Bill 102

                    Current Status

Bill Number:               102
Ratification Number:       181
Act Number                 128
Introducing Body:          Senate
Subject:                   Crack cocaine

(A128, R181, S102)

AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 44-53-375 SO AS TO PROVIDE THAT THE POSSESSION OF LESS THAN ONE GRAM OF CRACK COCAINE IS A MISDEMEANOR AND PROVIDE PENALTIES UPON CONVICTION, TO PROVIDE THAT A SECOND AND SUBSEQUENT CONVICTION OF THIS OFFENSE IS A FELONY, TO PROVIDE THAT THE MANUFACTURE, DISTRIBUTION, DISPENSATION, OR THE POSSESSION WITH INTENT TO DISTRIBUTE OR DISPENSE CRACK COCAINE IS A FELONY AND PROVIDE PENALTIES UPON CONVICTION, TO PROVIDE THAT THE POSSESSION OF ONE OR MORE GRAMS OF CRACK COCAINE IS PRIMA FACIE EVIDENCE OF A VIOLATION OF THIS FELONY, TO PROVIDE THAT SENTENCES FOR VIOLATION OF THE PROVISIONS OF SECTION 44-53-375 MAY NOT BE SUSPENDED AND PROBATION MAY NOT BE GRANTED EXCEPT FOR A FIRST OFFENSE; TO AMEND SECTION 44-53-110, RELATING TO DEFINITIONS OF NARCOTICS AND CONTROLLED SUBSTANCES, SO AS TO DEFINE "CRACK COCAINE"; TO AMEND SECTION 44-53-440, RELATING TO THE FELONY OF DISTRIBUTING A CONTROLLED SUBSTANCE CLASSIFIED IN SECTION 44-53-190(b)(c) (SCHEDULE 1) WHICH IS A NARCOTIC DRUG OR LYSERGIC ACID DIETHYLAMIDE (LSD) AND IN SECTION 44-53-210 (SCHEDULE II) WHICH IS A NARCOTIC DRUG TO A PERSON UNDER THE AGE OF EIGHTEEN, SO AS TO MAKE IT A SEPARATE OFFENSE FOR VIOLATIONS OF THIS SECTION AND INCLUDE IN IT A VIOLATION OF SECTION 44-53-375(B); TO AMEND SECTION 44-53-445, RELATING TO THE CRIME OF DISTRIBUTING, SELLING, OR MANUFACTURING, OR UNLAWFULLY POSSESSING WITH INTENT TO DISTRIBUTE A CONTROLLED SUBSTANCE WHILE WITHIN A RADIUS OF ONE-HALF MILE OF THE GROUNDS OF AN ELEMENTARY, MIDDLE, OR SECONDARY SCHOOL, SO AS TO PROVIDE A SEPARATE PENALTY UPON CONVICTION WHEN A VIOLATION OF THIS SECTION INVOLVES CRACK COCAINE; TO ADD THE FELONIES ESTABLISHED BY THE PROVISIONS OF SECTION 44-53-375 TO THE LIST OF FELONIES IN SECTION 16-1-10 WITH THE EXCEPTION OF THE CONVICTION OF THE FIRST OFFENSE POSSESSION OF LESS THAN ONE GRAM OF CRACK COCAINE; AND TO REPEAL SECTION 44-53-510 RELATING TO THE REQUIREMENT THAT ALL ARRESTS FOR DRUG AND NARCOTIC VIOLATIONS BE REPORTED TO THE SOUTH CAROLINA LAW ENFORCEMENT DIVISION AND THE COMMISSION ON ALCOHOL AND DRUG ABUSE.

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

Possession of crack cocaine; penalty

SECTION 1. The 1976 Code is amended by adding:

"Section 44-53-375. (A) Any person possessing less than one gram of crack cocaine is guilty of a misdemeanor and, upon conviction, must be, for a first offense, imprisoned for a term not less than two years nor more than five years, and fined not less than five thousand dollars. For a first offense the court may, upon approval of the solicitor, require as part of any 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 for not less than four years nor more than seven years, and a fine of 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 for not less than ten years nor more than fifteen years, and a fine of not less than fifteen thousand dollars.

(B) Any person who manufactures, distributes, dispenses, or possesses with intent to distribute or dispense crack cocaine is guilty of a felony and, upon conviction, for a first offense must be sentenced to a term of imprisonment for not less than fifteen years nor more than twenty years and a fine of not less than twenty-five thousand dollars. For a second offense, or if, in the case of 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 state, territory, or district relating to narcotic drugs, the offender must be imprisoned for not less than twenty-five years nor more than thirty years, and a fine of not less than fifty thousand dollars. For a third or subsequent offense, or if the offender has been convicted two or more times in the aggregate of any violation of the laws of the United States or of any state, territory, or district relating to narcotic drugs, the offender must be imprisoned for not less than thirty years nor more than forty years, and a fine of not less than one hundred thousand dollars. Possession of one or more grams of crack cocaine is prima facie evidence of a violation of this subsection.

(C) Except for a first offense, as provided in subsection (A) of this section, sentences for violation of the provisions of this section may not be suspended and probation may not be granted."

Definition

SECTION 2. Section 44-53-110 of the 1976 Code is amended by adding in proper alphabetical order:

"'Crack cocaine' means an alkaloidal cocaine or freebase form of cocaine, which is the end product of a chemical alteration whereby the cocaine in salt form is converted to a form suitable for smoking."

Penalty

SECTION 3. Section 44-53-440 of the 1976 Code is amended to read:

"Section 44-53-440. Any person eighteen years of age or over who violates Section 44-53-370(a) by distributing a controlled substance classified in Schedule I (b) and (c) which is a narcotic drug or lysergic acid diethylamide (LSD) and in Schedule II which is a narcotic drug, or who violates Section 44-53-375(B) by distributing crack cocaine to a person under eighteen years of age is guilty of a felony and, upon conviction, must be imprisoned for not more than twenty years or fined not more than thirty thousand dollars, or both, and the sentence may not be suspended and probation may not be granted. Any person eighteen years of age or over who violates Section 44-53-370(a) and (b) by distributing any other controlled substance listed in Schedules I through V to a person under eighteen years of age is guilty of a misdemeanor and, upon conviction, must be imprisoned for not more than ten years or fined not more than ten thousand dollars, or both. Any violation of this section constitutes a separate offense."

Penalty

SECTION 4. Section 44-53-445 of the 1976 Code is amended to read:

"Section 44-53-445. It is a separate criminal offense for any person to unlawfully distribute, sell, or manufacture, or to unlawfully possess with intent to distribute, a controlled substance while within a radius of one-half mile of the grounds of an elementary, middle, or secondary school. Any person committing this act must be, upon conviction, punished by a fine not to exceed ten thousand dollars, or by imprisonment not to exceed ten years, or both. When a violation involves crack cocaine, the punishment, upon conviction, must be a fine of not less than ten thousand dollars, and imprisonment for not less than ten nor more than fifteen years.

For purposes of the creation of presumptions of intent to distribute, the presumptions set out in Section 44-53-370(3) and Section 44-53-375 apply to criminal prosecutions under this section."

Crimes classified as felonies

SECTION 5. In addition to the crimes classified as felonies in Section 16-1-10 of the 1976 Code, all violations of Section 44-53-375 added by Section 1 of this act, with the exception of the conviction of the first offense of less than one gram of crack cocaine, are felonies.

Repealed

SECTION 6. Section 44-53-510 of the 1976 Code is repealed.

Time effective

SECTION 7. This act takes effect upon approval by the Governor.