HB3265 97TH GENERAL ASSEMBLY

LRB097 05220 RLC 49019 b

97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB3265

Introduced 2/24/2011, by Rep. Esther Golar

SYNOPSIS AS INTRODUCED:

720 ILCS 600/2	from Ch. 56 1/2, par. 2102
720 ILCS 600/4	from Ch. 56 1/2, par. 2104
720 ILCS 685/3	from Ch. 23, par. 2358-3
720 ILCS 685/4	from Ch. 23, par. 2358-4
720 ILCS 685/5	from Ch. 23, par. 2358-5

Amends the Drug Paraphernalia Control Act. Changes the definition of "drug paraphernalia" to include products marketed and sold for a lawful purpose, which are intended to be used lawfully, but which may be misused for the unlawful purpose of ingesting, inhaling, or otherwise introducing cannabis, cocaine, hashish, or hashish oil into the human body. Establishes certain rebuttable presumptions. Eliminates from the exemption of items as drug paraphernalia tobacco pipes and cigarette rolling papers. Amends the Tobacco Accessories and Smoking Herbs Control Act. Prohibits the sale of cigar wraps to persons under 18 years of age. Establishes penalties. Effective immediately.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning criminal law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Drug Paraphernalia Control Act is amended by changing Sections 2 and 4 as follows:

(720 ILCS 600/2) (from Ch. 56 1/2, par. 2102)

Sec. 2. As used in this Act, unless the context otherwise requires:

(a) The term "cannabis" shall have the meaning ascribed to it in Section 3 of the Cannabis Control Act, as if that definition were incorporated herein.

(b) The term "controlled substance" shall have the meaning ascribed to it in Section 102 of the Illinois Controlled Substances Act, as if that definition were incorporated herein.

(c) "Deliver" or "delivery" means the actual, constructive or attempted transfer of possession, with or without consideration, whether or not there is an agency relationship.

(d) "Drug paraphernalia" means all equipment, products and materials of any kind, other than methamphetamine manufacturing materials as defined in Section 10 of the Methamphetamine Control and Community Protection Act, which are intended to be used unlawfully in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body cannabis or a controlled substance in violation of the Cannabis Control Act, the Illinois Controlled Substances Act, or the Methamphetamine Control and Community Protection Act. It includes, but is not limited to:

(1) kits intended to be used unlawfully in manufacturing, compounding, converting, producing, processing or preparing cannabis or a controlled substance;

(2) isomerization devices intended to be used unlawfully in increasing the potency of any species of plant which is cannabis or a controlled substance;

(3) testing equipment intended to be used unlawfully in a private home for identifying or in analyzing the strength, effectiveness or purity of cannabis or controlled substances;

(4) diluents and adulterants intended to be used unlawfully for cutting cannabis or a controlled substance by private persons;

(5) objects intended to be used unlawfully in ingesting, inhaling, or otherwise introducing cannabis, cocaine, hashish, or hashish oil into the human body including, where applicable, the following items:

(A) water pipes;

(B) carburetion tubes and devices;

(C) smoking and carburetion masks;

(D) miniature cocaine spoons and cocaine vials;

(E) carburetor pipes;

(F) electric pipes;

(G) air-driven pipes;

(H) chillums;

(I) bongs;

(J) ice pipes or chillers;

(5.5) products marketed and sold for a lawful purpose, which are intended to be used lawfully, but which may be misused for the unlawful purpose of ingesting, inhaling, or otherwise introducing cannabis, cocaine, hashish, or hashish oil into the human body including, where applicable, the following items:

(A) individual cigar wrappers, known as wraps, blunt wraps, or roll your own cigar wraps, whether in the form of a sheet, tube or cone, that consist in whole or in part of reconstituted tobacco leaf or flavored tobacco leaf;

(B) cored, hollowed out, or split cigars, but not including an intact cigar still in its original manufacturer packaging;

(C) cigarette-rolling papers, also known as cigarette papers or as roll your own cigarette papers, including but not by way of limitation wired cigarette papers; and

(D) tobacco pipes; and

(6) any item whose purpose, as announced or described by the seller, is for use in violation of this Act.

(Source: P.A. 93-526, eff. 8-12-03; 94-556, eff. 9-11-05.)

(720 ILCS 600/4) (from Ch. 56 1/2, par. 2104)

Sec. 4. Exemptions. This Act does not apply to:

(a) Items used in the preparation, compounding, packaging, labeling, or other use of cannabis or a controlled substance as an incident to lawful research, teaching, or chemical analysis and not for sale.

(b) Items historically and customarily used in connection with the planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, or inhaling of tobacco or any other lawful substance.

Items exempt under this subsection include, but are not limited to, garden hoes, rakes, sickles, and baggies, tobacco pipes, and cigarette-rolling papers.

(c) Items listed in Section 2 of this Act which are used for decorative purposes, when such items have been rendered completely inoperable or incapable of being used for any illicit purpose prohibited by this Act.

(d) A person who is legally authorized to possess hypodermic syringes or needles under the Hypodermic Syringes and Needles Act. In determining whether or not a particular item is exempt under this Section, the trier of fact should consider, in addition to all other logically relevant factors, the following:

(1) the general, usual, customary, and historical use to which the item involved has been put;

(2) expert evidence concerning the ordinary or customary use of the item and the effect of any peculiarity in the design or engineering of the device upon its functioning;

(3) any written instructions accompanying the delivery of the item concerning the purposes or uses to which the item can or may be put;

(4) any oral instructions provided by the seller of the item at the time and place of sale or commercial delivery;

(5) any national or local advertising concerning the design, purpose or use of the item involved, and the entire context in which such advertising occurs;

(6) the manner, place and circumstances in which the item was displayed for sale, as well as any item or items displayed for sale or otherwise exhibited upon the premises where the sale was made;

(7) whether the owner or anyone 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;

(8) the existence and scope of legitimate uses for the object in the community.

Notwithstanding the foregoing, there shall be a rebuttable presumption that the products identified in clauses (A) through (D) of subparagraph (5.5) of paragraph (d) of Section 2 of this Act are not drug paraphernalia when marketed or sold in conjunction with, or otherwise found or discovered solely in the presence of, tobacco; provided however, that there shall be a rebuttable presumption that any product or object identified in Section 2 is drug paraphernalia if the product or object either: (1) contains cannabis or the residue thereof or a controlled substance or the residue thereof; or (2) is found or discovered, or both, with or in close proximity to cannabis or a controlled substance.

(Source: P.A. 95-331, eff. 8-21-07.)

Section 10. The Tobacco Accessories and Smoking Herbs Control Act is amended by changing Sections 3, 4, and 5 as follows:

(720 ILCS 685/3) (from Ch. 23, par. 2358-3)

Sec. 3. Definitions. The following definitions shall apply to this Act:

(a) "Tobacco accessories" shall mean cigarette papers, pipes, holders of smoking materials of all types, cigarette rolling machines, and other items, designed primarily for the smoking or ingestion of tobacco products or of substances made illegal under any statute or of substances whose sale, gift, barter, or exchange is made unlawful under this Act.

(b) "Smoking herbs" shall mean all substances of plant origin and their derivatives, including but not limited to broom, calea, California poppy, damiana, hops, ginseng, lobelia, jimson weed and other members of the Datura genus, passion flower and wild lettuce, which are processed or sold primarily for use as smoking materials.

(c) "Bidi cigarette" means a product that contains tobacco that is wrapped in temburni or tendu leaf or that is wrapped in any other material identified by rules of the Department of Public Health that is similar in appearance or characteristics to the temburni or tendu leaf.

(d) "Cigar wraps" shall mean individual cigar wrappers, known as wraps, blunt wraps, or roll your own cigar wraps, whether in the form of a sheet, tube or cone, that consists in whole or in part of reconstituted tobacco leaf or flavored tobacco leaf.

(Source: P.A. 91-734, eff. 1-1-01.)

(720 ILCS 685/4) (from Ch. 23, par. 2358-4)

Sec. 4. Offenses.

(a) Sale to minors. No person shall knowingly sell, barter, exchange, deliver or give away or cause or permit or procure to be sold, bartered, exchanged, delivered, or given away tobacco accessories or smoking herbs to any person under 18 years of age.

(a-5) Sale of bidi cigarettes. No person shall knowingly sell, barter, exchange, deliver, or give away a bidi cigarette to another person, nor shall a person cause or permit or procure a bidi cigarette to be sold, bartered, exchanged, delivered, or given away to another person.

(a-6) Sale of cigar wraps. No person shall knowingly sell, barter, exchange, deliver or give away or cause or permit or procure to be sold, bartered, exchanged, delivered, or given away cigar wraps to any person under 18 years of age.

(b) Sale of cigarette paper. No person shall knowingly offer, sell, barter, exchange, deliver or give away cigarette paper or cause, permit, or procure cigarette paper to be sold, offered, bartered, exchanged, delivered, or given away except from premises or an establishment where other tobacco products are sold. For purposes of this Section, "tobacco products" means cigarettes, cigars, smokeless tobacco, or tobacco in any of its forms.

(c) Sale of cigarette paper from vending machines. No person shall knowingly offer, sell, barter, exchange, deliver or give away cigarette paper or cause, permit, or procure cigarette paper to be sold, offered, bartered, exchanged, delivered, or given away by use of a vending or coin-operated machine or device. For purposes of this Section, "cigarette paper" shall not include any paper that is incorporated into a product to which a tax stamp must be affixed under the Cigarette Tax Act or the Cigarette Use Tax Act.

(d) Use of identification cards. No person in the furtherance or facilitation of obtaining smoking accessories, cigar wraps, and smoking herbs shall display or use a false or forged identification card or transfer, alter, or deface an identification card.

(e) Warning to minors. Any person, firm, partnership, company or corporation operating a place of business where tobacco accessories, cigar wraps, and smoking herbs are sold or offered for sale shall post in a conspicuous place upon the premises a sign upon which there shall be imprinted the following statement, "SALE OF TOBACCO ACCESSORIES, CIGAR WRAPS, AND SMOKING HERBS TO PERSONS UNDER EIGHTEEN YEARS OF AGE OR THE MISREPRESENTATION OF AGE TO PROCURE SUCH A SALE IS PROHIBITED BY LAW". The sign shall be printed on a white card in red letters at least one-half inch in height.

(Source: P.A. 91-734, eff. 1-1-01.)

(720 ILCS 685/5) (from Ch. 23, par. 2358-5)

Sec. 5. Penalty.

(a) Any person who shall knowingly violate, or shall knowingly cause the violation of any provision of this Act other than subsection (a-5) or (a-6) of Section 4 shall be guilty of a Class C misdemeanor.

(b) Any person who knowingly violates or knowingly causes the violation of subsection (a-5) of Section 4 is guilty of a petty offense for which the offender may be fined an amount as follows:

(1) For a first offense, not less than $100 and not more than $500.

(2) For a second offense within a 2-year period, not less than $250 and not more than $500.

(3) For a third or subsequent offense within a 2-year period, not less than $500 and not more than $1,000.

(c) Any person who knowingly violates or knowingly causes the violation of subsection (a-6) of Section 4 is guilty of a Class C misdemeanor for a first offense, a Class B misdemeanor for a second offense within a 2-year period, and a Class A misdemeanor for a third or subsequent offense within a 3-year period.

(Source: P.A. 91-734, eff. 1-1-01.)

Section 99. Effective date. This Act takes effect upon becoming law.