BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2011-2012 Regular Session B 4 7 2 AB 472 (Ammiano) As Amended: May 23, 2011 Hearing date: June 7, 2011 Health and Safety Code JM:dl CONTROLLED SUBSTANCE OVERDOSES HISTORY Source: Health Officers of California; Drug Policy Alliance; American Civil Liberties Union Prior Legislation: AB 2460 (Ammiano) - 2010, Vetoed AB 1999 (Portantino) - Ch. 245, Stats. 2010 Support: A New Path; Asian Pacific AIDS Intervention Team; Bay Area Addiction Research & Treatment, Inc.; Broken No More; California Association of Alcohol and Drug Program Executives, Inc.; California Attorneys for Criminal Justice; California Opioid Maintenance Providers; California Professional Firefighters; California Public Defenders Association; California Society of Addiction Medicine; Common Ground; County Alcohol and Drug Program Administrators Association of California; Drug Abuse Alternatives Center; Families ACT!; Homeless Health Care Los Angeles; Los Angeles Community Action Network; Grief Recovery After a Substance Passing; National Association of Social Workers; Justice Now; Several Individuals Opposition:California State Sheriffs' Association AB 472 (Ammiano) PageB Assembly Floor Vote: Ayes 46 - Noes 24 KEY ISSUE SHOULD IT NOT BE A CRIME FOR A PERSON TO BE UNDER THE INFLUENCE OF A CONTROLLED SUBSTANCE, OR TO POSSESS A CONTROLLED SUBSTANCE OR DRUG PARAPHERNALIA FOR PERSONAL USE, IF THE PERSON SEEKS EMERGENCY ASSISTANCE FOR HIMSELF OR HERSELF OR ANOTHER PERSON WHO IS EXPERIENCING A DRUG OVERDOSE, AS SPECIFIED? PURPOSE The purposes of this bill are to 1) provide that it is not a crime for a person to be under the influence of a controlled substance, or to possess a controlled substance or drug paraphernalia for personal use, if the person, in good faith, seeks emergency assistance for an overdose victim whose drug use was related to the drug possession by the person seeking assistance; and 2) provide that it is not a crime for a person to be under the influence of a controlled substance, or to possess a controlled substance or drug paraphernalia for personal use, if the person suffers an overdose, and one or more persons at the scene seek emergency assistance in good faith for the person suffering an overdose. Existing law states that unauthorized possession of specified controlled substances, including opiates or cocaine, is punishable by imprisonment in the state prison and a fine of up to $10,000. Special fines and fees also apply. (Health & Saf. Code §§ 11350 and 11377.) Existing law provides that it is a crime to be under the influence of a controlled substance, as specified. The crime is generally a misdemeanor, with a minimum jail term of 90 days. Special penalties, including felony penalties, apply where other circumstances are shown in addition to the fact that the (More) AB 472 (Ammiano) PageC defendant was under the influence of a controlled substance. (Health & Saf. Code § 11550, subd. (f).) This bill includes legislative findings and intent concerning the prevalence of drug overdoses and the benefits of very limited criminal immunity in encouraging drug overdose victims and witnesses to seek emergency assistance, as specified. This bill provides that it is not a crime for a person 1) to be under the influence of a controlled substance, <1> or 2) to possess for personal use a controlled substance or drug paraphernalia, if that person, in good faith, seeks medical assistance for a drug overdose victim and the person seeking the assistance does not obstruct medical or law enforcement personnel. This bill provides that where a person experiences a drug overdose, he or she shall not be guilty of being under the influence of a controlled substance, or possessing a controlled substance for personal drug paraphernalia for personal use, if the overdose victim or others at the scene seek medical assistance for the overdose victim and do not obstruct medical or law enforcement personnel This bill expressly states that it shall not be interpreted to create immunities or protections from arrest or prosecution other than those specifically stated in the bill. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation. As these cases have progressed, prison conditions have continued to be assailed, and the scrutiny of the federal courts --------------------------- <1> The bill also applies to controlled substance analogs. California law provides that an analog - a drug that is chemically equivalent to a controlled substance - shall essentially be considered a controlled substance. (Health & Saf. Code 11401.) (More) AB 472 (Ammiano) PageD over California's prisons has intensified. On June 30, 2005, in a class action lawsuit filed four years earlier, the United States District Court for the Northern District of California established a Receivership to take control of the delivery of medical services to all California state prisoners confined by the California Department of Corrections and Rehabilitation ("CDCR"). In December of 2006, plaintiffs in two federal lawsuits against CDCR sought a court-ordered limit on the prison population pursuant to the federal Prison Litigation Reform Act. On January 12, 2010, a three-judge federal panel issued an order requiring California to reduce its inmate population to 137.5 percent of design capacity -- a reduction at that time of roughly 40,000 inmates -- within two years. The court stayed implementation of its ruling pending the state's appeal to the U.S. Supreme Court. On May 23, 2011, the United States Supreme Court upheld the decision of the three-judge panel in its entirety, giving California two years from the date of its ruling to reduce its prison population to 137.5 percent of design capacity, subject to the right of the state to seek modifications in appropriate circumstances.
In response to the unresolved prison capacity crisis, in early 2007 the Senate Committee on Public Safety began holding legislative proposals which could further exacerbate prison overcrowding through new or expanded felony prosecutions. This bill does not appear to aggravate the prison overcrowding crisis described above. COMMENTS 1. Need for This Bill According to the author: California has the highest number of overdose deaths (More) AB 472 (Ammiano) PageE in the country, with 3,646 deaths from drug and alcohol overdose in 2006 alone,<2> equating to 10 people overdose deaths per day. The death rate from drug and alcohol overdose in California rose from 7.4 deaths per 100,000 people in 2000<3> to 9.8 per 100,000 in 2006<4> - an increase of 24%. Many of these deaths are preventable. Studies have shown that death rarely occurs immediately from a drug-related overdose. Most deaths occur 1 to 3 hours after the initial dose.<5> Thus, timely response by emergency personnel is imperative. Numerous academic studies examining predictors of fatal drug overdose have 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.<6>, ---------------------- <2> California Department of Alcohol and Drug Programs, Overdose Deaths in California. http://adp.ca.gov/oara/pdf/overdose_dths_2006.pdf . <3> California Department of Alcohol and Drug Programs, Accidental or Intentional Poisoning (Overdose) Deaths. http://www.adp.ca.gov/oara/pdf/overdose_dths_2003.pdf <4> California Department of Alcohol and Drug Programs, Overdose Deaths in California. http://adp.ca.gov/oara/pdf/overdose_dths_2006.pdf <5> Davidson, Peter J. et al., "Witnessing heroin-related overdoses: the experiences of young injectors in San Francisco," Addiction. 2002, December. 97 (12):1511. <6> Tracy, Melissa et al., "Circumstances of witnessed drug overdose in New York City: implications for intervention," Drug and Alcohol Dependence. 2005, (79) 181-190. Lewis, Deborah K. et al., "Safety first: A medical amnesty approach to alcohol poisoning at a U.S. university," The International Journal of Drug Policy. 2006, (17) 329-338. <7> Davidson, Peter J., et al. "Witnessing heroin-related overdoses: the experiences of young injectors in San Francisco." Addiction 97 (2002) 1511-1516 (More) AB 472 (Ammiano) PageF <7>, <8> Death or disability is preventable if witnesses feel less personally threatened when confronting a medical emergency. Under California law, if a person contacts emergency help for a drug overdose victim, and the person seeking the help is either under the influence of drugs or in possession of drugs or drug paraphernalia, he or she risks arrest, incarceration and un-medicated withdrawal in a jail cell. UCSF researchers and law enforcement officials have found that arrest and incarceration at the scene of drug overdose is rare, in that law enforcement's primary interest is in securing the scene and assisting paramedics in saving the life of the overdose patient. Nevertheless, research also shows that fear of arrest is the leading barrier to timely rescue of overdose victims. This bill addresses this public health crisis by creating 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 and being under the influence of drugs, people will be more likely to obtain life-saving medical help for overdose victims. Two states, New Mexico and Washington, currently have such laws in place, and have significantly reduced the amount of deaths caused by drug overdose. A Cornell University study found that more students contacted emergency services to report overdoses after a Good Samaritan policy was in place.<9> 2. Similar Laws Enacted in New Mexico Washington State in 2007 and 2010 Respectively ------------------------- <8> Pollini, Robin A., et al. "Response to Overdose Among Injection Drug Users." American Journal of Preventative Medicine 2006; 31 (3) 261-264 <9> Ibid. (More) AB 472 (Ammiano) PageG On April 3, 2007, Governor Bill Richardson signed SB 200, Immunity for Assistance for Overdoses. The New Mexico law provides limited immunity for a person who seeks medical assistance for a drug-related overdose suffered by the person seeking assistance or another person. The immunity covers 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 should be a mitigating factor in any drug-related prosecution arising from the incident. Washington State recently enacted SB 5516, Chapter 9, Laws of 2010, which is substantially similar to both this bill and the New Mexico statute mentioned above. The Washington law provides limited immunity prosecution for possession of a controlled substance for individuals who seek medical assistance for a drug-related overdose under the same circumstances specified in the New Mexico law. The Washington statute also deems seeking medical attention for another to 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.) 3. 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 for the crimes of being under the influence of a controlled substance, or for possession of a controlled substance or drug paraphernalia. To qualify for such immunity, the person seeking emergency assistance must act in good faith and not interfere with law enforcement or emergency personnel. (More) AB 472 (Ammiano) PageH SHOULD A PERSON SEEKING ASSISTANCE FOR A DRUG OVERDOSE VICTIM BE GRANTED LIMITED IMMUNITY FROM PROSECUTION FOR BEING UNDER THE INFLUENCE OF A CONTROLLED SUBSTANCE, OR FOR POSSESSING A CONTROLLED SUBSTANCE OR DRUG PARAPHERNALIA? *************** (More)