21 U.S.C. § 844a — Civil penalty for possession of small amounts of certain controlled substances
submitted 38 years ago by Pub. L. 91-513 to r/title-21-FOOD-AND-DRUGS · 795 words · no verdicts yet
This section allows a civil penalty of up to $10,000 for knowingly possessing a personal-use amount of certain controlled substances. It sets limits and procedures for assessment, review, collection, and possible dismissal and expungement.
(a) In general. An individual who knowingly possesses a controlled substance* listed in section 841(b)(1)(A), violating section 844, in an amount that the Attorney General’s regulations identify as a personal-use amount, owes the United States a civil penalty of up to $10,000 for each violation.
(b) Income and net assets. The individual’s income and net assets do not matter in deciding whether to assess a civil penalty or prosecute the person criminally. They must, however, be considered when setting the penalty amount.
(c) Prior conviction. No penalty may be assessed if the individual was previously convicted of a federal or state* controlled-substance offense.
(d) Number of assessments. A penalty may not be assessed against an individual on more than two separate occasions.
(e) Assessment. The Attorney General may assess a penalty only by an order entered on the record after an opportunity for a hearing under title 5, section 554. The Attorney General must give the individual written notice of the proposed order and the hearing opportunity. The hearing may occur only if the individual asks for it within 30 days after the notice is issued.
(f) Compromise. The Attorney General may compromise, change, or cancel any penalty, with or without conditions.
(g) Judicial review. If the Attorney General issues an order after the hearing under subsection (e), the individual may bring a civil action in the appropriate United States district court within 30 days after the order is issued. The court must decide the law, facts, and penalty amount anew. The individual has the right to a jury trial, counsel, and to confront witnesses. The violation’s facts must be proved beyond a reasonable doubt.
(h) Civil action. If the individual does not request a hearing, or does not seek review under subsection (g), the Attorney General may sue in an appropriate United States district court to recover the assessed amount and interest calculated under title 28, section 1961. Interest begins when the 30-day period in subsection (g) ends. In that suit, the Attorney General’s decision to issue the order and the penalty amount may not be reviewed.
(i) Limitation. The Attorney General may not begin a proceeding against an individual under this subsection more than 5 years after the alleged violation of subsection (a).
(j) Expungement. After 3 years, the Attorney General must dismiss the proceedings against an individual who applies if (1) the individual has never before been assessed a penalty under this section; (2) the individual paid the assessment; (3) the individual complied with the Attorney General’s conditions; (4) the individual has not been convicted of a federal or state controlled-substance offense; and (5) the individual agrees to a drug* test and the test shows the individual is drug-free. The Department of Justice must keep a nonpublic record of the disposition only to decide in a later proceeding whether the person qualified for a penalty or expungement under this section. After expungement, the individual may not be treated as guilty of perjury, false swearing, or making a false statement because the individual fails to mention or acknowledge this proceeding or its results in response to an inquiry for any purpose.
Any individual who knowingly possesses a controlled substance* that is listed in section 841(b)(1)(A) of this title in violation of section 844 of this title in an amount that, as specified by regulation of the Attorney General, is a personal use amount shall be liable to the United States for a civil penalty in an amount not to exceed $10,000 for each such violation.
The income and net assets of an individual shall not be relevant to the determination whether to assess a civil penalty under this section or to prosecute the individual criminally. However, in determining the amount of a penalty under this section, the income and net assets of an individual shall be considered.
A civil penalty may not be assessed under this section if the individual previously was convicted of a Federal or State* offense relating to a controlled substance.
A civil penalty may not be assessed on an individual under this section on more than two separate occasions.
A civil penalty under this section may be assessed by the Attorney General only by an order made on the record after opportunity for a hearing in accordance with section 554 of title 5. The Attorney General shall provide written notice to the individual who is the subject of the proposed order informing the individual of the opportunity to receive such a hearing with respect to the proposed order. The hearing may be held only if the individual makes a request for the hearing before the expiration of the 30-day period beginning on the date such notice is issued.
The Attorney General may compromise, modify, or remit, with or without conditions, any civil penalty imposed under this section.
If the Attorney General issues an order pursuant to subsection (e) after a hearing described in such subsection, the individual who is the subject of the order may, before the expiration of the 30-day period beginning on the date the order is issued, bring a civil action in the appropriate district court of the United States. In such action, the law and the facts of the violation and the assessment of the civil penalty shall be determined de novo, and shall include the right of a trial by jury, the right to counsel, and the right to confront witnesses. The facts of the violation shall be proved beyond a reasonable doubt.
If an individual does not request a hearing pursuant to subsection (e) and the Attorney General issues an order pursuant to such subsection, or if an individual does not under subsection (g) seek judicial review of such an order, the Attorney General may commence a civil action in any appropriate district court of the United States for the purpose of recovering the amount assessed and an amount representing interest at a rate computed in accordance with section 1961 of title 28. Such interest shall accrue from the expiration of the 30-day period described in subsection (g). In such an action, the decision of the Attorney General to issue the order, and the amount of the penalty assessed by the Attorney General, shall not be subject to review.
The Attorney General may not under this subsection 1 commence proceeding against an individual after the expiration of the 5-year period beginning on the date on which the individual allegedly violated subsection (a).
The Attorney General shall dismiss the proceedings under this section against an individual upon application of such individual at any time after the expiration of 3 years if—
the individual has not previously been assessed a civil penalty under this section;
the individual has paid the assessment;
the individual has complied with any conditions imposed by the Attorney General;
the individual has not been convicted of a Federal or State offense relating to a controlled substance; and
the individual agrees to submit to a drug* test, and such test shows the individual to be drug free.
A nonpublic record of a disposition under this subsection shall be retained by the Department of Justice solely for the purpose of determining in any subsequent proceeding whether the person qualified for a civil penalty or expungement under this section. If a record is expunged under this subsection, an individual concerning whom such an expungement has been made shall not be held thereafter under any provision of law to be guilty of perjury, false swearing, or making a false statement by reason of his failure to recite or acknowledge a proceeding under this section or the results thereof in response to an inquiry made of him for any purpose.
Source credit: (Pub. L. 91–513, title II, § 405, formerly Pub. L. 100–690, title VI, § 6486, Nov. 18, 1988, 102 Stat. 4384, renumbered § 405 of Pub. L. 91–513, and amended Pub. L. 101–647, title X, § 1002(g)(1), (2), Nov. 29, 1990, 104 Stat. 4828.)
- 1988Enacted · Pub. L. 91-513 · 102 Stat. 4384
A history note hasn’t been published yet. The record shows enactment by Pub. L. 91-513 on 1988-11-18.
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