STATE OF OKLAHOMA

1st Session of the 53rd Legislature (2011)

SENATE BILL 843	By:	Lerblance

AS INTRODUCED

An Act relating to criminal penalties; eliminating penalty of incarceration for certain persons; providing alternative methods of punishment; amending 63 O.S. 2001, Sections 2-401, as last amended by Section 4, Chapter 283, O.S.L. 2005, 2-402, as last amended by Section 1, Chapter 306, O.S.L. 2009, 2-404, as amended by Section 4, Chapter 396, O.S.L. 2004, and 2-405, as last amended by Section 5, Chapter 396, O.S.L. 2004 (63 O.S. Supp. 2010, Sections 2-401, 2-402, 2-404, and 2-405), which relate to offenses and penalties; deleting requirement of incarceration for first offense of certain crimes; providing reference to certain punishment provision; providing for codification; and providing an effective date.

BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 2-401B of Title 63, unless there is created a duplication in numbering, reads as follows:
Notwithstanding any other provision of law and for convictions on or after the effective date of this act, any person convicted for a nonviolent offense pursuant to the Uniform Controlled Dangerous Substances Act and who has not been convicted of any other offense, excluding traffic violations, shall not be subject to a penalty of incarceration.  Any person meeting the requirements of this section shall be subject to other penalties that may be prescribed by law.  Additional penalties may include, but not be limited to, fines, probation, and community service.  A punishment subject to this section shall contain community service of not less than one hundred fifty (150) hours.
SECTION 2.     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 is 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 the violator shall serve eighty-five percent (85%) of the sentence received prior to becoming eligible for state correctional institution earned credits toward the completion of said the 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 consistent with the provisions of Section 1 of this act 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 terms consistent with Section 1 of this act and by a fine of not less than Fifty Thousand Dollars ($50,000.00) Seventy Thousand Dollars ($70,000.00), which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment.  Any person convicted of a second or subsequent violation of the provisions of this paragraph shall be punished by imprisonment in the custody of the Department of Corrections for not less than twenty (20) years nor more than life and shall be required to serve a minimum of eighty-five percent (85%) 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 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%) 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 3.     AMENDATORY     63 O.S. 2001, Section 2-402, as amended by Section 1, Chapter 306, O.S.L. 2009 (63 O.S. Supp. 2010, Section 2-402), is amended to read as follows:
Section 2-402.  A.  1.  It shall be unlawful for any person knowingly or intentionally to possess a controlled dangerous substance unless such substance was obtained directly, or pursuant to a valid prescription or order from a practitioner, while acting in the course of his or her professional practice, or except as otherwise authorized by this act Section 2-101 et seq. of this title.
2.  It shall be unlawful for any person to purchase any preparation excepted from the provisions of the Uniform Controlled Dangerous Substances Act, Section 2-101 et seq. of this title, pursuant to Section 2-313 of this title in an amount or within a time interval other than that permitted by Section 2-313 of this title.
3.  It shall be unlawful for any person or business to sell, market, advertise or label any product containing ephedrine, its salts, optical isomers, or salts of optical isomers, for the indication of stimulation, mental alertness, weight loss, appetite control, muscle development, energy or other indication which is not approved by the pertinent federal OTC Final Monograph, Tentative Final Monograph, or FDA-approved new drug application or its legal equivalent.  In determining compliance with this requirement, the following factors shall be considered:
a.	the packaging of the product,
b.	the name of the product, and
c.	the distribution and promotion of the product, including verbal representations made at the point of sale.
B.  Any person who violates this section with respect to:
1.  Any Schedule I or II substance, except marihuana or a substance included in subsection D of Section 2-206 of this title, is guilty of a felony punishable by imprisonment for not less than two (2) years nor more than ten (10) years and by a fine not exceeding Five Thousand Dollars ($5,000.00) and consistent with the provisions of Section 1 of this act.  A second or subsequent violation of this section with respect to Schedule I or II substance, except marijuana or a substance included in subsection D of Section 2-206 of this title, is a felony punishable by imprisonment for not less than four (4) years nor more than twenty (20) years and by a fine not exceeding Ten Thousand Dollars ($10,000.00); or
2.  Any Schedule III, IV or V substance, marihuana, a substance included in subsection D of Section 2-206 of this title, or any preparation excepted from the provisions of the Uniform Controlled Dangerous Substances Act is guilty of a misdemeanor punishable by confinement for not more than one (1) year and by a fine not exceeding One Thousand Dollars ($1,000.00) and consistent with the provisions of Section 1 of this act.  A second or subsequent violation of this section with respect to any Schedule III, IV or V substance, marijuana, a substance included in subsection D of Section 2-206 of this title, or any preparation excepted from the provisions of the Uniform Controlled Dangerous Substances Act is a felony punishable by imprisonment for not less than two (2) years nor more than ten (10) years and by a fine not exceeding Five Thousand Dollars ($5,000.00).
C.  Any person who violates any provision of this section by possessing or purchasing a controlled dangerous substance from any person, in or on, or within one thousand (1,000) 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, or in the presence of any child under twelve (12) years of age, shall be guilty of a felony and 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.  In addition, the person 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 and consistent with the provisions of Section 1 of this act; or
2.  For a second or subsequent offense, a term of imprisonment not exceeding three times that authorized by the appropriate provision of this section and the person shall serve a minimum of ninety percent (90%) of the sentence received prior to becoming eligible for state correctional institution earned credits toward the completion of said the sentence, and imposition of a fine not exceeding Ten Thousand Dollars ($10,000.00).
D.  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.
SECTION 4.     AMENDATORY     63 O.S. 2001, Section 2-404, as amended by Section 4, Chapter 396, O.S.L. 2004 (63 O.S. Supp. 2010, Section 2-404), is amended to read as follows:
Section 2-404.  A.  It shall be unlawful for any person:
1.  Who is subject to the requirements of Article III of this act Section 2-301 et seq. of this title to distribute or dispense a controlled dangerous substance in violation of Section 2‑308 of this title;
2.  Who is a registrant to manufacture, distribute, or dispense a controlled dangerous substance not authorized by his or her registration to another registrant or other authorized person;
3.  To omit, remove, alter, or obliterate a symbol required by the Federal Controlled Substances Act or this act Section 2-101 et seq.of this title;
4.  To refuse or fail to make, keep, or furnish any record, notification, order form, statement, invoice, or information required under this act the Uniform Controlled Dangerous Substances Act;
5.  To refuse any entry into any premises or inspection authorized by this act the Uniform Controlled Dangerous Substances Act; or
6.  To keep or maintain any store, shop, warehouse, dwelling house, building, vehicle, boat, aircraft, or any place whatever, which is resorted to by persons using controlled dangerous substances in violation of this act for the purpose of using such substances, or which is used for the keeping or selling of the same in violation of this act the Uniform Controlled Dangerous Substances Act.
B.  Any person who violates this section is punishable by a civil fine of not more than One Thousand Dollars ($1,000.00); provided, that, if the violation is prosecuted by an information or indictment which alleges that the violation was committed knowingly or intentionally, and the trier of fact specifically finds that the violation was committed knowingly or intentionally, such person is guilty of a felony punishable by imprisonment for not more than five (5) years, and a fine of not more than Ten Thousand Dollars ($10,000.00) and such punishment shall be consistent with Section 1 of this act, except that if such person is a corporation it shall be subject to a civil penalty of not more than One Hundred Thousand Dollars ($100,000.00).  The fine provided for in this subsection shall be in addition to other punishments provided by law and shall not be in lieu of other punishment.
C.  Any person convicted of a second or subsequent violation of this section is punishable by a term of imprisonment twice that otherwise authorized and by twice the fine otherwise authorized.  The fine provided for in this subsection shall be in addition to other punishments provided by law and shall not be in lieu of other punishment.
D.  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.
SECTION 5.     AMENDATORY     63 O.S. 2001, Section 2-405, as last amended by Section 5, Chapter 396, O.S.L. 2004 (63 O.S. Supp. 2010, Section 2-405), is amended to read as follows:
Section 2-405.  A.  No person shall use tincture of opium, tincture of opium camphorated, or any derivative thereof, by the hypodermic method, either with or without a medical prescription therefor.
B.  No person shall use drug paraphernalia 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 dangerous substance in violation of the Uniform Controlled Dangerous Substances Act, except those persons holding an unrevoked license in the professions of podiatry, dentistry, medicine, nursing, optometry, osteopathy, veterinary medicine or pharmacy.
C.  No person shall deliver, sell, possess or manufacture drug paraphernalia knowing, or under circumstances where one reasonably should know, that it 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 dangerous substance in violation of the Uniform Controlled Dangerous Substances Act.
D.  Any person eighteen (18) years of age or over who violates subsection C of this section by delivering or selling drug paraphernalia to a person under eighteen (18) years of age shall, upon conviction, be guilty of a felony and punishable by a fine of not more than Two Thousand Dollars ($2,000.00) and such punishment shall be consistent with the provisions of Section 1 of this act.
E.  Any person who violates subsections A, B or C of this section shall, upon conviction, be guilty of a misdemeanor punishable as follows:
1.  For a first offense the person shall be punished by imprisonment in the county jail for not more than one (1) year or by a fine of not more than One Thousand Dollars ($1,000.00), or both such fine and imprisonment and such punishment shall be consistent with the provisions of Section 1 of this act;
2.  For a second offense the person shall be punished by imprisonment in the county jail for not more than one (1) year or by a fine of not more than Five Thousand Dollars ($5,000.00), or both such fine and imprisonment; and
3.  For a third or subsequent offense the person shall be punished by imprisonment in the county jail for not more than one (1) year or by a fine of not more than Ten Thousand Dollars ($10,000.00), or both such fine and imprisonment.
F.  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.
SECTION 6.  This act shall become effective November 1, 2011.

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