58-37-8 - Prohibited acts -- Penalties. - Utah Statutes

58-37-8. Prohibited acts -- Penalties.
(1) Prohibited acts A -- Penalties:
(a) Except as authorized by this chapter, it is unlawful for any person to knowingly andintentionally:
(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 arrangeto 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 which results in any violationof any provision of Title 58, Chapters 37, 37a, 37b, 37c, or 37d 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, 37a, 37b, 37c, or 37d on separate occasions that are undertaken in concert with fiveor more persons with respect to whom the person occupies a position of organizer, supervisor, orany 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 controlledsubstance analog, or gammahydroxybutyric acid as listed in Schedule III is guilty of a seconddegree felony 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, ormarijuana, is guilty of a third degree felony, and upon a second or subsequent conviction is guiltyof a second degree felony; or
(iii) a substance or a counterfeit of a substance classified in Schedule V is guilty of aclass A misdemeanor and upon a second or subsequent conviction is guilty of a third degreefelony.
(c) Any person who has been convicted of a violation of Subsection (1)(a)(ii) or (iii) maybe sentenced to imprisonment for an indeterminate term as provided by law, but if the trier offact finds a firearm as defined in Section 76-10-501 was used, carried, or possessed on his personor in his immediate possession during the commission or in furtherance of the offense, the courtshall additionally sentence the person convicted for a term of one year to run consecutively andnot concurrently; and the court may additionally sentence the person convicted for anindeterminate 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 degreefelony punishable by imprisonment for an indeterminate term of not less than seven years andwhich may be for life. Imposition or execution of the sentence may not be suspended, and theperson is not eligible for probation.
(2) Prohibited acts B -- Penalties:
(a) It is unlawful:
(i) for any person knowingly and intentionally to possess or use a controlled substanceanalog 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 asotherwise 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 thoselocations; or
(iii) for any person knowingly and intentionally to possess an altered or forgedprescription 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;
(ii) a substance classified in Schedule I or II, marijuana, if the amount is more than 16ounces, but less than 100 pounds, or a controlled substance analog, is guilty of a third degreefelony; or
(iii) marijuana, if the marijuana is not in the form of an extracted resin from any part ofthe plant, and the amount is more than one ounce but less than 16 ounces, is guilty of a class Amisdemeanor.
(c) Upon a person's conviction of a violation of this Subsection (2) subsequent to aconviction under Subsection (1)(a), that person shall be sentenced to a one degree greater penaltythan provided in this Subsection (2).
(d) Any person who violates Subsection (2)(a)(i) with respect to all other controlledsubstances not included in Subsection (2)(b)(i), (ii), or (iii), including less than one ounce ofmarijuana, is guilty of a class B misdemeanor. Upon a second conviction the person is guilty of aclass A misdemeanor, and upon a third or subsequent conviction the person is guilty of a thirddegree felony.
(e) Any person convicted of violating Subsection (2)(a)(i) while inside the exteriorboundaries of property occupied by any correctional facility as defined in Section 64-13-1 or anypublic jail or other place of confinement shall be sentenced to a penalty one degree greater thanprovided in Subsection (2)(b), and if the conviction is with respect to controlled substances aslisted in:
(i) Subsection (2)(b), the person may be sentenced to imprisonment for an indeterminateterm as provided by law, and:
(A) the court shall additionally sentence the person convicted to a term of one year to runconsecutively and not concurrently; and
(B) the court may additionally sentence the person convicted for an indeterminate termnot to exceed five years to run consecutively and not concurrently; and
(ii) Subsection (2)(d), the person may be sentenced to imprisonment for an indeterminateterm as provided by law, and the court shall additionally sentence the person convicted to a termof six months to run consecutively and not concurrently.
(f) Any person convicted of violating Subsection (2)(a)(ii) or (2)(a)(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 notamounting to a violation of Section 76-5-207:
(i) violates Subsection (2)(a)(i) by knowingly and intentionally having in the person'sbody 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:

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(i) a controlled substance classified under Schedule I, other than those described inSubsection (2)(h)(ii), or a controlled substance classified under Schedule II is guilty of a seconddegree felony;
(ii) marijuana, tetrahydrocannabinols, or equivalents described in Subsection58-37-4(2)(a)(iii)(S) or (AA) is guilty of a third degree felony; or
(iii) any controlled substance classified under Schedules III, IV, or V is guilty of a classA misdemeanor.
(i) A person is guilty of a separate offense for each victim suffering serious bodily injuryor 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.
(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 alicense number which is fictitious, revoked, suspended, or issued to another person or, for thepurpose of obtaining a controlled substance, to assume the title of, or represent oneself to be, amanufacturer, wholesaler, apothecary, physician, dentist, veterinarian, or other authorized person;
(ii) to acquire or obtain possession of, to procure or attempt to procure the administrationof, to obtain a prescription for, to prescribe or dispense to any person known to be attempting toacquire or obtain possession of, or to procure the administration of any controlled substance bymisrepresentation or failure by the person to disclose receiving any controlled substance fromanother source, fraud, forgery, deception, subterfuge, alteration of a prescription or written orderfor 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 termsof this chapter; or
(iv) to make, distribute, or possess any punch, die, plate, stone, or other thing designed toprint, imprint, or reproduce the trademark, trade name, or other identifying mark, imprint, ordevice of another or any likeness of any of the foregoing upon any drug or container or labelingso as to render any drug a counterfeit controlled substance.
(b) Any person convicted of violating Subsection (3)(a) is guilty of a third degree felony.
(4) Prohibited acts D -- Penalties:
(a) Notwithstanding other provisions of this section, a person not authorized under thischapter who commits any act declared to be unlawful under this section, Title 58, Chapter 37a,Utah Drug Paraphernalia Act, or under Title 58, Chapter 37b, Imitation Controlled SubstancesAct, is upon conviction subject to the penalties and classifications under this Subsection (4) if thetrier of fact finds the act is committed:
(i) in a public or private elementary or secondary school or on the grounds of any ofthose schools;
(ii) in a public or private vocational school or postsecondary institution or on the groundsof any of those schools or institutions;
(iii) in those portions of any building, park, stadium, or other structure or grounds whichare, at the time of the act, being used for an activity sponsored by or through a school orinstitution under Subsections (4)(a)(i) and (ii);
(iv) in or on the grounds of a preschool or child-care facility;
(v) in a public park, amusement park, arcade, or recreation center;

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(vi) in or on the grounds of a house of worship as defined in Section 76-10-501;
(vii) in a shopping mall, sports facility, stadium, arena, theater, movie house, playhouse,or parking lot or structure adjacent thereto;
(viii) in or on the grounds of a library;
(ix) within any area that is within 1,000 feet of any structure, facility, or groundsincluded in Subsections (4)(a)(i), (ii), (iv), (vi), and (vii);
(x) in the presence of a person younger than 18 years of age, regardless of where the actoccurs; or
(xi) for the purpose of facilitating, arranging, or causing the transport, delivery, ordistribution of a substance in violation of this section to an inmate or on the grounds of anycorrectional 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 andshall be imprisoned for a term of not less than five years if the penalty that would otherwise havebeen 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 noteligible for probation.
(c) If the classification that would otherwise have been established would have been lessthan 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. ThisSubsection (4)(c) does not apply to a violation of Subsection (2)(g).
(d) (i) If the violation is of Subsection (4)(a)(xi):
(A) the person may be sentenced to imprisonment for an indeterminate term as providedby law, and the court shall additionally sentence the person convicted for a term of one year torun consecutively and not concurrently; and
(B) the court may additionally sentence the person convicted for an indeterminate termnot 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 withthe mental state required for the commission of an offense, directly or indirectly solicits,requests, commands, coerces, encourages, or intentionally aids another person to commit aviolation of Subsection (4)(a)(xi).
(e) It is not a defense to a prosecution under this Subsection (4) that the actor mistakenlybelieved the individual to be 18 years of age or older at the time of the offense or was unaware ofthe individual's true age; nor that the actor mistakenly believed that the location where the actoccurred was not as described in Subsection (4)(a) or was unaware that the location where the actoccurred was as described in Subsection (4)(a).
(5) Any violation of this chapter for which no penalty is specified is a class Bmisdemeanor.
(6) For purposes of penalty enhancement under Subsections (1)(b) and (2)(c), a plea ofguilty or no contest to a violation of this section which is held in abeyance under Title 77,Chapter 2a, Pleas in Abeyance, is the equivalent of a conviction, even if the charge has beensubsequently reduced or dismissed in accordance with the plea in abeyance agreement.
(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 lieuof, any civil or administrative penalty or sanction authorized by law.

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(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 toprosecution in this state.
(9) In any prosecution for a violation of this chapter, evidence or proof which shows aperson or persons produced, manufactured, possessed, distributed, or dispensed a controlledsubstance or substances, is prima facie evidence that the person or persons did so withknowledge of the character of the substance or substances.
(10) This section does not prohibit a veterinarian, in good faith and in the course of theveterinarian's professional practice only and not for humans, from prescribing, dispensing, oradministering controlled substances or from causing the substances to be administered by anassistant 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 possessesan imitation controlled substance for use as a placebo or investigational new drug by a registeredpractitioner 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'semployment.
(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 fidetraditional ceremonial purposes in connection with the practice of a traditional Indian religion asdefined in Subsection 58-37-2(1)(w).
(b) In a prosecution alleging violation of this section regarding peyote as defined inSubsection 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 thepractice of a traditional Indian religion.
(c) (i) The defendant shall provide written notice of intent to claim an affirmative defenseunder 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 causeshown, 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 apreponderance of the evidence. If the defense is established, it is a complete defense to thecharges.
(13) If any provision of this chapter, or the application of any provision to any person orcircumstances, is held invalid, the remainder of this chapter shall be given effect without theinvalid provision or application.

Amended by Chapter 64, 2010 General Session