BILL ANALYSIS Ó
AB 472
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Date of Hearing: March 22, 2011
Counsel: Milena Nelson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 472 (Ammiano) - As Introduced: February 15, 2011
SUMMARY : Provides that it shall not be a crime to be under the
influence of, or in possession of, a controlled substance or
drug paraphernalia if that individual seeks medical assistance
for himself, herself or another person for a drug-related
overdose. Specifically, this bill :
1)States that drug overdose is the second leading cause of
injury and death in the United States, behind motor vehicle
accidents and ahead of firearms. These deaths are not
confined to adults, but also devastate California's youth.
California has the highest number of overdose deaths.
2)States that the State Department of Alcohol and Drug Programs
reported that there were 3,102 overdose deaths in 2002, the
first year such deaths were tracked; by 2006, the number of
overdose deaths had increased to 3,646.
3)States that researchers continually identify fear of arrest or
police involvement as the most significant barrier to seeking
medical assistance in a drug-related overdose. Additionally,
if criminal punishment is intended to deter drug abuse, it is
clearly too late to deter such abuse when an overdose is
already occurring.
4)States legislative intent to encourage a witness of a
drug-related overdose to call "911" or seek medical assistance
in a timely manner in order to save the life of an overdose
victim by establishing a state policy exempting drug
possession or drug paraphernalia possession from criminal
prosecutions in situations involving medical emergencies.
5)States legislative intent to protect individuals from
prosecution for other offenses or to interfere with law
enforcement protocols to secure the scene of an overdose.
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6)States that it shall not be a crime for a person to be under
the influence of a controlled substance or to possess a
controlled substance, controlled substance analog, or drug
paraphernalia for personal use, if:
a) That person seeks medical attention in good faith for
another person experiencing a drug-related overdose;
b) The drug-related overdose is related to the possession
of a controlled substance, a controlled substance analog,
or drug paraphernalia of the person seeking medical
assistance; and,
c) That person does not obstruct medical or law enforcement
personnel.
7)States that it shall not be a crime for a person who
experiences a drug-related overdose and who is in need of
medical assistance to be under the influence of a controlled
substance or to possess a controlled substance, controlled
substance analog, or drug paraphernalia for personal use if
that person or another at the scene of the overdose seeks
medical attention in good faith for a drug-related overdose.
8)States that this section does not affect laws prohibiting the
selling, providing, giving, or exchanging of drugs for money,
goods, or services, or laws prohibiting the forcible
administration of drugs against a person's will.
9)States that nothing in this section affects liability for any
offense that involves activities made more dangerous by the
consumption of a controlled substance or a controlled
substance analog, including but not limited to specified
sections of the vehicle code.
10)Defines "drug-related overdose" as an acute medical condition
that is the result of the ingestion or use by an individual of
one or more controlled substances or one or more controlled
substances in combination with alcohol, in quantities that are
excessive for that individual. An individual's condition
shall be deemed to be a "drug-related overdose" if a
reasonable person or ordinary knowledge would believe the
condition to be a drug-related overdose.
EXISTING LAW :
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1)States that unauthorized possession of specified controlled
substances is punishable by imprisonment in the state prison
and a $70 fine. If probation is granted, the individual must
pay a fine of $1,000 for the first offense, and $2,000 for
each subsequent offense. İHealth and Safety Code (HSC)
Section 11350(a), (c), and (d).] Specified controlled
substances include:
a) Opiates, or their salts or derivatives;
b) Opium, or its derivatives;
c) Cocaine or cocaine base;
d) Mescaline, Peyote, or tetrahydrocannabinois (synthetic
equivalents to substances contained in the cannibis plant,
or its resinous extractives);
e) Coca leaves or its salts or derivatives;
f) Poppy straw or its concentrate;
g) Ecgonine, or its salt or derivatives;
h) Levoalphacetylmethadol, primarily used for the treatment
of narcotic addicts;
i) Hallucinogenic substances; or,
j) Any controlled substance in Schedules III, IV, or V that
is a narcotic drug.
2)States that the unauthorized possession of depressants, as
specified, shall be punished by imprisonment in the county
jail for not more than one year, or the state prison and a $70
fine. If probation is granted, the individual must pay a fine
of $1,000 for the first offense, and $2,000 for each
subsequent offense. İHSC Section 11350(b), (c), and (d).]
3)Prohibits any person from using or being under the influence
of specified drugs. Violation will result in imprisonment for
90 days to one year in county jail. İHSC Section 11550(a).]
Specified drugs include:
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a) Opiates, or their salts or derivatives;
b) Opium or its derivatives;
c) Depressants:
d) Cocaine or cocaine base;
e) Mescaline;
f) Peyote;
g) Phencyclidine:
h) Coca leaves or its salts or derivatives;
i) Poppy straw or its concentrate;
j) Stimulants, including amphetamine or methamphetamine;
or,
aa) Any controlled substance in Schedules III, IV, or V that
is a narcotic drug.
4)Requires any person convicted of using or being under the
influence of specified drugs twice within a seven-year period
who refuses to complete a licensed drug rehabilitation program
shall be sentenced to no less than 180 days up to one year in
county jail. İHSC Section 11550(b).]
5)States that any person found to be under the influence of
cocaine, cocaine base, heroin, methamphetamine, or
phencyclidine while in immediate person possession of a
loaded, operable firearm is guilty of an offense and is
subject to imprisonment of up to one year in county jail or
state prison. İHSC Section 11550(e).]
6)Provides that any person convicted of being under the
influence of specified drugs while in possession of a firearm
more than once, shall be imprisoned in state prison for two,
four, or six years. İHSC Section 11550(f).]
7)Provides that an individual under the age of 21 is immune from
prosecution for providing alcohol to a minor, or possession of
alcohol by a minor, as specified, if that individual meets the
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following requirements (Business and Professions Code Section
25667):
a) The individual called 911 and reported that either
himself or herself or another individual is in need of
medical assistance due to alcohol consumption;
b) The individual was the first person to make the 911
report; and
c) The individual who reported that another person who
needed medical assistance remained on the scene until
medical assistance arrived and cooperated with medical
assistance and law enforcement on the scene.
d) States that this section shall not provide immunity from
criminal prosecution for any offense that involves
activities made dangerous by the consumption of alcohol,
including but not limited to, specified sections of the
vehicle code.
FISCAL EFFECT : Unknown
COMMENTS :
1) Author's Statement : According to the author, "Drug overdose
is a serious problem in California. Between 2000 and 2006,
California witnessed a 24% increase in the overdose death rate
from 7.4 deaths per 100,000 people in 2000 to 9.8 deaths per
100,000 in 2006. Many overdoses are reversible if the
individual gets medical assistance in time, however one of the
most common reasons people cite for not calling 911 when they
witness an overdose is fear of police involvement and criminal
punishment for themselves or their friends. California can
prevent many of these needless drug-related overdose deaths by
encouraging witnesses of drug overdoses to call 911.
"AB 472 seeks to address the needless overdose deaths that occur
when witnesses to an overdose hesitate to contact emergency
services because they fear arrest for themselves or for the
overdose victim. AB 472 would provide limited criminal
immunity to individuals for being under the influence, or in
possession of drugs for personal use or drug paraphernalia if
they seek medical attention to save the life of someone
experiencing an overdose. People would not be protected from
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prosecution for other offenses, including the trafficking of
drugs or driving under the influence and this bill prohibits
obstruction of medical or law enforcement personnel. By
protecting witnesses who call emergency services from arrest
for drug possession and being under the influence, California
can prevent many drug-related overdose deaths.
"Studies of overdose have shown that death rarely occurs
immediately from a drug-related overdose, and most deaths
occur 1 to 3 hours after the initial dose of drugs. Thus,
timely response by emergency personnel is imperative. A study
at Cornell University found that more students contacted
emergency services to report overdoses after a Good Samaritan
policy was in place. Similarly, New Mexico and Washington
have statutes providing immunity for possession of drugs to a
person who calls 911 to save the life of an overdose victim,
and California must follow in suit, and make saving lives a #1
priority in overdose situations."
2)Background : According to background information provided by
the author, "California has the highest number of overdose
deaths in the country, with 3,646 deaths from drug and alcohol
overdose in 2006 alone, equating to 10 people dying every day
from overdose in California. The death rate from drug and
alcohol overdose has been increasing in California, rising
from 7.4 deaths per 100,000 people in 2000 to 9.8 deaths per
100,000 in 2006. This is an increase of 24% in just six
years.
"Numerous research studies, such as those conducted by Columbia
University, University of California, San Francisco, and
University of California, San Diego examining predictors of
fatal drug overdose in California and other states, has shown
that fear of arrest and incarceration among witnesses is the
leading cause for delay or failure to seek emergency medical
care in a potentially deadly drug or alcohol overdose. Death
or disability is preventable if witnesses feel less personally
threatened when confronting a medical emergency.
"According to the California Uniformed Controlled Substances
Act, if an individual contacts emergency services in order to
save the life of someone experiencing a drug or
alcohol-related overdose, and that individual is either under
the influence of drugs or alcohol; in possession of a
controlled substance, or is in possession of drug
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paraphernalia, the witness risks arrest, incarceration and
unmedicated withdrawal in a jail cell.
"According to researchers at the University of California, San
Francisco, and law enforcement executives, arrest and
incarceration at the scene of drug overdose are extremely
rare, in that law enforcement's primary interest is in
securing the scene and assisting paramedics in saving the life
of the overdose patient. However, research has established
that the perceived fear of arrest is prevalent among drug
users, and is the leading barrier to timely rescue.
"This public health crisis must be addressed in a balanced way,
and one of the mechanisms through which the number of overdose
deaths can be reduced is by creating an environment that
provides limited criminal immunity for those who contact
emergency services to report an overdose, and for those
experiencing an overdose. By removing the fear of arrest for
simple possession, sharing and being under the influence
crimes, people will be more likely to seek medical help in
overdose situations and lives will be saved. Two states, New
Mexico and Washington, currently have such laws in place, and
have significantly reduced the amount of deaths caused by drug
overdose."
3)Accidental Drug Overdoses are Increasing and Preventable :
According to the Drug Policy Alliance, "Accidental drug
overdose is now the second leading cause of accidental death
in California. Since 1990, accidental overdose deaths in
California increased by more than 100%, surpassing deaths
caused from firearms, homicides and AIDS. Accidental drug
overdose is now the leading cause of injury-related death for
people between the ages of 35-54, and is the second leading
cause of death for 15-34 year olds. More accidental drug
overdose deaths occur in California than anywhere else in the
United States." İDrug Policy Alliance, Preventing Overdose,
Saving Lives: Strategies for Combating a National Crisis
(March 2009) p. 12.]
4)Fear of Prosecution Prevents Witnesses from Seeking Needed
Medical Assistance : According to the Drug Policy Alliance,
"The chance of surviving an overdose, like that of surviving a
heart attack, depends greatly on how fast one receives medical
assistance. Witnesses to heart attacks rarely think twice
about calling 911, but witnesses to an overdose often squander
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precious time hesitating to call for help or, in many cases,
simply don't make the call. The most common reason people
cite for not calling 911 is fear of police involvement.
People using drugs illegally often fear arrest, even in cases
where they need professional medical assistance for a friend
or family member." İDrug Policy Alliance, Preventing
Overdose, Saving Lives: Strategies for Combating a National
Crisis (March 2009) p. 13.]
5)Similar Bill Successfully Passed in New Mexico in 2007 : On
April 3, 2007, Governor Bill Richardson signed SB 200,
Immunity for Assistance for Overdoses, which is similar to
this bill in that SB 200 provided limited immunity for an
individuals who seeks medical assistance for a drug-related
overdose of himself, herself, or another person from
indictment or prosecution for possession of a controlled
substance if that evidence was gained as a result of seeking
medical assistance. (N.M. Stat. Ann. Section 30-31-25.1)
Additionally, the New Mexico law states that seeking medical
attention for another person should be a mitigating factor in
any drug-related prosecution arising from the incident.
6)Similar Bill Successfully Passed in Washington State in March
2010 : The State of Washington passed SB 5516, Chapter 9, Laws
of 2010, which is substantially similar to both this bill and
the New Mexico statute mentioned above. SB 5516 provides
limited immunity for an individual who seeks medical
assistance for a drug-related overdose of himself, herself or
another person from indictment or prosecution for possession
of a controlled substance if that evidence was gained as a
result of seeking medical assistance. (Wash. S.B. 5516,
Chapter 9, Laws of 2010.) Like the New Mexico law, SB 5516
states that seeking medical attention for another person
should be a mitigating factor in any drug-related prosecution
arising from the incident. Additionally, SB 5516 also
contains provisions related to the possession and use of
naloxone, a drug used to counter the effects of a drug-related
overdose. (Wash. S.B. 5516, Chapter 9, Laws of 2010.)
7)Immunity Provided under this Bill is Limited : This bill does
not provide immunity for most drug-related crimes, including
selling, providing, giving or exchanging of drugs or alcohol
for money, goods, or services, or forcible administration of
drugs or alcohol against a person's will. This bill provides
immunity only in the limited circumstances where a victim or
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witness of a drug overdose in good faith seeks medical
assistance where that individual being under the influence of,
or possession of, a controlled substance.
8)Prior Legislation :
a) AB 2460 (Ammiano), of 2009-20 Legislative Session, would
have provided limited criminal immunity to people
experiencing a drug related overdose who contact emergency
services. AB 2460 was vetoed.
b) AB 1999 (Portantino), Chapter 245, Statutes of 2010,
granted immunity to a person under the age of 21 years to
knowingly possession or consume alcoholic beverages under
specific circumstances relating to the reporting of medical
emergencies arising from alcohol consumption.
c) AB 767 (Ridley-Thomas), Chapter 477, Statutes of 2007,
authorized a licensed health care provider who is permitted
by law to prescribe an opioid antagonist (naloxone
hydrochloride), if acting with reasonable care, to
prescribe and subsequently dispense or distribute an opioid
antagonist in conjunction with an opioid overdose
prevention and treatment training program, being subject to
civil liability or criminal prosecution.
d) SB 1134 (Escutia), of the 2001-02 Legislative Session,
would have required the state Emergency Medical Services
Authority to convene a working group and adopt regulations
to provide for emergency medical technicians to be trained
to administer, naloxone hydrochloride for the treatment of
people who have suffered drug overdoses. SB 1134 was
vetoed.
e) SB 1695 (Escutia), Chapter 678, Statutes of 2002,
authorized counties to establish training and certification
programs to permit an emergency medical technician-I, as
specified, to administer naloxone hydrochloride, the
antidote to heroin overdose, by means other than
intravenous injection if he or she has completed training
and passed a test, as specified. SB 1695 required the
Emergency Medical Services Authority to develop guidelines
relating to the county certification programs. These
provisions are operative until a specified date. SB 1695
required the Department of Alcohol and Drug Programs to
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place on its Internet Web site, for a period of not less
than six months, information, as specified, regarding drug
overdose trends and death rates.
REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union (Sponsor)
Drug Policy Alliance (Sponsor)
Health Officers Association of California (Sponsor)
Asian Pacific AIDS Intervention Team
Bay Area Addition Research & Treatment, Inc.
California Opioid Maintenance Providers
California Public Defenders Association
Drug Abuse Alternatives Center
Families ACT!
Homeless Health Care Los Angeles
Opposition
None
Analysis Prepared by : Milena Nelson / PUB. S. / (916)
319-3957