (PCP), such violation shall be punishable by a fine of not less than Fifty Thousand Dollars ($50,000.00) and not more than Two Hundred Fifty Thousand Dollars ($250,000.00);
7.  Cocaine base:
a.	five (5) grams or more of a mixture or substance described in paragraph 2 of this subsection which contains cocaine base, such violation shall be punishable by a fine of not less than Twenty‑five Thousand Dollars ($25,000.00) and not more than One Hundred Thousand Dollars ($100,000.00), or
b.	fifty (50) grams or more of a mixture or substance described in paragraph 2 of this subsection which contains cocaine base, such violation shall be punishable by a fine of not less than One Hundred Thousand Dollars ($100,000.00) and not more than Five Hundred Thousand Dollars ($500,000.00); and
8.  Methylenedioxy methamphetamine:
a.	thirty (30) tablets or ten (10) grams of a mixture or substance containing a detectable amount of 3,4-Methylenedioxy methamphetamine, such violation shall be punishable by a fine of not less than Twenty-five Thousand Dollars ($25,000.00) and not more than One Hundred Thousand Dollars ($100,000.00), or
b.	one hundred (100) tablets or thirty (30) grams of a mixture or substance containing a detectable amount of 3,4-Methylenedioxy methamphetamine, such violation shall be punishable by a fine of not less than One Hundred Thousand Dollars ($100,000.00) and not more than Five Hundred Thousand Dollars ($500,000.00).
D.  Any person who violates the provisions of this section with respect to a controlled substance specified in subsection A of this section in a quantity specified in subsection C of this section shall, in addition to any fines specified by this section, be punishable by a term of imprisonment as follows:
1.  Not less than twice the term of imprisonment provided for in Section 2‑401 of this title;
2.  If the person has previously been convicted of one violation of this section or has been previously convicted of a felony violation of the Uniform Controlled Dangerous Substances Act arising from separate and distinct transactions, not less than three times the term of imprisonment provided for in Section 2‑401 of this title;
3.  If the person has previously been convicted of two or more violations of this section or any provision of the Uniform Controlled Dangerous Substances Act which constitutes a felony, or a combination of such violations arising out of separate and distinct transactions, life without parole; and
4.  If For convictions received on or after the effective date of this act, if the person is convicted of aggravated trafficking as provided in subparagraph b of paragraph 1 of subsection C of this section, subparagraph c of paragraph 2 of subsection C of this section or subparagraph c of paragraph 4 of subsection C of this section, a mandatory minimum sentence of imprisonment in the custody of the Department of Corrections for a term of fifteen (15) years of which the person shall serve eighty-five percent (85%) sixty-five percent (65%) of such mandatory sentence before being eligible for parole consideration or any earned credits.
The terms of imprisonment specified in this subsection shall not be subject to statutory provisions for suspension, deferral or probation, or state correctional institution earned credits accruing from and after November 1, 1989, except for the achievement earned credits authorized by subsection H of Section 138 of Title 57 of the Oklahoma Statutes.  To qualify for such achievement credits, such inmates must also be in compliance with the standards for Class level 2 behavior, as defined in subsection D of Section 138 of Title 57 of the Oklahoma Statutes.
Persons convicted of violations of this section shall not be eligible for appeal bonds.
E.  Any person convicted of any offense described in this section shall, in addition to any fine imposed, pay a special assessment trauma-care fee of One Hundred Dollars ($100.00) to be deposited into the Trauma Care Assistance Revolving Fund created in Section 1-2530.9 of this title and the assessment pursuant to Section 2-503.2 of this title.

SECTION 5.  This act shall become effective November 1, 2011.

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