HB4222 96TH GENERAL ASSEMBLY

LRB096 04065 RLC 14103 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB4222

Introduced 2/27/2009, by Rep. Arthur L. Turner

SYNOPSIS AS INTRODUCED:

New Act
720 ILCS 570/102	from Ch. 56 1/2, par. 1102
720 ILCS 570/410.5 new
720 ILCS 646/10
720 ILCS 646/70.5 new

Creates the Substance Abuse and Crime Prevention Act. Amends the Illinois Controlled Substances Act and the Methamphetamine Control and Community Protection Act. Provides that any person convicted of a nonviolent drug possession offense shall receive probation; includes certain exceptions. Provides that as a condition of probation, the court shall require participation in and completion of an appropriate drug treatment program. Provides that the court may also impose as a condition of probation participation in vocational training, family counseling, literacy training, or community service, or a combination of those conditions. Provides that a court may not impose incarceration as an additional condition of probation. Provides that in addition to any fine assessed under other provisions of law, the trial judge may require any person convicted of a nonviolent drug possession offense who is reasonably able to do so to contribute to the cost of his or her own placement in a drug treatment program.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning substance abuse treatment.

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

Section 1. Short title. This Act may be cited as the Substance Abuse and Crime Prevention Act.

Section 5. Findings and declarations. The People of the State of Illinois hereby find and declare all of the following:

(1) Substance abuse treatment is a proven public safety and health measure. Nonviolent, drug-dependent criminal offenders who receive drug treatment are much less likely to abuse drugs and commit future crimes, and are likelier to live healthier, more stable, and more productive lives.

(2) Community safety and health are promoted, and taxpayer dollars are saved, when nonviolent persons convicted of drug possession or drug use are provided appropriate community-based treatment instead of incarceration.

(3) In 1996 Arizona voters, by a 2 to 1, margin passed the Drug Medicalization, Prevention, and Control Act, which diverted nonviolent drug offenders into drug treatment and education services rather than incarceration. According to a Report Card prepared by the Arizona Supreme Court, the Arizona law is resulting in safer communities and more substance abusing probationers in recovery, has already saved state taxpayers millions of dollars, and is helping more than 75% of program participants to remain drug free.

Section 10. Purpose and intent. The People of the State of Illinois hereby declare their purpose and intent in enacting this Act to be as follows:

(1) to divert from incarceration into community-based substance abuse treatment programs nonviolent defendants, probationers, and parolees charged with simple drug possession or drug use offenses;

(2) to halt the wasteful expenditure of hundreds of millions of dollars each year on the incarceration and re-incarceration of nonviolent drug users who would be better served by community-based treatment;

(3) to enhance public safety by reducing drug-related crime and preserving jails and prison cells for serious and violent offenders; and

(4) to improve public health by reducing drug abuse and drug dependence through proven and effective drug treatment strategies.

Section 105. The Illinois Controlled Substances Act is amended by changing Section 102 and by adding Section 410.5 as follows:

(720 ILCS 570/102) (from Ch. 56 1/2, par. 1102)

Sec. 102. Definitions. As used in this Act, unless the context otherwise requires:

(a) "Addict" means any person who habitually uses any drug, chemical, substance or dangerous drug other than alcohol so as to endanger the public morals, health, safety or welfare or who is so far addicted to the use of a dangerous drug or controlled substance other than alcohol as to have lost the power of self control with reference to his addiction.

(b) "Administer" means the direct application of a controlled substance, whether by injection, inhalation, ingestion, or any other means, to the body of a patient, research subject, or animal (as defined by the Humane Euthanasia in Animal Shelters Act) by:

(1) a practitioner (or, in his presence, by his authorized agent),

(2) the patient or research subject at the lawful direction of the practitioner, or

(3) a euthanasia technician as defined by the Humane Euthanasia in Animal Shelters Act.

(c) "Agent" means an authorized person who acts on behalf of or at the direction of a manufacturer, distributor, or dispenser. It does not include a common or contract carrier, public warehouseman or employee of the carrier or warehouseman.

(c-1) "Anabolic Steroids" means any drug or hormonal substance, chemically and pharmacologically related to testosterone (other than estrogens, progestins, and corticosteroids) that promotes muscle growth, and includes:

(i) boldenone,

(ii) chlorotestosterone,

(iii) chostebol,

(iv) dehydrochlormethyltestosterone,

(v) dihydrotestosterone,

(vi) drostanolone,

(vii) ethylestrenol,

(viii) fluoxymesterone,

(ix) formebulone,

(x) mesterolone,

(xi) methandienone,

(xii) methandranone,

(xiii) methandriol,

(xiv) methandrostenolone,

(xv) methenolone,

(xvi) methyltestosterone,

(xvii) mibolerone,

(xviii) nandrolone,

(xix) norethandrolone,

(xx) oxandrolone,

(xxi) oxymesterone,

(xxii) oxymetholone,

(xxiii) stanolone,

(xxiv) stanozolol,

(xxv) testolactone,

(xxvi) testosterone,

(xxvii) trenbolone, and

(xxviii) any salt, ester, or isomer of a drug or substance described or listed in this paragraph, if that salt, ester, or isomer promotes muscle growth.

Any person who is otherwise lawfully in possession of an anabolic steroid, or who otherwise lawfully manufactures, distributes, dispenses, delivers, or possesses with intent to deliver an anabolic steroid, which anabolic steroid is expressly intended for and lawfully allowed to be administered through implants to livestock or other nonhuman species, and which is approved by the Secretary of Health and Human Services for such administration, and which the person intends to administer or have administered through such implants, shall not be considered to be in unauthorized possession or to unlawfully manufacture, distribute, dispense, deliver, or possess with intent to deliver such anabolic steroid for purposes of this Act.

(d) "Administration" means the Drug Enforcement Administration, United States Department of Justice, or its successor agency.

(e) "Control" means to add a drug or other substance, or immediate precursor, to a Schedule under Article II of this Act whether by transfer from another Schedule or otherwise.

(f) "Controlled Substance" means a drug, substance, or immediate precursor in the Schedules of Article II of this Act.

(g) "Counterfeit substance" means a controlled substance, which, or the container or labeling of which, without authorization bears the trademark, trade name, or other identifying mark, imprint, number or device, or any likeness thereof, of a manufacturer, distributor, or dispenser other than the person who in fact manufactured, distributed, or dispensed the substance.

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

(i) "Department" means the Illinois Department of Human Services (as successor to the Department of Alcoholism and Substance Abuse) or its successor agency.

(j) "Department of State Police" means the Department of State Police of the State of Illinois or its successor agency.

(k) "Department of Corrections" means the Department of Corrections of the State of Illinois or its successor agency.

(l) "Department of Professional Regulation" means the Department of Professional Regulation of the State of Illinois or its successor agency.

(m) "Depressant" or "stimulant substance" means:

(1) a drug which contains any quantity of (i) barbituric acid or any of the salts of barbituric acid which has been designated as habit forming under section 502 (d) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 352 (d)); or

(2) a drug which contains any quantity of (i) amphetamine or methamphetamine and any of their optical isomers; (ii) any salt of amphetamine or methamphetamine or any salt of an optical isomer of amphetamine; or (iii) any substance which the Department, after investigation, has found to be, and by rule designated as, habit forming because of its depressant or stimulant effect on the central nervous system; or

(3) lysergic acid diethylamide; or

(4) any drug which contains any quantity of a substance which the Department, after investigation, has found to have, and by rule designated as having, a potential for abuse because of its depressant or stimulant effect on the central nervous system or its hallucinogenic effect.

(n) (Blank).

(o) "Director" means the Director of the Department of State Police or the Department of Professional Regulation or his designated agents.

(p) "Dispense" means to deliver a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a prescriber, including the prescribing, administering, packaging, labeling, or compounding necessary to prepare the substance for that delivery.

(q) "Dispenser" means a practitioner who dispenses.

(r) "Distribute" means to deliver, other than by administering or dispensing, a controlled substance.

(s) "Distributor" means a person who distributes.

(t) "Drug" means (1) substances recognized as drugs in the official United States Pharmacopoeia, Official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them; (2) substances intended for use in diagnosis, cure, mitigation, treatment, or prevention of disease in man or animals; (3) substances (other than food) intended to affect the structure of any function of the body of man or animals and (4) substances intended for use as a component of any article specified in clause (1), (2), or (3) of this subsection. It does not include devices or their components, parts, or accessories.

(t-3) "Drug treatment program" or "drug treatment" means a community drug treatment program licensed by the Department of Human Services under the Alcoholism and Other Drug Abuse and Dependency Act, which may include one or more of the following: outpatient treatment, half-way house treatment, narcotic replacement therapy, drug education or prevention courses, or limited inpatient or residential drug treatment as needed to address special detoxification or relapse situations or severe dependence. "Drug treatment program" or "drug treatment" does not include drug treatment programs offered in a prison or jail facility.

(t-5) "Euthanasia agency" means an entity certified by the Department of Professional Regulation for the purpose of animal euthanasia that holds an animal control facility license or animal shelter license under the Animal Welfare Act. A euthanasia agency is authorized to purchase, store, possess, and utilize Schedule II nonnarcotic and Schedule III nonnarcotic drugs for the sole purpose of animal euthanasia.

(t-10) "Euthanasia drugs" means Schedule II or Schedule III substances (nonnarcotic controlled substances) that are used by a euthanasia agency for the purpose of animal euthanasia.

(u) "Good faith" means the prescribing or dispensing of a controlled substance by a practitioner in the regular course of professional treatment to or for any person who is under his treatment for a pathology or condition other than that individual's physical or psychological dependence upon or addiction to a controlled substance, except as provided herein: and application of the term to a pharmacist shall mean the dispensing of a controlled substance pursuant to the prescriber's order which in the professional judgment of the pharmacist is lawful. The pharmacist shall be guided by accepted professional standards including, but not limited to the following, in making the judgment:

(1) lack of consistency of doctor-patient relationship,

(2) frequency of prescriptions for same drug by one prescriber for large numbers of patients,

(3) quantities beyond those normally prescribed,

(4) unusual dosages,

(5) unusual geographic distances between patient, pharmacist and prescriber,

(6) consistent prescribing of habit-forming drugs.

(u-1) "Home infusion services" means services provided by a pharmacy in compounding solutions for direct administration to a patient in a private residence, long-term care facility, or hospice setting by means of parenteral, intravenous, intramuscular, subcutaneous, or intraspinal infusion.

(v) "Immediate precursor" means a substance:

(1) which the Department has found to be and by rule designated as being a principal compound used, or produced primarily for use, in the manufacture of a controlled substance;

(2) which is an immediate chemical intermediary used or likely to be used in the manufacture of such controlled substance; and

(3) the control of which is necessary to prevent, curtail or limit the manufacture of such controlled substance.

(w) "Instructional activities" means the acts of teaching, educating or instructing by practitioners using controlled substances within educational facilities approved by the State Board of Education or its successor agency.

(x) "Local authorities" means a duly organized State, County or Municipal peace unit or police force.

(y) "Look-alike substance" means a substance, other than a controlled substance which (1) by overall dosage unit appearance, including shape, color, size, markings or lack thereof, taste, consistency, or any other identifying physical characteristic of the substance, would lead a reasonable person to believe that the substance is a controlled substance, or (2) is expressly or impliedly represented to be a controlled substance or is distributed under circumstances which would lead a reasonable person to believe that the substance is a controlled substance. For the purpose of determining whether the representations made or the circumstances of the distribution would lead a reasonable person to believe the substance to be a controlled substance under this clause (2) of subsection (y), the court or other authority may consider the following factors in addition to any other factor that may be relevant:

(a) statements made by the owner or person in control of the substance concerning its nature, use or effect;

(b) statements made to the buyer or recipient that the substance may be resold for profit;

(c) whether the substance is packaged in a manner normally used for the illegal distribution of controlled substances;

(d) whether the distribution or attempted distribution included an exchange of or demand for money or other property as consideration, and whether the amount of the consideration was substantially greater than the reasonable retail market value of the substance.

Clause (1) of this subsection (y) shall not apply to a noncontrolled substance in its finished dosage form that was initially introduced into commerce prior to the initial introduction into commerce of a controlled substance in its finished dosage form which it may substantially resemble.

Nothing in this subsection (y) prohibits the dispensing or distributing of noncontrolled substances by persons authorized to dispense and distribute controlled substances under this Act, provided that such action would be deemed to be carried out in good faith under subsection (u) if the substances involved were controlled substances.

Nothing in this subsection (y) or in this Act prohibits the manufacture, preparation, propagation, compounding, processing, packaging, advertising or distribution of a drug or drugs by any person registered pursuant to Section 510 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360).

(y-1) "Mail-order pharmacy" means a pharmacy that is located in a state of the United States, other than Illinois, that delivers, dispenses or distributes, through the United States Postal Service or other common carrier, to Illinois residents, any substance which requires a prescription.

(z) "Manufacture" means the production, preparation, propagation, compounding, conversion or processing of a controlled substance other than methamphetamine, either directly or indirectly, by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling of its container, except that this term does not include:

(1) by an ultimate user, the preparation or compounding of a controlled substance for his own use; or

(2) by a practitioner, or his authorized agent under his supervision, the preparation, compounding, packaging, or labeling of a controlled substance:

(a) as an incident to his administering or dispensing of a controlled substance in the course of his professional practice; or

(b) as an incident to lawful research, teaching or chemical analysis and not for sale.

(z-1) (Blank).

(z-5) "Misdemeanor not related to the use of drugs" means a misdemeanor that does not involve: (i) the simple possession or use of drugs or drug paraphernalia, (ii) being present where drugs are used, (iii) failure to register as a drug offender, or (iv) any similar activity.

(aa) "Narcotic drug" means any of the following, whether produced directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:

(1) opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate;

(2) any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any of the substances referred to in clause (1), but not including the isoquinoline alkaloids of opium;

(3) opium poppy and poppy straw;

(4) coca leaves and any salts, compound, isomer, salt of an isomer, derivative, or preparation of coca leaves including cocaine or ecgonine, and any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions of coca leaves which do not contain cocaine or ecgonine (for the purpose of this paragraph, the term "isomer" includes optical, positional and geometric isomers).

(aa-5) "Nonviolent drug possession offense" means the unlawful possession of any Schedule I, II, III, IV, or V controlled substance under Section 402 or the unlawful possession of methamphetamine under the Methamphetamine Control and Community Protection Act. "Nonviolent drug possession offense" does not include the manufacture or delivery, or possession with intent to manufacture or deliver, of any controlled substance under Section 402 or of methamphetamine under the Methamphetamine Control and Community Protection Act.

(bb) "Nurse" means a registered nurse licensed under the Nurse Practice Act.

(cc) (Blank).

(dd) "Opiate" means any substance having an addiction forming or addiction sustaining liability similar to morphine or being capable of conversion into a drug having addiction forming or addiction sustaining liability.

(ee) "Opium poppy" means the plant of the species Papaver somniferum L., except its seeds.

(ff) "Parole and Pardon Board" means the Parole and Pardon Board of the State of Illinois or its successor agency.

(gg) "Person" means any individual, corporation, mail-order pharmacy, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other entity.

(hh) "Pharmacist" means any person who holds a license or certificate of registration as a registered pharmacist, a local registered pharmacist or a registered assistant pharmacist under the Pharmacy Practice Act.

(ii) "Pharmacy" means any store, ship or other place in which pharmacy is authorized to be practiced under the Pharmacy Practice Act.

(jj) "Poppy straw" means all parts, except the seeds, of the opium poppy, after mowing.

(kk) "Practitioner" means a physician licensed to practice medicine in all its branches, dentist, optometrist, podiatrist, veterinarian, scientific investigator, pharmacist, physician assistant, advanced practice nurse, licensed practical nurse, registered nurse, hospital, laboratory, or pharmacy, or other person licensed, registered, or otherwise lawfully permitted by the United States or this State to distribute, dispense, conduct research with respect to, administer or use in teaching or chemical analysis, a controlled substance in the course of professional practice or research.

(ll) "Pre-printed prescription" means a written prescription upon which the designated drug has been indicated prior to the time of issuance.

(mm) "Prescriber" means a physician licensed to practice medicine in all its branches, dentist, optometrist, podiatrist or veterinarian who issues a prescription, a physician assistant who issues a prescription for a Schedule III, IV, or V controlled substance in accordance with Section 303.05 and the written guidelines required under Section 7.5 of the Physician Assistant Practice Act of 1987, or an advanced practice nurse with prescriptive authority delegated under Section 65-40 of the Nurse Practice Act and in accordance with Section 303.05 and a written collaborative agreement under Section 65-35 of the Nurse Practice Act.

(nn) "Prescription" means a lawful written, facsimile, or verbal order of a physician licensed to practice medicine in all its branches, dentist, podiatrist or veterinarian for any controlled substance, of an optometrist for a Schedule III, IV, or V controlled substance in accordance with Section 15.1 of the Illinois Optometric Practice Act of 1987, of a physician assistant for a Schedule III, IV, or V controlled substance in accordance with Section 303.05 and the written guidelines required under Section 7.5 of the Physician Assistant Practice Act of 1987, or of an advanced practice nurse with prescriptive authority delegated under Section 65-40 of the Nurse Practice Act who issues a prescription for a Schedule III, IV, or V controlled substance in accordance with Section 303.05 and a written collaborative agreement under Section 65-35 of the Nurse Practice Act.

(oo) "Production" or "produce" means manufacture, planting, cultivating, growing, or harvesting of a controlled substance other than methamphetamine.

(pp) "Registrant" means every person who is required to register under Section 302 of this Act.

(qq) "Registry number" means the number assigned to each person authorized to handle controlled substances under the laws of the United States and of this State.

(rr) "State" includes the State of Illinois and any state, district, commonwealth, territory, insular possession thereof, and any area subject to the legal authority of the United States of America.

(rr-5) "Successful completion of treatment" means that a defendant who has had drug treatment imposed as a condition of probation has completed the prescribed course of drug treatment and, as a result, there is reasonable cause to believe that the defendant will not abuse controlled substances in the future.

(ss) "Ultimate user" means a person who lawfully possesses a controlled substance for his own use or for the use of a member of his household or for administering to an animal owned by him or by a member of his household.

(tt) "Violent crime" has the meaning ascribed in paragraph (c) of Section 3 of the Rights of Crime Victims and Witnesses Act.

(Source: P.A. 94-556, eff. 9-11-05; 95-242, eff. 1-1-08; 95-639, eff. 10-5-07; 95-689, eff. 10-29-07; 95-876, eff. 8-21-08.)

(720 ILCS 570/410.5 new)

Sec. 410.5. Possession of controlled substances; probation; exceptions.

(a) Conditions of probation. Notwithstanding any other provision of law, and except as provided in the other provisions of this Section, any person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program. The court may also impose as a condition of probation participation in vocational training, family counseling, literacy training, or community service, or a combination of those conditions. A court may not impose incarceration as an additional condition of probation. Aside from the limitations imposed in this subsection, the trial court is not otherwise limited in the type of probation conditions it may impose. In addition to any fine assessed under other provisions of law, the trial judge may require any person convicted of a nonviolent drug possession offense who is reasonably able to do so to contribute to the cost of his or her own placement in a drug treatment program.

(b) Exclusions. Subsection (a) does not apply to:

(1) Any defendant who has previously been convicted of one or more violent crimes, unless the nonviolent drug possession offense occurred after a period of 5 years in which the defendant remained free of both prison custody and the commission of an offense that resulted in (A) a felony conviction other than a nonviolent drug possession offense or (B) a misdemeanor conviction involving physical injury or the threat of physical injury to another person.

(2) Any defendant who, in addition to one or more nonviolent drug possession offenses, has been convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony.

(3) Any defendant who:

(A) While using a firearm, unlawfully possesses any amount of (i) a substance containing either cocaine base, cocaine, heroin, or methamphetamine, or (ii) a liquid, non-liquid, plant substance, or hand-rolled cigarette containing phencyclidine.

(B) While using a firearm, is unlawfully under the influence of cocaine base, cocaine, heroin, methamphetamine, or phencyclidine.

(4) Any defendant who refuses drug treatment as a condition of probation.

(5) Any defendant who (A) has two separate convictions for nonviolent drug possession offenses, (B) has participated in two separate courses of drug treatment pursuant to subsection (A), and (C) is found by the court, by clear and convincing evidence, to be unamenable to any and all forms of available drug treatment. Notwithstanding any other provision of law, the trial court shall sentence such defendants to 30 days in jail.

(c) Treatment.

(1) Within 7 days of an order imposing probation under subsection (a), the probation department shall notify the drug treatment provider designated to provide drug treatment under subsection (a). Within 30 days of receiving that notice, the treatment provider shall prepare a treatment plan and forward it to the probation department. On a quarterly basis after the defendant begins the drug treatment program, the treatment provider shall prepare and forward a progress report to the probation department.

(2) If at any point during the course of drug treatment the treatment provider notifies the probation department that the defendant is unamenable to the drug treatment being provided, but may be amenable to other drug treatments or related programs, the probation department may move the court to modify the terms of probation to ensure that the defendant receives the alternative drug treatment or program.

(3) If at any point during the course of drug treatment the treatment provider notifies the probation department that the defendant is unamenable to the drug treatment provided and all other forms of drug treatment, the probation department may move to revoke probation. At the revocation hearing, unless the defendant proves by a preponderance of the evidence that there is a drug treatment program to which he is amenable, the court may revoke probation.

(4) Drug treatment services provided under subsection (a) as a required condition of probation may not exceed 12 months, except that additional aftercare services may be required as a condition of probation for up to 6 months.

(d) Dismissal of charges upon successful completion of drug treatment.

(1) At any time after completion of drug treatment, a defendant may petition the sentencing court for dismissal of the charges. If the court finds that the defendant successfully completed drug treatment and substantially complied with the conditions of probation, the conviction on which the probation was based shall be set aside and the court shall dismiss the indictment or information against the defendant. In addition, the arrest on which the conviction was based shall be deemed to have never occurred. Except as provided in subdivisions (2) and (3) of this subsection (d), the defendant shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted.

(2) Dismissal of an indictment or information pursuant to subdivision (1) of this subsection (d) does not permit a person to own, possess, or have in his or her custody or control any firearm capable of being concealed upon the person or prevent his or her conviction for any offense under Article 24 of the Criminal Code of 1961.

(3) Except as provided in this Section, after an indictment or information is dismissed pursuant to subdivision (1) of this subsection (d), the defendant may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or convicted for the offense. Except as provided in this Section, a record pertaining to an arrest or conviction resulting in successful completion of a drug treatment program under this Section shall not, without the defendant's consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate. Regardless of his or her successful completion of drug treatment, the arrest and conviction on which the probation was based may be recorded by the Department of State Police and disclosed in response to any peace officer application request or any law enforcement inquiry. Dismissal of an information or indictment under this Section does not relieve a defendant of the obligation to disclose the arrest and conviction in response to any direct question contained in any questionnaire or application for public office, for a position as a peace officer as defined in Section 2-13 of the Criminal Code of 1961, for licensure by any State or local agency, for contracting with the Division of State Lottery of the Illinois Department of Revenue, or for purposes of serving on a jury.

(e) Violation of probation.

(1) If probation is revoked pursuant to the provisions of this subsection, the defendant may be incarcerated pursuant to otherwise applicable law without regard to the provisions of this Section.

(2) Non-drug-related probation violations. Where a defendant receives probation under subsection (a) and violates that probation, either by being arrested for an offense that is not a nonviolent drug possession offense, or by violating a non-drug-related condition of probation, and the State moves to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. The court may modify or revoke probation if the alleged violation is proved.

(3) Drug-related probation violations.

(A) When a defendant receives probation under subsection (a) and violates that probation, either by being arrested for a non-violent drug possession offense or by violating a drug-related condition of probation, and the State moves to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. The trial court shall revoke probation if the alleged probation violation is proved and the State proves by a preponderance of the evidence that the defendant poses a danger to the safety of others. If the court does not revoke probation, it may intensify or alter the drug treatment plan.

(B) When a defendant receives probation under subsection (a) and for the second time violates that probation, either by being arrested for a non-violent drug possession offense or by violating a drug-related condition of probation, and the State moves for a second time to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. The trial court shall revoke probation if the alleged probation violation is proved and the State proves by a preponderance of the evidence either that the defendant poses a danger to the safety of others or is unamenable to drug treatment.

If the court does not revoke probation, it may intensify or alter the drug treatment plan.

(C) When a defendant receives probation under subsection (a) and for the third time violates that probation, either by being arrested for a non-violent drug possession offense or by violating a drug-related condition of probation, and the State moves for a third time to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. If the alleged probation violation is proved, defendant is not eligible for continued probation under subsection (a).

(D) When a defendant on probation on the effective date of this amendatory Act of the 96th General Assembly for a non-violent drug possession offense violates that probation, either by being arrested for a non-violent drug possession offense or by violating a drug-related condition of probation, and the State moves to revoke probation, the court shall conduct a hearing to determine if probation shall be revoked. The trial court shall revoke probation if the alleged probation violation is proved and the State proves by a preponderance of the evidence that the defendant poses a danger to the safety of others. If the court does not revoke probation, it may modify probation and impose as an additional condition participation in a drug treatment program.

(E) When a defendant on probation on the effective date of this amendatory Act of the 96th General Assembly for a non-violent drug possession offense violates that probation a second time, either by being arrested for a non-violent drug possession offense or by violating a drug-related condition of probation, and the State moves for a second time to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. The trial court shall revoke probation if the alleged probation violation is proved and the State proves by a preponderance of the evidence either that the defendant poses a danger to the safety of others or is unamenable to drug treatment. If the court does not revoke probation, it may modify probation and impose as an additional condition participation in a drug treatment program.

(F) When a defendant on probation on the effective date of this amendatory Act of the 96th General Assembly for a non-violent drug offense violates that probation a third time either by being arrested for a non-violent drug possession offense, or by violating a drug-related condition of probation, and the State moves for a third time to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. If the alleged probation violation is proved, the defendant is not eligible for continued probation under subsection (a).

(G) In determining whether a defendant is unamenable to drug treatment, the court may consider, to the extent relevant, whether the defendant:

(1) has committed a serious violation of rules at the drug treatment program,

(2) has repeatedly committed violations of program rules that inhibit the defendant's ability to function in the program, or

(3) has continually refused to participate in the program or asked to be removed from the program.

Section 110. The Methamphetamine Control and Community Protection Act is amended by changing Section 10 and by adding Section 70.5 as follows:

(720 ILCS 646/10)

Sec. 10. Definitions. As used in this Act:

"Anhydrous ammonia" has the meaning provided in subsection (d) of Section 3 of the Illinois Fertilizer Act of 1961.

"Anhydrous ammonia equipment" means all items used to store, hold, contain, handle, transfer, transport, or apply anhydrous ammonia for lawful purposes.

"Booby trap" means any device designed to cause physical injury when triggered by an act of a person approaching, entering, or moving through a structure, a vehicle, or any location where methamphetamine has been manufactured, is being manufactured, or is intended to be manufactured.

"Deliver" or "delivery" has the meaning provided in subsection (h) of Section 102 of the Illinois Controlled Substances Act.

"Director" means the Director of State Police or the Director's designated agents.

"Dispose" or "disposal" means to abandon, discharge, release, deposit, inject, dump, spill, leak, or place methamphetamine waste onto or into any land, water, or well of any type so that the waste has the potential to enter the environment, be emitted into the air, or be discharged into the soil or any waters, including groundwater.

"Drug treatment program" or "drug treatment" means a community drug treatment program licensed by the Department of Human Services under the Alcoholism and Other Drug Abuse and Dependency Act, which may include one or more of the following: outpatient treatment, half-way house treatment, narcotic replacement therapy, drug education or prevention courses, or limited inpatient or residential drug treatment as needed to address special detoxification or relapse situations or severe dependence. "Drug treatment program" or "drug treatment" does not include drug treatment programs offered in a prison or jail facility.

"Emergency response" means the act of collecting evidence, securing a methamphetamine laboratory site, methamphetamine waste site or other methamphetamine-related site and cleaning up the site, whether these actions are performed by public entities or private contractors paid by public entities.

"Emergency service provider" means a local, State, or federal peace officer, firefighter, emergency medical technician-ambulance, emergency medical technician-intermediate, emergency medical technician-paramedic, ambulance driver, or other medical or first aid personnel rendering aid, or any agent or designee of the foregoing.

"Finished methamphetamine" means methamphetamine in a form commonly used for personal consumption.

"Firearm" has the meaning provided in Section 1.1 of the Firearm Owners Identification Card Act.

"Manufacture" means to produce, prepare, compound, convert, process, synthesize, concentrate, purify, separate, extract, or package any methamphetamine, methamphetamine precursor, methamphetamine manufacturing catalyst, methamphetamine manufacturing reagent, methamphetamine manufacturing solvent, or any substance containing any of the foregoing.

"Methamphetamine" means the chemical methamphetamine (a Schedule II controlled substance under the Illinois Controlled Substances Act) or any salt, optical isomer, salt of optical isomer, or analog thereof, with the exception of 3,4-Methylenedioxymethamphetamine (MDMA) or any other scheduled substance with a separate listing under the Illinois Controlled Substances Act.

"Methamphetamine manufacturing catalyst" means any substance that has been used, is being used, or is intended to be used to activate, accelerate, extend, or improve a chemical reaction involved in the manufacture of methamphetamine.

"Methamphetamine manufacturing environment" means a structure or vehicle in which:

(1) methamphetamine is being or has been manufactured;

(2) chemicals that are being used, have been used, or are intended to be used to manufacture methamphetamine are stored;

(3) methamphetamine manufacturing materials that have been used to manufacture methamphetamine are stored; or

(4) methamphetamine manufacturing waste is stored.

"Methamphetamine manufacturing material" means any methamphetamine precursor, substance containing any methamphetamine precursor, methamphetamine manufacturing catalyst, substance containing any methamphetamine manufacturing catalyst, methamphetamine manufacturing reagent, substance containing any methamphetamine manufacturing reagent, methamphetamine manufacturing solvent, substance containing any methamphetamine manufacturing solvent, or any other chemical, substance, ingredient, equipment, apparatus, or item that is being used, has been used, or is intended to be used in the manufacture of methamphetamine.

"Methamphetamine manufacturing reagent" means any substance other than a methamphetamine manufacturing catalyst that has been used, is being used, or is intended to be used to react with and chemically alter any methamphetamine precursor.

"Methamphetamine manufacturing solvent" means any substance that has been used, is being used, or is intended to be used as a medium in which any methamphetamine precursor, methamphetamine manufacturing catalyst, methamphetamine manufacturing reagent, or any substance containing any of the foregoing is dissolved, diluted, or washed during any part of the methamphetamine manufacturing process.

"Methamphetamine manufacturing waste" means any chemical, substance, ingredient, equipment, apparatus, or item that is left over from, results from, or is produced by the process of manufacturing methamphetamine, other than finished methamphetamine.

"Methamphetamine precursor" means ephedrine, pseudoephedrine, benzyl methyl ketone, methyl benzyl ketone, phenylacetone, phenyl-2-propanone, P2P, or any salt, optical isomer, or salt of an optical isomer of any of these chemicals.

"Multi-unit dwelling" means a unified structure used or intended for use as a habitation, home, or residence that contains 2 or more condominiums, apartments, hotel rooms, motel rooms, or other living units.

"Misdemeanor not related to the use of drugs" means a misdemeanor that does not involve: (i) the simple possession or use of drugs or drug paraphernalia, (ii) being present where drugs are used, (iii) failure to register as a drug offender, or (iv) any similar activity.

"Nonviolent drug possession offense" means the unlawful possession of methamphetamine under this Act or of any Schedule I, II, III, IV, or V controlled substance under Section 402 of the Illinois Controlled Substances Act. "Nonviolent drug possession offense" does not include the manufacture or delivery, or possession with intent to manufacture or deliver, of methamphetamine under this Act or of any controlled substance under Section 402 of the Illinois Controlled Substances Act.

"Package" means an item marked for retail sale that is not designed to be further broken down or subdivided for the purpose of retail sale.

"Participate" or "participation" in the manufacture of methamphetamine means to produce, prepare, compound, convert, process, synthesize, concentrate, purify, separate, extract, or package any methamphetamine, methamphetamine precursor, methamphetamine manufacturing catalyst, methamphetamine manufacturing reagent, methamphetamine manufacturing solvent, or any substance containing any of the foregoing, or to assist in any of these actions, or to attempt to take any of these actions, regardless of whether this action or these actions result in the production of finished methamphetamine.

"Person with a disability" means a person who suffers from a permanent physical or mental impairment resulting from disease, injury, functional disorder, or congenital condition which renders the person incapable of adequately providing for his or her own health and personal care.

"Procure" means to purchase, steal, gather, or otherwise obtain, by legal or illegal means, or to cause another to take such action.

"Second or subsequent offense" means an offense under this Act committed by an offender who previously committed an offense under this Act, the Illinois Controlled Substances Act, the Cannabis Control Act, or another Act of this State, another state, or the United States relating to methamphetamine, cannabis, or any other controlled substance.

"Standard dosage form", as used in relation to any methamphetamine precursor, means that the methamphetamine precursor is contained in a pill, tablet, capsule, caplet, gel cap, or liquid cap that has been manufactured by a lawful entity and contains a standard quantity of methamphetamine precursor.

"Successful completion of treatment" means that a defendant who has had drug treatment imposed as a condition of probation has completed the prescribed course of drug treatment and, as a result, there is reasonable cause to believe that the defendant will not abuse controlled substances in the future.

"Unauthorized container", as used in relation to anhydrous ammonia, means any container that is not designed for the specific and sole purpose of holding, storing, transporting, or applying anhydrous ammonia. "Unauthorized container" includes, but is not limited to, any propane tank, fire extinguisher, oxygen cylinder, gasoline can, food or beverage cooler, or compressed gas cylinder used in dispensing fountain drinks. "Unauthorized container" does not encompass anhydrous ammonia manufacturing plants, refrigeration systems where anhydrous ammonia is used solely as a refrigerant, anhydrous ammonia transportation pipelines, anhydrous ammonia tankers, or anhydrous ammonia barges.

"Violent crime" has the meaning ascribed in paragraph (c) of Section 3 of the Rights of Crime Victims and Witnesses Act.

(Source: P.A. 94-556, eff. 9-11-05.)

(720 ILCS 646/70.5 new)

Sec. 70.5. Possession of methamphetamine; probation; exceptions.

(a) Conditions of probation. Notwithstanding any other provision of law, and except as provided in the other provisions of this Section, any person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program. The court may also impose as a condition of probation participation in vocational training, family counseling, literacy training, or community service, or a combination of those conditions. A court may not impose incarceration as an additional condition of probation. Aside from the limitations imposed in this subsection, the trial court is not otherwise limited in the type of probation conditions it may impose. In addition to any fine assessed under other provisions of law, the trial judge may require any person convicted of a nonviolent drug possession offense who is reasonably able to do so to contribute to the cost of his or her own placement in a drug treatment program.

(b) Exclusions. Subsection (a) does not apply to:

(1) Any defendant who has previously been convicted of one or more violent crimes, unless the nonviolent drug possession offense occurred after a period of 5 years in which the defendant remained free of both prison custody and the commission of an offense that resulted in (A) a felony conviction other than a nonviolent drug possession offense or (B) a misdemeanor conviction involving physical injury or the threat of physical injury to another person.

(2) Any defendant who, in addition to one or more nonviolent drug possession offenses, has been convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony.

(3) Any defendant who:

(A) While using a firearm, unlawfully possesses any amount of (i) a substance containing either cocaine base, cocaine, heroin, or methamphetamine, or (ii) a liquid, non-liquid, plant substance, or hand-rolled cigarette containing phencyclidine.

(B) While using a firearm, is unlawfully under the influence of cocaine base, cocaine, heroin, methamphetamine, or phencyclidine.

(4) Any defendant who refuses drug treatment as a condition of probation.

(5) Any defendant who (A) has two separate convictions for nonviolent drug possession offenses, (B) has participated in two separate courses of drug treatment pursuant to subsection (A), and (C) is found by the court, by clear and convincing evidence, to be unamenable to any and all forms of available drug treatment. Notwithstanding any other provision of law, the trial court shall sentence such defendants to 30 days in jail.

(c) Treatment.

(1) Within 7 days of an order imposing probation under subsection (a), the probation department shall notify the drug treatment provider designated to provide drug treatment under subsection (a). Within 30 days of receiving that notice, the treatment provider shall prepare a treatment plan and forward it to the probation department. On a quarterly basis after the defendant begins the drug treatment program, the treatment provider shall prepare and forward a progress report to the probation department.

(2) If at any point during the course of drug treatment the treatment provider notifies the probation department that the defendant is unamenable to the drug treatment being provided, but may be amenable to other drug treatments or related programs, the probation department may move the court to modify the terms of probation to ensure that the defendant receives the alternative drug treatment or program.

(3) If at any point during the course of drug treatment the treatment provider notifies the probation department that the defendant is unamenable to the drug treatment provided and all other forms of drug treatment, the probation department may move to revoke probation. At the revocation hearing, unless the defendant proves by a preponderance of the evidence that there is a drug treatment program to which he is amenable, the court may revoke probation.

(4) Drug treatment services provided under subsection (a) as a required condition of probation may not exceed 12 months, except that additional aftercare services may be required as a condition of probation for up to 6 months.

(d) Dismissal of charges upon successful completion of drug treatment.

(1) At any time after completion of drug treatment, a defendant may petition the sentencing court for dismissal of the charges. If the court finds that the defendant successfully completed drug treatment and substantially complied with the conditions of probation, the conviction on which the probation was based shall be set aside and the court shall dismiss the indictment or information against the defendant. In addition, the arrest on which the conviction was based shall be deemed to have never occurred. Except as provided in subdivisions (2) and (3) of this subsection (d), the defendant shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted.

(2) Dismissal of an indictment or information pursuant to subdivision (1) of this subsection (d) does not permit a person to own, possess, or have in his or her custody or control any firearm capable of being concealed upon the person or prevent his or her conviction for any offense under Article 24 of the Criminal Code of 1961.

(3) Except as provided in this Section, after an indictment or information is dismissed pursuant to subdivision (1) of this subsection (d), the defendant may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or convicted for the offense. Except as provided in this Section, a record pertaining to an arrest or conviction resulting in successful completion of a drug treatment program under this Section shall not, without the defendant's consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate. Regardless of his or her successful completion of drug treatment, the arrest and conviction on which the probation was based may be recorded by the Department of State Police and disclosed in response to any peace officer application request or any law enforcement inquiry. Dismissal of an information or indictment under this Section does not relieve a defendant of the obligation to disclose the arrest and conviction in response to any direct question contained in any questionnaire or application for public office, for a position as a peace officer as defined in Section 2-13 of the Criminal Code of 1961, for licensure by any State or local agency, for contracting with the Division of State Lottery of the Illinois Department of Revenue, or for purposes of serving on a jury.

(e) Violation of probation.

(1) If probation is revoked pursuant to the provisions of this subsection, the defendant may be incarcerated pursuant to otherwise applicable law without regard to the provisions of this Section.

(2) Non-drug-related probation violations. Where a defendant receives probation under subsection (a) and violates that probation, either by being arrested for an offense that is not a nonviolent drug possession offense, or by violating a non-drug-related condition of probation, and the State moves to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. The court may modify or revoke probation if the alleged violation is proved.

(3) Drug-related probation violations.

(A) When a defendant receives probation under subsection (a) and violates that probation, either by being arrested for a non-violent drug possession offense or by violating a drug-related condition of probation, and the State moves to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. The trial court shall revoke probation if the alleged probation violation is proved and the State proves by a preponderance of the evidence that the defendant poses a danger to the safety of others. If the court does not revoke probation, it may intensify or alter the drug treatment plan.

(B) When a defendant receives probation under subsection (a) and for the second time violates that probation, either by being arrested for a non-violent drug possession offense or by violating a drug-related condition of probation, and the State moves for a second time to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. The trial court shall revoke probation if the alleged probation violation is proved and the State proves by a preponderance of the evidence either that the defendant poses a danger to the safety of others or is unamenable to drug treatment.

If the court does not revoke probation, it may intensify or alter the drug treatment plan.

(C) When a defendant receives probation under subsection (a) and for the third time violates that probation, either by being arrested for a non-violent drug possession offense or by violating a drug-related condition of probation, and the State moves for a third time to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. If the alleged probation violation is proved, defendant is not eligible for continued probation under subsection (a).

(D) When a defendant on probation on the effective date of this amendatory Act of the 96th General Assembly for a non-violent drug possession offense violates that probation, either by being arrested for a non-violent drug possession offense or by violating a drug-related condition of probation, and the State moves to revoke probation, the court shall conduct a hearing to determine if probation shall be revoked. The trial court shall revoke probation if the alleged probation violation is proved and the State proves by a preponderance of the evidence that the defendant poses a danger to the safety of others. If the court does not revoke probation, it may modify probation and impose as an additional condition participation in a drug treatment program.

(E) When a defendant on probation on the effective date of this amendatory Act of the 96th General Assembly for a non-violent drug possession offense violates that probation a second time, either by being arrested for a non-violent drug possession offense or by violating a drug-related condition of probation, and the State moves for a second time to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. The trial court shall revoke probation if the alleged probation violation is proved and the State proves by a preponderance of the evidence either that the defendant poses a danger to the safety of others or is unamenable to drug treatment. If the court does not revoke probation, it may modify probation and impose as an additional condition participation in a drug treatment program.

(F) When a defendant on probation on the effective date of this amendatory Act of the 96th General Assembly for a non-violent drug offense violates that probation a third time either by being arrested for a non-violent drug possession offense, or by violating a drug-related condition of probation, and the State moves for a third time to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. If the alleged probation violation is proved, the defendant is not eligible for continued probation under subsection (a).

(G) In determining whether a defendant is unamenable to drug treatment, the court may consider, to the extent relevant, whether the defendant:

(1) has committed a serious violation of rules at the drug treatment program,

(2) has repeatedly committed violations of program rules that inhibit the defendant's ability to function in the program, or

(3) has continually refused to participate in the program or asked to be removed from the program.