Bill Title: To provide an affirmative defense to certain offenses involving a hypodermic or syringe that the person is 18 years of age or older and possesses or otherwise obtains the hypodermic or syringe for the purpose of having a clean needle to avoid HIV exposure and to permit an authorized person to sell or furnish a hypodermic without a prescription to a person who is 18 years of age or older and who wishes to obtain it for that purpose.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2009-09-03 - To Criminal Justice
[HB274 Detail]Download: Ohio-2009-HB274-Introduced.html
As Introduced
| 128th General Assembly | | Regular Session | | 2009-2010 |
| |
A BILL
| To amend sections 2923.24, 2925.12, 2925.14, and | 1 |
|
3719.172 of the Revised Code to provide an | 2 |
|
affirmative defense to certain offenses involving | 3 |
|
a hypodermic or syringe that the person is 18 | 4 |
|
years of age or older and possesses or otherwise | 5 |
|
obtains the hypodermic or syringe for the purpose | 6 |
|
of having a clean needle to avoid HIV exposure and | 7 |
|
to permit an authorized person to sell or furnish | 8 |
|
a hypodermic without a prescription to a person | 9 |
|
who is 18 years of age or older and who wishes to | 10 |
|
obtain it for that purpose. | 11 |
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
| Section 1. That sections 2923.24, 2925.12, 2925.14, and | 12 |
|
3719.172 of the Revised Code be amended to read as follows: | 13 |
| Sec. 2923.24. (A) No person shall possess or have under the | 14 |
|
person's control any substance, device, instrument, or article, | 15 |
|
with
purpose to use it criminally. | 16 |
| (B) Each of the following constitutes prima-facie evidence of | 17 |
|
criminal
purpose: | 18 |
| (1) Possession or control of any dangerous ordnance, or the | 19 |
|
materials or
parts for making dangerous ordnance, in the absence | 20 |
|
of circumstances
indicating the dangerous ordnance, materials, or | 21 |
|
parts are
intended for legitimate use; | 22 |
| (2) Possession or control of any substance, device, | 23 |
|
instrument, or article
designed or specially adapted for criminal | 24 |
|
use; | 25 |
| (3) Possession or control of any substance, device, | 26 |
|
instrument, or article
commonly used for criminal purposes, under | 27 |
|
circumstances indicating
the item is intended for criminal use. | 28 |
| (C) It is an affirmative defense to a charge of a violation | 29 |
|
of this section that the person charged was eighteen years of age | 30 |
|
or older at the time of the conduct in question, that the device, | 31 |
|
instrument, or article the person possessed or had under control | 32 |
|
that is the basis of the charge was a hypodermic or syringe, and | 33 |
|
that the person possessed it or had it under control for the | 34 |
|
purpose of having a clean hypodermic or syringe to avoid exposure | 35 |
|
to a virus that causes acquired immunodeficiency syndrome. | 36 |
|
(D) Whoever violates this section is guilty of possessing | 37 |
|
criminal
tools. Except as otherwise provided in this division, | 38 |
|
possessing criminal tools is a misdemeanor of the first degree. If | 39 |
|
the
circumstances indicate that the substance, device, instrument, | 40 |
|
or article
involved in the offense was intended for use in the | 41 |
|
commission of a
felony, possessing criminal tools is a felony of | 42 |
|
the fifth degree. | 43 |
| Sec. 2925.12. (A) No person shall knowingly make, obtain, | 44 |
|
possess, or use any instrument, article, or thing the customary | 45 |
|
and primary purpose of which is for the administration or use of a | 46 |
|
dangerous drug, other than marihuana, when the instrument
involved | 47 |
|
is a hypodermic or syringe, whether or not of crude or | 48 |
|
extemporized manufacture or assembly, and the instrument,
article, | 49 |
|
or thing involved has been used by the offender to
unlawfully | 50 |
|
administer or use a dangerous drug, other than
marihuana, or to | 51 |
|
prepare a dangerous drug, other than marihuana,
for unlawful | 52 |
|
administration or use. | 53 |
| (B)(1) This section does not apply to manufacturers,
licensed | 54 |
|
health professionals authorized to prescribe
drugs, pharmacists, | 55 |
|
owners of pharmacies, and other
persons whose conduct was in | 56 |
|
accordance with
Chapters 3719., 4715., 4723., 4729., 4730., 4731., | 57 |
|
and
4741. of the Revised
Code. | 58 |
| (2) It is an affirmative defense to a charge of a violation | 59 |
|
of this section that the person charged was eighteen years of age | 60 |
|
or older at the time of the conduct in question and that the | 61 |
|
person made, obtained, possessed, or used the hypodermic or | 62 |
|
syringe that is the basis of the charge for the purpose of having | 63 |
|
a clean hypodermic or syringe to avoid exposure to a virus that | 64 |
|
causes acquired immunodeficiency syndrome. | 65 |
| (C) Whoever violates this section is guilty of possessing | 66 |
|
drug abuse instruments, a misdemeanor of the second degree. If
the | 67 |
|
offender previously has been convicted of a drug abuse
offense, a | 68 |
|
violation of this section is a misdemeanor of the
first
degree. | 69 |
| (D) In addition to any other sanction imposed
upon an | 70 |
|
offender for a
violation of this section, the court shall suspend | 71 |
|
for not less
than six months or more than five years the | 72 |
|
offender's driver's or
commercial
driver's license or permit. If | 73 |
|
the
offender is a professionally
licensed person, in addition
to | 74 |
|
any other sanction imposed for a
violation of this section,
the | 75 |
|
court
immediately shall
comply with section
2925.38 of
the
Revised | 76 |
|
Code. | 77 |
| Sec. 2925.14. (A) As used in this section,
"drug | 78 |
|
paraphernalia" means any equipment, product, or material of any | 79 |
|
kind that is used by the offender, intended by the offender for | 80 |
|
use, or designed for use, in propagating, cultivating, growing, | 81 |
|
harvesting, manufacturing, compounding, converting, producing, | 82 |
|
processing, preparing, testing, analyzing, packaging,
repackaging, | 83 |
|
storing, containing, concealing, injecting,
ingesting, inhaling, | 84 |
|
or otherwise introducing into the human
body, a controlled | 85 |
|
substance in violation of this chapter.
"Drug
paraphernalia" | 86 |
|
includes, but is not limited to, any of the
following equipment, | 87 |
|
products, or materials that are used by the
offender, intended by | 88 |
|
the offender for use, or designed by the
offender for use, in any | 89 |
|
of the following manners: | 90 |
| (1) A kit for propagating, cultivating, growing, or | 91 |
|
harvesting any species of a plant that is a controlled substance | 92 |
|
or from which a controlled substance can be derived; | 93 |
| (2) A kit for manufacturing, compounding, converting, | 94 |
|
producing, processing, or preparing a controlled substance; | 95 |
| (3)
Any object, instrument, or device for manufacturing, | 96 |
|
compounding, converting, producing, processing, or preparing | 97 |
|
methamphetamine; | 98 |
| (4) An isomerization device for increasing the potency of
any | 99 |
|
species of a plant that is a controlled substance; | 100 |
| (5) Testing equipment for identifying, or analyzing the | 101 |
|
strength, effectiveness, or purity of, a controlled substance; | 102 |
| (6) A scale or balance for weighing or measuring a
controlled | 103 |
|
substance; | 104 |
| (7) A diluent or adulterant, such as quinine
hydrochloride, | 105 |
|
mannitol, mannite, dextrose, or lactose, for
cutting a controlled | 106 |
|
substance; | 107 |
| (8) A separation gin or sifter for removing twigs and
seeds | 108 |
|
from, or otherwise cleaning or refining, marihuana; | 109 |
| (9) A blender, bowl, container, spoon, or mixing device
for | 110 |
|
compounding a controlled substance; | 111 |
| (10) A capsule, balloon, envelope, or container for
packaging | 112 |
|
small quantities of a controlled substance; | 113 |
| (11) A container or device for storing or concealing a | 114 |
|
controlled substance; | 115 |
| (12) A hypodermic syringe, needle, or instrument for | 116 |
|
parenterally injecting a controlled substance into the human
body; | 117 |
| (13) An object, instrument, or device for ingesting, | 118 |
|
inhaling, or otherwise introducing into the human body,
marihuana, | 119 |
|
cocaine, hashish, or hashish oil, such as a
metal,
wooden, | 120 |
|
acrylic, glass, stone, plastic, or ceramic pipe, with or
without a | 121 |
|
screen, permanent screen, hashish head, or punctured
metal bowl; | 122 |
|
water pipe; carburetion tube or device; smoking or
carburetion | 123 |
|
mask; roach clip or similar object used to hold
burning material, | 124 |
|
such as a marihuana cigarette, that has become
too small or too | 125 |
|
short to be held in the hand; miniature cocaine
spoon, or cocaine | 126 |
|
vial; chamber pipe; carburetor pipe; electric
pipe; air driver | 127 |
|
pipe; chillum; bong; or ice pipe or chiller. | 128 |
| (B) In determining if
any equipment, product, or
material
is | 129 |
|
drug paraphernalia, a
court or law enforcement officer
shall | 130 |
|
consider, in addition to
other relevant factors, the
following: | 131 |
| (1) Any statement by the owner, or by anyone in control,
of | 132 |
|
the
equipment, product, or material, concerning its use; | 133 |
| (2) The proximity in time or space of the
equipment,
product, | 134 |
|
or material, or of
the act relating to the
equipment,
product, or | 135 |
|
material, to a violation of any provision
of this
chapter; | 136 |
| (3) The proximity of the
equipment, product, or
material to | 137 |
|
any controlled substance; | 138 |
| (4) The existence of any residue of a controlled substance
on | 139 |
|
the
equipment, product, or material; | 140 |
| (5) Direct or circumstantial evidence of the intent of the | 141 |
|
owner, or of
anyone in control, of the
equipment, product,
or | 142 |
|
material, to deliver it to any person whom the owner
or person
in | 143 |
|
control of the
equipment, product, or material knows
intends to | 144 |
|
use the object to
facilitate a violation of any
provision of this | 145 |
|
chapter. A finding that the
owner, or anyone in
control, of the
| 146 |
|
equipment, product, or material, is not
guilty of a
violation of | 147 |
|
any other provision of this chapter does
not
prevent a finding | 148 |
|
that the
equipment, product, or
material was intended or designed | 149 |
|
by the
offender for use as drug
paraphernalia. | 150 |
| (6) Any oral or written instruction provided with the
| 151 |
|
equipment, product, or material concerning its use; | 152 |
| (7) Any descriptive material accompanying the
equipment, | 153 |
|
product, or material and
explaining or depicting its
use; | 154 |
| (8) National or local advertising concerning the use of
the
| 155 |
|
equipment, product, or material; | 156 |
| (9) The manner and circumstances in which the
equipment, | 157 |
|
product, or material is
displayed for sale; | 158 |
| (10) Direct or circumstantial evidence of the ratio of the | 159 |
|
sales of the
equipment, product, or material to the total
sales
of | 160 |
|
the business
enterprise; | 161 |
| (11) The existence and scope of legitimate uses of the
| 162 |
|
equipment, product, or material in the community; | 163 |
| (12) Expert testimony concerning the use of the
equipment, | 164 |
|
product, or material. | 165 |
| (C)(1) No person shall knowingly use, or possess with
purpose | 166 |
|
to use, drug paraphernalia. | 167 |
| (2) No person shall knowingly sell, or possess or
manufacture | 168 |
|
with purpose to sell, drug paraphernalia, if the
person knows or | 169 |
|
reasonably should know that the equipment,
product, or material | 170 |
|
will be used
as drug paraphernalia. | 171 |
| (3) No person shall place an advertisement in any
newspaper, | 172 |
|
magazine, handbill, or other publication that is
published and | 173 |
|
printed and circulates primarily within this state,
if the person | 174 |
|
knows that the purpose of the advertisement is to
promote the | 175 |
|
illegal sale in this state of the equipment, product, or material | 176 |
|
that the offender intended or designed for use as drug | 177 |
|
paraphernalia. | 178 |
| (D)(1) This section does not apply to manufacturers,
licensed | 179 |
|
health professionals authorized to prescribe
drugs, pharmacists, | 180 |
|
owners of pharmacies, and other
persons whose conduct is in | 181 |
|
accordance with Chapters 3719., 4715.,
4723., 4729., 4730., 4731., | 182 |
|
and
4741. of
the Revised Code. This section shall not be construed | 183 |
|
to
prohibit the possession or use of a hypodermic as authorized by | 184 |
|
section 3719.172 of the Revised Code. | 185 |
| (2) It is an affirmative defense to a charge of a violation | 186 |
|
of division (C)(1) of this section that the person charged was | 187 |
|
eighteen years of age or older at the time of the conduct in | 188 |
|
question, that the drug paraphernalia the person used, or | 189 |
|
possessed with purpose to use, that is the basis of the charge was | 190 |
|
a hypodermic syringe, needle, or instrument for parenterally | 191 |
|
injecting a controlled substance into the human body, and that the | 192 |
|
person used or possessed it for the purpose of having a clean | 193 |
|
hypodermic syringe, needle, or instrument to avoid exposure to a | 194 |
|
virus that causes acquired immunodeficiency syndrome. | 195 |
| (3) Division (C)(2) of this section does not apply to a | 196 |
|
person who sells, or possesses with purpose to sell, drug | 197 |
|
paraphernalia if the drug paraphernalia that the person sells, or | 198 |
|
possesses with purpose to sell, is a hypodermic syringe, needle, | 199 |
|
or instrument for parenterally injecting a controlled substance | 200 |
|
into the human body, if the person sells it, or possesses it with | 201 |
|
the purpose to sell it, to another person who informs the person | 202 |
|
who sells it, or possesses it with purpose to sell it, that the | 203 |
|
other person wishes to obtain it for the purpose of having a clean | 204 |
|
hypodermic syringe, needle, or instrument to avoid exposure to a | 205 |
|
virus that causes acquired immunodeficiency syndrome, and if the | 206 |
|
other person is eighteen years of age or older at the time of the | 207 |
|
conduct in question. | 208 |
| (E) Notwithstanding Chapter 2981. of the
Revised Code, any | 209 |
|
drug paraphernalia that was used, possessed,
sold, or manufactured | 210 |
|
in a violation of this section shall be
seized, after a conviction | 211 |
|
for that violation shall be forfeited,
and upon forfeiture shall | 212 |
|
be disposed of pursuant to division
(B) of section 2981.12 of the | 213 |
|
Revised Code. | 214 |
| (F)(1) Whoever violates division (C)(1) of this section is | 215 |
|
guilty of illegal use or possession of drug paraphernalia, a | 216 |
|
misdemeanor of the fourth degree. | 217 |
| (2) Except as provided in division (F)(3) of this section, | 218 |
|
whoever violates division (C)(2) of this section is guilty of | 219 |
|
dealing in drug paraphernalia, a misdemeanor of the second
degree. | 220 |
| (3) Whoever violates division (C)(2) of this section by | 221 |
|
selling drug paraphernalia to a juvenile is guilty of selling
drug | 222 |
|
paraphernalia to juveniles, a misdemeanor of the first
degree. | 223 |
| (4) Whoever violates division (C)(3) of this section is | 224 |
|
guilty of illegal advertising of drug paraphernalia, a
misdemeanor | 225 |
|
of the second degree. | 226 |
| (G) In addition to any other sanction imposed
upon an | 227 |
|
offender for a
violation of this section, the court shall suspend | 228 |
|
for not less
than six months or more than five years the | 229 |
|
offender's driver's or
commercial
driver's license or permit. If | 230 |
|
the
offender is a professionally
licensed person, in addition
to | 231 |
|
any other sanction imposed for a
violation of this section, the | 232 |
|
court
immediately shall
comply with section 2925.38 of the
Revised | 233 |
|
Code. | 234 |
| Sec. 3719.172. (A) Possession of a hypodermic is
authorized | 235 |
|
for the following: | 236 |
| (1) A manufacturer or distributor of, or dealer in, | 237 |
|
hypodermics or medication packaged in hypodermics, and any | 238 |
|
authorized agent or employee of that manufacturer,
distributor,
or | 239 |
|
dealer, in the regular course of business; | 240 |
| (2) A terminal
distributor of dangerous drugs, in the
regular | 241 |
|
course of business; | 242 |
| (3) A person authorized to
administer injections, in the | 243 |
|
regular course of the person's
profession or
employment; | 244 |
| (4) A person, when the hypodermic was
lawfully obtained and | 245 |
|
is kept and used for the purpose of
self-administration of insulin | 246 |
|
or other drug prescribed for the treatment of
disease by a | 247 |
|
licensed health
professional authorized to prescribe drugs; | 248 |
| (5) A person whose use of a hypodermic is for legal
research, | 249 |
|
clinical, educational, or medicinal purposes; | 250 |
| (6) A farmer, for the lawful administration of a drug to
an | 251 |
|
animal; | 252 |
| (7) A person whose use of a hypodermic is for lawful | 253 |
|
professional, mechanical, trade, or craft purposes. | 254 |
| (B) No manufacturer or distributor of, or dealer in, | 255 |
|
hypodermics or medication packaged in hypodermics, or their | 256 |
|
authorized agents or employees, and no terminal distributor of | 257 |
|
dangerous
drugs, shall display
any hypodermic for sale. No person | 258 |
|
authorized to possess a hypodermic pursuant to division (A) of | 259 |
|
this section shall negligently fail to take reasonable
precautions | 260 |
|
to prevent any hypodermic in the person's
possession from
theft or | 261 |
|
acquisition by any unauthorized person. | 262 |
| (C) No person other than one of the following shall sell
or | 263 |
|
furnish a
hypodermic to another person: | 264 |
| (1) A manufacturer or distributor
of, or dealer in, | 265 |
|
hypodermics or medication packaged in
hypodermics, or their | 266 |
|
authorized agents or employees; | 267 |
| (2) A terminal distributor of dangerous drugs; | 268 |
| (3) A person under the direct supervision of a
pharmacist; | 269 |
| (4) A licensed health professional authorized to
prescribe | 270 |
|
drugs, acting in the regular course of business
and as permitted | 271 |
|
by law; | 272 |
| (5) An individual who holds a current license, certificate, | 273 |
|
or
registration issued under Title 47 of the Revised Code and has | 274 |
|
been certified
to conduct diabetes education by a national | 275 |
|
certifying body specified in rules
adopted by the state board of | 276 |
|
pharmacy under section 4729.68 of the
Revised Code, but only
if | 277 |
|
diabetes education is within the individual's scope of
practice | 278 |
|
under statutes and rules regulating the individual's
profession. | 279 |
| (D)(1) No person shall sell or furnish a hypodermic to | 280 |
|
another whom the person knows or has reasonable cause to
believe | 281 |
|
is not
authorized by division (A) of this section to possess a | 282 |
|
hypodermic. | 283 |
| (2) Division (D)(1) of this section does not apply to a | 284 |
|
person who sells or furnishes a hypodermic to another whom the | 285 |
|
person knows or has reasonable cause to believe is not authorized | 286 |
|
by division (A) of this section to possess a hypodermic if the | 287 |
|
other person is eighteen years of age or older at the time of the | 288 |
|
sale or furnishing and if the other person informs the person who | 289 |
|
sells or furnishes the hypodermic that the other person wishes to | 290 |
|
obtain it for the purpose of having a clean hypodermic to avoid | 291 |
|
exposure to a virus that causes acquired immunodeficiency | 292 |
|
syndrome. | 293 |
|
(E) A person who is eighteen years of age or older and who | 294 |
|
wishes to obtain a hypodermic for the purpose of having a clean | 295 |
|
hypodermic to avoid exposure to a virus that causes acquired | 296 |
|
immunodeficiency syndrome may obtain the hypodermic from a person | 297 |
|
described in division (C) of this section without a prescription, | 298 |
|
by informing the person described in division (C) of this section | 299 |
|
that the person wishes to obtain it for that purpose. A person | 300 |
|
described in division (C) of this section may sell or furnish a | 301 |
|
hypodermic to another person without a prescription if the other | 302 |
|
person is eighteen years of age or older at the time of the sale | 303 |
|
or furnishing and if the other person, in accordance with this | 304 |
|
division, informs the person described in division (C) of this | 305 |
|
section that the other person wishes to obtain it for the purpose | 306 |
|
of having a clean hypodermic to avoid exposure to a virus that | 307 |
|
causes acquired immunodeficiency syndrome. A person described in | 308 |
|
division (C) of this section who, in accordance with this | 309 |
|
division, sells or furnishes a hypodermic without a prescription | 310 |
|
to another person who is eighteen years of age or older at the | 311 |
|
time of the sale or furnishing is immune from any criminal | 312 |
|
liability and from any civil damages for any injury, death, or | 313 |
|
loss to person or property, that allegedly resulted from or is | 314 |
|
related to the sale or furnishing of the hypodermic to the other | 315 |
|
person. | 316 |
| Section 2. That existing sections 2923.24, 2925.12, 2925.14, | 317 |
|
and 3719.172 of the Revised Code are hereby repealed. | 318 |
