What is the mandatory sentence for growing 20 marijuana plants in Pennsylvania?
Full Question:
What is the mandatory sentence for growing 20 marijuana plants in Pennsylvania?
06/03/2009 |
Category: Criminal |
State: Pennsylvania |
#16861
Answer:
Please see the following PA statutes to determine applicability:
18 Pa.C.S.A. § 7508. Drug trafficking sentencing and penalties
(a) General rule. — Notwithstanding any other provisions of this or any
other act to the contrary, the following provisions shall apply:
(1) A person who is convicted of violating section 13(a)(14), (30) or
(37) of the act of April 14, 1972 (P.L. 233, No. 64), known as The
Controlled Substance, Drug, Device and Cosmetic Act,[fn1] where the
controlled substance is marijuana shall, upon conviction, be sentenced to
a mandatory minimum term of imprisonment and a fine as set forth in this
subsection:
(i) when the amount of marijuana involved is at least two pounds, but
less than ten pounds, or at least ten live plants but less than 21 live
plants; one year in prison and a fine of $5,000 or such larger amount as
is sufficient to exhaust the assets utilized in and the proceeds from the
illegal activity; however, if at the time of sentencing the defendant has
been convicted of another drug trafficking offense: two years in prison
and a fine of $10,000 or such larger amount as is sufficient to exhaust
the assets utilized in and the proceeds from the illegal activity;
(ii) when the amount of marijuana involved is at least ten pounds, but
less than 50 pounds, or at least 21 live plants but less than 51 live
plants; three years in prison and a fine of $15,000 or such larger amount
as is sufficient to exhaust the assets utilized in and the proceeds from
the illegal activity; however, if at the time of sentencing the defendant
has been convicted of another drug trafficking offense: four years in
prison and a fine of $30,000 or such larger amount as is sufficient to
exhaust the assets utilized in and the proceeds from the illegal
activity; and
(iii) when the amount of marijuana involved is at least 50 pounds, or
at least 51 live plants; five years in prison and a fine of $50,000 or
such larger amount as is sufficient to exhaust the assets utilized in and
the proceeds from the illegal activity.
(2) A person who is convicted of violating section 13(a)(14), (30) or
(37) of The Controlled Substance, Drug, Device and Cosmetic Act where the
controlled substance or a mixture containing it is classified in Schedule
I or Schedule II under section 4 of that act and is a narcotic drug
shall, upon conviction, be sentenced to a mandatory minimum term of
imprisonment and a fine as set forth in this subsection:
(i) when the aggregate weight of the compound or mixture containing the
substance involved is at least 2.0 grams and less than ten grams; two
years in prison and a fine of $5,000 or such larger amount as is
sufficient to exhaust the assets utilized in and the proceeds from the
illegal activity; however, if at the time of sentencing the defendant has
been convicted of another drug trafficking offense: three years in prison
and $10,000 or such larger amount as is sufficient to exhaust the assets
utilized in and the proceeds from the illegal activity;
(ii) when the aggregate weight of the compound or mixture containing
the substance involved is at least ten grams and less than 100 grams;
three years in prison and a fine of $15,000 or such larger amount as is
sufficient to exhaust the assets utilized in and the proceeds from the
illegal activity; however, if at the time of sentencing the defendant has
been convicted of another drug trafficking offense: five years in prison
and $30,000 or such larger amount as is sufficient to exhaust the assets
utilized in and the proceeds from the illegal activity; and
(iii) when the aggregate weight of the compound or mixture containing
the substance involved is at least 100 grams; five years in prison and a
fine of $25,000 or such larger amount as is sufficient to exhaust the
assets utilized in and the proceeds from the illegal activity; however,
if at the time of sentencing the defendant has been convicted of another
drug trafficking offense: seven years in prison and $50,000 or such
larger amount as is sufficient to exhaust the assets utilized in and the
proceeds from the illegal activity.
(3) A person who is convicted of violating section 13(a)(14), (30) or
(37) of The Controlled Substance, Drug, Device and Cosmetic Act where the
controlled substance is coca leaves or is any salt, compound, derivative
or preparation of coca leaves or is any salt, compound, derivative or
preparation which is chemically equivalent or identical with any of these
substances or is any mixture containing any of these substances except
decocainized coca leaves or extracts of coca leaves which (extracts) do
not contain cocaine or ecgonine shall, upon conviction, be sentenced to a
mandatory minimum term of imprisonment and a fine as set forth in this
subsection:
(i) when the aggregate weight of the compound or mixture containing the
substance involved is at least 2.0 grams and less than ten grams; one
year in prison and a fine of $5,000 or such larger amount as is
sufficient to exhaust the assets utilized in and the proceeds from the
illegal activity; however, if at the time of sentencing the defendant has
been convicted of another drug trafficking offense: three years in prison
and $10,000 or such larger amount as is sufficient to exhaust the assets
utilized in and the proceeds from the illegal activity;
(ii) when the aggregate weight of the compound or mixture containing
the substance involved is at least ten grams and less than 100 grams;
three years in prison and a fine of $15,000 or such larger amount as is
sufficient to exhaust the assets utilized in and the proceeds from the,
illegal activity; however, if at the time of sentencing the defendant has
been convicted of another drug trafficking offense: five years in prison
and $30,000 or such larger amount as is sufficient to exhaust the assets
utilized in and the proceeds from the illegal activity; and
(iii) when the aggregate weight of the compound or mixture of the
substance involved is at least 100 grams; four years in prison and a fine
of $25,000 or such larger amount as is sufficient to exhaust the assets
utilized in and the proceeds from the illegal activity; however, if at
the time of sentencing the defendant has been convicted of another drug
trafficking offense: seven years in prison and $50,000 or such larger
amount as is sufficient to exhaust the assets utilized in and the
proceeds from the illegal activity.
(4) A person who is convicted of violating section 13(a)(14), (30) or
(37) of The Controlled Substance, Drug, Device and Cosmetic Act where the
controlled substance is methamphetamine or phencyclidine or is a salt,
isomer or salt of an isomer of methamphetamine or phencyclidine or is a
mixture containing methamphetamine or phencyclidine, containing a salt of
methamphetamine or phencyclidine, containing an isomer of methamphetamine
or phencyclidine, containing a salt of an isomer of methamphetamine or
phencyclidine shall, upon conviction, be sentenced to a mandatory minimum
term of imprisonment and a fine as set forth in this subsection:
(i) when the aggregate weight of the compound or mixture containing the
substance involved is at least five grams and less than ten grams; three
years in prison and a fine of $15,000 or such larger amount as is
sufficient to exhaust the assets utilized in and the proceeds from the
illegal activity; however, if at the time of sentencing the defendant has
been convicted of another drug trafficking offense: five years in prison
and $30,000 or such larger amount as is sufficient to exhaust the assets
utilized in and the proceeds from the illegal activity;
(ii) when the aggregate weight of the compound or mixture containing
the substance involved is at least ten grams and less than 100 grams;
four years in prison and a fine of $25,000 or such larger amount as is
sufficient to exhaust the assets utilized in and the proceeds from the
illegal activity; however, if at the time of sentencing the defendant has
been convicted of another drug trafficking offense: seven years in prison
and $50,000 or such larger amount as is sufficient to exhaust the assets
utilized in and the proceeds from the illegal activity; and
(iii) when the aggregate weight of the compound or mixture containing
the substance involved is at least 100 grams; five years in prison and a
fine of $50,000 or such larger amount as is sufficient to exhaust the
assets utilized in and the proceeds from the illegal activity; however,
if at the time of sentencing the defendant has been convicted of another
drug trafficking offense: eight years in prison and $50,000 or such
larger amount as is sufficient to exhaust the assets utilized in and the
proceeds from the illegal activity.
(5) A person who is convicted of violating section 13(a)(14), (30) or
(37) of The Controlled Substance, Drug, Device and Cosmetic Act, and
who, in the course of the offense, manufactures, delivers, brings into
this Commonwealth or possesses with intent to manufacture or deliver
amphetamine or any salt, optical isomer, or salt of an optical isomer, or
a mixture containing any such substances shall, when the aggregate weight
of the compound or mixture containing the substance involved is at least
five grams, be sentenced to two and one-half years in prison and a fine
of $15,000 or such larger amount as is sufficient to exhaust the assets
utilized in and the proceeds from the illegal activity; however, if at
the time of sentencing the defendant has been convicted of another drug
trafficking offense: be sentenced to five years in prison and $30,000 or
such larger amount as is sufficient to exhaust the assets utilized in and
the proceeds from the illegal activity.
(6) A person who is convicted of violating section 13(a)(14), (30) or
(37) of The Controlled Substance, Drug, Device and Cosmetic Act where the
controlled substance is methaqualone shall, upon conviction, be sentenced
to a mandatory minimum term of imprisonment and a fine as set forth in
this subsection:
(i) when the aggregate weight of the compound or mixture containing the
substance involved is at least 50 tablets, capsules, caplets or other
dosage units, or 25 grams and less than 200 tablets, capsules, caplets or
other dosage units, or 100 grams; one year in prison and a fine of $2,500
or such larger amount as is sufficient to exhaust the assets utilized in
and the proceeds from the illegal activity; however, if at the time of
sentencing the defendant has been convicted of another drug trafficking
offense: three years in prison and $5,000 or such larger amount as is
sufficient to exhaust the assets utilized in and the proceeds from the
illegal activity; and
(ii) when the aggregate weight of the compound or mixture containing
the substance involved is at least 200 tablets, capsules, caplets or
other dosage units, or more than 100 grams; two and one-half years in
prison and a fine of $15,000 or such larger amount as is sufficient to
exhaust the assets utilized in and the proceeds from the illegal
activity; however, if at the time of sentencing the defendant has been
convicted of another drug trafficking offense: five years in prison and
$30,000 or such larger amount as is sufficient to exhaust the assets
utilized in and the proceeds from the illegal activity.
(7) A person who is convicted of violating section 13(a)(14), (30) or
(37) of The Controlled Substance, Drug, Device and Cosmetic Act where the
controlled substance or a mixture containing it is heroin shall, upon
conviction, be sentenced as set forth in this paragraph:
(i) when the aggregate weight of the compound or mixture containing the
heroin involved is at least 1.0 gram but less than 5.0 grams the sentence
shall be a mandatory minimum term of two years in prison and a fine of
$5,000 or such larger amount as is sufficient to exhaust the assets
utilized in and the proceeds from the illegal activity; however, if at
the time of sentencing the defendant has been convicted of another drug
trafficking offense: a mandatory minimum term of three years in prison
and $10,000 or such larger amount as is sufficient to exhaust the assets
utilized in and the proceeds from the illegal activity;
(ii) when the aggregate weight of the compound or mixture containing
the heroin involved is at least 5.0 grams but less than 50 grams; a
mandatory minimum term of three years in prison and a fine of $15,000 or
such larger amount as is sufficient to exhaust the assets utilized in and
the proceeds from the illegal activity; however, if at the time of
sentencing the defendant has been convicted of another drug trafficking
offense: a mandatory minimum term of five years in prison and $30,000 or
such larger amount as is sufficient to exhaust the assets utilized in and
the proceeds from the illegal activity; and
(iii) when the aggregate weight of the compound or mixture containing
the heroin involved is 50 grams or greater: a mandatory minimum term of
five years in prison and a fine of $25,000 or such larger amount as is
sufficient to exhaust the assets utilized in and the proceeds from the
illegal activity; however, if at the time of sentencing the defendant has
been convicted of another drug trafficking offense: a mandatory minimum
term of seven years in prison and $50,000 or such larger amount as is
sufficient to exhaust the assets utilized in and the proceeds from the
illegal activity.
(8) A person who is convicted of violating section 13(a)(12), (14) or
(30) of The Controlled Substance, Drug, Device and Cosmetic Act where the
controlled substance or a mixture containing it is
3,4-methylenedioxyamphetamine (MDA); 3,4-methylene-dioxymethamphetamine
(MDMA); 5-methoxy-3,4-methylenedioxyamphetamine (MMDA);
3,4-methylenedioxy-N-ethylamphetamine;
N-hydroxy-3,4-methylenediox-yamphetamine; or their salts, isomers and
salts of isomers, whenever the existence of such salts, isomers and salts
of isomers is possible within the specific chemical designation, shall,
upon conviction, be sentenced as set forth in this paragraph:
(i) When the aggregate weight of the compound or mixture containing the
substance involved is at least 50 tablets, capsules, caplets or other
dosage units, or 15 grams and less than 100 tablets, capsules, caplets or
other dosage units, or less than 30 grams, the person is guilty of a
felony and, upon conviction thereof, shall be sentenced to imprisonment
not exceeding five years or to pay a fine not exceeding $15,000, or
both.
(ii) When the aggregate weight of the compound or mixture containing
the substance involved is at least 100 tablets, capsules, caplets or
other dosage units, or 30 grams and less than 1,000 tablets, capsules,
caplets or other dosage units, or less than 300 grams, the person is
guilty of a felony and, upon conviction thereof, shall be sentenced to
imprisonment not exceeding ten years or to pay a fine not exceeding
$100,000, or both.
(iii) When the aggregate weight of the compound or mixture containing
the substance involved is at least 1,000 tablets, capsules, caplets or
other dosage units, or 300 grams, the person is guilty of a felony and,
upon conviction thereof, shall be sentenced to imprisonment not exceeding
15 years or to pay a fine not exceeding $250,000, or both.
(a.1) Previous conviction. — For purposes of this section, it shall be
deemed that a defendant has been convicted of another drug trafficking
offense when the defendant has been convicted of another offense under
section 13(a)(14), (30) or (37) of The Controlled Substance, Drug, Device
and Cosmetic Act, or of a similar offense under any statute of any state
or the United States, whether or not judgment of sentence has been
imposed concerning that offense.
(b) Proof of sentencing. — Provisions of this section shall not be an
element of the crime. Notice of the applicability of this section to the
defendant shall not be required prior to conviction, but reasonable
notice of the Commonwealth's intention to proceed under this
section shall be provided after conviction and before sentencing. The
applicability of this section shall be determined at sentencing. The court
shall consider evidence presented at trial, shall afford the Commonwealth
and the defendant an opportunity to present necessary additional evidence
and shall determine, by a preponderance of the evidence, if this
section is applicable.
(c) Mandatory sentencing. — There shall be no authority in any court to
impose on an offender to which this section is applicable a lesser
sentence than provided for herein or to place the offender on probation,
parole, work release or prerelease or to suspend sentence. Nothing in this
section shall prevent the sentencing court from imposing a sentence
greater than provided herein. Sentencing guidelines promulgated by the
Pennsylvania Commission on Sentencing shall not supersede the mandatory
sentences provided herein. Disposition under section 17 or 18 of The
Controlled Substance, Drug, Device and Cosmetic Act[fn2] shall not be
available to a defendant to which this section applies.
(d) Appellate review. — If a sentencing court refuses to apply this
section where applicable, the Commonwealth shall have the right to
appellate review of the action of the sentencing court. The appellate
court shall vacate the sentence and remand the case to the sentencing
court for imposition of a sentence in accordance with this section if it
finds that the sentence was imposed in violation of this section.
(e) Forfeiture. — Assets against which a forfeiture petition has been
filed and is pending or against which the Commonwealth has indicated an
intention to file a forfeiture petition shall not be subject to a fine.
Nothing in this section shall prevent a fine from being imposed on assets
which have been subject to an unsuccessful forfeiture petition.
(f) Growing plants. — When the controlled substance is marijuana in the
form of growing plants and the number of plants is nine or less, weighing
may be accomplished by law enforcement officials utilizing any certified
scale convenient to the place of arrest for the purpose of determining
the weight of the growing marijuana plant. The aggregate weight of the
plant is to include the whole plant including the root system if
possible. The weight is not to include any substance not a part of the
growing plant.
35 P. S. § 780-113. Prohibited acts; penalties
(a) The following acts and the causing thereof within the Commonwealth
are hereby prohibited:
(1) The manufacture, sale or delivery, holding, offering for sale, or
possession of any controlled substance, other drug, device or cosmetic
that is adulterated or misbranded.
(2) The adulteration or misbranding of any controlled substance, other
drug, device or cosmetic.
(3) The dissemination or publication of any false or materially
misleading advertisement.
(4) The removal or disposal of a detained or embargoed substance or
article, whether or not such substance or article is in fact adulterated
or misbranded.
(5) The adulteration, mutilation, destruction, obliteration or removal
of the whole or any part of the labeling of, or the doing of any other
act with respect to a controlled substance, other drug, device or
cosmetic, if such act is done while such substance or article is held for
sale and results in such substance or article being adulterated or
misbranded.
(6) Forging, counterfeiting, simulating or falsely representing, or
without proper authority using any mark, stamp, tag, label or other
identification symbol authorized or required by regulation promulgated
under the provisions of this act.
(7) Placing or causing to be placed upon any controlled substance,
other drug, device or cosmetic, or upon the container of any controlled
substance, other drug, device or cosmetic, with intent to defraud, the
trademark, trade name or other identifying mark, imprint or symbol of
another, or any likeness of any of the foregoing.
(8) Selling, dispensing, disposing of or causing to be sold, dispensed
or disposed of, or keeping in possession, control or custody, or
concealing any controlled substance, other drug, device or cosmetic or
any container of any drug, device or cosmetic with knowledge that the
trademark, trade name or other identifying mark, imprint or symbol of
another, or any likeness of any of the foregoing, has been placed thereon
in a manner prohibited by clause (7) hereof.
(9) Making, selling, disposing of or causing to be made, sold, or
disposed of, or keeping in possession, control or custody, or concealing
with intent to defraud, any punch, die, plate, stone or other thing
designed to print, imprint or reproduce the trademark, trade name or
other identifying mark, imprint or symbol of another or any likeness of
any of the foregoing upon any controlled substance, other drug, device or
cosmetic or container thereof.
(10) The sale at retail of a nonproprietary drug except by a registered
pharmacist in a licensed pharmacy or by a practitioner.
(11) The operation of a drug manufacturing, distributing or retailing
establishment, except by registered pharmacists in a licensed pharmacy,
without conforming with such standards respecting sanitation, materials,
equipment and supplies as the secretary, after consultation with the
board, may establish by regulation for the protection of the public
health and safety.
(12) The acquisition or obtaining of possession of a controlled
substance by misrepresentation, fraud, forgery, deception or subterfuge.
(13) The sale, dispensing, distribution, prescription or gift by any
practitioner otherwise authorized by law so to do of any controlled
substance to any person known to such practitioner to be or whom such
practitioner has reason to know is a drug dependent person, unless said
drug is prescribed, administered, dispensed or given, for the cure or
treatment of some malady other than drug dependency, except that the
council, in accordance with Federal narcotic and food and drug laws,
shall allocate the responsibility for approving and designating certain
clinics, and shall provide or allocate the responsibility for providing
regulations for such clinics at which controlled substances, including
but not limited to methadone, may be prescribed, administered or
dispensed for the treatment of drug dependency. This clause shall not
prohibit any practitioner from prescribing, distributing or dispensing any
controlled substance for a period of time not to exceed fourteen days
pending confirmed admission of the patient to a hospital or rehabilitation
center.
(14) The administration, dispensing, delivery, gift or prescription of
any controlled substance by any practitioner or professional assistant
under the practitioner's direction and supervision unless done (i) in
good faith in the course of his professional practice; (ii) within the
scope of the patient relationship; (iii) in accordance with treatment
principles accepted by a responsible segment of the medical profession.
(15) The sale at retail or dispensing of any controlled substance
listed in Schedules II, III and IV to any person, except to one
authorized by law to sell, dispense, prescribe or possess such
substances, unless upon the written or oral prescription of a person
licensed by law to prescribe such drug and unless compounded or dispensed
by a registered pharmacist or pharmacy intern under the immediate
personal supervision of a registered pharmacist, or the refilling of a
written or oral prescription order for a drug, unless such refilling is
authorized by the prescriber either in the original written prescription
order or by written confirmation of the original oral prescription
order. The provisions of this subsection shall not apply to a
practitioner licensed to prescribe or dispense such drugs, who keeps a
record of the amount of such drugs purchased and a dispensing record
showing the date, name, and quantity of the drug dispensed and the name
and address of the patient, as required by this act.
(16) Knowingly or intentionally possessing a controlled or counterfeit
substance by a person not registered under this act, or a practitioner
not registered or licensed by the appropriate State board, unless the
substance was obtained directly from, or pursuant to, a valid
prescription order or order of a practitioner, or except as otherwise
authorized by this act.
(17) The wilful dispensing of a controlled substance by a practitioner
otherwise authorized by law so to do without affixing to the container in
which the drug is sold or dispensed a label bearing the name and address
of the practitioner, the date dispensed, the name of the patient and the
directions for the use of the drug by the patient.
(18) The selling by a pharmacy or distributor of any controlled
substance or other drug unless the container bears a label, securely
attached thereto, stating the specific name of the drug and the
proportion or amount thereof unless otherwise specifically directed in
writing by the practitioner.
(19) The intentional purchase or knowing receipt in commerce by any
person of any controlled substance, other drug or device from any person
not authorized by law to sell, distribute, dispense or otherwise deal in
such controlled substance, other drug or device.
(20) The using by any person to his own advantage, or revealing other
than to the secretary or officers or employes of the department or to the
council or to the board or to courts or a hearing examiner when relevant
to proceedings under this act any information acquired under authority of
this act concerning any method or process which as a trade secret is
entitled to protection. Such information obtained under the authority of
this act shall not be admitted in evidence in any proceeding before any
court of the Commonwealth except in proceedings under this act.
(21) The refusal or failure to make, keep or furnish any record,
notification, order form, statement, invoice or information required
under this act.
(22) The refusal of entry into any premises for any inspection
authorized by this act.
(23) The unauthorized removing, breaking, injuring, or defacing a seal
placed upon embargoed substances or the removal or disposal of substances
so placed under seal.
(24) The failure by a manufacturer or distributor to register or obtain
a license as required by this act.
(25) The manufacture of a controlled substance by a registrant who
knows or who has reason to know, the manufacturing is not authorized by
his registration, or who knowingly distributes a controlled substance not
authorized by his registration to another registrant or other authorized
person.
(26) The knowing distribution by a registrant of a controlled substance
classified in Schedules I or II, except pursuant to an order form as
required by this act.
(27) The use in the course of the manufacture or distribution of a
controlled substance of a registration number which is fictitious,
revoked, suspended or issued to another person.
(28) The furnishing of false or fraudulent material information in, or
omission of any material information from any application, report, or
other document required to be kept or filed under this act, or any record
required to be kept by this act.
(29) The intentional making, distributing, or possessing of any punch,
die, plate, stone, or other thing designed to print, imprint, or
reproduce the trademark, trade name, or other identifying mark, imprint,
or symbol of another or any likeness of any of the foregoing upon any
drug or container or labeling thereof so as to render the drug a
counterfeit substance.
(30) Except as authorized by this act, the manufacture, delivery, or
possession with intent to manufacture or deliver, a controlled substance
by a person not registered under this act, or a practitioner not
registered or licensed by the appropriate State board, or knowingly
creating, delivering or possessing with intent to deliver, a counterfeit
controlled substance.
(31) Notwithstanding other subsections of this section, (i) the
possession of a small amount of marihuana only for personal use; (ii) the
possession of a small amount of marihuana with the intent to distribute it
but not to sell it; or (iii) the distribution of a small amount of
marihuana but not for sale.
For purposes of this subsection, thirty (30) grams of marihuana or
eight (8) grams of hashish shall be considered a small amount of
marihuana.
(32) The use of, or possession with intent to use, drug paraphernalia
for the purpose of planting, propagating, cultivating, growing,
harvesting, manufacturing, compounding, converting, producing,
processing, preparing, testing, analyzing, packing, repacking, storing,
containing, concealing, injecting, ingesting, inhaling or otherwise
introducing into the human body a controlled substance in violation of
this act.
(33) The delivery of, possession with intent to deliver, or manufacture
with intent to deliver, drug paraphernalia, knowing, or under
circumstances where one reasonably should know, that it would be used to
plant, propagate, cultivate, grow, harvest, manufacture, compound,
convert, produce, process, prepare, test, analyze, pack, repack, store,
contain, conceal, inject, ingest, inhale or otherwise introduce into the
human body a controlled substance in violation of this act.
(34) The placing in any newspaper, magazine, handbill or other
publication or by written or electronic means, including electronic mail,
Internet, facsimile and similar transmission, any advertisement,
knowing, or under circumstances where one reasonably should know, that
the purpose of the advertisement, in whole or in part is to promote the
sale of objects designed or intended for use as drug paraphernalia.
(35)
(i) Except as otherwise provided by law, manufacturing,
processing, packaging, distributing, possessing[fn1] with intent to
distribute or selling a noncontrolled substance that has a stimulant or
depressant effect on humans, other than a prescription drug, which, or
the label or container of which, substantially resembles a specific
controlled substance. In determining whether there has been a violation
of this subclause, the following factors shall be considered:
(A) Whether the noncontrolled substance in its overall finished dosage
appearance is substantially similar in size, shape, color and markings or
lack thereof to a specific controlled substance.
(B) Whether the noncontrolled substance in its finished dosage form is
packaged in a container which, or the labeling of which, bears markings or
printed material substantially similar to that accompanying or containing
a specific controlled substance.
(ii) Except as otherwise provided by law, no person shall knowingly
distribute or sell a noncontrolled substance upon the express or implied
representation that the substance is a controlled substance. In
determining whether there has been a violation of this subclause, the
following factors shall be considered:
(A) Whether the noncontrolled substance in its overall finished dosage
appearance is substantially similar in size, shape, color and markings or
lack thereof to a specific controlled substance.
(B) Whether the noncontrolled substance in its finished dosage form is
packaged in a container which, or the labeling of which, bears markings or
printed material substantially similar to that accompanying or containing
a specific controlled substance.
(C) Whether the noncontrolled substance is packaged in a manner
ordinarily used for the illegal delivery of a controlled substance.
(D) Whether the consideration tendered in exchange for the
noncontrolled substance substantially exceeds the reasonable value of the
substance, considering the actual chemical composition of the substance
and, where applicable, the price at which over-the-counter substances of
like chemical composition sell.
(E) Whether the consideration tendered in exchange for the
noncontrolled substance approximates or exceeds the price at which the
substance would sell upon illegal delivery were it actually the specific
controlled substance it physically resembles.
(iii) Except as otherwise provided by law, no person shall knowingly
distribute or sell a noncontrolled substance upon the express
representation that the recipient, in turn, will be able to distribute or
sell the substance as a controlled substance.
(iv) In any criminal prosecution brought under this clause, it shall
not be a defense that the defendant believed the noncontrolled substance
actually to be a controlled substance.
(v) The provisions of this clause shall not be applicable to:
(A) Law enforcement officers acting in the course and legitimate scope
of their employment.
(B) Persons who manufacture, process, package, distribute or sell
noncontrolled substances to licensed medical practitioners for use as
placebos in the course of professional practice or research or for use in
FDA approved investigational new drug trials.
(C) Licensed medical practitioners, pharmacists and other persons
authorized to dispense or administer controlled substances and acting in
the legitimate performance of their professional license pursuant to
subclause (v)(B).
(D) A noncontrolled substance that was initially introduced into
commerce prior to the initial introduction into commerce of the
controlled substance which it is alleged to imitate.
(36) The knowing or intentional manufacture, distribution, possession
with intent to distribute, or possession of a designer drug. Nothing in
this section shall be construed to apply to a person who manufactures or
distributes a substance in conformance with the provisions of an approved
new drug application or an exemption for investigational use within the
meaning of section 505 of the Federal Food, Drug and Cosmetic Act (
21 U.S.C. § 355). For purposes of this section, no new drug shall be
introduced or delivered for introduction except upon approval of an
application pursuant to section 505 of the Federal Food, Drug and Cosmetic
Act.
(37) The possession by any person, other than a registrant, of more
than thirty doses labeled as a dispensed prescription or more than three
trade packages of any anabolic steroids listed in section 4(3)(vii).
(38) The unlawful manufacture of methamphetamine or phencyclidine or
their salts, isomers and salts of isomers, whenever the existence of such
salts, isomers or salts of isomers is possible within the specific
chemical designation:
(i) in a structure where any child under 18 years of age is present; or
(ii) where the manufacturing of methamphetamine or phencyclidine causes
any child under 18 years of age to suffer bodily injury.
(b) Any person who violates any of the provisions of clauses (1)
through (11), (13) and (15) through (20) or (37) of subsection (a) shall
be guilty of a misdemeanor, and except for clauses (4), (6), (7), (8),
(9) and (19) shall, on conviction thereof, be sentenced to imprisonment
not exceeding one year or to pay a fine not exceeding five thousand
dollars ($5,000), or both, and for clauses (4), (6), (7), (8), (9) and
(19) shall, on conviction thereof, be sentenced to imprisonment not
exceeding three years or to pay a fine not exceeding five thousand
dollars ($5,000), or both; but, if the violation is committed after a
prior conviction of such person for a violation of this act under this
section has become final, such person shall be sentenced to imprisonment
not exceeding three years or to pay a fine not exceeding twenty-five
thousand dollars ($25,000), or both.
(c) Any person who violates the provisions of clauses (21), (22) and
(24) of subsection (a) shall be guilty of a misdemeanor, and shall, on
conviction thereof, be punished only as follows:
(1) Upon conviction of the first such offense, he shall be sentenced to
imprisonment not exceeding six months, or to pay a fine not exceeding ten
thousand dollars ($10,000), or both.
(2) Upon conviction of the second and subsequent offense, he shall be
sentenced to imprisonment not exceeding two years, or to pay a fine not
exceeding twenty-five thousand dollars ($25,000), or both.
(d) Any person who knowingly or intentionally violates clause (23) of
subsection (a) is guilty of a misdemeanor and upon conviction thereof
shall be sentenced to imprisonment not exceeding three years, or to pay a
fine not exceeding fifteen thousand dollars ($15,000), or both.
(e) Any person who violates clauses (26) through (29) of subsection (a)
is guilty of a misdemeanor and upon conviction shall be sentenced to
imprisonment not exceeding three years, or to pay a fine not exceeding
twenty-five thousand dollars ($25,000), or both.
(f) Any person who violates clause (12), (14) or (30) of subsection (a)
with respect to:
(1) A controlled substance or counterfeit substance classified in
Schedule I or II[fn2] which is a narcotic drug, is guilty of a felony and
upon conviction thereof shall be sentenced to imprisonment not exceeding
fifteen years, or to pay a fine not exceeding two hundred fifty thousand
dollars ($250,000), or both or such larger amount as is sufficient to
exhaust the assets utilized in and the profits obtained from the illegal
activity.
(1.1) Phencyclidine; methamphetamine, including its salts, isomers and
salts of isomers; coca[fn3] leaves and any salt, compound, derivative or
preparation of coca leaves; any salt, compound, derivative or preparation
of the preceding which is chemically equivalent or identical with any of
these substances, except decocanized coca leaves or extract of coca
leaves, which extracts do not contain cocaine or ecgonine; and marihuana
in a quantity in excess of one thousand (1,000) pounds, is guilty of a
felony and upon conviction thereof shall be sentenced to imprisonment not
exceeding ten years, or to pay a fine not exceeding one hundred thousand
dollars ($100,000), or both, or such larger amount as is sufficient to
exhaust the assets utilized in and the profits obtained from the illegal
manufacture or distribution of these substances.
(2) Any other controlled substance or counterfeit substance classified
in Schedule I, II, or III, is guilty of a felony and upon conviction
thereof shall be sentenced to imprisonment not exceeding five years, or
to pay a fine not exceeding fifteen thousand dollars ($15,000), or both.
(3) A controlled substance or counterfeit substance classified in
Schedule IV, is guilty of a felony and upon conviction thereof shall be
sentenced to imprisonment not exceeding three years, or to pay a fine not
exceeding ten thousand dollars ($10,000), or both.
(4) A controlled substance or counterfeit substance classified in
Schedule V, is guilty of a misdemeanor and upon conviction thereof shall
be sentenced to imprisonment not exceeding one year, or to pay a fine not
exceeding five thousand dollars ($5,000), or both.
(g) Any person who violates clause (31) of subsection (a) is guilty of
a misdemeanor and upon conviction thereof shall be sentenced to
imprisonment not exceeding thirty days, or to pay a fine not exceeding
five hundred dollars ($500), or both.
(h) Any penalty imposed for violation of this act shall be in addition
to, and not in lieu of, any civil or administrative penalty or sanction
authorized by law.
(i) Any person who violates clauses (32), (33) and (34) of
subsection (a) is guilty of a misdemeanor and upon conviction thereof shall be
sentenced to pay a fine not exceeding two thousand five hundred dollars
($2,500) or to imprisonment not exceeding one (1) year, or both. Any
person who violates clause (33) by delivering drug paraphernalia to a
person under eighteen (18) years of age who is three (3) or more years his
junior shall be guilty of a misdemeanor of the second degree and upon
conviction thereof shall be sentenced to pay a fine not exceeding five
thousand dollars ($5,000) or to imprisonment not exceeding two (2)
years, or both.
(j) Any person who violates any provisions of subclause (i) or (ii) or
(iii) of clause (35) of subsection (a) is guilty of a felony, and upon
conviction thereof shall be sentenced to imprisonment not exceeding five
years, or to pay a fine not exceeding ten thousand dollars ($10,000), or
both.
(k) Any person convicted of manufacture of amphetamine, its salts,
optical isomers and salts of its optical isomers; methamphetamine, its
salts, isomers and salts of isomers; or phenylacetone and
phenyl-2-proponone shall be sentenced to at least two years of total
confinement without probation, parole or work release, notwithstanding
any other provision of this act or other statute to the contrary.
(l) Any person who violates clause (36) is guilty of a felony and upon
conviction thereof shall be sentenced to imprisonment not exceeding
fifteen years or to pay a fine not exceeding two hundred fifty thousand
dollars ($250,000), or both.
(m) Repealed. 1993, June 28, P.L. 137, No. 33, § 7, effective in 60
days.
(n) Any person who violates subsection (a)(12), (14), (16), (30) or
(34) with respect to gamma hydroxybutyric acid, any salt, compound
derivative or preparation of gamma hydroxybutyric acid, including any
isomers, esters and ethers and salts of isomers, or esters and ethers of
gamma hydroxybutyric acid, except gamma-butyrolactone (GBL), whenever the
existence of such isomers, esters, ethers or salts is possible within the
specific chemical designation, is guilty of a felony and upon conviction
thereof shall be sentenced to imprisonment not exceeding fifteen years,
or to pay a fine not exceeding two hundred fifty thousand dollars
($250,000), or both, or such larger amount as is sufficient to exhaust
the assets utilized in and the profits obtained from the illegal
activity.
(o) Any person who violates subsection (a)(12), (14) or (30) with
respect to 3,4-methylenedioxyamphetamine (MDA); 3,
4-methylenedioxymethamphetamine (MDMA); 5-methoxy-3,
4-methylenedioxyamphetamine (MMDA);
3,4-methylenedioxy-N-ethylamphetamine; N-hydroxy-3,
4-methylenedioxyamphetamine; or their salts, isomers and salts of
isomers, whenever the existence of such salts, isomers and salts of
isomers is possible within the specific chemical designation, is guilty
of a felony and upon conviction thereof shall be sentenced to
imprisonment not exceeding fifteen years or to pay a fine not exceeding
two hundred fifty thousand dollars ($250,000), or both, or such larger
amount as is sufficient to exhaust the assets utilized in and the profits
obtained from the illegal activity.
(p)
(1) Any person who violates subsection (a)(38)(i) is guilty of a
felony of the third degree and upon conviction thereof shall be sentenced
to not more than seven years in prison and a fine of not more than
twenty-five thousand dollars ($25,000), or such larger amount as is
sufficient to exhaust the assets utilized in and the profits obtained
from the illegal activity.
(2) Any person who violates subsection (a)(38)(ii) is guilty of a
felony of the second degree and upon conviction thereof shall be
sentenced to not more than ten years in prison and a fine of not more
than fifty thousand dollars ($50,000), or such larger amount as is
sufficient to exhaust the assets utilized in and the profits obtained
from the illegal activity.