As Introduced

128th General Assembly
Regular Session
2009-2010
H. B. No. 274


Representative Yates 


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 the14
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 customary45
and primary purpose of which is for the administration or use of a46
dangerous drug, other than marihuana, when the instrument involved47
is a hypodermic or syringe, whether or not of crude or48
extemporized manufacture or assembly, and the instrument, article,49
or thing involved has been used by the offender to unlawfully50
administer or use a dangerous drug, other than marihuana, or to51
prepare a dangerous drug, other than marihuana, for unlawful52
administration or use.53

       (B)(1) This section does not apply to manufacturers, licensed54
health professionals authorized to prescribe drugs, pharmacists,55
owners of pharmacies, and other persons whose conduct was in56
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 possessing66
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 an70
offender for a violation of this section, the court shall suspend71
for not less than six months or more than five years the72
offender's driver's or commercial driver's license or permit. If73
the offender is a professionally licensed person, in addition to74
any other sanction imposed for a violation of this section, the75
court immediately shall comply with section 2925.38 of the Revised 76
Code.77

       Sec. 2925.14.  (A) As used in this section, "drug78
paraphernalia" means any equipment, product, or material of any79
kind that is used by the offender, intended by the offender for80
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 controlled85
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 by88
the offender for use, or designed by the offender for use, in any89
of the following manners:90

       (1) A kit for propagating, cultivating, growing, or91
harvesting any species of a plant that is a controlled substance92
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 preparing97
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 the101
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 controlled106
substance;107

       (8) A separation gin or sifter for removing twigs and seeds108
from, or otherwise cleaning or refining, marihuana;109

       (9) A blender, bowl, container, spoon, or mixing device for110
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 a114
controlled substance;115

       (12) A hypodermic syringe, needle, or instrument for116
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 a121
screen, permanent screen, hashish head, or punctured metal bowl;122
water pipe; carburetion tube or device; smoking or carburetion123
mask; roach clip or similar object used to hold burning material,124
such as a marihuana cigarette, that has become too small or too125
short to be held in the hand; miniature cocaine spoon, or cocaine126
vial; chamber pipe; carburetor pipe; electric pipe; air driver127
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 shall130
consider, in addition to other relevant factors, the following:131

       (1) Any statement by the owner, or by anyone in control, of132
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 to137
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 the141
owner, or of anyone in control, of the equipment, product, or142
material, to deliver it to any person whom the owner or person in143
control of the equipment, product, or material knows intends to144
use the object to facilitate a violation of any provision of this145
chapter. A finding that the owner, or anyone in control, of the 146
equipment, product, or material, is not guilty of a violation of147
any other provision of this chapter does not prevent a finding148
that the equipment, product, or material was intended or designed149
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 the159
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 or169
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 and173
printed and circulates primarily within this state, if the person174
knows that the purpose of the advertisement is to promote the175
illegal sale in this state of the equipment, product, or material176
that the offender intended or designed for use as drug177
paraphernalia.178

       (D)(1) This section does not apply to manufacturers, licensed179
health professionals authorized to prescribe drugs, pharmacists,180
owners of pharmacies, and other persons whose conduct is in181
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 by184
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 is215
guilty of illegal use or possession of drug paraphernalia, a216
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 of219
dealing in drug paraphernalia, a misdemeanor of the second degree.220

       (3) Whoever violates division (C)(2) of this section by221
selling drug paraphernalia to a juvenile is guilty of selling drug222
paraphernalia to juveniles, a misdemeanor of the first degree.223

       (4) Whoever violates division (C)(3) of this section is224
guilty of illegal advertising of drug paraphernalia, a misdemeanor225
of the second degree.226

       (G) In addition to any other sanction imposed upon an227
offender for a violation of this section, the court shall suspend228
for not less than six months or more than five years the229
offender's driver's or commercial driver's license or permit. If230
the offender is a professionally licensed person, in addition to231
any other sanction imposed for a violation of this section, the232
court immediately shall comply with section 2925.38 of the Revised233
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 any238
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 lawful253
professional, mechanical, trade, or craft purposes.254

       (B) No manufacturer or distributor of, or dealer in,255
hypodermics or medication packaged in hypodermics, or their256
authorized agents or employees, and no terminal distributor of 257
dangerous drugs, shall display any hypodermic for sale. No person258
authorized to possess a hypodermic pursuant to division (A) of259
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 to280
another whom the person knows or has reasonable cause to believe 281
is not authorized by division (A) of this section to possess a282
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