76-18-209. Unlawfully distributing or agreeing to distribute a controlled substance or counterfeit substance.
(1) As used in this section: "Dangerous weapon" means the same as that term is defined in Section. 76-11-101 "Firearm" means the same as that term is defined in Section. 76-11-101 "Readily accessible for immediate use" means the same as that term is defined in Section. 76-11-201 Terms defined in Sections,,, andapply to this section. 58-37-101 76-1-101.5 76-18-101 76-18-201
(2) Except as authorized by this chapter or Title 58, Chapter 37, Controlled Substances, and under circumstances not amounting to an offense described in Section, trafficking of fentanyl or a fentanyl-related substance, an actor commits unlawfully distributing or agreeing to distribute a controlled substance or counterfeit substance if the actor knowingly and intentionally: 76-18-220 distributes a controlled substance or a counterfeit substance; or agrees, consents, offers, or arranges to distribute a controlled substance or a counterfeit substance.
(3) Except as provided in Subsectionand subject to Subsections,, and, a violation of Subsectionis: (3)(b) (4) (5) (6) (2) a second degree felony if the controlled substance or counterfeit substance is: a substance or a counterfeit of a substance classified in Schedule I or II, not including marijuana; a controlled substance analog; or gammahydroxybutyric acid as listed in Schedule III; a third degree felony if the controlled substance or counterfeit substance is: a substance or a counterfeit of a substance classified in Schedule III or IV; marijuana; or a substance listed in Section; or 58-37-109 a class A misdemeanor if the controlled substance or counterfeit substance is a substance or counterfeit substance of a substance classified in Schedule V. Subject to Subsections,, and, a second or subsequent conviction under: (4) (5) (6) Subsectionis a first degree felony; (3)(a)(i) Subsectionis a second degree felony; or (3)(a)(ii) Subsectionis a third degree felony. (3)(a)(iii)
(4) Except as provided under Subsectionand subject to Subsection, the court shall impose an indeterminate prison term for an actor who has been convicted of a violation of this section that is a first degree felony or a second degree felony under Subsectionorif the trier of fact finds beyond a reasonable doubt that, during the commission or furtherance of the violation of Subsection, the actor intentionally or knowingly: (4)(b) (6) (3)(a) (3)(b) (2) used, drew, or exhibited a dangerous weapon that is not a firearm, in an angry, threatening, intimidating, or coercive manner; used a firearm or had a firearm readily accessible for immediate use; or distributed a firearm or possessed a firearm with intent to distribute the firearm. Subject to Subsectionsand, a court may suspend the indeterminate prison term for an actor convicted under Subsectionif the court: (5) (6) (4)(a) details on the record the reasons why it is in the interests of justice to not impose the indeterminate prison term; makes a finding on the record that the actor does not pose a significant safety risk to the public; and orders the person to complete the terms and conditions of supervised probation provided by the Division of Adult Probation and Parole created in Section. 64-14-202
(5) A court shall impose a mandatory jail sentence of 360 days in jail, and may not suspend any portion of the jail sentence or grant early release, if: the court suspends the imposition of a prison sentence for a felony conviction under this section or sentences an actor for a misdemeanor violation of an offense under this section; the violation is the actor's second or subsequent conviction for any level of offense under this section, Section,, or; or 76-18-209 76-18-210 76-18-211 the actor previously has been convicted of a criminal violation in another jurisdiction, including a state or federal court, that is substantially equivalent to the violation of an offense under this section, Section,, or; and 76-18-209 76-18-210 76-18-211 the actor previously has been convicted of reentry of a removed alien under 8 U.S.C. Sec. 1326. Except as provided in Subsection, an actor who is subject to a mandatory jail sentence under Subsectionmay not be released to the federal Immigration and Customs Enforcement Agency of the United States Department of Homeland Security for deportation until the actor has served the entire jail sentence described in Subsection. (5)(b)(ii) (5)(a) (5)(a) An actor may be released to the federal Immigration and Customs Enforcement Agency of the United States Department of Homeland Security for deportation at any time during the 14-day period before the final day of the actor's jail sentence described in Subsection. (5)(a)
(6) Notwithstanding any other provision of this section, a violation of this section is subject to the penalties and classifications under Section, Enhanced penalties and sentencing for certain drug offenses, if the trier of fact finds the elements described under Section. 76-18-204 76-18-204
(7) For purposes of a penalty enhancement, a plea of guilty or no contest to a violation or attempted violation of this section or a plea that is held in abeyance under Title 77, Chapter 2a, Pleas in Abeyance, is the equivalent of a conviction, even if the charge has been subsequently reduced or dismissed in accordance with the plea in abeyance agreement. A previous conviction used for a penalty enhancement under this section includes a conviction for an offense described in a statute previously in effect in this state that is the same or substantially similar to a violation of this section.
(8) An actor may be charged and sentenced for a violation of this section, notwithstanding a charge and sentence for a violation of any other section of this part or Title 58, Chapter 37, Controlled Substances. A penalty imposed for a violation of this section is in addition to, and not in lieu of, a civil or administrative penalty or sanction authorized by law. Defenses and exemptions in Sectionapply to this section. 76-18-203
(9) The Administrative Office of the Courts shall report to the Division of Professional Licensing the name, case number, date of conviction, and if known, the date of birth of each actor convicted of violating this section.
(10) If a minor who is under 18 years old is found by a court to have violated this section, the court may order the minor to complete: a screening as defined in Section; 41-6a-501 an assessment as defined in Sectionif the screening described in Subsectionindicates that an assessment is appropriate; and 41-6a-501 (10)(a) an educational series as defined in Sectionor substance use disorder treatment as indicated by an assessment described in Subsection. 41-6a-501 (10)(b)