BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 2406 (Rodriguez) 6
As Amended June 16, 2014
Hearing date: June 24, 2014
Penal Code
JRD:sl
BATTERY: GASSING
HISTORY
Source: American Federation of State, County, and Municipal
Employees
Prior Legislation: AB 2635 (Portantino) - Chapter 688,
Statutes of 2010
AB 169 (Portantino) - Chapter 417, Statutes of 2009
AB 2737 (Feuer) - Chapter 554, Statutes of 2008
Support: None Known
Opposition:Unknown
Assembly Floor Vote: Not Relevant
KEY ISSUE
SHOULD "BATTERY BY GASSING" BE ADDED TO THE PENAL CODE?
SHOULD LAW ENFORCEMENT AGENCIES HAVE THE ABILITY TO ORDER A PERSON
TO SUBMIT TO MEDICAL TESTING, AS SPECIFIED?
PURPOSE
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The purpose of this legislation is to: (1) create a new crime of
"battery by gassing," as specified; and, (2) give law
enforcement agencies the ability to order a person, who has
gassed or is suspected to have gassed a person in violation of
the new crime, to "receive an examination or test for hepatitis,
tuberculosis, or any other disease capable of being transmitted
from contact with the human fluid or substance involved."
Battery
Existing law defines a battery as any willful and unlawful use
of force or violence upon the person of another. (Penal Code §
242.)
Existing law states that when a battery is committed against the
person of a peace officer, custodial officer, firefighter,
emergency medical technician, lifeguard, security officer,
custody assistant, process server, traffic officer, code
enforcement officer, animal control officer, or search and
rescue member engaged in the performance of his or her duties,
whether on or off duty, including when the peace officer is in a
police uniform and is concurrently performing the duties
required of him or her as a peace officer while also employed in
a private capacity as a part-time or casual private security
guard or patrolman, or a non-sworn employee of a probation
department engaged in the performance of his or her duties,
whether on or off duty, or a physician or nurse engaged in
rendering emergency medical care outside a hospital, clinic, or
other health care facility, and the person committing the
offense knows or reasonably should know that the victim is a
peace officer, custodial officer, firefighter, emergency medical
technician, lifeguard, security officer, custody assistant,
process server, traffic officer, code enforcement officer,
animal control officer, or search and rescue member engaged in
the performance of his or her duties, non-sworn employee of a
probation department, or a physician or nurse engaged in
rendering emergency medical care, the battery is punishable by a
fine not exceeding two thousand dollars ($2,000), or by
imprisonment in a county jail not exceeding one year, or by both
that fine and imprisonment. (Penal Code § 243(b) (emphasis
added).)
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This bill states that every person who commits a battery by
gassing upon the person of a peace officer, as specified,
hospital or nursing home employee, physician, medical
professional, ambulance attendant, emergency medical technician,
firefighter, or custodial officers, is guilty of aggravated
battery, punishable by a fine not exceeding one thousand dollars
($1,000), or by imprisonment in a county jail not exceeding six
months, or by both that fine and imprisonment.
This bill defines "gassing" as intentionally placing or
throwing, or causing to be placed or thrown, upon the person of
another, any human excrement or other bodily fluids or bodily
substances or any mixture containing human excrement or other
bodily fluids or bodily substances that results in contact with
the person's skin, hair or membrane.
This bill states that nothing in the language precludes
prosecution under both this section and any other provision of
law.
Bodily Fluid Exposure
Existing law provides the blood or other tissue or material of a
source patient may be tested, and an exposed individual may be
informed whether the patient has tested positive or negative for
a communicable disease if the exposed individual and the health
care facility, if any, have substantially complied with the then
applicable guidelines of the Division of Occupational Safety and
Health and the State Department of Health Services and if the
following procedure is followed:
Whenever a person becomes an exposed individual by
experiencing an exposure to the blood or other potentially
infectious material of a patient during the course of
rendering health care-related services or occupational
services, the exposed individual may request an evaluation
of the exposure by a physician to determine if it is a
significant exposure.
A written certification by a physician of the
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significance of the exposure shall be obtained within 72
hours of the request. The certification shall include the
nature and extent of the exposure.
The exposed individual shall be counseled regarding the
likelihood of transmission, the limitations of the testing
performed, the need for follow-up testing, and the
procedures that the exposed individual must follow
regardless of whether the source patient has tested
positive or negative for a communicable disease.
Within 72 hours of certifying the exposure as
significant, the certifying physician shall provide written
certification to an attending physician of the source
patient that a significant exposure to an exposed
individual has occurred, and shall request information on
whether the source patient has tested positive or negative
for a communicable disease, and the availability of blood
or other patient samples. An attending physician shall
respond to the request for information within three working
days.
If test results of the source patient are already known
to be positive for a communicable disease then when the
exposed individual is a health care provider or an employee
or agent of the health care provider of the source patient,
an attending physician and surgeon of the source patient
shall attempt to obtain the consent of the source patient
to disclose to the exposed the testing results of the
source patient regarding communicable diseases. If the
source patient cannot be contacted or refuses to consent to
the disclosure, then the exposed individual may be informed
of the test results.
If the communicable disease status of the source patient
is unknown to the certifying physician or an attending
physician, if blood or other patient samples are available,
and if the exposed individual has tested negative on a
baseline test for communicable diseases, the source patient
shall be given the opportunity to give informed consent to
a test for communicable diseases in accordance with the
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following:
o Within 72 hours after receiving a written
certification of significant exposure, an attending
physician of the source patient shall do all of the
following:
§ Make a good faith effort to notify
the source patient or the authorized legal
representative of the source patient about the
significant exposure. An inability to contact the
source patient, or legal representative of the
source patient, after a good faith effort to do
so as provided in this subdivision, shall
constitute a refusal of consent. An inability of
the source patient to provide informed consent
shall constitute a refusal of consent, provided
all of the following conditions are met:
The source patient has no
authorized legal representative.
The source patient is
incapable of giving consent.
In the opinion of the
attending physician, it is likely that the
source patient will be unable to grant
informed consent within the 72-hour period
during which the physician is required to
respond.
§ Attempt to obtain the voluntary
informed consent of the source patient or the
authorized legal representative of the source
patient to perform a test for a communicable
disease, on the source patient or on any
available blood or patient sample of the source
patient. The voluntary informed consent shall be
in writing. The source patient shall have the
option not to be informed of the test result.
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§ Provide the source patient with
medically appropriate pretest counseling and
refer the source patient to appropriate posttest
counseling and follow-up, if necessary. The
source patient shall be offered medically
appropriate counseling whether or not he or she
consents to testing.
o If the source patient or the authorized legal
representative of the source patient refuses to
consent to test for a communicable disease after a
documented effort, any available blood or patient
sample of the source patient may be tested. The source
patient or authorized legal representative of the
source patient shall be informed that an available
blood sample or other tissue or material will be
tested despite his or her refusal, and that the
exposed individual shall be informed of the test
results regarding communicable diseases.
If an exposed individual is informed of the status of a
source patient with regard to a communicable disease
pursuant to this section, the exposed individual shall be
informed that he or she is subject to existing
confidentiality protections for any identifying information
about the communicable disease test results, and that
medical information regarding the communicable disease
status of the source patient shall be kept confidential and
may not be further disclosed, except as otherwise
authorized by law. The exposed individual shall be informed
of the penalties for which he or she would be personally
liable for violation of Section 120980.
(Health & Safety Code § 120262.)
Existing law provides that peace officer, firefighter, custodial
officer, a custody assistant, a non-sworn uniformed employee of
a law enforcement agency whose job entails the care or control
of inmates in a detention facility, a non-sworn employee of a
law enforcement agency whose job description entails the
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collection of fingerprints, or emergency medical personnel who,
while acting within the scope of his or her duties, is exposed
to an arrestee's blood or bodily fluids, shall do the following:
Prior to filing a petition with the court, a
licensed health care provider shall notify the
arrestee of the bloodborne pathogen exposure and
make a good faith effort to obtain the voluntary
informed consent of the arrestee or the arrestee's
authorized legal representative to perform a test
for Human Immunodeficiency Virus (HIV), hepatitis B,
and hepatitis C. The voluntary informed consent
shall be in writing. Once consent is given in
writing, the arrestee shall provide three specimens
of blood for testing as provided in this chapter.
If voluntary informed consent is not given in
writing, the affected individual may petition, ex
parte, the court for an order requiring testing as
provided in this chapter. The petition shall
include a written certification by a health care
professional that an exposure, including the nature
and extent of the exposure, has occurred. (Health &
Safety Code § 121060 (a).)
Existing law provides that the court shall promptly conduct a
hearing upon a petition filed pursuant to the above provisions.
If the court finds that probable cause exists to believe that
a possible bloodborne pathogen exposure, as defined in Section
121060.1, took place between the arrestee and the peace
officer, firefighter, custodial officer, as defined, custody
assistant, as defined, a non-sworn uniformed employee of a law
enforcement agency whose job entails the care or control of
inmates in a detention facility, or emergency medical
personnel, as specified, the court shall order that the
arrestee provide three specimens of blood for testing as
specified. (Health & Safety Code § 121060 (b).)
Existing law states that, except as provided below, copies of
the test results shall be sent to the arrestee, each peace
officer, firefighter, custodial officer, as defined, custody
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assistant, as defined, non-sworn uniformed employee of a law
enforcement agency whose job entails the care or control of
inmates in a detention facility, and emergency medical
personnel named in the petition and his or her employing
agency, officer, or entity, and if the arrestee is incarcerated
or detained, to the officer in charge and the chief medical
officer of the facility where the person is incarcerated or
detained. (Health & Safety Code § 121060 (c)(1).)
Existing law states that the person whose sample was tested
shall be advised that he or she will be informed of the
hepatitis B, hepatitis C, and HIV test results only if he or she
wishes to be so informed. If the person consents to be informed
of the hepatitis B, hepatitis C, and HIV test results, then he
or she shall sign a form documenting that consent. The person's
refusal to sign that form shall be construed to be a refusal to
be informed of the hepatitis B, hepatitis C, and HIV test
results. (Health & Safety Code § 121060 (c)(2).)
Existing law states that, except as otherwise provided under
this section, all confidentiality requirements regarding medical
records shall apply to the test results obtained. (Health &
Safety Code § 121060 (c)(3).)
This bill states that if there is probable cause to believe a
person has committed a battery by gassing, when it is deemed
medically necessary to protect the health of a person who was
gassed, a law enforcement agency may order the individual
suspected of gassing to receive an examination or test
examination or test for hepatitis, tuberculosis, or any other
disease that is capable of being transmitted from contact with
the human fluid or substance involved, on either a voluntary or
involuntary basis immediately after the event, and periodically
thereafter as determined to be necessary in order to ensure that
further disease transmission does not occur. These decisions
shall be consistent with an occupational exposure as defined by
the federal Centers for Disease Control and Prevention. The
results of any examination or test would be provided to the
person who has been subject to a reported or suspected violation
of this section. Any person performing tests, transmitting test
results, or disclosing information pursuant to this section
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would be immune from civil liability for any action taken in
accordance with this section.
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
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
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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.
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.
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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.
COMMENTS
1. Legislative History
This legislation was gutted and amended on June 16, 2014. Prior
to that and as passed by the Assembly, the bill concerned the
misuse of emergency medical services. This bill was re-referred
to this committee on June 18, 2014.
2. Need for the Legislation
The author states, in part:
AB 2406 has been amended to make it a misdemeanor to
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intentionally place or throw, or cause to be placed or
thrown, upon peace officers, hospital or nursing home
employees, ambulance attendant, firefighter, emergency
medical technician of custodian officers, any human
excrement or other bodily fluids or bodily substances
or any mixture containing human excrement or other
bodily fluids or bodily substances that results in
contact with the person's skin, hair, or membranes.
In addition to the misdemeanor penalty, AB 2406 will
provide a means to test the person for communicable
diseases such as hepatitis, tuberculosis, or blood
borne pathogens.
3. Effect of the Legislation: Battery
Under existing law, throwing a bodily fluid at an officer, or a
number of other codified classifications, would be considered a
battery under penal code section 243(b) and the defendant would
face a fine of up to $2000, one year in county jail, or both.
This legislation creates a new crime that criminalizes throwing
bodily fluid at an officer, and a number of other
classifications, and makes the penalty a fine of up to $1000,
six months in county jail, or both.
Where two statutes define a defendant's conduct as a crime, the
more specific offense is presumed to apply, particularly where
the more specific offense statute is enacted after the more
general statute. The Legislature is deemed to be aware of the
general statute, such that the Legislature intended only for the
more specific statute to apply if that statute describes the
defendant's conduct. While the rule that a specific statute
prevails over a more general statute does not apply where the
two statutes can be reconciled or harmonized, the rule is
applied on a case-by-case basis. (In re Greg F. (2012 ) 55
Cal.4th 393, 407-408.) Here, someone who gases an officer
could argue that the new crime created in the legislation is
more specific-as it has the element of "gassing"-and, thus, be
subject to the reduced punishment prescribed by this
legislation.
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SHOULD THE PENALTY FOR GASSING A LAW ENFORCEMENT OFFICER BE
REDUCED?
4. Effect of the Legislation: Involuntary Medical Testing
Existing law sets forth clear procedures that a peace officer,
firefighter, custodial officer, a custody assistant, a nonsworn
uniformed employee of a law enforcement agency whose job entails
the care or control of inmates in a detention facility, a
nonsworn employee of a law enforcement agency whose job
description entails the collection of fingerprints, or emergency
medical personnel, have to follow when they are exposed to an
arrestee's blood or bodily fluids. (Health and Safety Code §
121060.) This procedure was added by AB 2737 (Feuer, of 2008)
to address situationS in which certain individuals come into
contact with bodily fluids-
At the present time, a court order compelling a
source person to have their blood drawn and tested
for communicable diseases may only be sought under
a fairly restrictive condition. A court order may
be sought when an arrestee/defendant resisted
arrest (the arrestee/defendant must actually be
charged with an assault) with the official duties
of a peace officer, firefighter, or emergency
medical personnel by biting, scratching, spitting,
or transferring blood or bodily fluids. There are
situations in which public safety personnel may
suffer a Blood Borne Pathogen Exposure (BBPE) but
may not meet the legal requirement of
"interference" in order to obtain source person
testing. For example, this might occur if, during
the course of a body search suspect, a bloody
needle punctures an officer's finger, and that
suspect is subsequently arrested for drug
possession. It might only be possible to obtain
court order ordered blood testing of the suspect if
he or she had resisted arrest. If the statute were
amended, testing of the source person, and hence
improved medical and psychological treatment of the
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personnel would be permitted.
Under current law it can take up to a week for a
court to order the test. AB 2737 can cut the time
to one day. Days and even hours are very important
in situations of this magnitude.
(Author's Statement, Senate Public Safety Analysis
of AB 2737 (Feuer, of 2008.)
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No evidence has been provided to the committee demonstrating
that the current process is not sufficient and why a new
procedure, that provides less process to the individual being
tested, is necessary. Specifically, this legislation would allow
a law enforcement agency to order an individual suspected of
gassing to receive an examination or test examination or test
for hepatitis, tuberculosis, or any other disease that is
capable of being transmitted from contact with the human fluid
or substance involved, on either a voluntary or involuntary
basis immediately after the event, and periodically thereafter
as determined to be necessary in order to ensure that further
disease transmission does not occur. This legislation,
additionally, requires the results of any examination or test to
be provided to the person who has been subject to a reported or
suspected violation. The proposed legislation raises a number
of concerns.
As drafted, law enforcement, without seeking a court order,
could compel anyone suspected of gassing a listed party to
submit to a blood test. This seemingly runs afoul of a person's
4th amendment rights and corresponding provisions in the
California Constitution. This legislation would, additionally,
require the results of any examination or test be provided to
the person who has been subject to a reported or suspected
violation of this section. There are, however, no limitations
on the use of the information by that person.
DOES THIS LEGISLATION VIOLATE THE 4TH AMENDMENT?
DOES THIS LEGISLATION RAISE MEDICAL PRIVACY CONCERNS?
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