74th Legislative Session -- 1999
Committee: Senate State Affairs
Monday, February 8, 1999
P - Present
E - Excused
A - Absent
Roll Call
P
Dunn (Jim)
P
Munson (David)
P
Hutmacher
P
Lawler
E
Symens
P
Everist
P
Whiting
P
Rounds, Vice-Chair
P
Halverson, Chair
OTHERS PRESENT: See Original Minutes
The meeting was called to order by Senator Halverson
MOTION:
TO APPROVE THE MINUTES OF 2/5/99
Moved by:
Senator Dunn (Jim)
Second by:
Senator Whiting
Action:
Prevailed by voice vote.
SB 234:
establish criteria for the use of utilization review by health carriers,
utilization review organizations, and other contracted entities and for the coverage
of emergency services.
Presented by:
Dave Knudson, Governor's Office
Representative Hunt, Brandon, South Dakota
MOTION:
TO TABLE SB 234
Moved by:
Senator Rounds
Second by:
Senator Munson (David)
Action:
Prevailed by roll call vote.
(7-0-2-0)
Voting yes:
Dunn (Jim), Munson (David), Hutmacher, Lawler, Whiting, Rounds, Halverson
Excused:
Symens, Everist
HB 1010:
provide certain protections for persons enrolled in managed care plans.
Presented by:
Dave Knudson, Governor's Office
MOTION:
TO TABLE HB 1010
Moved by:
Senator Rounds
Second by:
Senator Dunn (Jim)
Action:
Prevailed by roll call vote.
(7-0-2-0)
Voting yes:
Dunn (Jim), Munson (David), Hutmacher, Lawler, Whiting, Rounds, Halverson
Excused:
Symens, Everist
HB 1011:
provide covered persons in managed care plans with reasonable access
to providers.
Presented by:
Dave Knudson, Governor's Office
MOTION:
TO TABLE HB 1011
Moved by:
Senator Dunn (Jim)
Second by:
Senator Munson (David)
Action:
Prevailed by roll call vote.
(7-0-2-0)
Voting yes:
Dunn (Jim), Munson (David), Hutmacher, Lawler, Whiting, Rounds, Halverson
Excused:
Symens, Everist
SB 235:
require the disclosure of information to prospective enrollees of managed
care plans.
Proponents:
Dave Knudson, Governor's Office
MOTION:
AMEND SB 235
o-235
On page
1
,
line
4 of the printed bill
,
delete "
managed care entity
"
and insert "
health carrier who
offers a managed care plan
"
.
On page
1
,
line
6
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
1
,
line
10
,
delete "
managed care entity
"
and insert "
health carrier
"
.
Moved by:
Senator Rounds
Second by:
Senator Munson (David)
Action:
Prevailed by voice vote.
SB 236:
establish standards for network adequacy and quality of care in managed
care plans and to require the registration of managed care entities.
Proponents:
Dave Knudson, Governor's Office
MOTION:
AMEND SB 236
o-236
On page
1
,
line
11 of the printed bill
,
delete "
health benefit
"
.
On page
1
,
line
13
,
delete "
health benefit
"
.
On page
13
,
after line
3
,
insert:
"
Section 22. Nothing in this Act applies to health carriers that only offer individual policies if:
(1) The policy does not use an individual or group to determine where or when services will
be rendered, the course of treatment, or who will provide the services;
(2) The policy does not require pre-authorization for services provided under the policy; and
(3) The difference in policy benefits does not exceed ten percent whether an insured used a
participating provider or nonparticipating provider.
Section 23. The Division of Insurance shall separately monitor complaints regarding managed
care for any policy that is exempt pursuant to section 22 of this Act.
"
Moved by:
Senator Rounds
Second by:
Senator Munson (David)
Action:
Prevailed by voice vote.
HB 1013:
establish certain requirements regarding coverage of emergency medical
services in managed care plans.
Proponents:
Dave Knudson, Governor's Office
MOTION:
AMEND HB 1013
j-1013f
On page
1
,
line
6 of the House Health and Human Services committee engrossed bill
,
delete
"
managed care
"
.
On page
1
,
between lines
13
and
14
,
insert:
"
(3A) "Health carrier," an entity subject to the insurance laws and regulations of this state, or
subject to the jurisdiction of the director, that contracts or offers to contract, or enters into
an agreement to provide, deliver, arrange for, pay for, or reimburse any of the costs of
health care services, including a sickness and accident insurance company, a health
maintenance organization, a nonprofit hospital and health service corporation, or any
other entity providing a plan of health insurance, health benefits, or health services;
"
On page
2
,
line
14
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
2
,
line
21
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
2
,
line
25
,
delete "
plan
"
and insert "
health carrier
"
.
On page
3
,
line
6
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
3
,
line
9
,
delete "
managed care
"
and insert "
health carrier
"
.
On page
3
,
line
10
,
before "
authorizes
"
delete "
plan
"
.
On page
3
,
line
10
,
after "the"
delete "
plan
"
and insert "
health carrier
"
.
On page
4
,
line
3
,
delete "
managed care plan
"
and insert "
health carrier
"
.
Moved by:
Senator Munson (David)
Second by:
Senator Whiting
Action:
Prevailed by voice vote.
HB 1012:
provide utilization review of managed care plans.
Proponents:
Dave Knudson, Governor's Office
MOTION:
AMEND HB 1012
j-1012g
On page
1
,
line
4 of the House Health and Human Services committee engrossed bill
,
delete
"
managed care plan
"
and insert "
health carrier
"
.
On page
1
,
line
7
,
delete "
managed care plan's
"
and insert "
health carrier's
"
.
On page
1
,
line
14
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
2
,
line
3
,
delete "
managed care plan's
"
and insert "
health carrier's
"
.
On page
3
,
line
1
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
3
,
between lines
7
and
8
,
insert:
"
(15A) "Health carrier," an entity subject to the insurance laws and regulations of this state, or
subject to the jurisdiction of the director, that contracts or offers to contract to provide,
deliver, arrange for, pay for, or reimburse any of the costs of health care services,
including a sickness and accident insurance company, a health maintenance organization,
a nonprofit hospital and health service corporation, or any other entity providing a plan
of health insurance, health benefits, or health services;
"
On page
3
,
line
24
,
delete "
managed care
"
and insert "
health carrier;
"
.
On page
3
,
delete line
25
.
On page
4
,
line
1
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
4
,
line
4
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
4
,
line
21
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
4
,
line
22
,
delete "
managed care
"
and insert "
health carrier
"
.
On page
4
,
line
23
,
delete "
plan
"
.
On page
4
,
line
23
,
delete "
plan's
"
and insert "
carrier's
"
.
On page
4
,
line
25
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
5
,
line
1
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
5
,
line
2
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
5
,
line
3
,
delete "
managed care plan's
"
and insert "
health carrier's
"
.
On page
5
,
line
5
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
5
,
line
7
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
5
,
line
8
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
5
,
line
10
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
5
,
line
23
,
delete "
managed care plan's
"
and insert "
health carrier's
"
.
On page
5
,
line
25
,
delete "
managed care plan shall file
"
and insert "
health carrier shall prepare
"
.
On page
6
,
line
1
,
after "
activities
"
insert "
and file the report, if requested,
"
.
On page
6
,
line
4
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
6
,
line
5
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
6
,
line
11
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
6
,
line
12
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
6
,
line
14
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
6
,
line
16
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
6
,
line
18
,
delete "
managed care plan's
"
and insert "
health carrier's
"
.
On page
6
,
line
19
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
6
,
line
21
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
6
,
line
22
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
7
,
line
2
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
7
,
line
3
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
7
,
line
5
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
7
,
line
6
,
delete "
plan
"
and insert "
carrier
"
.
On page
7
,
line
9
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
7
,
line
11
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
7
,
line
14
,
delete "
managed
"
and insert "
health carrier
"
.
On page
7
,
line
15
,
delete "
care plan
"
.
On page
7
,
line
18
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
7
,
line
21
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
7
,
line
25
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
8
,
line
4
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
8
,
line
9
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
8
,
line
12
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
8
,
line
13
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
8
,
line
18
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
8
,
line
20
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
8
,
line
24
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
9
,
line
1
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
9
,
line
3
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
9
,
line
10
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
9
,
line
13
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
9
,
line
15
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
11
,
line
2
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
11
,
line
5
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
11
,
line
6
,
delete "
managed care plan
"
and insert "
health carrier
"
.
On page
11
,
line
13
,
delete "
managed care plan
"
and insert "
health carrier
"
.
Moved by:
Senator Dunn (Jim)
Second by:
Senator Munson (David)
Action:
Prevailed by voice vote.
MOTION:
AMEND HB 1012
j-1012h
On page
2 of the House Health and Human Services committee engrossed bill
,
delete lines
5
to
10
, inclusive
.
On page
4
,
line
15
,
delete "
a set of formal techniques designed to monitor the use of, or
"
and
insert "
an activity as defined in subdivisions 58-17-91(4) and 58-18-64(4); and
"
.
On page
4
,
delete lines
16
to
19
, inclusive
.
On page
6
,
line
9
,
delete everything after "
.
"
and insert "
Any adverse determination shall be
evaluated by an appropriately licensed and clinically qualified health care provider.
"
.
On page
6
,
delete line
10
.
On page
9
,
line
6
,
delete "
A
"
and insert "
Any
"
.
On page
9
,
line
7
,
after "
appeal
"
insert "
, grievance,
"
.
On page
9
,
line
9
,
delete "
, including the clinical review criteria
"
.
On page
9
,
line
10
,
after "
determination
"
delete "
,
"
.
On page
9
,
line
11
,
delete "
including the clinical review criteria used to make that
determination,
"
.
On page
9
,
line
12
,
after "
request.
"
insert "
The clinical rationale shall contain sufficient
specificity to allow the covered person to understand the basis of the adverse determination.
"
.
On page
9
,
delete lines
17
to
25
, inclusive
.
On page
10
,
delete lines
1
to
25
, inclusive
.
On page
11
,
after line
14
,
insert:
"
Section 32. The director may, after consultation with the secretary of the Department of Health,
promulgate rules pursuant to chapter 1-26 to carry out the provisions of the Act. The rules shall be
designed to afford the public timely administration of utilization review and to assure that utilization
review decisions are made in a fair and clinically acceptable manner. The rules may include the
following:
(1) Definition of terms;
(2) Timing, form, and content of reports;
(3) Application of clinical criteria as it relates to utilization review;
(4) Written determinations; and
(5) Utilization review procedures.
"
Moved by:
Senator Munson (David)
Second by:
Senator Rounds
Action:
Prevailed by voice vote.
SB 186:
limit the liability of certain persons for year 2000 litigation.
Proponents:
David Owen, South Dakota Chamber of Commerce and Industry
MOTION:
SUBSTITUTE MOTION AMEND SB 186
o-186a
On the printed bill,
delete everything after the enacting clause and insert:
"
Section 1. Terms used in this Act mean:
(1) "Computer," any electronic device or group, network, or other combination of devices
using silicon chips, embedded chips, or other electronic systems or processes to store,
process, or manipulate information whether independently or in connection with other
electronic devices or other machinery or any other device included under
§
43-43B-2;
(2) "Computer software," any set of instructions, computations, or other data stored or
recorded on an electronic or other medium that causes or allows a computer to perform
specific functions, calculations, or other activities or any other device included under
§
43-43B-2;
(3) "Year 2000 disruption," any malfunction or failure of a computer or computer software
due to an inability or failure to properly perform operations, computations, or other
functions or to properly store, display, transmit, or otherwise manipulate data as a result
of an inability or failure to recognize or process dates using the year 2000 or any
subsequent year;
(4) "Year 2000 compliance," reasonable consultation, analysis, testing, or contingency
planning in conformance with generally accepted computer or computer software
standards that indicates that any computer or computer software will not suffer any Year
2000 disruption; or installation of any new computer or computer software or any upgrade
to any computer or computer software which is warranted, guaranteed, or otherwise
marketed to comply with generally accepted design standards to avoid Year 2000
disruption.
Section 2. In any lawsuit based on any Year 2000 disruption, evidence of Year 2000
compliance creates a rebuttable presumption that any injury based on a Year 2000 disruption was
not caused by negligence of the defendant or that, in any action based on breach of contract resulting
from a Year 2000 disruption, failure to perform under the contract was not the fault of the defendant.
Section 3. Nothing in this Act abrogates or limits rights under
§
57A-2-318.
"
Moved by:
Senator Everist
Second by:
Senator Dunn (Jim)
Action:
Prevailed by voice vote.
MOTION:
DO PASS SB 186 AS AMENDED
Moved by:
Senator Everist
Second by:
Senator Munson (David)
Action:
Prevailed by roll call vote.
(8-0-1-0)
Voting yes:
Dunn (Jim), Munson (David), Hutmacher, Lawler, Everist, Whiting, Rounds,
Halverson
Excused:
Symens
Senator Rounds assumed the Chair.
SB 149:
require the establishment of a cost recovery method or mechanism for
telecommunication companies to recover the cost of certain mandated services.
Proponents:
Senator Halverson, Twin Brooks, South Dakota
Larry Toll(Document 1,2)U.S. West
Brian Meyer,South Dakota Association of Telephone Cooperatives
Opponents:
Jim Burg, Commissioner, Public Utilities Commission
Rolayne Wiest, Public Utilities Commission
Dave Gerdes, Midco Telecommunications
Pam Nelson, Commissioner, Public Utilities Commission
MOTION:
AMEND SB 149
o-149
On page
1
,
line
10 of the printed bill
,
delete "
through local exchange services
"
.
Moved by:
Senator Halverson
Second by:
Senator Dunn (Jim)
Action:
Prevailed by voice vote.
MOTION:
DO PASS SB 149 AS AMENDED
Moved by:
Senator Halverson
Second by:
Senator Everist
Action:
Prevailed by roll call vote.
(5-3-1-0)
Voting yes:
Dunn (Jim), Munson (David), Everist, Whiting, Halverson
Voting no:
Hutmacher, Lawler, Rounds
Excused:
Symens
Senator Halverson resumed the Chair.
SB 247:
revise certain provisions regarding audits by the Division of Securities.
Proponents:
Senator Dennert, Columbia, South Dakota
Representative Diedtrich, Aberdeen,South Dakota
Darla Pollman Rogers, South Dakota Association of Life Underwriters
Opponents:
Debra Bollinger,Department of Commerce and Regulation
MOTION:
AMEND SB 247
o-247
On page
3
,
line
9 of the printed bill
,
delete "
, and any audit
"
and insert "
.
"
.
On page
3
,
delete line
10
.
Moved by:
Senator Hutmacher
Second by:
Senator Lawler
Action:
Prevailed by voice vote.
MOTION:
DO PASS SB 247 AS AMENDED
Moved by:
Senator Lawler
Second by:
Senator Hutmacher
Action:
Was not acted on.
MOTION:
SUBSTITUTE MOTION TO TABLE SB 247
Moved by:
Senator Halverson
Second by:
Senator Everist
Action:
Prevailed by roll call vote.
(6-2-1-0)
Voting yes:
Dunn (Jim), Munson (David), Everist, Whiting, Rounds, Halverson
Voting no:
Hutmacher, Lawler
Excused:
Symens
SB 210:
provide mandatory prison sentences for certain violations regarding
controlled substances and marijuana.
Proponents:
Dave Knudson, Governor's Office
MOTION:
AMEND SB 210
r-210
On the printed bill,
delete everything after the enacting clause and insert:
"
Section 1. That
§
22-42-2.1
be amended to read as follows:
22-42-2.1.
No person other than a practitioner who is not a pharmacist, may dispense a controlled
drug or substance included in Schedule II to an ultimate user without the written prescription of a
practitioner who is not a pharmacist. No prescription for a Schedule II drug or substance
shall
may
be refilled. A violation of this section is a Class 4 felony.
Any person found guilty under this section
shall be punished by a mandatory sentence in the state penitentiary of not less than thirty days, which
sentence may not be suspended. Probation, suspended imposition of sentence, or suspended
execution of sentence may not form the basis for reducing the mandatory time of incarceration
required by this section.
Section 2. That
§
22-42-2.3
be amended to read as follows:
22-42-2.3.
The sentencing court may impose a sentence other than that which is required by
§
22-42-2 if the court finds that mitigating circumstances exist which require a departure from the
mandatory sentence imposed by
§
22-42-2. The court's finding of mitigating circumstances allowed
by this section and the factual basis relied upon by the court shall be in writing.
In no case may the
departure from the mandatory sentence result in the court imposing a sentence or a term of probation
or condition of suspension that does not include mandatory incarceration in the state penitentiary for
not less than thirty days.
Section 3. That
§
22-42-3
be amended to read as follows:
22-42-3.
Except as authorized by this chapter or chapter 34-20B, no person may manufacture,
distribute, or dispense a substance listed in Schedule III; possess with intent to manufacture,
distribute, or dispense, a substance listed in Schedule III; create or distribute a counterfeit substance
listed in Schedule III; or possess with intent to distribute a counterfeit substance listed in Schedule
III. A violation of this section is a Class 5 felony. However, the distribution of a substance listed in
Schedule III to a minor is a Class 3 felony. A first conviction under this section shall be punished
by a mandatory sentence in the state penitentiary
or county jail
of at least thirty days, which sentence
may not be suspended. A second or subsequent conviction under this section shall be punished by
a mandatory penitentiary
or county jail
sentence of at least one year, which sentence may not be
suspended. However, a first conviction for distribution to a minor under this section shall be
punished by a mandatory sentence in the state penitentiary
or county jail
of at least ninety days,
which sentence may not be suspended. A second or subsequent conviction for distribution to a minor
under this section shall be punished by a mandatory sentence in the state penitentiary of at least two
years, which sentence may not be suspended. A civil penalty may be imposed, in addition to any
criminal penalty, upon a conviction of a violation of this section not to exceed ten thousand dollars.
Probation, suspended imposition of sentence, or suspended execution of sentence may not form the
basis for reducing the mandatory time of incarceration required by this section.
Section 4. That
§
22-42-4
be amended to read as follows:
22-42-4.
Except as authorized by this chapter or chapter 34-20B, no person may manufacture,
distribute, or dispense a substance listed in Schedule IV; possess with intent to manufacture,
distribute, or dispense, a substance listed in Schedule IV; create or distribute a counterfeit substance
listed in Schedule IV; or possess with intent to distribute a counterfeit substance listed in Schedule
IV. A violation of this section is a Class 6 felony. However, the distribution of a substance listed in
Schedule IV to a minor is a Class 4 felony. A first conviction under this section shall be punished
by a mandatory sentence in the state penitentiary
or county jail
of at least thirty days, which sentence
may not be suspended. A second or subsequent conviction under this section shall be punished by
a mandatory penitentiary
or county jail
sentence of at least one year, which sentence may not be
suspended. A civil penalty may be imposed, in addition to any criminal penalty, upon a conviction
of a violation of this section not to exceed ten thousand dollars.
Probation, suspended imposition of
sentence, or suspended execution of sentence may not form the basis for reducing the mandatory
time of incarceration required by this section.
Section 5. That
§
22-42-4.1
be amended to read as follows:
22-42-4.1.
Except when
Unless
dispensed directly by a practitioner, other than a pharmacist, to
an ultimate user, no controlled drug or substance included in Schedule III or Schedule IV may be
dispensed without a written or oral prescription. Such prescription may not be filled or refilled more
than six months after the date thereof or be refilled more than five times after the date of the
prescription, unless renewed by the practitioner. A violation of this section is a Class 5 felony.
Any
person found guilty under this section shall be punished by a mandatory sentence in the state
penitentiary of not less than thirty days, which sentence may not be suspended. Probation, suspended
imposition of sentence, or suspended execution of sentence may not form the basis for reducing the
mandatory time of incarceration required by this section.
Section 6. That
§
22-42-5
be amended to read as follows:
22-42-5.
No person may knowingly possess a controlled drug or substance unless the substance
was obtained directly or pursuant to a valid prescription or order from a practitioner, while acting
in the course of the practitioner's professional practice or except as otherwise authorized by chapter
34-20B. A violation of this section is a Class 4 felony.
Any person found guilty under this section
shall be punished by a mandatory sentence in the state penitentiary of not less than thirty days, which
sentence may not be suspended. Probation, suspended imposition of sentence, or suspended
execution of sentence may not form the basis for reducing the mandatory time of incarceration
required by this section.
Section 7. That
§
22-42-6
be amended to read as follows:
22-42-6.
No person may knowingly possess marijuana. It is a
Class 1
Class A
misdemeanor to
possess two ounces of marijuana or less. It is a Class 6 felony to possess more than two ounces of
marijuana but less than one-half pound of marijuana. It is a Class 5 felony to possess one-half pound
but less than one pound of marijuana. It is a Class 4 felony to possess one to ten pounds of
marijuana. It is a Class 3 felony to possess more than ten pounds of marijuana.
Any person found
guilty of a Class A misdemeanor or felony under this section shall be punished by a mandatory
sentence in the state penitentiary of not less than thirty days, which sentence may not be suspended.
Probation, suspended imposition of sentence, or suspended execution of sentence may not form the
basis for reducing the mandatory time of incarceration required by this section.
A civil penalty may
be imposed, in addition to any criminal penalty, upon a conviction of a violation of this section not
to exceed ten thousand dollars.
Section 8. That
§
22-42-7
be amended to read as follows:
22-42-7.
The distribution of less than one-half ounce of marijuana without consideration is a
Class 1
Class A
misdemeanor; otherwise, the distribution of one ounce or less of marijuana is a Class
6 felony. The distribution of more than one ounce but less than one-half pound of marijuana is a
Class 5 felony. The distribution of one-half pound but less than one pound of marijuana is a Class
4 felony. The distribution of one pound or more of marijuana is a Class 3 felony. However, the
distribution of any amount of marijuana to a minor is a Class 4 felony.
A first conviction
Any person
found guilty of a Class A misdemeanor under this section shall be punished by a mandatory sentence
in the state penitentiary of not less than thirty days, which sentence may not be suspended. Any
person found guilty
of a felony under this section shall be punished by a mandatory sentence in the
state penitentiary
or county jail
of at least thirty days, which sentence may not be suspended. A
second or subsequent conviction of a
Class A misdemeanor under this sentence shall be punished
by a mandatory sentence of not less than sixty days, which sentence may not be suspended. A second
or subsequent conviction of a
felony under this section shall be punished by a mandatory sentence
of at least one year
. Conviction of a Class 1 misdemeanor under this section shall be punished by
a mandatory sentence in county jail of not less than fifteen days, which sentence may not be
suspended
, which sentence may not be suspended. Probation, suspended imposition of sentence, or
suspended execution of sentence may not form the basis for reducing the mandatory time of
incarceration required by this section
. A civil penalty may be imposed, in addition to any criminal
penalty, upon a conviction of a felony violation of this section not to exceed ten thousand dollars.
Section 9. That
§
22-42-8
be amended to read as follows:
22-42-8.
Any person who knowingly obtains possession of a controlled drug or substance by
theft, misrepresentation, forgery, fraud, deception, or subterfuge is guilty of a Class 4 felony.
Any
person found guilty under this section shall be punished by a mandatory sentence in the state
penitentiary of not less than thirty days, which sentence may not be suspended. Probation, suspended
imposition of sentence, or suspended execution of sentence may not form the basis for reducing the
mandatory time of incarceration required by this section.
Section 10. That
§
22-42-10
be amended to read as follows:
22-42-10.
Any person who keeps or maintains a place which is resorted to by persons using
controlled drugs and substances for the purpose of using such substances, or which is used for the
keeping or selling of such substances, is guilty of a Class 5 felony.
Any person found guilty under
this section shall be punished by a mandatory sentence in the state penitentiary of not less than thirty
days, which sentence may not be suspended. Probation, suspended imposition of sentence, or
suspended execution of sentence may not form the basis for reducing the mandatory time of
incarceration required by this section.
Section 11. That
§
22-42-16
be amended to read as follows:
22-42-16.
No person may deliver or possess with intent to deliver or knowingly manufacture any
noncontrolled substance which the person represents to be a substance controlled under the
provisions of this chapter. Any person who violates this section is guilty of a Class 6 felony.
Any
person found guilty under this section shall be punished by a mandatory sentence in the state
penitentiary of not less than thirty days, which sentence may not be suspended. Probation, suspended
imposition of sentence, or suspended execution of sentence may not form the basis for reducing the
mandatory time of incarceration required by this section.
Section 12. That
§
22-42-19
be amended to read as follows:
22-42-19.
Any person who commits a violation of
§
22-42-2, 22-42-3, or 22-42-4, or a felony
violation of
§
22-42-7, if such activity has taken place:
(1)
In, on, or within one thousand feet of real property comprising a public or private
elementary or secondary school or a playground; or
(2)
In, on, or within five hundred feet of real property comprising a public or private youth
center, public swimming pool, or video arcade facility;
is guilty of a Class 4 felony.
The sentence imposed for a conviction under this section carries a minimum sentence of
imprisonment in the state penitentiary of five years. Any sentence imposed under this section shall
be consecutive to any other sentence imposed for the principal felony. The court may not place on
probation, suspend the execution of the sentence, or suspend the imposition of the sentence of any
person convicted of a violation of this section. However, the sentencing court may impose a sentence
other than that specified in this section if the court finds that mitigating circumstances exist which
require a departure from the mandatory sentence provided for in this section. The court's finding of
mitigating circumstances allowed by this section and the factual basis relied upon by the court shall
be in writing.
In no case shall the departure from the mandatory sentence result in the court imposing
a sentence or a term of probation or condition of suspension that does not include mandatory
incarceration in the state penitentiary for not less than thirty days.
It is not a defense to the provisions of this section that the defendant did not know the distance
involved. It is not a defense to the provisions of this section that school was not in session.
Section 13. That
§
34-20B-42
be amended to read as follows:
34-20B-42.
No person who is a registrant
shall
may
manufacture, distribute, or dispense a
controlled drug or substance not authorized by his registration to another registrant or other
authorized person. A violation of this section may be punished by a civil fine of not more than ten
thousand dollars. In addition, if the violation was done knowingly, it is a Class 5 felony.
Any person
found guilty under this section shall be punished by a mandatory sentence in the state penitentiary
of not less than thirty days, which sentence may not be suspended. Probation, suspended imposition
of sentence, or suspended execution of sentence may not form the basis for reducing the mandatory
time of incarceration required by this section.
Section 14. That
§
34-20B-46
be amended to read as follows:
34-20B-46.
It is a Class 5 felony for any person who is a registrant knowingly to distribute a
controlled drug or substance classified in Schedules I or II, in the course of his legitimate business,
except pursuant to an order form as required by this chapter.
Any person found guilty under this
section shall be punished by a mandatory sentence in the state penitentiary of not less than thirty
days, which sentence may not be suspended. Probation, suspended imposition of sentence, or
suspended execution of sentence may not form the basis for reducing the mandatory time of
incarceration required by this section.
Section 15. The mandatory incarceration provisions of sections 1 to 14, inclusive, of this Act do
not apply to a child, as defined in
§
26-7A-1(6), unless the child is tried as an adult pursuant to
§
26-
11-3.1 or 26-11-4.
Section 16. The provisions of
§
23A-27-35 do not apply to any person found guilty of a Class
A misdemeanor.
Section 17. That
§
22-1-4
be amended to read as follows:
22-1-4.
Crimes are either felonies or misdemeanors. A felony is a crime which is or may be
punishable by imprisonment in the state penitentiary. Every other crime is a misdemeanor.
However,
Class A misdemeanors are misdemeanors notwithstanding a mandatory sentence to the state
penitentiary.
Section 18. That
§
22-6-2
be amended to read as follows:
22-6-2.
Except as otherwise provided by law, misdemeanors are divided into
two
three
classes
which are distinguished from each other by the following maximum penalties which are authorized
upon conviction:
(1) Class A misdemeanor: one year imprisonment in the state penitentiary or one thousand
five hundred dollars fine, or both;
(1)
(2)
Class 1 misdemeanor: one year imprisonment in a county jail or one thousand dollars
fine, or both;
(2)
(3)
Class 2 misdemeanor: thirty days imprisonment in a county jail or two hundred dollars
fine, or both.
The court in imposing sentence on a defendant who has been found guilty of a misdemeanor
shall order, in addition to the sentence that is imposed pursuant to the provisions of this section, that
the defendant make restitution to any victim in accordance with the provisions of chapter 23A-28.
Except in cases where punishment is prescribed by law, every offense declared to be a
misdemeanor and not otherwise classified, is a Class 2 misdemeanor.
Except in Titles 1 to 20, inclusive, 22, 25 to 28, inclusive, 32 to 36, inclusive, 40 to 42,
inclusive, 47 to 54, inclusive, and 58 to 62, inclusive, if the performance of an act is prohibited by
a statute, and no penalty for the violation of such statute is imposed by a statute, the doing of such
act is a Class 2 misdemeanor.
Section 19. That
§
26-8C-4
be amended to read as follows:
26-8C-4.
If the court is satisfied that the best interests of the public, justice and child will be
served, the court may, without entering an adjudication of delinquency, with consent of the child,
suspend imposition of adjudication of delinquency and place the child on probation under the terms,
conditions and duration required by the court.
If the proceeding involves the unlawful possession
or distribution of marijuana or a controlled drug or substance, the court shall include as a condition
of probation that the child be committed to the Department of Corrections for a period of not less
than thirty days which may not be reduced.
A court may revoke the suspension at any time during
the probationary period and impose an adjudication of delinquency without diminishment or credit
for any of the probationary period.
Section 20. That
§
26-8C-7
be amended to read as follows:
26-8C-7.
If
Except as provided in section 21 of this Act, if
a child has been adjudicated as a
delinquent child, the court shall enter a decree of disposition according to the least restrictive
alternative available in keeping with the best interests of the child. The decree shall contain one or
more of the following alternatives:
(1)
The court may make any one or more of the dispositions in
§
26-8B-6, except that a
delinquent child may be incarcerated in a detention facility established pursuant to
provisions of chapter 26-7A for not more than ninety days, which may be in addition to
any period of temporary custody;
(2)
The court may impose a fine not to exceed one thousand dollars;
(3)
The court may place the child on probation under the supervision of a court services
officer or another designated individual. The child may be required as a condition of
probation to report for assignment to a supervised work program, provided the child is not
deprived of the schooling that is appropriate for the child's age, needs and specific
rehabilitative goals. The supervised work program shall be of a constructive nature
designed to promote rehabilitation, appropriate to the age level and physical ability of the
child, and shall be combined with counseling by the court services officer or other
guidance personnel. The supervised work program assignment shall be made for a period
of time consistent with the child's best interests, but for not more than ninety days;
(4)
The court may place the child at the Human Services Center for examination and
treatment;
(5)
The court may commit the child to the Department of Corrections;
(6)
The court may place the child in a detention facility for not more than ninety days, which
may be in addition to any period of temporary custody;
(7)
The court may place the child in an alternative educational program;
(8)
The court may order the suspension or revocation of the child's driving privilege or
restrict the privilege in such manner as it sees fit.
Section 21. That chapter 26-8C be amended by adding thereto a NEW SECTION to read as
follows:
If a child has been adjudicated as a delinquent child for a violation of state law regarding the
possession or distribution of marijuana or a controlled drug or substance, the court shall enter a
decree of disposition committing the child to the Department of Corrections for a period of not less
than thirty days. Probation, suspended imposition of adjudication of delinquency, suspended
execution of adjudication of delinquency, or discharge under
§
26-7A-122 may not form the basis
for reducing the mandatory time of commitment required by this section to less than thirty days.
"
Moved by:
Senator Whiting
Second by:
Senator Rounds
Action:
Prevailed by voice vote.
The Chair deferred SB 210 until 2/10/99.
SB 211:
revise certain provisions relating to workers' compensation.
Proponents:
Dave Knudson, Governor's Office
MOTION:
AMEND SB 211
o-211
On page
1
,
delete lines
13
to
17 of the printed bill
, inclusive
.
On page
2
,
delete lines
1
to
5
, inclusive
.
On page
5
,
line
21
,
after "
a
"
insert "
bona fide
"
.
On page
5
,
line
23
,
after "
accommodations,
"
insert "
and offers the employee the opportunity to
work either full-time or part-time and pays wages equivalent to, or greater than, the workers'
compensation benefit rate applicable to the employee at the time of the employee's injury
"
.
On page
5
,
line
23
,
after "
sporadic.
"
insert "
The department shall retain jurisdiction over
disputes arising under this provision to ensure that any such position is suitable when compared to
the employee's former job and that such employment is regularly and continuously available to the
employee.
"
.
On page
6
,
line
7
,
delete "
that has essential functions the employee can perform with or without
"
and insert "
which is not sporadic employment resulting in an insubstantial income as defined in
subdivision 62-4-52(2).
"
.
On page
6
,
line
8
,
delete everything before "
An
"
.
On page
7
,
delete lines
17
to
25
, inclusive
.
On page
8
,
delete lines
1
to
4
, inclusive
.
Moved by:
Senator Rounds
Second by:
Senator Dunn (Jim)
Action:
Prevailed by voice vote.
The Chair deferred SB 211 until 2/10/99.
SB 209:
provide certain incentives for school consolidation.
Proponents:
Dave Knudson(Document 3), Governor's Office
Gene Enck, School Boards Association
Ray Christensen,Secretary, Department of Education and Cultural Affairs
George Levin, Superintendent,Agar, South Dakota
MOTION:
DO PASS SB 209
Moved by:
Senator Everist
Second by:
Senator Munson (David)
Action:
Prevailed by roll call vote.
(8-0-1-0)
Voting yes:
Dunn (Jim), Munson (David), Hutmacher, Lawler, Everist, Whiting, Rounds,
Halverson
Excused:
Symens
SB 248:
revise the distribution of Gaming Commission funds and to require
legislative approval on the city of Deadwood's ability to obtain revenue bonds for
historic preservation.
The Chair deferred SB 248 until 2/10/99.
MOTION:
ADJOURN
Moved by:
Senator Whiting
Second by:
Senator Munson (David)
Action:
Prevailed by voice vote.
Janet Judson
_________________________________
Committee Secretary
Harold Halverson, Chair
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