Report Title:

Controlled Substances

Description:

Regulates sale of laboratory items, sale of specific chemicals; sets out penalties when manufacturing controlled substances around a child; disposing of controlled substance; adds additional chemicals subject to reporting; creates new penalties.

THE SENATE

S.B. NO.

3034

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATED TO CONTROLLED SUBSTANCES.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Chapter 329, Hawaii Revised Statutes, is amended by adding four new sections to be appropriately designated and to read as follows:

"329-   Sale of laboratory items. (a) Any manufacturer, wholesaler, retailer, or other person in this State who purchases for sale, or who sells to any person in this State or any other state, any laboratory glassware or apparatus, any chemical reagent or solvent, or any combination thereof, where the value of the goods sold in the transaction exceeds $100 and the payment for the goods is made in cash, by personal check, cashier's check, money order, or any other negotiable instrument shall do the following:

(1) Notwithstanding any other law, prepare a bill of sale that both identifies the specific items and quantities purchased and the proper purchaser identification information, both of which shall be entered onto the bill of sale or a legible copy of the bill of sale, and also affix on the bill of sale the preparer's signature as witness to the purchase and identification of the purchaser;

(2) Notwithstanding any other law, require proper purchaser identification for in-state purchases that includes a valid motor vehicle operator's license or other official and valid state-issued identification of the purchaser that contains a photograph of the purchaser, and includes the residential or mailing address of the purchaser, other than a post office box number, the motor vehicle license number of the motor vehicle used by the purchaser at the time of purchase, a description of how the substance is to be used and the signature of the purchaser. Proper purchaser identification for out-of-state purchases includes all of the above, except the motor vehicle license number and the signature of the purchaser. The out-of-state purchase information shall also include the means by which the purchase was delivered or provided to the purchaser and the delivery address, if different from the identification address provided by the purchaser; and

(3) Retain the original bill of sale containing the purchaser identification information for three years in a readily presentable manner and present the bill of sale containing the purchaser identification information upon demand by-any law enforcement officer or authorized representative of the department.

(b) This section shall not apply to any wholesaler who licensed by the board of pharmacy and registered with the federal Druq Enforcement Administration of the United States Department of Justice who sells laboratory glassware or apparatus, any chemical reagent or solvent, or any combination thereof, to a licensed pharmacy, physician, dentist, podiatrist, or veterinarian.

(c) An individual violating this section shall be fined not more than $5,000, or imprisoned not more than one year, or both.

(d) As used in this section:

"Apparatus includes, but is not limited to, heating mantles, ring stands, and rheostats.

"Chemical reagent" means a chemical that reacts chemically with a one or more precursors but does not become part of the finished product.

"Chemical solvent means a chemical that does not react chemically with a precursor or reagent and does not become par of the finished product. A chemical solvent helps other chemicals mix, cools, chemical reactions, and cleans the finished product.

"Laboratory glassware" includes, but is not limited to, condensers, flasks, separatory funnels, and beakers.

329-   Requirements when selling specific chemicals. (a) Any manufacturer, wholesaler, retailer, or other person in this State who sells to any person in this State or any other state any quantity of sodium cyanide, potassium cyanide, cyclohexanone, bromobenzene, magnesium turnings, mercuric chloride, sodium metal, lead acetate, paladium black, red and white phosphorous, iodine, hydrogen chloride gas, trichlorofluoromethane (fluorotrichloromethane), dichlorodifluoromethane, 1,1,2-trichloro-1,2,2-trifluoroethane

(trichlorotrifluoroethane), sodium acetate, or acetic anhydride

shall do the following:

(1) Notwithstanding any other provision of law, prepare a bill of sale that both identifies the specific items and quantities purchased and the proper purchaser identification information, both of which shall be entered onto the bill of sale or a legible copy of the bill of sale, and also affix on the bill of sale the preparer's signature as witness to the purchase and identification of the purchaser;

(2) Notwithstanding any other provision of law, require proper purchaser identification for in-state purchases that includes a valid motor vehicle operator's license or other official and valid state-issued identification of the purchaser that contains a photograph of the purchaser, and includes the residential or mailinq address of the purchaser, other than a post office box number, the motor vehicle license number of the motor vehicle used by the purchaser at the time of purchase, a description of how the substance is to be used, the Environmental Protection Agency certification number or general excise license number assigned to the individual or business entity for which the individual is purchasing any chlorofluorocarbon product, and the signature of the purchaser. Proper purchaser identification for out-of-state purchases includes all of the above, except the motor vehicle license number and the signature of the purchaser. The out-of-state purchase information shall also include the means by which the purchase was delivered or provided to the purchaser and the delivery address, if different from the identification address provided by the purchaser; and

(3) Retain the original bill of sale containing the purchaser identification information for two years in a readily presentable manner, and present the bill of sale containing the purchaser identification information upon demand by any law enforcement officer or authorized representative of the department.

(b) Any manufacturer, wholesaler, retailer, or other person in this State who purchases any item listed in subsection (a) shall do the following:

(1) Provide on the record of purchase information on the source of the items purchased, the date of purchase, a description of the specific items, the quantities of each item purchased, and the cost of the items purchased; and

(2) Retain the record of purchase for two years in readily presentable manner and present the record of purchase upon demand to any law enforcement officer or authorized representative of the department.

(c) Additional requirements for manufacturers, wholesalers, retailers, or other persons who sell any of the following:

(1) Except as provided in subdivision (d), no manufacturer, wholesaler, retailer, or other person shall sell to any individual, and no individual shall buy, more than four ounces of iodine in any thirty-day period; and

(2) Except as provided in subdivision (d), no manufacturer, wholesaler, retailer, or other person shall sell to any individual, and no individual shall buy, more than two ounces of red or white phosphorous in any thirty day period.

This subsection does not apply to any sale of red phosphorous made to a person or business that is licensed or regulated by state or federal law with respect to the purchase or use of red or white phosphorous.

(d) For purposes of this section, these requirements do not apply to either of the following:

(1) Any sale of iodine at concentrations less than 1.5 per cent by weight in a solution or matrix under the threshold of two ounces in a single transaction; and

(2) Any sale of iodine made to a licensed health care facility, any manufacturer licensed by the department of health, or wholesaler licensed by the Hawaii state board of pharmacy who sells, transfers, or otherwise furnishes the iodine to a licensed pharmacy, physician, dentist, podiatrist, or veterinarian.

(e) A person violating this section shall be fined not more than $100,000 or imprisoned not more than one year, or both.

329-   Penalty enhancement; violation of manufacturing or preparing a controlled substance with a child. (a) Except as provided in subsection (b), any person convicted of unlawfully manufacturing a controlled substance by compounding, converting, producing, deriving, processing, or preparing, either directly or indirectly by chemical extraction, or independently by means of chemical synthesis, any controlled substance specified in section 329-14, 329-16, 329-18, 329-20, or 329-22, when the commission or attempted commission of the crime occurs in a structure where any child under eighteen years of age is present, shall, in addition and consecutive to the punishment prescribed for the felony of which the person has been convicted, be punished by a term of imprisonment of two years in addition to the term of imprisonment ordered for the underlying offense.

(b) Any person convicted of unlawfully manufacturing a controlled substance by compounding, converting, producing, deriving, processing, or preparing, either directly or indirectly by chemical extraction, or independently by means of chemical synthesis, any controlled substance specified in section 329-14, 329-16, 329-18, 329-20, or 329-22, when the commission or attempted commission of the crime causes any child under eighteen years of age to suffer great bodily injury, shall, in addition and consecutive to the punishment prescribed for the felony of which the person has been convicted, be punished by a term of imprisonment of five years in addition to the term of imprisonment ordered for the underlying offense.

(c) As used in this section:

"Great bodily injury" means a significant or substantial physical injury.

"Structure" means any house, apartment building, shop, warehouse, building, vessel, cargo container, motor vehicle, tent, trailer or other enclosed structure capable of holding a child and manufacturing equipment.

329-   Destruction of hazardous chemicals used in unlawful manufacture of controlled substance. At any time after seizure by a law enforcement agency of a suspected hazardous chemical believed to have been used or intended to have been used in the unlawful manufacture of controlled substances, that amount in excess of one fluid ounce if liquid, or one avoirdupois ounce if solid, of each different type of suspected hazardous chemical and its container, may be disposed of without a court order by the seizing agency. For the purposes of this section, "hazardous chemical" means any material that is believed by the chief of that law enforcement agency to be toxic, carcinogenic, explosive, corrosive, or flammable, and that is believed by the chief of that law enforcement agency to have been used or intended to have been used in the unlawful manufacture of controlled substances. Destruction pursuant to this section of suspected hazardous chemicals or suspected hazardous chemicals and controlled substances in combination, shall not take place until all of the following requirements are met:

(1) At least a one ounce sample is taken from each different type of suspected hazardous chemical to be destroyed;

(2) At least a one ounce sample has been taken from each container of a mixture of a suspected hazardous chemical with a suspected controlled substance;

(3) Photographs have been taken that reasonably demonstrate the total amount of suspected controlled substances and suspected hazardous chemicals to be destroyed; and

(4) The gross weight or volume of the suspected hazardous chemical seized has been determined.

Subsequent to any disposal of a suspected hazardous chemical and its container pursuant to this section, the law enforcement agency involved shall maintain records concerning the details of its compliance with, and reciting the applicable information required by paragraphs (1), (2), (3), and (4), together with the information establishing the location of the suspected hazardous chemical and its container, and specifying the date and time of the disposal.

Subsequent to any destruction of a suspected controlled substance in combination with a hazardous chemical pursuant to this section, an affidavit shall be filed within thirty days in the court that has jurisdiction over any pending criminal proceedings pertaining to that suspected controlled substance, reciting the applicable information required by paragraphs (1), (2), (3), and (4)."

SECTION 2. Section 329-61, Hawaii Revised Statutes, is amended to read as follows:

"329-61 Substances subject to reporting. (a) List 1 chemicals. Any manufacturer, wholesaler, retailer, or other person who sells, transfers, or otherwise furnishes any of the following substances to any person in this State or for use in this State shall submit a report to the department of all those transactions:

(1) Phenyl-2-propanone;

(2) Methylamine and its salts;

(3) Phenylacetic acid, its esters and salts;

(4) Ephedrine, its salts, optical isomers, and salts of optical isomers;

(5) Pseudoephedrine, its salts, optical isomers, and salts of optical isomers;

(6) Norpseudoephedrine, its salts, optical isomers, and salts of optical isomers;

(7) Phenylpropanolamine, its salts, optical isomers, and salts of optical isomers;

(8) Hydriodic acid;

(9) Benzyl cyanide;

(10) Benzyl chloride;

(11) N-methylformamide;

(12) N-methylephedrine, its salts, optical isomers, and salts of optical isomers;

(13) N-ethylephedrine;

(14) N-ethylpseudoephedrine;

(15) N-methylpseudoephedrine, its salts, optical isomers, and salts of optical isomers;

(16) Chloroephedrine;

(17) Chloropseudoephedrine;

(18) Ethylamine;

(19) D-lysergic acid;

(20) Ergotamine and its salts;

(21) Piperidine and its salts;

(22) N-acetylanthranilic acid, its esters and salts;

(23) Anthranilic acid, its esters and salts;

(24) Propionic anhydride;

(25) Isosafrole;

(26) Safrole;

(27) Piperonal;

(28) Thionychloride;

(29) Ergonovine and its salts;

(30) 3,4-Methylenedioxyphenyl-2-propanone;

(31) Benzaldehyde;

(32) Nitroethane;

(33) Red phosphorus;

(34) Iodine crystals;

(35) Iodine at concentrations greater than 1.5 per cent by weight in a solution or matrix above the threshold of two ounces in a single transaction;

(36) Gamma butyrolactone (GBL) including butyrolactone; butyrolactone gamma; 4-butyrolactone; 2(3H)-furanone dihydro; dihydro-2(3H)-furanone; tetrahydro-2-furanone; 1,2-butanolide; 1,4-butanolide; 4-butanolide; gamma-hydroxybutyric acid lactone; 3-hydroxybutyric acid lactone; and 4-hydroxybutanoic acid lactone with chemical abstract service number 96-48-0;

(37) 1,4-butanediol, including butanediol; butane-1,4-diol; 1,4-butylene glycol; butylene glycol; 1,4-dihydroxybutane; 1,4-tetramethylene glycol; tetramethylene glycol; and tetramethylene; 1,4-diol;

(38) Hypophosphorous acid and its salts (including ammonium hypophosphite, calcium hypophosphite, iron hypophosphite, potassium hypophosphite, manganese hypophosphite, magnesium hypophosphite, and sodium hypophosphite);

(39) White phosphorus (other names yellow phosphorus); and

(40) Anhydrous ammonia.

(b) List 2 chemicals. Any manufacturer, wholesaler, retailer, or other person who sells, transfers, or otherwise furnishes any extraordinary quantity of any of the following chemicals, or sells, transfers, or otherwise furnishes the chemicals through the use of an uncommon method of payment or delivery or under any other circumstances that may make that person believe that the following chemicals could be used in violation of this part by any person in this State, shall report to the department all those transactions of:

(1) Acetic anhydride;

(2) Acetone;

(3) Ethyl ether;

(4) Potassium permanganate;

(5) 2-Butanone (or methyl ethyl ketone or MEK);

(6) Toluene;

(7) Hydrochloric acid;

(8) Sulfuric acid;

(9) Methyl isobutyl ketone (MIBK);

(10) Hydrogen chloride; and

(11) Methyl sulfone (MSM, DMS, Dimethyl sulfone or DMSO2).

(c) Additional chemicals. If a substance is added or deleted as a regulated list I or list II chemical under federal law and notice of the designation is given to the department, the department may recommend that a corresponding change be made by rule, after the expiration of thirty days from publication in the Federal Register of a final order, and this change shall have the effect of law. If a substance is added or deleted under this subsection, the control shall be temporary and, if the next regular session of the state legislature has not made the corresponding changes in this chapter, the temporary designation of the added or deleted chemical shall be nullified.

(d) The administrator may make an emergency listing of a chemical by designating it a list I or list II chemical on a temporary basis, if the administrator determines that such action is necessary to avoid an imminent hazard or the possibility of an imminent hazard to the health and safety of the public. If a chemical is added under this subsection, the control shall be temporary and, if the next regular session of the state legislature has not enacted the corresponding changes in this chapter, the temporary designation of the added chemical shall be nullified."

SECTION 3. Section 329-64, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The requirements imposed by sections 329-62, 329-63, and 329-67 of this part shall not apply to any of the following:

(1) Any pharmacist or other authorized person who sells or furnishes a substance upon the prescription of a physician, dentist, podiatrist, or veterinarian;

(2) Any physician, dentist, podiatrist, or veterinarian who administers or furnishes a substance to patients;

(3) Any manufacturer or wholesaler licensed by the State who sells, transfers, or otherwise furnishes a substance to a licensed pharmacy, physician, dentist, podiatrist, or veterinarian; [and

(4) Any sale, transfer, furnishing, or receipt of any drug which contains ephedrine, pseudoephedrine, norpseudoephedrine, or phenylpropanolamine and which is lawfully sold, transferred, or furnished over the counter without a prescription pursuant to the federal Food, Drug, and Cosmetic Act (21 United States Code Sec. 301 et seq.) or regulations adopted thereunder.]

(4) Any retail distributor who sells, transfers, or furnishes any over-the-counter drug product in a single transaction involving less than three packages or less than nine grams to an individual for legitimate medical use, that contains pseudoephedrine, noroseudoephedrine, or an ephedrine combination product; and

(5) Any "dietary supplement" as defined by the federal Food, Drug, and Cosmetic Act (21 United States Code Sec. 301) containing ephedrine alkaloids extracted from any species of Ephedra that meets all of the following criteria:

(A) It contains, per dosage unit or serving, not more than twenty-five milligrams of ephedrine alkaloids and its labeling does not suggest or recommend a total daily intake of more than one hundred milligrams of ephedrine alkaloids;

(B) It contains no hydrochloride or sulfate salts of ephedrine alkaloids; and

(C) It is packaged with a prominent label securely affixed to each package that states all of the following:

(i) The amount in milligrams of ephedrine alkaloids in a dosage unit or serving;

(ii) The amount of the dietary supplement that constitutes a dosage unit or serving; and

(iii) The maximum recommended dosage of ephedrine alkaloids for a healthy adult human is not more than one hundred milligrams in a twenty-our hour period."

SECTION 4. Section 329-65, Hawaii Revised Statutes, is amended to read as follows:

"329-65 Penalty. (a) Any manufacturer, wholesaler, retailer, or other person who does not submit a report as required by section 329-63 or who knowingly submits a report with false or fictitious information shall be fined not more than $5,000, or imprisoned not more than thirty days, or both.

(b) Any manufacturer, wholesaler, retailer, or other person who has previously been convicted of violating subsection (a), upon a subsequent conviction thereof, shall be fined not more than $100,000, or imprisoned not more than one year, or both.

(c) Any manufacturer, wholesaler, retailer, or other person who sells, transfers, or otherwise furnishes any of the substances listed in section 329-61 with knowledge or the intent that the recipient will use the substance to unlawfully manufacture any controlled substance shall be fined not more than $100,000, or imprisoned not more than five years, or both. For the purpose of this part, "unlawfully manufacture" means to manufacture, compound, convert, produce, derive, process, or prepare, either directly or indirectly by chemical extraction, or independently by means of chemical synthesis, any controlled substance specified in section 329-14, 329-16, 329-18, 329-20, or 329-22 without a valid state controlled substance registration as designated under section 329-33.

(d) Any manufacturer, wholesaler, retailer, or other person who possesses any of the substances listed in section 329-61 with the intent to unlawfully manufacture any controlled substance shall be fined not more than $100,000, or imprisoned not more than ten years, or both.

(e) Any manufacturer, wholesaler, retailer, or other person who sells, transfers, or otherwise furnishes any laboratory glassware or apparatus, any chemical reagent or solvent, or any combination thereof, where the value of the goods in the transaction exceeds $100, or any chemical substance specified in section 329-61, with the knowledge that the recipient will use or intends to use the goods or chemical substances to unlawfully manufacture a controlled substance, shall be fined not more than $100,000 or imprisoned not more than five years, or both.

(f) Any person who receives or distributes any substance listed in section 329-61, or any laboratory glassware or apparatus, any chemical reagent or solvent, or any combination thereof, where the value of the goods in the transaction exceeds $100, or any chemical substance specified in section 329-61, with the intent of causing the evasion of the record keeping or reporting requirements of this part, shall be fined not more than $100,000 or imprisoned not more than five years, or both.

(g) Any person who knowingly or intentionally possesses any laboratory glassware or apparatus, any chemical reagent or solvent, or any combination thereof, where the value of the goods in the transaction exceeds $100, or any chemical substance specified in section 329-61, with the intent to unlawfully manufacture a controlled substance, shall be fined not more than $100,000 or imprisoned not more than five years, or both.

[(e)] (h) Any person who possesses, sells, distributes, purchases for resale, or causes to be sold, distributed, or purchased for resale any ephedrine-containing product with a label that claims or implies that consumption of the product will produce effects such as ecstasy, euphoria, increased sexual sensations, legal "highs", and other similar effects shall be fined not more than $5,000, or imprisoned not more than one year, or both.

[(f)] (i) It is unlawful for any person to knowingly or intentionally obtain or attempt to obtain any of the substances listed in section 329-61 or procure or attempt to procure any substances listed in section 329-61:

(1) By fraud, deceit, misrepresentation, embezzlement, or theft;

(2) By furnishing fraudulent documentation or information or the concealment of a material fact regarding the use, location, or ultimate user of the substances listed in section 329-61; or

(3) By the use of a false name, photo identification, general excise tax information, or the giving of a false address.

[(g)] (j) Any person who violates subsection [(f)] (i) shall be fined not more than $100,000, or imprisoned not more than five years, or both.

(k) A person who manufacturers, wholesales, retails, sells, transfers, or otherwise furnishes a substance specified in section 329-61 to a child under the age of eighteen years of age, except as designated in section 329-64(a)(2), shall be fined not more than $5,000 or imprisoned more than one year, or both."

SECTION 5. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 7. This Act shall take effect upon its approval.

INTRODUCED BY:

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