Session Law

Identifying Information:L. 2002 ch. 155
Other Identifying Information:2002 Senate Substitute for House Bill 2075
Tax Type:Other
Brief Description:An Act concerning controlled substances; relating to methamphetamine and other substances; prohibited acts and penalties therefor; amending K.S.A. 2001 Supp. 21-3718, 65-4101, 65-4152 and 65-7006 and repealing the existing sections.
Keywords:


Body:

CHAPTER 155

SENATE Substitute for HOUSE BILL No. 2075


An Act concerning controlled substances; relating to methamphetamine and other sub-

stances; prohibited acts and penalties therefor; amending K.S.A. 2001 Supp. 21-3718,


65-4101, 65-4152 and 65-7006 and repealing the existing sections.


Be it enacted by the Legislature of the State of Kansas:

Section 1. K.S.A. 2001 Supp. 21-3718 is hereby amended to read as

follows: 21-3718. (a) Arson is: (1) Knowingly, by means of fire or explosive:

(1) (A) Damaging any building or property which is a dwelling in

which another person has any interest without the consent of such other

person;

(2) (B) damaging any building or property which is a dwelling with

intent to injure or defraud an insurer or lienholder;

(3) (C) damaging any building or property which is not a dwelling in

which another person has any interest without the consent of such other

person; or

(4) (D) damaging any building or property which is not a dwelling

with intent to injure or defraud an insurer or lienholder.;

(2) accidentally, by means of fire or explosive as a result of manufac-

turing or attempting to manufacture a controlled substance in violation

of K.S.A. 65-4159, and amendments thereto, damaging any building or

property which is a dwelling; or

(3) accidentally, by means of fire or explosive as a result of manufac-

turing or attempting to manufacture a controlled substance in violation

of K.S.A. 65-4159, and amendments thereto, damaging any building or

property which is not a dwelling.

(b) (1) Arson, as described in subsections subsection (a)(1)(A) or (2)

or (a)(1)(B), is a severity level 6, person felony.

(2) Arson, as described in subsections (a)(3) or (4) subsection

(a)(1)(C), (a)(1)(D) or (a)(3), is a severity level 7, nonperson felony.

(3) Arson, as described in subsection (a)(2), is a severity level 7, per-

son felony.

Sec. 2. K.S.A. 2001 Supp. 65-4101 is hereby amended to read as

follows: 65-4101. As used in this act: (a) ``Administer'' means the direct

application of a controlled substance, whether by injection, inhalation,

ingestion or any other means, to the body of a patient or research subject

by: (1) A practitioner or pursuant to the lawful direction of a practitioner;

or

(2) the patient or research subject at the direction and in the presence

of the practitioner.

(b) ``Agent'' means an authorized person who acts on behalf of or at

the direction of a manufacturer, distributor or dispenser. It does not in-

clude a common or contract carrier, public warehouseman or employee

of the carrier or warehouseman.

(c) ``Board'' means the state board of pharmacy.

(d) ``Bureau'' means the bureau of narcotics and dangerous drugs,

United States department of justice, or its successor agency.

(e) ``Controlled substance'' means any drug, substance or immediate

precursor included in any of the schedules designated in K.S.A. 65-4105,

65-4107, 65-4109, 65-4111 and 65-4113, and amendments to these sec-

tions.

(f) ``Counterfeit substance'' means a controlled substance which, or

the container or labeling of which, without authorization bears the trade-

mark, trade name or other identifying mark, imprint, number or device

or any likeness thereof of a manufacturer, distributor or dispenser other

than the person who in fact manufactured, distributed or dispensed the

substance.

(g) ``Deliver'' or ``delivery'' means the actual, constructive or at-

tempted transfer from one person to another of a controlled substance,

whether or not there is an agency relationship.

(h) ``Dispense'' means to deliver a controlled substance to an ultimate

user or research subject by or pursuant to the lawful order of a practi-

tioner, including the packaging, labeling or compounding necessary to

prepare the substance for that delivery, or pursuant to the prescription

of a mid-level practitioner.

(i) ``Dispenser'' means a practitioner or pharmacist who dispenses.

(j) ``Distribute'' means to deliver other than by administering or dis-

pensing a controlled substance.

(k) ``Distributor'' means a person who distributes.

(l) ``Drug'' means: (1) Substances recognized as drugs in the official

United States pharmacopoeia, official homeopathic pharmacopoeia of the

United States or official national formulary or any supplement to any of

them; (2) substances intended for use in the diagnosis, cure, mitigation,

treatment or prevention of disease in man or animals; (3) substances

(other than food) intended to affect the structure or any function of the

body of man or animals; and (4) substances intended for use as a com-

ponent of any article specified in clause (1), (2) or (3) of this subsection.

It does not include devices or their components, parts or accessories.

(m) ``Immediate precursor'' means a substance which the board has

found to be and by rule and regulation designates as being the principal

compound commonly used or produced primarily for use and which is

an immediate chemical intermediary used or likely to be used in the

manufacture of a controlled substance, the control of which is necessary

to prevent, curtail or limit manufacture.

(n) ``Manufacture'' means the production, preparation, propagation,

compounding, conversion or processing of a controlled substance either

directly or indirectly or by extraction from substances of natural origin or

independently by means of chemical synthesis or by a combination of

extraction and chemical synthesis and includes any packaging or repack-

aging of the substance or labeling or relabeling of its container, except

that this term does not include the preparation or compounding of a

controlled substance by an individual for the individual's own lawful use

or the preparation, compounding, packaging or labeling of a controlled

substance: (1) By a practitioner or the practitioner's agent pursuant to a

lawful order of a practitioner as an incident to the practitioner's admin-

istering or dispensing of a controlled substance in the course of the prac-

titioner's professional practice; or

(2) by a practitioner or by the practitioner's authorized agent under

such practitioner's supervision for the purpose of or as an incident to

research, teaching or chemical analysis or by a pharmacist or medical care

facility as an incident to dispensing of a controlled substance.

(o) ``Marijuana'' means all parts of all varieties of the plant Cannabis

whether growing or not, the seeds thereof, the resin extracted from any

part of the plant and every compound, manufacture, salt, derivative, mix-

ture or preparation of the plant, its seeds or resin. It does not include the

mature stalks of the plant, fiber produced from the stalks, oil or cake

made from the seeds of the plant, any other compound, manufacture,

salt, derivative, mixture or preparation of the mature stalks, except the

resin extracted therefrom, fiber, oil, or cake or the sterilized seed of the

plant which is incapable of germination.

(p) ``Narcotic drug'' means any of the following whether produced

directly or indirectly by extraction from substances of vegetable origin or

independently by means of chemical synthesis or by a combination of

extraction and chemical synthesis: (1) Opium and opiate and any salt,

compound, derivative or preparation of opium or opiate;

(2) any salt, compound, isomer, derivative or preparation thereof

which is chemically equivalent or identical with any of the substances

referred to in clause (1) but not including the isoquinoline alkaloids of

opium;

(3) opium poppy and poppy straw;

(4) coca leaves and any salt, compound, derivative or preparation of

coca leaves, and any salt, compound, isomer, derivative or preparation

thereof which is chemically equivalent or identical with any of these sub-

stances, but not including decocainized coca leaves or extractions of coca

leaves which do not contain cocaine or ecgonine.

(q) ``Opiate'' means any substance having an addiction-forming or

addiction-sustaining liability similar to morphine or being capable of con-

version into a drug having addiction-forming or addiction-sustaining lia-

bility. It does not include, unless specifically designated as controlled

under K.S.A. 65-4102 and amendments thereto, the dextrorotatory iso-

mer of 3-methoxy-n-methylmorphinan and its salts (dextromethorphan).

It does include its racemic and levorotatory forms.

(r) ``Opium poppy'' means the plant of the species Papaver somni-

ferum l. except its seeds.

(s) ``Person'' means individual, corporation, government, or govern-

mental subdivision or agency, business trust, estate, trust, partnership or

association or any other legal entity.

(t) ``Poppy straw'' means all parts, except the seeds, of the opium

poppy, after mowing.

(u) ``Pharmacist'' means an individual currently licensed by the board

to practice the profession of pharmacy in this state.

(v) ``Practitioner'' means a person licensed to practice medicine and

surgery, dentist, podiatrist, veterinarian, optometrist licensed under the

optometry law as a therapeutic licensee or diagnostic and therapeutic

licensee, or scientific investigator or other person authorized by law to

use a controlled substance in teaching or chemical analysis or to conduct

research with respect to a controlled substance.

(w) ``Production'' includes the manufacture, planting, cultivation,

growing or harvesting of a controlled substance.

(x) ``Ultimate user'' means a person who lawfully possesses a con-

trolled substance for such person's own use or for the use of a member

of such person's household or for administering to an animal owned by

such person or by a member of such person's household.

(y) ``Isomer'' means all enantiomers and diastereomers.

(z) ``Medical care facility'' shall have the meaning ascribed to that

term in K.S.A. 65-425 and amendments thereto.

(aa) ``Cultivate'' means the planting or promotion of growth of five

or more plants which contain or can produce controlled substances.

(bb) (1) ``Controlled substance analog'' means a substance that is in-

tended for human consumption, and:

(A) The chemical structure of which is substantially similar to the

chemical structure of a controlled substance listed in or added to the

schedules designated in K.S.A. 65-4105 or 65-4107 and amendments

thereto;

(B) which has a stimulant, depressant or hallucinogenic effect on the

central nervous system substantially similar to the stimulant, depressant

or hallucinogenic effect on the central nervous system of a controlled

substance included in the schedules designated in K.S.A. 65-4105 or 65-

4107 and amendments thereto; or

(C) with respect to a particular individual, which the individual rep-

resents or intends to have a stimulant, depressant or hallucinogenic effect

on the central nervous system substantially similar to the stimulant, de-

pressant or hallucinogenic effect on the central nervous system of a con-

trolled substance included in the schedules designated in K.S.A. 65-4105

or 65-4107 and amendments thereto.

(2) ``Controlled substance analog'' does not include:

(A) A controlled substance;

(B) a substance for which there is an approved new drug application;

or

(C) a substance with respect to which an exemption is in effect for

investigational use by a particular person under section 505 of the federal

food, drug, and cosmetic act (21 U.S.C. 355) to the extent conduct with

respect to the substance is permitted by the exemption.

(cc) ``Mid-level practitioner'' means an advanced registered nurse

practitioner issued a certificate of qualification pursuant to K.S.A. 65-1131

and amendments thereto, who has authority to prescribe drugs pursuant

to a written protocol with a responsible physician under K.S.A. 65-1130,

and amendments thereto or a physician assistant licensed under the phy-

sician assistant licensure act who has authority to prescribe drugs pursuant

to a written protocol with a responsible physician under K.S.A. 2001

Supp. 65-28a08 and amendments thereto.

Sec. 3. K.S.A. 2001 Supp. 65-4152 is hereby amended to read as

follows: 65-4152. (a) No person shall use or possess with intent to use:

(1) Any simulated controlled substance;

(2) any drug paraphernalia to use, store, contain, conceal, inject, in-

gest, inhale or otherwise introduce into the human body a controlled

substance in violation of the uniform controlled substances act;

(3) any drug paraphernalia to plant, propagate, cultivate, grow, har-

vest, manufacture, compound, convert, produce, process, prepare, test,

analyze, pack, repack, sell or distribute a controlled substance in violation

of the uniform controlled substances act; or

(4) anhydrous ammonia for the illegal production of a controlled sub-

stance or pressurized ammonia in a container not approved for that chem-

ical by the Kansas department of agriculture.

(b) Violation of subsections subsection (a)(1) or (a)(2) is a class A

nonperson misdemeanor.

(c) Violation of subsection (a)(3), other than as described in para-

graph (d), or subsection (a)(4) is a drug severity level 4 felony.

(d) Violation of subsection (a)(3) which involves the possession of

drug paraphernalia for the planting, propagation, growing or harvesting

of less than five marijuana plants is a class A nonperson misdemeanor.

Sec. 4. K.S.A. 2001 Supp. 65-7006 is hereby amended to read as

follows: 65-7006. (a) It shall be unlawful for any person to possess ephed-

rine, pseudoephedrine, red phosphorus, lithium metal, sodium metal, io-

dine, anhydrous ammonia, pressurized ammonia or phenylpropanolam-

ine, or their salts, isomers or salts of isomers with intent to use the product

as a precursor to any illegal to manufacture a controlled substance.

(b) It shall be unlawful for any person to market, sell, distribute, ad-

vertise, or label any drug product containing ephedrine, pseudoephed-

rine, red phosphorus, lithium metal, sodium metal, iodine, anhydrous am-

monia, pressurized ammonia or phenylpropanolamine, or their salts,

isomers or salts or isomers if the person knows or reasonably should know

that the purchaser will use the product as a precursor to any illegal to

manufacture a controlled substance.

(c) It shall be unlawful for any person to market, sell, distribute, ad-

vertise or label any drug product containing ephedrine, pseudoephedrine,

or phenylpropanolamine, or their salts, isomers or salts of isomers for

indication of stimulation, mental alertness, weight loss, appetite control,

energy or other indications not approved pursuant to the pertinent federal

over-the-counter drug final monograph or tentative final monograph or

approved new drug application.

(d) A violation of this section shall be a drug severity level 1 felony.

Sec. 5. K.S.A. 2001 Supp. 21-3718, 65-4101, 65-4152 and 65-7006

are hereby repealed.

Sec. 6. This act shall take effect and be in force from and after its

publication in the statute book.

Approved May 17, 2002.


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Date Composed: 10/10/2002 Date Modified: 10/10/2002