BILL ANALYSIS Ó
AB 2603
Page 1
Date of Hearing: April 8, 2014
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2603 (V. Manuel Pérez) - As Introduced: February 21, 2014
SUMMARY : Clarifies that a patient's representative may pick up
and transport prescription medications. Specifically this bill :
Extends the prescription defense to a person other than the
patient for whom a controlled substance was prescribed, if the
substance is possessed with the express authorization of, or at
the direction of, the prescription holder.
EXISTING LAW :
1)Classifies controlled substances in five schedules according
to their danger and potential for abuse. Schedule I
controlled substances have the greatest restrictions and
penalties, including prohibiting the prescribing of a Schedule
I controlled substance. (Health & Saf. Code, §§ 11054 to
11058.)
2)Makes it a crime to possess specified controlled substances
without a valid prescription from a licensed physician,
dentist, podiatrist, or veterinarian. (Health & Saf. Code, §§
11350 and 11377.)
3)Makes it a crime to transport for sale specified controlled
substances unless upon the written prescription of a licensed
physician, dentist, podiatrist, or veterinarian. (Health &
Saf. Code § 11352 and 11379.)
4)Defines "prescription" for purposes of the Controlled
Substances Act (CSA), as "an oral order or electronic
transmission prescription for a controlled substance given
individually for the person(s) for whom prescribed, directly
from the prescriber to the furnisher or indirectly by means of
a written order of the prescriber." (Health & Saf. Code, §
11027, subd. (a).)
5)Defines "ultimate user" for purposes of the CSA, as "a person
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who lawfully possesses a controlled substance for his own use
or for the use of a member of his household or for
administering to an animal owned by him or by a member of his
household." (Health & Saf. Code, § 11030.)
6)Defines "agent" for purposes of the CSA, as "an authorized
person who acts on behalf of or at the direction of a
manufacturer, distributor, or dispenser. It does not include
a common or contract carrier, public warehouseman, or employee
of the carrier or warehouseman." (Health & Saf. Code, §
11003.)
7)Provides that a dangerous drug sold or delivered to a person
within California shall be transferred, sold or delivered only
to:
a) An entity licensed by the Pharmacy Board;
b) A manufacturer;
c) An ultimate user; or
d) The ultimate user's agent. (Bus. & Prof. Code, §
4059.5, subd. (b).)
8)States that no person shall possess any controlled substance,
except that furnished to a person upon the prescription of a
physician, dentist, podiatrist, veterinarian, or other
specified persons in the medical field. (Bus. & Prof. Code, §
4060.)
9)States that no prescription for a controlled substance shall
be furnished to any person unknown and unable to properly
establish his or her identity. (Bus. & Prof. Code, § 4075.)
10)Allows the Pharmacy Board to establish procedures to prevent
unauthorized persons from receiving prescription drugs
furnished to a patient or a representative of the patient.
(Bus. & Prof. Code, § 4075.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 2603 was
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introduced as a result of a recent court ruling filed January
3, 2014, People v. Carboni, in which the presiding judge ruled
that only prescription holders can possess and transport their
prescription drugs. For many ill people who are immobile, or
lack transportation, this ruling could be problematic because
there is no defense or protections for the person who is
trying to help them get their medication from the pharmacy.
This is a serious concern for the many seniors who live in my
rural and medically underserved district, where it is not
uncommon for a person to rely on a family member, friend, or
caretaker to pick-up his/her prescription drugs.
"The Carboni ruling would in effect criminalize the act of
possession and/or transport of prescription drugs, even for
the purpose of simply trying to get those medications to the
person who needs them. People who are trying to do a good
deed for an infirm family member or friend should not be
punished for trying to help. By adding clarity to Health and
Safety code sections 11350 and 11377, AB 2603 helps ensure
that ill people who must rely on someone to get them their
meds can do so without fear.
"Moreover, this bill will address an existing conflict between
the Business & Professions code (4059.5), which allows a
pharmacist to dispense prescription drugs to the patient's
agent or representative, and the Health & Safety code, which
provides no protections, or defense, for the patient's agent
when in possession of such medication. This bill will not
protect someone who is found to have the intention to sell the
drugs, or who is abusing drugs that were not prescribed to
them, regardless if they ultimately delivered the drugs to the
prescription holder."
2)Impetus for this Bill : In People v. Carboni (2014) 222
Cal.App.4th 834, the Third District Court of Appeal held that
the prescription defense does not apply to third-persons for
whom the prescription was not written. Following a traffic
stop, appellant was found in possession of 200 pills in a
prescription bottle with a scratched-off label. Appellant did
not have a prescription for the pills which were morphine,
hydrocodone, and valium. He was charged with possession and
transportation of controlled substances. (Former Health &
Saf. Code, §§ 11350, 11352 and 11377). At trial, the defense
presented evidence that appellant had been assisting an ill
friend to move. Multiple people testified that the pills
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belonged to the friend that he had valid prescriptions for
them. (Id. at pp.836-840.) Notwithstanding this, the trial
court refused to instruct on the prescription defense, which
provides that a person is not guilty of possessing or
transporting a controlled substance if he or she has a valid
written prescription for that substance by a licensed
physician. (Id. at p. 841.) Appellant was convicted and
appealed, alleging the trial court erred in failing to
instruct the jury on the application of the prescription
defense. (Id. at p. 842.)
The appellate court reviewed the language of the relevant Health
and Safety Code sections, each of which contained the words,
"unless upon the written prescription of a physician."
(People v. Carboni, supra, 222 Cal.App.4th at p. 842.)
Applying the rules of statutory construction, the court found
that this language clearly and unambiguously limits the
prescription defense to the person for whom the prescription
was written. (Ibid.) The court stated it is not enough that
the prescription drugs be issued under a valid prescription
and subsequently possessed or transported by another with an
innocent reason for doing so. (Ibid.) To allow the
prescription defense to apply to someone other than the person
for whom the prescription is written would rewrite the
statutory requirements of the criminal offenses at issue.
(Id. at p. 843.)
The court acknowledged that its holding creates a legal
conundrum by not allowing the person who merely picks up a
relative's prescription at the pharmacy, fully intending to
deliver it to the prescription-holder, to assert the defense.
Nevertheless the court declined to expand the scope of the
prescription defense, stating it is for the Legislature, not
the court, to do so. (People v. Carboni, supra, 222
Cal.App.4th at p. 844.)
The dissenting justice disagreed, noting that another rule of
statutory construction teaches "that the language of a statute
should not be given a literal meaning if doing so would result
in absurd consequences." (People v. Carboni, supra, 222
Cal.App.4th at p. 849.) The dissent noted that, "Under the
majority's construction, common life experiences would be
criminalized, such as the act of a person picking up a
prescription from the pharmacy for an ill spouse.? Baby boomer
adults would be prevented from obtaining their parents'
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medications from the pharmacy, transporting those medications,
and otherwise possessing those medications for the benefit of
their parents. Friends, neighbors and others who might also
assist a patient would face the same prohibition." (Id. at p.
850.)
The dissent also noted that the CSA defines the "ultimate user"
of a controlled substance more broadly than the prescription
holder, including both the person who lawfully possesses the
drug for his or her own use, or for the use of a household
member. (People v. Carboni, supra, 222 Cal.App.4th at p. 851.)
Further, the Business and Professions Code related to pharmacy
law, contemplates that a pharmacist can dispense prescription
medication not only to the patient, but also to the patient's
agent or representative. (Id. at pp. 851-852.) For these
reasons, the scope of the prescription defense should include
application to a patient's agent who possesses or transports
drugs for the patient's benefit. (Id. at pp. 857-858.)
This bill clarifies that a patient's representative may
possess or transport prescription medications for a patient
without facing criminal prosecution.
3)Transportation Statutes : This bill amends statutes related to
possession of a controlled substance. It does not amend the
statutes relating to transportation of controlled substances.
As noted in the opinion, the transportation statutes implicate
the same policy concerns.
However, last year, AB 721 (Bradford), Chapter 504, Statutes of
2013, made the transportation of specified controlled
substances a felony only if the individual is transporting the
controlled substance for sale. In light of the recent
amendments to the relevant transportation statutes, the
prescription defense already seems to apply because unlawful
transportation is limited to transportation with the intent to
sell. (See Health & Saf. Code, §§ 11352, subd. (c), and
11379, subd. (c).)
4)Argument in Support : According to the California Attorneys
for Criminal Justice , the sponsor of this bill, "Currently,
pharmacy law provides that a pharmacist may dispense
prescribed medication to a patient's 'agent' or
'representative' pursuant to Business and Professions code
4059.5. However, a recent appellate court case, People v.
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Carboni, has created a conflict whereby criminalizing the
possession and transportation of prescription medicine by an
authorized representative for the prescription holder.
"The court in Carboni held that a prescription defense does not
extend to a person in possession or transporting prescription
medications because it is for the legislature, not the court,
to remedy this issue. The court's decision in restricting the
prescription defense, in theory, criminalizes the possession
and transportation of a prescribed controlled substance
dispensed at a pharmacy to a person intending merely to
possess and transport the prescription to a prescription
holder.
"This conflict in between Pharmacy law and the interpretation of
the Health and Safety Code relating to possession and drug
transportation is problematic. Every day, friends and family
pick up prescriptions for their children, ill family members,
or with express permission of another. Without clarification,
a person picking up a prescription at the local CVS can be
pulled over and charged with possession and drug
transportation. This seemingly innocuous act could result in
a potential a 3, 4, or 5 year felony.
"AB 2603 seeks to provide the legislative clarification
requested by the appellate court in Carboni, allowing the
possession and transportation of prescription medication by
persons authorized by and for the purposes of assisting the
prescription holder. This bill does not intend to create a
loophole for persons illegally in possession of prescription
medication. AB 2603 is a common sense clarification that would
prevent the criminalization of a common practice."
5)Argument in Opposition : The California District Attorneys
Association states, "While one can clearly think of specific
scenarios in which a prescription holder may need to authorize
someone to pick up and deliver their prescriptions, the
language that is currently in the bill is overly broad. Given
the addictive nature of prescription drugs and the potential
for abuse, it is imperative that any solution be narrowly
tailored to achieve the intent of the bill, while also keeping
controlled substances out of the hands of drug dealers, drug
abusers, and children."
6)Prior Legislation : AB 721 (Bradford), Chapter 504, Statutes
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of 2013, made the transportation of specified controlled
substances a felony only if the individual is transporting the
controlled substance for sale.
REGISTERED SUPPORT / OPPOSITION :
Support
California Attorneys for Criminal Justice (Sponsor)
California Advocates for Nursing Home Reform
California Public Defenders Association
California Senior Legislature
Congress of California Seniors
Consumer Federation of California
Legal Services for Prisoners with Children
Tax Payers for Improving Public Safety
Opposition
California District Attorneys Association
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744