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SPONSOR: |
Foley |
DATE TYPED: |
|
HB |
865 |
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SHORT TITLE: |
Possession of Certain Drug Precursors |
SB |
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ANALYST: |
Fox-Young |
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APPROPRIATION
Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
||
FY03 |
FY04 |
FY03 |
FY04 |
|
|
|
|
|
$0.1 Significant |
Recurring |
General
Fund |
|
|
|
|
|
|
(Parenthesis
( ) Indicate Expenditure Decreases)
Relates to HB 176, HB 284
Responses
Received From
Corrections
Department (CD)
Department
of Health (DOH)
Administrative
Office of the Courts (AOC)
Administrative
Office of the District Attorneys (AODA)
Attorney
General (AG)
Public
Defender Department (PDD)
SUMMARY
Synopsis
of Bill
House Bill 865 amends sections of the Drug
Precursor Act, providing additional penalties for the possession of certain
drug precursors
that are used to manufacture controlled substances and/or explosive devices.
Significant
Issues
The Attorney General (AG) notes that of the items discussed in this bill, only ephedrine currently appears on the pharmacy board’s list of drug precursors. (AG references Pharmacy Board Regulations, §16.19.21.35.)
The Association of District Attorneys (AODA) notes that the bill makes it a misdemeanor offense to possess the precursor elements used to make methamphetamine: pseudoephedrine, Red Phosphorus, Anhydrous Ammonia, Iodine Matrix and Crystal Iodine.
These precursors have many legitimate uses. For example, products containing pseudoephedrine, an oral decongestant, are contained in many over the counter drugs for treating allergy and cold symptoms. Ephedrine was used for years in weight loss pills, and appears to have been replaced on the market by ephedra, one of its own precursors. It appears that an absolute ban on possession of red phosphorus and anhydrous ammonia may be unreasonable, as these precursors have some uses that should not be criminalized. For example, fireworks and some matches contain red phosphorus, and anhydrous ammonia may have uses in scientific laboratory settings.
AODA notes that if there is sufficient evidence to show that precursors are used or intended for use in the manufacture of methamphetamine, district attorneys traditionally charge individuals in possession with trafficking by manufacturing, a second degree felony offense, or attempted trafficking by manufacturing, a third degree felony offense. AODA further notes that the provisions of the bill may preclude the state from pursuing these charges, as they enact law that is more specific for purposes of charging.
AG also notes the potential for confusion regarding penalties. Currently, §30-31B-12 (B) sets forth penalties pertaining to drug precursors, including possession in violation of a board rule, that provide for graduated classifications for first, second, and third or subsequent offenses. A first offense is a misdemeanor, and subsequent offenses are fourth or third degree felonies. If the language is not clarified, AG notes that the bill could be read to reduce the penalties for possession of ephedrine or pseudoephedrine for second or later offenses.
FISCAL IMPLICATIONS
AODA indicates that misdemeanor violations
associated with methamphetamine production and distribution are likely to
increase dramatically. Courts, district
attorneys and the Public Defender Department (PDD) will likely see a
significant increase in costs.
AG notes that the appellate caseload may
increase, prompting an increase in costs to the agency as well as to PDD.
The
Corrections Department (CD) notes that although the amendment adds new
misdemeanors to the Act, the increase in the number of offenders serving time
in the department’s facilities as a result of the bill will likely be
small. CD predicts a significant
increase in the number of offenders supervised by the department’s Probation
and Parole Division.
County
jails will likely see a significant increase in costs as a result of the bill.
Relates to HB 176
(Additional Controlled Substances) and HB 284 (Trafficking of Methamphetamine). These duplicate bills amend the criminal
offense of trafficking controlled substances, Section 30-31-20, to include a
methamphetamine, its salts, isomers and salts of isomers.
The bill lists individuals exempted from penalties
for possession of each of the new drug precursors. In each case, the bill provides an exception
for a “person engaged in the regular course of conducting a lawful
business.” The standard language to
describe such an individual is a “person engaged in the ordinary course of
business.”
Additionally, it is not clear whether the listed
exceptions exhaust all potential innocent uses of the specific chemicals
addressed. The bill should be amended to include language
providing that given all facts and circumstances, the provisions of each
subsection should not apply to individuals performing legitimate manufacturing
processes or to bona fide labs, conducting legal business in selling a product
or service. Such language could replace
the general “retail distributor, wholesaler, manufacturer, warehouseman…”
contained in the bill as drafted. In the
case of ephedrine and pseudoephedrine, an exception
should be made for amounts reasonable to treat illnesses. Language should be amended to cover any other
innocent uses of the precursors that are not addressed here.
AODA recommends that, due to the discrepancy
between the penalties for possession of the added
precursors (misdemeanor) and the penalties when those precursors are combined
or associated with the production of methamphetamine (second or third degree
felony), the penalty for possession of these added precursors be increased to a
fourth degree felony.
AODA notes that the bill provides “a person
shall not possess more than six grams of ephedrine or pseudoephedrine.
. . . the weighing shall not include fillers, inert ingredients, capsules or containers.”
(page 8, line 16 et seq.) AODA notes
that it is unlikely that law enforcement officers will have the means to weigh
amounts excluding the above-named items to determine an accurate amount, when
assessing whether a violation has occurred.
Hydrochloric acid, drain cleaner, battery acid, lye, lantern fuel, and antifreeze are all ingredients commonly used in making methamphetamine. Should possession of these items be limited as well?
JCF/yr