MISSISSIPPI LEGISLATURE

1997 Regular Session

To: Judiciary A

By: Representative McCoy

House Bill 618

AN ACT TO AMEND SECTION 41-29-139, MISSISSIPPI CODE OF 1972, TO REVISE CERTAIN PENALTIES UNDER THE UNIFORM CONTROLLED SUBSTANCES ACT; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 41-29-139, Mississippi Code of 1972, is amended as follows:

41-29-139. (a) Except as authorized by this article, it is unlawful for any person knowingly or intentionally:

(1) To sell, barter, transfer, manufacture, distribute, purchase, dispense or possess with intent to sell, barter, transfer, manufacture, distribute or dispense, a controlled substance; or

(2) To create, sell, barter, transfer, distribute, dispense or possess with intent to create, sell, barter, transfer, distribute or dispense, a counterfeit substance.

(b) Except as otherwise provided in subsections (f) and (g) of this section or in Section 41-29-142, any person who violates subsection (a) of this section shall be sentenced as follows:

(1) In the case of controlled substances classified in Schedule I or II, as set out in Sections 41-29-113 and 41-29-115, except one (1) ounce or less of marihuana, * * * who violates subsection (a) of this section with respect to less than one (1) kilogram but more than one (1) ounce of marihuana, such person may, upon conviction, be punished as follows:

(A) For less than one-tenth (0.1) gram or two (2) dosage units by imprisonment for not less than two (2) years nor more than eight (8) years and by a fine of not more than Fifty Thousand Dollars ($50,000.00).

(B) For one-tenth (0.1) gram to one (1) gram or three (3) dosage units to ten (10) dosage units by imprisonment of not less than three (3) years nor more than ten (10) years and by a fine of not more than One Hundred Thousand Dollars ($100,000.00).

(C) For more than one (1) gram up to five (5) grams or more than ten (10) dosage units up to twenty (20) dosage units by imprisonment for not less than five (5) years nor more than fifteen (15) years and by a fine of not more than Two Hundred Thousand Dollars ($200,000.00).

(D) For more than five (5) grams up to fifteen (15) grams or more than twenty (20) dosage units up to thirty-five (35) dosage units by imprisonment for not less than eight (8) years nor more than twenty (20) years and a fine of not more than Five Hundred Thousand Dollars ($500,000.00).

(E) For more than fifteen (15) grams or more than thirty-five (35) dosage units by imprisonment for not less than ten (10) years nor more than thirty (30) years and by a fine of not more than One Million Dollars ($1,000,000.00).

 * * *

(2) In the case of * * * marihuana, a person who violates subsection (a) of this section may, upon conviction, be punished as follows:

(A) For less than one (1) ounce by imprisonment for not less than two (2) years or by a fine of not more than One Thousand Dollars ($1,000.00), or both.

(B) For one (1) ounce to five hundred (500) grams by imprisonment for not less than three (3) years nor more than eight (8) years and by a fine of not more than Fifty Thousand Dollars ($50,000.00).

(C) For more than five hundred (500) grams up to one (1) kilogram by imprisonment for not less than four (4) years nor more than ten (10) years and by a fine of not more than One Hundred Thousand Dollars ($100,000.00).

(D) For more than one (1) kilogram up to ten (10) kilograms by imprisonment for not less than six (6) years nor more than fifteen (15) years and by a fine of not more than Two Hundred Thousand Dollars ($200,000.00).

(E) For more than ten (10) kilograms by imprisonment for not less than ten (10) years nor more than twenty (20) years and by a fine of not more than Five Hundred Thousand Dollars ($500,000.00).

(3) In the case of controlled substances classified in Schedules III, IV and V, as set out in Sections 41-29-117 * * *, 41-29-119 and 41-29-121, such person may, upon conviction, be punished as follows:

(A) For less than two (2) grams or less than ten (10) dosage units by imprisonment for not less than one (1) year or a fine of not more than One Thousand Dollars ($1,000.00), or both.

(B) For two (2) grams up to ten (10) grams or ten (10) dosage units to thirty (30) dosage units by imprisonment for not less than two (2) years nor more than eight (8) years and by a fine of not more than Fifty Thousand Dollars ($50,000.00).

(C) For more than ten (20) grams up to twenty (20) grams or more than thirty (30) dosage units up to fifty (50) dosage units by imprisonment for not less than three (3) years nor more than ten (10) years and by a fine of not more than One Hundred Thousand Dollars ($100,000.00).

(D) For more than twenty (20) grams up to fifty (50) grams or more than fifty (50) dosage units up to one hundred (100) dosage units by imprisonment for not less than five (5) years nor more than fifteen (15) years and by a fine of not more than Two Hundred Thousand Dollars ($200,000.00).

* * *

(c) It is unlawful for any person knowingly or intentionally to possess any controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this article.

Any person who violates this subsection with respect to:

(1) A controlled substance classified in Schedule I or II, as set out in Sections 41-29-113 and 41-29-115, except marihuana, is guilty of a felony and upon conviction may be punished as follows:

(A) For less than five-tenths (0.5) grams or less than three (3) dosage units by imprisonment for not less than one (1) year and by a fine of not more than One Thousand Dollars ($1,000.00).

(B) For five-tenths (0.5) grams up to one (1) gram or ten (10) dosage units up to twenty (20) dosage units by imprisonment for not less than two (2) years nor more than eight (8) years and by a fine of not more than Fifty Thousand Dollars ($50,000.00).

(C) For one (1) gram up to five (5) grams or ten (10) dosage units up to twenty (20) dosage units by imprisonment for not less than three (3) years nor more than ten (10) years and by a fine of not more than One Hundred Thousand Dollars ($100,000.00).

(D) For five (5) grams up to fifteen (15) grams or twenty (20) dosage units up to thirty-five (35) dosage units by imprisonment for not less than five (5) years nor more than fifteen (15) years and by a fine of not more than Two Hundred Thousand Dollars ($200,000.00).

(E) For fifteen (15) grams up to thirty (30) grams or thirty-five (35) dosage units up to fifty (50) dosage units by imprisonment for not less than eight (8) years nor more than twenty (20) years and by a fine of not more than Five Hundred Thousand Dollars ($500,000.00).

(F) For more than thirty (30) grams or more than fifty (50) dosage units by imprisonment for not less than ten (10) years nor more than thirty (30) years and by a fine of not more than One Million Dollars ($1,000,000.00).

(2) (A) One (1) ounce or less of marihuana upon conviction is guilty of an offense punishable by a fine of not less than Five Hundred Dollars ($500.00) * * *. The provisions of this paragraph shall be enforceable by summons, provided the offender provides proof of identity satisfactory to the arresting officer and gives written promise to appear in court satisfactory to the arresting officer, as directed by the summons. A second conviction under this section within two (2) years shall be punished by a fine of One Thousand Dollars ($1,000.00) and not less than five (5) days nor more than sixty (60) days in the county jail and mandatory participation in a drug education program, approved by the Division of Alcohol and Drug Abuse of the State Department of Mental Health, unless the court enters a written finding that such drug education program is inappropriate. A third or subsequent conviction under this section within two (2) years is a misdemeanor punishable by a fine of not less than One Thousand Five Hundred Dollars ($1,500.00) and confinement for not less than five (5) days nor more than six (6) months in the county jail. Upon a first or second conviction under this section the courts shall forward a report of such conviction to the Mississippi Bureau of Narcotics which shall make and maintain a private, nonpublic record for a period not to exceed two (2) years from the date of conviction. The private, nonpublic record shall be solely for the use of the courts in determining the penalties which attach upon conviction under this section and shall not constitute a criminal record for the purpose of private or administrative inquiry and the record of each conviction shall be expunged at the end of the period of two (2) years following the date of such conviction;

(B) In the case of marihuana possession, other than as provided by (2)(A) of this subsection, a person who violates this subsection may be punished as follows:

1. For one (1) ounce up to one hundred (100) grams by imprisonment for not less than one (1) year or by a fine of not more than One Thousand Dollars ($1,000.00), or both.

2. For one hundred (100) grams up to one (1) kilogram by imprisonment for not less than three (3) years nor more than eight (8) years and by a fine of not more than Fifty Thousand Dollars ($50,000.00).

3. For one (1) kilogram up to ten (10) kilograms by imprisonment for not less than four (4) years nor more than ten (10) years and by a fine of not more than One Hundred Thousand Dollars ($100,000.00).

4. For ten (10) kilograms up to twenty (20) kilograms by imprisonment for not less than six (6) years nor more than fifteen (15) years and by a fine of not more than Two Hundred Thousand Dollars ($200,000.00).

5. For more than twenty (20) kilograms by imprisonment for not less than eight (8) years nor more than twenty (20) years and by a fine of not more than Five Hundred Thousand Dollars ($500,000.00).

(C) Additionally, a person who is the operator of a motor vehicle, who possesses on his person or knowingly keeps or allows to be kept in a motor vehicle within the area of the vehicle normally occupied by the driver or passengers, more than one (1) gram, but not more than one (1) ounce, of marihuana is guilty of a misdemeanor and upon conviction may be fined not more than One Thousand Dollars ($1,000.00) and confined for not more than ninety (90) days in the county jail. For the purposes of this subsection, such area of the vehicle shall not include the trunk of the motor vehicle or the areas not normally occupied by the driver or passengers if the vehicle is not equipped with a trunk. A utility or glove compartment shall be deemed to be within the area occupied by the driver and passengers;

 * * *

(3) A controlled substance classified in Schedule III, IV or V as set out in Sections 41-29-117 through 41-29-121, upon conviction, may be punished as follows:

(A) For less than ten (10) grams or less than thirty (30) dosage units by imprisonment for not less than one (1) year or by a fine of not more than One Thousand Dollars ($1,000.00), or both.

(B) For ten (10) grams up to twenty (20) grams or thirty (30) dosage units up to fifty 950) dosage units by imprisonment for not less than two (2) years nor more than four (4) years and by a fine of not more than Ten Thousand Dollars ($10,000.00).

(C) For twenty (20) grams up to fifty (50) grams or fifty (50) dosage units up to one hundred (100) dosage units by imprisonment for not less than three (3) years nor more than eight (8) years and by a fine of not more than Fifty Thousand Dollars ($50,000.00).

(D) For fifty (50) grams up to one hundred (100) grams or one hundred (100) dosage units up to five hundred (500) dosage units by imprisonment for not less than four (4) years nor more than ten (10) years and by a fine of not more than One Hundred Thousand Dollars ($100,000.00).

(E) For one hundred (100) grams up to two hundred (200) grams or five hundred (500) dosage units up to one thousand (1,000) dosage units by imprisonment for not less than five (5) years nor more than fifteen (15) years and by a fine of not more than Two Hundred Thousand Dollars ($200,000.00).

(F) For more than two hundred (200) grams or more than one thousand (1,000) dosage units imprisonment for not less than eight (8) years and not more than twenty (20) years and by a fine of not more than Five Hundred Thousand Dollars ($500,000.00).

(d) (1) It is unlawful for a person who is not authorized by the State Board of Medical Licensure, State Board of Pharmacy, or other lawful authority to use, or to possess with intent to use, paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance in violation of the Uniform Controlled Substances Law. Any person who violates this subsection is guilty of a misdemeanor and upon conviction may be confined in the county jail for not more than one (1) year, or fined not more than One Thousand Dollars ($1,000.00), or both; however, no person shall be charged with a violation of this subsection when such person is also charged with the possession of one (1) ounce or less of marihuana under subsection (c)(2)(A) of this section.

(2) It is unlawful for any person to deliver, sell, possess with intent to deliver or sell, or manufacture with intent to deliver or sell, paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of the Uniform Controlled Substances Law. Any person who violates this subsection is guilty of a misdemeanor and upon conviction may be confined in the county jail for not more than six (6) months, or fined not more than Five Hundred Dollars ($500.00), or both.

(3) Any person eighteen (18) years of age or over who violates subsection (d)(2) of this section by delivering or selling paraphernalia to a person under eighteen (18) years of age who is at least three (3) years his junior is guilty of a misdemeanor and upon conviction may be confined in the county jail for not more than one (1) year, or fined not more than One Thousand Dollars ($1,000.00), or both.

(4) It is unlawful for any person to place in any newspaper, magazine, handbill, or other publication any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended for use as paraphernalia. Any person who violates this subsection is guilty of a misdemeanor and upon conviction may be confined in the county jail for not more than six (6) months, or fined not more than Five Hundred Dollars ($500.00), or both.

(e) It shall be unlawful for any physician practicing medicine in this state to prescribe, dispense or administer any amphetamine or amphetamine-like anorectics and/or central nervous system stimulants classified in Schedule II, pursuant to Section 41-29-115, for the exclusive treatment of obesity, weight control or weight loss. Any person who violates this subsection, upon conviction, is guilty of a misdemeanor and may be confined for a period not to exceed six (6) months, or fined not more than One Thousand Dollars ($1,000.00), or both.

(f) Except as otherwise authorized in this article, any person twenty-one (21) years of age or older who knowingly sells, barters, transfers, manufactures, distributes or dispenses during any twelve (12) consecutive month period: (i) ten (10) pounds or more of marihuana; (ii) two (2) ounces or more of heroin; (iii) two (2) or more ounces of cocaine or of any mixture containing cocaine as described in Section 41-29-105(s), Mississippi Code of 1972; or (iv) one hundred (100) or more dosage units of morphine, Demerol or Dilaudid, shall be guilty of a felony and, upon conviction thereof, shall be sentenced to life imprisonment and such sentence shall not be reduced or suspended nor shall such person be eligible for probation or parole, the provisions of Sections 41-29-149, 47-5-139, 47-7-3 and 47-7-33, Mississippi Code of 1972, to the contrary notwithstanding. The provisions of this subsection shall not apply to any person who furnishes information and assistance to the bureau or its designee which, in the opinion of the trial judge objectively should or would have aided in the arrest or prosecution of others who violate this subsection. The accused shall have adequate opportunity to develop and make a record of all information and assistance so furnished.

(g) (1) Any person trafficking in controlled substances shall be guilty of a felony and upon conviction shall be imprisoned for a term of thirty (30) years and such sentence shall not be reduced or suspended nor shall such person be eligible for probation or parole, the provisions of Sections 41-29-149, 47-5-139, 47-7-3 and 47-7-33, Mississippi Code of 1972, to the contrary notwithstanding and shall be fined not less than Five Thousand Dollars ($5,000.00) nor more than One Million Dollars ($1,000,000.00).

(2) "Trafficking in controlled substances" as used herein means to engage in three (3) or more component offenses within any twelve (12) consecutive month period where at least two (2) of the component offenses occurred in different counties. A component offense is any act which would constitute a violation of subsection (a) of this section. Prior convictions shall not be used as component offenses to establish the charge of trafficking in controlled substances.

(3) The charge of trafficking in controlled substances shall be set forth in one (1) count of an indictment with each of the component offenses alleged therein and it may be charged and tried in any county where a component offense occurred. An indictment for trafficking in controlled substances may also be returned by the State Grand Jury of Mississippi provided at least two (2) of the component offenses occurred in different circuit court districts.

(h) Under this section all sentences shall be within the minimum and maximum as provided in this section except that the minimum may be reduced if the following conditions are met:

(1) The defendant accepts responsibility;

(2) The defendant cooperates with law enforcement;

(3) The defendant shows remorse; and

(4) No objection is raised by the prosecuting attorney.

If the conditions in this paragraph are met, the court is free to impose any sentence deemed appropriate by the court which does not violate any other provision of law. The court may suspend any portion of a sentence imposed and require probation, except for the mandatory minimum which may not be suspended unless the above conditions are met.

(i) The mandatory minimums and maximums are subject to the following enhancement penalties:

(1) Double by another drug conviction as provided in Section 41-29-147;

(2) Conviction as a habitual offender as defined under Sections 99-19-81 and 99-19-83;

(3) Doubled if firearm involved as provided in Section 41-029-152; and

(4) Doubled if near school, church or other areas provided in Section 41-29-142.

(j) The weight of a controlled substance refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance.

(k) For the purposes of this section, "dosage unit" means a tablet or capsule or, in the case of a liquid solution, one (1) milliliter. In the case of lysergic acid diethylamide (LSD) the term "dosage unit" means a stamp, square, dot, microdont, tablet or capsule of lysergic acid diethylamide (LSD).

(l) (1) If a controlled substance does not fall within the definition of the term "dosage unit," the penalty imposed shall be based upon the weight of the controlled substance.

(2) The weight set forth refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance.

(3) If the mixture or substance contains more than one (1) controlled substance, the weight of the entire mixture or substance is assigned to the controlled substance that results in the greater punishment.

(m) The provisions of paragraph (h) shall not affect paragraph (f) of this section.

SECTION 2. This act shall take effect and be in force from and after July 1, 1997.