Thursday, March 31, 2011

Change from 1000 yards to 1000 feet from school became effective on March 23, 2011 under HB 121

The change comes in the first section of KRS 218A.1411 (see below).   This change was also made as part of the new “Penal Code Reform” (HB 467) but the difference is that HB 121 has an emergency provision, meaning it became effective on 3/23/11 (the date it was signed).  The Penal Code reform would not become effective until 6/8/11. 

This means that:
(a)    Offenses committed after 3/23/11 are only subject to enhancement if they were committed within 1000 feet of a school, without question; and
(b)    Offenses committed before 3/23/11 are subject to KRS 446.110, which provides that where a new bill mitigates a penalty, the defendant can opt for the penalty in the new bill.  Since KRS 218A.1411 is a penalty provision, I would argue that 446.110 applies to the that provision.  If that is the case any offense for which final judgment has not been entered should only be enhanced under that provision if the transaction occurred within 1000 feet of a school, rather than 1000 yards.

Section 8.   KRS 218A.1411 is amended to read as follows:
(1)      Any person who unlawfully traffics in a controlled substance classified in Schedules I, II, III, IV or V, or a controlled substance analogue in any building used primarily for classroom instruction in a school or on any premises located within one thousand (1,000) feet[yards] of any school building used primarily for classroom instruction shall be guilty of a Class D felony, unless a more severe penalty is set forth in this chapter, in which case the higher penalty shall apply. The measurement shall be taken in a straight line from the nearest wall of the school to the place of violation.
(2)      The provisions of subsection (1) of this section shall not apply to any misdemeanor offense relating to naphthylprovalerone, 3,4-methylenedioxypyrovalerone, 3,4-methylenedioxymethylcathinone, 4-methylmethcathinone, synthetic cannabinoid agonists,[ or] piperazines, or salvia.

Contributed by Kristen Bailey and Tim Arnold