0001| SENATE WAYS AND MEANS COMMITTEE SUBSTITUTE FOR | 0002| SENATE BILL 1270 | 0003| 43rd legislature - STATE OF NEW MEXICO - first session, 1997 | 0004| | 0005| | 0006| | 0007| | 0008| | 0009| | 0010| | 0011| AN ACT | 0012| RELATING TO THE PUBLIC PEACE, HEALTH, SAFETY AND WELFARE; | 0013| INCREASING THE PENALTIES FOR CERTAIN CONTROLLED SUBSTANCES | 0014| VIOLATIONS. | 0015| | 0016| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0017| Section 1. Section 30-31-22 NMSA 1978 (being Laws 1972, | 0018| Chapter 84, Section 22, as amended) is amended to read: | 0019| "30-31-22. CONTROLLED OR COUNTERFEIT SUBSTANCES-- | 0020| DISTRIBUTION PROHIBITED.-- | 0021| A. Except as authorized by the Controlled | 0022| Substances Act, it is unlawful for any person to intentionally | 0023| distribute or possess with intent to distribute a controlled | 0024| substance or a controlled substance analog except a substance | 0025| enumerated in Schedule I or II that is a narcotic drug or a | 0001| controlled substance analog of a controlled substance | 0002| enumerated in Schedule I or II that is a narcotic drug. Any | 0003| person who violates this subsection with respect to: | 0004| (1) marijuana is: | 0005| (a) except as provided in Subparagraph | 0006| (c) of this paragraph, for the first offense, guilty of a | 0007| fourth degree felony and shall be sentenced pursuant to the | 0008| provisions of Section 31-18-15 NMSA 1978; | 0009| (b) for the second and subsequent | 0010| offenses, guilty of a third degree felony and shall be | 0011| sentenced pursuant to the provisions of Section 31-18-15 NMSA | 0012| 1978; | 0013| (c) for the first offense, if more than | 0014| one hundred pounds is possessed with intent to distribute or | 0015| distributed or both, guilty of a third degree felony and shall | 0016| be sentenced pursuant to the provisions of Section 31-18-15 | 0017| NMSA 1978; and | 0018| (d) for the second and subsequent | 0019| offenses, if more than one hundred pounds is possessed with | 0020| intent to distribute or distributed or both, guilty of a second | 0021| degree felony and shall be sentenced pursuant to the provisions | 0022| of Section 31-18-15 NMSA 1978; | 0023| (2) except as provided in Paragraph (3) of this | 0024| subsection, any other controlled substance enumerated in | 0025| Schedule I, II, III or IV or a controlled substance analog of a | 0001| controlled substance enumerated in Schedule I, II, III or IV | 0002| except a substance enumerated in Schedule I or II that is a | 0003| narcotic drug or a controlled substance analog of a controlled | 0004| substance enumerated in Schedule I or II that is a narcotic drug, | 0005| is: | 0006| (a) for the first offense, guilty of a third | 0007| degree felony and shall be sentenced pursuant to the provisions of | 0008| Section 31-18-15 NMSA 1978; and | 0009| (b) for the second and subsequent offenses, | 0010| guilty of a second degree felony and shall be sentenced pursuant | 0011| to the provisions of Section 31-18-15 NMSA 1978; [and] | 0012| (3) methamphetamine, its salts, isomers and salts | 0013| of isomers as enumerated in Schedule II or a controlled substance | 0014| analog of methamphetamine, its salts, isomers and salts of | 0015| isomers, is: | 0016| (a) for the first offense, guilty of a second | 0017| degree felony and shall be sentenced pursuant to the provisions of | 0018| Section 31-18-15 NMSA 1978; and | 0019| (b) for the second and subsequent offenses, | 0020| guilty of a first degree felony and shall be sentenced pursuant to | 0021| the provisions of Section 31-18-15 NMSA 1978; and | 0022| [(3)] (4) a controlled substance enumerated in | 0023| Schedule V or a controlled substance analog of a controlled | 0024| substance enumerated in Schedule V is guilty of a misdemeanor and | 0025| shall be punished by a fine of not less than one hundred dollars | 0001| ($100) or more than five hundred dollars ($500) or by imprisonment | 0002| for a definite term not less than one hundred eighty days but less | 0003| than one year, or both. | 0004| B. Except as authorized by the Controlled Substances | 0005| Act, it is unlawful for any person to intentionally create or | 0006| deliver, or possess with intent to deliver, a counterfeit | 0007| substance. Any person who violates this subsection with respect | 0008| to: | 0009| (1) a counterfeit substance enumerated in Schedule | 0010| I, II, III or IV is guilty of a fourth degree felony and shall be | 0011| sentenced pursuant to the provisions of Section 31-18-15 NMSA | 0012| 1978; and | 0013| (2) a counterfeit substance enumerated in Schedule | 0014| V is guilty of a petty misdemeanor and shall be punished by a fine | 0015| of not more than one hundred dollars ($100) or by imprisonment for | 0016| a definite term not to exceed six months, or both. | 0017| C. Any person who knowingly violates Subsection A or B | 0018| of this section while within a drug-free school zone, excluding | 0019| private property residentially zoned or used primarily as a | 0020| residence, with respect to: | 0021| (1) marijuana is: | 0022| (a) except as provided in Subparagraph (c) of | 0023| this paragraph, for the first offense, guilty of a third degree | 0024| felony and shall be sentenced pursuant to the provisions of | 0025| Section 31-18-15 NMSA 1978; | 0001| (b) for the second and subsequent offenses, | 0002| guilty of a second degree felony and shall be sentenced pursuant | 0003| to the provisions of Section 31-18-15 NMSA 1978; | 0004| (c) for the first offense, if more than one | 0005| hundred pounds is possessed with intent to distribute or | 0006| distributed or both, guilty of a second degree felony and shall be | 0007| sentenced pursuant to the provisions of Section 31-18-15 NMSA | 0008| 1978; and | 0009| (d) for the second and subsequent offenses, if | 0010| more than one hundred pounds is possessed with intent to | 0011| distribute or distributed or both, guilty of a first degree felony | 0012| and shall be sentenced pursuant to the provisions of Section 31- | 0013| 18-15 NMSA 1978; | 0014| (2) any other controlled substance enumerated in | 0015| Schedule I, II, III or IV or a controlled substance analog of a | 0016| controlled substance enumerated in Schedule I, II, III or IV | 0017| except a substance enumerated in Schedule I or II that is a | 0018| narcotic drug or a controlled substance analog of a controlled | 0019| substance [emumerated] enumerated in Schedule I or II that is a | 0020| narcotic drug, is: | 0021| (a) for the first offense, guilty of a second | 0022| degree felony and shall be sentenced pursuant to the provisions of | 0023| Section 31-18-15 NMSA 1978; and | 0024| (b) for the second and subsequent offenses, | 0025| guilty of a first degree felony and shall be sentenced pursuant to | 0001| the provisions of Section 31-18-15 NMSA 1978; | 0002| (3) a controlled substance enumerated in Schedule V | 0003| or a controlled substance analog of a controlled substance | 0004| enumerated in Schedule V is guilty of a fourth degree felony and | 0005| shall be sentenced pursuant to the provisions of Section 31-18-15 | 0006| NMSA 1978; and | 0007| (4) the intentional creation, delivery or | 0008| possession with the intent to deliver: | 0009| (a) a counterfeit substance enumerated in | 0010| Schedule I, II, III or IV is guilty of a third degree felony and | 0011| shall be sentenced pursuant to the provisions of Section 31-18-15 | 0012| NMSA 1978; and | 0013| (b) a counterfeit substance enumerated in | 0014| Schedule V is guilty of a misdemeanor and shall be punished by a | 0015| fine of not less than one hundred dollars ($100) nor more than | 0016| five hundred dollars ($500) or by imprisonment for a definite term | 0017| not less than one hundred eighty days but less than one year, or | 0018| both. | 0019| D. Notwithstanding the provisions of Subsection A of | 0020| this section, distribution of a small amount of marijuana for no | 0021| remuneration shall be treated as provided in Paragraph (3) of | 0022| Subsection B of Section 30-31-23 NMSA 1978." | 0023| Section 2. Section 30-31-23 NMSA 1978 (being Laws 1972, | 0024| Chapter 84, Section 23, as amended by Laws 1990, Chapter 19, | 0025| Section 5 and also by Laws 1990, Chapter 33, Section 1) is amended | 0001| to read: | 0002| "30-31-23. CONTROLLED SUBSTANCES--POSSESSION PROHIBITED.-- | 0003| A. It is unlawful for any person intentionally to | 0004| possess a controlled substance unless the substance was obtained | 0005| pursuant to a valid prescription or order of a practitioner while | 0006| acting in the course of his professional practice or except as | 0007| otherwise authorized by the Controlled Substances Act. It is | 0008| unlawful for any person intentionally to possess a controlled | 0009| substance analog. | 0010| B. Any person who violates this section with respect to: | 0011| (1) one ounce or less of marijuana is, for the | 0012| first offense, guilty of a petty misdemeanor and shall be punished | 0013| by a fine of not less than fifty dollars ($50.00) or more than one | 0014| hundred dollars ($100) and by imprisonment for not more than | 0015| fifteen days, and, for the second and subsequent offenses, guilty | 0016| of a misdemeanor and shall be punished by a fine of not less than | 0017| one hundred dollars ($100) or more than one thousand dollars | 0018| ($1,000) or by imprisonment for a definite term less than one | 0019| year, or both; | 0020| (2) more than one ounce and less than eight ounces | 0021| of marijuana is guilty of a misdemeanor and shall be punished by a | 0022| fine of not less than one hundred dollars ($100) or more than one | 0023| thousand dollars ($1,000) or by imprisonment for a definite term | 0024| less than one year, or both; or | 0025| (3) eight ounces or more of marijuana is guilty | 0001| fourth degree felony and shall be sentenced pursuant to the | 0002| provisions of Section 31-18-15 NMSA 1978. | 0003| C. Except for those substances listed in Subsection D of | 0004| this section, any person who violates this section with respect to | 0005| any amount of any controlled substance enumerated in Schedule I, | 0006| II, III or IV or a controlled substance analog of a substance | 0007| enumerated in Schedule I, II, III or IV is guilty of a misdemeanor | 0008| and shall be punished by a fine of not less than five hundred | 0009| dollars ($500) or more than one thousand dollars ($1,000) or by | 0010| imprisonment for a definite term less than one year, or both. | 0011| D. Any person who violates this section with respect to | 0012| phencyclidine as enumerated in Schedule III or a controlled | 0013| substance analog of phencyclidine; methamphetamine, its salts, | 0014| isomers or salts of isomers as enumerated in Schedule II or a | 0015| controlled substance analog of methamphetamine, its salts, isomers | 0016| or salts of isomers; or a narcotic drug enumerated in Schedule I | 0017| or II or a controlled substance analog of a narcotic drug | 0018| enumerated in Schedule I or II is guilty of a fourth degree felony | 0019| and shall be sentenced pursuant to the provisions of Section 31- | 0020| 18-15 NMSA 1978. | 0021| E. Whoever, during and in relation to a violation of | 0022| Paragraph (3) of Subsection B or Subsection D of this section, | 0023| possesses a firearm shall be sentenced, in addition to the | 0024| punishment provided in those subsections, to a mandatory term of | 0025| imprisonment of one year, and the sentence imposed pursuant to | 0001| this subsection shall be the first year served and shall not be | 0002| suspended or deferred. The court shall not run the mandatory term | 0003| imposed pursuant to this section concurrently with any other term | 0004| of imprisonment, including that imposed for the violation of | 0005| Paragraph (3) of Subsection B or Subsection D of this section." | 0006| Section 3. A new section of the Controlled Substances Act is | 0007| enacted to read: | 0008| "[NEW MATERIAL] DRUG TRAFFICKING WITH FIREARM--MANDATORY | 0009| IMPRISONMENT.-- | 0010| A. Whoever, during and in relation to a violation of | 0011| Section 30-31-20, 30-31-21, Paragraph (1), (2) or (3) of | 0012| Subsection A of Section 30-31-22 or Paragraph (1) of Subsection B | 0013| of Section 30-31-22 NMSA 1978, carries or uses a firearm shall be | 0014| sentenced, in addition to the punishment provided in those | 0015| sections, to a mandatory term of imprisonment of five years. | 0016| B. Notwithstanding any other provision of law, the court | 0017| shall not run the term of imprisonment imposed pursuant to | 0018| Subsection A of this section concurrently with any other term of | 0019| imprisonment, including imprisonment for a violation of Section | 0020| 30-31-20, 30-31-21, Paragraph (1), (2) or (3) of Subsection A of | 0021| Section 30-31-22 or Paragraph (1) of Subsection B of Section | 0022| 30-31-22 NMSA 1978. The sentence imposed pursuant to Subsection A | 0023| of this section shall be the first five years served and shall not | 0024| be suspended or deferred. | 0025| C. If the case is tried by a jury and if a prima facie | 0001| case has been established showing that a firearm was carried or | 0002| used during and in relation to a violation of Section 30-31-20, | 0003| 30-31-21, Paragraph (1), (2) or (3) of Subsection A of Section | 0004| 30-31-22 or Paragraph (1) of Subsection B of Section 30-31-22 NMSA | 0005| 1978, the court shall submit the issue to the jury by special | 0006| interrogatory. If the case is tried by the court and if a prima | 0007| facie case has been established showing that a firearm was carried | 0008| or used during and in relation to a violation of Section 30-31-20, | 0009| 30-31-21, Paragraph (1), (2) or (3) of Subsection A of Section | 0010| 30-31-22 or Paragraph (1) of Subsection B of Section 30-31-22 NMSA | 0011| 1978, the court shall decide the issue and shall make a separate | 0012| finding of fact on the issue. | 0013| D. As used in this section: | 0014| (1) "carries a firearm" means the defendant has it | 0015| immediately available for use either on his person or within his | 0016| reach; and | 0017| (2) "uses a firearm" means brandishing, displaying, | 0018| bartering, striking with, firing or attempting to fire a firearm." | 0019| Section 4. EFFECTIVE DATE.--The effective date of the | 0020| provisions of this act is July 1, 1997. | 0021|  |