Oklahoma SQ 780: Decriminalization of drug possession

| | TrackBacks (2)

UPDATED 2016/11/02: Having completed my analysis of all 23 sections of the SQ 780 legislation, I have revised the introductory text below to provide a better summary of the affect of passing the state question.

Oklahoma State Question 780 began life as an initiative petition.

Unlike most state questions, its passage will not modify the Constitution. If it passes, SQ 780 will be like the legislature passing a bill. The constitutional power of initiative gives citizens of Oklahoma or any of its political subdivisions the power to legislate in the same way as the corresponding legislative body. City of Tulsa voters could modify the zoning code by putting an initiative petition on the ballot and voting to approve it. State voters can pass state statutes by approving an initiative petition at the polls. I don't know if this has ever happened, but I suppose residents of a school board district could use the initiative power to fire a superintendent or take any other action the school board is empowered to make. The power of initiative exists in recognition that good legislation can at times get clogged up in the politics of the legislature, that legislators can sometimes see themselves (and their lobbyist pals) as an "us" and their constituents as "them." An initiative petition provides a bypass to the obstruction.

In this case, the initiative petition provided a spur to action to the legislature. As you'll see in the section-by-section analysis after the jump, twelve of the 19 sections of statute affected by SQ 780 were modified this year by HB 2751, which passed both houses by wide margins and was signed into law while the SQ 780 petition was being circulated. The bill, like SQ 790, modified the value threshold at which a crime involving theft, fraud, embezzlement, and the like is considered a felony. You can read HB 2751 and see what was added and deleted.

Signature thresholds for statutory initiatives are much lower than for proposed constitutional amendments. Eight percent (8%) of the vote total in the last governor's election (65,987) is enough to put a statutory initiative on the ballot. (15% is required for constitutional initiatives.)

SQ 780 amends 19 different sections in three separate titles of Oklahoma law, affecting penalties and definitions for crimes involving controlled substances, larceny, embezzlement, forgery, and counterfeiting, and affecting penalties for second and subsequent offences. The link, which leads to the Secretary of State's file on SQ 780, shows the text of those sections of the Oklahoma statutes as they would be if SQ 780 passes, and also contains the record of the dispute over the wording of the ballot title for this complex piece of legislation.

When you eliminate the minor differences between HB 2751, which is now in effect, and SQ 780, what's left is one very big, very contentious issue, which hasn't received the attention it deserves -- how should we should deal with drug possession. SQ 780 should have been challenged for violating the single-subject rule -- logrolling popular common-sense ideas like raising the threshold for considering a property crime as a felony with more controversial and divisive issues. When the legislature approved HB 2751, they cleared away the fog and effectively reduced SQ 780 to this question: Should all drug possession crimes be classified as misdemeanors, regardless of the type of drug involve and regardless of the proximity to schools and children?

While there may be a case for lightening penalties, particularly for first offenses, I believe this proposal goes too far. I recommend voting NO -- AGAINST SQ 780.

Now for the details.

Sections 1 and 2 of the proposition sets out the rationale and gives the proposal a name, but it wouldn't be codified into law:

SECTION 1: The people of the state of Oklahoma find the fact that Oklahoma has the second-highest overall incarceration rate in the country, and the highest incarceration rate for women, is inconsistent with Oklahoma values, and drains resources away from investments that can do more to promote public safety. Therefore, the people intend, in enacting this initiative measure, to implement criminal justice reforms that: (l) stop wasting taxpayer money keeping people who commit low-level offenses behind bars for years; and (2) saddle fewer people who commit low-level offenses with felony convictions that will follow them through life and prevent them from getting an education or a job.

SECTION 2. This act shall be known and may be cited as the "Oklahoma Smart Justice
Reform Act."

The next 18 sections are amendatory. If you've looked at Oklahoma legislation online, you know that amended law is always shown as a markup -- deleted text stricken through, added text underlined. It makes it easy to see exactly what is changing. It would have been nice for the voters if that had been done by the proponents, but since it wasn't, I will do that here, but after the jump to keep clutter off of the home page. (If you'd like to show your appreciation for my diligent effort, which took me about eight hours to complete, there are a variety of ways you can do so.)

Section 21 repeals 21 O. S. 51.3, which reads:

Every person who, having been convicted of petit larceny, or of an attempt to commit an offense which if perpetrated, would be punishable by imprisonment in the State Penitentiary, commits any crime after such conviction, is punishable as follows:

1. If such subsequent offense is such that upon a first conviction the offender would be punishable by imprisonment in the State Penitentiary for life, such person is punishable by imprisonment in such prison for life.

2. If such subsequent offense is such that upon first conviction the offender would be punishable by imprisonment in the State Penitentiary for any term less than for life, such person is punishable by imprisonment in such prison for the longest term prescribed upon a conviction for such first offense.

3. If such subsequent conviction is for petit larceny, or for any attempt to commit an offense, which, if perpetrated, would be punishable by imprisonment in the State Penitentiary, then such person is punishable by imprisonment in such prison for a term not exceeding five (5) years.

Section 22 is a severability clause, allowing the remainder of the legislation to go into effect even if part of it is overturned in court. Section 23 sets an effective date of July 1, 2017.

Details after the jump.

Section 3 would reduce all controlled substance possession penalties to that currently applied to "any Schedule III, IV or V substance, marijuana, a substance included in subsection D of Section 2-206 of this title, or any preparation excepted from the provisions of the Uniform Controlled Dangerous Substances Act" -- namely a misdemeanor, punishable by up to $1,000 and a year in prison. It eliminates drug possession as a felony. It also eliminates the felony charge connected with drug possession near a school or a child.

SECTION 3. AMENDATORY 63 O.S. 2011, Section 2-402, last amended by Section 10, Chapter 228, O.S.L. 2012 (63 O.S. Supp. 2012. Section 2-402), is amended to read as follows:

Section 2-402. A. 1. It shall be unlawful for any person knowingly or intentionally to possess a controlled dangerous substance unless such substance was obtained directly, or pursuant to a valid prescription or order from a practitioner, while acting in the course of his or her professional practice, or except as otherwise authorized by this act.

2. It shall be unlawful for any person to purchase any preparation excepted from the provisions of the Uniform Controlled Dangerous Substances Act pursuant to Section 2-313 of this title in an amount or within a time interval other than that permitted by Section 2-313 of this title.

3. It shall be unlawful for any person or business to sell, market, advertise or label any product containing ephedrine, its salts, optical isomers, or salts of optical isomers, for the indication of stimulation, mental alertness, weight loss, appetite control, muscle development, energy or other indication which is not approved by the pertinent federal OTC Final Monograph, Tentative Final Monograph, or FDA-approved new drug application or its legal equivalent. In determining compliance with this requirement, the following factors shall be considered:

a. the packaging of the product,

b. the name of the product, and

c. the distribution and promotion of the product, including verbal representations made at the point of sale.

B. Any person who violates this section with respect to:

1. Any Schedule I or II substance, except marijuana or a substance included in subsection D of Section 2-206 of this title, is guilty of a felony punishable by imprisonment for not more than five (5) years and by a fine not exceeding Five Thousand Dollars ($5,000.00). A second violation of this section with respect to a Schedule I or II substance, except marijuana or a substance included in subsection D of Section 2-206 of this title, is a felony punishable by imprisonment for not more than ten (10) years and by a fine not exceeding Ten Thousand Dollars ($10,000.00). A third or subsequent violation of this section with respect to a Schedule I or II substance, except marijuana or a substance included in subsection D of Section 2-206 of this title, is a felony punishable by imprisonment for not less than four (4) years nor more than fifteen (15) years and by a fine not exceeding Ten Thousand Dollars ($10,000.00);

2. Any Schedule III, IV or V substance, marijuana, a substance included in subsection D of Section 2-206 of this title, or any preparation excepted from the provisions of the Uniform Controlled Dangerous Substances Act is guilty of a misdemeanor punishable by confinement for not more than one (1) year and by a fine not exceeding One Thousand Dollars ($1,000.00);

3. Any Schedule III, IV or V substance, marijuana, a substance included in subsection D of Section 2-206 of this title, or any preparation excepted from the provisions of the Uniform Controlled Dangerous Substances Act and who, during the period of any court-imposed probationary term or within ten (10) years of the date following the completion of the execution of any sentence or deferred judgment for a violation of this section, commits a second or subsequent violation of this section shall, upon conviction, be guilty of a felony punishable by imprisonment in the custody of the Department of Corrections for not less than one (1) year nor more than five (5) years and by a fine not exceeding Five Thousand Dollars ($5,000.00); or

4. Any Schedule III, IV or V substance, marijuana, a substance included in subsection D of Section 2-206 of this title, or any preparation excepted from the provisions of the Uniform Controlled Dangerous Substances Act and who, ten (10) or more years following the date of completion of the execution of any sentence or deferred judgment for a violation of this section, commits a second or subsequent violation of this section shall, upon conviction, be guilty of a felony punishable by imprisonment in the custody of the Department of Corrections for not less than one (1) year nor more than five (5) years and by a fine not exceeding Five Thousand Dollars ($5,000.00).

C. Any person who violates any provision of this section by possessing or purchasing a controlled dangerous substance from any person, in or on, or within one thousand (1,000) feet of the real property comprising a public or private elementary or secondary school, public vocational school, public or private college or university, or other institution of higher education, recreation center or public park, including state parks and recreation areas, or in the presence of any child under twelve (12) years of age, shall be guilty of a felony and punished by:

1. For a first offense, a term of imprisonment, or by the imposition of a fine, or by both, not exceeding twice that authorized by the appropriate provision of this section. In addition, the person shall serve a minimum of fifty percent (50%) of the sentence received prior to becoming eligible for state correctional institution earned credits toward the completion of said sentence; or

2. For a second or subsequent offense, a term of imprisonment not exceeding three times that authorized by the appropriate provision of this section and the person shall serve a minimum of ninety percent (90%) of the sentence received prior to becoming eligible for state correctional institution earned credits toward the completion of said sentence, and imposition of a fine not exceeding Ten Thousand Dollars ($10,000.00).

C. Any person convicted of any offense described in this section shall, in addition to any fine imposed, pay a special assessment trauma-care fee of One Hundred Dollars ($100.00) to be deposited into the Trauma Care Assistance Revolving Fund created in Section 1-2530.9 of this title.

The language in Section 4 is already in state statute. HB 2751, which was passed into law this year, increased the threshold for grand larceny from $500 to $1,000.

SECTION 4. AMENDATORY 21 O.S. 2011, Section 1704 is amended to read as follows:

Section 1704. Grand larceny is larceny committed in either of the following cases:

1. When the property taken is of value exceeding One Thousand Dollars ($1,000.00).

2. When such property, although not of value exceeding One Thousand Dollars ($1,000.00), is taken from the person of another.

Larceny in other cases is petit larceny.

Section 5 makes a change almost identical to that approved in HB 2751. There's a difference in order of words, but I think it amounts to the same thing.

SECTION 5. AMENDATORY 21 O.S. 2011, Section 1705 is amended to read as follows:

Section 1705. Grand larceny is a felony punishable by imprisonment in the custody of the Department of Corrections State Penitentiary not exceeding five (5) years, a fine not exceeding Five Thousand Dollars ($5,000.00), or by both such fine and imprisonment if the value of the property is One Thousand Dollars ($1,000.00) or more and if the value of the property is less than One Thousand Dollars ($1,000.00) punishable by incarceration in the county jail for not more than one (1) year or by incarceration in the county jail one or more nights or weekends pursuant to Section 991a-2 of Title 22 of the Oklahoma Statutes, at the option of the court, a fine not exceeding One Thousand Dollars ($1,000.00), or by both such fine and imprisonment. and shall be subject to a fine of not more than Five Thousand Dollars ($5,000.00) and The defendant shall also be ordered to provide restitution to the victim as provided in Section 991 a of Title 22 of the Oklahoma Statutes.

The section on punishments for receiving stolen property is very close to that passed in HB 2751, except that the new state law sets a punishment of one year in county jail for receiving stolen property worth less than $1,000, while the proposal on the ballot sets a penalty of six months in jail and/or a $500 fine for the same crime.

SECTION 6. AMENDATORY 21 O.S. 2011, Section 1713 is amended to read as follows:

Section 1713. A. Every person who buys or receives, in any manner, upon any consideration, any personal property of a value of One Thousand Dollars ($1,000.00) or more any value whatsoever that has been stolen, embezzled, obtained by false pretense or robbery, knowing or having reasonable cause to believe the same to have been stolen, embezzled, obtained by false pretense, or robbery, or who conceals, withholds, or aids in concealing or withholding such property from the owner, shall, upon conviction, if the value of the property is One Thousand Dollars ($1,000.00) or more be guilty of a felony punishable by imprisonment in the custody of the Department of Corrections State Penitentiary not to exceed five (5) years, or in the county jail not to exceed one (1) year, or by a fine not to exceed Five Hundred Dollars ($500.00) or by both such fine and imprisonment. If the personal property that has been stolen, embezzled, obtained by false pretense or robbery has a value of value of the property received is less than One Thousand Dollars ($1,000.00), the person shall, upon conviction, be guilty of a misdemeanor punishable by imprisonment in the county jail not to exceed one (1) year and shall be punished by a fine of not more than Five Hundred Dollars ($500.00) or by imprisonment in the county jail for a term not to exceed six (6) months, or by both such fine and imprisonment.

B. Every person who, without making reasonable inquiry, buys, receives, conceals, withholds, or aids in concealing or withholding any property which has been stolen, embezzled, obtained by false pretense or robbery, or otherwise feloniously obtained, under such circumstances as should cause such person to make reasonable inquiry to ascertain that the person from whom such property was bought or received had the legal right to sell or deliver it shall be presumed to have bought or received such property knowing it to have been so stolen or wrongfully obtained. This presumption may, however, be rebutted by proof.

Sections 7 and 8 tweak existing laws about the theft of domesticated fish and game, oil and gas, and oilfield equipment that hasn't been amended since 2001. The existing law has three brackets for punishment based on the value stolen -- misdemeanor below $500, felony above $1000, and a special category of felony between $500 and $1000 with options for restitution and nights-and-weekends incarceration. The proposal on the ballot would eliminate that middle bracket category and move the misdemeanor / felony boundary to $1000.

SECTION 7. AMENDATORY 21 O.S. 2011, Section 1719.1 is amended to read as follows:

Section 1719.1. A. For the purpose of this section:

1. "Domesticated fish or game" means all birds, mammals, fish and other aquatic forms and all other animals, regardless of classifications, whether resident, migratory or imported, protected or unprotected, dead or alive, and shall extend to and include every part of any individual species when such domesticated fish or game are not in the wild and are in the possession of a person currently licensed to possess such fish or game; and

2. "Taking" means the pursuing, killing, capturing, trapping, snaring and netting of domesticated fish or game or placing, setting, drawing or using any net, trap or other device for taking domesticated fish or game and includes specifically every attempt to take such domesticated fish or game.

B. Any domesticated fish or game shall be considered the personal property of the owner.

C. Any person who shall take any domesticated fish or game, with the intent to deprive the owner of said fish or game, and any person purchasing or receiving such domesticated fish or game knowing them to have been stolen, shall:

1. Upon conviction, if the current market value of said domesticated fish or game is less than Five Hundred Dollars ($500.00) One Thousand Dollars ($1,000.00), be guilty of a misdemeanor and shall be punished by a fine of not more than Five Hundred Dollars ($500.00) or by imprisonment in the county jail for a term not to exceed sixty (60) days, or by both such fine and imprisonment; or

2. Upon conviction, if the current market value of said domesticated fish or game is One Thousand Dollars ($1,000.00) or more, be guilty of a felony and shall be punished by a fine of not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or by imprisonment in the State Penitentiary for a term of not more than five (5) years, or by both such fine and imprisonment. If the current market value is Five Hundred Dollars ($500.00) or more but less than One Thousand Dollars ($1,000.00), the person shall be guilty of a felony and shall be punished by incarceration in the county jail for not more than one (1) year or by incarceration in the county jail one or more nights or weekends pursuant to Section 991a-2 of Title 22 of the Oklahoma Statutes, at the option of the court, and shall be subject to a fine of not more than Five Thousand Dollars ($5,000.00) and ordered to provide restitution to the victim as provided in Section 991a of Title 22 of the Oklahoma Statutes.

SECTION 8. AMENDATORY 21 O.S. 2011, Section 1722 is amended to read as follows:

Section 1722. Any person who shall unlawfully take any crude oil or gasoline, or any product thereof, from any pipe, pipeline, tank, tank car, or other receptacle or container and any person who shall unlawfully take or cause to be taken any machinery, drilling mud, equipment or other materials necessary for the drilling or production of oil or gas wells, with intent to deprive the owner or lessee thereof of said crude oil, gas, gasoline, or any product thereof, machinery, drilling mud, equipment or other materials necessary for the drilling or production of oil or gas wells shall:

1. Be guilty of a misdemeanor if the value of said product so taken is less than Five Hundred Dollars ($500.00) One Thousand Dollars ($1,000.00), and upon conviction thereof, shall be punished by a fine of not more than Five Hundred Dollars ($500.00), or by imprisonment in the county jail for a term not to exceed sixty (60) days, or by both such fine and imprisonment;

2. Be guilty of a felony if the value of such product so taken is One Thousand Dollars ($1,000.00) or more and upon conviction thereof, shall be punished by forfeiture of the instrumentality of the crime and by a fine of not less than One Hundred Dollars ($100.00), and not more than Fifty Thousand Dollars ($50,000.00), or by imprisonment in the State Penitentiary for a term in the range of one (1) year to ten (10) years, or by both such fine and imprisonment. If the value exceeds Five Hundred Dollars ($500.00) but is less than One Thousand Dollars ($1,000.00), the person shall be guilty of a felony and shall be punished by incarceration in the county jail for a term of not more than one (1) year or by incarceration in the county jail one or more nights or weekends pursuant to Section 991a-2 of Title 22 of the Oklahoma Statutes, at the option of the court, and shall be subject to a fine of not more than Five Thousand Dollars ($5,000.00) and ordered to provide restitution to the victim as provided in Section 991a of Title 22 of the Oklahoma Statutes.

Section 9, dealing with larceny of merchandise, is another section that was also amended by HB 2751.

SECTION 9. AMENDATORY 21 O.S. 2011, Section 1731 is amended to read as follows:

Section 1731. Larceny of merchandise held for sale in retail or wholesale establishments shall be punishable as follows:

1. For the first or second conviction, in the event the value of the goods, edible meat or other corporeal property which has been taken is less than One Thousand Dollars ($1,000.00), the defendant shall be guilty of a misdemeanor and shall be punished the violator shall be punishable by imprisonment in the county jail for a term not exceeding thirty (30) days, and by a fine not less than Ten Dollars ($10.00) nor more than Five Hundred Dollars ($500.00); provided for the first or second conviction, in the event more than one item of goods, edible meat or other corporeal property has been taken, punishment shall be by imprisonment in the county jail for a term not to exceed thirty (30) days, and by a fine not less than Fifty Dollars ($50.00) nor more than Five Hundred Dollars ($500.00).

2. If it be shown, in the trial of a case in which the value of the goods, edible meat or other corporeal property is less than One Thousand Dollars ($1,000.00), that the defendant has been once two or more times before convicted of the same offense, the defendant shall, on a second third or subsequent conviction, be guilty of a misdemeanor and shall be punished by imprisonment confinement in the county jail for a term of not less than thirty (30) days nor more than one (1) year, and by a fine not exceeding One Thousand Dollars ($1,000.00).

3. If it be shown, upon the trial of a case where the value of the goods, edible meat or other corporeal personal property is less than One Thousand Dollars ($1,000.00), that the defendant has two or more times before been convicted of the same offense, regardless of the value of the goods, edible meat or other corporeal personal property involved in the first two convictions, upon the third or any subsequent conviction, the defendant shall be guilty of a felony and shall be punished by imprisonment in the custody of the Department of Corrections for a term of not less than two (2) nor more than five (5) years; and

3. In the event the value of the goods, edible meat or other corporeal property is One Thousand Dollars ($1,000.00) or more, the defendant shall be guilty of a felony and shall be punished by punishment shall be imprisonment in the custody of the Department of Corrections State Penitentiary for a term of not more than five (5) years. The defendant shall also be subject to a fine of not more than Five Thousand Dollars ($5,000.00) and ordered to provide restitution to the victim as provided in Section 991a of Title 22 of the Oklahoma Statutes.

Section 10 is another case in which HB 2751 pre-empted SQ 780. The only significant difference that passage of SQ 780 would make would be, once again, to eliminate distinct penalties for the range of $500 to $1000.

SECTION 10. AMENDATORY 21 O.S. 2011, Section 1451, last amended by Section 1, Chapter 235, O.S.L. 2012 (21 O.S. Supp. 2012. Section 1451), is amended to read as follows:

Section 1451. A. Embezzlement is the fraudulent appropriation of property of any person or legal entity, legally obtained, to any use or purpose not intended or authorized by its owner, or the secretion of the property with the fraudulent intent to appropriate it to such use or purpose, under any of the following circumstances:

1. Where the property was obtained by being entrusted to that person for a specific purpose, use, or disposition and shall include, but not be limited to, any funds "held in trust" for any purpose;

2. Where the property was obtained by virtue of a power of attorney being granted for the sale or transfer of the property;

3. Where the property is possessed or controlled for the use of another person;

4. Where the property is to be used for a public or benevolent purpose;

5. Where any person diverts any money appropriated by law from the purpose and object of the appropriation;

6. Where any person fails or refuses to pay over to the state, or appropriate authority, any tax or other monies collected in accordance with state law, and who appropriates the tax or monies to the use of that person, or to the use of any other person not entitled to the tax or monIes;

7. Where the property is possessed for the purpose of transportation, without regard to whether packages containing the property have been broken;

8. Where any person removes crops from any leased or rented premises with the intent to deprive the owner or landlord interested in the land of any of the rent due from that land, or who fraudulently appropriates the rent to that person or any other person; or

9. Where the property is possessed or controlled by virtue of a lease or rental agreement, and the property is willfully or intentionally not returned within ten (10) days after the expiration of the agreement.

Embezzlement does not require a distinct act of taking, but only a fraudulent appropriation, conversion or use of property.

B. Except as provided in subsection C of this section, embezzlement shall be punished as follows:

1. If the value of the property embezzled is less than Five Hundred Dollars ($500.00) One Thousand Dollars ($1,000.00), any person convicted shall be punished by a fine not exceeding One Thousand Dollars ($1,000.00), or by imprisonment in the county jail for a term not more than one (1) year, or by both such fine and imprisonment;

2. If the value of the property embezzled is Five Hundred Dollars ($500.00), or more but less than One Thousand Dollars ($1,000.00), any person convicted shall be guilty of a misdemeanor and shall be punished by imprisonment in the county jail for not more than one (1) year or by imprisonment in the county jail for one or more nights or weekends pursuant to Section 991a-2 of Title 22 of the Oklahoma Statutes, at the discretion of the court, and shall be subject to a fine not exceeding Five Thousand Dollars ($5,000.00), and ordered to pay restitution to the victim as provided in Section 991f of Title 22 of the Oklahoma Statutes;

2. If the value of the property embezzled is One Thousand Dollars ($1,000.00) or more but less than Twenty-five Thousand Dollars ($25,000.00), any person convicted shall be guilty of a felony and shall be punished by imprisonment in the custody of the Department of Corrections for a term of not more than five (5) years, and a fine of not exceeding Five Thousand Dollars ($5,000.00), and ordered to pay restitution to the victim as provided in Section 991f of Title 22 of the Oklahoma Statutes; or

3. If the value of the property embezzled is Twenty-five Thousand Dollars ($25,000.00) or more, any person convicted shall be guilty of a felony and shall be punished by imprisonment in the custody of the Department of Corrections for a term of not more than ten (10) years, and a fine not exceeding Ten Thousand Dollars ($10,000.00), and ordered to pay restitution to the victim as provided in Section 991 f of Title 22 of the Oklahoma Statutes.

For purposes of this subsection, a series of offenses may be aggregated into one offense when they are the result of the formulation of a plan or scheme or the setting up of a mechanism which, when put into operation, results in the taking or diversion of money or property on a recurring basis. When all acts result from a continuing course of conduct, they may be aggregated into one crime. Acts forming an integral part of the first taking which facilitate subsequent takings, or acts taken in preparation of several takings which facilitate subsequent takings, are relevant to determine the party's intent to commit a continuing crime.

C. Any county or state officer, deputy or employee of such officer, who shall divert any money appropriated by law from the purpose and object of the appropriation, shall, upon conviction, be guilty of a felony punishable by imprisonment in the custody of the Department of Corrections for a term not less than one (l) year nor more than ten (l0) years, and a fine equal to triple the amount of money so embezzled and ordered to pay restitution to the victim as provided in Section 991 f of Title 22 of the Oklahoma Statutes. The fine shall operate as a judgment lien at law on all estate of the party so convicted and sentenced, and shall be enforced by execution or other process for the use of the person whose money or other funds or property were embezzled. In all cases the fine, so operating as a judgment lien, shall be released or entered as satisfied only by the person in interest.

D. Any executor, administrator, trustee, beneficiary or other person benefiting from, acting in a fiduciary capacity for, or otherwise administering a probate, intestate, or trust estate, whether the trust is inter vivos or testamentary, upon conviction of embezzlement from the estate shall not receive any portion, share, gift or otherwise benefit from the estate.

This statute was last touched in 2001. This is yet another situation in which the effect of SQ 780 passing would be to raise the misdemeanor/felony limit to $1,000 and eliminate the special case of $500 to $1,000.

SECTION 11. AMENDATORY 21 O.S. 2011, Section 1503 is amended to read as follows:

Section 1503. Any person who shall obtain food, lodging, services or other accommodations at any hotel, inn, restaurant, boarding house, rooming house, motel or auto camp, with intent to defraud the owner or keeper thereof, if the value of such food, lodging, services or other accommodations is Five Hundred Dollars ($500.00) or less less than One Thousand Dollars ($1,000.00), shall be guilty of a misdemeanor and upon conviction thereof shall be fined not exceeding Five Hundred Dollars ($500.00), or be imprisoned in the county jail not exceeding three (3) months, or punished by both such fine and imprisonment, and if the value of such food, lodging, services or other accommodations is more than Five Hundred Dollars ($500.00) but less than One Thousand Dollars ($1,000.00), any person convicted pursuant to this section shall be guilty of a felony and shall be punished by incarceration in the county jail for not to exceed one (1) year or incarceration in the county jail one or more nights or weekends pursuant to Section 991a-2 of Title 22 of the Oklahoma Statutes, at the option of the court, and shall be subject to a fine of not more than Five Thousand Dollars ($5,000.00) and ordered to provide restitution to the victim as provided in Section 991a of Title 22 of the Oklahoma Statutes, and if the value of such food, lodging, services or accommodations is valued at One Thousand Dollars ($1,000.00) or more, any person convicted hereunder shall be deemed guilty of a felony and shall be punished by imprisonment in the State Penitentiary for a term not exceeding five (5) years. Any person who shall obtain shelter, lodging, or any other services at any apartment house, apartment, rental unit, rental house, or trailer camp, with intent to defraud the owner or keeper thereof, shall be guilty of a misdemeanor and upon conviction thereof shall be fined not exceeding One Hundred Dollars ($100.00), or be imprisoned in the county jail not exceeding three (3) months, or be punished by both fine and imprisonment. Proof that such lodging, food, services or other accommodations were obtained by false pretense or by false or fictitious show or pretense of any baggage or other property, or that he gave a check on which payment was refused, or that he left the hotel, inn, restaurant, boarding house, rooming house, motel, apartment house, apartment, rental unit or rental house, trailer camp or auto camp, without payment or offering to pay for such food, lodging, services or other accommodation, or that he surreptitiously removed or attempted to remove his baggage, or that he registered under a fictitious name, shall be prima facie proof of the intent to defraud mentioned in this section; but this section shall not apply where there has been an agreement in writing for delay in payment.

Another section already modified by HB 2751. SQ 780 would eliminate the middle band of violation.

SECTION 12. AMENDATORY 21 O.S. 2011, Section 1521 is amended to read as follows:

Section 1521. Every person who shall lease or rent, for any period of time whatsoever, any motor vehicle and, with intent to cheat and defraud, who pays the fees for such lease or rental by means of a false, bogus or worthless check written for the sum of Twenty Dollars ($20.00) or less less than One Thousand Dollars ($1,000.00) shall be guilty of a misdemeanor punishable and upon conviction thereof shall be punished by a fine not to exceed Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not more than six (6) months, or both such fine and imprisonment. If the value of the false, bogus or worthless check shall exceed the sum of Twenty Dollars ($20.00) but is less than One Thousand Dollars ($1,000.00), any person convicted pursuant to this section shall be guilty of a misdemeanor and shall be punished by incarceration in the county jail for not to exceed one (1) year or incarceration in the county jail one or more nights or weekends pursuant to Section 991a-2 of Title 22 of the Oklahoma Statutes, at the option of the court, and shall be subject to a fine of not more than Five Thousand Dollars ($5,000.00) and ordered to provide restitution to the victim as provided in Section 991a of Title 22 of the Oklahoma Statutes. If the value of the worthless check is One Thousand Dollars ($1,000.00) or more, any person convicted hereunder shall be deemed guilty of a felony and shall be punished by imprisonment in the State Penitentiary for a term not exceeding seven (7) years or by a fine not to exceed Five Hundred Dollars ($500.00), or both such fine and imprisonment.

In the next two sections, regarding counterfeit and bogus checks, HB 2751 has already amended the law to the same wording proposed by SQ 780.

SECTION 13. AMENDATORY 21 O.S. 2011, Section 1541.1 is amended to read as follows:

Section 1541.1. Every person who, with intent to cheat and defraud, shall obtain or attempt to obtain from any person, firm or corporation any money, property or valuable thing, of a value less than One Thousand Dollars ($1,000.00), by means or by use of any trick or deception, or false or fraudulent representation or statement or pretense, or by any other means or instruments or device commonly called the "confidence game", or by means or use of any false or bogus checks, or by any other written or printed or engraved instrument or spurious coin, shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not to exceed One Thousand Dollars ($1,000.00), or by imprisonment in the county jail for not more than one (1) year, or by both such fine and imprisonment.

SECTION 14. AMENDATORY 21 O.S. 2011, Section 1541.2 is amended to read as follows:

Section 1541.2. If the value of the money, property or valuable thing referred to in Section 1541.1 of this title is One Thousand Dollars ($1,000.00) or more, any person convicted hereunder shall be deemed guilty of a felony and shall be punished by imprisonment in the State Penitentiary for a term not more than ten (10) years, or by a fine not to exceed Five Thousand Dollars ($5,000.00), or by both such fine and imprisonment.

This next section, dealing with the same crime, was also altered by HB 2751, but not in the same way as SQ 780.

SECTION 15. AMENDATORY 21 O.S. 2011, Section 1541.3 is amended to read as follows:

Section 1541.3. Any person making, drawing, uttering or delivering two or more false or bogus checks, drafts or orders, as defined by Section 1541.4 of this title, the total sum of which is Two Thousand Dollars ($2,000.00) One Thousand Dollars ($1,000.00) or more, even though each separate instrument is written for less than One Thousand Dollars ($1,000.00), all in pursuance of a common scheme or plan to cheat and defraud, shall be deemed guilty of a felony and shall be punished by imprisonment in the custody of the Department of Corrections State Penitentiary for a term not more than ten (10) years, or by a fine not to exceed Five Thousand Dollars ($5,000.00), or by both such fine and imprisonment. If the total sum of two or more false or bogus checks, drafts or orders is Five Hundred Dollars ($500.00) or more, but less than Two Thousand Dollars ($2,000.00), the person shall, upon conviction, be guilty of a misdemeanor and shall be punished by incarceration in the county jail for not more than one (1) year or by incarceration in the county jail one or more nights or weekends pursuant to Section 991a-2 of Title 22 of the Oklahoma Statutes, at the option of the court, and shall be subject to a fine of not more than Five Thousand Dollars ($5,000.00) and ordered to provide restitution to the victim as provided in Section 991a of Title 22 of the Oklahoma Statutes.

Section 16, which affects the pawn shop section of Title 59, Professions and Occupations, is the only one in which SQ 780 appears to toughen penalties. There's a little clean-up in paragraph A. Selling or pledging property using fake ID loses any penalty if the value of the property is less than $1,000, but if the property were acquired in a robbery or burglary, a sentence of up to five years could be imposed, regardless of the property's value.

SECTION 16. AMENDATORY 59 O.S. 2011, Section 1512 is amended to read as follows:

Section 1512. A. Rule Making Power. The Administrator shall have the same authority to adopt, amend and repeal rules as is conferred upon him by paragraph (e) of subsection (1), and subsections (2) and (3) of Section 14A-6-104 of Title 14A of the Oklahoma Statutes, as applicable, and such rules shall have the same effect as provided in subsection (4) of Section 14A-6-104 thereunder. In addition, the Administrator may adopt, amend and repeal such other rules as are necessary for the enforcement of the provisions of Section 1501 et seq. of this title and consistent with all its provisions.

B. Administrative Enforcement. Compliance with the provisions of this act may be enforced by the Administrator who may exercise, for such purpose, all the powers enumerated in Part 1 of Article 6, Title 14A of the Oklahoma Statutes, in the same manner as in relation to consumer credit transactions under that act, as well as those powers conferred in this act.

C. Criminal Penalties. 1. Any person who engages in the business of operating a pawn shop without first securing the license prescribed by this act shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not in excess of One Thousand Dollars ($1,000.00), by confinement in the county jail for not more than six (6) months or by both.

2. Any person selling or pledging property to a pawnbroker who uses false or altered identification or a false declaration of ownership as related to the provisions of Section 1515 of this title shall, if the value of the property is One Thousand Dollars ($1,000.00) or more, be guilty of a felony, and upon conviction shall be punished by imprisonment in the State Penitentiary not to exceed five (5) years or in the county jail not to exceed one (1) year, or by a fine not to exceed Five Hundred Dollars ($500.00), or by both such imprisonment and fine. However, if the property was acquired by means of robbery or burglary, the person shall be punished by imprisonment in the State Penitentiary not to exceed five (5) years or in the county jail not to exceed one (l) year, or by a fine not to exceed Five Hundred Dollars ($500.00), or by both such imprisonment and fine, without regard to the value of the property.

3. Any person who fails to repay a pawnbroker the full amount received from a pawn or buy transaction after being officially notified by a peace officer that the goods he pledged or sold in that transaction were stolen or embezzled shall be guilty of a misdemeanor and upon conviction shall be punished by imprisonment in the county jail for a term not to exceed six (6) months, or a fine not to exceed Five Hundred Dollars ($500.00), or by both such fine and imprisonment.

D. Private Enforcement.

1. If any person engages in the business of operating a pawnshop without first securing the license prescribed by this act, or if any pawnbroker contracts for, charges or receives a pawn finance charge in excess of that authorized by this act, the pawn transaction shall be void and the customer is not obligated to pay either the amount financed or the pawn finance charge in connection with the transaction, and upon the customer's demand, the pawnbroker shall be obligated to return to the customer, as a refund, all amounts paid in connection with the transaction by the customer and the pledged goods delivered to the pawnbroker in connection with the pawn transaction or their value if the goods cannot be returned. If a customer is entitled to a refund under this section and a pawnbroker liable to the customer refuses to make the refund within a reasonable time after demand, the customer shall have an action against the pawnbroker and in the case of a successful action to enforce such liability, the costs of the action together with attorney's fees as determined by the court shall be awarded to the customer.

2. A pawnbroker who fails to disclose information to a customer entitled to the information under this act is liable to that person in an amount equal to the sum of:

a. twice the amount of the pawn finance charge in connection with the transaction, or One Hundred Dollars ($100.00), whichever is greater; and

b. in the case of a successful action to enforce the liability under paragraph 1 of this subsection, the costs of the action together with reasonable attorneys' fees as determined by the court.

Sections 17 through 19 make counterfeiting of various sorts forgery in the third degree, regardless of the value of the forged note while section 20 defines third-degree forgery as a felony if the dollar amount is over $1,000. Current law, as amended by HB 2751, draws a boundary at $1,000 between second and third-degree forgery and allows multiple related offenses to be considered as one big crime.

SECTION 17. AMENDATORY 21 O.S. 2011, Section 1577 is amended to read as follows:

Section 1577. Every person who sells, exchanges or delivers for any consideration any forged or counterfeited promissory note, check, bill, draft, or other evidence of debt, or engagement for the payment of money absolutely, or upon any contingency, knowing the same to be forged or counterfeited, with intent to have the same uttered or passed, or who offers any such note or other instrument for sale, exchange or delivery for any consideration, with the like knowledge and intent, or who receives any such note or other instrument upon a sale, exchange or delivery for any consideration with the like knowledge and intent, is guilty of forgery in the second degree if the value of the instrument is One Thousand Dollars ($1,000.00) or more and forgery in the third degree if the value of the instrument is less than One Thousand Dollars ($1,000.00).

For purposes of this section, a series of offenses may be aggregated into one offense when they are the result of the formulation of a plan or scheme or the setting up of a mechanism which, when put into operation, results in the taking or diversion of money or property on a recurring basis. When all acts result from a continuing course of conduct, they may be aggregated into one crime. Acts forming an integral part of the first taking which facilitate subsequent takings, or acts taken in preparation of several takings which facilitate subsequent takings, are relevant to determine the intent of the party to commit a continuing crime.

SECTION 18. AMENDATORY 21 O.S. 2011, Section 1578 is amended to read as follows:

Section 1578. Every person who, with intent to defraud, has in his possession any forged, altered or counterfeit negotiable note, bill, draft or other evidence of debt issued or purporting to have been issued by any corporation or company duly authorized for that purpose by the laws of this state or of any other state, government or country, the forgery of which is hereinbefore declared to be punishable, knowing the same to be forged, altered or counterfeited, with intent to utter the same as true or as false, or to cause the same to be so uttered, is guilty of forgery in the second degree if the value of the instrument is One Thousand Dollars ($1,000.00) or more and forgery in the third degree if the value of the instrument is less than One Thousand Dollars ($1,000.00).

For purposes of this section, a series of offenses may be aggregated into one offense when they are the result of the formulation of a plan or scheme or the setting up of a mechanism which, when put into operation, results in the taking or diversion of money or property on a recurring basis. When all acts result from a continuing course of conduct, they may be aggregated into one crime. Acts forming an integral part of the first taking which facilitate subsequent takings, or acts taken in preparation of several takings which facilitate subsequent takings, are relevant to determine the intent of the party to commit a continuing crime.

SECTION 19. AMENDATORY 21 O.S. 2011, Section 1579 is amended to read as follows:

Section 1579. Every person who has in his possession any forged or counterfeited instrument, the forgery of which is hereinbefore declared to be punishable, other than such as are enumerated in Section 1578 of this title the last section, knowing the same to be forged, counterfeited or falsely altered with intent to injure or defraud by uttering the same to be true, or as false, or by causing the same to be uttered, is guilty of forgery in the second degree if the value of the instrument is One Thousand Dollars ($1,000.00) or more and forgery in the third degree if the value of the instrument is less than One Thousand Dollars ($1,000.00).

For purposes of this section, a series of offenses may be aggregated into one offense when they are the result of the formulation of a plan or scheme or the setting up of a mechanism which, when put into operation, results in the taking or diversion of money or property on a recurring basis. When all acts result from a continuing course of conduct, they may be aggregated into one crime. Acts forming an integral part of the first taking which facilitate subsequent takings, or acts taken in preparation of several takings which facilitate subsequent takings, are relevant to determine the intent of the party to commit a continuing crime.

SECTION 20. AMENDATORY 21 O.S. 2011, Section 1621 is amended to read as follows:

Section 1621. Forgery is punishable as follows:

1. Forgery in the first degree is a felony punishable by imprisonment not less than seven (7) years nor more than twenty (20) years; and

2. Forgery in the second degree is a felony punishable by imprisonment not exceeding seven (7) years.

3. Forgery in the third degree is:

a. If the value of the forgery is less than One Thousand Dollars ($1,000.00), a misdemeanor punishable by imprisonment in the county jail confinement for not more than one (1) year and by a fine of not exceeding One Thousand Dollars ($1,000.00).

b. If the value of the forgery is One Thousand Dollars ($1,000.00) or more, a felony punishable by imprisonment not exceeding seven (7) years.

c. If the total or aggregate value of the forgery is Two Thousand Dollars ($2,000.00) or more, a felony punishable by imprisonment not exceeding seven (7) years.

2 TrackBacks

Listed below are links to blogs that reference this entry: Oklahoma SQ 780: Decriminalization of drug possession.

TrackBack URL for this entry: http://www.batesline.com/cgi-bin/mt/mt-tb.cgi/7895

For your convenience, here is a summary of my recommendations for the seven state questions on the 2016 Oklahoma general election ballot. The descriptions are not meant to make my entire argument in three words; they simply serve as a reminder of the ... Read More

Recently on Talk Radio 1170 KFAQ, Pat Campbell hosted a discussion on Oklahoma State Questions 780 and 781 with former State House Speaker Kris Steele, a proponent of the propositions, and Tulsa County District Attorney Steve Kunzweiler, who opposes th... Read More

About this Entry

This page contains a single entry by Michael Bates published on November 1, 2016 1:21 AM.

Oklahoma SQ 790: The First Amendment, not Oklahoma's special version was the previous entry in this blog.

Oklahoma SQ 781: County Community Safety Investment Fund is the next entry in this blog.

Find recent content on the main index or look in the archives to find all content.

Contact

Feeds

Subscribe to feed Subscribe to this blog's feed:
Atom
RSS
[What is this?]