HF 296 (LSB 1759HV (1) 87)

HOUSE FILE 296

BY  COMMITTEE ON PUBLIC SAFETY

(SUCCESSOR TO HSB 61)

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, and providing penalties.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

DIVISION I
TEMPORARY CONTROLLED SUBSTANCES

    Section 1.  Section 124.201, subsection 4, Code 2017, is amended to read as follows:
   4.  If any new substance is designated as a controlled substance under federal law and notice of the designation is given to the board, the board shall similarly designate as controlled the new substance under this chapter after the expiration of thirty days from publication in the federal register of a final order designating a new substance as a controlled substance, unless within that thirty-day period the board objects to the new designation. In that case the board shall publish the reasons for objection and afford all interested parties an opportunity to be heard. At the conclusion of the hearing the board shall announce its decision. Upon publication of objection to a new substance being designated as a controlled substance under this chapter by the board, control under this chapter is stayed until the board publishes its decision. If a substance is designated as controlled by the board under this subsection the control shall be considered a temporary and if, within sixty days after the next regular session of the general assembly convenes, the general assembly has not made the corresponding changes in this chapter, the temporary designation of control of the substance by the board shall be nullified amendment to the schedules of controlled substances in this chapter.  If the board so designates a substance as controlled, which is considered a temporary amendment to the schedules of controlled substances in this chapter, and if the general assembly does not amend this chapter to enact the temporary amendment and make the enactment effective within two years from the date the temporary amendment first became effective, the temporary amendment is repealed by operation of law two years from the effective date of the temporary amendment. A temporary amendment repealed by operation of law is subject to section 4.13 relating to the construction of statutes and the application of a general savings provision.
DIVISION II
IMITATION CONTROLLED SUBSTANCES

    Sec. 2.  Section 124.101, Code 2017, is amended by adding the following new subsection:
   NEW SUBSECTION.  15A.  “Imitation controlled substance” means a substance which is not a controlled substance but which by color, shape, size, markings, and other aspects of dosage unit appearance, and packaging or other factors, appears to be or resembles a controlled substance. The board may designate a substance as an imitation controlled substance pursuant to the board’s rulemaking authority and in accordance with chapter 17A. “Imitation controlled substance” also means any substance determined to be an imitation controlled substance pursuant to section 124.101B.
    Sec. 3.  NEW SECTION.  124.101B  Factors indicating an imitation controlled substance.
   If a substance has not been designated as an imitation controlled substance by the board and if dosage unit appearance alone does not establish that a substance is an imitation controlled substance, the following factors may be considered in determining whether the substance is an imitation controlled substance:
   1.  The person in control of the substance expressly or impliedly represents that the substance has the effect of a controlled substance.
   2.  The person in control of the substance expressly or impliedly represents that the substance because of its nature or appearance can be sold or delivered as a controlled substance or as a substitute for a controlled substance.
   3.  The person in control of the substance either demands or receives money or other property having a value substantially greater than the actual value of the substance as consideration for delivery of the substance.
    Sec. 4.  Section 124.401, subsection 1, unnumbered paragraph 1, Code 2017, is amended to read as follows:
   Except as authorized by this chapter, it is unlawful for any person to manufacture, deliver, or possess with the intent to manufacture or deliver, a controlled substance, a counterfeit substance, or a simulated controlled substance, or an imitation controlled substance, or to act with, enter into a common scheme or design with, or conspire with one or more other persons to manufacture, deliver, or possess with the intent to manufacture or deliver a controlled substance, a counterfeit substance, or a simulated controlled substance, or an imitation controlled substance.
    Sec. 5.  Section 124.401, subsection 1, paragraph a, unnumbered paragraph 1, Code 2017, is amended to read as follows:
   Violation of this subsection, with respect to the following controlled substances, counterfeit substances, or simulated controlled substances, or imitation controlled substances, is a class “B” felony, and notwithstanding section 902.9, subsection 1, paragraph “b”, shall be punished by confinement for no more than fifty years and a fine of not more than one million dollars:
    Sec. 6.  Section 124.401, subsection 1, paragraph b, unnumbered paragraph 1, Code 2017, is amended to read as follows:
   Violation of this subsection with respect to the following controlled substances, counterfeit substances, or simulated controlled substances, or imitation controlled substances is a class “B” felony, and in addition to the provisions of section 902.9, subsection 1, paragraph “b”, shall be punished by a fine of not less than five thousand dollars nor more than one hundred thousand dollars:
    Sec. 7.  Section 124.401, subsection 1, paragraph c, unnumbered paragraph 1, Code 2017, is amended to read as follows:
   Violation of this subsection with respect to the following controlled substances, counterfeit substances, or simulated controlled substances, or imitation controlled substances is a class “C” felony, and in addition to the provisions of section 902.9, subsection 1, paragraph “d”, shall be punished by a fine of not less than one thousand dollars nor more than fifty thousand dollars:
    Sec. 8.  Section 124.401, subsection 1, paragraph c, subparagraph (8), Code 2017, is amended to read as follows:
   (8)  Any other controlled substance, counterfeit substance, or simulated controlled substance, or imitation controlled substance classified in schedule I, II, or III, except as provided in paragraph “d”.
    Sec. 9.  Section 124.401, subsection 2, Code 2017, is amended to read as follows:
   2.  If the same person commits two or more acts which are in violation of subsection 1 and the acts occur in approximately the same location or time period so that the acts can be attributed to a single scheme, plan, or conspiracy, the acts may be considered a single violation and the weight of the controlled substances, counterfeit substances, or simulated controlled substances, or imitation controlled substances involved may be combined for purposes of charging the offender.
    Sec. 10.  Section 124.401, subsection 5, unnumbered paragraph 1, Code 2017, is amended to read as follows:
   It is unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance 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 chapter. Any person who violates this subsection is guilty of a serious misdemeanor for a first offense. A person who commits a violation of this subsection and who has previously been convicted of violating this chapter or chapter 124A, 124B, or 453B, or chapter 124A as it existed prior to July 1, 2017, is guilty of an aggravated misdemeanor. A person who commits a violation of this subsection and has previously been convicted two or more times of violating this chapter or chapter 124A, 124B, or 453B, or chapter 124A as it existed prior to July 1, 2017, is guilty of a class “D” felony.
    Sec. 11.  Section 124.401A, Code 2017, is amended to read as follows:
   124.401A  Enhanced penalty for manufacture or distribution to persons on certain real property.
   In addition to any other penalties provided in this chapter, a person who is eighteen years of age or older who unlawfully manufactures with intent to distribute, distributes, or possesses with intent to distribute a substance or counterfeit substance listed in schedule I, II, or III, or a simulated or imitation controlled substance represented to be a controlled substance classified in schedule I, II, or III, to another person who is eighteen years of age or older in or on, or within one thousand feet of the real property comprising a public or private elementary or secondary school, public park, public swimming pool, public recreation center, or on a marked school bus, may be sentenced up to an additional term of confinement of five years.
    Sec. 12.  Section 124.401B, Code 2017, is amended to read as follows:
   124.401B  Possession of controlled substances on certain real property —— additional penalty.
   In addition to any other penalties provided in this chapter or another chapter, a person who unlawfully possesses a substance listed in schedule I, II, or III, or a simulated or imitation controlled substance represented to be a controlled substance classified in schedule I, II, or III, in or on, or within one thousand feet of the real property comprising a public or private elementary or secondary school, public park, public swimming pool, public recreation center, or on a marked school bus, may be sentenced to one hundred hours of community service work for a public agency or a nonprofit charitable organization. The court shall provide the offender with a written statement of the terms and monitoring provisions of the community service.
    Sec. 13.  Section 124.406, subsection 2, Code 2017, is amended to read as follows:
   2.  A person who is eighteen years of age or older who:
   a.  Unlawfully distributes or possesses with the intent to distribute a counterfeit substance listed in schedule I or II, or a simulated or imitation controlled substance represented to be a substance classified in schedule I or II, to a person under eighteen years of age commits a class “B” felony. However, if the substance was distributed in or on, or within one thousand feet of, the real property comprising a public or private elementary or secondary school, public park, public swimming pool, public recreation center, or on a marked school bus, the person shall serve a minimum term of confinement of ten years.
   b.  Unlawfully distributes or possesses with intent to distribute a counterfeit substance listed in schedule III, or a simulated or imitation controlled substance represented to be any substance listed in schedule III, to a person under eighteen years of age who is at least three years younger than the violator commits a class “C” felony.
   c.  Unlawfully distributes a counterfeit substance listed in schedule IV or V, or a simulated or imitation controlled substance represented to be a substance listed in schedule IV or V, to a person under eighteen years of age who is at least three years younger than the violator commits an aggravated misdemeanor.
    Sec. 14.  Section 124.415, Code 2017, is amended to read as follows:
   124.415  Parental and school notification —— persons under eighteen years of age.
   A peace officer shall make a reasonable effort to identify a person under the age of eighteen discovered to be in possession of a controlled substance, counterfeit substance, or simulated controlled substance, or imitation controlled substance in violation of this chapter, and if the person is not referred to juvenile court, the law enforcement agency of which the peace officer is an employee shall make a reasonable attempt to notify the person’s custodial parent or legal guardian of such possession, whether or not the person is arrested, unless the officer has reasonable grounds to believe that such notification is not in the best interests of the person or will endanger that person. If the person is taken into custody, the peace officer shall notify a juvenile court officer who shall make a reasonable effort to identify the elementary or secondary school the person attends, if any, and to notify the superintendent of the school district, the superintendent’s designee, or the authorities in charge of the nonpublic school of the taking into custody. A reasonable attempt to notify the person includes but is not limited to a telephone call or notice by first-class mail.
    Sec. 15.  NEW SECTION.  124.417  Imitation controlled substances —— exceptions.
   It is not unlawful under this chapter for a person registered under section 124.302, to manufacture, deliver, or possess with the intent to manufacture or deliver, or to act with, one or more other persons to manufacture, deliver, or possess with the intent to manufacture or deliver an imitation controlled substance for use as a placebo by a registered practitioner in the course of professional practice or research. 
    Sec. 16.  Section 124.502, subsection 1, paragraph a, Code 2017, is amended to read as follows:
   a.  A district judge or district associate judge, within the court’s jurisdiction, and upon proper oath or affirmation showing probable cause, may issue warrants for the purpose of conducting administrative inspections under this chapter or a related rule or under chapter 124A. The warrant may also permit seizures of property appropriate to the inspections. For purposes of the issuance of administrative inspection warrants, probable cause exists upon showing a valid public interest in the effective enforcement of the statute or related rules, sufficient to justify administrative inspection of the area, premises, building, or conveyance in the circumstances specified in the application for the warrant.
    Sec. 17.  Section 155A.6, subsection 3, Code 2017, is amended to read as follows:
   3.  The board shall establish standards for pharmacist-intern registration and may deny, suspend, or revoke a pharmacist-intern registration for failure to meet the standards or for any violation of the laws of this state, another state, or the United States relating to prescription drugs, controlled substances, or nonprescription drugs, or for any violation of this chapter or chapter 124, 124A, 124B, 126, 147, or 205, or any rule of the board.
    Sec. 18.  Section 155A.6A, subsection 5, Code 2017, is amended to read as follows:
   5.  The board may deny, suspend, or revoke the registration of, or otherwise discipline, a registered pharmacy technician for any violation of the laws of this state, another state, or the United States relating to prescription drugs, controlled substances, or nonprescription drugs, or for any violation of this chapter or chapter 124, 124A, 124B, 126, 147, 205, or 272C, or any rule of the board.
    Sec. 19.  Section 155A.6B, subsection 5, Code 2017, is amended to read as follows:
   5.  The board may deny, suspend, or revoke the registration of a pharmacy support person or otherwise discipline the pharmacy support person for any violation of the laws of this state, another state, or the United States relating to prescription drugs, controlled substances, or nonprescription drugs, or for any violation of this chapter or chapter 124, 124A, 124B, 126, 147, 205, or 272C, or any rule of the board.
    Sec. 20.  Section 155A.13A, subsection 5, paragraph d, Code 2017, is amended to read as follows:
   d.  Any violation of this chapter or chapter 124, 124A, 124B, 126, or 205, or rule of the board.
    Sec. 21.  Section 155A.17, subsection 2, Code 2017, is amended to read as follows:
   2.  The board shall establish standards for drug wholesaler licensure and may define specific types of wholesaler licenses. The board may deny, suspend, or revoke a drug wholesale license for failure to meet the applicable standards or for a violation of the laws of this state, another state, or the United States relating to prescription drugs, devices, or controlled substances, or for a violation of this chapter, chapter 124, 124A, 124B, 126, or 205, or a rule of the board.
    Sec. 22.  Section 155A.42, subsection 4, Code 2017, is amended to read as follows:
   4.  The board may deny, suspend, or revoke a limited drug and device distributor’s license for failure to meet the applicable standards or for a violation of the laws of this state, another state, or the United States relating to prescription drugs or controlled substances, or for a violation of this chapter, chapter 124, 124A, 124B, 126, 205, or 272C, or a rule of the board.
    Sec. 23.  REPEAL.  Chapter 124A, Code 2017, is repealed.
DIVISION III
CONTROLLED SUBSTANCES —— PENALTIES

    Sec. 24.  Section 124.401, subsection 1, paragraph a, Code 2017, is amended by adding the following new subparagraph:
   NEW SUBPARAGRAPH.  (8)  More than ten kilograms of a mixture or substance containing any detectable amount of those substances identified in section 124.204, subsection 9.
    Sec. 25.  Section 124.401, subsection 1, paragraph b, Code 2017, is amended by adding the following new subparagraph:
   NEW SUBPARAGRAPH.  (9)  More than five kilograms but not more than ten kilograms of a mixture or substance containing any detectable amount of those substances identified in section 124.204, subsection 9.
    Sec. 26.  Section 124.401, subsection 1, paragraph c, Code 2017, is amended by adding the following new subparagraph:
   NEW SUBPARAGRAPH.  (7A)  Five kilograms or less of a mixture or substance containing any detectable amount of those substances identified in section 124.204, subsection 9.
    Sec. 27.  Section 124.401, subsection 1, paragraph d, Code 2017, is amended to read as follows:
   d.  Violation of this subsection, with respect to any other controlled substances, counterfeit substances, or simulated controlled substances classified in section 124.204, subsection 4, paragraph “ai”, or section 124.204, subsection 6, paragraph “i”, or, or imitation controlled substances classified in schedule IV or V is an aggravated misdemeanor. However, violation of this subsection involving fifty kilograms or less of marijuana or involving flunitrazepam is a class “D” felony.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill relates to controlled substances, including by modifying procedures relating to the temporary designation of substances as controlled substances, and modifying the penalties for imitation controlled substances and certain controlled substances.
   TEMPORARY CONTROLLED SUBSTANCE DESIGNATION. Under current law and in the bill, the board of pharmacy may designate a new substance as a controlled substance, by administrative rule, without legislation amending Code chapter 124, only if the substance is designated as a controlled substance under federal law.
   If the board of pharmacy designates a substance as controlled, the bill specifies that the temporary designation is considered a temporary amendment to the schedules of controlled substances in Code chapter 124, and if the general assembly does not amend Code chapter 124 to enact the temporary amendment and make the enactment effective within two years from the date the temporary amendment first became effective, the temporary amendment is repealed by operation of law two years from the effective date of the temporary amendment. A temporary amendment repealed by operation of law is subject to Code section 4.13 relating to the construction of statutes and the application of a general savings provision.
   Current law provides that if within 60 days after the next general assembly convenes the general assembly has not made the corresponding changes in Code chapter 124, the temporary designation of a substance as a controlled substance is nullified. 
   IMITATION CONTROLLED SUBSTANCES. Under current law, imitation controlled substances are regulated under Code chapter 124A. The bill repeals Code chapter 124A and transfers the regulation of imitation controlled substances to Code chapter 124. The definition and designation of an imitation controlled substance in Code chapter 124 remains identical to the definition and designation of an imitation controlled substance under current law in Code chapter 124A.
   Under the bill and in current law, an imitation controlled substance means a substance which is not a controlled substance but by color, shape, size, markings, and other aspects of dosage unit appearance, and packaging or other factors, appears to be or resembles a controlled substance. The board of pharmacy may designate a substance as an imitation controlled substance pursuant to the board’s rulemaking authority and in accordance with Code chapter 17A.
   In addition, under current law and in the bill, if a substance has not been designated as an imitation controlled substance by the board of pharmacy and when dosage unit appearance alone does not establish that a substance is an imitation controlled substance, the following factors may be considered in determining whether the substance is an imitation controlled substance: the substance is represented as having the effect of a controlled substance; the substance is represented as a controlled substance or as a substitute for a controlled substance because of its nature or appearance; or a person receives money or other property having a value substantially greater than the actual value of the substance when sold. 
   Under the bill, if a person unlawfully manufactures, delivers, or possesses with the intent to deliver an imitation controlled substance containing any detectable amount of those substances identified in Code section 124.204(9), or unlawfully acts with, enters into a common scheme or design with, or conspires with one or more persons to manufacture, deliver, or possess such imitation controlled substances, the person commits the following offense: a class “B” felony punishable by confinement of no more than 50 years and a fine of not more than $1 million if the imitation controlled substance is more than 10 kilograms; a class “B” felony punishable by confinement of no more than 25 years and a fine of not less than $5,000 but not more than $100,000 if the imitation controlled substance is more than five kilograms but not more than 10 kilograms; a class “C” felony punishable by a fine of not less than $1,000 but not more than $50,000 if the imitation controlled substance is five kilograms or less; or an aggravated misdemeanor if the imitation controlled substance is classified in schedule IV or V; or a serious misdemeanor for a first possession offense, an aggravated misdemeanor for a second possession offense, or a class “D” felony for two or more previous possession offenses. Current law in Code section 124A.4 provides that if a person unlawfully manufactures, delivers, or possesses with intent to deliver an imitation controlled substance, the person commits an aggravated misdemeanor, or if the person delivers to a person under 18 years of age who is at least three years younger than the violator, the person commits a class “D” felony. In addition, under current law, if a person unlawfully and knowingly publishes an advertisement or distributes in a public place a promotion for an imitation controlled substance the person commits a serious misdemeanor.
   The bill provides that if the same person commits two or more acts which are in violation of Code section 124.401(1) and the acts occur in the same location or time period so the acts are attributable to a single scheme, the acts may be considered a single violation and the weights of the imitation controlled substance may be combined for purposes of charging the offender. 
   The amendment to Code section 124.401A provides that a person who is 18 years of age or older who unlawfully manufactures with the intent to distribute, distributes, or possesses with the intent to distribute an imitation controlled substance to another person 18 years of age or older within 1,000 feet of the real property comprising a public or nonpublic school, may be sentenced up to an additional term of confinement of five years in addition to any other penalty. 
   The amendment to Code section 124.401B provides that a person who unlawfully possesses an imitation controlled substance within 1,000 feet of the real property comprising a school, public park, public pool, public recreation center, or marked school bus may be sentenced up to 100 hours of community service.
   The amendments to Code section 124.406 relate to the distribution or possession with the intent to distribute an imitation controlled substance to a person under 18 years of age. A person who distributes or possesses with the intent to distribute an imitation controlled substance, represented to be a substance listed in schedule I or schedule II, to a person under 18 years of age commits a class “B” felony. The required penalty for such a violation is a minimum term of confinement of 10 years if the substance was distributed within 1,000 feet of the real property comprising a public or nonpublic school, public park, public pool, or public recreation center. A person who distributes or possesses with the intent to distribute an imitation controlled substance, represented to be a substance listed in schedule III, to a person under 18 years of age, who is at least three years younger than the violator, commits a class “C” felony. A person who distributes or possesses with the intent to distribute an imitation controlled substance, represented to be a substance listed in schedule IV or schedule V, to a person under 18 years of age, who is at least three years younger than the violator, commits an aggravated misdemeanor. 
   The amendment to Code section 124.415 requires that a peace officer make a reasonable effort to identify a person under 18 years of age discovered to be in possession of an imitation controlled substance, and if the person is not referred to juvenile court, the peace officer shall make a reasonable effort to notify the person’s custodial parent of the possession unless the officer has reasonable grounds to believe such notification is not in the best interests of the person. The bill specifies that if the person is taken into custody the juvenile court officer shall make a reasonable effort to identify the school of attendance and to notify the school or nonpublic school of the taking into custody of the person. 
   The bill creates Code section 124.417, which is similar to Code section 124A.5 repealed by the bill. A person registered under Code section 124.302 does not violate the bill if the person manufactures, delivers, possesses, or possesses with the intent to manufacture or deliver, or acts with others to do such activities, if the person uses the imitation controlled substance for use as a placebo by a registered practitioner in the court of professional practice or research. 
   CONTROLLED SUBSTANCES —— PENALTIES. The bill enhances the criminal penalties for controlled substances classified in Code sections 124.204(4)(ai) and 124.204(6)(i) from an aggravated misdemeanor to a class “C” felony punishable pursuant to Code section 124.401(1)(c)(8). This change equalizes the criminal penalties with violations involving other schedule I controlled substances. 
   The bill enhances the criminal penalties for a schedule I controlled substance identified in Code section 124.204(9). Under the bill, a person commits a class “B” felony punishable by confinement for no more than 50 years and a fine of not more than $1 million for a violation of Code section 124.401(1)(a) involving more than 10 kilograms of a mixture or substance containing any detectable amount of those substances identified in Code section 124.204(9). A person commits a class “B” felony punishable by confinement for no more than 25 years and a fine of not less than $5,000 but not more than $100,000 for a violation of Code section 124.401(1)(b) involving more than five kilograms but not more than 10 kilograms of a mixture or substance containing any detectable amount of those substances identified in Code section 124.204(9). A person commits a class “C” felony punishable by confinement for no more than 10 years and a fine of not less than $1,000 but not more than $50,000 for a violation of Code section 124.401(1)(c) involving five kilograms or less of a mixture or substance containing any detectable amount of those substances identified in Code section 124.204(9). Currently, all violations involving a schedule I controlled substance identified in Code section 124.204(9) are punishable under Code section 124.401(1)(c)(8) as a class “C” felony by confinement for no more than 10 years and a fine of at least $1,000 but not more than $10,000, regardless of the amount of the controlled substance involved.
   A person who illegally possesses a controlled substance commits a criminal violation which ranges in punishment from a serious misdemeanor to a class “D” felony under Code section 124.401(5).