H 4942 General Bill, By D. Smith
 A Bill to amend the Code of Laws of South Carolina, 1976, by adding Section
 44-53-377 so as to provide for the offense of attempting to possess or
 purchase a controlled or imitation controlled substance and for penalties; to
 amend Section 16-1-60, as amended, relating to the definition of violent
 crime, so as to include an additional Section pertaining to drug trafficking;
 to amend Section 16-19-130, relating to the crimes of betting, pool selling,
 and bookmaking, so as to revise the penalties; to amend Section 16-19-160,
 relating to punchboards for gaming, so as to revise the penalties; to amend
 Section 44-53-370, as amended, relating to the offenses for trafficking in
 controlled substances, so as to provide additional penalties for trafficking
 in marijuana; to amend Section 44-53-375, as amended, relating to the offenses
 pertaining to ice, crank, and crack cocaine, so as to delete the offense for
 "attempting to possess" the drug and revise the penalties; to amend Section
 44-53-391, relating to drug paraphernalia, so as to revise related offenses
 and penalties; and to amend Section 44-53-450, relating to conditional
 discharges for the first offense pertaining to illegal drugs, so as to include
 an additional offense to which the discharge applies and correct an obsolete
 reference.

   03/17/94  House  Introduced and read first time HJ-10
   03/17/94  House  Referred to Committee on Judiciary HJ-11

A BILL

TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 44-53-377 SO AS TO PROVIDE FOR THE OFFENSE OF ATTEMPTING TO POSSESS OR PURCHASE A CONTROLLED OR IMITATION CONTROLLED SUBSTANCE AND FOR PENALTIES; TO AMEND SECTION 16-1-60, AS AMENDED, RELATING TO THE DEFINITION OF VIOLENT CRIME, SO AS TO INCLUDE AN ADDITIONAL SECTION PERTAINING TO DRUG TRAFFICKING; TO AMEND SECTION 16-19-130, RELATING TO THE CRIMES OF BETTING, POOL SELLING, AND BOOKMAKING, SO AS TO REVISE THE PENALTIES; TO AMEND SECTION 16-19-160, RELATING TO PUNCHBOARDS FOR GAMING, SO AS TO REVISE THE PENALTIES; TO AMEND SECTION 44-53-370, AS AMENDED, RELATING TO THE OFFENSES FOR TRAFFICKING IN CONTROLLED SUBSTANCES, SO AS TO PROVIDE ADDITIONAL PENALTIES FOR TRAFFICKING IN MARIJUANA; TO AMEND SECTION 44-53-375, AS AMENDED, RELATING TO THE OFFENSES PERTAINING TO ICE, CRANK, AND CRACK COCAINE, SO AS TO DELETE THE OFFENSE FOR "ATTEMPTING TO POSSESS" THE DRUG AND REVISE THE PENALTIES; TO AMEND SECTION 44-53-391, RELATING TO DRUG PARAPHERNALIA, SO AS TO REVISE RELATED OFFENSES AND PENALTIES; AND TO AMEND SECTION 44-53-450, RELATING TO CONDITIONAL DISCHARGES FOR THE FIRST OFFENSE PERTAINING TO ILLEGAL DRUGS, SO AS TO INCLUDE AN ADDITIONAL OFFENSE TO WHICH THE DISCHARGE APPLIES AND CORRECT AN OBSOLETE REFERENCE.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. The 1976 Code is amended by adding:

"Section 44-53-377. A person attempting to possess or purchase a controlled or imitation controlled substance as defined in Section 44-53-110 including, but not limited to, crack cocaine, ice, and crank, is guilty of a misdemeanor and, upon conviction, must be fined not less than two hundred nor more than five hundred dollars and imprisoned not more than thirty days. However, a person attempting to possess or purchase more than one gram of crack cocaine, ice, crank, ten grains of cocaine, one hundred milligrams of alpha- or beta-eucaine, four grains of opium, four grains of morphine, two grains of heroin, one hundred milligrams of isonipecaine, or fifty micrograms of lysergic acid diethylamide (LSD) or its components is subject to a charge of attempting to purchase a controlled substance, or trafficking in a controlled substance, under Section 44-53-370(a) or (e) and Section 44-53-375 (B) or (C), and is subject to the penalties provided under those sections. Conditional discharge may be granted in accordance with Section 44-53-450 by the magistrate or municipal judge."

SECTION 2. Section 16-1-60 of the 1976 Code, as last amended by Section 8, Act 184 of 1993, is further amended to read:

"Section 16-1-60. (A) For purposes of definition under South Carolina law a violent crime includes the offenses of murder (Section 16-3-10); criminal sexual conduct in the first and second degree degrees (Sections 16-3-652 and 16-3-653); criminal sexual conduct with minors (Section 16-3-655); assault with intent to commit criminal sexual conduct (Section 16-3-656); assault and battery with intent to kill (Section 16-3-620); kidnapping (Section 16-3-910); voluntary manslaughter (Section 16-3-50); armed robbery (Section 16-11-330); drug trafficking as defined in Section Sections 44-53-370(e) and Section 44-53-375(C); arson in the first degree (Section 16-11-110(A)); burglary in the first degree (Section 16-11-311); and burglary in the second degree (Section 16-11-312(B)).

(B) For a person to be considered guilty of a violent crime, the offense must be defined as a violent crime pursuant to subsection (A) at the time of the commission of the crime."

SECTION 3. Section 16-19-130 of the 1976 Code is amended to read:

"Section 16-19-130. (A) Any person within this State who A person may not:

(1) Engages engage in betting at any a race track, pool selling, or bookmaking, with or without writing, at any time or place;

(2) Keeps keep or occupies any occupy a room, shed, tenement, booth, building, float, or vessel, or any a part thereof of it, or occupies any occupy a place or stand of any kind upon any public or private grounds within this State with books, papers, apparatus, or paraphernalia for the purpose of recording to record, or registering register bets or wagers or of selling to sell pools;

(3) Records record or registers register bets or wagers, or sells sell pools, or makes make books, with or without writing, upon the result of any a:

(a) trial or contest of skill, speed, or power of endurance of man or beast,;

(b) political nomination, appointment, or election; or

(c) lot, chance, casualty, or unknown or contingent event whatsoever;

(4) Receives receive, registers register, records record, or forwards forward or purports purport or pretends pretend to receive, register, record, or forward, in any manner whatsoever, any money, a thing, or a consideration of value bet or wagered or offered for the purpose of being bet or wagered by or for any other another person or sells sell pools upon any such a result;

(5) Being the owner, lessee or occupant of any knowingly permit a room, shed, tenement, tent, booth, building, float, or vessel, or part thereof of it, or of any grounds within this State knowingly permits the same, as owner, lessee, or occupant, to be used or occupied for any of these purposes or therein keeps keep, exhibits exhibit, or employs any employ a device or an apparatus for the purpose of recording or registering such bets or wagers or the selling of such pools or becomes. The owner, lessee, or occupant may not become the custodian or depository for gain, hire, or reward of any money, property, or a thing of value staked, wagered, or pledged or to be wagered or pledged upon any such a result; or

(6) Aids aid, assists assist, or abets in any manner in any of abet the aforesaid acts, which are hereby forbidden;

Shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine not exceeding one thousand dollars or imprisonment not exceeding six months, or both fine and imprisonment, in the discretion of the court provided in this subsection.

(B) A person who violates this section for a:

(1) first offense is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than three years and fined not more than twenty-five hundred dollars;

(2) second offense is guilty of a felony and, upon conviction, must be imprisoned not more than five years and fined not more than five thousand dollars;

(3) third offense is guilty of a felony and, upon conviction, must be imprisoned not more than ten years and fined not more than ten thousand dollars."

SECTION 4. Section 16-19-160 of the 1976 Code is amended to read:

"Section 16-19-160. It shall be is unlawful for any a person to use or offer for use any punchboards or other kinds of boards with numbers concealed thereon on them for the purpose of gaming or chance in this State. Any A person violating this section shall be is guilty of a misdemeanor and, upon conviction, thereof shall be fined not less than ten dollars nor more than twenty-five dollars or imprisoned not less than five days nor more than thirty days, or both, at the discretion of the court; provided, that for the second or third offense hereunder the fine shall not be less than twenty-five dollars nor more than one hundred dollars or imprisonment on the public works of the county for a period not exceeding three months must be fined not less than two hundred nor more than five hundred dollars or imprisoned not more than thirty days."

SECTION 5. Section 44-53-370(e) of the 1976 Code, as last amended by Section 238, Act 184 of 1993, is further amended to read:

"(e) Any A person who knowingly sells, manufactures, cultivates, delivers, purchases, or brings into this State, or who provides financial assistance or otherwise aids, abets, attempts, or conspires to sell, manufacture, cultivate, deliver, purchase, or bring into this State, or who is knowingly in actual or constructive possession or who knowingly attempts to become in actual or constructive possession of:

(1) ten pounds or more of marijuana is guilty of a felony which is known as `trafficking in marijuana' and, upon conviction, must be punished as follows if the quantity involved is:

(a) ten pounds or more, but less than one hundred twenty-eight pounds:

1. for a first offense, a term of imprisonment of not less than one year nor more than ten years, no part of which may be suspended nor probation granted, and a fine of ten thousand dollars;

2. for a second offense, a term of imprisonment of not less than five years nor more than twenty years, no part of which may be suspended nor probation granted, and a fine of fifteen thousand dollars;

3. for a third or subsequent offense, a mandatory term of imprisonment of twenty-five years, no part of which may be suspended nor probation granted, and a fine of twenty-five thousand dollars;

(b) twenty-eight pounds or more but less than one hundred pounds:

1. for a first offense, a term of imprisonment of not less than seven nor more than twenty-five years and a fine of twenty-five thousand dollars;

2. for a second offense, a term of imprisonment of not less than ten nor more than thirty years and a fine of twenty-five thousand dollars;

3. for a third or subsequent offense, a mandatory term of imprisonment of twenty-five but not more than thirty years, no part of which may be suspended nor probation granted, and a fine of fifty thousand dollars;

(c) one hundred pounds or more, but less than two thousand pounds, or one hundred to one thousand marijuana plants regardless of weight,: a mandatory term of imprisonment of twenty-five years, no part of which may be suspended nor probation granted, and a fine of twenty-five thousand dollars;

(c)(d) two thousand pounds or more, but less than ten thousand pounds, or more than one thousand marijuana plants, but less than ten thousand marijuana plants regardless of weight,: a mandatory term of imprisonment of twenty-five years, no part of which may be suspended nor probation granted, and a fine of fifty thousand dollars;

(d)(e) ten thousand pounds or more, or ten thousand marijuana plants, or more than ten thousand marijuana plants regardless of weight,: a term of imprisonment of not less than twenty-five years nor more than thirty years with a mandatory minimum term of imprisonment of twenty-five years, no part of which may be suspended nor probation granted, and a fine of two hundred thousand dollars;

(2) ten grams or more of cocaine or any mixtures containing cocaine, as provided in Section 44-53-210(b)(4), is guilty of a felony which is known as `trafficking in cocaine' and, upon conviction, must be punished as follows if the quantity involved is:

(a) ten grams or more, but less than twenty-eight grams:

1. for a first offense, a term of imprisonment of not less than three years nor more than ten years, no part of which may be suspended nor probation granted, and a fine of twenty-five thousand dollars;

2. for a second offense, a term of imprisonment of not less than five years nor more than thirty years, no part of which may be suspended nor probation granted, and a fine of fifty thousand dollars;

3. for a third or subsequent offense, a mandatory minimum term of imprisonment of not less than twenty-five years nor more than thirty years, no part of which may be suspended nor probation granted, and a fine of fifty thousand dollars;

(b) twenty-eight grams or more, but less than one hundred grams:

1. for a first offense, a term of imprisonment of not less than seven years nor more than twenty-five years, no part of which may be suspended nor probation granted, and a fine of fifty thousand dollars;

2. for a second offense, a term of imprisonment of not less than seven years nor more than thirty years, no part of which may be suspended nor probation granted, and a fine of fifty thousand dollars;

3. for a third or subsequent offense, a mandatory minimum term of imprisonment of not less than twenty-five years and not nor more than thirty years, no part of which may be suspended nor probation granted, and a fine of fifty thousand dollars;

(c) one hundred grams or more, but less than two hundred grams,: a mandatory term of imprisonment of twenty-five years, no part of which may be suspended nor probation granted, and a fine of fifty thousand dollars;

(d) two hundred grams or more, but less than four hundred grams,: a mandatory term of imprisonment of twenty-five years, no part of which may be suspended nor probation granted, and a fine of one hundred thousand dollars;

(e) four hundred grams or more,: a term of imprisonment of not less than twenty-five years nor more than thirty years with a mandatory minimum term of imprisonment of twenty-five years, no part of which may be suspended nor probation granted, and a fine of two hundred thousand dollars;

(3) four grams or more of any morphine, opium, salt, isomer, or salt of an isomer thereof, including heroin, as described in Section 44-53-190 or 44-53-210, or four grams or more of any a mixture containing any of these substances, is guilty of a felony which is known as `trafficking in illegal drugs' and, upon conviction, must be punished as follows if the quantity involved is:

(a) four grams or more, but less than fourteen grams:

1. for a first offense, a term of imprisonment of not less than seven years nor more than twenty-five years, no part of which may be suspended nor probation granted, and a fine of fifty thousand dollars;

2. for a second or subsequent offense, a mandatory minimum term of imprisonment of twenty-five years, no part of which may be suspended nor probation granted, and a fine of one hundred thousand dollars;

(b) fourteen grams or more but less than twenty-eight grams, a mandatory term of imprisonment of twenty-five years, no part of which may be suspended nor probation granted, and a fine of two hundred thousand dollars;

(c) twenty-eight grams or more, a mandatory term of imprisonment of not less than twenty-five years nor more than forty years, no part of which may be suspended nor probation granted, and a fine of two hundred thousand dollars;

(4) fifteen grams or more of methaqualone is guilty of a felony which is known as `trafficking in methaqualone' and, upon conviction, must be punished as follows if the quantity involved is:

(a) fifteen grams but less than one hundred fifty grams:

1. for a first offense, a term of imprisonment of not less than one year nor more than ten years, no part of which may be suspended nor probation granted, and a fine of ten thousand dollars;

2. for a second or subsequent offense, a mandatory term of imprisonment of twenty-five years, no part of which may be suspended nor probation granted, and a fine of twenty-five thousand dollars;

(b) one hundred fifty grams but less than fifteen hundred grams, a mandatory term of imprisonment of twenty-five years, no part of which may be suspended nor probation granted, and a fine of twenty-five thousand dollars;

(c) fifteen hundred grams but less than fifteen kilograms, a mandatory term of imprisonment of twenty-five years, no part of which may be suspended nor probation granted, and a fine of fifty thousand dollars;

(d) fifteen kilograms or more, a term of imprisonment of not less than twenty-five years nor more than thirty years with a mandatory minimum term of imprisonment of twenty-five years, no part of which may be suspended nor probation granted, and a fine of two hundred thousand dollars.

(5) one hundred tablets, capsules, dosage units, or the equivalent quantity, or more of lysergic acid diethylamide (LSD) is guilty of a felony which is known as `trafficking in LSD' and, upon conviction, must be punished as follows if the quantity involved is:

(a) one hundred dosage units or the equivalent quantity, or more, but less than five hundred dosage units or the equivalent quantity:

1. for a first offense, a term of imprisonment of not less than three years nor more than ten years, no part of which may be suspended nor probation granted, and a fine of twenty thousand dollars;

2. for a second offense, a term of imprisonment of not less than five years nor more than thirty years, no part of which may be suspended or probation granted, and a fine of forty thousand dollars;

3. for a third or subsequent offense, a mandatory minimum term of imprisonment of not less than twenty-five years nor more than thirty years, no part of which may be suspended nor probation granted, and a fine of fifty thousand dollars;

(b) five hundred dosage units or the equivalent quantity, or more, but less than one thousand dosage units or the equivalent quantity:

1. for a first offense, a term of imprisonment of not less than seven years nor more than twenty-five years, no part of which may be suspended nor probation granted, and a fine of fifty thousand dollars;

2. for a second offense, a term of imprisonment of not less than seven years nor more than thirty years, no part of which may be suspended nor probation granted, and a fine of fifty thousand dollars;

3. for a third or subsequent offense, a mandatory minimum term of imprisonment of not less than twenty-five years and not nor more than thirty years, no part of which may be suspended nor probation granted, and a fine of fifty thousand dollars;

(c) one thousand dosage units or the equivalent quantity, or more, a mandatory term of imprisonment of twenty-five years, no part of which may be suspended nor probation granted, and a fine of one hundred thousand dollars.

Sentences for a violation of the provisions of this subsection may must not be suspended, and probation may must not be granted. Notwithstanding Section 44-53-420, any a person convicted of conspiracy pursuant to this subsection must be sentenced as provided herein in the subsection with a full sentence or punishment and not one-half of the sentence or punishment prescribed for the offense.

The weight of any a controlled substance in this subsection includes the substance in pure form or any a compound or mixture of the substance.

The offense of possession with intent to distribute described in Section 44-53-370(a) subsection (a) is a lesser included offense to the offenses of trafficking based upon possession described in this subsection."

SECTION 6. Section 44-53-375(A) and (B) of the 1976 Code, as last amended by Section 74, Act 184 of 1993, is further amended to read:

"(A) A person possessing or attempting to possess less than one gram of ice, crank, or crack cocaine, as defined in Section 44-53-110, is guilty of a felony and, upon conviction for a first offense, must be imprisoned not more than five years and fined not less than five thousand dollars. For a first offense, the court, upon approval of the solicitor, may require as part of a sentence, that the offender enter and successfully complete a drug treatment and rehabilitation program. For a second offense, the offender is guilty of a felony and, upon conviction, must be imprisoned not more than ten years and fined not less than ten thousand dollars. For a third or subsequent offense, the offender is guilty of a felony and, upon conviction, must be imprisoned not less than ten years nor more than fifteen years and fined not less than fifteen thousand dollars.

(B) A person who manufactures, distributes, dispenses, delivers, purchases, or otherwise aids, abets, attempts, or conspires to manufacture, distribute, dispense, deliver, or purchase, or possesses with intent to distribute, dispense, or deliver ice, crank, or crack cocaine, in violation of the provisions of Section 44-53-370, is guilty of a felony and, upon conviction:

(1) for a first offense, must be sentenced to a term of imprisonment of imprisoned not more than fifteen years and fined not less than twenty-five thousand dollars;

(2) for a second offense or if, in the case of for a first conviction of a violation of this section, the offender has been convicted of any of the laws of the United States or of any a state, territory, or district relating to narcotic drugs, marijuana, or depressant, stimulant, or hallucinogenic drugs, the offender must be imprisoned for not less than five nor more than twenty-five thirty years and fined not less than fifty thousand dollars;

(3) for a third or subsequent offense or if the offender has been convicted two or more times in the aggregate of any a violation of the laws of the United States or of any a state, territory, or district relating to narcotic drugs, marijuana, or depressant, stimulant, or hallucinogenic drugs, the offender must be imprisoned for not less than fifteen nor more than thirty years and fined not less than one hundred fifty thousand dollars.

Possession of one or more grams of ice, crank, or crack cocaine is prima facie evidence of a violation of this subsection."

SECTION 7. Section 44-53-391 of the 1976 Code is amended to read:

"Section 44-53-391. (a) It shall be is unlawful for any a person to advertise for sale, manufacture, possess, sell or deliver, or to possess with the intent to deliver, or sell paraphernalia.

(b) In determining whether an object is paraphernalia, a court or other authority shall consider, in addition to all other logically relevant factors, the following:

(1) statements by an owner or by anyone a person in control of the object concerning its use;

(2) the proximity of the object to controlled substances;

(3) the existence of any residue of controlled substances on the object;

(4) direct or circumstantial evidence of the intent of an owner, or of anyone a person in control of the object, to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of law;. The innocence of an owner, or of anyone a person in control of the object, as to a direct violation of law shall does not prevent a finding that the object is intended for use, or designed for use as drug paraphernalia;

(5) instructions, oral or written, provided with the object concerning its use;

(6) descriptive materials accompanying the object which explain or depict its use;

(7) national and local advertising concerning it its use;

(8) the manner in which the object is displayed for sale;

(9) whether the owner, or anyone a person in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;

(10) direct or circumstantial evidence of the ratio of sales of the object to the total sales of the business enterprise;

(11) the existence and scope of legitimate uses for the object in the community;

(12) expert testimony concerning its use.

(c) Any person found guilty of violating the provisions of this section shall be subject to a civil fine of not more than five hundred dollars except that a corporation shall be subject to a civil fine of not more than fifty thousand dollars. Imposition of such fine shall not give rise to any disability or legal disadvantage based on conviction for a criminal offense. A person found guilty of possession of paraphernalia is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned not more than thirty days. A person found guilty of advertising for sale, manufacture, sale or delivery, or possession with intent to deliver or sell is guilty of a felony and, upon conviction, must be fined not less than five hundred nor more than fifty thousand dollars or imprisoned five years, or both."

SECTION 8. Section 44-53-450 of the 1976 Code is amended to read:

"Section 44-53-450. (a) Whenever any a person who previously has not previously been convicted of any an offense under this article or any an offense under any a state or federal statute relating to marijuana, or stimulant, depressant, or hallucinogenic drugs, pleads guilty to or is found guilty of attempting to possess or purchase a controlled or imitation controlled substance under Section 44-53-377 or pleads guilty to or is found guilty of possession of a controlled substance under Section 44-53-370 (c) and (d), except narcotic drugs classified in Schedule I (b) and (c) and narcotic drugs classified in Schedule II, the court, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him on probation upon terms and conditions as it requires, including the requirement that such the person cooperate in a treatment and rehabilitation program of a state-supported facility or a facility approved by the Commission Department of Alcohol and Other Drug Abuse Services, if available. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal under this section shall be are without court adjudication of guilt and is are not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for second or subsequent convictions. However, a nonpublic record shall must be forwarded to and retained by the Department of Narcotic and Dangerous Drugs under the South Carolina Law Enforcement Division solely for the purpose of use by the courts in determining whether or not a person has committed a subsequent offense under this article. Discharge and dismissal under this section may occur only once with respect to any a person.

(b) Upon the dismissal of such the person and discharge of the proceedings against him under subsection (a) of this section, such the person, if he was not over twenty-five years of age at the time of the offense, and if the offense did not involve a controlled substance classified in Schedule I which is a narcotic drug and Schedule II which is a narcotic drug, may apply to the court for an order to expunge from all official records, (other than the nonpublic records to be retained as provided in subsection (a), of this section) all recordation relating to his arrest, indictment or information, trial, finding of guilty, and dismissal and discharge pursuant to this section. If the court determines, after hearing, that such the person was dismissed and the proceedings against him discharged and that he was not over twenty-five years of age at the time of the offense, it shall enter such the order. The effect of such the order shall be is to restore such the person, in the contemplation of the law, to the status he occupied before such arrest or indictment or information. No person as to whom such the order has been entered shall may be held thereafter under any a provision of any law to be guilty of perjury or otherwise giving a false statement by reason of his failures to recite or acknowledge such the arrest, or indictment or information, or trial in response to any an inquiry made of him for any purpose."

SECTION 9. This act takes effect upon approval by the Governor.