AN INITIATIVE MEASURE

DRUG MEDICALIZATION, PREVENTION, AND CONTROL ACT OF 2000

PROPOSING AMENDMENTS TO THE ARIZONA REVISED STATUTES: AMENDING TITLE 13, CHAPTER 13, RELATING TO PRESCRIBING CONTROLLED SUBSTANCES INCLUDED IN SCHEDULE 1 FOR SERIOUSLY ILL AND TERMINALLY ILL PATIENTS; AMENDING TITLE 13, CHAPTER 9 RELATING TO TRANSFER OF FORFEITURE MONIES AND ASSETS TO DRUG TREATMENT AND EDUCATION FUND, PENALTIES FOR PERSONS CONVICTED OF PERSONAL POSSESSION OR USE OF CONTROLLED SUBSTANCES, AND PENALTIES FOR PERSONS WHO POSSESS MARIJUANA HAVING A WEIGHT OF LESS THAN 2 OUNCES; AMENDING TITLE 13, CHAPTER 6 RELATING TO MAXIMUM AND MINIMUM MANDATORY DRUG SENTENCING LAWS; AMENDING TITLE 31, CHAPTER 3 AND TITLE 41, CHAPTER 11, RELATING TO PAROLE FOR PERSONS PREVIOUSLY CONVICTED OF PERSONAL POSSESSION OR USE OF A CONTROLLED SUBSTANCE.

BE IT ENACTED BY THE PEOPLE OF THE STATE OF ARIZONA:

The following amendments are proposed to become valid when approved by a majority of the qualified electors voting thereon and on proclamation of the Governor.

 

Section 1. Title

This Act shall be known and may be cited as the "Drug Medicalization, Prevention, and Control Act of 2000."

Section 2. Findings and Declarations

The people of the State of Arizona find and declare the following:

  1. The Drug Medicalization, Prevention, and Control Act approved by 65.4% of the voters in 1996 is saving the state money and making our neighborhoods safer by diverting non-violent drug users into treatment rather than incarcerating them.
  2. According to a Report Card prepared by the Arizona Supreme Court, the Drug Medicalization, Prevention, and Control Act is "resulting in safer communities and more substance abusing probationers in recovery." The Report Card showed the following:
    1. 2622 non-violent offenders participated in the program;
    2. 77.5% of those who completed the program remained drug free; and
    3. Arizona cost-savings as a result of the program is at least $2,563,062.

  3. The Drug Medicalization, Prevention, and Control Act of 2000 will expand on the 1996 Act by substantially increasing the funding for drug treatment and expanding sentencing reforms for non-violent drug users. This will result in greater cost-savings to the state, safer communities, and more prison space for violent offenders.
  4. The Drug Medicalization, Prevention, and Control Act of 2000 will also correct any further circumvention or misunderstanding of the 1996 Act by the courts, county attorneys, and federal government by clarifying the medical marijuana and sentencing reform provisions of the original 1996 Act.

 

Section 3. Purpose and Intent

The people of the State of Arizona declare their purposes to be as follows:

  1. Drug treatment and prevention will be paid for by the criminals themselves. Confiscated assets which have been forfeited will be placed in the Drug Treatment and Education Fund, with 75% of the funding designated for drug treatment and 25% of the funding earmarked for drug and gang prevention.
  2. Tougher punishments will be ensured for serious drug felons, but the mandatory minimum sentences will be removed for non-violent drug users. The mandatory minimum drug sentences will be repealed and the maximum penalty for drug crimes – both fines and sentences – will be increased by 20%.
  3. Arizona marijuana laws, which currently provide that someone caught with a joint could be charged with a felony and possible jail time, will be changed. Possession for small amounts of marijuana will be changed to a violation with a fine.
  4. Medical marijuana provisions of the Drug Medicalization, Prevention, and Control Act of 1996 will be updated to ensure that doctors could not be sanctioned by the federal government and that qualified patients will have access to medical marijuana through a program which will be supervised by the Arizona Attorney General.
  5. Sentencing provisions of the Drug Medicalization, Prevention, and Control Act of 1996 requiring mandatory treatment and probation/parole for those convicted of drug possession will be clarified. Currently, the courts have not understood that the original Act clearly stated that first- and second-time offenders should not be incarcerated in jail or prison. In addition, some prosecutors have been trying to circumvent the mandatory treatment provisions of the original Act by invoking paraphernalia laws. The new Act remedies both these situations and will restore the parole provisions repealed by the 1997 Legislature.
  6.  

Section 4.

Title 13, Chapter 13. Arizona Revised Statutes, is amended as follows:

§13-3412.01. Prescribing controlled substances included in schedule I for seriously ill and terminally ill patients

A. Notwithstanding any law to the contrary, any medical doctor licensed to practice in this state may prescribe a controlled substance included in schedule I as prescribed by section 36-2512 to treat a disease, or to relieve the pain and suffering of a seriously ill patient or terminally ill patient subject to the provisions of this section. In prescribing such a controlled substance, the medical doctor shall comply with professional medical standards.

B. Notwithstanding any law to the contrary, a medical doctor shall document that scientific research exists which supports the use of a controlled substance listed in schedule I as prescribed by section 36-2512 to treat a disease, or to relieve the pain and suffering of a seriously ill patient or a terminally ill patient before prescribing the controlled substance. A medical doctor prescribing a controlled substance included in schedule I as prescribed by section 36-2512 to treat a disease, or to relieve the pain and suffering of a seriously ill patient or terminally ill patient, shall obtain the written opinion of a second medical doctor that prescribing the controlled substance is appropriate to treat a disease or to relieve the pain and suffering of a seriously ill patient or terminally ill patient. The written opinion of the second medical doctor shall be kept in the patient’s official medical file. Before prescribing the controlled substance included in schedule I as prescribed by section 36-2512 the medical doctor shall receive in writing the consent of the patient.

C. NOTWITHSTANDING ANY LAW TO THE CONTRARY, ANY PHYSICIAN WHO RECOMMENDS MEDICAL MARIJUANA SHALL:

  1. DISCUSS WITH THE PATIENT THE POSSIBLE HEALTH RISKS AND THERAPEUTIC OR PALLIATIVE BENEFITS OF THE MEDICAL USE OF MARIJUANA TO RELIEVE PAIN OR ALLEVIATE SYMPTOMS OF THE PATIENT’S CONDITION, BASED ON INFORMATION KNOWN TO THE PHYSICIAN, INCLUDING, BUT NOT LIMITED TO, CLINICAL STUDIES OR ANECDOTAL EVIDENCE REPORTED IN MEDICAL LITERATURE, OR OBSERVATIONS OR INFORMATION CONCERNING THE USE OF MARIJUANA BY OTHER PATIENTS WITH THE SAME OR SIMILAR CONDITIONS; AND

  2. PROVIDE THE PATIENT WITH THE PHYSICIAN’S PROFESSIONAL OPINION CONCERNING THE POSSIBLE BALANCE OF RISKS AND BENEFITS OF THE MEDICAL USE OF MARIJUANA TO RELIEVE PAIN OR ALLEVIATE SYMPTOMS IN THE PATIENT’S PARTICULAR CASE; AND

  3. ADVISE THE PATIENT IN WRITING, ON THE BASIS OF THE PHYSICIAN’S KNOWLEDGE OF THE PATIENT’S MEDICAL HISTORY AND CONDITION, THAT THE PATIENT MIGHT BENEFIT FROM THE MEDICAL USE OF MARIJUANA TO RELIEVE PAIN OR ALLEVIATE SYMPTOMS OF THE PATIENT’S CONDITION. THE WRITTEN ADVICE SHALL BE KEPT IN THE PATIENT’S OFFICIAL MEDICAL FILE.

C.D. Any failure to comply with the provisions of this section may be the subject of investigation and appropriate disciplining DISCIPLINARY action by the allopathic board of medical examiners.

E. NOTWITHSTANDING ANY LAW TO THE CONTRARY, THE ATTORNEY GENERAL SHALL ESTABLISH A PATIENT REGISTRY FOR PATIENTS WHO QUALIFY PURSUANT TO § 13-3412.01C AND SHALL IMPLEMENT A SYSTEM FOR LEGAL DISTRIBUTION OF MEDICAL MARIJUANA TO QUALIFIED PATIENTS. THE PROVISIONS OF §§ 13-3402, 13-3403, 13-3404, 13-3404.01 AND 13-3405 THROUGH 13-3409 SHALL NOT APPLY TO ANY QUALIFIED PATIENT WHO RECEIVES, POSSESSES OR USES MARIJUANA IN COMPLIANCE WITH THE PROVISIONS OF § 13-3412.01C. THE SYSTEM SHALL UTILIZE MEDICAL MARIJUANA FROM THE FEDERAL COMPASSIONATE USE PROGRAM OR FROM TESTED CONFISCATED MARIJUANA. ANY PATIENT WHO QUALIFIES PURSUANT TO THIS SECTION SHALL PAY FOR THE COST OF RECEIVING SERVICES FROM THE SYSTEM TO THE EXTENT HE OR SHE IS ABLE TO. THE ATTORNEY GENERAL SHALL ADOPT ADMINISTRATIVE RULES AND REGULATIONS TO IMPLEMENT THE PROVISIONS OF THIS SUBSECTION. THE DEPARTMENT OF PUBLIC SAFETY SHALL PROVIDE WHATEVER ASSISTANCE IS NECESSARY TO IMPLEMENT THE PROVISIONS OF THIS SUBSECTION.

 

 

Section 5.

Title 13, Chapter 9. Arizona Revised Statutes, is amended as follows:

§13-901.01. Probation for persons convicted of personal possession and use of controlled substances; treatment; prevention; education

  1. Notwithstanding any law to the contrary, any person who is convicted of the personal possession or use of a controlled substance as defined in § 36-2501, OR WHO IS CONVICTED OF THE PERSONAL POSSESSION OR USE OF PARAPHERNALIA ASSOCIATED WITH POSSESSION OR USE OF A CONTROLLED SUBSTANCE, is eligible for probation. THE COURT SHALL NOT IMPOSE ANY SANCTION WHICH INCLUDES INCARCERATION IN PRISON OR JAIL AS A CONDITION OF PROBATION. The court shall suspend the imposition or execution of sentence and place such person on probation.
  2. Any person who has been convicted of or indicted for a violent crime as defined in § 41-1604.15, subsection B 13-604.04 is not eligible for probation as provided for in this section but instead shall be sentenced pursuant to the other provisions of chapter 34 of this title.
  3. Personal possession or use of a controlled substance, OR PERSONAL POSSESSION OR USE OF PARAPHERNALIA ASSOCIATED WITH POSSESSION OR USE OF A CONTROLLED SUBSTANCE, pursuant to this section shall not include possession for sale, production, manufacturing, or transportation for sale of any controlled substance.
  4. If a person is convicted of personal possession or use of a controlled substance as defined in § 36-2501 OR PERSONAL POSSESSION OR USE OF PARAPHERNALIA ASSOCIATED WITH POSSESSION OR USE OF A CONTROLLED SUBSTANCE, as a condition of probation, the court shall require participation in an appropriate drug treatment or education program administered by a qualified agency or organization that provides such programs to persons who abuse controlled substances. THE COURT SHALL NOT IMPOSE ANY SANCTION WHICH INCLUDES INCARCERATION IN PRISON OR JAIL AS A CONDITION OF PROBATION. Each person enrolled in a drug treatment or education program shall be required to pay for participation in the program to the extent of the person’s financial ability.
  5. A person who has been placed on probation under the provisions of this section and who is determined by the court to be in violation of probation shall have new conditions of probation established by the court. The court shall select the additional conditions it deems necessary, including intensified drug treatment, community service, intensive probation, home arrest, or any other sanctions short of incarceration IN PRISON OR JAIL.
  6. If a person is convicted a second time of personal possession or use of a controlled substance as defined in § 36-2501 OR PERSONAL POSSESSION OR USE OF PARAPHERNALIA ASSOCIATED WITH POSSESSION OR USE OF A CONTROLLED SUBSTANCE, the court may include additional conditions of probation it deems necessary, including intensified drug treatment, community service, intensive probation, home arrest, or any other action within the jurisdiction of the court. THE COURT SHALL NOT IMPOSE ANY SANCTION WHICH INCLUDES INCARCERATION IN PRISON OR JAIL AS A CONDITION OF PROBATION.
  7. A person who has been convicted three times of personal possession or use of a controlled substance as defined in § 36-2501 OR OF PERSONAL POSSESSION OR USE OF PARAPHERNALIA ASSOCIATED WITH POSSESSION OR USE OF A CONTROLLED SUBSTANCE is not eligible for probation under the provisions of this section but instead shall be sentenced pursuant to the other provisions of chapter 34 of this title.
  8. FOR THE PURPOSES OF DETERMINING WHETHER A PERSON IS SUBJECT TO THE PROVISIONS OF SUBSECTION G, ONLY CONVICTIONS FOR PERSONAL POSSESSION OR USE OF A CONTROLLED SUBSTANCE OR PERSONAL POSSESSION OR USE OF PARAPHERNALIA ASSOCIATED WITH POSSESSION OR USE OF A CONTROLLED SUBSTANCE THAT OCCUR AFTER DECEMBER 1, 1996 SHALL APPLY.
  9.  

Section 6.

Title 13, Chapter 9. Arizona Revised Statutes, is amended by adding § 13-2314.05 to read as follows:

§ 13-2314.05 Asset forfeiture

  1. Notwithstanding any law to the contrary, any monies or assets obtained after the effective date of this act as a result of a forfeiture pursuant to § 13-2314.01 et seq. by any department or agency of this state or any political sub-division of this state from any department or agency of the United States or another state as a result of participation in any investigation or prosecution, whether by final judgment, settlement or otherwise, shall be transferred from the fund established pursuant to § 13-2314.01 to the drug treatment and education fund established pursuant to § 13-901.02 within 30 days of the deposit of the funds in the anti-racketeering revolving fund.
  2. Any department or agency of this state or any political sub-division of this state shall be reimbursed for all expenditures made or incurred by it in connection with the sale of forfeited property or assets, including any necessary repairs, storage, or transportation of any property or assets seized. The remaining funds shall be transferred to the drug treatment and education fund pursuant to the provisions of subsection A.
  3. Monies deposited in the drug treatment and education fund pursuant to subsection A shall be utilized as follows:

    1. Seventy-five percent of the funds for drug treatment

    2. Twenty-five percent of the funds for drug prevention and gang prevention.

  4. Notwithstanding any other provision of law, whoever, acting under color of official title or position, takes any action to conceal, withhold, retain, divert or otherwise prevent any monies, conveyances, real property, or any things of value forfeited under this section or forfeited and transferred to a state or local agency under the laws of the United States, from being disposed of in accordance with the provisions of this section shall be subject to a civil penalty in an amount that is treble the value of the forfeiture.

  5. Actions to enforce the provisions of this section may be brought by any person in the public interest if (1) the action is commenced more than sixty days after the person has given notice of the violation which is the subject of the action to the Attorney General and the district attorney and any city attorney in whose jurisdiction the violation is alleged to occur and to the alleged violator, and (2) neither the Attorney General nor any district attorney nor any city attorney or prosecutor has commenced and is diligently prosecuting an action against such violation.

  6. Any monies which are in the fund established pursuant to § 13-2314.01 as of the effective date of this Act shall be transferred within 15 days to the drug treatment and education fund.

     

Section 7.

Title 13, Chapter 9. Arizona Revised Statutes, is amended by adding § 13-3405.1 to read as follows:

§ 13-3405.1 POSSESSION OR USE OF MARIJUANA HAVING A WEIGHT OF LESS THAN 2 OUNCES.

  1. NOTWITHSTANDING ANY LAW TO THE CONTRARY, ANY PERSON WHO POSSESSES NOT MORE THAN 2 OUNCES OF MARIJUANA OR WHO POSSESSES PARAPHERNALIA ASSOCIATED WITH THE POSSESSION OF MARIJUANA, IS GUILTY OF A VIOLATION AND SHALL BE PUNISHED BY A FINE OF NOT MORE THAN FIVE HUNDRED DOLLARS ($500). IN ANY CASE IN WHICH A PERSON IS ARRESTED FOR A VIOLATION OF THIS SECTION, SUCH PERSON SHALL BE RELEASED BY THE ARRESTING OFFICER UPON PRESENTATION OF SATISFACTORY EVIDENCE OF IDENTITY AND GIVING HIS WRITTEN PROMISE TO APPEAR IN COURT, AND SHALL NOT BE SUBJECTED TO BOOKING.

  2. THE COURT MAY REQUIRE SUCH PERSONS TO ATTEND A DRUG EDUCATION PROGRAM IN ADDITION TO IMPOSITION OF A FINE.

  3. THE PROVISION OF § 13-901.01 SHALL NOT APPLY TO ANY PERSON WHO VIOLATES THIS SECTION AND SUCH PERSON SHALL BE SUBJECT ONLY TO THE PENALTIES IMPOSED BY THIS SECTION.

  4. Personal possession of not more than 2 ounces of marijuana, or personal possession or use of paraphernalia associated with personal possession of marijuana, shall not include possession for sale, production, manufacturing, or transportation for sale of marijuana.

 

Section 8.

Title 13, Chapter 6. Arizona Revised Statutes, is amended by adding § 13-610 to read as follows:

§ 13-610 MAXIMUM AND MINIMUM MANDATORY DRUG SENTENCING LAWS

A. NOTWITHSTANDING ANY LAW ANY TO THE CONTRARY, THE MAXIMUM PENALTY AND FINE FOR ANY CONVICTION OF A DRUG OFFENSE INCLUDED IN TITLE 13 IS INCREASED BY TWENTY PERCENT.

B. NOTWITHSTANDING ANY LAW TO THE CONTRARY, THERE SHALL BE NO MINIMUM MANDATORY PENALTY AND FINE FOR ANY CONVICTION OF A DRUG OFFENSE WHOSE MAXIMUM PENALTY IS INCREASED PURSUANT TO SUBSECTION A.

C. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO ANY PERSON CONVICTED PURSUANT TO THE PROVISIONS OF § 13-901.01, § 13-3405.1, § 13-3411, OR § 41-1604.15.

 

Section 9.

Title 41, Chapter 11. Arizona Revised Statutes, is amended by adding § 41-1604.18 to read as follows:

§ 41-1604.18 PAROLE ELIGIBILITY FOR PERSONS PREVIOUSLY CONVICTED OF PERSONAL POSSESSION OR USE OF A CONTROLLED SUBSTANCE

  1. Notwithstanding any law to the contrary, if a prisoner has been convicted of the personal possession or use of a controlled substance as defined in § 36-2501 and is not currently serving another sentence, the prisoner shall be eligible for parole.
  2. Any person who has previously been convicted of a violent crime as defined in § 13-604.04 shall not be eligible for parole pursuant to the provisions of this section.
  3. Personal possession or use of a controlled substance, as defined in § 36-2501, shall not include possession for sale, production, manufacture, or transportation for sale of any controlled substance.
  4. Within thirty (30) days of the effective date of this Act, the director of the state department of corrections shall prepare a list which identifies each person who is eligible for parole pursuant to the provisions of this section and deliver the list to the Board of Executive Clemency.

Section 10.

Title 31, Chapter 3. Arizona Revised Statutes, is amended by adding § 31-411.01 to read as follows:

§ 31-411.01 PAROLE FOR PERSONS PREVIOUSLY CONVICTED OF PERSONAL POSSESSION OR USE OF A CONTROLLED SUBSTANCE

A. NOTWITHSTANDING ANY LAW TO THE CONTRARY, EVERY PRISONER WHO IS ELIGIBLE FOR PAROLE PURSUANT TO THE PROVISIONS OF § 41-1604.18 SHALL BE RELEASED UPON PAROLE WITHIN NINETY (90) DAYS OF THE ISSUANCE OF THE LIST REQUIRED PURSUANT TO § 41-1604.18D PROVIDED, HOWEVER, THAT IF THE BOARD OF EXECUTIVE CLEMENCY DETERMINES BEYOND A REASONABLE DOUBT THAT A PRISONER SO ELIGIBLE WOULD BE A DANGER TO THE GENERAL PUBLIC, THAT PRISONER SHALL NOT BE RELEASED UPON PAROLE.

B. AS TO EACH PRISONER RELEASED UPON PAROLE PURSUANT TO THE PROVISIONS OF THIS SECTION, THE BOARD SHALL ORDER THAT AS A CONDITION OF PAROLE THE PERSON BE REQUIRED TO PARTICIPATE IN AN APPROPRIATE DRUG TREATMENT OR EDUCATION PROGRAM ADMINISTERED BY A QUALIFIED AGENCY OR ORGANIZATION THAT PROVIDES SUCH TREATMENTS TO PERSONS WHO ABUSE CONTROLLED SUBSTANCES. EACH PERSON ENROLLED IN A DRUG TREATMENT OR EDUCATION PROGRAM SHALL BE REQUIRED TO PAY FOR HIS OR HER PARTICIPATION IN THE PROGRAM TO THE EXTENT OF HIS OR HER FINANCIAL ABILITY.

C. EACH PERSON RELEASED UPON PAROLE PURSUANT TO THE PROVISIONS OF THIS SECTION SHALL REMAIN ON PAROLE UNLESS THE BOARD REVOKES PAROLE OR GRANTS AN ABSOLUTE DISCHARGE FROM PAROLE OR UNTIL THE PRISONER REACHES HIS OR HER INDIVIDUAL EARNED RELEASE CREDIT DATE PURSUANT TO SECTION 41-1604.10. WHEN THE PRISONER REACHES HIS OR HER INDIVIDUAL EARNED RELEASE CREDIT DATE, HIS OR HER PAROLE SHALL BE TERMINATED AND HE OR SHE SHALL NO LONGER BE UNDER THE AUTHORITY OF THE BOARD.

 

Section 11. Severability

If any provision of this Act, or part thereof, is for any reason held to be invalid or unconstitutional, the remaining sections shall not be affected but shall remain in full force and effect, and to this end the provisions of the Act are severable.

 

azdrug\10-20 INITIATIVE October 20, 1999

11:45 a.m.