Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 86 First Substitute (2023GS)

Sponsor

Sen. Plumb, J.

Final action

Governor Signed 3/15/2023

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• creates an exemption from liability under the Utah Controlled Substances Act for certain entities that temporarily possess a controlled or counterfeit substance in order to conduct a test on the substance for a certain reason;
• modifies the definition of "drug paraphernalia" to exclude certain testing products or equipment; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

DRUG TESTING AND PARAPHERNALIA AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Jen Plumb
House Sponsor: 
Steve Eliason
LONG TITLE
General Description:
This bill concerns drug testing and paraphernalia.
Highlighted Provisions:
This bill:
▸ creates an exemption from liability under the Utah Controlled Substances Act for
certain entities that temporarily possess a controlled or counterfeit substance in
order to conduct a test on the substance for a certain reason;
▸ modifies the definition of "drug paraphernalia" to exclude certain testing products
or equipment; and
▸ makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
58-37-8
, as last amended by Laws of Utah 2022, Chapters 116, 415 and 430
58-37a-3
, as last amended by Laws of Utah 2011, Chapter 101
Be it enacted by the Legislature of the state of Utah:
Section 1. 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 a 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 a violation of
[
Chapter 37, Utah Controlled Substances Act
] 
this chapter
, Chapter 37a, Utah Drug
Paraphernalia Act, Chapter 37b, Imitation Controlled Substances Act, Chapter 37c, Utah
Controlled Substance Precursor Act, or Chapter 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 [
Chapter
37, Utah Controlled Substances Act
] 
this chapter
, Chapter 37a, Utah Drug Paraphernalia Act,
Chapter 37b, Imitation Controlled Substances Act, Chapter 37c, Utah Controlled Substance
Precursor Act, or Chapter 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) A 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) A 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 the
person or in the person's 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) (i) A 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:
(A) seven years and which may be for life; or
(B) 15 years and which may be for life if the trier of fact determined that the defendant
knew or reasonably should have known that any subordinate under Subsection (1)(a)(iv)(B)
was under 18 years old.
(ii) Imposition or execution of the sentence may not be suspended, and the person is
not eligible for probation.
(iii) Subsection (1)(d)(i)(B) does not apply to any defendant who, at the time of the
offense, was under 18 years old.
(e) The Administrative Office of the Courts shall report to the Division of Professional
Licensing the name, case number, date of conviction, and if known, the date of birth of each
person convicted of violating Subsection (1)(a).
(2) Prohibited acts B -- Penalties and reporting:
(a) It is unlawful:
(i) for a 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 an owner, tenant, licensee, or person in control of a 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 a person knowingly and intentionally to possess an altered or forged
prescription or written order for a controlled substance.
(b) A 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 if each prior offense was committed within seven years before the date of the
offense upon which the current conviction is based 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) A 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.
(i) Upon a third conviction the person is guilty of a class A misdemeanor, if each prior
offense was committed within seven years before the date of the offense upon which the
current conviction is based.
(ii) Upon a fourth or subsequent conviction the person is guilty of a third degree felony
if each prior offense was committed within seven years before the date of the offense upon
which the current conviction is based.
(e) A person convicted of violating Subsection (2)(a)(i) while inside the exterior
boundaries of property occupied by a correctional facility as defined in Section 
64-13-1
 or a
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) A 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) The Administrative Office of the Courts shall report to the Division of 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 a 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 a person known to be
attempting to acquire or obtain possession of, or to procure the administration of a controlled
substance by misrepresentation or failure by the person to disclose receiving a 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 a false or forged prescription or written order for a controlled substance,
or to utter the same, or to alter a prescription or written order issued or written under the terms
of this chapter; or
(iv) to make, distribute, or possess a 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 a 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) 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 an area that is within 100 feet of any structure, facility, or grounds included
in Subsections [
(4)(a)(i), (ii), (iii), (iv), (v), and
] 
(4)(a)(i) through
 (vi);
(viii) in the presence of a person younger than 18 years old, regardless of where the act
occurs; or
(ix) 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 a
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.
(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 a 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).
(e) It is not a defense to a prosecution under this Subsection (4) that:
(i) the actor mistakenly believed the individual to be 18 years old or older at the time of
the offense or was unaware of the individual's true age; or
(ii) 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) A 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) A penalty imposed for violation of this section is in addition to, and not in lieu
of, a civil or administrative penalty or sanction authorized by law.
(b) When a 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) a 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) a law enforcement officer acting in the course and legitimate scope of the officer's
employment[
.
]
; or
(c) a healthcare facility, substance use harm reduction services program, or drug
addiction treatment facility that temporarily possesses a controlled or counterfeit substance to
conduct a test or analysis on the controlled or counterfeit substance to identify or analyze the
strength, effectiveness, or purity of the substance for a public health or safety reason.
(12) (a) Civil or criminal liability may not be imposed under this section on any Indian,
as defined in Section 
58-37-2
, 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 Section 
58-37-2
.
(b) In a prosecution alleging violation of this section regarding peyote as defined in
Section 
58-37-4
, 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 before
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 was:
(i) engaged in medical research; and
(ii) 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 or bystander:
(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, or assists a person who 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) If a minor who is under 18 years old is found by a court to have violated this
section or Subsection 
76-5-102.1
(2)(b) or 
76-5-207
(2)(b), the court may order the minor to
complete:
(a) a screening as defined in Section 
41-6a-501
;
(b) an assessment as defined in Section 
41-6a-501
 if the screening indicates an
assessment to be appropriate; and
(c) an educational series as defined in Section 
41-6a-501
 or substance use disorder
treatment as indicated by an assessment.
Section 2. Section 
58-37a-3
 is amended to read:
58-37a-3.
"Drug paraphernalia" defined.
(1)
 As used in this chapter, "drug paraphernalia" means any equipment, product, or
material used, or intended for use, to plant, propagate, cultivate, grow, harvest, manufacture,
compound, convert, produce, process, prepare, test, analyze, package, repackage, store, contain,
conceal, inject, ingest, inhale, or to otherwise introduce a controlled substance into the human
body in violation of [
Title 58, Chapter 37, Utah Controlled Substances Act, and includes, but is
not limited to:
] 
Chapter 37, Utah Controlled Substances Act.
[
(1)
] 
(2) "Drug paraphernalia" includes:
(a)
 kits used, or intended for use, in planting, propagating, cultivating, growing, or
harvesting any species of plant which is a controlled substance or from which a controlled
substance can be derived;
[
(2)
] 
(b)
 kits used, or intended for use, in manufacturing, compounding, converting,
producing, processing, or preparing a controlled substance;
[
(3)
] 
(c)
 isomerization devices used, or intended for use, to increase the potency of any
species of plant which is a controlled substance;
[
(4)
] 
(d) except as provided in Subsection (3),
 testing equipment used, or intended for
use, to identify or to analyze the strength, effectiveness, or purity of a controlled substance;
[
(5)
] 
(e)
 scales and balances used, or intended for use, in weighing or measuring a
controlled substance;
[
(6)
] 
(f)
 diluents and adulterants, such as quinine hydrochloride, mannitol, mannited,
dextrose and lactose, used, or intended for use to cut a controlled substance;
[
(7)
] 
(g)
 separation gins and sifters used, or intended for use to remove twigs, seeds, or
other impurities from marihuana;
[
(8)
] 
(h)
 blenders, bowls, containers, spoons and mixing devices used, or intended for
use to compound a controlled substance;
[
(9)
] 
(i)
 capsules, balloons, envelopes, and other containers used, or intended for use to
package small quantities of a controlled substance;
[
(10)
] 
(j)
 containers and other objects used, or intended for use to store or conceal a
controlled substance;
[
(11)
] 
(k)
 hypodermic syringes, needles, and other objects used, or intended for use to
parenterally inject a controlled substance into the human body, except as provided in Section
58-37a-5
; and
[
(12)
] 
(l)
 objects used, or intended for use to ingest, inhale, or otherwise introduce a
controlled substance into the human body, including but not limited to:
[
(a)
] 
(i)
 metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without
screens, permanent screens, hashish heads, or punctured metal bowls;
[
(b)
] 
(ii)
 water pipes;
[
(c)
] 
(iii)
 carburetion tubes and devices;
[
(d)
] 
(iv)
 smoking and carburetion masks;
[
(e)
] 
(v)
 roach clips: meaning objects used to hold burning material, such as a
marihuana cigarette, that has become too small or too short to be held in the hand;
[
(f)
] 
(vi)
 miniature cocaine spoons and cocaine vials;
[
(g)
] 
(vii)
 chamber pipes;
[
(h)
] 
(viii)
 carburetor pipes;
[
(i)
] 
(ix)
 electric pipes;
[
(j)
] 
(x)
 air-driven pipes;
[
(k)
] 
(xi)
 chillums;
[
(l)
] 
(xii)
 bongs; and
[
(m)
] 
(xiii)
 ice pipes or chillers.
(3) "Drug paraphernalia" does not include a testing product or equipment, including a
fentanyl test strip, used or intended for use to determine whether a substance contains:
(a) a controlled substance that can cause physical harm or death; or
(b) a chemical or compound that can cause physical harm or death.