BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 139| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- UNFINISHED BUSINESS Bill No: SB 139 Author: Galgiani (D), et al. Amended: 8/18/16 Vote: 27 - Urgency SENATE PUBLIC SAFETY COMMITTEE: 7-0, 7/14/15 AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8 SENATE FLOOR: 40-0, 9/1/15 AYES: Allen, Anderson, Bates, Beall, Berryhill, Block, Cannella, De León, Fuller, Gaines, Galgiani, Glazer, Hall, Hancock, Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Moorlach, Morrell, Nguyen, Nielsen, Pan, Pavley, Roth, Runner, Stone, Vidak, Wieckowski, Wolk ASSEMBLY FLOOR: 77-0, 8/22/16 - See last page for vote SUBJECT: Controlled substances SOURCE: California Narcotics Officers Association DIGEST: This bill (1) provides that possession of specified synthetic cannabinoids or stimulants is a crime, as follows: First offense is an infraction; a second offense is an infraction or misdemeanor, a third or subsequent offense is a misdemeanor; (2) provides that a person charged with possession of a one of these drugs is eligible for a preguilty plea education and treatment program; (3) states that relapse is expected in treatment such that a program participant should not be dismissed for a positive drug test if he or she is making SB 139 Page 2 any progress; (4) includes legislative findings that drug abuse is a chronically relapsing condition and that treatment is cumulative; (5) adds numerous specified drugs or chemicals to the existing list of prohibited synthetic cannabinoids; and (6) adds specified synthetic stimulants to the statutory list of prohibited drugs of that type. Assembly Amendments (1) include a pre-plea penalty and education or treatment system for a person found in possession of synthetic cannabinoid or stimulant; (2) make legislative findings that drug abuse is a chronically relapsing condition for which treatment is cumulative; (3) provide an exemption from criminal penalties for approved research; (4) clarify that drug commerce defendants are not eligible for the preplea diversion program; (5) state, specifically, that analogs of synthetic cannabinoids or stimulants are prohibited substances; and 6) add an urgency clause. ANALYSIS: Existing law: 1) Provides that any person who possesses for sale, sells or furnishes any specified synthetic cannabinoid compound shall be punished by imprisonment in the county jail for up to six months, a fine of up to $1,000, or both. (Health & Saf. Code § 11357, subd. (a.) 2) Provides that any person who sells, dispenses, distributes, or gives the stimulant substances naphthylpyrovalerone or cathinone, or specified variations of these drugs, or who offers to do such acts, is guilty of a misdemeanor, punishable by a jail term of up to six months, a fine of up to $1,000, or both. (Health & Saf. Code § 11375.5.) 3) Defines "synthetic cannabinoid compound" as any of the SB 139 Page 3 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. (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).): SB 139 Page 4 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 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 SB 139 Page 5 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) Provides that the entry of judgment may be deferred for a defendant charged with specific controlled substance offenses if the defendant meets specific criteria, including that he or she has no prior convictions for any offense involving a controlled substance and no prior felony convictions within five years. (Pen. Code § 1000.) 10)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.) 11)Provides that upon successful completion of a deferred entry of judgment or diversion, 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).) This bill: 1) Expands the definition of a synthetic cannabinoid compound by listing additional chemical categories and myriad individual chemicals as synthetic cannabinoids. 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 SB 139 Page 6 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 legislative findings that drug abuse is a chronically relapsing condition, relapse is to be expected in treatment and treatment is cumulatively beneficial. 5) Provides that a person in a treatment and education program for possession of a synthetic cannabinoid or stimulant should not be dismissed from the program for a positive test for drugs or alcohol if the person is otherwise making progress in the program. 6) Makes technical changes to the definition of synthetic stimulant compound. 7) Provides - consistent with SB 1036 (Herndandez), passed by the Legislature on August 19, 2016 - that an analog of a specifically enumerated synthetic cannabinoid shall be considered a prohibited synthetic cannabinoid. Background According to the author: Synthetic cannabinoids are a growing problem. 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 SB 139 Page 7 bill last year, simple possession of these drugs was actually perfectly legal under state law, despite their well-documented danger. 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 139 will close these loopholes in state law and allow law enforcement to be better equipped in getting these drugs away from our communities. In 2014, the Senate Public Safety Committee heard another bill - SB 1283 (Galgiani, Chapter 372) - concerning synthetic cannabinoids and synthetic stimulant drugs. SB 1283 becomes effective in 2016. SB 1283 was amended in this Committee to reflect the same basic penalty structure as in this bill. That is, a first offense is an infraction, punishable by a fine of up to $250. A second offense is an infraction or a misdemeanor. A third or subsequent offense is a misdemeanor. However, the bill included novel provisions concerning the education and treatment of defendants found to be in possession of a listed synthetic drug. The amendments provided that a defendant could elect to participate in an education program and obtain a return of his or her fine upon successful completion of the program. 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. THC binds to CB1 and CB2 receptors. CB1 cannabinoids have psychoactive properties. (http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3567606/) Typically statutes, news reports and academic works concern CB1 synthetic cannabinoids. Synthetic cannabinoid compounds were developed in basic medical research for controlled studies of the functions of cannabinoid receptors in the brain and body. These receptors bind with endogenous cannabinoids (produced naturally in the body) and with the active chemicals in cannabis. SB 139 Page 8 Recently, emergency room (ER) visits for synthetic cannabinoids have spiked. As use of these drugs appears to be dropping, the surge in ER visits is likely the result of a dangerous change in chemical composition of the drugs. One who obtains a synthetic cannabinoid can only guess as to its composition and effects. (http://www.nytimes.com/2015/04/25/health/surge-in-hospital-visit s-linked-to-a-drug-called-spice-alarms-health-officials.html) The University of Michigan Monitoring the Future survey first asked 8th and 10th graders about their use of synthetic [cannabinoids] in 2011. The survey found that in 2012 annual prevalence rates were 4.4% and 8.8%, respectively. Use in all grades dropped in 2013, especially among 12th graders. The declines continued into 2014. Awareness of the dangers of synthetic cannabinoid was up sharply. (http://monitoringthefuture.org/pubs/monographs/mtf-overview2014. pdf.) The Legislature has passed SB 1036 (Hernandez), which provides that any analog of a synthetic cannabinoid shall be treated as a specifically prohibited synthetic cannabinoid. This bill appears intended to describe the known universe of synthetic cannabinoids. SB 1036 is intended to cover any version of a synthetic cannabinoid that is developed after this bill becomes effective. Discussions with experts in the field indicate that it may be difficult to establish that any particular chemical is an analog of a specifically prohibited synthetic cannabinoid, as the drugs can be chemically unique and varied in effects. Recent research has compared the effectiveness of varying forms of court-based drug treatment with other forms or sources of treatment demand. University of California Los Angeles studies of the effectiveness of the Substance Abuse and Crime Prevention Act of 2000 (SACPA) were released in 2003 and 2006. SACPA requires drug treatment without incarceration for non-violent drug possession. The SACPA model was as effective as drug court or voluntary treatment models. Improvements in funding allocations and programs would have produced better results. SB 139 Page 9 (http://www.uclaisap.org/prop36/documents/sacpa_costanalysis.pdf. ) An extensive 2007 study of 474 drug offenders in drug court in Maricopa County Arizona (the Phoenix area) compared the outcomes in drug court treatment for persons who were subject to jail sanctions against those who were not subject to sanctions. The study found that the threat of jail sanctions did not affect the participant's rate of retention in or completion of the program. This bill allows a participant in a true diversion programs (no guilty plea is required) to remain in the program after a positive drug or alcohol test if he or she is otherwise making progress. FISCAL EFFECT: Appropriation: No Fiscal Com:YesLocal: Yes According to the Assembly Appropriations Committee: "Minor, nonreimbursable costs for enforcement and incarceration, offset to a degree by increased fine revenue." SUPPORT: (Verified8/22/16) California Narcotic Officers Association (source) Association for Los Angeles Deputy Sheriffs California Association of Code Enforcement Officers California College and University Police Chiefs Association California District Attorneys Association California Police Chiefs Association California State Sheriffs' Association Los Angeles Police Protective League Riverside Sheriffs' Association OPPOSITION: (Verified8/22/16) SB 139 Page 10 American Civil Liberties Union Drug Policy Alliance Legal Services for Prisoners with Children ASSEMBLY FLOOR: 77-0, 8/22/16 AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon NO VOTE RECORDED: Melendez, Quirk, Ting Prepared by:Jerome McGuire / PUB. S. / 8/30/16 20:28:23 **** END ****