Sec. 10. (a) As used in this section:
(1) “Drug” means a drug or a controlled substance (as defined in IC 35-48-1).
(2) “Substance offense” means a Class A misdemeanor or a felony in which the possession, use, abuse, delivery, transportation, or manufacture of alcohol or drugs is a material element of the crime. The term includes an offense under IC 9-30-5 and an offense under IC 9-11-2 (before its repeal).
(b) The state may seek to have a person sentenced as a habitual substance offender for any substance offense by alleging, on a page separate from the rest of the charging instrument, that the person has accumulated two (2) prior unrelated substance offense convictions.
(c) After a person has been convicted and sentenced for a substance offense committed after sentencing for a prior unrelated substance offense conviction, the person has accumulated two (2) prior unrelated substance offense convictions. However, a conviction does not count for purposes of this subsection if:
(1) it has been set aside; or
(2) it is a conviction for which the person has been pardoned.
(d) If the person was convicted of the substance offense in a jury trial, the jury shall reconvene for the sentencing hearing. If the trial was to the court, or the judgment was entered on a guilty plea, the court alone shall conduct the sentencing hearing, under IC 35-38-1-3.
(e) A person is a habitual substance offender if the jury (if the hearing is by jury) or the court (if the hearing is to the court alone) finds that the state has proved beyond a reasonable doubt that the person had accumulated two (2) prior unrelated substance offense convictions.
(f) The court shall sentence a person found to be a habitual substance offender to an additional fixed term of at least three (3) years but not more than eight (8) years imprisonment, to be added to the term of imprisonment imposed under IC 35-50-2 or IC 35-50-3. If the court finds that:
(1) three (3) years or more have elapsed since the date the person was discharged from probation, imprisonment, or parole (whichever is later) for the last prior unrelated substance offense conviction and the date the person committed the substance offense for which the person is being sentenced as a habitual substance offender; or
(2) all of the substance offenses for which the person has been convicted are substance offenses under IC 16-42-19 or
IC 35-48-4, the person has not been convicted of a substance offense listed in section 2(b)(4) of this chapter, and the total number of convictions that the person has for:
(A) dealing in or selling a legend drug under IC 16-42-19-27;
(B) dealing in cocaine or a narcotic drug (IC 35-48-4-1);
(C) dealing in a schedule I, II, or III controlled substance (IC 35-48-4-2);
(D) dealing in a schedule IV controlled substance (IC 35-48-4-3); and
(E) dealing in a schedule V controlled substance (IC 35-48-4-4);
does not exceed one (1);
then the court may reduce the additional fixed term. However, the court may not reduce the additional fixed term to less than one (1) year.
(g) If a reduction of the additional year fixed term is authorized under subsection (f), the court may also consider the aggravating or circumstances in IC 35-38-1-7.1(a) and the mitigating circumstances in IC 35-38-1-7.1(b) to:
(1) decide the issue of granting a reduction; or
(2) determine the number of years, if any, to be subtracted under subsection (f).
As added by P.L.335-1983, SEC.2. Amended by P.L.327-1985, SEC.5; P.L.98-1988, SEC.11; P.L.1-1990, SEC.355; P.L.96-1996, SEC.8; P.L.97-1996, SEC.5; P.L.2-1997, SEC.77; P.L.291-2001, SEC.227; P.L.71-2005, SEC.12; P.L.213-2005, SEC.5; P.L.1-2006, SEC.551.