Session of 2023
HOUSE BILL No. 2385
By Committee on Corrections and Juvenile Justice
2-9
AN ACT concerning crimes, punishment and criminal procedure; relating
to presumptions; modifying the rules of evidence to provide rules for
presumptions and inferences; replacing the rebuttable presumption of
intent to distribute controlled substances with a permissive inference;
amending K.S.A. 60-416 and K.S.A. 2022 Supp. 21-5705 and repealing
the existing sections.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 2022 Supp. 21-5705 is hereby amended to read as
follows: 21-5705. (a) It shall be unlawful for any person to distribute or
possess with the intent to distribute any of the following controlled
substances or controlled substance analogs thereof:
(1) Opiates, opium or narcotic drugs, or any stimulant designated in
subsection (d)(1), (d)(3) or (f)(1) of K.S.A. 65-4107(d)(1), (d)(3) or (f)(1),
and amendments thereto;
(2) any depressant designated in subsection (e) of K.S.A. 65-4105(e),
subsection (e) of K.S.A. 65-4107(e), subsection (b) or (c) of K.S.A. 65-
4109(b) or (c) or subsection (b) of K.S.A. 65-4111(b), and amendments
thereto;
(3) any stimulant designated in subsection (f) of K.S.A. 65-4105(f),
subsection (d)(2), (d)(4), (d)(5) or (f)(2) of K.S.A. 65-4107(d)(2), (d)(4),
(d)(5) or (f)(2) or subsection (e) of K.S.A. 65-4109(e), and amendments
thereto;
(4) any hallucinogenic drug designated in subsection (d) of K.S.A.
65-4105(d), subsection (g) of K.S.A. 65-4107(g) or subsection (g) of
K.S.A. 65-4109(g), and amendments thereto;
(5) any substance designated in subsection (g) of K.S.A. 65-4105(g)
and subsection (c), (d), (e), (f) or (g) of K.S.A. or 65-4111(c), (d), (e), (f)
or (g), and amendments thereto;
(6) any anabolic steroids as defined in subsection (f) of K.S.A. 65-
4109(f), and amendments thereto; or
(7) any substance designated in subsection (h) of K.S.A. 65-4105(h),
and amendments thereto.
(b) It shall be unlawful for any person to distribute or possess with
the intent to distribute a controlled substance or a controlled substance
analog designated in K.S.A. 65-4113, and amendments thereto.
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(c) It shall be unlawful for any person to cultivate any controlled
substance or controlled substance analog listed in subsection (a).
(d) (1) Except as provided further, violation of subsection (a) is a:
(A) Drug severity level 4 felony if the quantity of the material was
less than 3.5 grams;
(B) drug severity level 3 felony if the quantity of the material was at
least 3.5 grams but less than 100 grams;
(C) drug severity level 2 felony if the quantity of the material was at
least 100 grams but less than 1 kilogram; and
(D) drug severity level 1 felony if the quantity of the material was 1
kilogram or more.
(2) Violation of subsection (a) with respect to material containing any
quantity of marijuana, or an analog thereof, is a:
(A) Drug severity level 4 felony if the quantity of the material was
less than 25 grams;
(B) drug severity level 3 felony if the quantity of the material was at
least 25 grams but less than 450 grams;
(C) drug severity level 2 felony if the quantity of the material was at
least 450 grams but less than 30 kilograms; and
(D) drug severity level 1 felony if the quantity of the material was 30
kilograms or more.
(3) Violation of subsection (a) with respect to material containing any
quantity of heroin, as defined by subsection (c)(1) of K.S.A. 65-4105, and
amendments thereto, or methamphetamine, as defined by subsection (d)(3)
or (f)(1) of K.S.A. 65-4107, and amendments thereto, or an analog thereof,
is a:
(A) Drug severity level 4 felony if the quantity of the material was
less than 1 gram;
(B) drug severity level 3 felony if the quantity of the material was at
least 1 gram but less than 3.5 grams;
(C) drug severity level 2 felony if the quantity of the material was at
least 3.5 grams but less than 100 grams; and
(D) drug severity level 1 felony if the quantity of the material was
100 grams or more.
(4) Violation of subsection (a) with respect to material containing any
quantity of a controlled substance designated in K.S.A. 65-4105, 65-4107,
65-4109 or 65-4111, and amendments thereto, or an analog thereof,
distributed by dosage unit, is a:
(A) Drug severity level 4 felony if the number of dosage units was
fewer than 10;
(B) drug severity level 3 felony if the number of dosage units was at
least 10 but less than 100;
(C) drug severity level 2 felony if the number of dosage units was at
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least 100 but less than 1,000; and
(D) drug severity level 1 felony if the number of dosage units was
1,000 or more.
(5) For any violation of subsection (a), the severity level of the
offense shall be increased one level if the controlled substance or
controlled substance analog was distributed or possessed with the intent to
distribute on or within 1,000 feet of any school property.
(6) Violation of subsection (b) is a:
(A) Class A person misdemeanor, except as provided in subsection
(d)(6)(B); and
(B) nondrug severity level 7, person felony if the substance was
distributed to or possessed with the intent to distribute to a minor.
(7) Violation of subsection (c) is a:
(A) Drug severity level 3 felony if the number of plants cultivated
was more than 4 but fewer than 50;
(B) drug severity level 2 felony if the number of plants cultivated was
at least 50 but fewer than 100; and
(C) drug severity level 1 felony if the number of plants cultivated was
100 or more.
(e) In any prosecution under this section, there shall be a rebuttable
presumption an inference of an intent to distribute if any such an inference
is supported by the facts and such person possesses the following
quantities of controlled substances or analogs thereof:
(1) 450 grams or more of marijuana;
(2) 3.5 grams or more of heroin or methamphetamine;
(3) 100 dosage units or more containing a controlled substance; or
(4) 100 grams or more of any other controlled substance.
(f) It shall not be a defense to charges arising under this section that
the defendant:
(1) Was acting in an agency relationship on behalf of any other party
in a transaction involving a controlled substance or controlled substance
analog;
(2) did not know the quantity of the controlled substance or
controlled substance analog; or
(3) did not know the specific controlled substance or controlled
substance analog contained in the material that was distributed or
possessed with the intent to distribute.
(g) As used in this section:
(1) "Material" means the total amount of any substance, including a
compound or a mixture, which contains any quantity of a controlled
substance or controlled substance analog.
(2) "Dosage unit" means a controlled substance or controlled
substance analog distributed or possessed with the intent to distribute as a
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discrete unit, including but not limited to, one pill, one capsule or one
microdot, and not distributed by weight.
(A) For steroids, or controlled substances in liquid solution legally
manufactured for prescription use, or an analog thereof, "dosage unit"
means the smallest medically approved dosage unit, as determined by the
label, materials provided by the manufacturer, a prescribing authority,
licensed health care professional or other qualified health authority.
(B) For illegally manufactured controlled substances in liquid
solution, or controlled substances in liquid products not intended for
ingestion by human beings, or an analog thereof, "dosage unit" means 10
milligrams, including the liquid carrier medium, except as provided in
subsection (g)(2)(C).
(C) For lysergic acid diethylamide (LSD) in liquid form, or an analog
thereof, a dosage unit is defined as 0.4 milligrams, including the liquid
medium.
Sec. 2. K.S.A. 60-416 is hereby amended to read as follows: 60-416.
(a) A presumption, which by a rule of law may be overcome only by proof
beyond a reasonable doubt, or by clear and convincing evidence, shall not
be affected by K.S.A. 60-414 or 60-415, and amendments thereto, and the
burden of proof to overcome it continues on the party against whom the
presumption operates.
(b) (1) In a criminal case, any presumption or inference against the
defendant created by statute or common law, including, but not limited to,
a presumption or inference that certain facts are prima facie evidence of
another fact or of guilt, is permissive. The trier of fact may accept or
reject the presumption or inference in each case, and the judge shall not
direct the jury to find a fact against the defendant. The judge may instruct
the jury on the presumption or inference only if the presumption or
inference is supported by the facts.
(2) When the judge instructs the jury on a presumption or inference
against the defendant, the judge shall instruct the jury that:
(A) The jury may consider the presumption or inference along with
all other evidence in the case;
(B) the jury may accept or reject the presumption or inference in
determining whether the prosecution has met the burden of proof; and
(C) the burden of proof never shifts to the defendant.
Sec. 3. K.S.A. 60-416 and K.S.A. 2022 Supp. 21-5705 are hereby
repealed.
Sec. 4. This act shall take effect and be in force from and after its
publication in the statute book.
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