BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2011-2012 Regular Session               B

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          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)
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          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 




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                                                      AB 472 (Ammiano)
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          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.)



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                                                      AB 472 (Ammiano)
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          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 




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               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





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                                                      AB 472 (Ammiano)
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               <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.



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                                                      AB 472 (Ammiano)
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          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.





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                                                      AB 472 (Ammiano)
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          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?


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