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Sub. S. B. No. 58As Reported by the Senate Judiciary--Civil Justice Committee
As Reported by the Senate Judiciary--Civil Justice Committee
125th General Assembly | Regular Session | 2003-2004 |
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SENATORS Jacobson, Stivers, Goodman, Armbruster, Harris, Carey, Brady, Fingerhut, Hottinger
A BILLTo amend sections 2925.04 and 2925.041 of the Revised Code to increase the penalties for certain drug offenses if the offense is committed in the vicinity of a school or in the vicinity of a juvenile. BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2925.04 and 2925.041 of the Revised Code be amended to read as follows:
Sec. 2925.04. (A) No person shall knowingly cultivate
marihuana or knowingly manufacture or otherwise engage in any part
of the
production of a controlled substance. (B) This section does not apply to any person listed in
division
(B)(1), (2), or (3) of section 2925.03 of the Revised
Code to the extent and
under the circumstances described in those
divisions. (C)(1) Whoever commits a violation of division (A) of
this
section that involves any drug other than marihuana is guilty of
illegal
manufacture of drugs, and whoever commits a violation of
division (A)
of this section that involves marihuana is guilty of
illegal cultivation of
marihuana. (2)
Except as otherwise provided in this division, if the
drug involved in the violation of division
(A) of this section is
any compound, mixture,
preparation, or substance included in
schedule I or
II, with the exception of marihuana, illegal
manufacture
of drugs is a felony of the second degree, and,
subject to
division (E) of this section, the court shall impose as
a
mandatory prison term one of the prison terms prescribed for a
felony of the second degree. If the drug involved in the violation is any compound, mixture, preparation, or substance included in schedule I or II, with the exception of marihuana, and if the offense was committed in the vicinity of a juvenile or in the vicinity of a school, illegal manufacture of drugs is a felony of the first degree, and, subject to division (E) of this section, the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the first degree.
If the drug involved in the violation
is methamphetamine, any salt, isomer, or salt of an isomer of
methamphetamine, or any compound, mixture, preparation, or
substance containing methamphetamine or any salt, isomer, or salt
of an isomer of methamphetamine and if the offense was committed
in the vicinity of a juvenile, in the vicinity of a school, or on
public premises, illegal manufacture of drugs is a felony of the
first degree, and, subject to division (E) of this section, the
court shall impose as a mandatory prison term one of the prison
terms prescribed for a felony of the first degree. (3) If the drug involved in the violation of division
(A) of
this section is any compound, mixture,
preparation, or substance
included in schedule III,
IV, or V, illegal manufacture of drugs
is a
felony of the third degree or, if the offense was committed in the vicinity of a school or in the vicinity of a juvenile, a felony of the second degree, and there is a presumption for a
prison term for the offense. (4) If the drug involved in the violation is marihuana,
the
penalty for the offense shall be determined as follows: (a) Except as otherwise provided in division
(C)(4)(b), (c),
(d), (e), or
(f) of this section, illegal cultivation of marihuana
is a
minor misdemeanor or, if the offense was committed in the vicinity of a school or in the vicinity of a juvenile, a misdemeanor of the fourth degree. (b) If the amount of marihuana involved equals
or exceeds
one hundred grams but is less than
two hundred
grams, illegal
cultivation of marihuana is a misdemeanor of the
fourth degree or, if the offense was committed in the vicinity of a school or in the vicinity of a juvenile, a misdemeanor of the third degree. (c) If the amount of marihuana involved equals or exceeds
two hundred grams but is less than one
thousand grams, illegal
cultivation of marihuana is a felony of the fifth degree or, if the offense was committed in the vicinity of a school or in the vicinity of a juvenile, a felony of the fourth degree, and
division (B) of section 2929.13 of the Revised Code applies in
determining
whether to impose a prison term on the offender. (d) If the amount of marihuana involved equals or exceeds
one thousand grams but is less than five
thousand grams,
illegal
cultivation of marihuana is a felony of the third degree or, if the offense was committed in the vicinity of a school or in the vicinity of a juvenile, a felony of the second degree,
and
division (C) of section 2929.13 of the Revised Code applies in
determining
whether
to impose a prison term on the offender. (e) If the amount of marihuana involved equals or exceeds
five thousand grams but is less than twenty
thousand grams,
illegal cultivation of marihuana is a felony of the third degree or, if the offense was committed in the vicinity of a school or in the vicinity of a juvenile, a felony of the second degree,
and there is a presumption for a prison term for the offense. (f) If Except as otherwise provided in this division, if the amount of marihuana involved equals or exceeds
twenty thousand grams, illegal cultivation of marihuana is a
felony of the second degree, and the court shall impose as a
mandatory prison term the maximum prison term prescribed for a
felony of the second degree. If the amount of the drug involved equals or exceeds twenty thousand grams and if the offense was committed in the vicinity of a school or in the vicinity of a juvenile, illegal cultivation of marihuana is a felony of the first degree, and the court shall impose as a mandatory prison term the maximum prison term prescribed for a felony of the first degree. (D) In addition to any prison term authorized
or required by
division (C) or (E) of this
section and sections 2929.13 and
2929.14 of the Revised
Code and in addition to any other sanction
imposed for
the offense under this section or sections 2929.11 to
2929.18 of
the Revised Code, the court that sentences an
offender
who is convicted of or pleads guilty to a violation of
division
(A) of this section shall do all of the
following that are
applicable regarding the offender: (1) If the violation of division (A) of this
section is a
felony of the
first, second, or third degree, the court
shall
impose upon the offender the mandatory fine specified for
the
offense under division (B)(1) of section 2929.18 of
the Revised
Code unless, as specified in that
division, the court determines
that the offender is
indigent. The clerk of the court shall pay a
mandatory fine or
other fine imposed for a violation of this
section pursuant to
division (A) of section 2929.18 of the Revised
Code in accordance with and subject to the requirements
of
division (F) of section 2925.03 of the Revised
Code. The agency
that receives the fine shall use the
fine as specified in division
(F) of section 2925.03 of
the Revised Code. If a person is
charged with a
violation of this section that is a felony of the
first, second, or third
degree, posts bail, and forfeits the bail,
the clerk shall pay
the forfeited bail as if the forfeited bail
were a fine imposed
for a violation of this section. (2) The court shall
suspend the offender's
driver's or
commercial driver's license or permit in accordance
with division
(G) of section 2925.03 of the
Revised Code. If an
offender's
driver's or
commercial driver's license or permit is
suspended in
accordance
with that division, the offender
may request
termination of, and
the court may terminate, the
suspension in
accordance with that
division. (3) If the offender is a professionally licensed person,
the
court
immediately shall comply with section 2925.38 of the
Revised
Code. (E) Notwithstanding the prison term otherwise
authorized or
required for the offense under division (C)
of this section and
sections 2929.13 and 2929.14 of the
Revised Code, if the violation
of division
(A) of this section involves the sale, offer to sell,
or
possession of a schedule I or II controlled
substance, with the
exception of marihuana, and if the court imposing
sentence upon
the offender finds that the offender
as a result of the violation
is a major drug offender and is guilty
of a specification of the
type described in section 2941.1410 of the Revised Code, the
court, in lieu of the prison term otherwise authorized or
required, shall impose upon the offender the mandatory prison
term
specified in division (D)(3)(a) of
section 2929.14 of the Revised
Code and may
impose an additional prison term under division
(D)(3)(b) of that section. (F) It is an affirmative defense, as
provided in section
2901.05 of the Revised Code,
to a charge under this section for a
fifth degree felony violation of
illegal cultivation of
marihuana
that the marihuana that gave rise to the charge is in
an amount,
is in a form, is prepared, compounded, or mixed with
substances
that are not controlled substances in a manner, or is
possessed or
cultivated under any other circumstances that
indicate that the
marihuana was solely for personal use. Notwithstanding any contrary provision of division
(F) of
this section, if, in
accordance with section 2901.05 of the
Revised
Code, a person who is charged
with a violation of illegal
cultivation of marihuana that is a
felony of the fifth degree
sustains the burden of going forward
with evidence of and
establishes by a preponderance of the
evidence the affirmative
defense described in this division, the
person may be prosecuted
for and may be convicted of or plead
guilty to a misdemeanor
violation of illegal cultivation of
marihuana. (G) Arrest or conviction for a minor
misdemeanor violation
of this section does not constitute a
criminal record and need not
be reported by the person so
arrested or convicted in response to
any inquiries about the
person's criminal record, including any
inquiries contained in an
application for employment, a license,
or any other right or
privilege or made in connection with the
person's appearance as a
witness.
Sec. 2925.041. (A) No person shall knowingly assemble or
possess one or more
chemicals that may be used to manufacture a
controlled
substance in schedule I or II with the intent to
manufacture a
controlled substance in schedule I or II in
violation of section
2925.04 of the Revised Code.
(B) In a prosecution under this section, it is not necessary
to allege or prove that the offender assembled or possessed all
chemicals necessary to manufacture a controlled substance in
schedule I or II. The assembly or possession of a single chemical
that may be used in the manufacture of a controlled substance in
schedule I or II, with the intent to manufacture a controlled
substance in either schedule, is sufficient to violate this
section. (C) Whoever violates this section is guilty of illegal
assembly or possession of chemicals for the manufacture of drugs.
Illegal Except as otherwise provided in this division, illegal assembly or
possession of chemicals
for the manufacture of
drugs is a felony
of the third degree, and
division (C) of section
2929.13 of the
Revised Code applies in
determining whether to
impose a prison
term on the offender. If the offense was committed in the vicinity of a juvenile or in the vicinity of a school, illegal assembly or possession of chemicals for the manufacture of drugs is a felony of the second degree, and division (C) of section 2929.13 of the Revised Code applies in determining whether to impose a prison term on the offender.
(D) In addition to any prison term authorized by
division
(C) of this section and sections 2929.13 and 2929.14 of
the
Revised Code and in addition to any other sanction imposed for
the
offense under this section or sections 2929.11 to 2929.18 of
the
Revised Code, the court that sentences an offender who is
convicted of or pleads guilty to a violation of this section shall
do all of the following that are applicable regarding the
offender:
(1) The court shall impose upon the offender the mandatory
fine specified for the offense under division (B)(1) of section
2929.18 of the Revised Code unless, as specified in that division,
the court determines that the offender is indigent. The clerk of
the court shall pay a mandatory fine or other fine imposed for a
violation of this section under division (A) of section
2929.18 of
the Revised Code in accordance with and subject to the
requirements of division (F) of section 2925.03 of the Revised
Code. The agency that receives the fine shall use the fine as
specified in division (F) of section 2925.03 of the Revised Code.
If a person charged with a violation of this section posts bail
and forfeits the bail, the clerk shall pay the forfeited bail as
if the forfeited bail were a fine imposed for a violation of this
section.
(2) The court shall revoke or suspend the offender's
driver's or commercial driver's license or permit in accordance
with division (G) of section 2925.03 of the Revised Code. If an
offender's driver's or commercial driver's license or permit is
revoked in accordance with that division, the offender may request
termination of, and the court may terminate, the revocation in
accordance with that division.
(3) If the offender is a professionally licensed person or a
person who has been admitted to the bar by order of the supreme
court in compliance with its prescribed and published rules, the
court shall comply with section 2925.38 of the Revised Code.
Section 2. That existing sections 2925.04 and 2925.041 of the Revised Code are hereby repealed.
Section 3. Sections 1 and 2 of this act shall take effect January 1, 2004, or the earliest date permitted by law, whichever is later.
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