BILL ANALYSIS Ó
SB 139
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Date of Hearing: June 28, 2016
Counsel: David Billingsley
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
SB
139 (Galgiani) - As Amended June 15, 2016
SUMMARY: Raises penalties for possession of synthetic
cannabinoids and synthetic stimulants. Expands list of
substances prohibited as synthetic cannabinoids. Specifically,
this bill:
1)Expands the definition of a synthetic cannabinoid compound by
listing additional chemical categories as synthetic
cannabinoids.
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2)Provides that a first offense of using or possessing a
synthetic stimulant compound or synthetic cannabinoid is
punishable as an infraction, a second offense is punishable as
an infraction or a misdemeanor, and a third or subsequent
offense is punishable as a misdemeanor.
3)Authorizes a person charged with certain crimes relating to
synthetic stimulant compounds or synthetic cannabinoid
compounds to be eligible to participate in a preguilty plea
drug court program.
4)Makes technical changes to the definition of synthetic
stimulant compound.
EXISTING LAW:
1)Specifies that every person who sells, dispenses, distributes,
furnishes, administers, or gives, or offers to sell, dispense,
distribute, furnish, administer, or give, or possesses for
sale any synthetic cannabinoid compound, or any synthetic
cannabinoid derivative, to any person, is guilty of a
misdemeanor, punishable by imprisonment in a county jail not
exceeding six months, or by a fine not exceeding one thousand
dollars ($1,000), or by both that fine and imprisonment.
(Health & Saf. Code, § 11357.5, subd. (a).)
2)States that every person who uses or possesses any synthetic
cannabinoid compound, or any synthetic cannabinoid derivative,
is guilty of an infraction, punishable by a fine not to exceed
two hundred fifty dollars ($250). (Health & Saf. Code, §
11357.5, subd. (b).)
3)Defines "synthetic cannabinoid compound" as any of the
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following substances (Health & Saf. Code, § 11357.5, subd.
(c).):
a) 1-pentyl-3-(1-naphthoyl)indole (JWH-018);
b) 1-butyl-3-(1-naphthoyl)indole (JWH-073);
c) 1-[2-(4-morpholinyl)ethyl]-3-(1-naphthoyl)indole
(JWH-200);
d)
5-(1,1-dimethylheptyl)-2-[(1R,3S)-3-hydroxycyclohexyl]-phenol (CP-47,497); and
e)
5-(1,1-dimethyloctyl)-2-[(1R,3S)-3-hydroxycyclohexyl]-phenol (cannabicyclohexanol; CP-47,497 C8 homologue).
4)Provides that every person who sells or distributes, or offers
to sell or distribute, any synthetic stimulant compound, as
specified, to any person, or who possesses that compound for
sale, is guilty of a misdemeanor, punishable by imprisonment
in a county jail not to exceed six months, or by a fine not to
exceed one thousand dollars ($1,000), or by both that fine and
imprisonment. (Health & Saf. Code, § 11375.5, subd. (a).)
5)Specifies that every person who uses or possesses any
synthetic stimulant compound specified in subdivision (c), or
any synthetic stimulant derivative, is guilty of an
infraction, punishable by a fine not to exceed two hundred
fifty dollars ($250). (Health & Saf. Code, § 11375.5, subd.
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(b).)
6)Provides that the list of prohibited synthetic stimulants
include any quantity of the following substances, as
specified, within any of the following specific chemical
designations (Health & Saf. Code, § 11375.5, subd. (c).):
a) Naphthylpyrovalerone whether or not further substituted
in the naphthyl ring to any extent with alkyl, alkoxy,
alkylenedioxy, haloalkyl, or halide substituents, whether
or not further substituted in the naphthyl ring by one or
more other univalent substituents, or whether or not
further substituted in the carbon chain at the 3-, 4-, or
5-position with an alkyl substituent; and
b) 2-amino-1-phenyl-1-propanone (cathinone) or variation in
any of the following ways:
i) By substitution in the phenyl ring to any extent
with alkyl, alkoxy, alkylenedioxy, haloalkyl, or halide
substituents, whether or not further substituted in the
phenyl ring by one or more other univalent substituents.
ii) By substitution at the 3-position with an alkyl
substituent;
iii) By substitution at the nitrogen atom with alkyl,
dialkyl, or benzyl groups, or by inclusion of the
nitrogen atom in a cyclic structure; and
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7)Specifies that a controlled substance analog shall be treated
the same as specified controlled substances of which it is an
analog. (Health & Saf. Code, § 11401, subd. (a).)
8)Provides that, except as specified, the term "controlled
substance analog" means either of the following:
a) A substance the chemical structure of which is
substantially similar to the chemical structure of
specified controlled substances; or (Health & Saf.Code, §
11401, subd. (b)(1).)
b) A substance which has, is represented as having, or is
intended to have a stimulant, depressant, or hallucinogenic
effect on the central nervous system that is substantially
similar to, or greater than, the stimulant, depressant, or
hallucinogenic effect on the central nervous system of
specified controlled substances. (Health & Saf. Code, §
11401, subd. (b)(2).)
9)Specifies that the term "controlled substance analog" does not
mean "any substance for which there is an approved new drug
application as specified under the federal Food, Drug, and
Cosmetic Act or which is generally recognized as safe and
effective as specified by the federal Food, Drug, and Cosmetic
Act." (Health & Saf. Code, § 11401, subd. (c)(1).)
10)Lists controlled substances in five "schedules" - intended to
list drugs in decreasing order of harm and increasing medical
utility or safety - and provides penalties for possession of
and commerce in controlled substances. (Health & Saf. Code §§
11350-11401.)
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11)Requires non-violent drug possession offenders to be offered
drug treatment on probation, which shall not include
incarceration as a condition of probation, in the form of,
Proposition 36 (Nov. 2000 election), the Substance Abuse and
Crime Prevention Act of 2000 (SACPA). (Pen. Code, § 1210.1.)
12)Provides that non-violent drug possession offenses include:
a) Unlawful use, possession for personal use, or
transportation for personal use of a controlled substance;
and,(Pen. Code, § 1210, subd. (a).)
b) Being under the influence of a controlled substance.
(Pen. Code, § 1210, subd. (a).)
FISCAL EFFECT: Unknown.
COMMENTS:
1)Author's Statement: According to the author, "Synthetic
cannabinoid compounds have become a growing problem in our
community. Part of the reason that drugs dealers are having so
much success marketing the drug to teenagers and young adults
is that they are able to market them as being legal. Up until
my bill last year, simple possession of these drugs was
actually perfectly legal under state law. This is despite
their well-documented danger. Now it has come to my attention
that underground chemists skirt the law by slightly altering
the chemical compounds of these drugs, to come up with new
versions, which technically, are NOT illegal yet. Senate Bill
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139 will close these loopholes in state law and allow law
enforcement to be better equipped in getting these drugs away
from our communities."
2)Synthetic Cannabinoids: Synthetic cannabinoids come in two
basic forms. CB1 cannabinoids bind to CB1 cannabinoid
receptors in the brain. CB2 cannabinoid receptors bind to
cells throughout the body that are largely involved in
regulating the immune system, although their full properties
of CB2 are not known. It appears that CB2 cannabinoids could
be used to treat inflammation. (THC binds to CB1 and CB2
receptors.) CB1 cannabinoids have psychoactive properties.
Typically statutes, news reports and academic works concern
CB1 synthetic cannabinoids.
The European Monitoring Centre for Drugs and Drug Addiction
(EMCDDA) is a European Union agency that "exists to provide
the EU ? with a factual overview of European drug problems and
a solid evidence base to support the drugs debate."
The EMCDDA Website includes the Following Information about
Synthetic Cannabinoids:
Synthetic cannabinoids ?. bind to the same cannabinoid
receptors in the brain [as THC] ? More correctly
designated as cannabinoid receptor agonists, they were
developed over the past 40 years as therapeutic
agents. ?However, it proved difficult to separate the
desired properties from unwanted psychoactive effects.
Although often referred to simply as synthetic
cannabinoids [or synthetic marijuana], many of the
substances are not structurally related to the
so-called "classical" cannabinoids like THC?
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?[L]ittle is known about the detailed pharmacology and
toxicology of the synthetic cannabinoids and few
formal human studies have been published. It is
possible that, apart from high potency, some
cannabinoids could have? long half-lives?leading to a
prolonged psychoactive effect. ? [T]here could [also]
be considerable ? batch variability? in terms of
substances present and ?quantity.
http://www.emcdda.europa.eu/topics/pods/synthetic-canna
binoids
Recent EMCDD Data on Synthetic Cannabinoids Include:
A synthetic cannabinoid, JWH-018, was first detected in
"Spice" products in 2008.
81 new psychoactive substances were reported to EMCDDA in
2013, 29 were synthetic cannabinoids.
105 synthetic cannabinoids in total [were] monitored by EU
Early Warning System [in January of 2014].
14 recognizable chemical families of synthetic cannabinoids
are known.
The EMCDD reports that most synthetic cannabinoids are
manufactured in China and shipped though legitimate
distribution networks. The White House Office of National
Drug Control Policy states that most synthetic cannabinoids
originate overseas, but that they are also being made on a
small scale in the United States.
https://www.whitehouse.gov/ondcp/ondcp-fact-sheets/synthetic-dr
ugs-k2-spice-bath-salts
The EMCDD reported on adverse consequences of synthetic
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cannabinoid use:
The adverse health effects associated with synthetic
cannabinoids are linked to both the intrinsic nature
of the substances and to the way the products are
produced. There have been numerous reports of
non-fatal intoxications and a small number of deaths
associated with their use. As noted above, some of
these compounds are very potent; therefore the
potential for toxic effects is high. Harm may result
from uneven distribution of the substances within the
herbal material, result[ing] in products containing
doses that are higher than intended.
The reported adverse effects of synthetic cannabinoid
products include agitation, seizures, hypertension,
emesis (vomiting) and hypokalemia (low potassium
levels). ?There is some evidence?that synthetic
cannabinoids can be associated with psychiatric
symptoms, including psychosis. There are also
investigations underway in the US regarding links
between the use of synthetic cannabinoids? and acute
kidney injury and recently, a case report associated
the use of the cannabinoid JWH-018 with?strokes in two
otherwise healthy males.
http://www.emcdda.europa.eu/topics/pods/synthetic-canna
binoids
3)Synthetic Stimulant Chemicals: It appears that the synthetic
stimulant chemicals included in this bill are closely related
to cathinone, the psychoactive chemical in the khat plant,
which is commonly used in the Middle East. Khat and Cathinone
are included in Schedule II stimulants. (Health and Saf. Code
§ 11055, subd. (d)(7)-(8).) Without this bill, it appears
that possession of one of the specified synthetic chemicals
would be a crime through the analog statute. The analog
statute provides that any drug that has a chemical structure
or properties that are similar to a scheduled drug can be the
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subject of prosecution as though the drug were included in the
schedules.
The United Kingdom Advisory Council on the Misuse of Drugs
(ACMD) is an agency of the UK Home Office that advises policy
makers on drug issues. In the past few years, the ACMD has
reported on the synthetic stimulants covered by this bill.
Synthetic cathinones are related to the parent compound
cathinone, one of the psychoactive principals in khat?
Cathinone derivatives are ?. analogues of a corresponding
phenethylamine. The group includes several substances that
have been used as active pharmaceutical ingredients ? Since
the mid-2000s, unregulated ring-substituted cathinone
derivatives have appeared in the European recreational drugs
market. The most commonly available cathinones sold on the
recreational market in the period up to 2010 appear to be
mephedrone (Figure 3) and methylone. [The drugs]? are claimed
to have effects similar to those of cocaine, amphetamine or
MDMA, but little is known of their detailed pharmacology.
Apart from cathinone [and other specified chemicals].
cathinone derivatives are not under international control.
?Like cocaine, the resulting 'high' of mephedrone is
short-lived. Consequently, users may consume several doses in
succession. ?[Specified chemical alterations] could [create]
more potent [drugs]. It should be noted that?PMA and PMMA are
known to have a particularly high toxicity, and this property
might translate to their analogues.
As noted above, cathinone is the main psychoactive chemical in
the khat plan. Use of khat in the United States has grown in
recent decades. The New York State Office of Alcohol and
Substance Abuse Services produces research and educational
material about drugs. The office has published the following
discussion of khat:
Khat has been grown for use as a stimulant for centuries in the
Horn of Africa and the Arabian Peninsula. There, chewing khat
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predates the use of coffee and is used in a similar social
context. Its fresh leaves and tops are chewed or?consumed as
tea, [producing] euphoria and stimulation. The stimulant
effect is most effective when the leaves are still fresh.
Khat use has traditionally been confined to the regions where
khat is grown, because only the fresh leaves have the desired?
effects. In recent years improved [transportation] has
increased the global distribution.
?In 1975, the [chemical] cathinone was isolated [from khat].
Cathinone is not very stable and breaks down to produce
cathine and norephedrine. These chemicals belong to the PPA
(phenylpropanolamine) family, a subset of the phenethylamines
related to amphetamines and the catecholamines, epinephrine
and norepinephrine.
4)Drug Analog Law in California: California law treats a
substance that is the chemical or functional equivalent of a
drug listed in Schedule I or II of the controlled substance
schedules the same as the scheduled drug. Such a substance is
defined as a controlled substance analog. California law
allows prosecution of a person for possession of, or commerce
in, of a substance that is an analog of a Schedule I or II
drug. (Health & Saf. Code, §§ 11400-11401.) The purpose of
the analog law is to prevent street chemists from
circumventing drug laws by synthesizing drugs which have
slight chemical or functional differences from the prohibited
drug.
Newly developed synthetic cannabinoids are not covered by the
California analog statute synthetic cannabinoids are not
included in Schedule I or II of the controlled substances
schedules. Illegal synthetic cannabinoids are separately
defined and prohibited.
California's drug analog law provides two ways to establish that
a substance is an analog of a drug. The first method relies
on demonstrating that the substance has a chemical structure
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which is "substantially similar" to the chemical structure of
the drug. (Health & Saf.Code, § 11401, subd. (b)(1).) The
second method requires a showing that the substance has, is
represented as having, or is intended to have a stimulant,
depressant, or hallucinogenic effect on the central nervous
system that is "substantially similar" to the effect of the
drug. (Health & Saf. Code, § 11401, subd. (b)(2).)
5)Alterations of Chemical Compounds in the Future: The author
has expressed concern that individuals manufacturing synthetic
cannabanoids can avoid criminal repercussions by slightly
changing the chemical compound of substance that is currently
on the list of substances prohibited on the list of synthetic
cannabinoids.
The Author states ". . . it has come to my attention that
underground chemists skirt the law by slightly altering the
chemical compounds of these drugs, to come up with new
versions, which technically, are NOT illegal yet." (Author's
Statement, supra.)
Existing law currently prohibits synthetic cannabinoids and
synthetic cannabinoid derivatives. (Health & Saf. Code, §
11357.5, subd. (c).) Existing law lists five chemical
compounds as synthetic cannabinoids. Each chemical compound
is described by its chemical structure. The author has chosen
to add a number of categories and substances (described by
their chemical structure) to the existing list of prohibited
synthetic cannabinoids. It is not clear that expanding the
list will prevent street chemists from continuing to tweak the
chemical structure of substances in the future in an attempt
to create a substance which is not included in the list.
SB 1036 (Hernandez) takes a different approach to prohibiting
synthetic cannabinoids which are not specifically listed under
the current statute. SB 1036 includes synthetic cannabinoids
within the existing analog statute. If synthetic cannabinoids
are included in the analog statute, the status of any
substances with new chemical compositions can be established
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through expert opinion as an analog of the synthetic
cannabinoids which are currently prohibited. SB 1036
(Hernández) is currently awaiting hearing in the Assembly
Appropriations Committee.
6)Argument in Support: According to The California Police
Chiefs Association, "SB 139 is aimed at prohibiting possession
of 'bath salts' and 'spice' and encouraging entry into
treatment programs. In addition, SB 139 is drafted so as to
be chemically current, thereby preventing bath salts and spice
manufacturers from chemically evading the law by making
molecular adjustments to their manufacturing process. Senate
Bill 139 will assure that Bath Salts cannot continue to cause
harm.
"Getting people into treatment is literally lifesaving. The
effects of these drugs include agitation, paranoia,
hallucinations, severe chest pains, increased pulse, high
blood pressure, hyper-aggressive behavior and suicidal
thinking/behavior/ Most disturbing, suicidal thinking/behavior
may last even after the stimulatory effects of the drugs have
worn off. Equally disturbing, the addictive nature of these
drugs is so powerful that - even with these symptoms - users
report an eagerness to go back and use again. Without
treatment intervention, persons using these drugs face a
continued downward cycle."
7)Argument in Opposition: According to The American Civil
Liberties Union of California, "Using the criminal justice
system to address substance abuse has led to a broken criminal
justice system and billions of wasted taxpayer dollars. The
state's current reliance on criminalization of drug abuse does
not work, and increasing penalties for simple possession of
the drugs targeted by SB 139 will do nothing to resolve
existing problems.
"Furthermore, the creation of new misdemeanors may further
exacerbate California's jail overcrowding problem. According
to Public Policy Institute of California, "[a]s of September
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2012, the average daily jail population was about 3,954
inmates over the statewide rated jail capacity of 76,910
inmates, set by the California Board of State and Community
Corrections. Twenty-one counties had an average daily
population greater than their rated capacity. Additionally,
18 counties were operating under court-ordered population caps
for at least one jail in their county..." Given that the
policy of incarceration for possession has been a dismal
failure in California and the nation, we should not undertake
to pass new penalties that will further strain the capacity of
California's county jails."
8)Related Legislation: SB 1036 (Hernández), would expand the
definition of controlled substance analog to include a
substance the chemical structure of which is substantially
similar to the chemical structure of a synthetic cannabinoid
compound. SB 1036 is awaiting hearing in the Assembly
Appropriation Committee.
9)Prior Legislation:
a) SB 1283 (Galgiani), Chapter 372, Statutes of 2013, makes
the use or possession of specified synthetic stimulant
compounds or synthetic stimulant derivatives, punishable by
a fine not exceeding $250.
b) AB 2420 (Hueso,) 2011-2012 Legislative Session, would
have created infraction and misdemeanor penalties for
possession or use of specified synthetic stimulants and
synthetic cannabinoids. AB 2420 failed passage in the
Assembly Public Safety Committee.
c) AB 486 (Hueso), Chapter 656, Statutes of 2011,
prohibited the sale, dispensing, distribution, furnishment,
administration or giving, or attempt to do so, of any
synthetic stimulant compound of any specified synthetic
stimulant derivative. Violation of this section is
punishable by imprisonment in a county jail not exceeding 6
months, or by a fine not exceeding $1,000, or by both that
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fine and imprisonment.
d) SB 420 (Hernandez), Chapter 420, Statutes of 2011,
prohibited the sale, dispensing, distribution,
administration or giving, or attempt to do so, of any
synthetic cannabinoid compound or any synthetic cannabinoid
derivative. Violation of this section is punishable by
imprisonment in a county jail not exceeding 6 months, or by
a fine not exceeding $1,000, or by both that fine and
imprisonment.
REGISTERED SUPPORT / OPPOSITION:
Support
California Narcotics Officers' Association (Sponsor)
Association of Orange County Deputy Sheriffs
California District Attorneys Association
California Police Chiefs Association
California Statewide Law Enforcement Association
City of San Marcos
Fraternal Order of Police, California State Lodge
Long Beach Police Officers Association
Sacramento County Deputy Sheriffs' Association
San Diego County District Attorney
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Opposition
American Civil Liberties Union of California
Drug Policy Alliance
Legal Services for Prisoners with Children
Analysis Prepared by:David Billingsley / PUB. S. / (916)
319-3744