Introduced Version






HOUSE BILL No. 1366

_____


DIGEST OF INTRODUCED BILL



Citations Affected: IC 16-31-3-14.5; IC 16-42-3-4; IC 22-11-20; IC 25-1-1.1-3; IC 31-30-1-4; IC 34-24-1-1; IC 35-38-1-7.1; IC 35-42-1-1; IC 35-45-6-1; IC 35-47-4-5; IC 35-48-4; IC 35-50-2-2; IC 35-50-2-9.

Synopsis: Methamphetamine. Makes it a Class A misdemeanor to store or transport anhydrous ammonia in a container or with appurtenances that violate a law governing anhydrous ammonia equipment. Makes the criminal penalty for dealing in methamphetamine equivalent to the penalty for dealing in cocaine. Makes conforming changes to other statutes relating to cocaine and narcotic drug offenses to incorporate offenses relating to methamphetamine. Makes possession of anhydrous ammonia a Class D felony if the anhydrous ammonia is possessed with the intent to manufacture methamphetamine. Makes possession of anhydrous ammonia or two or more chemical reagents or precursors with intent to manufacture methamphetamine a Class C felony if the substances are possessed on a school bus or within 1,000 feet of a school, family housing project, or public park. Provides an appropriation to the state chemist to contract for research to find a form of agricultural anhydrous ammonia that is inert for the purposes of making methamphetamine.

Effective: July 1, 2001.





Weinzapfel




    January 11, 2001, read first time and referred to Committee on Courts and Criminal Code.







Introduced

First Regular Session 112th General Assembly (2001)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts between statutes enacted by the 2000 General Assembly.

HOUSE BILL No. 1366



    A BILL FOR AN ACT to amend the Indiana Code concerning criminal law and procedure and to make an appropriation.

Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 16-31-3-14.5; (01)IN1366.1.1. -->     SECTION 1. IC 16-31-3-14.5 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2001]: Sec. 14.5. The commission may permanently revoke a license or certificate under procedures provided by section 14 of this chapter if the individual who holds the license or certificate issued under this title is convicted of any of the following:
        (1) Dealing in cocaine, or a narcotic drug, or methamphetamine under IC  35-48-4-1.
        (2) Dealing in a schedule I, II, or III controlled substance under IC 35-48-4-2.
        (3) Dealing in a schedule IV controlled substance under IC 35-48-4-3.
        (4) Dealing in a schedule V controlled substance under IC 35-48-4-4.
        (5) Dealing in a substance represented to be a controlled substance under IC  35-48-4-4.5.
        (6) Knowingly or intentionally manufacturing, advertising,

distributing, or possessing with intent to manufacture, advertise, or distribute a substance represented to be a controlled substance under IC 35-48-4-4.6.
        (7) Dealing in a counterfeit substance under IC 35-48-4-5.
        (8) Dealing in marijuana, hash oil, or hashish under IC 35-48-4-10(b).
        (9) Conspiracy under IC 35-41-5-2 to commit an offense listed in subdivisions (1) through (8).
        (10) Attempt under IC 35-41-5-1 to commit an offense listed in subdivisions (1) through (8).
        (11) A crime of violence (as defined in IC 35-50-1-2(a)).
        (12) An offense in any other jurisdiction in which the elements of the offense for which the conviction was entered are substantially similar to the elements of an offense described under subdivisions (1) through (11).

SOURCE: IC 16-42-3-4; (01)IN1366.1.2. -->     SECTION 2. IC 16-42-3-4 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2001]: Sec. 4. A drug or device is considered to be misbranded under any of the following conditions:
        (1) If the labeling of the drug or device is false or misleading in any way.
        (2) If the drug or device is in package form unless the drug or device bears a label containing:
            (A) the name and place of business of the manufacturer, packer, or distributor; and
            (B) an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count.
        However, under clause (B) reasonable variations shall be permitted and exemptions as to small packages shall be established by rules adopted by the state department.
        (3) If any word, statement, or other information required to appear on the label or labeling, under this chapter or a rule adopted under IC 16-42-1-2 is not prominently placed on the drug or device with conspicuousness (as compared with other words, statements, designs, or devices in the labeling) and in such terms that make the label likely to be read and understood by the ordinary individual under customary conditions of purchase and use.
        (4) If the drug or device:
            (A) is for use by humans; and
            (B) contains any quantity of the narcotic or hypnotic substance alpha-eucaine, barbituric acid, beta-eucaine, bromal, cannabis, carbromal, chloral, coca, cocaine, codeine, heroin, marijuana, morphine, opium, paraldehyde, peyote, methamphetamine,

or sulphonmethane, or any chemical derivative of such substance, which derivative after investigation has been found to be and is designated as habit forming, by rules adopted by the state department under IC 16-42-1 through IC 16-42-4 or by regulations issued under 21 U.S.C. 352(d);
        unless the label on the drug or device bears the name and quantity or proportion of that substance or derivative and the statement "Warning . May Be Habit Forming".
        (5) If a drug, unless the following conditions are met:
            (A) The label on the drug bears, to the exclusion of any other nonproprietary name except the applicable systematic chemical name or the chemical formula, the following:
                (i) The established name of the drug, if any.
                (ii) If the drug is fabricated from at least two (2) ingredients, the established name and quantity of each active ingredient, including the kind and quantity or proportion of any alcohol and, whether active or not, the established name and quantity or proportion of any bromides, ether, chloroform, acetanilid, acetphenetidin, amidopyrine, antipyrine, atropine, hyoscine, hyoscyamine, arsenic, digitalis, digitalis glucosides, mercury, ouabain, strophanthin, strychnine, thyroid, or any derivative or preparation of those substances contained in the drug. However, the requirement for stating the quantity of the active ingredients, other than the quantity of those specifically named in this subdivision, applies only to prescription drugs.
            (B) If a prescription drug, the established name of the drug or ingredient on the label (and on any labeling on which a name for the drug or ingredient is used) is printed prominently and in type at least half as large as that used for any proprietary name or designation for the drug or ingredient.
        However, to the extent that compliance with the requirements of clause (A)(ii) or clause (B) is impracticable, exemptions shall be allowed under rules adopted by the state department or by regulations promulgated under the Federal Act.
        (6) Unless the drug's or device's labeling bears:
            (A) adequate directions for use; and
            (B) adequate warnings against use in those pathological conditions or by children where the drug's or device's use may be dangerous to health or against unsafe dosage or methods or duration of administration or application in the manner and form that is necessary for the protection of users.


        However, if any requirement of clause (A) as applied to any drug or device is not necessary for the protection of the public health, the state department shall adopt rules exempting the drug or device from that requirement.
        (7) If a drug purports to be a drug the name of which is recognized in an official compendium, unless the drug is packaged and labeled as prescribed in the compendium. However, the method of packing may be modified with the consent of the state department in accordance with regulations promulgated by the federal security administrator under the Federal Act. Whenever a drug is recognized in both the United States Pharmacopoeia and the Homeopathic Pharmacopoeia of the United States, the drug is subject to the requirements of the United States Pharmacopoeia with respect to packaging and labeling unless the drug is labeled and offered for sale as a homeopathic drug. In that case the drug is subject to the Homeopathic Pharmacopoeia of the United States and not to the United States Pharmacopoeia.
        (8) If a drug or device has been found by the federal security administrator or the state department to be a drug liable to deterioration, unless the drug or device is packaged in a form and manner and the drug's or device's label bears a statement of such precautions as the federal security administrator or the state department requires by rule or regulation as necessary for the protection of the public health. A rule or regulation may not be established for any drug recognized in an official compendium until the federal security administrator or the state department informs the appropriate body charged with the revision of the compendium of the need for the packaging or labeling requirements and that body fails within a reasonable time to prescribe requirements.
        (9) If a drug's container is made, formed, or filled as to be misleading.
        (10) If a drug is an imitation of another drug.
        (11) If a drug is offered for sale under the name of another drug.
        (12) If a drug is or purports to be or is represented to be a drug composed wholly or partly of insulin, unless:
            (A) the drug is from a batch with respect to which a certificate or release has been issued under Section 506 of the Federal Act; and
            (B) the certificate or release is in effect with respect to the drug.
        (13) If a drug is or purports to be or is represented to be a drug composed wholly or partly of any kind of penicillin, streptomycin, chloretetracycline, chloramphenicol, bacitracin, or any other antibiotic drug, or any derivative of those drugs, unless:
            (A) the drug is from a batch with respect to which a certificate or release has been issued under Section 507 of the Federal Act; and
            (B) the certificate or release is in effect with respect to that drug.
        However, this subdivision does not apply to any drug or class of drugs exempted by regulations promulgated under Section 507(c) or 507(d) of the Federal Act.
        (14) If a drug or device is dangerous to health when used in the dosage, or with the frequency or duration prescribed, recommended, or suggested in the labeling of the drug or device.
        (15) Under the conditions described in section 6 of this chapter.
SOURCE: IC 22-11-20; (01)IN1366.1.3. -->     SECTION 3. IC 22-11-20 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2001]:
     Chapter 20. Anhydrous Ammonia: Storage and Transportation
    Sec. 1. As used in this chapter, "appurtenances" includes pumps, compressors, safety relief devices, liquid level gauging devices, valves, and pressure gages.
    Sec. 2. As used in this chapter, "container" includes vessels, tanks, cylinders, or spheres.
    Sec. 3. As used in this chapter, "equipment law" has the meaning set forth in IC 22-12-1-11.
    Sec. 4. As used in this chapter, "law" includes the following:
        (1) IC 13 or a rule adopted under IC 13.

        (2) IC 15-3-2 or a rule adopted under IC 15-3-2.
         (3) IC 22-8-1.1 or a rule adopted under IC 22-8-1.1.
        (4) An equipment law.
Sec. 5. A person who knowingly or intentionally stores or transports anhydrous ammonia (NH3):
        (1) in a container that does not; or
        (2) with appurtenances that do not;
conform to the requirements of a law governing the design, construction, location, installation, or operation of equipment for storage, handling, use, or transportation of anhydrous ammonia (NH3) commits a Class A misdemeanor.

SOURCE: IC 25-1-1.1-3; (01)IN1366.1.4. -->     SECTION 4. IC 25-1-1.1-3 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2001]: Sec. 3. A board, a

commission, or a committee shall revoke or suspend a license or certificate issued under this title by the board, the commission, or the committee if the individual who holds the license or certificate is convicted of any of the following:
        (1) Dealing in cocaine, or a narcotic drug, or methamphetamine under IC  35-48-4-1.
        (2) Dealing in a schedule I, II, or III controlled substance under IC 35-48-4-2.
        (3) Dealing in a schedule IV controlled substance under IC 35-48-4-3.
        (4) Dealing in a schedule V controlled substance under IC 35-48-4-4.
        (5) Dealing in a substance represented to be a controlled substance under IC  35-48-4-4.5.
        (6) Knowingly or intentionally manufacturing, advertising, distributing, or possessing with intent to manufacture, advertise, or distribute a substance represented to be a controlled substance under IC 35-48-4-4.6.
        (7) Dealing in a counterfeit substance under IC 35-48-4-5.
        (8) Dealing in marijuana, hash oil, or hashish under IC 35-48-4-10(b).
        (9) Conspiracy under IC 35-41-5-2 to commit an offense listed in subdivisions (1) through (8).
        (10) Attempt under IC 35-41-5-1 to commit an offense listed in subdivisions (1) through (8).
        (11) An offense in any other jurisdiction in which the elements of the offense for which the conviction was entered are substantially similar to the elements of an offense described under subdivisions (1) through (10).
        (12) A violation of any federal or state drug law or rule related to wholesale legend drug distributors licensed under IC 25-26-14.

SOURCE: IC 31-30-1-4; (01)IN1366.1.5. -->     SECTION 5. IC 31-30-1-4 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2001]: Sec. 4. (a) The juvenile court does not have jurisdiction over an individual for an alleged violation of:
        (1) IC 35-42-1-1 (murder);
        (2) IC 35-42-3-2 (kidnapping);
        (3) IC 35-42-4-1 (rape);
        (4) IC 35-42-4-2 (criminal deviate conduct);
        (5) IC 35-42-5-1 (robbery) if:
            (A) the robbery was committed while armed with a deadly weapon; or
            (B) the robbery results in bodily injury or serious bodily injury;
        (6) IC 35-42-5-2 (carjacking);
        (7) IC 35-45-9-3 (criminal gang activity);
        (8) IC 35-45-9-4 (criminal gang intimidation);
        (9) IC 35-47-2-1 (carrying a handgun without a license);
        (10) IC 35-47-10 (children and firearms);
        (11) IC 35-47-5-4.1 (dealing in a sawed-off shotgun);
        (12) IC 35-48-4-1 (dealing in cocaine, or a narcotic drug, or methamphetamine);
        (13) IC 35-48-4-2 (dealing in a schedule I, II, or III controlled substance);
        (14) IC 35-48-4-3 (dealing in a schedule IV controlled substance); or
        (15) any offense that may be joined under IC 35-34-1-9(a)(2) with any crime listed in subdivisions (1) through (14);
if the individual was at least sixteen (16) years of age at the time of the alleged violation.
    (b) Once an individual described in subsection (a) has been charged with any crime listed in subsection (a)(1) through (a)(15), the court having adult criminal jurisdiction shall retain jurisdiction over the case even if the individual pleads guilty to or is convicted of a lesser included offense. A plea of guilty to or a conviction of a lesser included offense does not vest jurisdiction in the juvenile court.
SOURCE: IC 34-24-1-1; (01)IN1366.1.6. -->     SECTION 6. IC 34-24-1-1 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2001]: Sec. 1. (a) The following may be seized:
        (1) All vehicles (as defined by IC 35-41-1), if they are used or are intended for use by the person or persons in possession of them to transport or in any manner to facilitate the transportation of the following:
            (A) A controlled substance for the purpose of committing, attempting to commit, or conspiring to commit any of the following:
                (i) Dealing in cocaine, or a narcotic drug, or methamphetamine (IC 35-48-4-1).
                (ii) Dealing in a schedule I, II, or III controlled substance
                (IC 35-48-4-2).
                (iii) Dealing in a schedule IV controlled substance
                (IC 35-48-4-3).
                (iv) Dealing in a schedule V controlled substance
                (IC 35-48-4-4).
                (v) Dealing in a counterfeit substance (IC 35-48-4-5).
                (vi) Possession of cocaine, or a narcotic drug (IC 35-48-4-6).
                (vii) Dealing in paraphernalia (IC 35-48-4-8.5).
                (viii) Dealing in marijuana, hash oil, or hashish
                (IC 35-48-4-10).
            (B) Any stolen (IC 35-43-4-2) or converted property
            (IC 35-43-4-3) if the retail or repurchase value of that property is one hundred dollars ($100) or more.
            (C) Any hazardous waste in violation of IC 13-30-6-6.
        (2) All money, negotiable instruments, securities, weapons, communications devices, or any property commonly used as consideration for a violation of IC 35-48-4  (other than items subject to forfeiture under IC 16-42-20-5 or IC 16-6-8.5-5.1 before its repeal):
            (A) furnished or intended to be furnished by any person in exchange for an act that is in violation of a criminal statute;
            (B) used to facilitate any violation of a criminal statute; or
            (C) traceable as proceeds of the violation of a criminal statute.
        (3) Any portion of real or personal property purchased with money that is traceable as a proceed of a violation of a criminal statute.
        (4) A vehicle that is used by a person to:
            (A) commit, attempt to commit, or conspire to commit;
            (B) facilitate the commission of; or
            (C) escape from the commission of;
        murder (IC 35-42-1-1), kidnapping (IC 35-42-3-2), criminal confinement (IC 35-42-3-3), rape (IC 35-42-4-1), child molesting (IC 35-42-4-3), or child exploitation (IC 35-42-4-4).
        (5) Real property owned by a person who uses it to commit any of the following as a Class A felony, a Class B felony, or a Class C felony:
            (A) Dealing in cocaine, or a narcotic drug, or methamphetamine (IC 35-48-4-1).
            (B) Dealing in a schedule I, II, or III controlled substance
            (IC 35-48-4-2).
            (C) Dealing in a schedule IV controlled substance
            (IC 35-48-4-3).
            (D) Dealing in marijuana, hash oil, or hashish (IC 35-48-4-10).
        (6) Equipment and recordings used by a person to commit fraud under IC  35-43-5-4(11).
        (7) Recordings sold, rented, transported, or possessed by a person

in violation of IC 24-4-10.
        (8) Property (as defined by IC 35-41-1-23) or an enterprise (as defined by IC  35-45-6-1) that is the object of a corrupt business influence violation (IC 35-45-6-2).
        (9) Unlawful telecommunications devices (as defined in IC 35-45-13-6) and plans, instructions, or publications used to commit an offense under IC 35-45-13.
    (b) A vehicle used by any person as a common or contract carrier in the transaction of business as a common or contract carrier is not subject to seizure under this section, unless it can be proven by a preponderance of the evidence that the owner of the vehicle knowingly permitted the vehicle to be used to engage in conduct that subjects it to seizure under subsection (a).
    (c) Money, negotiable instruments, securities, weapons, communications devices, or any property commonly used as consideration for a violation of IC 35-48-4 found near or on a person who is committing, attempting to commit, or conspiring to commit any of the following offenses shall be admitted into evidence in an action under this chapter as prima facie evidence that the money, negotiable instrument, security, or other thing of value is property that has been used or was to have been used to facilitate the violation of a criminal statute or is the proceeds of the violation of a criminal statute:
        (1) IC 35-48-4-1 (dealing in cocaine, or a narcotic drug, or methamphetamine).
        (2) IC 35-48-4-2 (dealing in a schedule I, II, or III controlled substance).
        (3) IC 35-48-4-3 (dealing in a schedule IV controlled substance).
        (4) IC 35-48-4-4 (dealing in a schedule V controlled substance) as a Class B felony.
        (5) IC 35-48-4-6 (possession of cocaine, or a narcotic drug) as a Class A felony, Class B felony, or Class C felony.
        (6) IC 35-48-4-10 (dealing in marijuana, hash oil, or hashish) as a Class C felony.

SOURCE: IC 35-38-1-7.1; (01)IN1366.1.7. -->     SECTION 7. IC 35-38-1-7.1, AS AMENDED BY P.L.183-1999, SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2001]: Sec. 7.1. (a) In determining what sentence to impose for a crime, the court shall consider:
        (1) the risk that the person will commit another crime;
        (2) the nature and circumstances of the crime committed;
        (3) the person's:
            (A) prior criminal record;
            (B) character; and
            (C) condition;
        (4) whether the victim of the crime was less than twelve (12) years of age or at least sixty-five (65) years of age;
        (5) whether the person violated a protective order issued against the person under IC 31-15 or IC 31-16 (or IC 31-1-11.5 before its repeal) or IC 34-26-2 (or IC 34-4-5.1  before its repeal); and
        (6) any oral or written statement made by a victim of the crime.
    (b) The court may consider the following factors as aggravating circumstances or as favoring imposing consecutive terms of imprisonment:
        (1) The person has recently violated the conditions of any probation, parole, or pardon granted to the person.
        (2) The person has a history of criminal or delinquent activity.
        (3) The person is in need of correctional or rehabilitative treatment that can best be provided by commitment of the person to a penal facility.
        (4) Imposition of a reduced sentence or suspension of the sentence and imposition of probation would depreciate the seriousness of the crime.
        (5) The victim of the crime was less than twelve (12) years of age or at least sixty-five (65) years of age.
        (6) The victim of the crime was mentally or physically infirm.
        (7) The person committed a forcible felony while wearing a garment designed to resist the penetration of a bullet.
        (8) The person committed a sex crime listed in subsection (e) and:
            (A) the crime created an epidemiologically demonstrated risk of transmission of the human immunodeficiency virus (HIV) and involved the sex organ of one (1) person and the mouth, anus, or sex organ of another person;
            (B) the person had knowledge that the person was a carrier of HIV; and
            (C) the person had received risk counseling as described in subsection (g).
        (9) The person committed an offense related to controlled substances listed in subsection (f) if:
            (A) the offense involved:
                (i) the delivery by any person to another person; or
                (ii) the use by any person on another person;
            of a contaminated sharp (as defined in IC 16-41-16-2) or other paraphernalia that creates an epidemiologically demonstrated risk of transmission of HIV by involving percutaneous contact;
            (B) the person had knowledge that the person was a carrier of

the human immunodeficiency virus (HIV); and
            (C) the person had received risk counseling as described in subsection (g).
        (10) The person committed the offense in an area of a consolidated or second class city that is designated as a public safety improvement area by the Indiana criminal justice institute under IC 36-8-19.5.
        (11) The injury to or death of the victim of the crime was the result of shaken baby syndrome (as defined in IC 16-41-40-2).
        (12) Before the commission of the crime, the person administered to the victim of the crime, without the victim's knowledge, a sedating drug or a drug that had a hypnotic effect on the victim, or the person had knowledge that such a drug had been administered to the victim without the victim's knowledge.
        (13) The person:
            (A) committed trafficking with an inmate under IC 35-44-3-9; and
            (B) is an employee of the penal facility.
    (c) The court may consider the following factors as mitigating circumstances or as favoring suspending the sentence and imposing probation:
        (1) The crime neither caused nor threatened serious harm to persons or property, or the person did not contemplate that it would do so.
        (2) The crime was the result of circumstances unlikely to recur.
        (3) The victim of the crime induced or facilitated the offense.
        (4) There are substantial grounds tending to excuse or justify the crime, though failing to establish a defense.
        (5) The person acted under strong provocation.
        (6) The person has no history of delinquency or criminal activity, or the person has led a law-abiding life for a substantial period before commission of the crime.
        (7) The person is likely to respond affirmatively to probation or short term imprisonment.
        (8) The character and attitudes of the person indicate that the person is unlikely to commit another crime.
        (9) The person has made or will make restitution to the victim of the crime for the injury, damage, or loss sustained.
        (10) Imprisonment of the person will result in undue hardship to the person or the dependents of the person.
        (11) The person was convicted of a crime involving the use of force against a person who had repeatedly inflicted physical or

sexual abuse upon the convicted person and evidence shows that the convicted person suffered from the effects of battery as a result of the past course of conduct of the individual who is the victim of the crime for which the person was convicted.
    (d) The criteria listed in subsections (b) and (c) do not limit the matters that the court may consider in determining the sentence.
    (e) For the purposes of this article, the following crimes are considered sex crimes:
        (1) Rape (IC 35-42-4-1).
        (2) Criminal deviate conduct (IC 35-42-4-2).
        (3) Child molesting (IC 35-42-4-3).
        (4) Child seduction (IC 35-42-4-7).
        (5) Prostitution (IC 35-45-4-2).
        (6) Patronizing a prostitute (IC 35-45-4-3).
        (7) Incest (IC 35-46-1-3).
        (8) Sexual misconduct with a minor under IC 35-42-4-9(a).
    (f) For the purposes of this article, the following crimes are considered offenses related to controlled substances:
        (1) Dealing in cocaine, or a narcotic drug, or methamphetamine (IC 35-48-4-1).
        (2) Dealing in a schedule I, II, or III controlled substance (IC 35-48-4-2).
        (3) Dealing in a schedule IV controlled substance (IC 35-48-4-3).
        (4) Dealing in a schedule V controlled substance (IC 35-48-4-4).
        (5) Possession of cocaine, or a narcotic drug (IC 35-48-4-6).
        (6) Possession of a controlled substance (IC 35-48-4-7).
        (7) Dealing in paraphernalia (IC 35-48-4-8.5).
        (8) Possession of paraphernalia (IC 35-48-4-8.3).
        (9) Offenses relating to registration (IC 35-48-4-14).
    (g) For the purposes of this section, a person received risk counseling if the person had been:
        (1) notified in person or in writing that tests have confirmed the presence of antibodies to the human immunodeficiency virus (HIV) in the person's blood; and
        (2) warned of the behavior that can transmit HIV.

SOURCE: IC 35-42-1-1; (01)IN1366.1.8. -->     SECTION 8. IC 35-42-1-1 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2001]: Sec. 1. A person who:
        (1) knowingly or intentionally kills another human being;
        (2) kills another human being while committing or attempting to commit arson, burglary, child molesting, consumer product tampering, criminal deviate conduct, kidnapping, rape, robbery, or carjacking;
        (3) kills another human being while committing or attempting to commit:
            (A) dealing in cocaine, or a narcotic drug, or methamphetamine (IC 35-48-4-1);
            (B) dealing in a schedule I, II, or III controlled substance
            (IC 35-48-4-2);
            (C) dealing in a schedule IV controlled substance
            (IC 35-48-4-3); or
            (D) dealing in a schedule V controlled substance; or
        (4) knowingly or intentionally kills a fetus that has attained viability (as defined in IC 16-18-2-365);
commits murder, a felony.
SOURCE: IC 35-45-6-1; (01)IN1366.1.9. -->     SECTION 9. IC 35-45-6-1 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2001]: Sec. 1. As used in this chapter:
    "Documentary material" means any document, drawing, photograph, recording, or other tangible item containing compiled data from which information can be either obtained or translated into a usable form.
    "Enterprise" means:
        (1) a sole proprietorship, corporation, limited liability company, partnership, business trust, or governmental entity; or
        (2) a union, an association, or a group, whether a legal entity or merely associated in fact.
    "Pattern of racketeering activity" means engaging in at least two (2) incidents of racketeering activity that have the same or similar intent, result, accomplice, victim, or method of commission, or that are otherwise interrelated by distinguishing characteristics that are not isolated incidents. However, the incidents are a pattern of racketeering activity only if at least one (1) of the incidents occurred after August 31, 1980, and if the last of the incidents occurred within five (5) years after a prior incident of racketeering activity.
    "Racketeering activity" means to commit, to attempt to commit, to conspire to commit a violation of, or aiding and abetting in a violation of any of the following:
        (1) A provision of IC 23-2-1, or of a rule or order issued under IC 23-2-1.
        (2) A violation of IC 35-45-9.
        (3) A violation of IC 35-47.
        (4) A violation of IC 35-49-3.
        (5) Murder (IC 35-42-1-1).
        (6) Battery as a Class C felony (IC 35-42-2-1).
        (7) Kidnapping (IC 35-42-3-2).
        (8) Child exploitation (IC 35-42-4-4).
        (9) Robbery (IC 35-42-5-1).
        (10) Carjacking (IC 35-42-5-2).
        (11) Arson (IC 35-43-1-1).
        (12) Burglary (IC 35-43-2-1).
        (13) Theft (IC 35-43-4-2).
        (14) Receiving stolen property (IC 35-43-4-2).
        (15) Forgery (IC 35-43-5-2).
        (16) Fraud (IC 35-43-5-4(1) through IC 35-43-5-4(9)).
        (17) Bribery (IC 35-44-1-1).
        (18) Official misconduct (IC 35-44-1-2).
        (19) Conflict of interest (IC 35-44-1-3).
        (20) Perjury (IC 35-44-2-1).
        (21) Obstruction of justice (IC 35-44-3-4).
        (22) Intimidation (IC 35-45-2-1).
        (23) Promoting prostitution (IC 35-45-4-4).
        (24) Promoting professional gambling (IC 35-45-5-4).
        (25) Dealing in cocaine, or a narcotic drug, or methamphetamine (IC 35-48-4-1).
        (26) Dealing in a schedule I, II, or III controlled substance
        (IC 35-48-4-2).
        (27) Dealing in a schedule IV controlled substance
        (IC 35-48-4-3).
        (28) Dealing in a schedule V controlled substance (IC 35-48-4-4).
        (29) Dealing in marijuana, hash oil, or hashish (IC 35-48-4-10).
        (30) Money laundering (IC 35-45-15-5).
SOURCE: IC 35-47-4-5; (01)IN1366.1.10. -->     SECTION 10. IC 35-47-4-5, AS AMENDED BY P.L.14-2000, SECTION 76, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2001]: Sec. 5. (a) As used in this section, "serious violent felon" means a person who has been convicted of:
        (1) committing a serious violent felony in:
            (A) Indiana; or
            (B) any other jurisdiction in which the elements of the crime for which the conviction was entered are substantially similar to the elements of a serious violent felony; or
        (2) attempting to commit or conspiring to commit a serious violent felony in:
            (A) Indiana as provided under IC 35-41-5-1 or IC 35-41-5-2; or
            (B) any other jurisdiction in which the elements of the crime for which the conviction was entered are substantially similar to the elements of attempting to commit or conspiring to

commit a serious violent felony.
    (b) As used in this section, "serious violent felony" means:
        (1) murder (IC 35-42-1-1);
        (2) voluntary manslaughter (IC 35-42-1-3);
        (3) reckless homicide not committed by means of a vehicle (IC 35-42-1-5);
        (4) battery as a Class B felony (IC 35-42-2-1(a)(4)) or Class C felony (IC 35-42-2-1(a)(3));
        (5) aggravated battery (IC 35-42-2-1.5);
        (6) kidnapping (IC 35-42-3-2);
        (7) criminal confinement (IC 35-42-3-3);
        (8) rape (IC 35-42-4-1);
        (9) criminal deviate conduct (IC 35-42-4-2);
        (10) child molesting (IC 35-42-4-3);
        (11) sexual battery as a Class C felony (IC 35-42-4-8);
        (12) robbery (IC 35-42-5-1);
        (13) carjacking (IC 35-42-5-2);
        (14) arson as a Class A felony or Class B felony (IC 35-43-1-1(a));
        (15) burglary as a Class A felony or Class B felony (IC 35-43-2-1);
        (16) assisting a criminal as a Class C felony (IC 35-44-3-2);
        (17) resisting law enforcement as a Class B felony or Class C felony (IC 35-44-3-3);
        (18) escape as a Class B felony or Class C felony (IC 35-44-3-5);
        (19) trafficking with an inmate as a Class C felony (IC 35-44-3-9);
        (20) criminal gang intimidation (IC 35-45-9-4);
        (21) stalking as a Class B felony or Class C felony (IC 35-45-10-5);
        (22) incest (IC 35-46-1-3);
        (23) dealing in cocaine, or a narcotic drug, or methamphetamine (IC 35-48-4-1);
        (24) dealing in a schedule I, II, or III controlled substance (IC 35-48-4-2);
        (25) dealing in a schedule IV controlled substance (IC 35-48-4-3); or
        (26) dealing in a schedule V controlled substance (IC 35-48-4-4).
    (c) A serious violent felon who knowingly or intentionally possesses a firearm commits unlawful possession of a firearm by a serious violent felon, a Class B felony.

SOURCE: IC 35-48-4-1; (01)IN1366.1.11. -->     SECTION 11. IC 35-48-4-1 IS AMENDED TO READ AS

FOLLOWS [EFFECTIVE JULY 1, 2001]: Sec. 1. (a) A person who:
        (1) knowingly or intentionally:
            (A) manufactures;
            (B) finances the manufacture of;
            (C) delivers; or
            (D) finances the delivery of;
        cocaine, or a narcotic drug, or methamphetamine, pure or adulterated, classified in schedule I or II; or
        (2) possesses, with intent to:
            (A) manufacture;
            (B) finance the manufacture of;
            (C) deliver; or
            (D) finance the delivery of;
        cocaine, or a narcotic drug, or methamphetamine, pure or adulterated, classified in schedule I or II;
commits dealing in cocaine, or a narcotic drug, or methamphetamine, a Class B felony, except as provided in subsection (b).
    (b) The offense is a Class A felony if:
        (1) the amount of the drug involved weighs three (3) grams or more;
        (2) the person:
            (A) delivered; or
            (B) financed the delivery of;
        the drug to a person under eighteen (18) years of age at least three (3) years junior to the person; or
        (3) the person delivered or financed the delivery of the drug:
            (A) on a school bus; or
            (B) in, on, or within one thousand (1,000) feet of:
                (i) school property;
                (ii) a public park; or
                (iii) a family housing complex.

SOURCE: IC 35-48-4-14.5; (01)IN1366.1.12. -->     SECTION 12. IC 35-48-4-14.5, AS ADDED BY P.L.150-1999, SECTION 2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2001]: Sec. 14.5. (a) As used in this section, "chemical reagents or precursors" refers to one (1) or more of the following:
        (1) Ephedrine.
        (2) Pseudoephedrine.
        (3) Phenylpropanolamine.
        (4) The salts, isomers, and salts of isomers of a substance identified in subdivisions (1) through (3).
        (5) Anhydrous ammonia.
        (6) Organic solvents.
        (7) Hydrochloric acid.
        (8) Lithium metal.
        (9) Sodium metal.
        (10) Ether.
        (11) Sulfuric acid.
        (12) Red phosphorous.
        (13) Iodine.
        (14) Sodium hydroxide (lye).
        (15) Potassium dichromate.
        (16) Sodium dichromate.
        (17) Potassium permanganate.
        (18) Chromium trioxide.
    (b) A person who possesses anhydrous ammonia with the intent to manufacture methamphetamine, a schedule II controlled substance under IC 35-48-2-6, commits a Class D felony. However, the offense is a Class C felony if the person possesses anhydrous ammonia:
        (1) on a school bus; or
        (2) in, on, or within one thousand (1,000) feet of:
            (A) school property;
            (B) a public park; or
            (C) a family housing complex;
with intent to manufacture methamphetamine, a schedule II controlled substance under IC 35-48-2-6.

     (c) A person who possesses two (2) or more chemical reagents or precursors with the intent to manufacture:
        (1) Methcathinone, a schedule I controlled substance under IC 35-48-2-4;
        (2) Methamphetamine, a schedule II controlled substance under IC 35-48-2-6;
        (3) Amphetamine, a schedule II controlled substance under IC 35-48-2-6; or
        (4) Phentermine, a schedule IV controlled substance under IC 35-48-2-10;
commits a Class D felony.
    (d) An offense under subsection (c) is a Class C felony if the person possesses two (2) or more chemical reagents or precursors:
        (1) on a school bus; or
        (2) in, on, or within one thousand (1,000) feet of:
            (A) school property;
            (B) a public park; or
            (C) a family housing complex;
with intent to manufacture methamphetamine, a schedule II controlled substance under IC 35-48-2-6.

SOURCE: IC 35-50-2-2; (01)IN1366.1.13. -->     SECTION 13. IC 35-50-2-2, AS AMENDED BY P.L.188-1999, SECTION 8, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2001]: Sec. 2. (a) The court may suspend any part of a sentence for a felony, except as provided in this section or in section 2.1 of this chapter.
    (b) With respect to the following crimes listed in this subsection, the court may suspend only that part of the sentence that is in excess of the minimum sentence:
        (1) The crime committed was a Class A or Class B felony and the person has a prior unrelated felony conviction.
        (2) The crime committed was a Class C felony and less than seven (7) years have elapsed between the date the person was discharged from probation, imprisonment, or parole, whichever is later, for a prior unrelated felony conviction and the date the person committed the Class C felony for which the person is being sentenced.
        (3) The crime committed was a Class D felony and less than three (3) years have elapsed between the date the person was discharged from probation, imprisonment, or parole, whichever is later, for a prior unrelated felony conviction and the date the person committed the Class D felony for which the person is being sentenced. However, the court may suspend the minimum sentence for the crime only if the court orders home detention under IC 35-38-1-21 or IC 35-38-2.5-5 instead of the minimum sentence  specified for the crime under this chapter.
        (4) The felony committed was:
            (A) murder (IC 35-42-1-1);
            (B) battery (IC 35-42-2-1) with a deadly weapon;
            (C) sexual battery (IC 35-42-4-8) with a deadly weapon;
            (D) kidnapping (IC 35-42-3-2);
            (E) confinement (IC 35-42-3-3) with a deadly weapon;
            (F) rape (IC 35-42-4-1) as a Class A felony;
            (G) criminal deviate conduct (IC 35-42-4-2) as a Class A felony;
            (H) child molesting (IC 35-42-4-3) as a Class A or Class B felony;
            (I) robbery (IC 35-42-5-1) resulting in serious bodily injury or with a deadly weapon;
            (J) arson (IC 35-43-1-1) for hire or resulting in serious bodily injury;
            (K) burglary (IC 35-43-2-1) resulting in serious bodily injury or with a deadly weapon;
            (L) resisting law enforcement (IC 35-44-3-3) with a deadly weapon;
            (M) escape (IC 35-44-3-5) with a deadly weapon;
            (N) rioting (IC 35-45-1-2) with a deadly weapon;
            (O) dealing in cocaine, or a narcotic drug, or methamphetamine (IC 35-48-4-1) as a Class A felony;
            (P) dealing in a schedule I, II, or III controlled substance (IC 35-48-4-2) if the amount of controlled substance involved has an aggregate weight of three (3) grams or more;
            (Q) an offense under IC 9-30-5 (operating a vehicle while intoxicated) and the person who committed the offense has accumulated at least two (2) prior unrelated convictions under IC 9-30-5; or
            (R) aggravated battery (IC 35-42-2-1.5).
    (c) Except as provided in subsection (e), whenever the court suspends a sentence for a felony, it shall place the person on probation under IC 35-38-2 for a fixed period to end not later than the date that the maximum sentence that may be imposed for the felony will expire.
    (d) The minimum sentence for a person convicted of voluntary manslaughter may not be suspended unless the court finds at the sentencing hearing that the crime was not committed by means of a deadly weapon.
    (e) Whenever the court suspends that part of an offender's (as defined in IC 5-2-12-4) sentence that is suspendible under subsection (b), the court shall place the offender on probation under IC 35-38-2 for not more than ten (10) years.
    (f) An additional term of imprisonment imposed under IC 35-50-2-11 may not be suspended.
    (g) A term of imprisonment imposed under IC 35-47-10-6 or IC 35-47-10-7 may not be suspended if the commission of the offense was knowing or intentional.
    (h) A term of imprisonment imposed for an offense under IC 35-48-4-6(b)(1)(B) may not be suspended.
SOURCE: IC 35-50-2-9; (01)IN1366.1.14. -->     SECTION 14. IC 35-50-2-9 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2001]: Sec. 9. (a) The state may seek either a death sentence or a sentence of life imprisonment without parole for murder by alleging, on a page separate from the rest of the charging instrument, the existence of at least one (1) of the aggravating circumstances listed in subsection (b). In the sentencing hearing after a person is convicted of murder, the state must prove beyond a

reasonable doubt the existence of at least one (1) of the aggravating circumstances alleged. However, the state may not proceed against a defendant under this section if a court determines at a pretrial hearing under IC 35-36-9 that the defendant is a mentally retarded individual.
    (b) The aggravating circumstances are as follows:
        (1) The defendant committed the murder by intentionally killing the victim while committing or attempting to commit any of the following:
            (A) Arson (IC 35-43-1-1).
            (B) Burglary (IC 35-43-2-1).
            (C) Child molesting (IC 35-42-4-3).
            (D) Criminal deviate conduct (IC 35-42-4-2).
            (E) Kidnapping (IC 35-42-3-2).
            (F) Rape (IC 35-42-4-1).
            (G) Robbery (IC 35-42-5-1).
            (H) Carjacking (IC 35-42-5-2).
            (I) Criminal gang activity (IC 35-45-9-3).
            (J) Dealing in cocaine, or a narcotic drug, or methamphetamine (IC 35-48-4-1).
        (2) The defendant committed the murder by the unlawful detonation of an explosive with intent to injure person or damage property.
        (3) The defendant committed the murder by lying in wait.
        (4) The defendant who committed the murder was hired to kill.
        (5) The defendant committed the murder by hiring another person to kill.
        (6) The victim of the murder was a corrections employee, probation officer, parole officer, community corrections worker, home detention officer, fireman, judge, or law enforcement officer, and either:
            (A) the victim was acting in the course of duty; or
            (B) the murder was motivated by an act the victim performed while acting in the course of duty.
        (7) The defendant has been convicted of another murder.
        (8) The defendant has committed another murder, at any time, regardless of whether the defendant has been convicted of that other murder.
        (9) The defendant was:
            (A) under the custody of the department of correction;
            (B) under the custody of a county sheriff;
            (C) on probation after receiving a sentence for the commission of a felony; or


            (D) on parole;
        at the time the murder was committed.
        (10) The defendant dismembered the victim.
        (11) The defendant burned, mutilated, or tortured the victim while the victim was alive.
        (12) The victim of the murder was less than twelve (12) years of age.
        (13) The victim was a victim of any of the following offenses for which the defendant was convicted:
            (A) Battery as a Class D felony or as a Class C felony under IC  35-42-2-1.
            (B) Kidnapping (IC 35-42-3-2).
            (C) Criminal confinement (IC 35-42-3-3).
            (D) A sex crime under IC 35-42-4.
        (14) The victim of the murder was listed by the state or known by the defendant to be a witness against the defendant and the defendant committed the murder with the intent to prevent the person from testifying.
        (15) The defendant committed the murder by intentionally discharging a firearm (as defined in IC 35-47-1-5):
            (A) into an inhabited dwelling; or
            (B) from a vehicle.
        (16) The victim of the murder was pregnant and the murder resulted in the  intentional killing of a fetus that has attained viability (as defined in IC 16-18-2-365).
    (c) The mitigating circumstances that may be considered under this section are as follows:
        (1) The defendant has no significant history of prior criminal conduct.
        (2) The defendant was under the influence of extreme mental or emotional disturbance when the murder was committed.
        (3) The victim was a participant in or consented to the defendant's conduct.
        (4) The defendant was an accomplice in a murder committed by another person, and the defendant's participation was relatively minor.
        (5) The defendant acted under the substantial domination of another person.
        (6) The defendant's capacity to appreciate the criminality of the defendant's conduct or to conform that conduct to the requirements of law was substantially impaired as a result of mental disease or defect or of intoxication.
        (7) The defendant was less than eighteen (18) years of age at the time the murder was committed.
        (8) Any other circumstances appropriate for consideration.
    (d) If the defendant was convicted of murder in a jury trial, the jury shall reconvene for the sentencing hearing. If the trial was to the court, or the judgment was entered on a guilty plea, the court alone shall conduct the sentencing hearing. The jury or the court may consider all the evidence introduced at the trial stage of the proceedings, together with new evidence presented at the sentencing hearing. The court shall instruct the jury concerning the statutory penalties for murder and any other offenses for which the defendant was convicted, the potential for consecutive or concurrent sentencing, and the availability of good time credit and clemency. The defendant may present any additional evidence relevant to:
        (1) the aggravating circumstances alleged; or
        (2) any of the mitigating circumstances listed in subsection (c).
    (e) Except as provided by IC 35-36-9, if the hearing is by jury, the jury shall recommend to the court whether the death penalty or life imprisonment without parole, or neither, should be imposed. The jury may recommend:
        (1) the death penalty; or
        (2) life imprisonment without parole;
only if it makes the findings described in subsection (k). The court shall make the final determination of the sentence, after considering the jury's recommendation, and the sentence shall be based on the same standards that the jury was required to consider. The court is not bound by the jury's recommendation. In making the final determination of the sentence after receiving the jury's recommendation, the court may receive evidence of the crime's impact on members of the victim's family.
    (f) If a jury is unable to agree on a sentence recommendation after reasonable deliberations, the court shall discharge the jury and proceed as if the hearing had been to the court alone.
    (g) If the hearing is to the court alone, except as provided by IC 35-36-9, the court shall:
        (1) sentence the defendant to death; or
        (2) impose a term of life imprisonment without parole;
only if it makes the findings described in subsection (k).
    (h) If a court sentences a defendant to death, the court shall order the defendant's execution to be carried out not later than one (1) year and one (1) day after the date the defendant was convicted. The supreme court has exclusive jurisdiction to stay the execution of a

death sentence. If the supreme court stays the execution of a death sentence, the supreme court shall order a new date for the defendant's execution.
    (i) If a person sentenced to death by a court files a petition for post-conviction relief, the court, not later than ninety (90) days after the date the petition is filed, shall set a date to hold a hearing to consider the petition. If a court does not, within the ninety (90) day period, set the date to hold the hearing to consider the petition, the court's failure to set the hearing date is not a basis for additional post-conviction relief. The attorney general shall answer the petition for post-conviction relief on behalf of the state. At the request of the attorney general, a prosecuting attorney shall assist the attorney general. The court shall enter written findings of fact and conclusions of law concerning the petition not later than ninety (90) days after the date the hearing concludes. However, if the court determines that the petition is without merit, the court may dismiss the petition within ninety (90) days without conducting a hearing under this subsection.
    (j) A death sentence is subject to automatic review by the supreme court. The review, which shall be heard under rules adopted by the supreme court, shall be given priority over all other cases. The supreme court's review must take into consideration all claims that the:
        (1) conviction or sentence was in violation of the:
            (A) Constitution of the State of Indiana; or
            (B) Constitution of the United States;
        (2) sentencing court was without jurisdiction to impose a sentence; and
        (3) sentence:
            (A) exceeds the maximum sentence authorized by law; or
            (B) is otherwise erroneous.
If the supreme court cannot complete its review by the date set by the sentencing court for the defendant's execution under subsection (h), the supreme court shall stay the execution of the death sentence and set a new date to carry out the defendant's execution.
    (k) Before a sentence may be imposed under this section, the jury, in a proceeding under subsection (e), or the court, in a proceeding under subsection (g), must find that:
        (1) the state has proved beyond a reasonable doubt that at least one (1) of the aggravating circumstances listed in subsection (b) exists; and
        (2) any mitigating circumstances that exist are outweighed by the aggravating circumstance or circumstances.

SOURCE: ; (01)IN1366.1.15. -->     SECTION 15. [EFFECTIVE JULY 1, 2001] IC 35-48-4-1 and

IC 35-48-4-14.5, both as amended by this act, apply only to offenses committed after June 30, 2001.

SOURCE: ; (01)IN1366.1.16. -->     SECTION 16. [EFFECTIVE JULY 1, 2001] (a) There is appropriated to the state chemist two hundred fifty thousand dollars ($250,000) for its use to carry out this SECTION, beginning July 1, 2001, and ending June 30, 2003.
    (b) The state chemist shall contract with a college or university in Indiana to conduct research on the development of a form of agricultural anhydrous ammonia (NH3) fertilizer and ammonia solution (as defined in IC 15-3-2-3) that makes the substances inert for the purposes of making methamphetamine yet allows the substances to retain their usefulness as an economical agricultural fertilizer. The state chemist shall provide for the publication of the results of the research.
    (c) This SECTION expires July 1, 2005.