Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 360 Third Substitute (2017GS)

Sponsor

Rep. Handy, S.

Final action

House/ filed 3/9/2017

Outcome

Failed / filed without passage

Summary

What it does

• This bill:
• exempts an occupant of a paratransit vehicle operated by a public transit district from a requirement to wear a seatbelt;
• enhances a drug-related charge if an offense occurs in a transit vehicle or within 100 feet of certain facilities related to public transit;
• exempts a public transit district from noise restrictions related to nighttime construction in certain circumstances; and
• makes technical changes.

Every vote on this bill

Bill text

PUBLIC TRANSIT AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Stephen G. Handy
Senate Sponsor: 
____________
LONG TITLE
General Description:
This bill amends provisions related to public transit safety and construction activities.
Highlighted Provisions:
This bill:
▸ exempts an occupant of a paratransit vehicle operated by a public transit district
from a requirement to wear a seatbelt;
▸ enhances a drug-related charge if an offense occurs in a transit vehicle or within 100
feet of certain facilities related to public transit;
▸ exempts a public transit district from noise restrictions related to nighttime
construction in certain circumstances; and
▸ makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
41-6a-1804
, as renumbered and amended by Laws of Utah 2005, Chapter 2
58-37-8
, as last amended by Laws of Utah 2016, Chapters 99 and 348
72-6-112.5
, as enacted by Laws of Utah 2016, Chapter 178
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
41-6a-1804
 is amended to read:
41-6a-1804.
Exceptions.
(1) This part does not apply to an operator or passenger of:
(a) a motor vehicle manufactured before July 1, 1966;
(b) a motor vehicle in which the operator or passengers possess a written verification
from a licensed physician that the person is unable to wear a safety belt for physical or medical
reasons; [
or
]
(c) a motor vehicle or seating position which is not required to be equipped with a
safety belt system under federal law[
.
]
; or
(d) a paratransit vehicle operated by a public transit district.
(2) This part does not apply to a passenger if all seating positions are occupied by other
passengers.
Section 2. Section 
58-37-8
 is amended to read:
58-37-8.
Prohibited acts -- Penalties.
(1) Prohibited acts A -- Penalties and reporting:
(a) Except as authorized by this chapter, it is unlawful for any person to knowingly and
intentionally:
(i) produce, manufacture, or dispense, or to possess with intent to produce,
manufacture, or dispense, a controlled or counterfeit substance;
(ii) distribute a controlled or counterfeit substance, or to agree, consent, offer, or
arrange to distribute a controlled or counterfeit substance;
(iii) possess a controlled or counterfeit substance with intent to distribute; or
(iv) engage in a continuing criminal enterprise where:
(A) the person participates, directs, or engages in conduct that results in any violation
of any provision of Title 58, Chapters 37, Utah Controlled Substances Act, 37a, Utah Drug
Paraphernalia Act, 37b, Imitation Controlled Substances Act, 37c, Utah Controlled Substance
Precursor Act, or 37d, Clandestine Drug Lab Act, that is a felony; and
(B) the violation is a part of a continuing series of two or more violations of Title 58,
Chapters 37, Utah Controlled Substances Act, 37a, Utah Drug Paraphernalia Act, 37b,
Imitation Controlled Substances Act, 37c, Utah Controlled Substance Precursor Act, or 37d,
Clandestine Drug Lab Act, on separate occasions that are undertaken in concert with five or
more persons with respect to whom the person occupies a position of organizer, supervisor, or
any other position of management.
(b) Any person convicted of violating Subsection (1)(a) with respect to:
(i) a substance or a counterfeit of a substance classified in Schedule I or II, a controlled
substance analog, or gammahydroxybutyric acid as listed in Schedule III is guilty of a second
degree felony, punishable by imprisonment for not more than 15 years, and upon a second or
subsequent conviction is guilty of a first degree felony;
(ii) a substance or a counterfeit of a substance classified in Schedule III or IV, or
marijuana, or a substance listed in Section 
58-37-4.2
 is guilty of a third degree felony, and
upon a second or subsequent conviction is guilty of a second degree felony; or
(iii) a substance or a counterfeit of a substance classified in Schedule V is guilty of a
class A misdemeanor and upon a second or subsequent conviction is guilty of a third degree
felony.
(c) Any person who has been convicted of a violation of Subsection (1)(a)(ii) or (iii)
may be sentenced to imprisonment for an indeterminate term as provided by law, but if the trier
of fact finds a firearm as defined in Section 
76-10-501
 was used, carried, or possessed on his
person or in his immediate possession during the commission or in furtherance of the offense,
the court shall additionally sentence the person convicted for a term of one year to run
consecutively and not concurrently; and the court may additionally sentence the person
convicted for an indeterminate term not to exceed five years to run consecutively and not
concurrently.
(d) Any person convicted of violating Subsection (1)(a)(iv) is guilty of a first degree
felony punishable by imprisonment for an indeterminate term of not less than seven years and
which may be for life. Imposition or execution of the sentence may not be suspended, and the
person is not eligible for probation.
(e) The Administrative Office of the Courts shall report to the Division of
Occupational and Professional Licensing the name, case number, date of conviction, and if
known, the date of birth of each person convicted of violating Subsection (2)(a). 
(2) Prohibited acts B -- Penalties and reporting:
(a) It is unlawful:
(i) for any person knowingly and intentionally to possess or use a controlled substance
analog or a controlled substance, unless it was obtained under a valid prescription or order,
directly from a practitioner while acting in the course of the person's professional practice, or as
otherwise authorized by this chapter;
(ii) for any owner, tenant, licensee, or person in control of any building, room,
tenement, vehicle, boat, aircraft, or other place knowingly and intentionally to permit them to
be occupied by persons unlawfully possessing, using, or distributing controlled substances in
any of those locations; or
(iii) for any person knowingly and intentionally to possess an altered or forged
prescription or written order for a controlled substance.
(b) Any person convicted of violating Subsection (2)(a)(i) with respect to:
(i) marijuana, if the amount is 100 pounds or more, is guilty of a second degree felony;
or
(ii) a substance classified in Schedule I or II, or a controlled substance analog, is guilty
of a class A misdemeanor on a first or second conviction, and on a third or subsequent
conviction is guilty of a third degree felony.
(c) Upon a person's conviction of a violation of this Subsection (2) subsequent to a
conviction under Subsection (1)(a), that person shall be sentenced to a one degree greater
penalty than provided in this Subsection (2).
(d) Any person who violates Subsection (2)(a)(i) with respect to all other controlled
substances not included in Subsection (2)(b)(i) or (ii), including a substance listed in Section
58-37-4.2
, or marijuana, is guilty of a class B misdemeanor. Upon a third conviction the
person is guilty of a class A misdemeanor, and upon a fourth or subsequent conviction the
person is guilty of a third degree felony.
(e) Any person convicted of violating Subsection (2)(a)(i) while inside the exterior
boundaries of property occupied by any correctional facility as defined in Section 
64-13-1
 or
any public jail or other place of confinement shall be sentenced to a penalty one degree greater
than provided in Subsection (2)(b), and if the conviction is with respect to controlled
substances as listed in:
(i) Subsection (2)(b), the person may be sentenced to imprisonment for an
indeterminate term as provided by law, and:
(A) the court shall additionally sentence the person convicted to a term of one year to
run consecutively and not concurrently; and
(B) the court may additionally sentence the person convicted for an indeterminate term
not to exceed five years to run consecutively and not concurrently; and
(ii) Subsection (2)(d), the person may be sentenced to imprisonment for an
indeterminate term as provided by law, and the court shall additionally sentence the person
convicted to a term of six months to run consecutively and not concurrently.
(f) Any person convicted of violating Subsection (2)(a)(ii) or(iii) is:
(i) on a first conviction, guilty of a class B misdemeanor;
(ii) on a second conviction, guilty of a class A misdemeanor; and
(iii) on a third or subsequent conviction, guilty of a third degree felony.
(g) A person is subject to the penalties under Subsection (2)(h) who, in an offense not
amounting to a violation of Section 
76-5-207
:
(i) violates Subsection (2)(a)(i) by knowingly and intentionally having in the person's
body any measurable amount of a controlled substance; and
(ii) operates a motor vehicle as defined in Section 
76-5-207
 in a negligent manner,
causing serious bodily injury as defined in Section 
76-1-601
 or the death of another.
(h) A person who violates Subsection (2)(g) by having in the person's body:
(i) a controlled substance classified under Schedule I, other than those described in
Subsection (2)(h)(ii), or a controlled substance classified under Schedule II is guilty of a second
degree felony;
(ii) marijuana, tetrahydrocannabinols, or equivalents described in Subsection
58-37-4
(2)(a)(iii)(S) or (AA), or a substance listed in Section 
58-37-4.2
 is guilty of a third
degree felony; or
(iii) any controlled substance classified under Schedules III, IV, or V is guilty of a class
A misdemeanor.
(i) A person is guilty of a separate offense for each victim suffering serious bodily
injury or death as a result of the person's negligent driving in violation of Subsection
58-37-8
(2)(g) whether or not the injuries arise from the same episode of driving.
(j) The Administrative Office of the Courts shall report to the Division of Occupational
and Professional Licensing the name, case number, date of conviction, and if known, the date
of birth of each person convicted of violating Subsection (2)(a). 
(3) Prohibited acts C -- Penalties:
(a) It is unlawful for any person knowingly and intentionally:
(i) to use in the course of the manufacture or distribution of a controlled substance a
license number which is fictitious, revoked, suspended, or issued to another person or, for the
purpose of obtaining a controlled substance, to assume the title of, or represent oneself to be, a
manufacturer, wholesaler, apothecary, physician, dentist, veterinarian, or other authorized
person;
(ii) to acquire or obtain possession of, to procure or attempt to procure the
administration of, to obtain a prescription for, to prescribe or dispense to any person known to
be attempting to acquire or obtain possession of, or to procure the administration of any
controlled substance by misrepresentation or failure by the person to disclose receiving any
controlled substance from another source, fraud, forgery, deception, subterfuge, alteration of a
prescription or written order for a controlled substance, or the use of a false name or address;
(iii) to make any false or forged prescription or written order for a controlled substance,
or to utter the same, or to alter any prescription or written order issued or written under the
terms of this chapter; or
(iv) to make, distribute, or possess any punch, die, plate, stone, or other thing designed
to print, imprint, or reproduce the trademark, trade name, or other identifying mark, imprint, or
device of another or any likeness of any of the foregoing upon any drug or container or labeling
so as to render any drug a counterfeit controlled substance.
(b) (i) A first or second conviction under Subsection (3)(a)(i), (ii), or (iii) is a class A
misdemeanor.
(ii) A third or subsequent conviction under Subsection (3)(a)(i), (ii), or (iii) is a third
degree felony.
(c) A violation of Subsection (3)(a)(iv) is a third degree felony.
(4) Prohibited acts D -- Penalties:
(a) Notwithstanding other provisions of this section, a person not authorized under this
chapter who commits any act that is unlawful under Subsection (1)(a), Section 
58-37a-5
, or
Section 
58-37b-4
 is upon conviction subject to the penalties and classifications under this
Subsection (4) if the trier of fact finds the act is committed:
(i) in a public or private elementary or secondary school or on the grounds of any of
those schools during the hours of 6 a.m. through 10 p.m.;
(ii) in a public or private vocational school or postsecondary institution or on the
grounds of any of those schools or institutions during the hours of 6 a.m. through 10 p.m.;
(iii) in or on the grounds of a preschool or child-care facility during the preschool's or
facility's hours of operation;
(iv) in a public park, amusement park, arcade, or recreation center when the public or
amusement park, arcade, or recreation center is open to the public;
(v) in or on the grounds of a house of worship as defined in Section 
76-10-501
;
(vi) in or on the grounds of a library when the library is open to the public;
(vii) within any area that is within 100 feet of any structure, facility, or grounds
included in Subsections (4)(a)(i), (ii), (iii), (iv), (v), and (vi);
(viii) (A) in or on a transit vehicle as defined in Section 
17B-2a-802
; or
(B) within 100 feet of a transit station, depot, passenger loading or unloading zone,
parking lot, or other facility;
[
(viii)
] 
(ix)
 in the presence of a person younger than 18 years of age, regardless of
where the act occurs; or
[
(ix)
] 
(x)
 for the purpose of facilitating, arranging, or causing the transport, delivery, or
distribution of a substance in violation of this section to an inmate or on the grounds of any
correctional facility as defined in Section 
76-8-311.3
.
(b) (i) A person convicted under this Subsection (4) is guilty of a first degree felony
and shall be imprisoned for a term of not less than five years if the penalty that would
otherwise have been established but for this Subsection (4) would have been a first degree
felony.
(ii) Imposition or execution of the sentence may not be suspended, and the person is
not eligible for probation.
(c) If the classification that would otherwise have been established would have been
less than a first degree felony but for this Subsection (4), a person convicted under this
Subsection (4) is guilty of one degree more than the maximum penalty prescribed for that
offense. This Subsection (4)(c) does not apply to a violation of Subsection (2)(g).
(d) (i) If the violation is of Subsection (4)(a)(ix):
(A) the person may be sentenced to imprisonment for an indeterminate term as
provided by law, and the court shall additionally sentence the person convicted for a term of
one year to run consecutively and not concurrently; and
(B) the court may additionally sentence the person convicted for an indeterminate term
not to exceed five years to run consecutively and not concurrently; and
(ii) the penalties under this Subsection (4)(d) apply also to any person who, acting with
the mental state required for the commission of an offense, directly or indirectly solicits,
requests, commands, coerces, encourages, or intentionally aids another person to commit a
violation of Subsection (4)(a)[
(ix)
]
(x)
.
(e) It is not a defense to a prosecution under this Subsection (4) that the actor
mistakenly believed the individual to be 18 years of age or older at the time of the offense or
was unaware of the individual's true age; nor that the actor mistakenly believed that the
location where the act occurred was not as described in Subsection (4)(a) or was unaware that
the location where the act occurred was as described in Subsection (4)(a).
(5) Any violation of this chapter for which no penalty is specified is a class B
misdemeanor.
(6) (a) For purposes of penalty enhancement under Subsections (1) and (2), a plea of
guilty or no contest to a violation or attempted violation of this section or a plea which is held
in abeyance under Title 77, Chapter 2a, Pleas in Abeyance, is the equivalent of a conviction,
even if the charge has been subsequently reduced or dismissed in accordance with the plea in
abeyance agreement.
(b) A prior conviction used for a penalty enhancement under Subsection (2) shall be a
conviction that is:
(i) from a separate criminal episode than the current charge; and
(ii) from a conviction that is separate from any other conviction used to enhance the
current charge.
(7) A person may be charged and sentenced for a violation of this section,
notwithstanding a charge and sentence for a violation of any other section of this chapter.
(8) (a) Any penalty imposed for violation of this section is in addition to, and not in
lieu of, any civil or administrative penalty or sanction authorized by law.
(b) Where violation of this chapter violates a federal law or the law of another state,
conviction or acquittal under federal law or the law of another state for the same act is a bar to
prosecution in this state.
(9) In any prosecution for a violation of this chapter, evidence or proof that shows a
person or persons produced, manufactured, possessed, distributed, or dispensed a controlled
substance or substances, is prima facie evidence that the person or persons did so with
knowledge of the character of the substance or substances.
(10) This section does not prohibit a veterinarian, in good faith and in the course of the
veterinarian's professional practice only and not for humans, from prescribing, dispensing, or
administering controlled substances or from causing the substances to be administered by an
assistant or orderly under the veterinarian's direction and supervision.
(11) Civil or criminal liability may not be imposed under this section on:
(a) any person registered under this chapter who manufactures, distributes, or possesses
an imitation controlled substance for use as a placebo or investigational new drug by a
registered practitioner in the ordinary course of professional practice or research; or
(b) any law enforcement officer acting in the course and legitimate scope of the
officer's employment.
(12) (a) Civil or criminal liability may not be imposed under this section on any Indian,
as defined in Subsection 
58-37-2
(1)(v), who uses, possesses, or transports peyote for bona fide
traditional ceremonial purposes in connection with the practice of a traditional Indian religion
as defined in Subsection 
58-37-2
(1)(w).
(b) In a prosecution alleging violation of this section regarding peyote as defined in
Subsection 
58-37-4
(2)(a)(iii)(V), it is an affirmative defense that the peyote was used,
possessed, or transported by an Indian for bona fide traditional ceremonial purposes in
connection with the practice of a traditional Indian religion.
(c) (i) The defendant shall provide written notice of intent to claim an affirmative
defense under this Subsection (12) as soon as practicable, but not later than 10 days prior to
trial.
(ii) The notice shall include the specific claims of the affirmative defense.
(iii) The court may waive the notice requirement in the interest of justice for good
cause shown, if the prosecutor is not unfairly prejudiced by the lack of timely notice.
(d) The defendant shall establish the affirmative defense under this Subsection (12) by
a preponderance of the evidence. If the defense is established, it is a complete defense to the
charges.
(13) (a) It is an affirmative defense that the person produced, possessed, or
administered a controlled substance listed in Section 
58-37-4.2
 if the person:
(i) was engaged in medical research; and
(ii) was a holder of a valid license to possess controlled substances under Section
58-37-6
.
(b) It is not a defense under Subsection (13)(a) that the person prescribed or dispensed
a controlled substance listed in Section 
58-37-4.2
.
(14) It is an affirmative defense that the person possessed, in the person's body, a
controlled substance listed in Section 
58-37-4.2
 if:
(a) the person was the subject of medical research conducted by a holder of a valid
license to possess controlled substances under Section 
58-37-6
; and
(b) the substance was administered to the person by the medical researcher.
(15) The application of any increase in penalty under this section to a violation of
Subsection (2)(a)(i) may not result in any greater penalty than a second degree felony. This
Subsection (15) takes precedence over any conflicting provision of this section.
(16) (a) It is an affirmative defense to an allegation of the commission of an offense
listed in Subsection (16)(b) that the person:
(i) reasonably believes that the person or another person is experiencing an overdose
event due to the ingestion, injection, inhalation, or other introduction into the human body of a
controlled substance or other substance;
(ii) reports in good faith the overdose event to a medical provider, an emergency
medical service provider as defined in Section 
26-8a-102
, a law enforcement officer, a 911
emergency call system, or an emergency dispatch system, or the person is the subject of a
report made under this Subsection (16);
(iii) provides in the report under Subsection (16)(a)(ii) a functional description of the
actual location of the overdose event that facilitates responding to the person experiencing the
overdose event;
(iv) remains at the location of the person experiencing the overdose event until a
responding law enforcement officer or emergency medical service provider arrives, or remains
at the medical care facility where the person experiencing an overdose event is located until a
responding law enforcement officer arrives;
(v) cooperates with the responding medical provider, emergency medical service
provider, and law enforcement officer, including providing information regarding the person
experiencing the overdose event and any substances the person may have injected, inhaled, or
otherwise introduced into the person's body; and
(vi) is alleged to have committed the offense in the same course of events from which
the reported overdose arose.
(b) The offenses referred to in Subsection (16)(a) are:
(i) the possession or use of less than 16 ounces of marijuana;
(ii) the possession or use of a scheduled or listed controlled substance other than
marijuana; and
(iii) any violation of Chapter 37a, Utah Drug Paraphernalia Act, or Chapter 37b,
Imitation Controlled Substances Act.
(c) As used in this Subsection (16) and in Section 
76-3-203.11
, "good faith" does not
include seeking medical assistance under this section during the course of a law enforcement
agency's execution of a search warrant, execution of an arrest warrant, or other lawful search.
(17) If any provision of this chapter, or the application of any provision to any person
or circumstances, is held invalid, the remainder of this chapter shall be given effect without the
invalid provision or application.
(18) A legislative body of a political subdivision may not enact an ordinance that is
less restrictive than any provision of this chapter.
(19) (a) If a minor who is under 18 years of age is found by a court to have violated this
section and the violation is the minor's first violation of this section, the court may:
(i) order the minor to complete a screening as defined in Section 
41-6a-501
;
(ii) order the minor to complete an assessment as defined in Section 
41-6a-501
 if the
screening indicates an assessment to be appropriate; and
(iii) order the minor to complete an educational series as defined in Section 
41-6a-501
or substance abuse treatment as indicated by an assessment.
(b) If a minor who is under 18 years of age is found by a court to have violated this
section and the violation is the minor's second or subsequent violation of this section, the court
shall:
(i) order the minor to complete a screening as defined in Section 
41-6a-501
;
(ii) order the minor to complete an assessment as defined in Section 
41-6a-501
 if the
screening indicates an assessment to be appropriate; and
(iii) order the minor to complete an educational series as defined in Section 
41-6a-501
or substance abuse treatment as indicated by an assessment.
Section 3. Section 
72-6-112.5
 is amended to read:
72-6-112.5.
Definitions -- Nighttime highway construction noise -- Exemptions --
Permits.
(1) As used in this section:
(a) (i) "Front row receptor" means a noise-sensitive residential receptor that is:
(A) immediately adjacent to a transportation facility; or
(B) within 800 feet of a transportation facility that is within a commercial or
industrialized area.
(ii) "Front row receptor" includes a residence that is contiguous to a property
immediately adjacent to a transportation facility in a residential area.
(b) "Nighttime [
highway
] construction" means highway 
or public transit
 construction
occurring between the hours of 10:00 p.m. and 7:00 a.m.
(2) A state highway construction project 
or public transit construction project
conducted on a 
right-of-way or
 road where the normal posted speed limit is 55 miles per hour
or greater is exempt from any noise ordinance, regulation, or standard of a local jurisdictional
authority.
(3) A state highway construction project conducted on a 
right-of-way or
 road where the
normal posted speed limit is less than 55 miles per hour is exempt from any noise ordinance,
regulation, or standard of a local jurisdictional authority if the department 
or public transit
district
:
(a) provides reasonable written notice at least 48 hours in advance of any required
nighttime [
highway
] construction to each residential dwelling located within front row
receptors of the activity;
(b) determines a net community, including traveler community, benefit exists to
conduct nighttime [
highway
] construction after considering the following:
(i) public health;
(ii) project completion time;
(iii) air quality;
(iv) traffic;
(v) economics;
(vi) safety; and
(vii) local jurisdiction concerns; and
(c) institutes best management noise reduction practices, as determined by the
department 
or public transit district
, for front row receptors, in consultation with local
government or the local jurisdictional authority for all nighttime [
highway
] construction, which
may include:
(i) equipment maintenance;
(ii) noise shielding;
(iii) scheduling the most noise intrusive activities during the day; and
(iv) other noise mitigation methods.
(4) (a) Subject to Subsection (2) or (3), a state highway project 
or public transit project
shall secure required noise permits from the local jurisdictional authority to conduct nighttime
[
highway
] construction.
(b) To the extent practical, the department 
or public transit district
 shall coordinate
with the local jurisdictional authority during the pre-construction phase of a project to address
noise exemption conditions.
(5) A local jurisdictional authority shall issue a nighttime [
highway
] construction noise
permit without additional requirements to the department 
or public transit district
 at the request
of the department 
or public transit district
 or the department's 
or public transit district's
designated project agent if the requirements of Subsections (2) and (3) are met.
(6) (a) For the exemption provided in Subsection (3) and in accordance with Title 63G,
Chapter 3, Utah Administrative Rulemaking Act, the department shall make rules establishing
procedures:
(i) for a local jurisdictional authority or local government to appeal the decision of the
department to conduct nighttime [
highway
] construction on roads where the normal posted
speed limit is less than 55 miles per hour; and
(ii) for the local jurisdictional authority to request that the department enforce the terms
of a noise permit.
(b) For the exemption provided in Subsection (3), a public transit district shall comply
with the procedures established by department rules made in accordance with Subsection
(6)(a).
[
(b)
] 
(c)
 After review and upon receiving a written notice from a local jurisdictional
authority that the conditions for the noise exemption permit are not met, the department 
or
public transit district
 shall take corrective action to ensure nighttime [
highway
] construction
activities meet requirements of the local permit.
Legislative Review Note
Office of Legislative Research and General Counsel