Drug and DWI Law NJ: Sec. 401 TITLES II AND III OF THE COMPREHENSIVE DRUG ABUSE... 74

Sec. 401 TITLES II AND III OF THE COMPREHENSIVE DRUG ABUSE... 74

(2) REGULATIONS.—The Attorney General shall, with the concurrence of the Secretary, promulgate regulations specifying the limited circumstances in which a special registration under this subsection may be issued and the procedures for obtaining such a special registration.

(3) DENIALS.—Proceedings to deny an application for reg- istration under this subsection shall be conducted in accord- ance with section 304(c).
(i) REPORTING OF TELEMEDICINE BY VHA DURING MEDICAL

EMERGENCY SITUATIONS.—
(1) IN GENERAL.—Any practitioner issuing a prescription

for a controlled substance under the authorization to conduct telemedicine during a medical emergency situation described in section 102(54)(F) shall report to the Secretary of Veterans Affairs the authorization of that emergency prescription, in ac- cordance with such requirements as the Secretary of Veterans Affairs shall, by regulation, establish.

(2) TO ATTORNEY GENERAL.—Not later than 30 days after the date that a prescription described in subparagraph (A) is issued, the Secretary of Veterans Affairs shall report to the At- torney General the authorization of that emergency prescrip- tion.
(j) CLARIFICATION CONCERNING PRESCRIPTION TRANSFERS.—

Any transfer between pharmacies of information relating to a pre- scription for a controlled substance shall meet the applicable re- quirements under regulations promulgated by the Attorney Gen- eral under this Act.

PART D—OFFENSES AND PENALTIES PROHIBITED ACTS A—PENALTIES

SEC. 401. ø21 U.S.C. 841¿ (a) Except as authorized by this title, it shall be unlawful for any person knowingly or inten- tionally—

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled sub- stance; or

(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
(b) Except as otherwise provided in section 409, 418, 419, or

420 any person who violates subsection (a) of this section shall be sentenced as follows:

(1)(A) In the case of a violation of subsection (a) of this section involving—

(i) 1 kilogram or more of a mixture or substance containing a detectable amount of heroin;

(ii) 5 kilograms or more of a mixture or substance con- taining a detectable amount of—

(I) coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ec- gonine or their salts have been removed;

(II) cocaine, its salts, optical and geometric isomers, and salts of isomers;

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TITLES II AND III OF THE COMPREHENSIVE DRUG ABUSE... Sec. 401

(III) ecgonine, its derivatives, their salts, isomers, and salts of isomers; or

(IV) any compound, mixture, or preparation which con- tains any quantity of any of the substances referred to in subclauses (I) through (III);
(iii) 280 grams or more of a mixture or substance described

in clause (ii) which contains cocaine base;
(iv) 100 grams or more of phencyclidine (PCP) or 1 kilo-

gram or more of a mixture or substance containing a detectable amount of phencyclidine (PCP);

(v) 10 grams or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD);

(vi) 400 grams or more of a mixture or substance con- taining a detectable amount of N-phenyl-N-[1-(2-phenylethyl)- 4-piperidinyl] propanamide or 100 grams or more of a mixture or substance containing a detectable amount of any analogue of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide;

(vii) 1000 kilograms or more of a mixture or substance con- taining a detectable amount of marihuana, or 1,000 or more marihuana plants regardless of weight; or

(viii) 50 grams or more of methamphetamine, its salts, iso- mers, and salts of its isomers or 500 grams or more of a mix- ture or substance containing a detectable amount of meth- amphetamine, its salts, isomers, or salts of its isomers;

such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of title 18, United States Code, or $10,000,000 if the defendant is an individual or $50,000,000 if the defendant is other than an indi- vidual, or both. If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years and not more than life imprisonment and if death or serious bodily injury results from the use of such sub- stance shall be sentenced to life imprisonment, a fine not to exceed the greater of twice that authorized in accordance with the provi- sions of title 18, United States Code, or $20,000,000 if the defend- ant is an individual or $75,000,000 if the defendant is other than an individual, or both. If any person commits a violation of this subparagraph or of section 409, 418, 419, or 420 after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprison- ment without release and fined in accordance with the preceding sentence. Notwithstanding section 3583 of title 1832, any sentence under this subparagraph shall, in the absence of such a prior con- viction, impose a term of supervised release of at least 5 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a term of supervised release of at least 10 years in addition to such term of imprisonment. Notwith-

32 So in law. Probably should be ‘‘title 18, United States Code’’. This Act does not contain a title 18.

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Sec. 401 TITLES II AND III OF THE COMPREHENSIVE DRUG ABUSE... 76

standing any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under this subparagraph. No person sentenced under this subparagraph shall be eligible for parole during the term of imprisonment im- posed therein.

(B) In the case of a violation of subsection (a) of this section involving—

(i) 100 grams or more of a mixture or substance containing a detectable amount of heroin;

(ii) 500 grams or more of a mixture or substance con- taining a detectable amount of—

(I) coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ec- gonine or their salts have been removed;

(II) cocaine, its salts, optical and geometric isomers, and salts of isomers;

(III) ecgonine, its derivatives, their salts, isomers, and salts of isomers; or

(IV) any compound, mixture, or preparation which con- tains any quantity of any of the substances referred to in subclauses (I) through (III);
(iii) 28 grams or more of a mixture or substance described

in clause (ii) which contains cocaine base;
(iv) 10 grams or more of phencyclidine (PCP) or 100 grams

or more of a mixture or substance containing a detectable amount of phencyclidine (PCP);

(v) 1 gram or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD);

(vi) 40 grams or more of a mixture or substance containing a detectable amount of N-phenyl-N-[1-(2-phenylethyl)-4- piperidinyl] propanamide or 10 grams or more of a mixture or substance containing a detectable amount of any analogue of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide; or

(vii) 100 kilograms or more of a mixture or substance con- taining a detectable amount of marihuana, or 100 or more marihuana plants regardless of weight; or

(viii) 5 grams or more of methamphetamine, its salts, iso- mers, and salts of its isomers or 50 grams or more of a mixture or substance containing a detectable amount of methamphet- amine, its salts, isomers, or salts of its isomers;

such person shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years and if death or serious bodily injury results from the use of such sub- stance shall be not less than 20 years or more than life, a fine not to exceed the greater of that authorized in accordance with the pro- visions of title 18, United States Code, or $5,000,000 if the defend- ant is an individual or $25,000,000 if the defendant is other than an individual, or both. If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 10 years and not more than life imprisonment and if death or serious bodily injury results from the use of such sub- stance shall be sentenced to life imprisonment, a fine not to exceed the greater of twice that authorized in accordance with the provi-

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77 TITLES II AND III OF THE COMPREHENSIVE DRUG ABUSE... Sec. 401

sions of title 18, United States Code, or $8,000,000 if the defendant is an individual or $50,000,000 if the defendant is other than an individual, or both. Notwithstanding section 3583 of title 1833, any sentence under this subparagraph shall, in the absence of such a prior conviction, include a term of supervised release of at least 4 years in addition to such term of imprisonment and shall, if there was such a prior conviction, include a term of supervised release of at least 8 years in addition to such term of imprisonment. Not- withstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under this subparagraph. No person sentenced under this subpara- graph shall be eligible for parole during the term of imprisonment imposed therein.

(C) In the case of a controlled substance in schedule I or II, gamma hydroxybutyric acid (including when scheduled as an ap- proved drug product for purposes of section 3(a)(1)(B) of the Hillory J. Farias and Samantha Reid Date-Rape Drug Prohibition Act of 2000), or 1 gram of flunitrazepam, except as provided in subpara- graphs (A), (B), and (D), such person shall be sentenced to a term of imprisonment of not more than 20 years and if death or serious bodily injury results from the use of such substance shall be sen- tenced to a term of imprisonment of not less than twenty years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of title 18, United States Code, or $1,000,000 if the defendant is an individual or $5,000,000 if the defendant is other than an individual, or both. If any person com- mits such a violation after a prior conviction for a felony drug of- fense has become final, such person shall be sentenced to a term of imprisonment of not more than 30 years and if death or serious bodily injury results from the use of such substance shall be sen- tenced to life imprisonment, a fine not to exceed the greater of twice that authorized in accordance with the provisions of title 18, United States Code, or $2,000,000 if the defendant is an individual or $10,000,000 if the defendant is other than an individual, or both. Notwithstanding section 3583 of title 1834, any sentence imposing a term of imprisonment under this paragraph shall, in the absence of such a prior conviction, impose a term of supervised release of at least 3 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a term of supervised release of at least 6 years in addition to such term of imprison- ment. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sen- tenced under the provisions of this subparagraph which provide for a mandatory term of imprisonment if death or serious bodily injury results, nor shall a person so sentenced be eligible for parole during the term of such a sentence.

(D) In the case of less than 50 kilograms of marihuana, except in the case of 50 or more marihuana plants regardless of weight, 10 kilograms of hashish, or one kilogram of hashish oil, such per- son shall, except as provided in paragraphs (4) and (5) of this sub-

33 So in law. Probably should be ‘‘title 18, United States Code’’. This Act does not contain a title 18.

34 So in law. Probably should be ‘‘title 18, United States Code’’. This Act does not contain a title 18.

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Sec. 401 TITLES II AND III OF THE COMPREHENSIVE DRUG ABUSE... 78

section, be sentenced to a term of imprisonment of not more than 5 years, a fine not to exceed the greater of that authorized in ac- cordance with the provisions of title 18, United States Code, or $250,000 if the defendant is an individual or $1,000,000 if the de- fendant is other than an individual, or both. If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of im- prisonment of not more than 10 years, a fine not to exceed the greater of twice that authorized in accordance with the provisions of title 18, United State Code, or $500,000 if the defendant is an individual or $2,000,000 if the defendant is other than an indi- vidual, or both. Notwithstanding section 3583 of title 1834, any sentence imposing a term of imprisonment under this paragraph shall, in the absence of such a prior conviction, impose a special pa- role term of at least 2 years in addition to such term of imprison- ment and shall, if there was such a prior conviction, impose a term of supervised release of at least 4 years in addition to such term of imprisonment.

(E)(i) Except as provided in subparagraphs (C) and (D), in the case of any controlled substance in schedule III, such person shall be sentenced to a term of imprisonment of not more than 10 years and if death or serious bodily injury results from the use of such substance shall be sentenced to a term of imprisonment of not more than 15 years, a fine not to exceed the greater of that authorized in accordance with the provisions of title 18, United States Code, or $500,000 if the defendant is an individual or $2,500,000 if the defendant is other than an individual, or both.

(ii) If any person commits such a violation after a prior convic- tion for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not more than 20 years and if death or serious bodily injury results from the use of such substance shall be sentenced to a term of imprisonment of not more than 30 years, a fine not to exceed the greater of twice that author- ized in accordance with the provisions of title 18, United States Code, or $1,000,000 if the defendant is an individual or $5,000,000 if the defendant is other than an individual, or both.

(iii) Any sentence imposing a term of imprisonment under this subparagraph shall, in the absence of such a prior conviction, im- pose a term of supervised release of at least 2 years in addition to such term of imprisonment and shall, if there was such a prior con- viction, impose a term of supervised release of at least 4 years in addition to such term of imprisonment.

(2) In the case of a controlled substance in schedule IV, such person shall be sentenced to a term of imprisonment of not more than 5 years, a fine not to exceed the greater of that authorized in accordance with the provisions of title 18, United States Code, or $250,000 if the defendant is an individual or $1,000,000 if the defendant is other than an individual, or both. If any person com- mits such a violation after a prior conviction for a felony drug of- fense has become final, such person shall be sentenced to a term of imprisonment of not more than 10 years, a fine not to exceed the greater of twice the authorized in accordance with the provisions of title 18, United States Code, or $500,000 if the defendant is an individual or $2,000,000 if the defendant is other than an indi-

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79 TITLES II AND III OF THE COMPREHENSIVE DRUG ABUSE... Sec. 401

vidual, or both. Any sentence imposing a term of imprisonment under this paragraph shall, in the absence of such a prior convic- tion, impose a term of supervised release of at least one year in ad- dition to such term of imprisonment and shall, if there was such a prior conviction, impose a term of supervised release of at least 2 years in addition to such term of imprisonment.

(3) In the case of a controlled substance in schedule V, such person shall be sentenced to a term of imprisonment of not more than 1 year, a fine not to exceed the greater of that authorized in accordance with the provisions of title 18, United States Code, or $100,000 if the defendant is an individual or $250,000 if the de- fendant is other than an individual, or both. If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of im- prisonment of not more than 4 years, a fine not to exceed the provi- sions of title 18, United States Code, or $200,000 if the defendant is an individual or $500,000 if the defendant is other than an indi- vidual, or both. Any sentence imposing a term of imprisonment under this paragraph may, if there was a prior conviction, impose a term of supervised release of not more than 1 year, in addition to such term of imprisonment.

(4) Notwithstanding paragraph (1)(D) of this subsection, any person who violates subsection (a) of this section by distributing a small amount of marihuana for no remuneration shall be treated as provided in section 404 and section 3607 of title 18, United States Code.

(5) Any person who violates subsection (a) of this section by cultivating or manufacturing a controlled substance on Federal property shall be imprisoned as provided in this subsection and shall be fined any amount not to exceed—

(A) the amount authorized in accordance with this section;

(B) the amount authorized in accordance with the provi- sions of title 18, United States Code;

(D) $1,000,000 if the defendant is other than an individual; or both.

(6) Any person who violates subsection (a), or attempts to do so, and knowingly or intentionally uses a poison, chemical, or other hazardous substance on Federal land, and, by such use—

(A) creates a serious hazard to humans, wildlife, or domes- tic animals,

(B) degrades or harms the environment or natural re- sources, or

shall be fined in accordance with title 18, United States Code, or imprisoned not more than five years, or both.

(7) PENALTIES FOR DISTRIBUTION.—
(A) IN GENERAL.—Whoever, with intent to commit a crime

of violence, as defined in section 16 of title 18, United States Code (including rape), against an individual, violates sub- section (a) by distributing a controlled substance or controlled substance analogue to that individual without that individual’s

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Sec. 401 TITLES II AND III OF THE COMPREHENSIVE DRUG ABUSE... 80

knowledge, shall be imprisoned not more than 20 years and fined in accordance with title 18, United States Code.

(B) DEFINITION.—For purposes of this paragraph, the term ‘‘without that individual’s knowledge’’ means that the indi- vidual is unaware that a substance with the ability to alter that individual’s ability to appraise conduct or to decline par- ticipation in or communicate unwillingness to participate in conduct is administered to the individual.

a controlled substance except as authorized by this title;
(2) possesses or distributes, a listed chemical knowing, or having reasonable cause to believe, that the listed chemical will be used to manufacture a controlled substance except as

authorized by this title; or
(3) with the intent of causing the evasion of the record-

keeping or reporting requirements of section 310, or the regu- lations issued under that section, receives or distributes a re- portable amount of any listed chemical in units small enough so that the making of records or filing of reports under that section is not required;

shall be fined in accordance with title 18, United States Code, or imprisoned not more than 20 years in the case of a violation of paragraph (1) or (2) involving a list I chemical or not more than 10 years in the case of a violation of this subsection other than a violation of paragraph (1) or (2) involving a list I chemical, or both.

(d)(1) Any person who assembles, maintains, places, or causes to be placed a boobytrap on Federal property where a controlled substance is being manufactured, distributed, or dispensed shall be sentenced to a term of imprisonment for not more than 10 years or fined under title 18, United States Code, or both.

(2) If any person commits such a violation after 1 or more prior convictions for an offense punishable under this subsection, such person shall be sentenced to a term of imprisonment of not more than 20 years or fined under title 18, United States Code, or both.

(3) For the purposes of this subsection, the term ‘‘boobytrap’’ means any concealed or camouflaged device designed to cause bod- ily injury when triggered by any action of any unsuspecting person making contact with the device. Such term includes guns, ammuni- tion, or explosive devices attached to trip wires or other triggering mechanisms, sharpened stakes, and lines or wires with hooks at- tached.

(e) In addition to any other applicable penalty, any person con- victed of a felony violation of this section relating to the receipt, distribution, manufacture, exportation, or importation of a listed chemical may be enjoined from engaging in any transaction involv- ing a listed chemical for not more than ten years.

(f)(1) Whoever knowingly distributes a listed chemical in viola- tion of this title (other than in violation of a recordkeeping or re- porting requirement of section 310) shall, except to the extent that paragraph (12), (13), or (14) of section 402(a) applies, be fined under title 18, United States Code, or imprisoned not more than 5 years, or both.

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81 TITLES II AND III OF THE COMPREHENSIVE DRUG ABUSE... Sec. 401

(2) Whoever possesses any listed chemical, with knowledge that the recordkeeping or reporting requirements of section 310 have not been adhered to, if, after such knowledge is acquired, such person does not take immediate steps to remedy the violation shall be fined under title 18, United States Code, or imprisoned not more than one year, or both.

(g) INTERNET SALES OF DATE RAPE DRUGS.—
(1) Whoever knowingly uses the Internet to distribute a

date rape drug to any person, knowing or with reasonable cause to believe that—

(A) the drug would be used in the commission of crimi- nal sexual conduct; or

(B) the person is not an authorized purchaser;
shall be fined under this title or imprisoned not more than 20 years, or both.

(2) As used in this subsection:
(A) The term ‘‘date rape drug’’ means—

(i) gamma hydroxybutyric acid (GHB) or any con- trolled substance analogue of GHB, including gamma butyrolactone (GBL) or 1,4–butanediol;

(ii) ketamine;
(iii) flunitrazepam; or
(iv) any substance which the Attorney General

designates, pursuant to the rulemaking procedures prescribed by section 553 of title 5, United States Code, to be used in committing rape or sexual assault.

The Attorney General is authorized to remove any sub- stance from the list of date rape drugs pursuant to the same rulemaking authority.

(B) The term ‘‘authorized purchaser’’ means any of the following persons, provided such person has acquired the controlled substance in accordance with this Act:

(i) A person with a valid prescription that is issued for a legitimate medical purpose in the usual course of professional practice that is based upon a qualifying medical relationship by a practitioner reg- istered by the Attorney General. A ‘‘qualifying medical relationship’’ means a medical relationship that exists when the practitioner has conducted at least 1 medical evaluation with the authorized purchaser in the phys- ical presence of the practitioner, without regard to whether portions of the evaluation are conducted by other heath professionals. The preceding sentence shall not be construed to imply that 1 medical evalua- tion demonstrates that a prescription has been issued for a legitimate medical purpose within the usual course of professional practice.

(ii) Any practitioner or other registrant who is otherwise authorized by their registration to dispense, procure, purchase, manufacture, transfer, distribute, import, or export the substance under this Act.

(iii) A person or entity providing documentation that establishes the name, address, and business of the person or entity and which provides a legitimate

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Sec. 401 TITLES II AND III OF THE COMPREHENSIVE DRUG ABUSE... 82

purpose for using any ‘‘date rape drug’’ for which a

prescription is not required.
(3) The Attorney General is authorized to promulgate reg-

ulations for record-keeping and reporting by persons handling 1,4–butanediol in order to implement and enforce the provi- sions of this section. Any record or report required by such reg- ulations shall be considered a record or report required under this Act.

(h) OFFENSES INVOLVING DISPENSING OF CONTROLLED SUB- STANCES BY MEANS OF THE INTERNET.—

(1) IN GENERAL.—It shall be unlawful for any person to knowingly or intentionally—

(A) deliver, distribute, or dispense a controlled sub- stance by means of the Internet, except as authorized by this title; or

(B) aid or abet (as such terms are used in section 2 of title 18, United States Code) any activity described in sub- paragraph (A) that is not authorized by this title.
(2) EXAMPLES.—Examples of activities that violate para-

graph (1) include, but are not limited to, knowingly or inten- tionally—

(A) delivering, distributing, or dispensing a controlled substance by means of the Internet by an online pharmacy that is not validly registered with a modification author- izing such activity as required by section 303(f) (unless ex- empt from such registration);

(B) writing a prescription for a controlled substance for the purpose of delivery, distribution, or dispensation by means of the Internet in violation of section 309(e);

(C) serving as an agent, intermediary, or other entity that causes the Internet to be used to bring together a buyer and seller to engage in the dispensing of a controlled substance in a manner not authorized by sections 303(f) or 309(e);

(D) offering to fill a prescription for a controlled sub- stance based solely on a consumer’s completion of an on- line medical questionnaire; and

(E) making a material false, fictitious, or fraudulent statement or representation in a notification or declaration under subsection (d) or (e), respectively, of section 311.
(3) INAPPLICABILITY.—

(A) This subsection does not apply to—
(i) the delivery, distribution, or dispensation of

controlled substances by nonpractitioners to the extent authorized by their registration under this title;

(ii) the placement on the Internet of material that merely advocates the use of a controlled substance or includes pricing information without attempting to propose or facilitate an actual transaction involving a controlled substance; or

(iii) except as provided in subparagraph (B), any activity that is limited to—

(I) the provision of a telecommunications serv- ice, or of an Internet access service or Internet in-

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