Missouri Revised Criminal Code. Senate Bill 491 and House Bill 1371 (2014)

Transcription

1 Missouri Revised Criminal Code Senate Bill 491 and House Bill 1371 (2014)

2 In proportion to the importance of the criminal law, ought also to be the care and attention of the legislature in properly forming and enforcing it. It should be founded upon principles that are permanent, uniform, and universal; and always comformable to the dictates of truth and justice, the feelings of humanity, and the indelible rights of mankind: though it may sometimes (provided there be no transgressions of these eternal boundaries) may [be] modified, narrowed, or enlarged, according to the local or occasional necessities of the state which it is meant to govern. Sir William Blackstone, Commentaries on the Laws of England Useless laws weaken the necessary laws. Montesquieu, The Spirit of the Laws The minute you read something that you can t understand, you can almost be sure that it was drawn up by a lawyer. Will Rogers Page 2

3 THE ORIGINAL MISSOURI CRIMINAL CODE (ca ) The basic criminal code of Missouri was enacted in 1835, but a Criminal Code in the modern sense was never compiled during the following century and more. In 1969, Attorney General John C. Danforth initiated the formation of a 28-member committee judges, lawyers and legislators to study the revision of the Missouri criminal code. In October 1973, the Committee to Draft a Modern Criminal Code completed its work. During the 1974 legislative session, proposed Criminal Code bills were filed, based on the work of the Committee. The Criminal Code bills (approximately 299 pages) were reintroduced in Near the end of session, a filibuster prevented reconciliation of the Senate- and House-approved versions. The following year, two Criminal Code bills (approximately 280 pages) were reintroduced once again, but during nine days of floor debate, opponents blocked Senate consideration of the bill. In 1976, the original sponsor, Senator Ike Skelton (D-Lexington) was elected to Congress, but Senator George Murray (R-St. Louis County) re-filed Senate Bill 60 in the 1977 session. On June 15, the General Assembly approved the 328-page Senate bill: 30 yeas and 2 nays in the Senate, and 141 ayes and 17 noes in the House. Governor Teasdale signed it into law on July 6, On January 1, 1979, the new Missouri Criminal Code took effect. THE REVISED MISSOURI CRIMINAL CODE (ca ) The Revised Criminal Code will be the first complete revision since the passage of Missouri's first Criminal Code in 1977, and its provisions will take effect on January 1, Work on the Revised Criminal Code was initiated in 2008 by a subcommittee of the Missouri Bar Association s Criminal Law Committee. The draft Criminal Code revision prepared by the Code Revision Subcommittee served as the foundation for subsequent legislative efforts. Early in the 2012, two bills were introduced: SB 872 (Justus) and HB 1897 (Cox). No action, beyond referral to committees, was taken in either chamber. However, during the same session, the General Assembly established a Joint Committee on the Missouri Criminal Code. Early in session, Senator Jack Goodman had introduced SB 445, proposing the statutory establishment of a Joint Committee on the Missouri Criminal Code. A hearing was never conducted on the bill. Later in session, Senator Rob Mayer introduced Senate Concurrent Resolution 28, also establishing a Joint Interim Committee on the Missouri Criminal Code. The House adopted SCR 28 on May 2, The Joint Interim Committee was charged with conducting a comprehensive review of the Missouri Criminal Code and the Missouri Bar Association's recommendations for revising the Code, examining any other relevant issues, and recommending ways to improve the cohesiveness, consistency, and effectiveness of the state's criminal laws. Co-chaired by Senator Jolie Justus and Representative Stanley Cox, the committee consisted of six members three senators and three representatives. Over the course of six hearings held in September and October, members of the joint committee heard testimony from a wide variety of witnesses, including prosecutors, public defenders and other criminal defense attorneys, criminal offenders, victims, and advocacy groups. The joint committee completed its task and submitted its report in November of The Criminal Code revision bills were reintroduced during the 2013 legislative session as House Bill 210 (Cox) and Senate Bill 253 (Justus). After seven committee hearings, the House Committee on Judiciary forwarded the bill to the floor for consideration and debate. The full House of Representatives approved HB 210 by a vote of 150 in favor and 7 opposed. Concurrently, the Senate Judiciary Committee conducted four hearings on the companion SB 253 and one hearing on HB 210. With mere weeks remaining in the 2013 session, and considering the scope and length of the bills, sponsors and Senate leadership determined it prudent to defer debate on the Revised Criminal Code until the 2014 session. During the interim, the Senate Judiciary Committee formed a Subcommittee on the Missouri Criminal Code to superintend the preparation of resource materials for legislators, and, in September, conducted an additional hearing on the Revised Criminal Code at The Missouri Bar Annual Meeting. Page 3

4 In 2014, the Criminal Code revisions bills were reintroduced as Senate Bill 491 (Justus and Dixon) and House Bill 1371 (Cox). The Senate Judiciary Committee conducted two hearings on SB 491 and approved a committee substitute on February 3, On March 11, 2014, floor debate began. During the legislative spring recess, a floor substitute was prepared and offered on April 7, The floor substitute, with two perfecting amendments, was adopted the same day. On April 10, 2014, SS SCS SB 491 was third read and passed by a vote of 29 yeas and 3 nays. The House Judiciary Committee conducted a public hearing and, on January 29, 2014, approved a committee substitute for HB On April 8, 2014, the bill was taken up for perfection by the full House and adopted, with two perfecting amendments. Two days later, HCS HB 1371 was third read and passed by a vote of 130 to 24. Therefore, by April 10, 2014, each chamber had approved a version of the Revised Criminal Code. The primary sponsors considered the differences between the House and Senate bills and crafted a consensus committee substitute to be considered by each chamber. The House acted swiftly, moving the Senate bill from committee to the floor for debate in the space of two weeks. On April 24, 2014, the House third read and passed HCS SS SCS SB 491, as amended, by a vote of 140 ayes and 15 noes, a greater margin than the vote on the original House bill. That same day, the Senate concurred in the House changes. The Senate third read and passed HCS SS SCS SB 491 by a vote of 28 yeas and 2 nays; two senators were absent, having voted affirmatively on the original Senate bill. The final version of SB 491 was signed by the presiding officers the following week, on April 28, 2014, and delivered to the governor. Pursuant to the state constitution, Governor Nixon had fifteen days following presentment of the bill to take action. The governor chose to exercise neither of two options; he did not sign the bill into law or veto it within the time allotted. Instead, Governor Nixon took no action, allowing the bill to become law pursuant to Article III, section 31. At the same time, his administration provided a list of concerns with the bill as drafted. As SB 491 moved through the House, Senate sponsors continued to usher HB 1371 through the Senate, the Judiciary Committee having approved a committee substitute identical to the final version of SB 491 approved by the General Assembly. Incorporating the suggestions provided by the Nixon administration, SCS HCS HB 1371 was replaced with a supplemental Senate substitute, targeting thirty-two specific sections for changes. This addendum to the Revised Criminal Code was signed by the presiding officers on May 30, 2014, and delivered to the governor. The governor signed HB 1371 into law on July 9, Length / Statutory Sections SB 60 (1977) HCS SS SCS SB 491 (2014) SS SCS HCS HB 1371 (2014) 645 pages / 220 sections 328 pages / 685 sections Effective Date January 1, 1979 January 1, 2017 Floor Votes Senate: 30-2 (2 absentees) House: (4 absentees, 1 vacancy) SB 491 Senate: 28-2 (2 absentees, 2 vacancies) House: (5 absentees, 3 vacancies) HB 1371 Senate: 31-0 (1 absentee, 2 vacancies) House: (15 absentees, 4 vacancies) Truly Agreed & Finally Passed June 15, 1977 SB 491- April 24, 2014 HB May 16, 2014 Gubernatorial Action Signed July 6, 1977 SB 491- No gubernatorial action taken delivered to Secretary of State on May 13, 2014 HB Signed July 9, 2014 Page 4

5 MAINTAINING THE REVISED CRIMINAL CODE The Revised Criminal Code seeks to restore the Missouri s criminal law as a system, rather than a mere collection, of criminal statutes. However, given the nature of the legislative process, this Revised Criminal Code itself will inevitably succumb to Code degradation, likely at an accelerated pace. Several possible options have presented themselves as possible mechanisms to slow or prevent this process: 1. Criminal Code impact statement 2. Secondary committee review 3. Primary committee review 4. Periodic review of the Criminal Code by a standing joint committee 5. Hybrid combining two or more possible options Below are potential new legislative procedures or existing legislative procedures that could adapted for review of future legislative changes to the Revised Criminal Code. Option One: Criminal Code Impact Statement Statute ( ) requires that legislation be submitted to the Oversight Division of the Joint Committee on Legislative Research for preparation of a fiscal note, which shall accompany a bill throughout its course of passage. Option Two: Secondary Committee Review Subsection 8 of Senate Rule 28 requires the secondary referral of all bills require new appropriations or expenditures in excess of $100,000, or that reduce such funds by that amount during any of the first three years that public funds will be used to fully implement the provisions of the Act for consideration by the Committee on Governmental Accountability and Fiscal Oversight prior to its submission to the Senate for final passage. Subsection (22) of House Rule 25 provides that the Committee on Fiscal Review shall consider any bill which requires net additional expenditures of state money in excess of $100,000 or which reduces net state revenue by more than $100,000 in any of the three fiscal years immediately following the effective date of the bill. Such House bills shall be referred to the Committee on Fiscal Review for its consideration prior to the bill s submission to the House for third reading and final passage. Such Senate bills shall be referred to the Committee on Fiscal Review for its consideration prior to its submission to the House for third reading and final passage. Option Three: Primary Committee Review The Senate or House Rules could be amended to require that all legislation containing criminal penalties be referred to a specified committee. Option Four: Periodic Review of the Criminal Code by Standing Joint Committee This fourth option has already been advanced by the Senate and House Judiciary Committee chairs and passed in multiple bills (HB 1231, SB 575, SB 621) approved by the General Assembly during the 2014 legislative session. Several of those bills were approved by the governor, and will become law on August 28, A new section establishes a permanent joint committee of the General Assembly to be known as the Joint Committee on the Justice System. The joint committee will consist of members of the General Assembly and three ex officio members. The joint committee will be charged with reviewing of all aspects of the state's justice system and making any recommendations for legislative changes to the General Assembly. The positions of chair and vice chair shall rotate between the chair of the Senate Judiciary Committee and the chair of the House Judiciary Committee every two years. Page 5

6 In addition, a permanent subcommittee of the joint committee shall be established to periodically review the criminal code. It shall conduct and supervise a continuing program of revision designed to maintain the cohesiveness, consistency, and effectiveness of the criminal laws of the state. The joint committee also may select an Advisory Committee on the Missouri Criminal Code, composed of a representative of the Missouri Supreme Court, the Office of the Attorney General, and other individuals known to be interested in the improvement of the state s criminal laws. Every ten years, the subcommittee shall present to the General Assembly such criminal code revision bills as it finds appropriate to accomplish its purpose. Joint Committee on the Justice System SENATE HOUSE OF REPRESENTATIVES EXECUTIVE / JUDICIAL (Ex officio members) Chair of the Standing Committee on Judiciary & Civil & Criminal Jurisprudence Chair of the Standing Committee on Judiciary Ranking minority party member of the Judiciary Committee Member of the Senate appointed by the President pro tempore Member of the Senate Committee on Appropriations, appointed by the President pro tempore Member of the Senate appointed by the minority floor leader Ranking minority party member of the Judiciary Committee Chair of the House committee with jurisdiction over matters relating to criminal laws, law enforcement, and public safety (Crime Prevention & Public Safety) Chair of the House committee with jurisdiction over matters relating to state correction institutions (Corrections) Member of the House of Representatives appointed by the minority floor leader Chief Justice of the Missouri Supreme Court (or designee) State Auditor (or designee) Attorney General (or designee) Page 6

7 INTRODUCTION AND OVERVIEW The original Missouri Criminal Code, as enacted by Senate Bill 60 in 1977, was comprised of 22 chapters in Title 38 of the Missouri Revised Statutes. The Revised Criminal Code, as enacted by Senate Bill 491 and House Bill 1371 in 2014, is comprised of Chapters 556 to 580 of Title 38. However, in order to accomplish their overall purpose of restructuring the Missouri Criminal Code, the revision legislation (SB 491 and HB 1371) also included amendments to an assortment of chapters and sections outside the actual Criminal Code. The current Missouri Criminal Code was the product of decade after decade of statutes enacted by the General Assembly, nearly all made on a piecemeal basis, with little attention to the effect of these changes on the structure, terminology or application of the Criminal Code. Two examples of general trends hastening the progress of this Code degradation are the enactment of multiple designer offenses and crimes du jour. Nevertheless, these changes reflect policy decisions made by the General Assembly with the concurrence of the executive. Therefore, the Bar Subcommittee, and later the legislative sponsors of the revision bills, sought to reorganize and revise this collection of ad hoc amendments, while also retaining the policy decisions embodied in the current criminal law. The process of revising the Criminal Code necessarily involved compromise and consensus, both on the part of the Missouri Bar subcommittee that crafted the original proposal, as well the General Assembly that approved the final legislation. Therefore, the Revised Criminal Code is a composite document. It reflects nearly a decade of give-andtake, including several value judgments made by a supermajority of the General Assembly, rather being the product of individual effort or single legal philosophy. In essence, the authors of the revision legislation sought to produce a functional Revised Criminal Code representing a system of offenses, rather than a mere collection of offenses, one that systematically organizes the substantive criminal law and reflects our current reality. During this process, they were guided by several general principles: To use clear, accessible language and uniform organization to make the Code easier to read and understand for practitioners, elected officials and citizens; To consolidate offenses, eliminating those statutes which are outdated, technologically obsolete, unused or underutilized; To classify offenses in such a manner that the penalties prescribed by statute are rational and proportionate to the harm involved or in comparison to other offenses; and To incorporate as many major criminal offenses as practicable within the Revised Criminal Code. The following summary will focus on the Revised Criminal Code (Chapters 556 to 580), dividing it into two parts General Provisions and Specific Offenses in order to outline in general terms the primary changes embodied in the revision. Page 7

8 GENERAL PROVISIONS Chapter 556 Chapter 557 Chapter 558 Chapter 559 Chapter 560 Chapter 561 Chapter 562 Chapter 563 Chapter 564 Preliminary Provisions General Sentencing Provisions Imprisonment Probation Fines Collateral Consequences of Conviction General Principles of Liability Defense of Justification Inchoate Offenses General Modifications Among the universal modifications included in the Revised Criminal Code are certain changes relating to (1) its internal structure or organization and (2) defined terms and other grammatical changes. Structural Modifications Several sections relating to criminal law have been moved from outside the Revised Criminal to chapters within the Revised Code. Other sections located within the current Code, but not relating to criminal law, have been moved to chapters outside the Revised Criminal Code. A few of these structural changes are reflected in these initial chapters of the Revised Code. For instance, chapters 558 (imprisonment) and 560 (fines) have been consolidated together in chapter 558 of the Revised Code. Also, chapter 564 (inchoate offenses) has been combined with chapter 562 (general principles of liability) in a consolidated chapter 562. Defined Terms and Other Grammatical Modifications The Revised Criminal Code includes a number of grammatical changes, including: The universal replacement of the term crime with the term offense ; Changes to the names of offenses; Replacing the term person with defendant ; and Amendment of statutes to make them gender neutral. Defined terms used regularly throughout the Revised Criminal Code have been collected together in the general definitions section of Chapter 556. The number of terms included in the general definitions section has increased from thirty-two to fifty, with the primary differences being the incorporation of definitions previously located elsewhere in the Code and updates to existing definitions. Those terms used in only one or a few sections within a particular chapter are defined where appropriate, while terms used throughout a single chapter are included in the definitions section at the beginning of the applicable chapter. The term found guilty includes convictions, guilty pleas, and suspended impositions of sentences, so the specific list of ways one can be found guilty have been replaced throughout the Revised Criminal Code with the general term found guilty. Sentencing Provisions Beyond the structural and grammatical changes outlined above, there were a limited number of substantive changes relating to the following chapters: probation (chapter 559); collateral consequences of conviction (chapter 561); defense of justification (chapter 563); or inchoate offenses (chapter 564). The most significant change related to terms of imprisonment and fines. While the current Criminal Code includes only four and three classes of felonies and misdemeanors, respectively, in the Revised Criminal Code, there are five Page 8

9 classes of felonies and four classes of misdemeanors. In addition, the fine structure has been adjusted, with the maximum fines being increased to account for inflation. Felonies Term of Imprisonment Under the Revised Criminal Code, class A felonies remain punishable by a term of imprisonment of 10 to 20 years or life, and class B felonies by a term of 5 to 15 years. The terms of imprisonment for the remaining four classes of felonies are, as follows: 3 to 10 years for class C felonies; 1 day to 7 years for class D felonies (term for current class C felonies); and 1 day to 4 years for class E felonies (term for current class D felonies). In order to close the gap between the authorized terms of imprisonment for the current class B and C felonies, a new category of class C felony has been created, and the current C and D felony categories have been reclassified as D and E felonies, respectively, with the same authorized terms of imprisonment. Felonies Fines No fines are authorized currently on either class A or B felonies, with confinement being the sole punishment. The Revised Criminal Code maintains the current framework, but also excludes the new class C felonies from the fine schedule. The maximum level of fines possible on class D and E felonies will now be $20,000. Misdemeanors / Infractions The Revised Criminal Code adds a fourth category of misdemeanor (class D). Class A, B, C, and D misdemeanors are punishable by maximum fines of $2,000, $1,000, $750, and $500, respectively. The maximum fine for infractions has been raised from $200 to $400. Felony Guidelines Current Class Sentence Range Revised Class Revised Sentence Range Class A Felony years or life Class A Felony or life Class B Felony 5 15 years Class B Felony 5 15 years Class C Felony 1 day to 7 years, or a fine Class C Felony 3 10 years Class D Felony 1 day to 4 years, or a fine Class D Felony 1 day to 7 years, or a fine Class E Felony 1 day to 4 years, or a fine Page 9

10 Fine Schedule Current Class Fine Limit Revised Class Revised Fine Limit Class C and D Felony $10,000 Class D and E Felony $20,000 Class A misdemeanor $1000 Class A misdemeanor $2000 Class B misdemeanor $500 Class B misdemeanor $1000 Class C misdemeanor $300 Class C misdemeanor $750 Infraction $200 Class D misdemeanor $500 Infraction $400 Extended Term of Imprisonment / Repeat Offenders Under the Revised Criminal Code, the court may sentence a person to an extended term of imprisonment if: (1) The person is a persistent offender or dangerous offender, and the person is sentenced under subsection 7 of section ; (2) The statute under which the person was found guilty contains a sentencing enhancement provision based on a prior finding of guilt or a finding of prior criminal conduct, and the person is sentenced according to the statute; or (3) A more specific sentencing enhancement provision applies that is based on a prior finding of guilt or finding of prior criminal conduct. Page 10

11 General Sentencing Guidelines for Repeat Offenders Predicate Authorized Term of Imprisonment Prior Offender 1 prior felony (1) Term authorized by section ; or (2) Term authorized by statute governing offense Persistent Offender Dangerous Offender Persistent Misdemeanor Offender 2 or more prior felonies committed at different times (1) Knowingly murdered/endangered/threatened life of another person or knowingly inflicted/attempted/threatened to inflict serious physical injury on another person; or (2) A prior class A or B felony or dangerous felony 2 or more A or B misdemeanors under the laws of this state One class higher than the class B, C, D, or E felony for which the person is found guilty One class higher than the class B, C, D, or E felony for which the person is found guilty (1) Term authorized by section ; or (2) Term authorized by statute governing offense The provision governing extended terms of imprisonment for a persistent sexual offender or predatory sexual offender ( ) has renumbered ( ) and moved to chapter 566 (sexual offenses). Other Modifications Inchoate Offenses Under the Revised Criminal Code, the general attempt statute ( , formerly ) and the general conspiracy statute ( , formerly ) have been renumbered and moved to chapter 562 (general principles of liability). Under the current Code, if the offense attempted or the object of the conspiracy was a misdemeanor of any degree (or also an infraction, in the case conspiracy), the attempt or conspiracy to commit an offense would be a class C misdemeanor. The Revised Criminal Code retains the basic principle in the current Code relating to felonies and class A misdemeanors, extends it to all felonies and misdemeanors, and restates it is general terms. An attempt or conspiracy to commit an offense shall be classified one step lower than the class provided for target offense. Dangerous Felonies Under the Revised Criminal Code, the definition of dangerous felony has been modified to include the following additional offenses: assault in the second degree if the victim is a special victim ( and subdivision 14 of ); kidnapping in the second degree ( ); child molestation in the first or second degree ( and ); and an intoxication-related traffic offense or intoxication-related boating offense if the person is found to be a habitual offender ( ). Page 11

12 SPECIFIC OFFENSES Chapter 565 Chapter 455 Chapter 566 Chapter 567 Chapter 568 Chapter 569 Chapter 570 Chapter 572 Chapter 573 Chapter 574 Chapter 575 Chapter 576 Chapter 577 Chapter 578 Chapter 579 Offenses Against Persons Abuse Adults and Children Shelters and Protective Orders Sexual Offenses Prostitution Offenses Against the Family Robbery, Arson, Burglary and Related Offenses Stealing and Related Offenses Gambling Pornography and Related Offenses Offenses Against Public Order Offenses Against the Administration of Justice Offenses Against Government Public Safety Offenses Miscellaneous Offenses Drug Offenses General Overview The major changes in the specific offense chapters of the Revised Criminal Code include: Consolidation of assault offenses, the repeal of numerous designer assault offenses, and the addition of new sentencing enhancements; Changes to the minimum value of property that serves as the threshold between misdemeanor and felony offenses involving stealing and property damage, which currently vary from offense to offense; The transfer of certain regulatory or reporting statutes out of the Revised Criminal Code; The transfer of certain provisions into the Revised Criminal Code or their inclusion in different chapters because they related more directly to the title or subject matter of a particular chapter; and Changes with respect to offense nomenclature and the various degrees of particular offenses. Omitted Provisions: A Special Note on Murder and Weapons Offenses Provisions relating to first and second degree murder were originally included in the introduced version of the revision legislation. In 2012, the Joint Interim Committee on the Missouri Criminal Code heard testimony concerning the recent United States Supreme Court decision in Miller v. Alabama, 132 S. Ct (2012), and its implication for Missouri s sentencing law with respect to juvenile offenders. Having been initiated years earlier, the Revised Criminal Code did not include modifications to Missouri law in response to the Miller decision. In light of concurrent legislation and developing case law in Missouri, and the potential for controversy or conflicting legislation, the legislative sponsors made the determination to exclude these provisions from the revision legislation. For similar reasons, chapter 571 (weapons offenses) was excluded from the version of the Revised Criminal Code approved by the General Assembly. The original Revised Criminal Code had proposed two significant changes to chapter 571. First, those sections relating to concealed carry permits, which are regulatory rather than criminal in nature, would be removed from the Criminal Code and moved into a new, separate chapter 319 under title 21 (public safety and morals). Second, the current unlawful use of weapons provision ( ) the structure of which has proven especially difficult for practitioners would have been divided into eight separate statutes. Both proposals will likely be reexamined during future legislative sessions. Page 12

13 Offenses Against the Person and Privacy-Related Offenses Assault Offenses Under the Revised Criminal Code, the assault offenses have been significantly reorganized, with the consolidation of over twenty separate assault offenses into four degrees of assault. For reporting purposes and because domestic situations involve very different dynamics, domestic assault has been maintained as a distinct category, also with four degrees. A new assault in the third degree has been included, to bridge the gap between the current degrees of assault. The current third degree assault has been reclassified as assault in the fourth degree. Also, a new domestic assault in the third degree has been included. The assault offenses of the Revised Criminal Code recognize the same distinctions as the multiple assault statutes of the current Code, which embody a series of policy decisions. However, they do so by including these distinctions as sentencing enhancements, using a statutorily-defined special victim category. In conjunction with the four degrees of assault, this special victim classification allowed the elimination of many stand-alone assault offenses. For purposes of the assault offenses, a special victim includes the following: A law enforcement officer in the performance of official duties or as a direct result of such official duties; Emergency personnel (paid or volunteer firefighter, emergency room or trauma center personnel, or EMT) in the performance of official duties or as a direct result of such official duties; A probation or parole officer in the performance of official duties or as a direct result of such official duties; An elderly person; A disabled person; Any jailer or corrections officer of the state or one of its political subdivisions; A highway worker in a construction or work zone; Any utility worker (any employee of a private, municipal, or cooperatively owned utility that provides gas, heat, electricity, water, steam, telecommunication services, or sewer services, including any person employed under contract) in the performance of his or her job duties; Any cable worker (any employee of a cable operator, including any person employed under contract); and Any employee of a mass transit system (including any employee of a public bus or light rail companies). Page 13

14 Assault Offenses Conduct Penalty Penalty Enhancement First Degree Attempts to kill or knowingly causes or attempts to cause serious physical injury Class B felony Class A felony (1) Inflicts serious physical injury; or (2) Special victim Second Degree (1) Attempts to kill or knowingly causes or attempts to cause serious physical injury under the influence of sudden passion arising out of adequate cause; or Class D felony Class B felony Special victim (2) Attempts to cause or knowingly causes physical injury by means of a deadly weapon or dangerous instrument; or (3) Recklessly causes serious physical injury; or (4) Recklessly causes physical injury by means of discharge of a firearm Third Degree Knowingly causes physical injury Class E felony Class D felony Special victim Fourth Degree (1) Attempts to cause or recklessly causes physical injury, physical pain, or illness; or (2) With criminal negligence causes physical injury by means of a firearm; or (3) Purposely places another person in apprehension of immediate physical injury; or (4) Recklessly engages in conduct which creates a substantial risk of death or serious physical injury; or (5) Knowingly causes physical contact with a disabled person, which a reasonable person, who is not disabled, would consider offensive or provocative; or (6) Knowingly causes physical contact with another person knowing the other person will regard the contact as offensive or provocative Class A misdemeanor Class C misdemeanor (3) or (6) Class A misdemeanor (3) or (6) special victim Page 14

15 Domestic Assault Offenses Conduct Penalty Penalty Enhancement First Degree Attempts to kill or knowingly causes or attempts to cause serious physical injury Class B felony Class A felony Inflicts serious physical injury Second Degree Third Degree Fourth Degree (1) Knowingly causes physical injury by any means; (2) Recklessly causes serious physical injury; (3) Recklessly causes physical injury by means of any deadly weapon (1) Attempts to cause physical injury; or (2) Knowingly causes physical pain or illness (1) Attempts to cause or recklessly causes physical injury, physical pain, or illness; or (2) With criminal negligence causes physical injury by means of a deadly weapon or dangerous instrument; or (3) Purposely places the victim in apprehension of immediate physical injury by any means; or (4) Recklessly engages in conduct which creates a substantial risk of death or serious physical injury (5) Knowingly causes physical contact knowing the victim will regard the contact as offensive; or (6) Knowingly attempts to cause or causes the isolation of the victim by unreasonably or substantially restricting or limiting his or her access to other persons, telecommunications devices or transportation for the purpose of isolation Class D felony Class E felony Class A misdemeanor Class E felony Guilty of offense of assault of a domestic victim 2 or more times Page 15

16 Kidnapping In the Revised Criminal Code, the primary change to the kidnapping-related offenses has been the offense nomenclature. The offenses involving the unlawful removal or restraint of another person have been reorganized as different degrees of the general offense of kidnapping, providing for their use as included offenses ( ). Kidnapping Offenses Current Criminal Code Penalty Revised Criminal Code Penalty Kidnapping Class A felony Kidnapping in the first degree Class A felony Child kidnapping Class A felony Child kidnapping Class A felony Felonious restraint Class C felony Kidnapping in the second degree Class D felony False imprisonment Class D felony Kidnapping in the third degree Class E felony The offense of child kidnapping has been retained in the Revised Criminal Code as a separate offense, because structural difficulties exist in including it with the other general kidnapping offenses. Minor changes have been made to the custodial offenses interference with custody ( ), parental kidnapping ( ), child abduction ( ) but essentially these offenses have been left as they existed in the current Code. Privacy-Related Offenses The offense of harassment illustrates several universal themes throughout the Revised Criminal Code. In the current Code, there are six distinct ways to commit the offense of harassment. Under the Revised Criminal Code, this offense is reorganized to enhance clarity. The offense is divided into two degrees, and the elements of the prohibited acts are restated in clear, concise language. Harassment Offenses First degree ( ) Second degree ( ) Prohibited Conduct A person, without good cause, engages in any act with the purpose to cause emotional distress to another person, and such act does cause such person to suffer emotional distress A person, without good cause, engages in any act with the purpose to cause emotional distress to another person Penalty Class E felony Class A misdemeanor The stalking provision illustrates another issue the Revised Criminal Code seeks to address: dissimilar terminology. In the current Code, a person commits the crime of stalking if he or she purposely, through his or her course of conduct, harasses or follows with the intent of harassing another person. Harasses is defined in the section. However, this definition does not bear a direct relationship to the conduct defined in the separate offense of harassment. Therefore, the Revision Subcommittee proposed, and the legislative sponsors retained, the replacement of harass with the defined term disturbs, as well as changes in the structure of the statute, in an effort to provide greater uniformity and some clarity in the conduct that constitutes the offense. Among the changes in the structure of the provision was the division of the offense into two degrees, with the offense formerly designated as aggravated stalking being placed in a separate, reformatted section. Page 16

17 Stalking Offenses Prohibited Conduct Penalty Penalty Enhancement First degree ( ) A person purposely, through his or her course of conduct, disturbs or follows with the intent of disturbing another person; and Class E felony Class D felony Prior stalking offense (1) Makes a threat communicated with the intent to cause the person who is the target of the threat to reasonably fear for his or her safety, the safety of his or her family or household member, or the safety of domestic animals or livestock... kept at such person s residence or on such person s property; or (2) At least one of the acts constituting the course of conduct is in violation of an order of protection and the person has received actual notice of such order; or (3) At least one of the actions constituting the course of conduct is in violation of a condition of probation, parole, pretrial release, or release on bond pending appeal; or (4) At any time during the course of conduct, the other person is seventeen years of age or younger and the person disturbing the other person is twenty-one years of age or older; or (5) He or she has previously been found guilty of domestic assault, violation of an order of protection, or any other crime where the other person was the victim Second degree ( ) A person purposely, through his or her course of conduct, disturbs, or follows with the intent to disturb another person Class A misdemeanor Class E felony Prior stalking offense Page 17

18 Sexual and Related Offenses Many of the changes in chapter 566 (sexual offenses), chapter 567 (prostitution), and chapter 573 (pornography and related offenses) are organizational or dealt with updated definitions. Defined Terms Based on practical experience, a number of defined terms related to sexual offenses have been modified or updated to better reflect current reality or enhance the utility of the Revised Criminal Code. For instance, the definition section ( ) now includes a definition for aggravated sexual offense. In an aggravated sexual offense, the actor: (a) Inflicts serious injury; (b) Displays a deadly weapon or dangerous instrument in an threatening manner; (c) Subjects the victim to sexual intercourse or deviate sexual intercourse with more than one person; (d) Had previously been found guilty of specified sexual offenses; (e) Commits the offense as part of an act or series of acts performed by two or more persons as part of an established or prescribed pattern of activity (formerly ritual ); or (f) Engages in the act that constitutes the offense with a person with whom the actor bears a specified familial relationship (incest). With the exception of incest, in the current Code, the aggravators above are typically listed in the statute for each individual sexual offense as sentencing enhancements. Under the Revised Criminal Code, the defined term aggravated sexual offense is now included in each individual offense. Rape and Sodomy Offenses Prior to enactment of the Revised Criminal Code, previous legislation was passed renaming certain sexual offenses to provide a logical progression of degrees and lesser-included offenses. These changes in offense nomenclature are consistent with the universal organizational changes taken in the final Revised Criminal Code. For example, the current Code previously contained the separate offenses of forcible rape, which penalized forced sexual intercourse, as well as sexual assault, which encompassed sexual intercourse without consent. Sexual assault was not a lesser included offense under forcible rape. Under the Revised Criminal Code, forcible rape is reclassified as rape in the first degree, while sexual assault is reclassified as rape in the second degree. Rape and Sodomy Offenses Offense Penalty Rape in the first degree Life or a term of yrs. not less than 5 yrs Rape in the second degree Class D felony Statutory rape in the first degree Life or a term of yrs. not less than 5 yrs Statutory rape in the second degree Class D felony Sodomy in the first degree Life or a term of yrs. not less than 5 yrs Sodomy in the second degree Class D felony Statutory sodomy in the first degree Life or a term of yrs. not less than 5 yrs. Page 18

19 Child Molestation Offenses Under the Revised Criminal Code, the child molestation offenses have been restructured, with two additional degrees of child molestation being added. Furthermore, these provisions incorporate a so-called Romeo and Juliet window so young adults, who may still be teenagers themselves, will not face potential prosecution for engaging in consensual sexual conduct with other teenagers. Child Molestation Offenses Conduct Penalty Penalty Enhancement First Degree ( ) Second Degree ( ) Third Degree ( ) Fourth Degree ( ) A person subjects another person who is less than 14 yrs. of age to sexual contact and it is an aggravated sexual offense A person: (1) Subjects a child who is less than 12 yrs of age to sexual contact; or (2) More 4 yrs. older subjects a child who is less than 17 yrs. of age to sexual contact and it is an aggravated sexual offense A person subjects a child who is less than 14 years of age to sexual contact A person more than 4 yrs. older subjects a child who is less than 17 years of age to sexual contact Class A felony Term of imprisonment w/o eligible for probation, parole or conditional release Victim is a child less than 12 yrs. of age Class B felony Class C felony Class B felony Use of forcible compulsion Class E felony Among the sexual offenses, two other changes are worth noting. The offense of sexual contact with a student has been expanded to apply to private, as well as public, schools. No rational basis exists to restrict it solely to public schools. Also, many sections in the current Code allow penalty enhancements if the offender was previously found guilty of violating other provisions of chapter 566. Under the Revised Criminal Code, these penalty enhancements have been expanded to include prior violations of similar types of crimes committed in other jurisdiction. This approach has been duplicated in other chapters of the Revised Code. In addition, the consolidated offense of sexual conduct with a nursing facility resident or vulnerable person has been included in the chapter 566 and divided into first degree ( ) and second degree ( ). Prostitution The prostitution offenses illustrate the issue within the current Code of prohibited conduct being outlined within the definitions or definitions within the prohibited conduct. Under current law, the elements of the offense of prostitution are set forth in the definition section. In essence, the actual offense statute provides that prostitution occurs when one commits prostitution. Therefore, such offenses as prostitution, patronizing prostitution, or promoting prostitution have been restructured, with the elements being moved from the definition into the substantive criminal offense. Page 19

20 Pornography In order to avoid issues of constitutionality, the removal of the knowing of its content and character mens rea from several offenses relating to obscenity or pornography in House Bill 62 (2009) was reversed. Property-Related Offenses Robbery Offenses In light of their character as aggravated property offenses or quasi-personal offenses, and in keeping with the underlying principle of proportionality, the robbery provisions have been modified in one notable respect. Under the Revised Criminal Code, the element of physical injury to another person has been added to robbery in the second degree. Furthermore, robbery in the first degree has been expanded to include stealing any controlled substance from a pharmacy. In the current Code, pharmacy robbery is a stand-alone offense, although it prohibits exactly the same conduct, with the same penalty, as robbery in the first degree, the location of the robbery being the only distinguishing difference. Robbery Offenses First degree ( ) Second degree ( ) Prohibited Conduct A person forcibly steals property and in the course thereof he or she, or another participant in the offense: (1) Causes serious physical injury to any person; or (2) Is armed with a deadly weapon; or (3) Uses or threatens the immediate use of a dangerous instrument against any person; or (4) Displays or threatens the use of what appears to be a deadly weapon or dangerous instrument; or (5) Steals any controlled substance from a pharmacy A person forcibly steals property and in the course thereof causes physical injury to another person Penalty Class A felony Class B felony Stealing The stealing provision has been extensively reorganized in several respects, including the incorporation of other provisions formerly separate from it in the current Code For instance, the three strikes provision (former ) has been incorporated directly into the stealing statute as a four strikes provision. Also, the separate offense of receiving stolen property has been repealed and the prohibited conduct consolidated with the general stealing statute. Under the Revised Criminal Code, a person commits the offense of stealing if he or she: (1) Appropriates property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion; or (2) Attempts to appropriate anhydrous ammonia or liquid nitrogen of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion; or Page 20

21 (3) For the purpose of depriving the owner of a lawful interest therein, receives, retains or disposes of property of another knowing that it has been stolen, or believing that it has been stolen. Penalty Class A felony Class B felony Value or Specified Types of Property Any of the following containing any amount of anhydrous ammonia: a tank truck, tank trailer, rail tank car, bulk storage tank, field nurse, field tank or field applicator (1) Any amount of anhydrous ammonia or liquid nitrogen; or (2) Any animal considered livestock ( ) or any captive wildlife held under permit issued by Conservation Commission (value of animal or animals exceeds $3,000 and the person has previously been found guilty of stealing livestock or captive wildlife held under permit); or (3) Motor vehicle, watercraft, or aircraft (and the person has previously been found guilty of two-stealing-related offenses committee on two separate occasions where such offenses occurred within ten years of the date of occurrence of the present offense); or (4) Any animal considered livestock ( ) (value of livestock exceeds $10,000) Class C felony Class D felony Value of property or services is $25,000 or more (1) Value of property or services is $750 or more; or (2) Offender physically takes the property from the person of the victim; or (3) Property consists of: Any motor vehicle, watercraft or aircraft; Any will or unrecorded deed affecting real property; Any credit device, debit device or letter of credit; Any firearms; Any explosive device ( ) Any United States national flag designed, intended and used for display on buildings or stationary flagstaffs in the open; Any original copy of an act, bill or resolution, introduced or acted upon by the General Assembly; Any pleading, notice, judgment or any other record or entry of any court of this state, any other state or of the United States; Any book of registration or list of voters required by chapter 115; Any animal considered livestock ( ); Any live fish raised for commercial sale (value of $75 or more); Any captive wildlife held under permit issued by the Conservation Commission; Any controlled substance ( ); Ammonium nitrate; Any wire, electrical transformer, or metallic wire associated with transmitting telecommunications, video, internet, or voice over internet protocol service, or any other device or pipe that is associated with conducting electricity or transporting natural gas or other combustible fuels; or Any material appropriated with the intent to use such material to manufacture, compound, produce, prepare, test or analyze amphetamine or methamphetamine or any of their analogues Page 21

22 Class E felony (1) An animal; or (2) A person has previously been found guilty of three stealing-related offenses committed on three separate occasions where such offenses occurred within ten years of the date of occurrence of the present offense Class A misdemeanor Class D misdemeanor No other penalty is specified in this section Property is not listed in subsection 2, 3, 5, or 6 (excludes property associated with class C felony above), property has a value of less than $150, and the person has no previous findings of guilt for a stealing-related offense The stealing provision incorporates a new category, making a first time offense of stealing property valued at less than $150 a class D misdemeanor, punishable by fine only, rather than jail time. Under current law, stealing property valued at less than $500 is a class A misdemeanor unless the property falls under a list of certain specified types of property. Felony Threshold Amounts As the preceding chart illustrated the relationship between penalties for stealing and property of a particular value, it also reflected another general principle embedded in the Revised Criminal Code. The Revised Criminal Code retains a specific threshold amount as the borderline between felony or misdemeanor property offenses, but it is one for which the General Assembly must take inflation into account in future years. Methods allowing for automatic adjustments are complicated and prevent crime victims from knowing definitively how the offender will be prosecuted. It would require constant maintenance of a determination of value, tied to the date of the offense. Currently, in property or stealing crimes, the amounts of value that constitute the threshold for a felony offense vary from statute to statute. Under the Revised Code, where harmonization is the goal, the standard felony threshold value will be $750 for: Tampering with computer data ( ); Tampering with computer equipment ( ); Tampering with computer users ( ); Property damage first degree ( ); Prohibited acts involving crops ( ); Default ( ); Stealing ( ); Stealing leased or rented property ( ); Alteration or removal of item numbers ( ); Counterfeiting ( ); Passing bad checks ( ); Fraudulently stopping payment of an instrument ( ); Fraudulent use of a credit device or debit device ( ); Defrauding secured creditors ( ); Identify theft ( ); Unlawfully receiving public assistance benefits or EBT cards ( ); Unlawful conversion of public assistance benefits or EBT cards ( ); Unlawful transfer of public assistance benefits or EBT cards ( ); Perjury for the purpose of obtaining public assistance ( ); Institutional vandalism ( ); Prohibited acts against animal research and production facilities ( ); Page 22

23 One notable exception is the offense of financial exploitation of an elderly person or person with a disability ( ), where the current felony threshold amount of $50 remains. Intoxication-Related Offenses Chapter 577 has been revised in a number of ways. Intoxication-related offenses pertaining to all modes of transportation (driving, boating, or flying) have been collected together in this chapter. In line with standard practice for other portions of the Revised Criminal Code, regulatory provisions have been excluded, either being removed or remaining in chapters outside the Revised Code. As with other chapters, the definition section ( ) has been updated, with new defined terms being added or terms scattered throughout chapter 577 or other chapters being moved into the section. Included among these defined terms are a series of definitions relating to repeat offenders. A new repeat offender category for intoxication-related offenses has been added ( habitual offender ). A habitual offender also qualifies as a dangerous felon, requiring any individual being convicted as one to serve eighty-five percent of any sentence imposed. Formerly applicable to intoxication-related traffic offenses, the entire framework of the repeat offender categories has been expanded to include intoxication-related boating offenses. Repeat Offender Categories Intoxication-Related Offenses Category Prior Offender Prior Boating Offender Persistent Offender Persistent Boating Offender Aggravated Offender Prior Conduct One intoxication-related traffic offense within 5 years of current offense 1 intoxication-related boating offense within 5 years of current offense 2 or more intoxication-related traffic offenses committed on separate occasions 2 or more intoxication-related boating offenses committed on separate occasions (a) 3 or more intoxication-related traffic offenses; or (b) 2 or more intoxication-related traffic offenses committed on separate occasions where at least 1 offense involved the injury or death of another person Aggravated Boating Offender Chronic Offender (a) 3 or more intoxication-related boating offenses; or (b) 1 or more intoxication-related boating offenses committed on separate occasions where at least 1 offense involved the injury or death of another person (a) 4 or more intoxication-related traffic offenses; or (b) 3 or more intoxication-related traffic offenses committed on separate occasions where at least 1 offense involved the injury or death of another person; or (c) 2 or more intoxication-related traffic offenses committed on separate occasions where both offenses involved the injury or death of another person Chronic Boating Offender (a) 4 or more intoxication-related boating offenses; or (b) 3 or more intoxication-related boating offenses committed on separate occasions where at least 1 offense involved the injury or death of another person; or Page 23

24 (c) 2 or more intoxication-related traffic offenses committed on separate occasions where both offenses involved the injury or death of another person Habitual Offender (a) 5 or more intoxication-related traffic offenses; or (b) 4 or more intoxication-related traffic offenses committed on separate occasions where at least 1 offense involved the injury or death of another person; or (c) 3 or more intoxication-related traffic offenses committed on separate occasions where at least 2 offenses involved the injury or death of another person Habitual Boating Offender (a) 5 or more intoxication-related boating offenses; or (b) 4 or more intoxication-related boating offenses committed on separate occasions where at least 1 offense involved the injury or death of another person; or (c) 3 or more intoxication-related boating offenses committed on separate occasions where at least 2 offenses involved the injury or death of another person The following charts illustrate how a standardized format has been applied to the intoxication-related offenses under the Revised Criminal Code, and how the repeat offender scheme is applied to the DWI and BWI offenses: driving while intoxicated ( ); driving with excessive blood alcohol content ( ); boating while intoxicated ( ); boating with excessive blood alcohol content ( ); operating an aircraft while intoxicated ( ); and operating an aircraft with an excessive blood alcohol content ( ). A significant portion of the restructuring involved in the driving while intoxicated offenses included graduating the levels of punishment by the levels of injury caused. In the current Code, causing death by DWI and causing physical injury are both classified as class C felonies. Under the Revised Code, causing death would be classified as a new class C felony, while causing physical injury would be a class E felony. Driving While Intoxicated ( ) Classification / Conduct A person operates a vehicle while in an intoxicated condition Prior offender; or Penalty Class B misdemeanor Class A misdemeanor A person less than 17 years of age is present in vehicle Persistent offender; or Class E felony Defendant acts with criminal negligence to cause physical injury to another person Aggravated offender; or Class D felony Defendant acts with criminal negligence to cause physical injury to a law enforcement officer or emergency personnel; or Defendant acts with criminal negligence to cause serious physical injury to another person Chronic offender; or Class C felony Page 24

25 Defendant acts with criminal negligence to cause serious physical injury to a law enforcement officer or emergency personnel; or Defendant acts with criminal negligence to cause the death of another person Habitual offender; or Class B felony Defendant acts with criminal negligence to cause the death of a law enforcement officer or emergency personnel; or Defendant acts with criminal negligence to cause the death of two or more persons Habitual offender (second or subsequent violation); or Class A felony Defendant acts with criminal negligence to cause the death of a law enforcement officer or emergency personnel (second or subsequent violation); or Defendant acts with criminal negligence to cause the death of two or more persons (second or subsequent violation) Driving with Excessive BAC ( ) Classification / Conduct A person operates: Penalty Class B misdemeanor (1) A vehicle while having eight-hundredths of one percent or more by weight of alcohol in his or her blood; or (2) A commercial motor vehicle while having four one-hundredths of one percent or more by weight of alcohol in his or her blood. Prior offender Persistent offender Aggravated offender Chronic offender Habitual offender Class A misdemeanor Class E felony Class D felony Class C felony Class B felony Boating While Intoxicated ( ) Classification / Conduct A person operates a vessel while in an intoxicated condition Prior boating offender; or Penalty Class B misdemeanor Class A misdemeanor Page 25

26 A person less than 17 years of age is present in vessel Persistent boating offender; or Class E felony Defendant acts with criminal negligence to cause physical injury to another person Aggravated boating offender; or Class D felony Defendant acts with criminal negligence to cause physical injury to a law enforcement officer or emergency personnel; or Defendant acts with criminal negligence to cause serious physical injury to another person Chronic boating offender; or Class C felony Defendant acts with criminal negligence to cause serious physical injury to a law enforcement officer or emergency personnel; or Defendant acts with criminal negligence to cause the death of another person Habitual boating offender; or Class B felony Defendant acts with criminal negligence to cause the death of a law enforcement officer or emergency personnel; or Defendant acts with criminal negligence to cause the death of two or more persons Habitual offender (second or subsequent violation); or Class A felony Defendant acts with criminal negligence to cause the death of a law enforcement officer or emergency personnel (second or subsequent violation); or Defendant acts with criminal negligence to cause the death of two or more persons (second or subsequent violation) Boating with Excessive BAC ( ) Classification / Conduct A person operates a vessel while having eight-hundredths of one percent or more by weight of alcohol in his or her blood Prior boating offender Persistent boating offender Aggravated boating offender Chronic boating offender Penalty Class B misdemeanor Class A misdemeanor Class E felony Class D felony Class C felony Page 26

27 Habitual boating offender Class B felony Operating an Aircraft While Intoxicated ( ) Classification / Conduct A person, while in an intoxicated condition, knowingly operates an aircraft or knowingly acts as a copilot, flight engineer or flight navigator for an aircraft while in operation Previously been found guilty of operating an aircraft while intoxicated or with an excessive BAC Penalty Class C misdemeanor Class A misdemeanor Operating an Aircraft with Excessive BAC ( ) Classification / Conduct A person knowingly operates any aircraft or knowingly acts as a copilot, flight engineer or flight navigator for an aircraft while in operation: (1) With four one-hundredths of one percent or more by weight of alcohol in his or her blood; or (2) Within eight hours after the consumption of any alcoholic beverage Previously been found guilty of operating an aircraft while intoxicated or with an excessive BAC Penalty Class C misdemeanor Class A misdemeanor A few additional points should be noted. Current provisions of the law prohibit operating a vessel on the Mississippi or Missouri Rivers or lakes in the state while intoxicated or with an excessive blood alcohol level. The Revised Criminal Code incorporates features of these provisions into the consolidated offenses of boating while intoxicated and boating with an excessive BAC, without limitations to specific waterways. The recently enacted mandatory requirement that ignition interlock devices be equipped with GPS has been repealed. Also, phlebotomists have been added to the list of people who may draw blood to determine blood alcohol content. Drug-Related Offenses The most apparent and significant change to drug laws included the movement of criminal drug offenses into a new chapter 579 within the Revised Criminal Code. Moving the criminal offenses into a separate chapter was intended to make it easier for practitioners, including defense attorneys and prosecutors, to reference only the criminal provisions they would need, and not the regulatory offenses pertaining to controlled substances, which remain in chapter 195. Other primary changes to the drug offenses included: Adding the mens rea of knowingly to several offenses that currently lack an explicit mens rea; Consolidating several statutes; Changing the format of certain offenses to align them with the format utilized with other offenses; and Grouping statutes based on the conduct being prohibited. The penalties associated with certain drug offenses were altered in order to reflect more accurately the reality of how those offenses are being punished. For instance, under current law, the possession of a controlled substance statute contains an exception or carve-out with respect to less than 36 grams of marijuana or any synthetic cannabinoid. The Revised Criminal Code extends this distinction, retaining the prior exception for less than 36 grams, but Page 27

28 including a new exception for not more than 10 grams of marijuana or any synthetic cannabinoid. The new category is a class D misdemeanor, punishable by a fine only, unless the defendant has been found guilty of a prior drugrelated offense, in which case it is a class A misdemeanor. Drug-Related Offenses Offense Possession of controlled substance Delivery of controlled substance Distribution of controlled substance in a protected location Distribution, delivery, or sale of drug paraphernalia Fraudulently attempting to obtain controlled substance Manufacture of imitation controlled substance Manufacture of controlled substance Unlawful sale or distribution of over-the-counter methamphetamine precursor drugs Trafficking drugs in the first degree Trafficking drugs in the second degree Creating a danger Furnishing materials for production of controlled substance Unlawful possession of drug paraphernalia Unlawful manufacture of drug paraphernalia Possession of imitation controlled substance Delivery of imitation controlled substance Unlawful marketing of ephedrine or pseudoephedrine Distribution of controlled substance in violation of registration requirements Unlawful delivery of controlled substance by manufacturer or distributor Tampering with prescription or prescription drug order Possession of anhydrous ammonia in nonapproved container Inhalation or inducing others to inhale solvent fumes to cause certain reactions Inducing, or possession with intent to induce, symptoms by use of certain solvents and other substances Possession or purchase of solvents to cause certain symptoms Selling or transferring solvents to cause certain symptoms Keeping or maintaining a public nuisance Possession of methamphetamine precursors Failure to report suspicious transactions Distribution of prescription medication on school property Possession of prescription medication on school property Repeat Drug Offenders Under the Revised Criminal Code, the separate statutes in chapter 195 that provide sentencing enhancements for prior and persistent drug offenders have been repealed and incorporated in a general repeat offender statue for the new chapter 579. Any person found to be a prior drug offender (1 felony drug offense) and found guilty of a class C, D, or E felony drug offense shall be sentenced to the authorized term of imprisonment for an offense one class higher than the offense for which the person was found guilty. Likewise, any person found to be a persistent drug offender (2 or more felony drug offenses) and found guilty of a class C, D, or E felony drug offense shall be sentenced to the authorized term of imprisonment for an offense two classes higher than the offense for which the person was found guilty. Persistent drug offenders found guilty of a class B felony drug offense shall be sentenced to the authorized term of imprisonment for a class A felony offense. Page 28

29 POSTSCRIPT: HOUSE BILL 1371 After Senate Bill 491 became law pursuant to the Constitution, an addendum to the Revised Criminal Code was passed by the General Assembly, in the form of changes incorporated into its companion, House Bill The basis for those changes was a list provided by the governor s administration to the legislative sponsors. Page 29