Drug paraphernalia-2.

WORKING DRAFT
2007
STATE OF
WYOMING
07LSO-0532

HOUSE BILL
NO.
HB0232

Drug paraphernalia-2.

Sponsored by:
Representative(s) Buchanan, Gingery and Lubnau and Senator(s) Hines

A BILL

for

AN ACT relating to the Wyoming Controlled Substances Act; combining offenses relating to possession or delivery of drug paraphernalia; amending a definition; clarifying factors to determine whether an item is drug paraphernalia; specifying prior convictions that shall count toward the imposition of an enhanced sentence for possession of a controlled substance; providing exemptions; conforming a provision; and providing for an effective date.

Be It Enacted by the Legislature of the State of
Wyoming
:

Section 1.

W.S. 1

40

119(a)(iii), 6

8

104(b)(v), 35
‑
7
‑
1002(a)(xxvii)(intro), (E)(II), (III) and by creating new subdivisions (XI) through (XV), 35

7

1031(c)(i)(intro), 35
‑
7
‑
1049(a)(vi) and 35
‑
7
‑
1056 are amended to read:

1
‑
40
‑
119.

Surcharge to be assessed in certain criminal cases; paid to account.

(a)

In addition to any fine or other penalty prescribed by law, a defendant who pleads guilty or nolo contendere to, or is convicted of, the following criminal offenses shall be assessed a surcharge of not less than fifty dollars ($50.00) for the offenses specified in paragraph (v) of this subsection and not less than one hundred dollars ($100.00) for the offenses specified in paragraphs (i) through (iv) of this subsection:

(iii)

Any violation of W.S. 35
‑
7
‑
1001 through
35
‑
7
‑
1057
35
‑
7
‑
1056
;

6
‑
8
‑
104.

Wearing or carrying concealed weapons; penalties; exceptions; permits.

(b)

The attorney general is authorized to issue permits to carry a concealed firearm to persons qualified as provided by this subsection. The attorney general shall promulgate rules necessary to carry out this section no later than October 1, 1994. Applications for a permit to carry a concealed firearm shall be made available and distributed by the division of criminal investigation and local law enforcement agencies. The permit shall be valid throughout the state for a period of five (5) years from the date of issuance. The permittee shall carry the permit, together with valid identification at all times when the permittee is carrying a concealed firearm and shall display both the permit and proper identification upon request of any peace officer. The attorney general through the division shall issue a permit to any person who:

(v)

Has not been committed to a state or federal facility for the abuse of a controlled substance or convicted of a violation of the Wyoming Controlled Substances Act of 1971, W.S. 35
‑
7
‑
1001 through
35
‑
7
‑
1057
35
‑
7
‑
1056
or similar laws of any other state or the United States relating to controlled substances;

35
‑
7
‑
1002.

Definitions.

(a)

As used in this act:

(xxvii)

"Drug paraphernalia" means
all
any
equipment,
products and materials
product or material
of any kind
when used, advertised
which is

for use
, intended for use or designed for use for

in
manufacturing,
compounding,
converting,
concealing, producing, processing,
preparing,
packaging, repackaging, storing, containing, concealing,
injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance
,

in violation of

possession of which is unlawful under
this act
.

and
It

includes
items for use in ingesting, inhaling or otherwise introducing marihuana, cocaine, hashish, hashish oil, PCP, methamphetamine or amphetamines into the human body, such as
:

(E)

The following objects when used, advertised for use, intended for use or designed for use in ingesting, inhaling or otherwise introducing marihuana, cocaine, hashish or hashish oil or any other controlled substance into the human body:

(II)

Carburetion tubes
and devices
;

(III)

Smoking and c
arburetion masks;

(XI)

Cocaine freebase kits;

(XII)

Miniature spoons with level capacities of one-tenth (0.10) cubic centimeter or less;

(XIII)

Roach clips, meaning objects used to hold burning materials such as a marihuana cigarette that has become too small or too short to be held in the hand;

(XIV)

Water pipes; or

(XV)

Wired cigarette papers.

35
‑
7
‑
1031.

Unlawful manufacture or delivery; counterfeit substance; unlawful possession.

(c)

It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this act. Any person who violates this subsection:

(i)

And has in his possession a controlled substance in the amount set forth in this paragraph is guilty of a misdemeanor punishable by imprisonment for not more than twelve (12) months, a fine of not more than one thousand dollars ($1,000.00), or both. Any person convicted for a third or subsequent offense under this paragraph, including convictions for violations of similar laws in other jurisdictions, shall be imprisoned for a term not more than five (5) years, fined not more than five thousand dollars ($5,000.00), or both.
Any prior conviction for a violation of W.S. 35
‑
7
‑
1056, or convictions for violations of laws in other jurisdictions containing the same or similar elements as a crime defined in W.S. 35
‑
7
‑
1056, shall be included for purposes of calculating whether the present conviction is a third or subsequent conviction under this paragraph.
For purposes of this paragraph, the amounts of a controlled substance are as follows:

35
‑
7
‑
1049.

Forfeitures and seizures generally; property subject to forfeiture.

(a)

The following are subject to forfeiture:

(vi)

All "drug paraphernalia" as defined by W.S. 35
‑
7
‑
1002(a)(xxvii)
, subject to consideration of the factors specified in W.S. 35
‑
7
‑
1056(d)
;

35
‑
7
‑
1056.

Delivery of, or possession with intent to deliver, drug paraphernalia.

(a)

It is unlawful for any person to
:

(i)

D
eliver, or possess with intent to deliver, drug paraphernalia
;
.

or

(ii)

Possess drug paraphernalia.

(b)

Except as provided in subsection (c) of this section, a
ny person who violates this section is guilty of a
crime
misdemeanor
and, upon conviction, may be imprisoned for not more than six (6) months, fined not more than seven hundred fifty dollars ($750.00), or both.

(c)

Any person who violates paragraph (a)(i) of this section by delivering, or possessing with intent to deliver, drug paraphernalia to a minor is guilty of a felony and, upon conviction, may be imprisoned for not more than five (5) years, fined not more than two thousand five hundred dollars ($2,500.00), or both.

(d)

In determining whether an item constitutes drug paraphernalia, in addition to all other logically relevant factors, the following may be considered:

(i)

Instructions, oral or written, provided with the item concerning its use;

(ii)

Descriptive materials accompanying the item which explain or depict its use;

(iii)

National and local advertising concerning the item's use;

(iv)

The manner in which the item is displayed for sale;

(v)

Whether the owner, or anyone in control of the item, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;

(vi)

Direct or circumstantial evidence of the ratio of sales of the item to the total sales of the business enterprise;

(vii)

The existence and scope of legitimate uses of the item in the community; and

(viii)

Expert testimony concerning the item's use.

(e)

This section shall not apply to:

(i)

Any person authorized by local, state or federal law to manufacture, possess or distribute drug paraphernalia meeting the factors specified in subsection (d) of this section;

(ii)

Any item that, in the normal lawful course of business, is imported, exported, transported or sold through the mail or by any other means, and traditionally intended for use with tobacco products, including any pipe, paper or accessory.

Section 2.

W.S. 35
‑
7
‑
1057 is repealed.

Section 3.

This act is effective July 1, 2007.

(END)

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HB0232