HB2424 - 541R

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

Section 1. Section 13-604, Arizona Revised Statutes, is amended to read:

START_STATUTE13-604. Class 6 felony; designation

A. Notwithstanding any other provision of this title, if a person is convicted of any class 6 felony not involving a dangerous offense and if the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that it would be unduly harsh to sentence the defendant for a felony, the court may enter judgment of conviction for a class 1 misdemeanor and make disposition accordingly or may place the defendant on probation in accordance with chapter 9 of this title and refrain from designating the offense as a felony or misdemeanor until the probation is terminated. The offense shall be treated as a felony misdemeanor for all purposes until such time as the court may actually enter an order designating the offense a misdemeanor felony. This subsection does not apply to any person who stands convicted of a class 6 felony and who has previously been convicted of two or more felonies.

B. If a crime or public offense is punishable in the discretion of the court by a sentence as a class 6 felony or a class 1 misdemeanor, the offense shall be deemed a misdemeanor if the prosecuting attorney files any of the following:

1. An information in superior court designating the offense as a misdemeanor.

2. A complaint in justice court or municipal court designating the offense as a misdemeanor within the jurisdiction of the respective court.

3. A complaint, with the consent of the defendant, before or during the preliminary hearing amending the complaint to charge a misdemeanor. END_STATUTE

Sec. 2. Section 13-3403, Arizona Revised Statutes, is amended to read:

START_STATUTE13-3403. Possession and sale of a vapor‑releasing substance containing a toxic substance; regulation of sale; exceptions; classification

A. A person shall not knowingly:

1. Breathe, inhale or drink a vapor‑releasing substance containing a toxic substance.

2. Sell, transfer or offer to sell or transfer a vapor‑releasing substance containing a toxic substance to a person who is under eighteen years of age.

3. Sell, transfer or offer to sell or transfer a vapor‑releasing substance containing a toxic substance if such the person is not, at the time of sale, transfer or offer, employed by or engaged in operating a licensed commercial establishment at a fixed location regularly offering such substance for sale and such the sale, transfer or offer is made in the course of employment or operation.

B. A person making a sale or transfer of a vapor‑releasing glue containing a toxic substance shall:

1. Require identification of the purchaser and shall record:

1. (a) The name of the glue.

2. (b) The date and hour of delivery.

3. (c) The intended use of the glue.

4. (d) The signature and address of the purchaser.

5. (e) The signature of the seller or deliverer.

Such record shall be kept

2. Keep the record prescribed in paragraph 1 of this subsection for three years and be make the record available to board inspectors and peace officers.

C. The operator of a commercial establishment shall keep all vapor‑releasing glue containing a toxic substance in a place that is unavailable to customers without the assistance of the operator or an employee of the establishment.

D. The operator of a commercial establishment selling vapor‑releasing paints and varnishes containing a toxic substance dispensed by the use of any aerosol spray device shall conspicuously display an easily legible sign of not less than eleven by fourteen inches which that states: "Warning: inhalation of vapors can be dangerous".

E. This section is not applicable to the transfer of a vapor‑releasing substance containing a toxic substance from a parent or guardian to his the parent's or guardian's child or ward, or the sale or transfer made for manufacturing or industrial purposes.

F. Subsection A, paragraphs 2 and 3 and subsections B and C of this section do not apply to substances certified by the department of health services as containing an additive that inhibits inhalation or induces sneezing.

G. A person who violates any provision of this section is guilty of a class 5 felony, but the court, having regard to the nature and circumstances of the offense, may enter judgment of conviction for a class 1 misdemeanor and make disposition accordingly or may place the defendant on probation in accordance with chapter 9 of this title and refrain from designating the offense as a felony or misdemeanor until the probation is terminated. The offense shall be treated as a felony misdemeanor for all purposes until such time as the court enters an order designating the offense a misdemeanor felony.

H. For the purposes of subsections A and E of this section, "vapor‑releasing substance containing a toxic substance" means paint or varnish dispensed by the use of aerosol spray, or any glue, that releases vapors or fumes containing acetone, volatile acetates, benzene, butyl alcohol, ethyl alcohol, ethylene dichloride, isopropyl alcohol, methyl alcohol, methyl ethyl ketone, pentachlorophenol, petroleum ether, toluene, volatile ketones, isophorone, chloroform, methylene chloride, mesityl oxide, xylene, cumene, ethylbenzene, trichloroethylene, mibk, miak, mek or diacetone alcohol or isobutyl nitrite. END_STATUTE

Sec. 3. Section 13-3403.01, Arizona Revised Statutes, is amended to read:

START_STATUTE13-3403.01. Nitrous oxide containers; sale to minors; classification

A. A person shall not knowingly sell, give or deliver to a person who is under eighteen years of age any container exclusively containing nitrous oxide, unless the person who is under eighteen years of age is delivering or accepting delivery in the person's capacity as an employee.

B. A person who violates this section is guilty of a class 5 felony unless the court does either of the following:

1. Enters a judgment of conviction for a class 1 misdemeanor and makes disposition accordingly.

2. Places the person on probation in accordance with chapter 9 of this title and refrains from designating the offense as a felony or misdemeanor until the probation is terminated. The offense shall be treated as a felony misdemeanor for all purposes until such time as the court may actually enter an order designating the offense as a misdemeanor felony.END_STATUTE

Sec. 4. Section 13-3407, Arizona Revised Statutes, is amended to read:

START_STATUTE13-3407. Possession, use, administration, acquisition, sale, manufacture or transportation of dangerous drugs; classification

A. A person shall not knowingly:

1. Possess or use a dangerous drug.

2. Possess a dangerous drug for sale.

3. Possess equipment or chemicals, or both, for the purpose of manufacturing a dangerous drug.

4. Manufacture a dangerous drug.

5. Administer a dangerous drug to another person.

6. Obtain or procure the administration of a dangerous drug by fraud, deceit, misrepresentation or subterfuge.

7. Transport for sale, import into this state or offer to transport for sale or import into this state, sell, transfer or offer to sell or transfer a dangerous drug.

B. A person who violates:

1. Subsection A, paragraph 1 of this section is guilty of a class 4 felony. Unless the drug involved is lysergic acid diethylamide, methamphetamine, amphetamine or phencyclidine or the person was previously convicted of a felony offense or a violation of this section or section 13‑3408, the court on motion of the state, considering the nature and circumstances of the offense, for a person not previously convicted of any felony offense or a violation of this section or section 13‑3408 may enter judgment of conviction for a class 1 misdemeanor and make disposition accordingly or may place the defendant on probation in accordance with chapter 9 of this title and refrain from designating the offense as a felony or misdemeanor until the probation is successfully terminated. The offense shall be treated as a felony misdemeanor for all purposes until the court enters an order designating the offense a misdemeanor felony.

2. Subsection A, paragraph 2 of this section is guilty of a class 2 felony.

3. Subsection A, paragraph 3 of this section is guilty of a class 3 felony, except that if the offense involved methamphetamine, the person is guilty of a class 2 felony.

4. Subsection A, paragraph 4 of this section is guilty of a class 2 felony.

5. Subsection A, paragraph 5 of this section is guilty of a class 2 felony.

6. Subsection A, paragraph 6 of this section is guilty of a class 3 felony.

7. Subsection A, paragraph 7 of this section is guilty of a class 2 felony.

C. Except as provided in subsection E of this section, a person who is convicted of a violation of subsection A, paragraph 1, 3 or 6 and who has not previously been convicted of any felony or who has not been sentenced pursuant to section 13‑703, section 13‑704, section 13‑706, subsection A, section 13‑708, subsection D or any other law making the convicted person ineligible for probation is eligible for probation.

D. Except as provided in subsection E of this section, if the aggregate amount of dangerous drugs involved in one offense or all of the offenses that are consolidated for trial equals or exceeds the statutory threshold amount, a person who is convicted of a violation of subsection A, paragraph 2, 5 or 7 of this section is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis until the person has served the sentence imposed by the court, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted.

E. If the person is convicted of a violation of subsection A, paragraph 2, 3, 4 or 7 of this section and the drug involved is methamphetamine, the person shall be sentenced as follows:

Minimum Presumptive Maximum

5 calendar years 10 calendar years 15 calendar years

A person who has previously been convicted of a violation of subsection A, paragraph 2, 3, 4 or 7 of this section involving methamphetamine or section 13‑3407.01 shall be sentenced as follows:

Minimum Presumptive Maximum

10 calendar years 15 calendar years 20calendar years

F. A person who is convicted of a violation of subsection A, paragraph 4 of this section or subsection A, paragraph 2, 3 or 7 of this section involving methamphetamine is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis until the person has served the sentence imposed by the court, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted.

G. If a person is convicted of a violation of subsection A, paragraph 5 of this section, if the drug is administered without the other person's consent, if the other person is under eighteen years of age and if the drug is flunitrazepam, gamma hydroxy butrate or ketamine hydrochloride, the convicted person is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis until the person has served the sentence imposed by the court, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted.

H. In addition to any other penalty prescribed by this title, the court shall order a person who is convicted of a violation of this section to pay a fine of not less than one thousand dollars $1,000 or three times the value as determined by the court of the dangerous drugs involved in or giving rise to the charge, whichever is greater, and not more than the maximum authorized by chapter 8 of this title. A judge shall not suspend any part or all of the imposition of any fine required by this subsection.

I. A person who is convicted of a violation of this section for which probation or release before the expiration of the sentence imposed by the court is authorized is prohibited from using any marijuana, dangerous drug, narcotic drug or prescription‑only drug except as lawfully administered by a health care practitioner and as a condition of any probation or release shall be required to submit to drug testing administered under the supervision of the probation department of the county or the state department of corrections, as appropriate, during the duration of the term of probation or before the expiration of the sentence imposed.

J. If a person who is convicted of a violation of this section is granted probation, the court shall order that as a condition of probation the person perform not less than three hundred sixty hours of community restitution with an agency or organization that provides counseling, rehabilitation or treatment for alcohol or drug abuse, an agency or organization that provides medical treatment to persons who abuse controlled substances, an agency or organization that serves persons who are victims of crime or any other appropriate agency or organization.

K. The presumptive term imposed pursuant to subsection E of this section may be mitigated or aggravated pursuant to section 13‑701, subsections D and E. END_STATUTE