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      RS 40:967     

  

§967. Prohibited acts--Schedule II, penalties

            A. Manufacture; distribution. Except as authorized by this Part or by Part VII-B of Chapter 5 of Title 40 of the Louisiana Revised Statutes of 1950, it shall be unlawful for any person knowingly or intentionally:

            (1) To produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule II.

            (2) To create, distribute, or possess with intent to distribute, a counterfeit controlled dangerous substance classified in Schedule II.

            B. Violations of Subsection A. Any person who violates Subsection A of this Section with respect to:

            (1) Except as otherwise provided in Paragraphs (2), (3), and (4) of this Subsection, a substance classified in Schedule II for an amount of:

            (a) An aggregate weight of less than twenty-eight grams, shall be imprisoned, with or without hard labor, for not less than one year nor more than ten years and may, in addition, be fined not more than fifty thousand dollars.

            (b) An aggregate weight of twenty-eight grams or more, shall be imprisoned at hard labor for not less than one year nor more than twenty years and may, in addition, be fined not more than fifty thousand dollars.

            (2)(a) Production or manufacturing of amphetamine or methamphetamine shall be sentenced to imprisonment at hard labor for not less than ten years nor more than thirty years, at least ten years of which shall be served without benefit of parole, probation, or suspension of sentence, and in addition may be sentenced to pay a fine of not more than five hundred thousand dollars.

            (b) This Subparagraph shall be cited as the "Child Endangerment Law". When the state proves in addition to the elements of the crime as set forth in Subsection A of this Section that a minor child twelve years of age or younger is present in the home, mobile home or other inhabited dwelling at the time of the commission of the offense, the minimum mandatory sentence shall be fifteen years without benefit of parole, probation, or suspension of sentence.

            (3) Production or manufacturing of cocaine or cocaine base or a mixture or substance containing cocaine or its analogues as provided in Schedule II(A)(4) of R.S. 40:964 or oxycodone as provided in Schedule II(A)(1)(p) of R.S. 40:964 or methadone as provided in Schedule II(B)(15) of R.S. 40:964 shall be sentenced to imprisonment at hard labor for not less than ten nor more than thirty years, at least ten years of which shall be served without benefit of parole, probation, or suspension of sentence, and may be fined not more than five hundred thousand dollars.

            (4) Fentanyl or a mixture or substance containing a detectable amount of fentanyl or its analogues, or carfentanil or a mixture or substance containing a detectable amount of carfentanil or its analogues, upon conviction for any amount, shall be imprisoned at hard labor for not less than five years nor more than forty years and may, in addition, be required to pay a fine of not more than fifty thousand dollars.

            C. Possession. It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance as classified in Schedule II unless such substance was obtained directly or pursuant to a valid prescription or order from a practitioner, as provided in R.S. 40:978 while acting in the course of his professional practice, or except as otherwise authorized by this Part. Any person who violates this Subsection with respect to:

            (1) An aggregate weight of less than two grams, shall be imprisoned, with or without hard labor, for not more than two years and, in addition, may be sentenced to pay a fine of not more than five thousand dollars.

            (2) An aggregate weight of two grams or more but less than twenty-eight grams shall be imprisoned, with or without hard labor, for not less than one year nor more than five years and, in addition, may be sentenced to pay a fine of not more than five thousand dollars.

            (3) Phencyclidine, for an amount of an aggregate weight of less than twenty-eight grams, shall be imprisoned at hard labor for not less than one year nor more than twenty years, or required to pay a fine of not more than five thousand dollars, or both.

            (4) Fentanyl or a mixture or substance containing a detectable amount of fentanyl or its analogues, or carfentanil or a mixture or substance containing a detectable amount of carfentanil or its analogues, upon conviction for an amount of:

            (a) An aggregate weight of less than two grams, shall be imprisoned, with or without hard labor, for not less than two years nor more than four years.

            (b) An aggregate weight of two grams or more but less than twenty-eight grams, shall be imprisoned, with or without hard labor, for not less than two years nor more than ten years and may, in addition, be required to pay a fine of not more than five thousand dollars.

            D. If a person knowingly or intentionally possesses a controlled substance as classified in Schedule II, unless such substance was obtained directly or pursuant to a valid prescription or order from a practitioner, as provided in R.S. 40:978 while acting in the course of his professional practice, where the amount of the controlled substance is an aggregate weight of twenty-eight grams or more, it shall be considered a violation of Subsection A of this Section.

            E. Treatment for fentanyl or carfentanil addiction as a condition for probation.

            (1) Upon conviction of Paragraph (B)(4) or (C)(4) of this Section, possession with intent to distribute fentanyl or carfentanil or possession of fentanyl or carfentanil, the court may suspend any sentence which it imposes and place the defendant on probation pursuant to Article 893 of the Code of Criminal Procedure. The court may order the division of probation and parole of the Department of Public Safety and Corrections to conduct a presentence investigation, or may order the defendant to obtain a substance abuse evaluation, for the purpose of determining whether the defendant has a substance abuse disorder.

            (2) Upon receiving the report or evaluation, the court shall, if it finds probable cause from such report to believe the defendant has a substance abuse disorder, order a contradictory hearing for the purpose of making a judicial determination on whether the defendant has a substance abuse disorder.

            (3) If, at such contradictory hearing, the court determines that the defendant has a substance abuse disorder, it shall require as a condition of probation that the defendant complete a drug treatment program if the following conditions are met:

            (a) There is an available program in the local jurisdiction that has sufficient experience in working with criminal justice participants with substance abuse disorders and is certified and approved by the state of Louisiana.

            (b) The cost of the approved treatment does not create a substantial financial hardship to the defendant or his dependents. For purposes of this determination, "substantial financial hardship" shall have the same meaning as provided in R.S. 15:175.

            (4) If the offender does not successfully complete the drug treatment program, or otherwise violates the conditions of his probation, the court may revoke the probation or impose other sanctions pursuant to Article 900 of the Code of Criminal Procedure.

            Amended by Acts 1991, 1st E.S., No. 2, §1; Acts 1991, No. 100, §1; Acts 1991, No. 513, §2; Acts 1993, No. 969, §1; Acts 1994, 3rd Ex. Sess., No. 77, §1; Acts 1997, No. 1284, §1; Acts 1999, No. 1194, §1; Acts 2000, 1st Ex. Sess., No. 13, §1, eff. April 13, 2000; Acts 2001, No. 403, §4, eff. June 15, 2001; Acts 2001, No. 1036, §1; Acts 2002, 1st Ex. Sess., No. 45, §1, eff. April 18, 2002; Acts 2003, No. 761, §1; Acts 2005, No. 337, §2; Acts 2006, No. 68, §2; Acts 2008, No. 477, §1; Acts 2017, No. 281, §§2, 3; Acts 2018, No. 677, §1.



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