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AN ACT relating to controlled substances. 1
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2
SECTION 1. A NEW SECTION OF KRS CHAPTER 211 IS CREATED TO 3
READ AS FOLLOWS: 4
(1) As used in Sections 1 to 3 of this Act: 5
(a) "Commissioner" means the commissioner of the Department for Public 6
Health; 7
(b) "Department" means Department for Public Health; and 8
(c) "Harm reduction center" means a community-based resource offering 9
services which may include but are not limited to health screening, syringe 10
support, drug checking, disease prevention, recovery assistance, and 11
overdose prevention services where persons may safely consume 12
preobtained substances. 13
(2) Within six (6) months after the effective date of this Act, the department shall 14
establish a program to prevent drug overdoses through the use of harm reduction 15
centers. 16
(3) Harm reduction centers established pursuant to Sections 1 to 3 of this Act shall 17
be operated by a local health department. The legislative body of the county, 18
urban-county government, or consolidated local government in which the 19
program will operate shall approve the: 20
(a) Opening and operation of the proposed harm reduction center; 21
(b) Location of the proposed harm reduction center; and 22
(c) Hours of operation of the proposed harm reduction center. 23
(4) Each harm reduction center established pursuant to Sections 1 to 3 of this Act 24
shall provide the necessary health care professionals to prevent overdose, 25
referrals for counseling, or other medical treatment that may be appropriate for 26
persons utilizing the harm reduction center. 27 UNOFFICIAL COPY 23 RS BR 945
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(5) A harm reduction center established pursuant to Sections 1 to 3 of this Act may, 1
in cooperation with a Kentucky public university college or school of medicine, 2
provide drug and substance checking services. An agency offering services under 3
this subsection shall: 4
(a) Offer voluntary testing of any substance which may be a controlled 5
substance or psychoactive substance to ascertain the composition and likely 6
identity of the drug or substance; 7
(b) Advise the individual who presented a drug or substance for checking of the 8
outcome of the testing; 9
(c) Provide accurate and appropriate information and harm reduction advice to 10
help individuals make informed decisions about drug and substance use; 11
and 12
(d) After the testing is concluded: 13
1. Return the drug or substance to the individual who presented it for 14
checking; or 15
2. Dispose of, or arrange for the disposal of, any drug or substance 16
surrendered by any individual for disposal. 17
(6) The commissioner shall promulgate regulations in accordance with KRS Chapter 18
13A to authorize the program established by Sections 1 to 3 of this Act. 19
SECTION 2. A NEW SECTION OF KRS CHAPTER 211 IS CREATED TO 20
READ AS FOLLOWS: 21
(1) There is hereby established an advisory committee to advise the commissioner on 22
the administrative regulations necessary to effectuate the purpose of Sections 1 to 23
3 of this Act. The advisory committee shall be chaired by the commissioner, or the 24
commissioner's designee, and shall consist of the following additional members: 25
(a) The commissioner of the Department for Behavioral Health, Developmental 26
and Intellectual Disabilities, or his or her designee; 27 UNOFFICIAL COPY 23 RS BR 945
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(b) The dean of the University of Kentucky College of Social Work, or his or 1
her designee; 2
(c) The dean of the University of Louisville Raymond A. Kent School of Social 3
Work and Family Science, or his or her designee; and 4
(d) Three (3) members appointed by the Governor as follows: 5
1. A physician certified by the American Society of Addiction Medicine; 6
and 7
2. Two (2) persons in recovery from a substance use disorder defined in 8
the most recent version of the Diagnostic and Statistical Manual of 9
Mental Disorders. 10
(2) The advisory committee shall make recommendations to the commissioner on: 11
(a) Ways to maximize the potential public health and safety benefits of harm 12
reduction centers; 13
(b) The proper disposal of hypodermic needles and syringes; 14
(c) The recovery of persons utilizing such harm reduction centers; 15
(d) Federal, state, and local laws impacting the creation and operation of the 16
harm reduction centers; 17
(e) Appropriate guidance to relevant professional licensing boards; 18
(f) Potential collaboration with other public health efforts; 19
(g) Consideration of any other factors beneficial to promoting the public health 20
and safety; and 21
(h) Liability protection for property owners and harm reduction center staff, 22
volunteers, and participants from criminal or civil liability resulting from 23
the operation of a harm reduction center. 24
(3) The commissioner shall promulgate administrative regulations authorized by 25
Sections 1 to 3 of this Act no later than six (6) months after the effective date of 26
this Act. 27 UNOFFICIAL COPY 23 RS BR 945
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SECTION 3. A NEW SECTION OF KRS CHAPTER 211 IS CREATED TO 1
READ AS FOLLOWS: 2
Notwithstanding any other law to the contrary, a person or entity, including but not 3
limited to a property owner, manager, employee, volunteer, client, or participant, and a 4
state, city, or county government employee acting in the course and scope of 5
employment, shall not: 6
(1) Be arrested, charged, or prosecuted pursuant to KRS Chapter 218A or KRS 7
506.120; 8
(2) Have his or her property subject to forfeiture; 9
(3) Be subject to any civil or administrative penalty, including but not limited to 10
disciplinary action by a professional licensing board, credentialing restrictions, 11
contractual or civil liability, or medical staff or other employment action; or 12
(4) Be denied any right or privilege for actions, conduct, or omissions; 13
relating to the approval or operation of a harm reduction center in compliance with 14
Sections 1 to 3 of this Act and any regulations promulgated pursuant to Sections 1 to 3 15
of this Act. 16
Section 4. KRS 218A.1415 is amended to read as follows: 17
(1) A person is guilty of possession of a controlled substance in the first degree when 18
he or she knowingly and unlawfully possesses: 19
(a) A controlled substance that is classified in Schedules I or II and is a narcotic 20
drug; 21
(b) A controlled substance analogue; 22
(c) Methamphetamine; 23
(d) Lysergic acid diethylamide; 24
(e) Phencyclidine; 25
(f) Gamma hydroxybutyric acid (GHB), including its salts, isomers, salts of 26
isomers, and analogues; or 27 UNOFFICIAL COPY 23 RS BR 945
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(g) Flunitrazepam, including its salts, isomers, and salts of isomers. 1
(2) Possession of a controlled substance in the first degree is punishable by up to 2
fifteen (15) hours of community service and evidence-based educational 3
programming for reducing problematic substance use which has been approved 4
by the Division of Behavioral Health within the Department for Behavioral 5
Health, Developmental and Intellectual Disabilities[a Class D felony subject to the 6
following provisions: 7
(a) The maximum term of incarceration shall be no greater than three (3) years, 8
notwithstanding KRS Chapter 532; 9
(b) For a person's first or second offense under this section, he or she may be 10
subject to a period of: 11
1. Deferred prosecution pursuant to KRS 218A.14151; or 12
2. Presumptive probation; 13
(c) Deferred prosecution under paragraph (b) of this subsection shall be the 14
preferred alternative for a first offense; and 15
(d) If a person does not enter a deferred prosecution program for his or her first or 16
second offense, he or she shall be subject to a period of presumptive 17
probation, unless a court determines the defendant is not eligible for 18
presumptive probation as defined in KRS 218A.010]. 19
Section 5. KRS 218A.1416 is amended to read as follows: 20
(1) A person is guilty of possession of a controlled substance in the second degree 21
when he or she knowingly and unlawfully possesses: a controlled substance 22
classified in Schedules I or II which is not a narcotic drug; or specified in KRS 23
218A.1415; or a controlled substance classified in Schedule III; but not synthetic 24
drugs, salvia, or marijuana. 25
(2) Possession of a controlled substance in the second degree is punishable by up to 26
fifteen (15) hours of community service and evidence-based educational 27 UNOFFICIAL COPY 23 RS BR 945
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programming for reducing problematic substance use which has been approved 1
by the Division of Behavioral Health within the Department for Behavioral 2
Health, Developmental and Intellectual Disabilities[a Class A misdemeanor]. 3
Section 6. KRS 218A.1417 is amended to read as follows: 4
(1) A person is guilty of possession of a controlled substance in the third degree when 5
he or she knowingly and unlawfully possesses a controlled substance classified in 6
Schedules IV or V. 7
(2) Possession of a controlled substance in the third degree is punishable by up to 8
fifteen (15) hours of community service and evidence-based educational 9
programming for reducing problematic substance use which has been approved 10
by the Division of Behavioral Health within the Department for Behavioral 11
Health, Developmental and Intellectual Disabilities[a Class A misdemeanor]. 12
Section 7. KRS 218A.1422 is amended to read as follows: 13
(1) A person is guilty of possession of marijuana when he or she knowingly and 14
unlawfully possesses marijuana. 15
(2) Possession of marijuana is punishable by up to fifteen (15) hours of community 16
service and evidence-based educational programming for reducing problematic 17
substance use which has been approved by the Division of Behavioral Health 18
within the Department for Behavioral Health, Developmental and Intellectual 19
Disabilities[a Class B misdemeanor, except that, KRS Chapter 532 to the contrary 20
notwithstanding, the maximum term of incarceration shall be no greater than forty-21
five (45) days]. 22
Section 8. KRS 218A.1430 is amended to read as follows: 23
(1) (a) A person is guilty of trafficking in synthetic drugs when he or she knowingly 24
and unlawfully traffics in synthetic drugs. 25
(b) Trafficking in synthetic drugs is a Class D felony for the first offense and a 26
Class C felony for each subsequent offense. 27 UNOFFICIAL COPY 23 RS BR 945
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(c) In lieu of the fine amounts otherwise allowed under KRS Chapter 534, for any 1
offense under this subsection the court may impose a maximum fine of double 2
the defendant's gain from the commission of the offense, in which case any 3
fine money collected shall be divided between the same parties, in the same 4
ratio, and for the same purposes as established for forfeited property under 5
KRS 218A.420. 6
(d) It shall be an affirmative defense to an offense under this subsection that the 7
defendant committed the offense during the course of the defendant's 8
employment as an employee of a retail store and that the defendant did not 9
know and should not have known that the trafficked substance was a synthetic 10
drug. 11
(2) (a) A person is guilty of possession of synthetic drugs when he or she knowingly 12
and unlawfully possesses synthetic drugs. 13
(b) Possession of synthetic drugs is punishable by up to fifteen (15) hours of 14
community service and evidence-based educational programming for 15
reducing problematic substance use which has been approved by the 16
Division of Behavioral Health within the Department for Behavioral 17
Health, Developmental and Intellectual Disabilities[: 18
1. A Class A misdemeanor for the first offense; and 19
2. A Class D felony for each subsequent offense]. 20
Section 9. KRS 218A.275 is amended to read as follows: 21
(1) The Department of Pretrial Services shall employ or contract with persons 22
authorized to diagnose substance use disorders, and shall[A court may request the 23
Division of Probation and Parole to] perform a risk and needs assessment for any 24
person charged with[found guilty of] possession of a controlled substance pursuant 25
to KRS 218A.1415, 218A.1416, [or ]218A.1417, 218A.1422, or 218A.1430. If the 26
person is diagnosed with any substance use disorder defined in the most recent 27 UNOFFICIAL COPY 23 RS BR 945
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version of the Diagnostic and Statistical Manual of Mental Disorders, the 1
assessor shall make a recommendation to the court as to whether treatment is 2
indicated by the assessment, and, if so, the most appropriate level and modality of 3
treatment or recovery program environment. If treatment is indicated for the person, 4
unless the court makes a written finding that the recommended treatment would 5
not be in the public interest, the court shall[may] order him or her to the 6
appropriate treatment or recovery program that will effectively respond to the 7
person's level of risk, criminal risk factors, and individual characteristics as 8
designated by the secretary of the Cabinet for Health and Family Services where a 9
program of treatment or recovery not to exceed one (1) year in duration may be 10
prescribed. The person ordered to the designated treatment or recovery program 11
shall present himself or herself for registration and initiation of the treatment or 12
recovery program within five (5) days of the date of sentencing. If, without good 13
cause, the person fails to appear at the designated treatment or recovery program 14
within the specified time, or if at any time during the program of treatment or 15
recovery prescribed, the authorized director of the treatment or recovery program 16
finds that the person is unwilling to participate in his or her treatment, the director 17
shall notify the sentencing court. Upon receipt of notification, the court shall cause 18
the person to be brought before it and may continue the order of treatment, or may 19
rescind the treatment order and impose a sentence for the possession offense. Upon 20
discharge of the person from the treatment or recovery program by the secretary of 21
the Cabinet for Health and Family Services, or his or her designee, prior to the 22
expiration of the one (1) year period or upon satisfactory completion of one (1) year 23
of treatment, the person shall be deemed finally discharged from sentence. The 24
secretary, or his or her designee, shall notify the sentencing court of the date of such 25
discharge from the treatment or recovery program. 26
(2) The secretary of the Cabinet for Health and Family Services, or his or her designee, 27 UNOFFICIAL COPY 23 RS BR 945
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shall inform each court of the identity and location of the treatment or recovery 1
program to which the person is sentenced. 2
(3) Transportation to an inpatient facility shall be provided by order of the court when 3
the court finds the person unable to convey himself or herself to the facility within 4
five (5) days of sentencing by reason of physical infirmity or financial incapability. 5
(4) The sentencing court shall immediately notify the designated treatment or recovery 6
program of the sentence and its effective date. 7
(5) The secretary for health and family services, or his or her designee, may authorize 8
transfer of the person from the initially designated treatment or recovery program to 9
another treatment or recovery program for therapeutic purposes. The sentencing 10
court shall be notified of termination of treatment by the terminating treatment or 11
recovery program and shall be notified by the secretary of the new treatment or 12
recovery program to which the person was transferred. 13
(6) Responsibility for payment for treatment services rendered to persons pursuant to 14
this section shall be as under the statutes pertaining to payment of patients and 15
others for services rendered by the Cabinet for Health and Family Services, unless 16
the person and the treatment or recovery program shall arrange otherwise. 17
(7) None of the provisions of this section shall be deemed to preclude the court from 18
exercising its usual discretion with regard to ordering probation or conditional 19
discharge. 20
(8) [Except as provided in subsection (12) of this section, ]In the case of any person 21
who has been convicted [for the first time ]of possession of controlled substances, 22
the court may set aside and void the conviction upon satisfactory completion of 23
treatment, probation, or other sentence, and issue to the person a certificate to that 24
effect. A conviction voided under this subsection shall not be deemed [a first 25
offense for purposes of this chapter or deemed ]a conviction for purposes of 26
disqualifications or disabilities imposed by law upon conviction of a crime.[ 27 UNOFFICIAL COPY 23 RS BR 945
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Voiding of a conviction under this subsection and dismissal may occur only once 1
with respect to any person.] 2
(9) If the court voids a conviction under this section, the court shall order the sealing of 3
all records in the custody of the court and any records in the custody of any other 4
agency or official, including law enforcement records, except as provided in KRS 5
27A.099. The court shall order the sealing on a form provided by the 6
Administrative Office of the Courts. Every agency with records relating to the 7
arrest, charge, or other matters arising out of the arrest or charge that is ordered to 8
seal records, shall certify to the court within sixty (60) days of the entry of the order 9
that the required sealing action has been completed. 10
(10) After the sealing of the record, the proceedings in the matter shall not be used 11
against the defendant[ except for the purposes of determining the person's eligibility 12
to have his or her conviction voided under subsection (8) of this section]. The court 13
and other agencies shall reply to any inquiry that no record exists on the matter. The 14
person whose record has been sealed shall not have to disclose the fact of the record 15
or any matter relating thereto on an application for employment, credit, or other 16
type of application. 17
(11) Inspection of the sealed records may thereafter be permitted by the court pursuant 18
to KRS 27A.099 or upon a motion by the person who is the subject of the records 19
and only to those persons named in the motion[ or upon a motion of the prosecutor 20
to verify a defendant's eligibility to have his or her conviction voided under 21
subsection (8) of this section. 22
(12) A person who has previously had a charge of possession of controlled substances 23
dismissed after completion of a deferred prosecution under KRS 218A.14151 shall 24
not be eligible for voiding of conviction under this section]. 25
Section 10. KRS 218A.500 is amended to read as follows: 26
As used in this section and KRS 218A.510: 27 UNOFFICIAL COPY 23 RS BR 945
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(1) "Drug paraphernalia" means all equipment, products and materials of any kind 1
which are used, intended for use, or designed for use in planting, propagating, 2
cultivating, growing, harvesting, manufacturing, compounding, converting, 3
producing, processing, or preparing[, testing, analyzing, packaging, repackaging, 4
storing, containing, concealing, injecting, ingesting, inhaling, or otherwise 5
introducing into the human body] a controlled substance in violation of this chapter. 6
It includes but is not limited to: 7
(a) Kits used, intended for use, or designed for use in planting, propagating, 8
cultivating, growing, or harvesting of any species of plant which is a 9
controlled substance or from which a controlled substance can be derived; 10
(b) Kits used, intended for use, or designed for use in manufacturing, 11
compounding, converting, producing, processing, or preparing controlled 12
substances; 13
(c) Isomerization devices used, intended for use, or designed for use in increasing 14
the potency of any species of plant which is a controlled substance; 15
(d) [Testing equipment used, intended for use, or designed for use in identifying, 16
or in analyzing the strength, effectiveness or purity of controlled substances; 17
(e) ]Scales and balances used, intended for use, or designed for use in weighing 18
or measuring controlled substances; 19
(e)[(f)] Diluents and adulterants, such as quinine hydrochloride, mannitol, 20
mannite, dextrose and lactose, used, intended for use, or designed for use in 21
cutting controlled substances; 22
(f)[(g)] Separation gins and sifters used, intended for use, or designed for use in 23
removing twigs and seeds from, or in otherwise cleaning or refining 24
marijuana; and 25
(g)[(h)] Blenders, bowls, containers, spoons, and mixing devices used, intended 26
for use, or designed for use in compounding controlled substances[; 27 UNOFFICIAL COPY 23 RS BR 945
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(i) Capsules, balloons, envelopes, and other containers used, intended for use, or 1
designed for use in packaging small quantities of controlled substances; 2
(j) Containers and other objects used, intended for use, or designed for use in 3
storing or concealing controlled substances; 4
(k) Hypodermic syringes, needles, and other objects used, intended for use, or 5
designed for use in parenterally injecting controlled substances into the human 6
body; and 7
(l) Objects used, intended for use, or designed for use in ingesting, inhaling, or 8
otherwise introducing marijuana, cocaine, hashish, or hashish oil into the 9
human body, such as: metal, wooden, acrylic, glass, stone, plastic, or ceramic 10
pipes with or without screens, permanent screens, hashish heads, or punctured 11
metal bowls; water pipes; carburetion tubes and devices; smoking and 12
carburetion masks; roach clips which mean objects used to hold burning 13
material, such as marijuana cigarettes, that have become too small or too short 14
to be held in the hand; miniature cocaine spoons, and cocaine vials; chamber 15
pipes; carburetor pipes; electric pipes; air-driven pipes; chillums; bongs; ice 16
pipes or chillers]. 17
(2) It is unlawful for any person to use, or to possess with intent to use, drug 18
paraphernalia for the purpose of planting, propagating, cultivating, growing, 19
harvesting, manufacturing, compounding, converting, producing, processing, or 20
preparing[, testing, analyzing, packing, repacking, storing, containing, concealing, 21
injecting, ingesting, inhaling, or otherwise introducing into the human body] a 22
controlled substance in violation of this chapter. 23
(3) It is unlawful for any person to deliver, possess with intent to deliver, or 24
manufacture with intent to deliver, drug paraphernalia, knowing, or under 25
circumstances where one reasonably should know, that it will be used to plant, 26
propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, 27 UNOFFICIAL COPY 23 RS BR 945
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process, or prepare[, test, analyze, pack, repack, store, contain, conceal, inject, 1
ingest, inhale, or otherwise introduce into the human body] a controlled substance 2
in violation of this chapter. 3
(4) It is unlawful for any person to place in any newspaper, magazine, handbill, or 4
other publication any advertisement, knowing, or under circumstances where one 5
reasonably should know, that the purpose of the advertisement, in whole or in part, 6
is to promote the sale of objects designed or intended for use as drug paraphernalia. 7
(5) (a) This section shall not prohibit a local health department from operating a 8
substance abuse treatment outreach program which allows participants to 9
exchange hypodermic needles and syringes. 10
(b) To operate a substance abuse treatment outreach program under this 11
subsection, the local health department shall have the consent, which may be 12
revoked at any time, of the local board of health and: 13
1. The legislative body of the first or home rule class city in which the 14
program would operate if located in such a city; and 15
2. The legislative body of the county, urban-county government, or 16
consolidated local government in which the program would operate. 17
(c) Items exchanged at the program shall not be deemed drug paraphernalia under 18
this section while located at the program. 19
(6) (a) Prior to searching a person, a person's premises, or a person's vehicle, a peace 20
officer may inquire as to the presence of needles or other sharp objects in the 21
areas to be searched that may cut or puncture the officer and offer to not 22
charge a person with possession of drug paraphernalia if the person declares 23
to the officer the presence of the needle or other sharp object. If, in response 24
to the offer, the person admits to the presence of the needle or other sharp 25
object prior to the search, the person shall not be charged with or prosecuted 26
for possession of drug paraphernalia for the needle or sharp object or for 27 UNOFFICIAL COPY 23 RS BR 945
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possession of a controlled substance for residual or trace drug amounts 1
present on the needle or sharp object. 2
(b) The exemption under this subsection shall not apply to any other drug 3
paraphernalia that may be present and found during the search or to controlled 4
substances present in other than residual or trace amounts. 5
(7) (a) This section shall not prohibit the retail sale of hypodermic syringes and 6
needles without a prescription in pharmacies. 7
(b) Hypodermic syringe and needle inventory of a pharmacy shall not be deemed 8
drug paraphernalia under this section. 9
(8) Any person who violates any provision of this section shall be guilty of a Class A 10
misdemeanor. 11
Section 11. KRS 533.280 is amended to read as follows: 12
(1) Upon successful completion of the behavioral health conditional dismissal program: 13
(a) The court shall dismiss the charged offense or offenses with prejudice and 14
discharge the defendant; 15
(b) All records relating to the case, including but not limited to arrest records and 16
records relating to the charges, shall be sealed[, except as provided in KRS 17
27A.099]; 18
(c) The offense shall be accessible for review for the sole purpose of determining 19
the defendant's eligibility for deferred prosecution under KRS 218A.1415; 20
and 21
(d) The defendant shall not be required to disclose the arrest or other information 22
relating to the charges or participation in the program on an application for 23
employment, credit, or other type of application unless required to do so by 24
state or federal law. 25
(2) If a defendant who is participating in the behavioral health conditional dismissal 26
program is convicted of or enters a plea of guilty to a felony offense other than a 27 UNOFFICIAL COPY 23 RS BR 945
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qualifying offense under any law of the United States, this state, or any other state, 1
that was committed while participating in the program, the defendant shall be 2
discharged from the behavioral health conditional dismissal program for failure to 3
comply with the terms and conditions. 4
(3) If the defendant is discharged from the behavioral health conditional dismissal 5
program by the treatment provider under KRS 533.278, all statements or other 6
disclosures made by the defendant to any provider while participating in the 7
program shall be protected by all applicable privacy laws and professional 8
standards regarding confidentiality and shall not be admissible in a criminal trial 9
relating to the offenses covered by the agreement executed under KRS 533.276. 10
(4) The attorney for the Commonwealth shall notify the victim, if there is an identified 11
victim, of the defendant's dismissal from the program for noncompliance or 12
discharge from the program following successful completion of the program. 13
Section 12. The following KRS sections are repealed: 14
218A.14151 Deferred prosecution program for first and second offenders of KRS 15
218A.1415. 16
218A.1450 Trafficking in salvia -- Penalty. 17
218A.1451 Possession of salvia -- Penalty -- Maximum term of incarceration. 18
218A.1452 Salvia cultivation -- Penalty. 19
218A.276 Assessment and treatment program for possessors of marijuana, synthetic 20
drugs, or salvia -- Rescission of treatment order -- Voiding of conviction -- Sealing 21
of records. 22
27A.099 Deferred prosecution -- Application -- Listing of persons with records sealed. 23