The severity of punishment will be reduced in Oklahoma for possession CDS with intent to distribute, distribution & manufacture of CDS & imitation CDS, use of a minor to sell drugs, selling drugs to a minor, selling drugs in the presence of a young child, and possessing/transporting with intent to distribute & manufacturing CDS within 2000 ft of a school/park/project/child care facility. Anyone convicted of those offenses for a second or subsequent time will not be considered a habitual offender, which means the sentencing enhancement statute can’t be used. The eligibility for a deferred sentence, a suspended sentence, and probation has greatly increased for someone convicted of those crimes.
Transporting Or Possessing CDS With Intent To Distribute
The punishments were broken down previously into the following groups:
- Any narcotic that’s in Schedule I or II, LSD, gamma butyrolactone, gamma hydroxyvalerate, gamma valerolactone, 1,4 butanediol, 1,4 butanediol, and GHB.
- Any other CDS in Schedule I, II, III, or IV.
- Schedule V substances.
The change in law doesn’t put specific drugs into a separate category and lumps Schedule V drugs in with Schedule III and IV drugs. New punishments:
- Any Schedule I or II substance (except marijuana):
- First offense – up to seven years in prison (was 5-life); up to $100,000 fine
- Second offense – up to 14 years in prison (new)
- Third and subsequent offenses – up to 20 years in prison (new)
- Any CDS in Schedules III, IV, and V, including marijuana:
- First offense – up to five years in prison; up to $20,000 fine
- Second offense – up to ten years in prison
- Third and subsequent offenses – up to 15 years in prison
Previously, the range of punishment for every offense (including the first), except for Schedule V drugs, was five years-life. To put in perspective how dramatic of a change this law is, not only is there now no minimum time no matter how many times someone has committed this offense–but the caps on third and subsequent offenses are 20 and 15 years. The only time someone used to be eligible for probation was on a first offense. Now, a defendant is eligible for probation regardless of how many times they have been convicted of possession with intent to distribute.
Transporting Or Possessing Imitation CDS With Intent To Distribute
The first offense for an imitation controlled substance is still a misdemeanor. The maximum punishment on a second offense has been reduced from five years in prison to two.
Distribution & Manufacturing CDS & Synthetic CDS
The law change specifies ranges of punishment for the distribution or manufacture of a CDS and synthetic CDS:
- First offense – up to ten years in prison; up to $25,000 fine
- Second offense – 2-20 years in prison
- Third and subsequent offenses – ten years-life in prison
Someone convicted of these crimes two or more times will no longer be considered a habitual offender. The previous maximum fine was $100,000. The provision requiring the offender on second and subsequent offenses to be fined twice the fine authorized has been removed. New language specifically states that offenders are eligible for probation, deferred sentences, and suspended sentences. In the previous version of this law, this subsection only addressed synthetic controlled substances. There’s a conflict between this subsection and another subsection in this statute that covers the manufacture of CDS, which remained unchanged.
Using A Minor To Distribute Drugs, Distributing Drugs To A Minor, & Distributing CDS In The Presence Of A Young Child
Punishment for someone 18 or older who uses or solicits the use of services of someone who is less than 18 to distribute, dispense, transport with intent to distribute, dispense, or cultivate a CDS; distributes a CDS to a person under 18, or distributes a CDS in the presence of a person under 12:
- First offense – 2-10 years in prison
- Second offense – 4-20 years in prison
- Third and subsequent offenses – 10 years-life
An adult distributing a CDS in the presence of someone under 12 is now a separate crime.
Possessing With Intent To Distribute, Transporting With Intent To Distribute, Or Manufacturing CDS Within 2000 ft Of A School, Park, Public Housing Project, Or Child Care Facility
- First offense – term of imprisonment not more than twice that authorized by the respective provision of this section; there is no longer a requirement that the defendant serve at least 50% of their sentence
- Second and subsequent offenses – term of imprisonment not more than three times that authorized by the respective provision of this section; defendant is not eligible for a deferred sentence, suspended sentence, or probation; this is no longer an 85% crime
Someone convicted of a second and subsequent crime of transporting or possessing with an intent to distribute a CDS, distribution of a CDS, using or soliciting the services of someone less than 18 to distribute, dispense, transport with the intent to distribute or dispense or cultivate a CDS, distributing a CDS to someone under 18, or distributing a CDS in the presence of someone under 12 may not be punished as a habitual offender under 21 O.S. § 51.1. The only crimes in this statute for which someone who is convicted of a second and subsequent offense may be treated as a habitual offender is manufacturing or attempting to manufacture a CDS.
SB 793 amends 63 O.S. § 4-401. It goes into effect on November 1, 2018. This law is not retroactive, so it will not apply to offenses committed before November 1, 2018.