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Kansas House Bill HB2328

Kansas 2023-2024 Regular Session

Kansas House Bill HB2328 Compare Versions

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11 Session of 2023
22 HOUSE BILL No. 2328
33 By Committee on Corrections and Juvenile Justice
44 2-7
55 AN ACT concerning crimes, punishment and criminal procedure; relating
66 to controlled substances definitions; excluding materials used to detect
77 the presence of fentanyl, ketamine or gamma hydroxybutyric acid from
88 the definition of drug paraphernalia; amending K.S.A. 2022 Supp. 21-
99 5701 and repealing the existing section; also repealing K.S.A. 2022
1010 Supp. 21-5701b.
1111 Be it enacted by the Legislature of the State of Kansas:
1212 Section 1. K.S.A. 2022 Supp. 21-5701 is hereby amended to read as
1313 follows: 21-5701. As used in K.S.A. 2022 Supp. 21-5701 through 21-
1414 5717, and amendments thereto:
1515 (a) "Controlled substance" means any drug, substance or immediate
1616 precursor included in any of the schedules designated in K.S.A. 65-4105,
1717 65-4107, 65-4109, 65-4111 and 65-4113, and amendments thereto.
1818 (b) (1) "Controlled substance analog" means a substance that is
1919 intended for human consumption, and at least one of the following:
2020 (A) The chemical structure of the substance is substantially similar to
2121 the chemical structure of a controlled substance listed in or added to the
2222 schedules designated in K.S.A. 65-4105 or 65-4107, and amendments
2323 thereto;
2424 (B) the substance has a stimulant, depressant or hallucinogenic effect
2525 on the central nervous system substantially similar to the stimulant,
2626 depressant or hallucinogenic effect on the central nervous system of a
2727 controlled substance included in the schedules designated in K.S.A. 65-
2828 4105 or 65-4107, and amendments thereto; or
2929 (C) with respect to a particular individual, such individual represents
3030 or intends the substance to have a stimulant, depressant or hallucinogenic
3131 effect on the central nervous system substantially similar to the stimulant,
3232 depressant or hallucinogenic effect on the central nervous system of a
3333 controlled substance included in the schedules designated in K.S.A. 65-
3434 4105 or 65-4107, and amendments thereto.
3535 (2) "Controlled substance analog" does not include:
3636 (A) A controlled substance;
3737 (B) a substance for which there is an approved new drug application;
3838 or
3939 (C) a substance with respect to which an exemption is in effect for
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7676 investigational use by a particular person under section 505 of the federal
7777 food, drug, and cosmetic act, 21 U.S.C. § 355, to the extent conduct with
7878 respect to the substance is permitted by the exemption.
7979 (c) "Cultivate" means the planting or promotion of growth of five or
8080 more plants that contain or can produce controlled substances.
8181 (d) "Distribute" means the actual, constructive or attempted transfer
8282 from one person to another of some item whether or not there is an agency
8383 relationship. "Distribute" includes, but is not limited to, sale, offer for sale
8484 or any act that causes some item to be transferred from one person to
8585 another. "Distribute" does not include acts of administering, dispensing or
8686 prescribing a controlled substance as authorized by the pharmacy act of the
8787 state of Kansas, the uniform controlled substances act or otherwise
8888 authorized by law.
8989 (e) (1) "Drug" means:
9090 (A) Substances recognized as drugs in the official United States
9191 pharmacopeia, official homeopathic pharmacopoeia of the United States or
9292 official national formulary or any supplement to any of them;
9393 (B) substances intended for use in the diagnosis, cure, mitigation,
9494 treatment or prevention of disease in humans or animals;
9595 (C) substances, other than food, intended to affect the structure or any
9696 function of the body of humans or animals; and
9797 (D) substances intended for use as a component of any article
9898 specified in subparagraph (A), (B) or (C).
9999 (2) "Drug" does not include devices or their components, parts or
100100 accessories.
101101 (f) "Drug paraphernalia" means all equipment and materials of any
102102 kind that are used, or primarily intended or designed for use in planting,
103103 propagating, cultivating, growing, harvesting, manufacturing,
104104 compounding, converting, producing, processing, preparing, testing,
105105 analyzing, packaging, repackaging, storing, containing, concealing,
106106 injecting, ingesting, inhaling or otherwise introducing into the human body
107107 a controlled substance and in violation of this act.
108108 (1) "Drug paraphernalia" shall include includes, but is not limited to:
109109 (1)(A) Kits used or intended for use in planting, propagating,
110110 cultivating, growing or harvesting any species of plant that is a controlled
111111 substance or from which a controlled substance can be derived;
112112 (2)(B) kits used or intended for use in manufacturing, compounding,
113113 converting, producing, processing or preparing controlled substances;
114114 (3)(C) isomerization devices used or intended for use in increasing
115115 the potency of any species of plant that is a controlled substance;
116116 (4)(D) testing equipment used or intended for use in identifying or in
117117 analyzing the strength, effectiveness or purity of controlled substances;
118118 (5)(E) scales and balances used or intended for use in weighing or
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162162 measuring controlled substances;
163163 (6)(F) diluents and adulterants, including, but not limited to, quinine
164164 hydrochloride, mannitol, mannite, dextrose and lactose that are used or
165165 intended for use in cutting controlled substances;
166166 (7)(G) separation gins and sifters used or intended for use in
167167 removing twigs and seeds from or otherwise cleaning or refining
168168 marijuana;
169169 (8)(H) blenders, bowls, containers, spoons and mixing devices used
170170 or intended for use in compounding controlled substances;
171171 (9)(I) capsules, balloons, envelopes, bags and other containers used
172172 or intended for use in packaging small quantities of controlled substances;
173173 (10)(J) containers and other objects used or intended for use in
174174 storing or concealing controlled substances;
175175 (11)(K) hypodermic syringes, needles and other objects used or
176176 intended for use in parenterally injecting controlled substances into the
177177 human body; or
178178 (12)(L) objects used or primarily intended or designed for use in
179179 ingesting, inhaling or otherwise introducing marijuana, cocaine, hashish,
180180 hashish oil, phencyclidine (PCP), methamphetamine or amphetamine into
181181 the human body, such as:
182182 (A)(i) Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes
183183 with or without screens, permanent screens, hashish heads or punctured
184184 metal bowls;
185185 (B)(ii) water pipes, bongs or smoking pipes designed to draw smoke
186186 through water or another cooling device;
187187 (C)(iii) carburetion pipes, glass or other heat resistant heat-resistant
188188 tubes or any other device used, intended to be used or designed to be used
189189 to cause vaporization of a controlled substance for inhalation;
190190 (D)(iv) smoking and carburetion masks;
191191 (E)(v) roach clips, objects used to hold burning material, such as a
192192 marijuana cigarette, that has become too small or too short to be held in
193193 the hand;
194194 (F)(vi) miniature cocaine spoons and cocaine vials;
195195 (G)(vii) chamber smoking pipes;
196196 (H)(viii) carburetor smoking pipes;
197197 (I)(ix) electric smoking pipes;
198198 (J)(x) air-driven smoking pipes;
199199 (K)(xi) chillums;
200200 (L)(xii) bongs;
201201 (M)(xiii) ice pipes or chillers;
202202 (N)(xiv) any smoking pipe manufactured to disguise its intended
203203 purpose;
204204 (O)(xv) wired cigarette papers; or
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248248 (P)(xvi) cocaine freebase kits.
249249 (2) "Drug paraphernalia" shall does not include:
250250 (A) Any products, chemicals or materials described in K.S.A. 2022
251251 Supp. 21-5709(a), and amendments thereto; or
252252 (B) any materials used or intended for use to test a substance for the
253253 presence of fentanyl, a fentanyl analog, ketamine or gamma
254254 hydroxybutyric acid.
255255 (g) "Immediate precursor" means a substance that the state board of
256256 pharmacy has found to be and by rules and regulations designates as being
257257 the principal compound commonly used or produced primarily for use and
258258 that is an immediate chemical intermediary used or likely to be used in the
259259 manufacture of a controlled substance, the control of which is necessary to
260260 prevent, curtail or limit manufacture.
261261 (h) "Isomer" means all enantiomers and diastereomers.
262262 (i) "Manufacture" means the production, preparation, propagation,
263263 compounding, conversion or processing of a controlled substance either
264264 directly or indirectly or by extraction from substances of natural origin or
265265 independently by means of chemical synthesis or by a combination of
266266 extraction and chemical synthesis. "Manufacture" does not include:
267267 (1) The preparation or compounding of a controlled substance by an
268268 individual for the individual's own lawful use or the preparation,
269269 compounding, packaging or labeling of a controlled substance:
270270 (A) By a practitioner or the practitioner's agent pursuant to a lawful
271271 order of a practitioner as an incident to the practitioner's administering or
272272 dispensing of a controlled substance in the course of the practitioner's
273273 professional practice; or
274274 (B) by a practitioner or by the practitioner's authorized agent under
275275 such practitioner's supervision for the purpose of or as an incident to
276276 research, teaching or chemical analysis or by a pharmacist or medical care
277277 facility as an incident to dispensing of a controlled substance; or
278278 (2) the addition of diluents or adulterants, including, but not limited
279279 to, quinine hydrochloride, mannitol, mannite, dextrose or lactose that are
280280 intended for use in cutting a controlled substance.
281281 (j) "Marijuana" means all parts of all varieties of the plant Cannabis
282282 whether growing or not, the seeds thereof, the resin extracted from any
283283 part of the plant and every compound, manufacture, salt, derivative,
284284 mixture or preparation of the plant, its seeds or resin. "Marijuana" does not
285285 include:
286286 (1) The mature stalks of the plant, fiber produced from the stalks, oil
287287 or cake made from the seeds of the plant, any other compound,
288288 manufacture, salt, derivative, mixture or preparation of the mature stalks,
289289 except the resin extracted therefrom, fiber, oil or cake or the sterilized seed
290290 of the plant that is incapable of germination;
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334334 (2) any substance listed in schedules II through V of the uniform
335335 controlled substances act;
336336 (3) drug products approved by the United States food and drug
337337 administration as of the effective date of this act;
338338 (4) cannabidiol (other trade name: 2-[(3-methyl-6-(1-methylethenyl)-
339339 2-cyclohexen-1-yl]-5-pentyl-1,3-benzenediol); or
340340 (5) industrial hemp as defined in K.S.A. 2-3901, and amendments
341341 thereto, when cultivated, produced, possessed or used for activities
342342 authorized by the commercial industrial hemp act.
343343 (k) "Minor" means a person under 18 years of age.
344344 (l) "Narcotic drug" means any of the following whether produced
345345 directly or indirectly by extraction from substances of vegetable origin or
346346 independently by means of chemical synthesis or by a combination of
347347 extraction and chemical synthesis:
348348 (1) Opium and opiate and any salt, compound, derivative or
349349 preparation of opium or opiate;
350350 (2) any salt, compound, isomer, derivative or preparation thereof that
351351 is chemically equivalent or identical with any of the substances referred to
352352 in paragraph (1) but not including the isoquinoline alkaloids of opium;
353353 (3) opium poppy and poppy straw;
354354 (4) coca leaves and any salt, compound, derivative or preparation of
355355 coca leaves and any salt, compound, isomer, derivative or preparation
356356 thereof that is chemically equivalent or identical with any of these
357357 substances, but not including decocainized coca leaves or extractions of
358358 coca leaves that do not contain cocaine or ecgonine.
359359 (m) "Opiate" means any substance having an addiction-forming or
360360 addiction-sustaining liability similar to morphine or being capable of
361361 conversion into a drug having addiction-forming or addiction-sustaining
362362 liability. "Opiate" does not include, unless specifically designated as
363363 controlled under K.S.A. 65-4102, and amendments thereto, the
364364 dextrorotatory isomer of 3-methoxy-n-methylmorphinan and its salts
365365 (dextromethorphan). "Opiate" does include its racemic and levorotatory
366366 forms.
367367 (n) "Opium poppy" means the plant of the species Papaver
368368 somniferum l. except its seeds.
369369 (o) "Person" means an individual, corporation, government or
370370 governmental subdivision or agency, business trust, estate, trust,
371371 partnership, association or any other legal entity.
372372 (p) "Poppy straw" means all parts, except the seeds, of the opium
373373 poppy, after mowing.
374374 (q) "Possession" means having joint or exclusive control over an item
375375 with knowledge of and intent to have such control or knowingly keeping
376376 some item in a place where the person has some measure of access and
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420420 right of control.
421421 (r) "School property" means property upon which is located a
422422 structure used by a unified school district or an accredited nonpublic
423423 school for student instruction or attendance or extracurricular activities of
424424 pupils enrolled in kindergarten or any of the grades one through 12. This
425425 definition shall not be construed as requiring that school be in session or
426426 that classes are actually being held at the time of the offense or that
427427 children must be present within the structure or on the property during the
428428 time of any alleged criminal act. If the structure or property meets the
429429 above definition, the actual use of that structure or property at the time
430430 alleged shall not be a defense to the crime charged or the sentence
431431 imposed.
432432 (s)(r) "Simulated controlled substance" means any product that
433433 identifies itself by a common name or slang term associated with a
434434 controlled substance and that indicates on its label or accompanying
435435 promotional material that the product simulates the effect of a controlled
436436 substance.
437437 Sec. 2. K.S.A. 2022 Supp. 21-5701 and 21-5701b are hereby
438438 repealed.
439439 Sec. 3. This act shall take effect and be in force from and after its
440440 publication in the statute book.
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