If Indiana Senate Bill 347 Is Ever Passed, It Would Decriminalize Possession Of Up To Three Ounces Of Marijuana
Synopsis: Marijuana offenses. Provides that operating a vehicle with an inactive metabolite of marijuana, hashish, or hash oil in one’s body does not violate the impaired driving laws. Makes possession of less than three ounces of marijuana a Class C infraction. Makes possession of more than three ounces of marijuana a Class B misdemeanor, and makes the offense a Class A misdemeanor if the person has two or more prior convictions involving marijuana in the past five years. Requires a court to suspend a sentence imposed for possession of marijuana if the person does not have a previous conviction involving marijuana in the past five years, and requires a court to defer a sentence if the person pleads guilty to misdemeanor possession of marijuana. Makes the sale or delivery of more than three ounces of marijuana a Class A misdemeanor, and makes the offense a Class D or Class C felony under certain circumstances. Provides a defense if a person who delivers under ten pounds of marijuana does so for no consideration. Makes the public use or display of marijuana a Class B misdemeanor, and makes the offense a Class A misdemeanor if the person has two or more prior convictions for an offense involving marijuana in the past five years. Reduces the penalty for maintaining a common nuisance to a Class A misdemeanor if the only unlawful controlled substances involved were marijuana, hashish, or hash oil. Repeals the controlled substance excise tax. Makes conforming amendments.
Effective: July 1, 2012.
A BILL FOR AN ACT to amend the Indiana Code concerning criminal law and procedure.
(1) Operating a vehicle while under the influence of alcohol in violation of IC 9-30-5-1(a), IC 9-30-5-1(b), or section 15 of this chapter.
(2) Operating a vehicle while under the influence of a controlled substance or marijuana in violation of IC 9-30-5-1(c) or IC 9-30-5-1(d).
(3) Leaving the scene of an accident involving the driver’s commercial motor vehicle in violation of IC 9-26-1.
(4) Conviction of a felony involving the use of a commercial motor vehicle other than a felony described in subdivision (5).
(5) Use of a commercial motor vehicle in the commission of a felony under IC 35-48 involving manufacturing, distributing, or dispensing of a controlled substance.
(6) Violation of IC 9-30-5-2 through IC 9-30-5-8 involving operating a vehicle while intoxicated.
(7) Refusing to undergo testing for the enforcement of IC 9-30-5-1 or section 15 of this chapter.
(1) one hundred (100) milliliters of the person’s blood; or
(2) two hundred ten (210) liters of the person’s breath;
commits a Class C misdemeanor.
(b) A person who operates a vehicle with an alcohol concentration equivalent to at least fifteen-hundredths (0.15) gram of alcohol per:
(1) one hundred (100) milliliters of the person’s blood; or
(2) two hundred ten (210) liters of the person’s breath;
commits a Class A misdemeanor.
(c) This subsection does not apply to marijuana, hashish, or hash oil. A person who operates a vehicle with a controlled substance listed in schedule I or II of IC 35-48-2 or its metabolite in the person’s body commits a Class C misdemeanor.
(d) A person who operates a vehicle with marijuana, hashish, hash oil, or an active metabolite of marijuana, hashish, or hash oil in the person’s body commits a Class C misdemeanor.
(d) (e) It is a defense to subsection (c) or (d) that the accused person consumed the controlled substance under a valid prescription or order of a practitioner (as defined in IC 35-48-1) who acted in the course of the practitioner’s professional practice.
(1) Causes serious bodily injury to another person when operating a motor vehicle with an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol per:
(A) one hundred (100) milliliters of the person’s blood; or
(B) two hundred ten (210) liters of the person’s breath.
(2) Causes serious bodily injury to another person when operating a motor vehicle with a controlled substance listed inschedule I or II of IC 35-48-2 or its metabolite in the person’s body. This subdivision does not apply if the controlled substance is marijuana, hashish, or hash oil. or
(3) Causes serious bodily injury to another person when operating a motor vehicle with marijuana, hashish, hash oil, or an active metabolite of marijuana, hashish, or hash oil in the person’s body.
(3) (4) Causes serious bodily injury to another person when operating a motor vehicle while intoxicated.
commits a Class D felony. However, the offense is a Class C felony if the person has a previous conviction of operating while intoxicated within the five (5) years preceding the commission of the offense.
(b) A person who violates subsection (a) commits a separate offense for each person whose serious bodily injury is caused by the violation of subsection (a).
(c) It is a defense under subsection (a)(2) that the accused person consumed the controlled substance under a valid prescription or order of a practitioner (as defined in IC 35-48-1) who acted in the course of the practitioner’s professional practice.
(1) Causes the death of another person when operating a motor vehicle with an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol per:
(A) one hundred (100) milliliters of the person’s blood; or
(B) two hundred ten (210) liters of the person’s breath.
(2) Causes the death of another person when operating a motor vehicle with a controlled substance listed in schedule I or II of IC 35-48-2 or its metabolite in the person’s blood. This subdivision does not apply if the controlled substance is marijuana, hashish, or hash oil. or
(3) Causes the death of another person when operating a motor vehicle with marijuana, hashish, hash oil, or an active metabolite of marijuana, hashish, or hash oil in the person’s body.
(3) (4) Causes the death of another person when operating a motor vehicle while intoxicated.
commits a Class C felony. However, the offense is a Class B felony if the person has a previous conviction of operating while intoxicatedwithin the five (5) years preceding the commission of the offense, or if the person operated the motor vehicle when the person knew that the person’s driver’s license, driving privilege, or permit is suspended or revoked for a previous conviction for operating a vehicle while intoxicated.
(b) A person at least twenty-one (21) years of age who causes the death of another person when operating a motor vehicle: does any of the following commits a Class B felony:
(1) Causes the death of another person when operating a motor vehicle with an alcohol concentration equivalent to at least fifteen-hundredths (0.15) gram of alcohol per:
(A) one hundred (100) milliliters of the person’s blood; or
(B) two hundred ten (210) liters of the person’s breath. or
(2) Causes the death of another person when operating a motor vehicle with a controlled substance listed in schedule I or II of IC 35-48-2 or its metabolite in the person’s blood. This subdivision does not apply if the controlled substance is marijuana, hashish, or hash oil.
(3) Causes the death of another person when operating a motor vehicle with marijuana, hashish, hash oil, or an active metabolite of marijuana, hashish, or hash oil in the person’s body.
commits a Class B felony.
(c) A person who causes the death of a law enforcement animal (as defined in IC 35-46-3-4.5) when operating a motor vehicle: does any of the following commits a Class D felony:
(1) Causes the death of a law enforcement animal (as defined in IC 35-46-3-4.5) when operating a motor vehicle with an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol per:
(A) one hundred (100) milliliters of the person’s blood; or
(B) two hundred ten (210) liters of the person’s breath. or
(2) Causes the death of a law enforcement animal (as defined in IC 35-46-3-4.5) when operating a motor vehicle with a controlled substance listed in schedule I or II of IC 35-48-2 or its metabolite in the person’s blood. This subdivision does not apply if the controlled substance is marijuana, hashish, or hash oil.
(3) Causes the death of a law enforcement animal (as defined in IC 35-46-3-4.5) when operating a motor vehicle with marijuana, hashish, hash oil, or an active metabolite of marijuana, hashish, or hash oil in the person’s body.
commits a Class D felony.
(d) A person who violates subsection (a), (b), or (c) commits a separate offense for each person or law enforcement animal whose death is caused by the violation of subsection (a), (b), or (c).
(e) It is a defense under subsection (a)(2), (b)(2), or (c)(2) that the accused person consumed the controlled substance under a valid prescription or order of a practitioner (as defined in IC 35-48-1) who acted in the course of the practitioner’s professional practice.
(1) Dealing in cocaine or a narcotic drug (IC 35-48-4-1), unless the person received only minimal consideration as a result of the drug transaction.
(2) Dealing in methamphetamine (IC 35-48-4-1.1), unless the person received only minimal consideration as a result of the drug transaction.
(3) Dealing in a schedule I, II, III, IV, or V controlled substance (IC 35-48-4-2 through IC 35-48-4-4), unless the person received only minimal consideration as a result of the drug transaction.
(4) Dealing in marijuana, hash oil, hashish, salvia, or a synthetic cannabinoid (IC 35-48-4-10), unless the person received only minimal consideration as a result of the drug transaction.
(5) Dealing in marijuana (IC 35-48-4-10.1) as a felony, unless the person received only minimal consideration as a result of the drug transaction.
(1) engaged in or knowingly cooperated in fraud or material deception in order to obtain a certificate, including cheating on a certification examination;
(2) engaged in fraud or material deception in the course of professional services or activities;
(3) advertised services or goods in a false or misleading manner;
(4) falsified or knowingly allowed another person to falsify attendance records or certificates of completion of continuing education courses required under this article or rules adoptedunder this article;
(5) is convicted of a crime, if the act that resulted in the conviction has a direct bearing on determining if the certificate holder should be entrusted to provide emergency medical services;
(6) is convicted of violating IC 9-19-14.5;
(7) fails to comply and maintain compliance with or violates any applicable provision, standard, or other requirement of this article or rules adopted under this article;
(8) continues to practice if the certificate holder becomes unfit to practice due to:
(A) professional incompetence that includes the undertaking of professional activities that the certificate holder is not qualified by training or experience to undertake;
(B) failure to keep abreast of current professional theory or practice;
(C) physical or mental disability; or
(D) addiction to, abuse of, or dependency on alcohol or other drugs that endanger the public by impairing the certificate holder’s ability to practice safely;
(9) engages in a course of lewd or immoral conduct in connection with the delivery of services to the public;
(10) allows the certificate holder’s name or a certificate issued under this article to be used in connection with a person who renders services beyond the scope of that person’s training, experience, or competence;
(11) is subjected to disciplinary action in another state or jurisdiction on grounds similar to those contained in this chapter. For purposes of this subdivision, a certified copy of a record of disciplinary action constitutes prima facie evidence of a disciplinary action in another jurisdiction;
(12) assists another person in committing an act that would constitute a ground for disciplinary sanction under this chapter; or
(13) allows a certificate issued by the commission to be:
(A) used by another person; or
(B) displayed to the public when the certificate is expired, inactive, invalid, revoked, or suspended.
(b) The department of homeland security may issue an order under IC 4-21.5-3-6 to impose one (1) or more of the following sanctions if the department of homeland security determines that a certificate holder is subject to disciplinary sanctions under subsection (a):
(1) Revocation of a certificate holder’s certificate for a period not to exceed seven (7) years.
(2) Suspension of a certificate holder’s certificate for a period not to exceed seven (7) years.
(3) Censure of a certificate holder.
(4) Issuance of a letter of reprimand.
(5) Assessment of a civil penalty against the certificate holder in accordance with the following:
(A) The civil penalty may not exceed five hundred dollars ($500) per day per violation.
(B) If the certificate holder fails to pay the civil penalty within the time specified by the department of homeland security, the department of homeland security may suspend the certificate holder’s certificate without additional proceedings.
(6) Placement of a certificate holder on probation status and requirement of the certificate holder to:
(A) report regularly to the department of homeland security upon the matters that are the basis of probation;
(B) limit practice to those areas prescribed by the department of homeland security;
(C) continue or renew professional education approved by the department of homeland security until a satisfactory degree of skill has been attained in those areas that are the basis of the probation; or
(D) perform or refrain from performing any acts, including community restitution or service without compensation, that the department of homeland security considers appropriate to the public interest or to the rehabilitation or treatment of the certificate holder.
The department of homeland security may withdraw or modify this probation if the department of homeland security finds after a hearing that the deficiency that required disciplinary action is remedied or that changed circumstances warrant a modification of the order.
(c) If an applicant or a certificate holder has engaged in or knowingly cooperated in fraud or material deception to obtain a certificate, including cheating on the certification examination, the department of homeland security may rescind the certificate if it has been granted, void the examination or other fraudulent or deceptive material, and prohibit the applicant from reapplying for the certificate for a length of time established by the department of homeland security.
(d) The department of homeland security may deny certification to an applicant who would be subject to disciplinary sanctions under subsection (b) if that person were a certificate holder, has had disciplinary action taken against the applicant or the applicant’s certificate to practice in another state or jurisdiction, or has practiced without a certificate in violation of the law. A certified copy of the record of disciplinary action is conclusive evidence of the other jurisdiction’s disciplinary action.
(e) The department of homeland security may order a certificate holder to submit to a reasonable physical or mental examination if the certificate holder’s physical or mental capacity to practice safely and competently is at issue in a disciplinary proceeding. Failure to comply with a department of homeland security order to submit to a physical or mental examination makes a certificate holder liable to temporary suspension under subsection (i).
(f) Except as provided under subsection (a), subsection (g), and section 14.5 of this chapter, a certificate may not be denied, revoked, or suspended because the applicant or certificate holder has been convicted of an offense. The acts from which the applicant’s or certificate holder’s conviction resulted may be considered as to whether the applicant or certificate holder should be entrusted to serve the public in a specific capacity.
(g) The department of homeland security may deny, suspend, or revoke a certificate issued under this article if the individual who holds or is applying for the certificate is convicted of any of the following:
(1) Possession of cocaine or a narcotic drug under IC 35-48-4-6.
(2) Possession of methamphetamine under IC 35-48-4-6.1.
(3) Possession of a controlled substance under IC 35-48-4-7(a).
(4) Fraudulently obtaining a controlled substance under IC 35-48-4-7(b).
(5) Manufacture of paraphernalia as a Class D felony under IC 35-48-4-8.1(b).
(6) Dealing in paraphernalia as a Class D felony under IC 35-48-4-8.5(b).
(7) Possession of paraphernalia as a Class D felony under IC 35-48-4-8.3(b).
(8) Possession of marijuana, hash oil, hashish, salvia, or a synthetic cannabinoid as a Class D felony under IC 35-48-4-11.
(9) Maintaining a common nuisance under IC 35-48-4-13.
(10) An offense relating to registration, labeling, and prescription forms under IC 35-48-4-14.
(11) Conspiracy under IC 35-41-5-2 to commit an offense listedin subdivisions (1) through (10).
(12) Attempt under IC 35-41-5-1 to commit an offense listed in subdivisions (1) through (10).
(13) An offense in any other jurisdiction in which the elements of the offense for which the conviction was entered are substantially similar to the elements of an offense described by subdivisions (1) through (12).
(h) A decision of the department of homeland security under subsections (b) through (g) may be appealed to the commission under IC 4-21.5-3-7.
(i) The department of homeland security may temporarily suspend a certificate holder’s certificate under IC 4-21.5-4 before a final adjudication or during the appeals process if the department of homeland security finds that a certificate holder would represent a clear and immediate danger to the public’s health, safety, or property if the certificate holder were allowed to continue to practice.
(j) On receipt of a complaint or information alleging that a person certified under this chapter or IC 16-31-3.5 has engaged in or is engaging in a practice that is subject to disciplinary sanctions under this chapter, the department of homeland security must initiate an investigation against the person.
(k) The department of homeland security shall conduct a factfinding investigation as the department of homeland security considers proper in relation to the complaint.
(l) The department of homeland security may reinstate a certificate that has been suspended under this section if the department of homeland security is satisfied that the applicant is able to practice with reasonable skill, competency, and safety to the public. As a condition of reinstatement, the department of homeland security may impose disciplinary or corrective measures authorized under this chapter.
(m) The department of homeland security may not reinstate a certificate that has been revoked under this chapter.
(n) The department of homeland security must be consistent in the application of sanctions authorized in this chapter. Significant departures from prior decisions involving similar conduct must be explained in the department of homeland security’s findings or orders.
(o) A certificate holder may not surrender the certificate holder’s certificate without the written approval of the department of homeland security, and the department of homeland security may impose any conditions appropriate to the surrender or reinstatement of a surrendered certificate.
(p) For purposes of this section, “certificate holder” means a person
who holds:
(1) an unlimited certificate;
(2) a limited or probationary certificate; or
(3) an inactive certificate.
(1) Dealing in or manufacturing cocaine or a narcotic drug under IC 35-48-4-1.
(2) Dealing in methamphetamine under IC 35-48-4-1.1.
(3) Dealing in a schedule I, II, or III controlled substance under IC 35-48-4-2.
(4) Dealing in a schedule IV controlled substance under IC 35-48-4-3.
(5) Dealing in a schedule V controlled substance under IC 35-48-4-4.
(6) Dealing in a substance represented to be a controlled substance under IC 35-48-4-4.5.
(7) Knowingly or intentionally manufacturing, advertising, distributing, or possessing with intent to manufacture, advertise, or distribute a substance represented to be a controlled substance under IC 35-48-4-4.6.
(8) Dealing in a counterfeit substance under IC 35-48-4-5.
(9) Dealing in marijuana, hash oil, hashish, salvia, or a synthetic cannabinoid under IC 35-48-4-10(b).
(10) Dealing in marijuana as a felony under IC 35-48-4-10.1.
(10) (11) Conspiracy under IC 35-41-5-2 to commit an offense listed in subdivisions (1) through (9). this subsection.
(11) (12) Attempt under IC 35-41-5-1 to commit an offense listed in subdivisions (1) through (9). this subsection.
(12) (13) A crime of violence (as defined in IC 35-50-1-2(a)).
(13) (14) An offense in any other jurisdiction in which the elements of the offense for which the conviction was entered are substantially similar to the elements of an offense described under subdivisions (1) through(12). in this subsection.
(1) The state superintendent.
(2) Except as provided in subdivision (3), the superintendent of the school corporation that employs the licensed employee or the equivalent authority if a nonpublic school employs the licensed employee.
(3) The presiding officer of the governing body of the school corporation that employs the licensed employee, if the convicted licensed employee is the superintendent of the school corporation.
(b) The superintendent of a school corporation, presiding officer of the governing body, or equivalent authority for a nonpublic school shall immediately notify the state superintendent when the individual knows that a current or former licensed employee of the public school or nonpublic school has been convicted of an offense listed in subsection (c), or when the governing body or equivalent authority for a nonpublic school takes any final action in relation to an employee who engaged in any offense listed in subsection (c).
(c) The department, after holding a hearing on the matter, shall permanently revoke the license of a person who is known by the department to have been convicted of any of the following felonies:
(1) Kidnapping (IC 35-42-3-2).
(2) Criminal confinement (IC 35-42-3-3).
(3) Rape (IC 35-42-4-1).
(4) Criminal deviate conduct (IC 35-42-4-2).
(5) Child molesting (IC 35-42-4-3).
(6) Child exploitation (IC 35-42-4-4(b)).
(7) Vicarious sexual gratification (IC 35-42-4-5).
(8) Child solicitation (IC 35-42-4-6).
(9) Child seduction (IC 35-42-4-7).
(10) Sexual misconduct with a minor (IC 35-42-4-9).
(11) Incest (IC 35-46-1-3).
(12) Dealing in or manufacturing cocaine or a narcotic drug (IC 35-48-4-1).
(13) Dealing in methamphetamine (IC 35-48-4-1.1).
(14) Dealing in a schedule I, II, or III controlled substance (IC 35-48-4-2).
(15) Dealing in a schedule IV controlled substance (IC 35-48-4-3).
(16) Dealing in a schedule V controlled substance (IC 35-48-4-4).
(17) Dealing in a counterfeit substance (IC 35-48-4-5).
(18) Dealing in marijuana, hash oil, hashish, salvia, or a synthetic cannabinoid (IC 35-48-4-10(b)).
(19) Dealing in marijuana as a felony under IC 35-48-4-10.1.
(19) (20) Possession of child pornography (IC 35-42-4-4(c)).
(20) (21) Homicide (IC 35-42-1).
(21) (22) Voluntary manslaughter (IC 35-42-1-3).
(22) (23) Reckless homicide (IC 35-42-1-5).
(23) (24) Battery as any of the following:
(A) A Class A felony (IC 35-42-2-1(a)(5)).
(B) A Class B felony (IC 35-42-2-1(a)(4)).
(C) A Class C felony (IC 35-42-2-1(a)(3)).
(24) (25) Aggravated battery (IC 35-42-2-1.5).
(25) (26) Robbery (IC 35-42-5-1).
(26) (27) Carjacking (IC 35-42-5-2).
(27) (28) Arson as a Class A felony or a Class B felony (IC 35-43-1-1(a)).
(28) (29) Burglary as a Class A felony or a Class B felony (IC 35-43-2-1).
(29) (30) Attempt under IC 35-41-5-1 to commit an offense listed in subdivisions (1) through (28). this subsection.
(30) (31) Conspiracy under IC 35-41-5-2 to commit an offense listed in subdivisions (1) through (28). this subsection.
(d) The department, after holding a hearing on the matter, shall permanently revoke the license of a person who is known by the department to have been convicted of a federal offense or an offense in another state that is comparable to a felony listed in subsection (c).
(e) A license may be suspended by the state superintendent as specified in IC 20-28-7.5.
(f) The department shall develop a data base of information on school corporation employees who have been reported to the department under this section.
(1) engaged in or knowingly cooperated in fraud or material deception in order to obtain a license to practice, including cheating on a licensing examination;
(2) engaged in fraud or material deception in the course ofprofessional services or activities;
(3) advertised services or goods in a false or misleading manner;
(4) falsified or knowingly allowed another person to falsify attendance records or certificates of completion of continuing education courses provided under this chapter;
(5) been convicted of a crime that has a direct bearing on the practitioner’s ability to continue to practice competently;
(6) knowingly violated a state statute or rule or federal statute or regulation regulating the profession for which the practitioner is licensed;
(7) continued to practice although the practitioner has become unfit to practice due to:
(A) professional incompetence;
(B) failure to keep abreast of current professional theory or practice;
(C) physical or mental disability; or
(D) addiction to, abuse of, or severe dependency on alcohol or other drugs that endanger the public by impairing a practitioner’s ability to practice safely;
(8) engaged in a course of lewd or immoral conduct in connection with the delivery of services to the public;
(9) allowed the practitioner’s name or a license issued under this chapter to be used in connection with an individual or business who renders services beyond the scope of that individual’s or business’s training, experience, or competence;
(10) had disciplinary action taken against the practitioner or the practitioner’s license to practice in another state or jurisdiction on grounds similar to those under this chapter;
(11) assisted another person in committing an act that would constitute a ground for disciplinary sanction under this chapter; or
(12) allowed a license issued by the department to be:
(A) used by another person; or
(B) displayed to the public when the license has expired, is inactive, is invalid, or has been revoked or suspended.
For purposes of subdivision (10), a certified copy of a record of disciplinary action constitutes prima facie evidence of a disciplinary action in another jurisdiction.
(b) The department may impose one (1) or more of the following sanctions if the department finds that a practitioner is subject to disciplinary sanctions under subsection (a):
(1) Permanent revocation of a practitioner’s license.
(2) Suspension of a practitioner’s license.
(3) Censure of a practitioner.
(4) Issuance of a letter of reprimand.
(5) Assess a civil penalty against the practitioner in accordance with the following:
(A) The civil penalty may not be more than one thousand dollars ($1,000) for each violation listed in subsection (a), except for a finding of incompetency due to a physical or mental disability.
(B) When imposing a civil penalty, the department shall consider a practitioner’s ability to pay the amount assessed. If the practitioner fails to pay the civil penalty within the time specified by the department, the department may suspend the practitioner’s license without additional proceedings. However, a suspension may not be imposed if the sole basis for the suspension is the practitioner’s inability to pay a civil penalty.
(6) Place a practitioner on probation status and require the practitioner to:
(A) report regularly to the department upon the matters that are the basis of probation;
(B) limit practice to those areas prescribed by the department;
(C) continue or renew professional education approved by the department until a satisfactory degree of skill has been attained in those areas that are the basis of the probation; or
(D) perform or refrain from performing any acts, including community restitution or service without compensation, that the department considers appropriate to the public interest or to the rehabilitation or treatment of the practitioner.
The department may withdraw or modify this probation if the department finds after a hearing that the deficiency that required disciplinary action has been remedied or that changed circumstances warrant a modification of the order.
(c) If an applicant or a practitioner has engaged in or knowingly cooperated in fraud or material deception to obtain a license to practice, including cheating on the licensing examination, the department may rescind the license if it has been granted, void the examination or other fraudulent or deceptive material, and prohibit the applicant from reapplying for the license for a length of time established by the department.
(d) The department may deny licensure to an applicant who has had disciplinary action taken against the applicant or the applicant’s license to practice in another state or jurisdiction or who has practiced withouta license in violation of the law. A certified copy of the record of disciplinary action is conclusive evidence of the other jurisdiction’s disciplinary action.
(e) The department may order a practitioner to submit to a reasonable physical or mental examination if the practitioner’s physical or mental capacity to practice safely and competently is at issue in a disciplinary proceeding. Failure to comply with a department order to submit to a physical or mental examination makes a practitioner liable to temporary suspension under subsection (j).
(f) Except as provided under subsection (g) or (h), a license may not be denied, revoked, or suspended because the applicant or holder has been convicted of an offense. The acts from which the applicant’s or holder’s conviction resulted may, however, be considered as to whether the applicant or holder should be entrusted to serve the public in a specific capacity.
(g) The department may deny, suspend, or revoke a license issued under this chapter if the individual who holds the license is convicted of any of the following:
(1) Possession of cocaine or a narcotic drug under IC 35-48-4-6.
(2) Possession of methamphetamine under IC 35-48-4-6.1.
(3) Possession of a controlled substance under IC 35-48-4-7(a).
(4) Fraudulently obtaining a controlled substance under IC 35-48-4-7(b).
(5) Manufacture of paraphernalia as a Class D felony under IC 35-48-4-8.1(b).
(6) Dealing in paraphernalia as a Class D felony under IC 35-48-4-8.5(b).
(7) Possession of paraphernalia as a Class D felony under IC 35-48-4-8.3(b).
(8) Possession of marijuana, hash oil, hashish, salvia, or a synthetic cannabinoid as a Class D felony under IC 35-48-4-11.
(9) Maintaining a common nuisance under IC 35-48-4-13.
(10) An offense relating to registration, labeling, and prescription forms under IC 35-48-4-14.
(11) Conspiracy under IC 35-41-5-2 to commit an offense listed in subdivisions (1) through (10).
(12) Attempt under IC 35-41-5-1 to commit an offense listed in subdivisions (1) through (10).
(13) An offense in any other jurisdiction in which the elements of the offense for which the conviction was entered are substantially similar to the elements of an offense described in subdivisions (1) through (12).
(h) The department shall deny, revoke, or suspend a license issued under this chapter if the individual who holds the license is convicted of any of the following:
(1) Dealing in cocaine or a narcotic drug under IC 35-48-4-1.
(2) Dealing in methamphetamine under IC 35-48-4-1.1.
(3) Dealing in a schedule I, II, or III controlled substance under IC 35-48-4-2.
(4) Dealing in a schedule IV controlled substance under IC 35-48-4-3.
(5) Dealing in a schedule V controlled substance under IC 35-48-4-4.
(6) Dealing in a substance represented to be a controlled substance under IC 35-48-4-4.5.
(7) Knowingly or intentionally manufacturing, advertising, distributing, or possessing with intent to manufacture, advertise, or distribute a substance represented to be a controlled substance under IC 35-48-4-4.6.
(8) Dealing in a counterfeit substance under IC 35-48-4-5.
(9) Dealing in marijuana, hash oil, hashish, salvia, or a synthetic cannabinoid under IC 35-48-4-10(b).
(10) Dealing in marijuana as a felony under IC 35-48-4-10.1.
(10) (11) Conspiracy under IC 35-41-5-2 to commit an offense listed in subdivisions (1) through (9). this subsection.
(11) (12) Attempt under IC 35-41-5-1 to commit an offense listed in subdivisions (1) through (9). this subsection.
(12) (13) An offense in any other jurisdiction in which the elements of the offense for which the conviction was entered are substantially similar to the elements of an offense described in subdivisions (1) through (11).this subsection.
(13) (14) A violation of any federal or state drug law or rule related to wholesale legend drug distributors licensed under IC 25-26-14.
(i) A decision of the department under subsections (b) through (h) may be appealed to the commission under IC 4-21.5-3-7.
(j) The department may temporarily suspend a practitioner’s license under IC 4-21.5-4 before a final adjudication or during the appeals process if the department finds that a practitioner represents a clear and immediate danger to the public’s health, safety, or property if the practitioner is allowed to continue to practice.
(k) On receipt of a complaint or an information alleging that a person licensed under this chapter has engaged in or is engaging in a practice that jeopardizes the public health, safety, or welfare, thedepartment shall initiate an investigation against the person.
(l) Any complaint filed with the office of the attorney general alleging a violation of this licensing program shall be referred to the department for summary review and for its general information and any authorized action at the time of the filing.
(m) The department shall conduct a fact finding investigation as the department considers proper in relation to the complaint.
(n) The department may reinstate a license that has been suspended under this section if, after a hearing, the department is satisfied that the applicant is able to practice with reasonable skill, safety, and competency to the public. As a condition of reinstatement, the department may impose disciplinary or corrective measures authorized under this chapter.
(o) The department may not reinstate a license that has been revoked under this chapter. An individual whose license has been revoked under this chapter may not apply for a new license until seven (7) years after the date of revocation.
(p) The department shall seek to achieve consistency in the application of sanctions authorized in this chapter. Significant departures from prior decisions involving similar conduct must be explained in the department’s findings or orders.
(q) A practitioner may petition the department to accept the surrender of the practitioner’s license instead of having a hearing before the commission. The practitioner may not surrender the practitioner’s license without the written approval of the department, and the department may impose any conditions appropriate to the surrender or reinstatement of a surrendered license.
(r) A practitioner who has been subjected to disciplinary sanctions may be required by the commission to pay the costs of the proceeding. The practitioner’s ability to pay shall be considered when costs are assessed. If the practitioner fails to pay the costs, a suspension may not be imposed solely upon the practitioner’s inability to pay the amount assessed. The costs are limited to costs for the following:
(1) Court reporters.
(2) Transcripts.
(3) Certification of documents.
(4) Photo duplication.
(5) Witness attendance and mileage fees.
(6) Postage.
(7) Expert witnesses.
(8) Depositions.
(9) Notarizations.
(1) Possession of cocaine or a narcotic drug under IC 35-48-4-6.
(2) Possession of methamphetamine under IC 35-48-4-6.1.
(3) Possession of a controlled substance under IC 35-48-4-7(a).
(4) Fraudulently obtaining a controlled substance under IC 35-48-4-7(b).
(5) Manufacture of paraphernalia as a Class D felony under IC 35-48-4-8.1(b).
(6) Dealing in paraphernalia as a Class D felony under IC 35-48-4-8.5(b).
(7) Possession of paraphernalia as a Class D felony under IC 35-48-4-8.3(b).
(8) Possession of marijuana, hash oil, or hashish, salvia, or a synthetic cannabinoid as a Class D felony under IC 35-48-4-11.
(9) Maintaining a common nuisance under IC 35-48-4-13.
(10) An offense relating to registration, labeling, and prescription forms under IC 35-48-4-14.
(11) Conspiracy under IC 35-41-5-2 to commit an offense listed in subdivisions (1) through (10).
(12) Attempt under IC 35-41-5-1 to commit an offense listed in subdivisions (1) through (10).
(13) An offense in any other jurisdiction in which the elements of the offense for which the conviction was entered are substantially similar to the elements of an offense described under subdivisions (1) through (12).
(13) A sex crime under IC 35-42-4.
(14) A felony that reflects adversely on the individual’s fitness to hold a professional license.
(15) An offense in any other jurisdiction in which the elements of the offense for which the conviction was entered are substantially similar to the elements of an offense described in this section.
(1) Dealing in or manufacturing cocaine or a narcotic drug under IC 35-48-4-1.
(2) Dealing in methamphetamine under IC 35-48-4-1.1.
(3) Dealing in a schedule I, II, or III controlled substance under IC 35-48-4-2.
(4) Dealing in a schedule IV controlled substance under IC 35-48-4-3.
(5) Dealing in a schedule V controlled substance under IC 35-48-4-4.
(6) Dealing in a substance represented to be a controlled substance under IC 35-48-4-4.5.
(7) Knowingly or intentionally manufacturing, advertising, distributing, or possessing with intent to manufacture, advertise, or distribute a substance represented to be a controlled substance under IC 35-48-4-4.6.
(8) Dealing in a counterfeit substance under IC 35-48-4-5.
(9) Dealing in marijuana, hash oil, hashish, salvia, or a synthetic cannabinoid under IC 35-48-4-10(b).
(10) Dealing in marijuana as a felony under IC 35-48-4-10.1.
(10) (11) Conspiracy under IC 35-41-5-2 to commit an offense listed in subdivisions (1) through (9). this subsection.
(11) (12) Attempt under IC 35-41-5-1 to commit an offense listed in subdivisions (1) through (9). this subsection.
(12) (13) An offense in any other jurisdiction in which the elements of the offense for which the conviction was entered are substantially similar to the elements of an offense described in subdivisions (1) through (11).this subsection.
(13) (14) A violation of any federal or state drug law or rule related to wholesale legend drug distributors licensed under IC 25-26-14.
(1) All vehicles (as defined by IC 35-41-1), if they are used or are intended for use by the person or persons in possession of them to transport or in any manner to facilitate the transportation of thefollowing:
(A) A controlled substance for the purpose of committing, attempting to commit, or conspiring to commit any of the following:
(i) Dealing in or manufacturing cocaine or a narcotic drug (IC 35-48-4-1).
(ii) Dealing in methamphetamine (IC 35-48-4-1.1).
(iii) Dealing in a schedule I, II, or III controlled substance (IC 35-48-4-2).
(iv) Dealing in a schedule IV controlled substance (IC 35-48-4-3).
(v) Dealing in a schedule V controlled substance (IC 35-48-4-4).
(vi) Dealing in a counterfeit substance (IC 35-48-4-5).
(vii) Possession of cocaine or a narcotic drug (IC 35-48-4-6).
(viii) Possession of methamphetamine (IC 35-48-4-6.1).
(ix) Dealing in paraphernalia (IC 35-48-4-8.5).
(x) Dealing in marijuana, hash oil, hashish, salvia, or a synthetic cannabinoid (IC 35-48-4-10).
(xi) Dealing in marijuana as a misdemeanor or felony (IC 35-48-4-10.1).
(B) Any stolen (IC 35-43-4-2) or converted property (IC 35-43-4-3) if the retail or repurchase value of that property is one hundred dollars ($100) or more.
(C) Any hazardous waste in violation of IC 13-30-10-1.5.
(D) A bomb (as defined in IC 35-41-1-4.3) or weapon of mass destruction (as defined in IC 35-41-1-29.4) used to commit, used in an attempt to commit, or used in a conspiracy to commit an offense under IC 35-47 as part of or in furtherance of an act of terrorism (as defined by IC 35-41-1-26.5).
(2) All money, negotiable instruments, securities, weapons, communications devices, or any property used to commit, used in an attempt to commit, or used in a conspiracy to commit an offense under IC 35-47 as part of or in furtherance of an act of terrorism or commonly used as consideration for a violation of IC 35-48-4 (other than items subject to forfeiture under IC 16-42-20-5 or IC 16-6-8.5-5.1 before its repeal):
(A) furnished or intended to be furnished by any person in exchange for an act that is in violation of a criminal statute;
(B) used to facilitate any violation of a criminal statute; or
(C) traceable as proceeds of the violation of a criminal statute.
(3) Any portion of real or personal property purchased withmoney that is traceable as a proceed of a violation of a criminal statute.
(4) A vehicle that is used by a person to:
(A) commit, attempt to commit, or conspire to commit;
(B) facilitate the commission of; or
(C) escape from the commission of;
murder (IC 35-42-1-1), kidnapping (IC 35-42-3-2), criminal confinement (IC 35-42-3-3), rape (IC 35-42-4-1), child molesting (IC 35-42-4-3), or child exploitation (IC 35-42-4-4), or an offense under IC 35-47 as part of or in furtherance of an act of terrorism.
(5) Real property owned by a person who uses it to commit any of the following as a Class A felony, a Class B felony, or a Class C felony:
(A) Dealing in or manufacturing cocaine or a narcotic drug (IC 35-48-4-1).
(B) Dealing in methamphetamine (IC 35-48-4-1.1).
(C) Dealing in a schedule I, II, or III controlled substance (IC 35-48-4-2).
(D) Dealing in a schedule IV controlled substance (IC 35-48-4-3).
(E) Dealing in marijuana, hash oil, hashish, salvia, or a synthetic cannabinoid (IC 35-48-4-10).
(F) Dealing in marijuana (IC 35-48-4-10.1).
(6) Equipment and recordings used by a person to commit fraud under IC 35-43-5-4(10).
(7) Recordings sold, rented, transported, or possessed by a person in violation of IC 24-4-10.
(8) Property (as defined by IC 35-41-1-23) or an enterprise (as defined by IC 35-45-6-1) that is the object of a corrupt business influence violation (IC 35-45-6-2).
(9) Unlawful telecommunications devices (as defined in IC 35-45-13-6) and plans, instructions, or publications used to commit an offense under IC 35-45-13.
(10) Any equipment, including computer equipment and cellular telephones, used for or intended for use in preparing, photographing, recording, videotaping, digitizing, printing, copying, or disseminating matter in violation of IC 35-42-4.
(11) Destructive devices used, possessed, transported, or sold in violation of IC 35-47.5.
(12) Tobacco products that are sold in violation of IC 24-3-5, tobacco products that a person attempts to sell in violation of IC 24-3-5, and other personal property owned and used by aperson to facilitate a violation of IC 24-3-5.
(13) Property used by a person to commit counterfeiting or forgery in violation of IC 35-43-5-2.
(14) After December 31, 2005, if a person is convicted of an offense specified in IC 25-26-14-26(b) or IC 35-43-10, the following real or personal property:
(A) Property used or intended to be used to commit, facilitate, or promote the commission of the offense.
(B) Property constituting, derived from, or traceable to the gross proceeds that the person obtained directly or indirectly as a result of the offense.
(15) Except as provided in subsection (e), a motor vehicle used by a person who operates the motor vehicle:
(A) while intoxicated, in violation of IC 9-30-5-1 through IC 9-30-5-5, if in the previous five (5) years the person has two (2) or more prior unrelated convictions:
(i) for operating a motor vehicle while intoxicated in violation of IC 9-30-5-1 through IC 9-30-5-5; or
(ii) for an offense that is substantially similar to IC 9-30-5-1 through IC 9-30-5-5 in another jurisdiction; or
(B) on a highway while the person’s driver’s license is suspended in violation of IC 9-24-19-2 through IC 9-24-19-4, if in the previous five (5) years the person has two (2) or more prior unrelated convictions:
(i) for operating a motor vehicle while intoxicated in violation of IC 9-30-5-1 through IC 9-30-5-5; or
(ii) for an offense that is substantially similar to IC 9-30-5-1 through IC 9-30-5-5 in another jurisdiction.
If a court orders the seizure of a motor vehicle under this subdivision, the court shall transmit an order to the bureau of motor vehicles recommending that the bureau not permit a motor vehicle to be registered in the name of the person whose motor vehicle was seized until the person possesses a current driving license (as defined in IC 9-13-2-41).
(16) The following real or personal property:
(A) Property used or intended to be used to commit, facilitate, or promote the commission of an offense specified in IC 23-14-48-9, IC 30-2-9-7(b), IC 30-2-10-9(b), or IC 30-2-13-38(f).
(B) Property constituting, derived from, or traceable to the gross proceeds that a person obtains directly or indirectly as a result of an offense specified in IC 23-14-48-9, IC 30-2-9-7(b),IC 30-2-10-9(b), or IC 30-2-13-38(f).
(b) A vehicle used by any person as a common or contract carrier in the transaction of business as a common or contract carrier is not subject to seizure under this section, unless it can be proven by a preponderance of the evidence that the owner of the vehicle knowingly permitted the vehicle to be used to engage in conduct that subjects it to seizure under subsection (a).
(c) Equipment under subsection (a)(10) may not be seized unless it can be proven by a preponderance of the evidence that the owner of the equipment knowingly permitted the equipment to be used to engage in conduct that subjects it to seizure under subsection (a)(10).
(d) Money, negotiable instruments, securities, weapons, communications devices, or any property commonly used as consideration for a violation of IC 35-48-4 found near or on a person who is committing, attempting to commit, or conspiring to commit any of the following offenses shall be admitted into evidence in an action under this chapter as prima facie evidence that the money, negotiable instrument, security, or other thing of value is property that has been used or was to have been used to facilitate the violation of a criminal statute or is the proceeds of the violation of a criminal statute:
(1) IC 35-48-4-1 (dealing in or manufacturing cocaine or a narcotic drug).
(2) IC 35-48-4-1.1 (dealing in methamphetamine).
(3) IC 35-48-4-2 (dealing in a schedule I, II, or III controlled substance).
(4) IC 35-48-4-3 (dealing in a schedule IV controlled substance).
(5) IC 35-48-4-4 (dealing in a schedule V controlled substance) as a Class B felony.
(6) IC 35-48-4-6 (possession of cocaine or a narcotic drug) as a Class A felony, Class B felony, or Class C felony.
(7) IC 35-48-4-6.1 (possession of methamphetamine) as a Class A felony, Class B felony, or Class C felony.
(8) IC 35-48-4-10 (dealing in marijuana, hash oil, hashish, salvia, or a synthetic cannabinoid) as a Class C felony.
(9) IC 35-48-4-10.1 (dealing in marijuana) as a Class C felony.
(e) A motor vehicle operated by a person who is not:
(1) an owner of the motor vehicle; or
(2) the spouse of the person who owns the motor vehicle;
is not subject to seizure under subsection (a)(15) unless it can be proven by a preponderance of the evidence that the owner of the vehicle knowingly permitted the vehicle to be used to engage in conduct that subjects it to seizure under subsection (a)(15).
(b) “Documentary material” means any document, drawing, photograph, recording, or other tangible item containing compiled data from which information can be either obtained or translated into a usable form.
(c) “Enterprise” means:
(1) a sole proprietorship, corporation, limited liability company, partnership, business trust, or governmental entity; or
(2) a union, an association, or a group, whether a legal entity or merely associated in fact.
(d) “Pattern of racketeering activity” means engaging in at least two (2) incidents of racketeering activity that have the same or similar intent, result, accomplice, victim, or method of commission, or that are otherwise interrelated by distinguishing characteristics that are not isolated incidents. However, the incidents are a pattern of racketeering activity only if at least one (1) of the incidents occurred after August 31, 1980, and if the last of the incidents occurred within five (5) years after a prior incident of racketeering activity.
(e) “Racketeering activity” means to commit, to attempt to commit, to conspire to commit a violation of, or aiding and abetting in a violation of any of the following:
(1) A provision of IC 23-19, or of a rule or order issued under IC 23-19.
(2) A violation of IC 35-45-9.
(3) A violation of IC 35-47.
(4) A violation of IC 35-49-3.
(5) Murder (IC 35-42-1-1).
(6) Battery as a Class C felony (IC 35-42-2-1).
(7) Kidnapping (IC 35-42-3-2).
(8) Human and sexual trafficking crimes (IC 35-42-3.5).
(9) Child exploitation (IC 35-42-4-4).
(10) Robbery (IC 35-42-5-1).
(11) Carjacking (IC 35-42-5-2).
(12) Arson (IC 35-43-1-1).
(13) Burglary (IC 35-43-2-1).
(14) Theft (IC 35-43-4-2).
(15) Receiving stolen property (IC 35-43-4-2).
(16) Forgery (IC 35-43-5-2).
(17) Fraud (IC 35-43-5-4(1) through IC 35-43-5-4(10)).
(18) Bribery (IC 35-44-1-1).
(19) Official misconduct (IC 35-44-1-2).
(20) Conflict of interest (IC 35-44-1-3).
(21) Perjury (IC 35-44-2-1).
(22) Obstruction of justice (IC 35-44-3-4).
(23) Intimidation (IC 35-45-2-1).
(24) Promoting prostitution (IC 35-45-4-4).
(25) Professional gambling (IC 35-45-5-3).
(26) Maintaining a professional gambling site (IC 35-45-5-3.5(b)).
(27) Promoting professional gambling (IC 35-45-5-4).
(28) Dealing in or manufacturing cocaine or a narcotic drug (IC 35-48-4-1).
(29) Dealing in or manufacturing methamphetamine (IC 35-48-4-1.1).
(30) Dealing in a schedule I, II, or III controlled substance (IC 35-48-4-2).
(31) Dealing in a schedule IV controlled substance (IC 35-48-4-3).
(32) Dealing in a schedule V controlled substance (IC 35-48-4-4).
(33) Dealing in marijuana, hash oil, hashish, salvia, or a synthetic cannabinoid (IC 35-48-4-10).
(34) Dealing in marijuana as a felony or misdemeanor (IC 35-48-4-10.1).
(34) (35) Money laundering (IC 35-45-15-5).
(35) (36) A violation of IC 35-47.5-5.
(36) (37) A violation of any of the following:
(A) IC 23-14-48-9.
(B) IC 30-2-9-7(b).
(C) IC 30-2-10-9(b).
(D) IC 30-2-13-38(f).
(1) knowingly or intentionally:
(A) manufactures;
(B) finances the manufacture of;
(C) delivers; or
(D) finances the delivery of;
marijuana, hash oil, hashish, salvia, or a synthetic cannabinoid, pure or adulterated; or
(2) possesses, with intent to:
(A) manufacture;
(B) finance the manufacture of;
(C) deliver; or
(D) finance the delivery of;
marijuana, hash oil, hashish, salvia, or a synthetic cannabinoid, pure or adulterated;
commits dealing in marijuana, hash oil, hashish, salvia, or a synthetic cannabinoid, a Class A misdemeanor, except as provided in subsection (b).
(b) The offense is:
(1) a Class D felony if:
(A) the recipient or intended recipient is under eighteen (18) years of age;
(B) the amount involved is more than thirty (30) grams but less than ten (10) pounds of marijuana or more than two (2) grams but less than three hundred (300) grams of hash oil, hashish, salvia, or a synthetic cannabinoid; or
(C) the person has a prior conviction of an offense involving marijuana, hash oil, hashish, salvia, or a synthetic cannabinoid; and
(2) a Class C felony if the amount involved is ten (10) pounds or more of marijuana or three hundred (300) or more grams of hash oil, hashish, salvia, or a synthetic cannabinoid, or the person delivered or financed the delivery of marijuana, hash oil, hashish, salvia, or a synthetic cannabinoid:
(A) on a school bus; or
(B) in, on, or within one thousand (1,000) feet of:
(i) school property;
(ii) a public park;
(iii) a family housing complex; or
(iv) a youth program center.
(1) knowingly or intentionally:
(A) delivers; or
(B) finances the delivery of;
more than three (3) ounces of marijuana, pure or adulterated; or
(2) possesses, with intent to:
(A) deliver; or
(B) finance the delivery of;
more than three (3) ounces of marijuana;
commits dealing in marijuana, a Class A misdemeanor, except as provided in subsection (b) or (c).
(b) The offense is:
(1) a Class D felony if:
(A) the recipient or intended recipient is under eighteen (18) years of age;
(B) the amount involved is more than two (2) pounds but less than ten (10) pounds; or
(C) the person has a prior conviction of an offense involving the delivery of marijuana; and
(2) a Class C felony if the amount involved is ten (10) pounds or more.
(c) It is a defense to a prosecution under subsection (a) or (b) that the person who delivered the marijuana did so for no consideration.
(1) knowingly or intentionally possesses (pure or adulterated) marijuana, hash oil, hashish, salvia, or a synthetic cannabinoid
(2) knowingly or intentionally grows or cultivates marijuana; or
(3) knowing that marijuana is growing on the person’s premises, fails to destroy the marijuana plants;
commits possession of marijuana, hash oil, hashish, salvia, or a synthetic cannabinoid, a Class A misdemeanor. However, the offense is a Class D felony (i) if the amount involved is more than thirty (30) grams of marijuanaor two (2) grams of hash oil, hashish, salvia, or a synthetic cannabinoid, or (ii) if the person has a prior conviction of an offense involving marijuana, hash oil, or hashish, salvia, or a synthetic cannabinoid.
(b) Notwithstanding IC 35-50-3-1, a court shall suspend any sentence imposed on a person for a violation of this section if theperson does not have a prior conviction for an offense involving marijuana in the preceding five (5) years.
(c) It is a defense to a prosecution under this section that the person who possessed the marijuana:
(1) possessed the marijuana on the grounds of a research facility;
(2) is registered as a researcher with the Indiana department of agriculture; and
(3) possessed the marijuana solely for bona fide research into the industrial, agricultural, or scientific uses of marijuana.
(b) Notwithstanding IC 35-50-3-1, a court shall suspend any sentence imposed on a person for a violation of this section if the person does not have a prior conviction for an offense involving marijuana in the preceding five (5) years.
(b) It is a defense to an action under this section that the person who possessed the marijuana was not aware of the possession for a time sufficient for the person to have terminated the possession.
(1) may, if the offense relates to salvia or a synthetic cannabinoid; and
(2) shall, if the offense relates to marijuana, hashish, or hash oil;
defer further proceedings and place the person in the custody of thecourt under such conditions as the court determines. determined by the court. Upon violation of a condition of the custody, the court may enter a judgment of conviction. However, if the person fulfills the conditions of the custody, the court shall dismiss the charges against the person. There may be only one (1) dismissal under this section with respect to a person.
(b) A person who knowingly or intentionally maintains a building, structure, vehicle, or other place that is used one (1) or more times:
(1) by persons to unlawfully use controlled substances; or
(2) for unlawfully:
(A) manufacturing;
(B) keeping;
(C) offering for sale;
(D) selling;
(E) delivering; or
(F) financing the delivery of;
controlled substances, or items of drug paraphernalia as described in IC 35-48-4-8.5;
commits maintaining a common nuisance, a Class D felony. However, the offense is a Class A misdemeanor if the only unlawful controlled substances involved were marijuana, hashish, or hash oil.
(1) IC 35-48-4-10;
(2) IC 35-48-4-10.1;
(3) IC 35-48-4-11; or
(4) IC 35-48-4-11.1;
unless the offense is a Class C felony.
(a) (b) As used in this section:
(1) “Drug” means a drug or a controlled substance (as defined in IC 35-48-1).
(2) “Substance offense” means a Class A misdemeanor or a felonyin which the possession, use, abuse, delivery, transportation, or manufacture of alcohol or drugs is a material element of the crime. The term includes an offense under IC 9-30-5 and an offense under IC 9-11-2 (before its repeal).
(b) (c) The state may seek to have a person sentenced as a habitual substance offender for any substance offense by alleging, on a page separate from the rest of the charging instrument, that the person has accumulated two (2) prior unrelated substance offense convictions.
(c) (d) After a person has been convicted and sentenced for a substance offense committed after sentencing for a prior unrelated substance offense conviction, the person has accumulated two (2) prior unrelated substance offense convictions. However, a conviction does not count for purposes of this subsection if:
(1) it has been set aside; or
(2) it is a conviction for which the person has been pardoned.
(d) (e) If the person was convicted of the substance offense in a jury trial, the jury shall reconvene for the sentencing hearing. If the trial was to the court, or the judgment was entered on a guilty plea, the court alone shall conduct the sentencing hearing, under IC 35-38-1-3.
(e) (f) A person is a habitual substance offender if the jury (if the hearing is by jury) or the court (if the hearing is to the court alone) finds that the state has proved beyond a reasonable doubt that the person had accumulated two (2) prior unrelated substance offense convictions.
(f) (g) The court shall sentence a person found to be a habitual substance offender to an additional fixed term of at least three (3) years but not more than eight (8) years imprisonment, to be added to the term of imprisonment imposed under IC 35-50-2 or IC 35-50-3. If the court finds that:
(1) three (3) years or more have elapsed since the date the person was discharged from probation, imprisonment, or parole (whichever is later) for the last prior unrelated substance offense conviction and the date the person committed the substance offense for which the person is being sentenced as a habitual substance offender; or
(2) all of the substance offenses for which the person has been convicted are substance offenses under IC 16-42-19 or IC 35-48-4, the person has not been convicted of a substance offense listed in section 2(b)(4) of this chapter, and the total number of convictions that the person has for:
(A) dealing in or selling a legend drug under IC 16-42-19-27;
(B) dealing in cocaine or a narcotic drug (IC 35-48-4-1);
(C) dealing in a schedule I, II, or III controlled substance (IC 35-48-4-2);
(D) dealing in a schedule IV controlled substance (IC 35-48-4-3); and
(E) dealing in a schedule V controlled substance (IC 35-48-4-4);
does not exceed one (1);
then the court may reduce the additional fixed term. However, the court may not reduce the additional fixed term to less than one (1) year.
(g) (h) If a reduction of the additional year fixed term is authorized under subsection (f), (g), the court may also consider the aggravating or circumstances in IC 35-38-1-7.1(a) and the mitigating circumstances in IC 35-38-1-7.1(b) to:
(1) decide the issue of granting a reduction; or
(2) determine the number of years, if any, to be subtracted under subsection (f). (g).
