Bill Text: AZ HB2802 | 2023 | Fifty-sixth Legislature 1st Regular | Engrossed
Bill Title: Fentanyl sales; manufacture; sentencing; testing
Spectrum: Partisan Bill (Republican 5-0)
Status: (Vetoed) 2023-06-20 - Governor Vetoed [HB2802 Detail]
Download: Arizona-2023-HB2802-Engrossed.html
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Conference Engrossed
fentanyl sales; manufacture; sentencing; testing |
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State of Arizona House of Representatives Fifty-sixth Legislature First Regular Session 2023
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HOUSE BILL 2802 |
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An Act
amending sections 13-3408 and 13-3411, Arizona Revised Statutes; amending title 13, chapter 34, Arizona Revised Statutes, by adding section 13-3424; relating to drug offenses.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 13-3408, Arizona Revised Statutes, is amended to read:
13-3408. Possession, use, administration, acquisition, sale, manufacture or transportation of narcotic drugs; classification; definition
A. Except as provided in section 36-2850, paragraph 16 19, subdivision (b), section 36-2852 and section 36-2853, subsection C, a person shall not knowingly:
1. Possess or use a narcotic drug.
2. Possess a narcotic drug for sale.
3. Possess equipment or chemicals, or both, for the purpose of manufacturing a narcotic drug.
4. Manufacture a narcotic drug.
5. Administer a narcotic drug to another person.
6. Obtain or procure the administration of a narcotic drug by fraud, deceit, misrepresentation or subterfuge.
7. Transport for sale, import into this state, offer to transport for sale or import into this state, sell, transfer or offer to sell or transfer a narcotic drug.
B. A person who violates:
1. Subsection A, paragraph 1 of this section is guilty of a class 4 felony.
2. Subsection A, paragraph 2 of this section is guilty of a class 2 felony.
3. Subsection A, paragraph 3 of this section is guilty of a class 3 felony.
4. Subsection A, paragraph 4 of this section is guilty of a class 2 felony.
5. Subsection A, paragraph 5 of this section is guilty of a class 2 felony.
6. Subsection A, paragraph 6 of this section is guilty of a class 3 felony.
7. Subsection A, paragraph 7 of this section is guilty of a class 2 felony.
C. Except as provided in subsection E of this section, a person who is convicted of a violation of subsection A, paragraph 1, 3 or 6 of this section and who has not previously been convicted of any felony or who has not been sentenced pursuant to section 13-703, section 13-704, subsection A, B, C, D or E, section 13-706, subsection A, section 13-708, subsection D or any other provision of law making the convicted person ineligible for probation is eligible for probation.
D. Except as provided in subsection E of this section, if the aggregate amount of narcotic drugs involved in one offense or all of the offenses that are consolidated for trial equals or exceeds the statutory threshold amount, a person who is convicted of a violation of subsection A, paragraph 2, 5 or 7 of this section is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis until the person has served the sentence imposed by the court, the person is eligible for release pursuant to section 41-1604.07 or the sentence is commuted.
E. a person who is convicted of a violation of subsection A, paragraph 2, 3, 4 or 7 of this section involving a single unit dose that contains two or more milligrams of fentanyl shall be sentenced as follows:
Minimum Presumptive Maximum
5 calendar years 10 calendar years 15 calendar years
A person who has previously been convicted of a violation of subsection A, paragraph 2, 3, 4 or 7 of this section involving a single unit dose that contains two or more milligrams of fentanyl shall be sentenced as follows:
Minimum Presumptive Maximum
10 calendar years 15 calendar years 20 calendar years
E. F. A person who is convicted of a violation of subsection A, paragraph 2, 3 or 7 of this section involving a single unit dose that contains two or more milligrams of fentanyl or a violation of subsection A, paragraph 4 of this section is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis until the person has served the sentence imposed by the court, the person is eligible for release pursuant to section 41-1604.07 or the sentence is commuted.
G. Subsections E and F of this section do not apply to a person who is convicted of a violation of subsection A, paragraph 7 of this section that involves the transfer or offer to transfer a single unit dose that contains two or more milligrams of fentanyl.
F. H. In addition to any other penalty prescribed by this title, the court shall order a person who is convicted of a violation of this section to pay a fine of not less than $2,000 or three times the value as determined by the court of the narcotic drugs involved in or giving rise to the charge, whichever is greater, and not more than the maximum authorized by chapter 8 of this title. A judge shall not suspend any part or all of the imposition of any fine required by this subsection.
G. I. A person who is convicted of a violation of this section for which probation or release before the expiration of the sentence imposed by the court is authorized is prohibited from using any marijuana, dangerous drug, narcotic drug or prescription-only drug except as lawfully administered by a health care practitioner and as a condition of any probation or release shall be required to submit to drug testing administered under the supervision of the probation department of the county or the state department of corrections, as appropriate, during the duration of the term of probation or before the expiration of the sentence imposed.
H. J. If a person who is convicted of a violation of this section is granted probation, the court shall order that as a condition of probation the person perform not less than three hundred sixty hours of community restitution with an agency or organization that provides counseling, rehabilitation or treatment for alcohol or drug abuse, an agency or organization that provides medical treatment to persons who abuse controlled substances, an agency or organization that serves persons who are victims of crime or any other appropriate agency or organization.
K. For the purposes of this section, "single unit dose" means a single amount or unit of a material, compound, mixture or preparation that is separately identifiable and that is in a pill, tablet or caplet form or any other form that indicates that it is the amount or unit by which the material, compound, mixture or preparation is separately administered to or taken by a person.
Sec. 2. Section 13-3411, Arizona Revised Statutes, is amended to read:
13-3411. Possession, use, sale or transfer of marijuana, peyote, prescription drugs, dangerous drugs or narcotic drugs or manufacture of dangerous drugs in a drug-free school zone; classification; definitions
A. It is unlawful for a person to do any of the following:
1. Intentionally Knowingly be present in a drug free drug-free school zone to sell or transfer marijuana, peyote, prescription-only drugs, dangerous drugs or narcotic drugs.
2. Possess or use marijuana, peyote, dangerous drugs or narcotic drugs in a drug free drug-free school zone.
3. Manufacture dangerous drugs in a drug free drug-free school zone.
B. A person who violates subsection A of this section is guilty of the same class of felony that the person would otherwise be guilty of had the violation not occurred within a drug free drug-free school zone, except that the presumptive, minimum and maximum sentence shall be increased by one year. The additional sentence imposed under this subsection is in addition to any enhanced punishment that may be applicable under section 13-703, section 13-704, section 13-708, subsection D or any provision in this chapter. A person is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except pursuant to section 31-233, subsection A or B until the sentence imposed by the court has been served or commuted.
C. In addition to any other penalty prescribed by this title, the court shall order a person who is convicted of a violation of this section to pay a fine of not less than two thousand dollars $2,000 or three times the value as determined by the court of the drugs involved in or giving rise to the charge, whichever is greater, and not more than the maximum authorized by chapter 8 of this title. A judge shall not suspend any part or all of the imposition of any fine required by this subsection.
D. Each school district's governing board or its designee, or the chief administrative officer in the case of a nonpublic school, shall place and maintain permanently affixed signs located in a visible manner at the main entrance of each school that identifies the school and its accompanying grounds as a drug free drug-free school zone.
F. All school personnel who observe a violation of this section shall immediately report the violation to a school administrator. The administrator shall immediately report the violation to a peace officer. It is unlawful for any school personnel or school administrator to fail to report a violation as prescribed in this section.
G. School personnel having custody or control of school records of a student involved in an alleged violation of this section shall make the records available to a peace officer upon on written request signed by a magistrate. Records disclosed pursuant to this subsection are confidential and may be used only in a judicial or administrative proceeding. A person furnishing records required under this subsection or a person participating in a judicial or administrative proceeding or investigation resulting from the furnishing of records required under this subsection is immune from civil or criminal liability by reason of such action unless the person acted with malice.
H. A person who violates subsection F of this section is guilty of a class 3 misdemeanor.
I. For the purposes of this section:
1. "Drug free drug-free school zone" means the area within three hundred feet of a school or its accompanying grounds, any public property within one thousand feet of a school or its accompanying grounds, a school bus stop or on any school bus or bus contracted to transport pupils to any school.
2. "School" means any public or nonpublic kindergarten program, common school or high school.
Sec. 3. Title 13, chapter 34, Arizona Revised Statutes, is amended by adding section 13-3424, to read:
13-3424. Sale of fentanyl in drug-free neighborhood zone; drug-free neighborhood zone map; classification; definitions
A. It is unlawful for a person to knowingly be present in a drug-free neighborhood zone to sell fentanyl.
B. A person who violates subsection A of this section is guilty of the same class of felony that the person would otherwise be guilty of had the violation not occurred within a drug-free neighborhood zone, except that the presumptive, minimum and maximum sentence shall be increased by one year. The additional sentence imposed under this subsection is in addition to any enhanced punishment that may be applicable under section 13-703, section 13-704, section 13-708, subsection D or any provision in this chapter. A person is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except pursuant to section 31-233, subsection A or B until the sentence imposed by the court has been served or commuted.
C. In addition to any other penalty prescribed by this title, the court shall order a person who is convicted of a violation of this section to pay a fine of not less than $2,000 or three times the value as determined by the court of the drugs involved in or giving rise to the charge, whichever is greater, and not more than the maximum authorized by chapter 8 of this title. A judge shall not suspend any part or all of the imposition of any fine required by this subsection.
D. Each drug-free neighborhood zone must have a permanently affixed sign that is located in a visible manner in each drug-free neighborhood zone AND AT ALL INTERSECTIONS WITHIN 300 FEET OF A LOCATION LISTED IN SUBSECTION F, PARAGRAPH 3 of this section MEASURED BY A STRAIGHT LINE IN ANY DIRECTION and that identifies the drug-free neighborhood zone and its accompanying grounds as a drug-free neighborhood zone. A drug-free neighborhood zone may include information regarding the drug-free neighborhood zone boundaries on a sign that identifies the area as a drug-free neighborhood zone. The following entities shALL place and maintain the drug-free neighborhood zone signs:
1. If the drug-free neighborhood zone is located in a city or town, the city or town council.
2. If the drug-free neighborhood zone is not located in a city or town, the county board of supervisors.
E. The entity that places and maintains the sign required by subsection D of this section shall prepare a map of the drug-free neighborhood zone's location and boundaries. The entity shall file the original map with the county recorder and provide a copy to the county attorney. The drug-free neighborhood zone map is the official record as to the location and boundaries of each drug-free neighborhood zone. The entity shall promptly notify the county recorder and county attorney of any changes in the location and boundaries of any drug-free neighborhood zone.
F. THE ENTITY THAT PLACES AND MAINTAINS THE SIGNS REQUIRED BY SUBSECTION D OF THIS SECTION SHALL ALSO MAIL NOTICE TO EACH INDIVIDUAL SINGLE FAMILY HOME AND MULTI-FAMILY RESIDENTIAL UNIT RESIDENTS WITHIN THE DRUG-FREE NEIGHBORHOOD ZONE or within 1320 feet of the drug-free neighborhood zone TO PROVIDE A MAP OF THE DRUG-FREE NEIGHBORHOOD ZONE'S LOCATION AND BOUNDARIES. THE MAP OF THE DRUG-FREE NEIGHBORHOOD ZONE'S LOCATION AND BOUNDARIES SHALL ALSO BE POSTED TO THE ENTITY'S WEBSITE.
g. For the purposes of this section:
1. "Drug-free neighborhood zone" means the area that is designated with a permanently affixed sign and that is within three hundred feet of a hospital, a nursing home, a drug treatment center, a mental and behavioral health facility OR a public park and any of the accompanying grounds of a location listed in this paragraph.
2. "Drug treatment center" means a residential treatment center for substance use disorder, a behavioral HEALTH inpatient facility, a behavioral health residential facility, a substance abuse treatment facility and a hospital or health care facility that provides substance abuse treatment.
3. "PERMANENTLY AFFIXED SIGN" MEANS A DUAL COLOR SIGN THAT IS AT LEAST 18 INCHES BY 24 INCHES WITH CAPITALIZED LETTERS OF AT LEAST 200 POINT TYPE SIZE.
