Bill Text: OH HB274 | 2009-2010 | 128th General Assembly | Introduced
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
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Representative Yates
| 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 |
