MISSISSIPPI LEGISLATURE
2006 Regular Session
To: Judiciary, Division B
By: Senator(s) Albritton, Dearing, Morgan
AN ACT TO AMEND SECTION 41-29-313, MISSISSIPPI CODE OF 1972, TO MAKE A TECHNICAL CORRECTION TO THE AMOUNTS OF PSEUDOEPHEDRINE WHICH ARE PRESUMED TO BE POSSESSED FOR THE PURPOSE OF ILLEGALLY MANUFACTURING METHAMPHETAMINE; TO AMEND SECTION 97-1-1, MISSISSIPPI CODE OF 1972, TO REVISE THE CRIME OF CONSPIRACY TO INCLUDE ALL CONTROLLED SUBSTANCE VIOLATIONS TO DRAW THE ENHANCED PENALTY; TO AMEND SECTION 99-15-26, MISSISSIPPI CODE OF 1972, TO REVISE THE OFFENSES BY AMOUNT POSSESSED OR SOLD FOR WHICH AN OFFENDER WILL NOT BE ELIGIBLE FOR NONADJUDICATION; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 41-29-313, Mississippi Code of 1972, is amended as follows:
41-29-313. (1) (a) Except as authorized in this section and in Section 41-29-315, it is unlawful for any person to knowingly or intentionally:
(i) Purchase, possess, transfer, manufacture, attempt to manufacture or distribute any two (2) or more of the listed precursor chemicals or drugs in any amount with the intent to unlawfully manufacture a controlled substance;
(ii) Purchase, possess, transfer, manufacture, attempt to manufacture or distribute any two (2) or more of the listed precursor chemicals or drugs in any amount, knowing, or under circumstances where one reasonably should know, that the listed precursor chemical or drug will be used to unlawfully manufacture a controlled substance;
(b) The term "precursor drug or chemical" means a drug or chemical that, in addition to legitimate uses, may be used in manufacturing a controlled substance in violation of this chapter. The term includes any salt, optical isomer or salt of an optical isomer, whenever the existence of a salt, optical isomer or salt of optical isomer is possible within the specific chemical designation. The chemicals or drugs listed in this section are included by whatever official, common, usual, chemical or trade name designated. A "precursor drug or chemical" includes, but is not limited to, the following:
(i) Ether;
(ii) Anhydrous ammonia;
(iii) Ammonium nitrate;
(iv) Pseudoephedrine;
(v) Ephedrine;
(vi) Denatured alcohol (Ethanol);
(vii) Lithium;
(viii) Freon;
(ix) Hydrochloric acid;
(x) Hydriodic acid;
(xi) Red phosphorous;
(xii) Iodine;
(xiii) Sodium metal;
(xiv) Sodium hydroxide;
(xv) Muriatic acid;
(xvi) Sulfuric acid;
(xvii) Hydrogen chloride gas;
(xviii) Potassium;
(xix) Methanol;
(xx) Isopropyl alcohol;
(xxi) Hydrogen peroxide;
(xxii) Hexanes;
(xxiii) Heptanes;
(xxiv) Acetone;
(xxv) Toluene;
(xxvi) Xylenes.
(c) Any person who violates this subsection (1), upon conviction, is guilty of a felony and may be imprisoned for a period not to exceed thirty (30) years and shall be fined not less than Five Thousand Dollars ($5,000.00) nor more than One Million Dollars ($1,000,000.00), or both fine and imprisonment.
(2) (a) It is unlawful for any person to knowingly or intentionally steal or unlawfully take or carry away any amount of anhydrous ammonia or to break, cut, or in any manner damage the valve or locking mechanism on an anhydrous ammonia tank with the intent to steal or unlawfully take or carry away anhydrous ammonia.
(b) (i) It is unlawful for any person to purchase, possess, transfer or distribute any amount of anhydrous ammonia, knowing, or under circumstances where one reasonably should know, that the anhydrous ammonia will be used to unlawfully manufacture a controlled substance.
(ii) The possession of any amount of anhydrous ammonia in a container unauthorized for containment of anhydrous ammonia pursuant to Section 75-57-9 shall be prima facie evidence of intent to use the anhydrous ammonia to unlawfully manufacture a controlled substance.
(c) (i) It is unlawful for any person to purchase, possess, transfer or distribute * * * pseudoephedrine or ephedrine knowing, or under circumstances where one reasonably should know, that the pseudoephedrine or ephedrine will be used to unlawfully manufacture a controlled substance.
(ii) Except as provided in this subparagraph, possession of one or more products containing more than twenty-four (24) grams of ephedrine or pseudoephedrine shall constitute a rebuttable presumption of intent to use the product as a precursor to methamphetamine or another controlled substance. The rebuttable presumption established by this subparagraph shall not apply to the following persons who are lawfully possessing the identified drug products in the course of legitimate business:
1. A retail distributor of the drug products described in this subparagraph possessing a valid business license or wholesaler;
2. A wholesale drug distributor, or its agents, licensed by the Mississippi State Board of Pharmacy;
3. A manufacturer of drug products described in this subparagraph, or its agents, licensed by the Mississippi State Board of Pharmacy;
4. A pharmacist licensed by the Mississippi State Board of Pharmacy; or
5. A licensed health care professional possessing the drug products described in this subparagraph (ii) in the course of carrying out his profession.
(d) Any person who violates this subsection (2), upon conviction, is guilty of a felony and may be imprisoned for a period not to exceed five (5) years and shall be fined not more than Five Thousand Dollars ($5,000.00), or both fine and imprisonment.
(3) Nothing in this section shall preclude any farmer from storing or using any of the listed precursor drugs or chemicals listed in this section in the normal pursuit of farming operations.
(4) Nothing in this section shall preclude any wholesaler, retailer or pharmacist from possessing or selling the listed precursor drugs or chemicals in the normal pursuit of business.
(5) Any person who violates the provisions of this section with children under the age of eighteen (18) years present may be subject to a term of imprisonment or a fine, or both, of twice that provided in this section.
(6) Any person who violates the provisions of this section when the offense occurs in any hotel or apartment building or complex may be subject to a term of imprisonment or a fine, or both, of twice that provided in this section. For the purposes of this subsection (6), the following terms shall have the meanings ascribed to them:
(a) "Hotel" means a hotel, inn, motel, tourist court, apartment house, rooming house or any other place where sleeping accommodations are furnished or offered for pay if four (4) or more rooms are available for transient guests.
(b) "Apartment building" means any building having four (4) or more dwelling units, including, without limitation, a condominium building.
(7) Any person who violates the provisions of this section who has in his possession any firearm, either at the time of the commission of the offense or at the time any arrest is made, may be subject to a term of imprisonment or a fine, or both, of twice that provided in this section.
(8) Any person who violates the provisions of this section upon any premises upon which any booby trap has been installed or rigged may be subject to a term of imprisonment or a fine, or both, of twice that provided in this section. For the purposes of this subsection, the term "booby trap" means any concealed or camouflaged device designed to cause bodily injury when triggered by any action of a person making contact with the device. The term includes guns, ammunition or explosive devices attached to trip wires or other triggering mechanisms, sharpened stakes, nails, spikes, electrical devices, lines or wires with hooks attached, and devices designed for the production of toxic fumes or gases.
SECTION 2. Section 97-1-1, Mississippi Code of 1972, is amended as follows:
97-1-1. If two (2) or more persons conspire either:
(a) To commit a crime; or
(b) Falsely and maliciously to indict another for a crime, or to procure to be complained of or arrested for a crime; or
(c) Falsely to institute or maintain an action or suit of any kind; or
(d) To cheat and defraud another out of property by any means which are in themselves criminal, or which, if executed, would amount to a cheat, or to obtain money or any other property or thing by false pretense; or
(e) To prevent another from exercising a lawful trade or calling, or doing any other lawful act, by force, threats, intimidation, or by interfering or threatening to interfere with tools, implements, or property belonging to or used by another, or with the use of employment thereof; or
(f) To commit any act injurious to the public health, to public morals, trade or commerce, or for the perversion or obstruction of justice, or of the due administration of the laws; or
(g) To overthrow or violate the laws of this state through force, violence, threats, intimidation, or otherwise; or
(h) To accomplish any unlawful purpose, or a lawful purpose by any unlawful means; such persons, and each of them, shall be guilty of a felony and upon conviction may be punished by a fine of not more than Five Thousand Dollars ($5,000.00) or by imprisonment for not more than five (5) years, or by both.
Provided, that where the crime conspired to be committed is capital murder or murder as defined by law or is a violation of Section 41-29-139(a)(1) when the violation is subject to punishment under the following: Section 41-29-139(c)(1)(D) or (E) or (c)(2)(F) or (G)or Section 41-29-313(1)(a), * * * being provisions of the Uniform Controlled Substances Law, the offense shall be punishable by a fine of not more than Five Hundred Thousand Dollars ($500,000.00) or by imprisonment for not more than twenty (20) years, or by both.
Provided, that where the crime conspired to be committed is a misdemeanor, then upon conviction said crime shall be punished as a misdemeanor as provided by law.
SECTION 3. Section 99-15-26, Mississippi Code of 1972, is amended as follows:
99-15-26. (1) In all criminal cases, felony and misdemeanor, other than crimes against the person, the circuit or county court shall be empowered, upon the entry of a plea of guilty by a criminal defendant, to withhold acceptance of the plea and sentence thereon pending successful completion of such conditions as may be imposed by the court pursuant to subsection (2) of this section. In all misdemeanor criminal cases, other than crimes against the person, the justice or municipal court shall be empowered, upon the entry of a plea of guilty by a criminal defendant, to withhold acceptance of the plea and sentence thereon pending successful completion of such conditions as may be imposed by the court pursuant to subsection (2) of this section. No person having previously qualified under the provisions of this section or having ever been convicted of a felony shall be eligible to qualify for release in accordance with this section. A person shall not be eligible to qualify for release in accordance with this section if such person has been charged (a) with an offense pertaining to the sale, barter, transfer, manufacture, distribution or dispensing of a controlled substance, or the possession with intent to sell, barter, transfer, manufacture, distribute or dispense a controlled substance, as provided in Section 41-29-139(a)(1), * * * except for a charge under said provision when the controlled substance involved is one (1) ounce or less of marihuana; (b) with an offense pertaining to the possession of one (1) kilogram or more of marihuana as provided in Section 41-29-139(c)(2)(F) or (G), * * *; or (c) with an offense under the Mississippi Implied Consent Law.
(2) (a) Conditions which the circuit, county, justice or municipal court may impose under subsection (1) of this section shall consist of:
(i) Reasonable restitution to the victim of the crime.
(ii) Performance of not more than nine hundred sixty (960) hours of public service work approved by the court.
(iii) Payment of a fine not to exceed the statutory limit.
(iv) Successful completion of drug, alcohol, psychological or psychiatric treatment or any combination thereof if the court deems such treatment necessary.
(v) The circuit or county court, in its discretion, may require the defendant to remain in the program subject to good behavior for a period of time not to exceed five (5) years. The justice or municipal court, in its discretion, may require the defendant to remain in the program subject to good behavior for a period of time not to exceed two (2) years.
(b) Conditions which the circuit or county court may impose under subsection (1) of this section also include successful completion of a regimented inmate discipline program.
(3) When the court has imposed upon the defendant the conditions set out in this section, the court shall release the bail bond, if any.
(4) Upon successful completion of the court-imposed conditions permitted by subsection (2) of this section, the court shall direct that the cause be dismissed and the case be closed.
(5) Upon petition therefor, the court shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case.
(6) This section shall take effect and be in force from and after March 31, 1983.
SECTION 4. This act shall take effect and be in force from and after July 1, 2006.