MISSISSIPPI LEGISLATURE
2016 Regular Session
To: Drug Policy
By: Senator(s) Jordan
AN ACT TO AMEND SECTIONS 41-29-139 AND 41-29-149.1, MISSISSIPPI CODE OF 1972, TO REVISE THE CLASSIFICATION OF SYNTHETIC CANNABINOIDS FOR PURPOSES OF SENTENCING AND IMMUNITY; 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, 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 Section 41-29-142, any person who violates subsection (a) of this section in the following amounts shall be, if convicted, 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 thirty (30) grams or less of marijuana * * *, and except a first
offender as defined in Section 41-29-149(e) who violates subsection (a) of this
section with respect to less than one (1) kilogram but more than thirty (30)
grams of marijuana * * *, such person may, upon conviction for an
amount of the controlled substance of:
(A) Less than two (2) grams or ten (10) dosage units, be imprisoned for not more than eight (8) years or fined not more than Fifty Thousand Dollars ($50,000.00), or both.
(B) Two (2) grams or ten (10) dosage units or more, but less than ten (10) grams or twenty (20) dosage units, be imprisoned for not less than three (3) years nor more than twenty (20) years or fined not more than Two Hundred Fifty Thousand Dollars ($250,000.00), or both.
(C) Ten (10) grams or twenty (20) dosage units or more, but less than thirty (30) grams or forty (40) dosage units, be imprisoned for not less five (5) years nor more than thirty (30) years or fined not more than Five Hundred Thousand Dollars ($500,000.00).
(2) In the case of a
first offender who violates subsection (a) of this section with an amount less
than one (1) kilogram but more than thirty (30) grams of marijuana * * * as classified in
Schedule I, as set out in Section 41-29-113, such person is guilty of a felony
and, upon conviction, may be imprisoned for not more than five (5) years or
fined not more than Thirty Thousand Dollars ($30,000.00), or both;
(3) In the case of
thirty (30) grams or less of marijuana * * *, such person may,
upon conviction, be imprisoned for not more than three (3) years or fined not
more than Three Thousand Dollars ($3,000.00), or both;
(4) In the case of controlled substances classified in Schedules III and IV, as set out in Sections 41-29-117 and 41-29-119, such person may, upon conviction for an amount of the controlled substance of:
(A) Less than two (2) grams or ten (10) dosage units, be imprisoned for not more than eight (8) years or fined not more than Five Thousand Dollars ($5,000.00), or both;
(B) Two (2) grams or ten (10) dosage units or more but less than ten (10) grams or twenty (20) dosage units, be imprisoned for not more than eight (8) years or fined not more than Fifty Thousand Dollars ($50,000.00), or both;
(C) Ten (10) grams or twenty (20) dosage units or more but less than thirty (30) grams or forty (40) dosage units, be imprisoned for not more than fifteen (15) years or fined not more than One Hundred Thousand Dollars ($100,000.00).
(5) In the case of controlled substances classified in Schedule V, as set out in Section 41-29-121, such person may, upon conviction for an amount of the controlled substance of:
(A) Less than two (2) grams or ten (10) dosage units, be imprisoned for not more than one (1) year or fined not more than Five Thousand Dollars ($5,000.00), or both;
(B) Two (2) grams or ten (10) dosage units or more but less than ten (10) grams or twenty (20) dosage units, be imprisoned for not more than five (5) years or fined not more than Ten Thousand Dollars ($10,000.00), or both;
(C) Ten (10) grams or twenty (20) dosage units or more but less than thirty (30) grams or forty (40) dosage units, be imprisoned for not more than ten (10) years or fined not more than Twenty Thousand Dollars ($20,000.00).
(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. The penalties for
any violation of this subsection (c) with respect to a controlled substance
classified in Schedules I, II, III, IV or V, as set out in Section 41-29-113,
41-29-115, 41-29-117, 41-29-119 or 41-29-121, including marijuana * * *, shall be based on
dosage unit as defined herein or the weight of the controlled substance as set
forth herein as appropriate:
"Dosage unit (d.u.)" 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, microdot, tablet or capsule of a controlled substance.
For any controlled substance that does not fall within the definition of the term "dosage unit," the penalties shall be based upon the weight of the controlled substance.
The weight set forth refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance.
If a mixture or substance contains more than one (1) controlled substance, the weight of the mixture or substance is assigned to the controlled substance that results in the greater punishment.
Any person who violates this subsection with respect to:
(1) A controlled
substance classified in Schedule I or II, except marijuana * * *, in the following
amounts shall be charged and sentenced as follows:
(A) Less than one-tenth (0.1) gram or two (2) dosage units shall be charged as a misdemeanor and, upon conviction, may be imprisoned for up to one (1) year or fined not more than One Thousand Dollars ($1,000.00), or both.
(B) One-tenth (0.1) gram or two (2) dosage units or more but less than two (2) grams or ten (10) dosage units, may be imprisoned for not more than three (3) years or a fine of not more than Fifty Thousand Dollars ($50,000.00), or both.
(C) Two (2) grams or ten (10) dosage units or more but less than ten (10) grams or twenty (20) dosage units, may be imprisoned for not more than eight (8) years and fined not more than Two Hundred Fifty Thousand Dollars ($250,000.00), or both.
(D) Ten (10) grams or twenty (20) dosage units or more but less than thirty (30) grams or forty (40) dosage units, may be imprisoned for not less than three (3) years nor more than twenty (20) years and fined not more than Five Hundred Thousand Dollars ($500,000.00), or both.
(2) Marijuana * * * in the following
amounts shall be charged and sentenced as follows:
(A) Thirty (30) grams or less by a fine of not less than One Hundred Dollars ($100.00) nor more than Two Hundred Fifty Dollars ($250.00). 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 Two Hundred Fifty Dollars ($250.00) 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 Two Hundred Fifty Dollars ($250.00) nor more than Five Hundred Dollars ($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) 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 thirty (30) grams, of marijuana * * * 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;
(C) More than thirty (30) grams but less than two hundred fifty (250) grams may be fined not more than One Thousand Dollars ($1,000.00), or confined in the county jail for not more than one (1) year, or both; or fined not more than Three Thousand Dollars ($3,000.00), or imprisoned in the State Penitentiary for not more than three (3) years, or both;
(D) Two hundred fifty (250) grams but less than five hundred (500) grams, by imprisonment for not less than two (2) years nor more than eight (8) years or by a fine of not more than Fifty Thousand Dollars ($50,000.00), or both;
(E) Five hundred (500) grams but less than one (1) kilogram, by imprisonment for not less than four (4) years nor more than sixteen (16) years or a fine of less than Two Hundred Fifty Thousand Dollars ($250,000.00), or both;
(F) One (1) kilogram but less than five (5) kilograms, by imprisonment for not less than six (6) years nor more than twenty-four (24) years or a fine of not more than Five Hundred Thousand Dollars ($500,000.00), or both;
(G) Five (5) kilograms or more, by imprisonment for not less than ten (10) years nor more than thirty (30) years or a fine of not more than One Million Dollars ($1,000,000.00), or both.
(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) Less than fifty (50) grams or less than one hundred (100) dosage units is a misdemeanor and punishable by not more than one (1) year or a fine of not more than One Thousand Dollars ($1,000.00), or both.
(B) Fifty (50) grams or one hundred (100) dosage units or more but less than one hundred fifty (150) grams or five hundred (500) dosage units, by imprisonment for not less than one (1) year nor more than four (4) years or a fine of not more than Ten Thousand Dollars ($10,000.00), or both.
(C) One hundred fifty (150) grams or Five Hundred (500) dosage units or more but less than three hundred (300) grams or one thousand (1,000) dosage units, by imprisonment for not less than two (2) years nor more than eight (8) years or a fine of not more than Fifty Thousand Dollars ($50,000.00), or both.
(D) Three hundred (300) grams or one thousand (1,000) dosage units or more but less than five hundred (500) grams or two thousand five hundred (2,500) dosage units, by imprisonment for not less than four (4) years nor more than sixteen (16) years or a fine of not more than Two Hundred Fifty Thousand Dollars ($250,000.00), or both.
(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 six (6) months, or fined not more than Five Hundred Dollars
($500.00), 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 marijuana * * * 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) (1) Any person trafficking in controlled substances shall be guilty of a felony and, upon conviction, shall be imprisoned for a term of not less than ten (10) years nor more than forty (40) years. The ten-year mandatory sentence shall not be reduced or suspended. The person shall not 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 during the sentence 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:
(A) A violation of subsection (a) of this section involving thirty (30) grams or forty (40) dosage units or more of a Schedule I or II substance except marijuana;
(B) A violation of subsection (c) of this section involving five hundred (500) grams or two thousand five hundred (2,500) dosage units of a Schedule III, IV or V substance;
(C) A violation of subsection (c) of this section involving thirty (30) grams or forty (40) dosage units or more of a Schedule I or II substance except marijuana; or
(D) A violation of
subsection (a) of this section involving one (1) kilogram or more of marijuana * * *.
(3) 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) Any person trafficking in Schedule I or II substances, except marijuana, of two hundred (200) grams or more shall be guilty of aggravated trafficking and, upon conviction, shall be sentenced to a term of not less than twenty-five (25) years nor more than life in prison. The twenty-five-year sentence shall be a mandatory sentence and shall not be reduced or suspended. The person shall not 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 during the sentence and shall be fined not less than Five Thousand Dollars ($5,000.00) nor more than One Million Dollars ($1,000,000.00).
(h) (1) Notwithstanding any provision of this section, a person who has been convicted of an offense under this section that requires the judge to impose a prison sentence which cannot be suspended or reduced and is ineligible for probation or parole may, at the discretion of the court, receive a sentence of imprisonment that is no less than twenty-five percent (25%) of the sentence prescribed by the applicable statute. In considering whether to apply the departure from the sentence prescribed, the court shall conclude that:
(A) The offender was not a leader of the criminal enterprise;
(B) The offender did not use violence or a weapon during the crime;
(C) The offense did not result in a death or serious bodily injury of a person not a party to the criminal enterprise; and
(D) The interests of justice are not served by the imposition of the prescribed mandatory sentence.
(2) If the court reduces the prescribed sentence pursuant to this subsection, it must specify on the record the circumstances warranting the departure.
SECTION 2. Section 41-29-149.1, Mississippi Code of 1972, is amended as follows:
41-29-149.1. (1) This section shall be known as the "Mississippi Medical Emergency Good Samaritan Act."
(2) As used in this section, the following words shall have the meanings ascribed:
(a) "Drug overdose" means an acute condition, including, but not limited to, extreme physical illness, decreased level of consciousness, respiratory depression, coma, mania, or death, resulting from the consumption or use of a controlled substance or dangerous drug in violation of this chapter or that a layperson would reasonably believe to be resulting from the consumption or use of a controlled substance or dangerous drug for which medical assistance is required.
(b) "Drug violation" means:
(i) A violation of Section 41-29-139 for possession of a controlled substance if the aggregate weight, including any mixture, is less than four (4) grams of a solid substance, less than twenty (20) dosage units, less than one (1) milliliter of liquid substance, or, if the substance is placed onto a secondary medium, has a combined weight of less than four (4) grams;
(ii) A violation
of Section 41-29-139 for possession of thirty (30) grams or less of marihuana * * *; or
(iii) A violation of Section 41-29-139(d)(2) relating to possession and use of paraphernalia.
(c) "Medical assistance" means aid provided to a person experiencing or believed to be experiencing a drug overdose by a health care professional who is licensed, registered, or certified under the laws of this state and who, acting within the lawful scope of practice, may provide diagnosis, treatment, or emergency services relative to the overdose.
(d) "Seeks medical assistance" means accesses or assists in accessing the E-911 system or otherwise contacts or assists in contacting law enforcement or a poison control center or provides care to a person experiencing or believed to be experiencing a drug overdose while awaiting the arrival of medical assistance to aid the person.
(3) (a) Any person who in good faith seeks medical assistance for someone who is experiencing a drug overdose shall not be arrested, charged, or prosecuted for a drug violation if there is evidence that the person is under the influence of a controlled substance or in possession of a controlled substance as referenced in subsection (2)(b) of this section.
(b) Any person who is experiencing a drug overdose and, in good faith, seeks medical assistance or is the subject of a request for medical assistance shall not be arrested, charged, or prosecuted for a drug violation if there is evidence that the person is under the influence of a controlled substance or in possession of a controlled substance as referenced in subsection (2)(b) of this section.
(c) A person shall also not be subject to, if related to the seeking of medical assistance:
(i) Penalties for a violation of a permanent or temporary protective order or restraining order;
(ii) Sanctions for a violation of a condition of pretrial release, condition of probation, or condition of parole based on a drug violation; or
(iii) Forfeiture of property pursuant to Section 41-29-153 or 41-29-176 for a drug violation, except that prima facie contraband shall be subject to forfeiture.
(4) Nothing in this section shall be construed:
(a) To limit the admissibility of any evidence in connection with the investigation or prosecution of a crime with regard to a defendant who does not qualify for the protections of subsection (3) of this section or with regard to other crimes committed by a person who otherwise qualifies for protection pursuant to subsection (3) of this section;
(b) To limit any seizure of evidence or contraband otherwise permitted by law; and
(c) To limit or abridge the authority of a law enforcement officer to detain or take into custody a person in the course of an investigation or to effectuate an arrest for any offense except as provided in subsection (3) of this section.
SECTION 3. This act shall take effect and be in force from and after its passage.