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