NO. 54.  AN ACT RELATING TO SELLING OR DISPENSING ILLEGAL DRUGS.

(H.206)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  LEGISLATIVE FINDINGS

The General Assembly finds:

(1)  An effective, comprehensive approach to combating drug crimes and substance abuse must include substantial education and prevention strategies, strong criminal enforcement of the drug laws, and sufficient treatment and recovery options and resources.  This act focuses primarily on one aspect of such an approach, criminal enforcement, yet the General Assembly is committed to establishing a coordinated plan which includes substantial resources in prevention, treatment, and recovery as well, in order to provide the best possible strategy to combat illegal drug use in Vermont.

(2)  Many people who become addicted to illegal drugs resort to small‑scale sale of drugs to support their addiction.  This act is not directed at those people, but rather at the entrepreneurial drug dealers who traffic in large amounts of illegal drugs for profit.  Such persons pose the greatest threat to the health and safety of Vermonters and should be subject to heightened criminal penalties for their activities.

(3)  While tough criminal penalties for persons who intend to sell large amounts of illegal drugs are vitally important, the state cannot effectively stem the tide of illegal drugs coming into the state unless there is a concerted effort to limit the demand for illegal drugs in Vermont.  To do this, there must be a commitment to providing substantial resources for drug abuse prevention, intervention, treatment, and recovery. 

(4)  The sale of illegal drugs to minors is a predatory and insidious practice that threatens to destroy young lives.  Providing enhanced penalties for the sale of drugs to a minor sends a strong and clear message that the General Assembly will not tolerate such practices and may serve as a deterrent to those who would otherwise seek to recruit young people in hopes of making a profit from their addiction.

(5)  Substance abuse by youth under the age of 21 is on the rise and contributing to an increase in criminal activity committed by these youths.  The traditional punitive approach to combat criminal and delinquent acts by persons with substance abuse problems, although sometimes useful as a short‑term rehabilitation tool to encourage treatment, will be unsuccessful if it is not combined with appropriate treatment services.

(6)  The continued work of the drug court initiative committees holds great promise in providing a less punitive and more successful and cost‑effective approach to dealing with persons with substance abuse problems who have committed a crime, presenting a unique opportunity to help break the cycle of substance abuse and criminal activity.

Sec. 2.  13 V.S.A. § 1404 is amended to read:

§ 1404.  CONSPIRACY

(a)  A person is guilty of conspiracy if, with the purpose that an offense listed in subsection (c) of this section be committed, that person agrees with one or more persons to commit or cause the commission of that offense, and at least two of the co-conspirators are persons who are neither law enforcement officials acting in official capacity nor persons acting in cooperation with a law enforcement official.

(b)  No person shall be convicted of conspiracy unless a substantial overt act in furtherance of the conspiracy is alleged and proved to have been done by the defendant or by a co-conspirator, other than a law enforcement official acting in an official capacity or a person acting in cooperation with a law enforcement official, and subsequent to the defendant's entrance into the conspiracy.  Speech alone may not constitute an overt act.

(c)  This section applies only to a conspiracy to commit or cause the commission of one or more of the following offenses:

(1)  Murder in the first or second degree.

(2)  Arson under sections 501-504 and 506 of Title 13 this title.

(3)  Sexual exploitation of children under sections 7822, 2822 and 2824 of Title 13 this title.

(4)  Receiving stolen property under sections 2561-2564 of Title 13 this title.

(5)  An offense involving the sale, delivery, manufacture or cultivation of a regulated drug or an offense under section 4237, subdivision 4231(c)(1), or subsections 4233(c), or 4234a(c) of Title 18.

Sec. 3.  18 V.S.A. § 4201 is amended to read:

§ 4201.  DEFINITIONS

As used in this chapter, unless the context otherwise requires:

* * *

(6)  “Depressant or stimulant drug” means:

* * *

(B)  any drug, other than methamphetamine, which contains any quantity of amphetamine or any of its optical isomers, any salt or amphetamine or any salt of an optical isomer of amphetamine, which the board of health so designates by such regulation as habit forming because of its effect on the central nervous system;

* * *

(G)  any drug, other than methamphetamine, which contains any quantity of a substance which the board of health so designates by such regulation as having a serious potential for abuse arising out of its effect on the central nervous system.

* * *

(29)  “Regulated drug” means:

(A)  a narcotic drug;

(B)  a depressant or stimulant drug, other than methamphetamine;

(C)  a hallucinogenic drug;

(D)  Esctasy Ecstasy;

(E)  or marijuana; or

(F)  methamphetamine.

* * *

(39)  “Methamphetamine” includes any quantity of the substance, its salt, isomers, salts of isomers, optical isomers, and salts of its optical isomers.

(40)  “Crack cocaine” means the free‑base form of cocaine.

Sec. 4.  18 V.S.A. § 4230(c) is added to read:

(c)  Trafficking.  A person knowingly and unlawfully possessing marijuana in an amount consisting of one or more preparations, compounds, mixtures, or substances of an aggregate weight of 50 pounds or more containing any marijuana with the intent to sell or dispense the marijuana shall be imprisoned not more than 30 years or fined not more than $1,000,000.00, or both.  There shall be a permissive inference that a person who possesses marijuana in an amount consisting of one or more preparations, compounds, mixtures, or substances of an aggregate weight of 50 pounds or more containing any marijuana intends to sell or dispense the marijuana.

Sec. 5.  18 V.S.A. § 4231 is amended to read:

§ 4231.  COCAINE

(a)  Possession.

* * *

(4)  A person knowingly and unlawfully possessing cocaine in an amount consisting of one pound or more of one or more preparations, compounds, mixtures or substances containing cocaine shall be imprisoned not more than 20 years or fined not more than $1,000,000.00, or both.

* * *

(c)(1)  Trafficking.  A person knowingly and unlawfully possessing cocaine in an amount consisting of 300 grams or more of one or more preparations, compounds, mixtures, or substances containing cocaine with the intent to sell or dispense the cocaine shall be imprisoned not more than 30 years or fined not more than $1,000,000.00, or both.  There shall be a permissive inference that a person who possesses cocaine in an amount consisting of 300 grams or more of one or more preparations, compounds, mixtures, or substances containing cocaine intends to sell or dispense the cocaine.  The amount of possessed cocaine under this subdivision to sustain a charge of conspiracy under 13 V.S.A. § 1404 shall be no less than 800 grams in the aggregate.

(2)  A person knowingly and unlawfully possessing crack cocaine in an amount consisting of 60 grams or more of one or more preparations, compounds, mixtures, or substances containing crack cocaine with the intent to sell or dispense the crack cocaine shall be imprisoned not more than 30 years or fined not more than $1,000,000.00, or both.  There shall be a permissive inference that a person who possesses crack cocaine in an amount consisting of 60 grams or more of one or more preparations, compounds, mixtures, or substances containing crack cocaine intends to sell or dispense the crack cocaine.

Sec. 6.  18 V.S.A. § 4233(c) is added to read:

(c)  Trafficking.  A person knowingly and unlawfully possessing heroin in an amount consisting of seven grams or more of one or more preparations, compounds, mixtures, or substances containing heroin with the intent to sell or dispense the heroin shall be imprisoned not more than 30 years or fined not more than $1,000,000.00, or both.  There shall be a permissive inference that a person who possesses heroin in an amount of seven grams or more of one or more preparations, compounds, mixtures, or substances containing heroin intends to sell or dispense the heroin.  The amount of possessed heroin under this subsection to sustain a charge of conspiracy under 13 V.S.A. § 1404 shall be no less than 20 grams in the aggregate.

Sec. 7.  18 V.S.A. § 4234a is added to read:

§ 4234a.  METHAMPHETAMINE

(a)  Possession.

(1)  A person knowingly and unlawfully possessing methamphetamine shall be imprisoned not more than one year or fined not more than $2,000.00, or both.

(2)  A person knowingly and unlawfully possessing methamphetamine in an amount consisting of 2.5 grams or more of one or more preparations, compounds, mixtures, or substances containing methamphetamine shall be imprisoned not more than five years or fined not more than $100,000.00, or both.

(3)  A person knowingly and unlawfully possessing methamphetamine in an amount consisting of 25 grams or more of one or more preparations, compounds, mixtures, or substances containing methamphetamine shall be imprisoned not more than ten years or fined not more than $250,000.00, or both.

(b)  Selling and dispensing.

(1)  A person knowingly and unlawfully dispensing methamphetamine shall be imprisoned not more than three years or fined not more than $75,000.00, or both.  A person knowingly and unlawfully selling methamphetamine shall be imprisoned not more than five years or fined not more than $100,000.00, or both.

(2)  A person knowingly and unlawfully selling or dispensing methamphetamine in an amount consisting of 2.5 grams or more of one or more preparations, compounds, mixtures, or substances containing methamphetamine shall be imprisoned not more than ten years or fined not more than $250,000.00, or both.

(3)  A person knowingly and unlawfully selling or dispensing methamphetamine in an amount consisting of 25 grams or more of one or more preparations, compounds, mixtures, or substances containing methamphetamine shall be imprisoned not more than 20 years or fined not more than $1,000,000.00, or both.

(c)  Trafficking.  A person knowingly and unlawfully possessing methamphetamine in an amount consisting of 300 grams or more of one or more preparations, compounds, mixtures, or substances containing methamphetamine with the intent to sell or dispense the methamphetamine shall be imprisoned not more than 30 years or fined not more than $1,000,000.00, or both.  There shall be a permissive inference that a person who possesses methamphetamine in an amount consisting of 300 grams or more of one or more preparations, compounds, mixtures, or substances containing methamphetamine intends to sell or dispense the methamphetamine.  The amount of possessed methamphetamine under this subsection to sustain a charge of conspiracy under 13 V.S.A. § 1404 shall be no less than 800 grams in the aggregate.

Sec. 8.  18 V.S.A. § 4237 is amended to read:

§ 4237.  SELLING OR DISPENSING TO MINORS; SELLING ON SCHOOL GROUNDS

(a)  Dispensing regulated drugs to minors.  A person knowingly and unlawfully dispensing any regulated drug to a person under the age of 18 minor who is at least three years that person’s junior shall be sentenced to a term of imprisonment of not more than five years.

(b)  Sale of regulated drugs.  A person knowingly and unlawfully selling any regulated drug to a person under the age of 18 minor shall, in addition to any other penalty, be sentenced to a term of imprisonment of not more than ten years.

(c)  Selling on school grounds.  A No person shall knowingly and unlawfully:

(1)  dispensing or selling dispense or sell a regulated drug to any person on a school bus or in or on real property owned by a public or private elementary, secondary or vocational school shall, in addition to any other penalty, be sentenced to a term of imprisonment of not more than ten years;

(2)  sell a regulated drug to any person on real property abutting real property owned by a public or private elementary, secondary, or vocational school; or

(3)  dispense a regulated drug to any person in public view on real property abutting real property owned by a school.

(d)  The selling or dispensing of a regulated drug to a person on property abutting school property is a violation under this section only if it occurs within 500 feet of the school property.  Property shall be considered abutting school property if:

(1)  it shares a boundary with school property; or

(2)  it is adjacent to school property and is separated only by a river, stream, or public highway.

(e)  A person who violates subsection (c) of this section shall, in addition to any other penalty, be sentenced to a term of imprisonment of not more than ten years.

(d)(f)  As used in this section,:

(1)  “Minor” means a person under the age of 18.

(2)  “owned Owned by a school” means owned, leased, controlled, or subcontracted by a school, and used frequently by students for educational or recreational activities

Sec. 9.  18 V.S.A. § 4249 is added to read:

§ 4249.  Transportation of ALCOHOL OR regulated drugS

              into places of detention

(a)  No person shall knowingly carry or introduce or cause to be carried or introduced into a lockup, jail, prison, or correctional facility:

(1)  alcohol, malt or vinous beverages, or spirituous liquor;

(2)  marijuana; or

(3)  a regulated drug, other than marijuana, as defined in section 4201 of this title, except upon the prescription or direction of a practitioner as that term is defined in chapter 36 of Title 26. 

(b)  A person who violates subdivision (a)(1) of this section shall be imprisoned not more than three months or fined not more than $300.00, or both.

(c)  A person who violates subdivision (a)(2) of this section shall be imprisoned not more than six months or fined not more than $500.00, or both.

(d)  A person who violates subdivision (a)(3) of this section shall be imprisoned not more than one year or fined not more than $1,000.00, or both.

(e)  As used in this section, “correctional facility” means any secure or staff‑secure building, enclosure, space, or structure of or supported by the department and used for the confinement of persons committed to the custody of the commissioner of corrections, or for any other matter related to such confinement.

Sec. 10.  18 V.S.A. § 4250 is added to read:

§ 4250.  SELLING OR DISPENSING A REGULATED DRUG WITH

              DEATH RESULTING

(a)  If the death of a person results from the selling or dispensing of a regulated drug to the person in violation of this chapter, the person convicted of the violation shall be imprisoned not less than two years nor more than 20 years.

(b)  This section shall apply only if the person’s use of the regulated drug is the proximate cause of his or her death. 

Sec. 11.  18 V.S.A. § 4251 is added to read:

§ 4251.  PILOT PROJECT FOR DRUG COURT INITIATIVE

              COMMITTEES

(a)  Establishment.  A pilot project creating drug court initiative committees is established for the purpose of developing an approach to provide accountability, assessment, and suitable services for persons who have been charged with committing a crime or a delinquent act and who have a substance abuse problem.  Such an approach shall be applicable to defendants of any age, but there shall be an emphasis on providing coordinated services for youth under the age of 21.  Committees shall be located in Chittenden, Rutland, and Bennington counties, and the court administrator may select up to three additional counties to participate in the project. 

(b)(1)  Committee composition.  Each committee shall be composed of the following persons:

(A)  a district court judge presiding in such county, appointed by the administrative judge;

(B)  the family court judge presiding in such county, if the family court judge is different from the district court judge;

(C)  a representative from the district office of the department of corrections appointed by the commissioner of corrections;

(D)  the state’s attorney;

(E)  a representative appointed by the defender general from the district office of the office of the defender general, or in counties not served by a district office, an attorney under contract with the office of the defender general to perform legal services for the indigent;

(F)  a representative from the district office of the department of social and rehabilitation services;

(G)  a representative from the office of alcohol and drug abuse programs;

(H)  two representatives from local substance abuse provider organizations, family counseling service organizations, or any other appropriate service providers, appointed by the office of alcohol and drug abuse programs; and

(I)  two at-large members of the community, who shall be selected pursuant to subdivision (2) of this subsection.

(2)  At the first meeting of each committee, the designated members shall select, by majority vote, two at-large members of the community to participate as members of the committee. 

(c)  Committee chair.  Each committee shall be convened and chaired by the district court judge.

(d)  Consultation with treatment organizations.  Each committee shall consult with local substance abuse provider organizations, family counseling service organizations, and any other appropriate service providers to share information and develop essential communication and coordination between the criminal and juvenile justice systems and the treatment community.

(e)  Report.  On or before January 15 each year, the court administrator shall report to the general assembly on the progress and outcomes of each committee on achieving the goals of the pilot project.

(f)  Sunset.  This section shall sunset on March 1, 2007.

Sec. 12.  23 V.S.A. § 674 is amended to read:

§ 674.  OPERATING AFTER SUSPENSION OR REVOCATION OF

             LICENSE; PENALTY

(a)  A Except as provided in section 676 of this title, a person whose license or privilege to operate a motor vehicle has been suspended or revoked for a violation of this section or sections 1091, 1094, 1128 or 1133 subsections 1091(b), 1094(b), or 1128(b) or (c) of this title and who operates or attempts to operate a motor vehicle upon a public highway before the suspension period imposed for the violation has expired shall be imprisoned not more than two years or fined not more than $5,000.00, or both.

(b)  A person whose license or privilege to operate a motor vehicle has been suspended or revoked for a violation of section 1201 of this title or has been suspended under section 1205 of this title and who operates or attempts to operate a motor vehicle upon a public highway before reinstatement of the license shall be imprisoned not more than two years or fined not more than $5,000.00, or both.  The sentence of imprisonment shall be subject to the following mandatory minimum terms:

(1)(A)  For the first offense, at least 48 hours must be served in a correctional facility or in a house arrest program approved by the commissioner of corrections and the sentence may not be suspended or deferred.  In addition, the person shall be sentenced to perform 40 hours of community service approved by the commissioner of corrections.  For the first offense, the defendant shall pay a mandatory minimum fine of $300.00 or complete 40 hours of community service.  In the event that no term of imprisonment, suspended or to serve, is imposed, the community service shall be performed within 120 days.  Failure to submit proof of completion of the 40 hours within 120 days shall constitute civil contempt unless the defendant requests an extension for good cause shown prior to expiration of the 120 days.

(B)  Notwithstanding the provisions of subsection (b)(1)(A) and subsection (f) of this section, a person charged with a first offense under this section after the suspension period has run and who has complied with section 1209a of this title shall not be subject to the mandatory 48-hour sentence provided in subdivision (1) of this subsection.  A person sentenced under this subdivision shall not be subject to the provisions of subsection (h) of this section for that offense.

(2)  For the second offense, at least 96 hours must be served in a correctional facility or in a house arrest program approved by the commissioner of corrections and the sentence may not be suspended or deferred.  In addition, the person shall be sentenced to perform 80 hours of community service approved by the commissioner of corrections.  For a second offense occurring within five years, the defendant shall pay a mandatory minimum fine of $750.00 or complete 80 hours of community service.  In the event that no term of imprisonment, suspended or to serve, is imposed, the community service shall be performed within 120 days.  Failure to submit proof of completion of the 80 hours within 120 days shall constitute civil contempt unless the defendant requests an extension for good cause shown prior to expiration of the 120 days.

(3)  For the third offense occurring within five years, at least eight consecutive days must be served in a correctional facility and may not be suspended or deferred. In addition, the person shall be sentenced to perform 120 hours of community service approved by the commissioner of corrections the defendant shall serve at least 12 days of preapproved furlough with community restitution.

(4)  For the fourth and subsequent offenses offense occurring within five years, at least 16 consecutive days must be served in a correctional facility and may not be suspended or deferred the defendant shall serve at least 18 days of preapproved furlough with community restitution.

(5)  For the fifth and subsequent offenses occurring within five years, the defendant shall be imprisoned at least 16 consecutive days in a correctional facility.  The sentence may not be suspended or deferred.

(c)  A person who violates section 676 of this title for the third or subsequent time shall be subject to the penalties set forth in subsection (a) of this section.

(d)(c)  Notwithstanding any other provision of this title, when a conviction for a violation of this section and a conviction for a violation of section 1201 of this title result from the same incident, any penalty or suspension or revocation of a person’s license or privilege to operate shall be imposed to be consecutive and not concurrent.

(e)(d)  In determining appropriate fines under this section, the court may take into account the income of the defendant.

(f)(e)  For purposes of this section and section 676 of this title, the suspension period for a violation of section 1201 or 1205 of this title shall not be deemed to expire until the person has complied with section 1209a of this title and the person’s license has been reinstated.

(g)(f)  In establishing a prima facie case against a person accused of violating this section, the court shall accept as evidence a printout attested to by the law enforcement officer as the person’s motor vehicle record showing convictions and resulting license suspensions.  The admitted motor vehicle record shall establish a permissive inference that the person was under suspension on the dates and time periods set forth in the record.  No certified copy shall be required from the department of motor vehicles to establish the permissive inference.

(h)(g)  At the time of sentencing after a second or subsequent conviction under subsection (b) of this section, the court may, in addition to any penalty imposed by law, order that the motor vehicle operated by the person at the time of the offense be immobilized.  At the time of sentencing after a third or subsequent conviction under subsection (b) of this section, the court may, in addition to any penalty imposed by law, order that the motor vehicle operated by the person at the time of the offense be forfeited and sold.  Immobilization and forfeiture procedures under this section shall be conducted in accordance with the procedures in section 1213c of this title.

(i)(h)  A person convicted of violating this section shall be assessed a surcharge of $50.00, which shall be added to any fine or surcharge imposed by the court.  The court shall collect and transfer the surcharge assessed under this subsection to be credited to the DUI enforcement fund.  The collection procedures described in 13 V.S.A. § 5240 shall be utilized in the collection of this surcharge.

 

 

 

 

Sec. 13.  23 V.S.A. § 676 is amended to read:

§ 676.  OPERATION AFTER SUSPENSION, REVOCATION, OR

            REFUSAL - CIVIL VIOLATION

(a)  A person whose license or privilege to operate a motor vehicle has been revoked, suspended or refused by the commissioner of motor vehicles for any reason other than a violation of sections 674, 1091, 1094, 1128, 1133 1091(b), 1094(b), 1128(b) or (c), or 1201 or a suspension under section 1205 of this title and who operates or attempts to operate a motor vehicle upon a public highway before the license or privilege of the person to operate a motor vehicle has been reinstated by the commissioner commits a civil traffic violation.

(b)  A person whose license or privilege to operate a motor vehicle has been revoked or suspended for a violation of sections 674(a), 1091, 1094, 1128 or 1133 of this title and who operates or attempts to operate a motor vehicle on a public highway after the suspension or revocation period has expired but prior to reinstatement commits a civil traffic violation.

(c)  In establishing a prima facie case against a person accused of violating this section, the judicial bureau shall accept as evidence, a printout attested to by the law enforcement officer as the person’s motor vehicle record showing convictions and resulting license suspensions.  The admitted motor vehicle record shall establish a permissive inference that the person was under suspension or had his or her license revoked on the dates and time periods set forth in the record.  The judicial bureau shall not require a certified copy of the person’s motor vehicle record from the department of motor vehicles to establish the permissive inference.

Sec. 14.  REPEAL

7 V.S.A. § 653 (transportation into places of detention) is repealed.

Sec. 15.  DLS STUDY AND REPORT

(a)  The court administrator, the defender general, the commissioner of motor vehicles, the commissioner of corrections, the executive director of the state’s attorneys’ and sheriffs’ department, and a representative from the Vermont police association shall form a study committee to examine and evaluate the issues associated with suspension of drivers’ licenses and report their findings and recommendations to the house and senate committees on judiciary no later than December 15, 2003.

(b)  The report shall include information on the following:

(1)  how a person who is under suspension can get his or her license back in the most expeditious manner;

(2)  the best approach to assist a person whose license is suspended to obtain reinstatement of driving privileges;

(3)  the best approach to addressing the situation of a person who operates or attempts to operate a motor vehicle on a public highway after the initial suspension or revocation period has expired but prior to reinstatement when that person completed the requirements for reinstatement prior to the violation;

(4)  whether an amnesty program may be useful; and

(5)  whether fines should be reduced.

Sec. 16.  DRUG TRAFFICKING UNIT STUDY AND REPORT

The commissioner of the department of public safety and the commissioner of finance and management in consultation with the joint fiscal office shall study the advisability of establishing six (6) new permanent trooper positions assigned to the Drug Trafficking Unit within the department of public safety.  On or before November 15, 2003, the commissioners shall report to the house and senate committees on judiciary, the house committee on ways and means and the senate committee on finance on suggested ways to fund the drug trafficking unit, including use of Vermont’s forfeiture laws.

Sec. 17.  DEFERRED SENTENCES STUDY AND REPORT

The court administrator, in consultation with the executive director of the state’s attorneys’ association and the defender general, shall examine the use of deferred sentences and the advantages and disadvantages of permitting court discretion to order a deferred sentence over the objection of a state’s attorney, especially in drug courts.  The court administrator shall report its findings and recommendations to the house and senate committees on judiciary no later than January 15, 2004.  The report shall address whether the lack of court‑directed deferred sentences was a hindrance in any drug court program and whether there is a disparate number of deferred sentences ordered in the various counties.

Sec. 18.  REGULATED DRUG STUDY AND REPORT

The commissioner of the department of public safety, in consultation with the attorney general’s office, the defender general’s office, the executive director of the state’s attorneys’ association and the court administrator, shall track the criminal cases brought under the drug trafficking laws, the methamphetamine law, and the conspiracy law with respect to drug trafficking and report to the House and Senate committees on judiciary whether any problems or issues arose with regard to the amount of drugs provided for in these laws.

Approved:  June 4, 2003