BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 2309 (Brown) 9
As Introduced February 21, 2014
Hearing date: June 10, 2014
Penal Code
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UNAUTHORIZED POSSESSION OF PRESCRIPTION ANTI-ANXIETY DRUGS:
DEFERRED ENTRY OF JUDGMENT AND DIVERSION PROGRAMS
HISTORY
Source: Conference of California Bar Associations
Prior Legislation: SB 1574 (Alarcon) - Ch. 42, Stats. 2000
SB 1369 (Kopp) - Ch. 1132, Stats. 1996
AB 3555 (Farr) - Ch. 1118, Stats. 1992
SB 2603 (Presley) - Ch. 2603, Stats. 1988
Support: California Attorneys for Criminal Justice; California
Public Defenders Association; Taxpayers for Improving
Public Safety; Legal Services for Prisoners with
Children; California District Attorneys Association;
California Narcotic Officers' Association; Los Angeles
District Attorney's Office
Opposition:None known
Assembly Floor Vote: Ayes 75 - Noes 0
KEY ISSUE
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SHOULD PERSONS IN UNAUTHORIZED POSSESSION OF SPECIFIED
PRESCRIPTION ANTI-ANXIETY, WEIGHT LOSS, ATTENTION DEFICIT AND
PAIN CONTROL DRUGS BE ELIGIBLE FOR DEFERRED ENTRY OF JUDGMENT,
OR DIVERSION AND DISMISSAL OF CHARGES UPON COMPLETION OF A
REHABILITATION PROGRAM?
PURPOSE
The purpose of this bill is to provide that persons in
unauthorized possession of specified prescription drugs -
benzodiazepine anti-anxiety drugs, weight-control stimulants,
pain management and attention deficit control drugs - are
eligible for deferred entry of judgment or diversion and
dismissal of the charges upon completion of a rehabilitation
program.
Existing law provides that the entry of judgment may be deferred
with respect to a defendant charged with specific controlled
substance offenses if they meet specific criteria, including no
prior convictions for any offense involving a controlled
substance and have had no prior felony convictions within five
years. (Pen. Code § 1000.)
Existing law provides that upon successful completion of a
deferred entry of judgment, the arrest upon which the judgment
was deferred shall be deemed to never have occurred. The
defendant may in response to any question in regard to his or
her prior criminal record that he or she was not arrested or
granted deferred entry of judgment, except as specified. (Pen.
Code § 1000.4, subd. (a).)
Existing law states that a record pertaining to an arrest
resulting in successful completion of a deferred entry of
judgment program shall not, without the defendant's consent, be
used in any way that could result in the denial of any
employment, benefit, license, or certificate. (Pen. Code §
1000.4, subd. (a).)
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Existing law requires that a defendant be advised that
regardless of his or her successful completion of a deferred
entry of judgment program, the arrest upon which the case was
based, may be disclosed by the Department of Justice (DOJ) in
response to any peace officer application request, and that the
defendant is obligated to disclose the arrest in response to any
direct question on the application. (Pen. Code § 1000.4, subd.
(b).)
Existing law provides that a superior court may administer a
pre-plea drug diversion program if the court, the county
district attorney and the public defender agree. (Pen. Code §
1000.5.)
Existing law every person that possesses Chlordiazepoxide,
Clonazepan, Clorazepate, Diazepam, Flurazepan, Lorazepan,
Mebutamate, Oxazepam, Prazepam, Temazapam, Halazepam,
Alprazolam, Propoxyphene, Diethylpropion, Phentermine, Pemoline,
Fenfluramine, and Triazolam unless upon the prescription of
physician, dentist, podiatrist, or veterinarian licensed to
practice in this state, shall be guilty of an infraction or a
misdemeanor. (Health & Saf. Code
§ 11375, subd. (b)(2).)
Existing law provides that except where a different punishment
is prescribed by any law of this state, every offense declared
to be a misdemeanor is punishable by imprisonment in a county
jail not exceeding six months, or by a fine not exceeding
$1,000, or by both a fine and imprisonment. (Pen. Code § 19.)
Existing law states that an infraction is not punishable by
imprisonment. (Pen. Code § 19.6.)
This bill adds the possession of Chlordiazepoxide, Clonazepan,
Clorazepate, Diazepam, Flurazepan, Lorazepan, Mebutamate,
Oxazepam, Prazepam, Temazapam, Halazepam, Alprazolam,
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Propoxyphene, Diethylpropion, Phentermine, Pemoline,
Fenfluramine, and Triazolam without a prescription to the list
of offenses for which entry of judgment may be deferred if the
defendant meets specified criteria.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
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42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014, and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013, Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
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In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
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COMMENTS
1. Need for this Bill
According to the author:
Under current law, individuals convicted of a
misdemeanor/infraction possession of Xanax (Aprazolam)
or other benzodiazepines are not permitted to
participate in a deferred entry of judgment or drug
diversion program, while individuals convicted of
felonies involving far more serious drugs, such as
possession of heroin, cocaine, and methamphetamine
under Health and Safety Code §§ 11350 and 11377, are
eligible. AB 2309 would remove this unnecessary
distinction - which appears to exist solely due to
oversight - by making persons convicted of Xanax or
other benzodiazepines eligible for diversion. Not
only will AB 2309 bring consistency and fairness to
the law, but it will help in a small way to reduce
court congestion by extending deferred entry of
judgment to the more de minimus drug offenses.
2. Benzodiazepines and Other Drugs Addressed by this Bill -
Background
Under this bill, a defendant charged with possession of one of
the listed drugs will be eligible for deferred entry of judgment
or diversion. Most of the drugs are commonly prescribed, or
were commonly prescribed for anxiety, weight control and other
conditions. The wide therapeutic use of the drugs has led to
relatively easy access for non-medical use or self-medication of
many of these drugs.
Benzodiazepines
This bill will usually apply to persons who possess
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benzodiazepines without a prescription. Benzodiazepines<1> are
a class of drug very commonly used to treat anxiety and, less
often, short-term insomnia. Benzodiazepines also help prevent
seizures and ameliorate alcohol detoxification and withdrawal.
They differ in strength and length of action, but all affect the
neurotransmitter GABA. Because they cause relatively little
respiratory suppression, Benzodiazepines present very little
risk of fatal overdose alone,<2> but can be dangerous when used
with drugs such as alcohol and opiates. Benzodiazepines can be
associated with dependence and addiction. These drugs are
widely known by brand or trade name, such as Valium (diazepam),
Ativan (lorazepam) and Xanax (alprazolam).
Additional Drugs Addressed by this Bill
The other drugs considered in this bill have a range of effects
and uses. Propoxyphene is a pain medication generally known by
its trade name, Darvon. It appears that in may no longer be
prescribed in the United States.<3> Diethylpropion, Phentermine
and Fenfluramine<4> are stimulant drugs generally used to
control appetite or obesity, and Pemoline is a stimulant used to
treat attention deficit disorder. It appears that Pemoline is
no longer distributed in the United States because of concerns
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<1>
http://www.rcpsych.ac.uk/healthadvice/treatmentswellbeing/benzodi
azepines.aspx.
<2> http://www.aafp.org/afp/2000/0401/p2121.html.
<3>
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682325.html.
<4> The two drugs prescribed jointly were widely known as
Phen-Fen. Serious cardiac problems were reported by patients
using the drugs.
http://www.fda.gov/Drugs/DrugSafety/PostmarketDrugSafetyInformati
onforPatientsandProviders/ucm180082.htm.
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about liver toxicity.<5>
3. Deferred Entry of Judgment or Pre-Plea Diversion and the
Substance Abuse and Crime Prevention Act of 2000 (SACPA -
Proposition 36 of the 2000 General Election
Deferred entry of judgment and true pre-plea diversion (DEJ) are
distinct programs from the Substance Abuse and Crime Prevention
Act - SACPA ("Prop 36") - program. After enactment of SACPA in
2000, the California Attorney General opined that SACPA did not
repeal DEJ by implication. (84 Ops. Cal. Atty. Gen. 85 - 2001.)
Deferred entry of judgment - as the name of the program denotes
- applies prior to imposition of judgment and sentence. SACPA
is a probation program under which a person convicted of a
non-violent drug possession offense must be offered treatment,
without incarceration, on probation. Further, the offenses
covered by the two programs, while overlapping to a great
extent, are not the same. The offenses covered under SACPA are
broader than those included under DEJ.
The procedures for the programs are also different. The
prosecutor determines if the defendant meets the eligibility
requirements for DEJ. The trial court cannot overturn the
prosecutor's determination of ineligibility. If the defendant
disagrees with the prosecutor's determination, his or her only
remedy is by appeal to the Court of Appeal. In contrast, the
trial court determines whether a convicted defendant is eligible
for probation under SACPA. A defendant must plead guilty before
being placed in a DEJ program.<6> A person who is convicted at
trial of non-violent drug possession is eligible for SACPA,
unless a disqualifying factor, such as possession of a weapon at
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<5>
http://www.fda.gov/Drugs/DrugSafety/PostmarketDrugSafetyInformati
onforPatientsandProviders/ucm126461.htm.
<6> With the agreement of the court, the district attorney and
public defender, a county can elect to offer a true diversion
program, under which the defendant participates in a
rehabilitation program without pleading guilty. The entire case
begins anew if the defendant fails on diversion. (Pen. Code §
1000.5.)
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the time of the offense. A defendant who fails in a DEJ program
is subject to imposition of judgment and sentencing. However,
if the defendant's conviction is for a non-violent drug
possession offense, he or she shall be offered treatment on
probation under SACPA. (In re Scoggins (2001) 94 Cal.App.4th
650, 652-658.) As the covered offenses and eligibility
requirements are broader under SACPA than DEJ, it is most likely
that a person who fails in DEJ would be eligible for SACPA.
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