BILL ANALYSIS
AB 1811
Page 1
Date of Hearing: March 23, 2010
Counsel: Meghan Masera
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1811 (Amminao) - As Amended: March 9, 2010
SUMMARY : Clarifies that "drug paraphernalia" are defined as
objects designed or marketed for use in ingesting or injecting
unlawful controlled substances. Specifically, this bill :
1)Revises the definition of "drug paraphernalia" to include
those same objects when designed or marketed for use in the
unlawful conducts of those acts, including the unlawful
ingesting, inhaling, or other introduction of those controlled
substances into the human body.
2)Defines the phrase "marketed for use" as advertising,
distributing, offering for sale, displaying for sale, or
selling in a manner which promotes the use of equipment,
products, or materials with controlled substances for unlawful
purposes.
3)Deletes the lists of specified items included in the
definition of "drug paraphernalia."
EXISTING LAW :
1)Defines "drug paraphernalia" to include all equipment,
products and materials of any kind which are designed for use
or marketed for use, in planting, propagating, cultivating,
growing, harvesting, manufacturing, compounding, converting,
producing, processing, preparing, testing, analyzing,
packaging, repackaging, storing, containing, concealing,
injecting, ingesting, inhaling, or otherwise introducing into
the human body a controlled substance in violation of this
division. Drug paraphernalia includes, but is not limited to
[Health and Safety Code (HSC) Section 11014.5 (a)]:
a) Kits designed for use or marketed for use in planting,
propagating, cultivating, growing, or harvesting of any
species of plant which is a controlled substance or from
AB 1811
Page 2
which a controlled substance can be derived;
b) Kits designed for use or marketed for use in
manufacturing, compounding, converting, producing,
processing, or preparing controlled substances;
c) Isomerization devices designed for use or marketed for
use in increasing the potency of any species of plant which
is a controlled substance;
d) Testing equipment designed for use or marketed for use
in identifying, or in analyzing the strength,
effectiveness, or purity of controlled substances;
e) Scales and balances designed for use or marketed for use
in weighing or measuring controlled substances;
f) Containers and other objects designed for use or
marketed for use in storing or concealing controlled
substances;
g) Hypodermic syringes, needles, and other objects designed
for use or marketed for use in parenterally injecting
controlled substances into the human body; and,
h) Objects designed for use or marketed for use in
ingesting, inhaling, or otherwise introducing marijuana,
cocaine, hashish, or hashish oil into the human body.
2)Defines the phrase "marketed for use" as advertising,
distributing, offering for sale, displaying for sale, or
selling in a manner which promotes the use of equipment,
products, or materials with controlled substances. [HSC
Section 11014.5(b).]
3)Allows a court or other authority, in determining whether an
object is drug paraphernalia, to consider, in addition to all
other logically relevant factors, the following [HSC Section
11014.5(c)]:
a) Statements by an owner or by anyone in control of the
object concerning its use;
b) Instructions, oral or written, provided with the object
concerning its use for ingesting, inhaling, or otherwise
AB 1811
Page 3
introducing a controlled substance into the human body;
c) Descriptive materials accompanying the object which
explain or depict its use;
d) National and local advertising concerning its use;
e) The manner in which the object is displayed for sale;
f) Whether the owner, or anyone in control of the object,
is a legitimate supplier of like or related items to the
community, such as a licensed distributor or dealer of
tobacco products; and,
g) Expert testimony concerning its use.
4)Provides that no person shall maintain or operate any place of
business in which drug paraphernalia is kept, displayed or
offered in any manner, sold, furnished, transferred or given
away unless such drug paraphernalia is completely and wholly
kept, displayed or offered within a separate room or enclosure
to which persons under the age of 18 years not accompanied by
a parent or legal guardian are excluded. Each entrance to
such a room or enclosure shall be signposted in reasonably
visible and legible words to the effect that drug
paraphernalia is kept, displayed or offered in such room or
enclosure and that minors, unless accompanied by a parent or
legal guardian, are excluded. [HSC Section 11364.5(a).]
5)States that no owner, manager, proprietor or other person in
charge of any room or enclosure, within any place of business,
in which drug paraphernalia is kept, displayed or offered in
any manner, sold, furnished, transferred or given away shall
permit or allow any person under the age of 18 years to enter,
be in, remain in or visit such room or enclosure unless such
minor person is accompanied by one of his or her parents or by
his or her legal guardian. [HSC Section 11364.5(b).]
6)Unless authorized by law, no person under the age of 18 years
shall enter, be in, remain in or visit any room or enclosure
in any place of business in which drug paraphernalia is kept,
displayed or offered in any manner, sold, furnished,
transferred or given away unless accompanied by one of his or
her parents or by his or her legal guardian. [HSC Section
11364.5(c).]
AB 1811
Page 4
7)Contains an exemption for any pharmacist, physician, dentist,
podiatrist, veterinarian or manufacturer, wholesaler, or
retailer licensed by the California Board of Pharmacy who
legally furnishes, prescribes, sells, or transfers hypodermic
syringes, needles, and other objects designed for use or
marketed for use in parenterally injecting controlled
substances into the human body. [HSC Section 11364.5(f)(1) to
(3).]
8)Makes it illegal for any person to loiter in any public place
in a manner and under circumstances manifesting the purpose
and with the intent to commit a drug-related offense. [HSC
Section 11532(a).]
9)Among circumstances that may be considered in determining
whether a person has the requisite intent to engage in
drug-related activity are that the person [HSC Section
11532(a)]:
a) Acts as a "look-out;"
b) Transfers small objects or packages for currency in a
furtive fashion;
c) Tries to conceal himself or herself or any object that
reasonably could be involved in an unlawful drug-related
activity;
d) Uses signals or language indicative of summoning
purchasers of illegal drugs;
e) Repeatedly beckons to, stops, attempts to stop, or
engages in conversations with passersby, whether on foot or
in a motor vehicle, indicative of summoning purchasers of
illegal drugs;
f) Repeatedly passes to or receives from passersby, whether
on foot or in a motor vehicle, money or small objects;
g) Is under the influence of a controlled substance or
possesses narcotic or drug paraphernalia. "Narcotic or
drug paraphernalia" is defined any device, contrivance,
instrument, or apparatus designed or marketed for the use
of smoking, injecting, ingesting, or consuming marijuana,
AB 1811
Page 5
hashish, PCP, or any controlled substance, including, but
not limited to, roach clips, cigarette papers, and rollers
designed or marketed for use in smoking a controlled
substance;
h) Has been convicted in any court within this state,
within five years prior to the arrest, of any violation
involving the use, possession, or sale of any illegal
controlled substance, or has been convicted of any
violation of those provisions or substantially similar laws
of any political subdivision of California or of any other
state;
i) Is currently subject to any order prohibiting his or her
presence in any high drug activity geographic area; and,
j) Has engaged, within six months prior to the date of
arrest, in any behavior indicative of illegal drug-related
activity.
FISCAL EFFECT : None
COMMENTS :
1)Author's Statement : According to the author, "Although
medicinal marijuana users are allowed under California law to
grow, purchase, possess, smoke, and ingest marijuana, their
ability to obtain appropriate paraphernalia to assist in
growing or using marijuana is prohibited by statute.
"This bill would allow medicinal marijuana patients to possess
and use bongs, glass pipes, carburetors, roach clips, grow
kits and other paraphernalia if they are used for a lawful
purpose. It would also clarify existing law to ensure that
vendors providing paraphernalia intended for use with
medicinal marijuana or other legal substances are allowed to
sell these products.
"State prisons and county jails are overcrowded and courthouses
are overburdened. The law this bill would change only serves
to capture nonviolent drug users - some of whom are using a
drug that is considered legal under state laws. There is no
compelling state interest in criminalizing the ownership of
objects which are safe.
AB 1811
Page 6
"AB 1811 simply clarifies existing law to ensure that those who
are using bongs, carburetors, roach clips or other
paraphernalia to take medicinal marijuana are free from
unnecessary prosecution."
2)Medical Marijuana Laws : In 1996, voters passed Proposition
215, the Compassionate Use Act, which authorizes a patient or
the patient's primary caregiver to possess marijuana or
cultivate marijuana for the patient's medical use upon the
written or oral recommendation of a physician. (Health and
Safety Code Section 11362.5.)
The Compassionate Use Act of 1996 ensures that seriously ill
Californians have the right to obtain and use marijuana for
medical purposes where that medical use is deemed appropriate
and has been recommended by a physician who has determined
that the person's health would benefit from the use of
marijuana in the treatment of cancer, anorexia, AIDS, chronic
pain, spasticity, glaucoma, arthritis, migraine, or any other
illness for which marijuana provides relief. The Act also
ensures that patients and their primary caregivers who obtain
and use marijuana for medical purposes upon the recommendation
of a physician are not subject to criminal prosecution or
sanction. (HS Section 11362.5.)
3)Vagueness : In People v. Nelson, the defendant, store owners,
were found guilty of delivering, furnishing, or transferring
drug paraphernalia in violation of HSC Section 11364.7(a).
This statute refers to a definition of "drug paraphernalia"
found in HSC Section 11014.5, which contained the phrases
"designed for use" and "marketed for use" both of which
distinguished drug paraphernalia from other kinds of smoking
products. The defendants sold bongs, roach clips, coke kits,
coke spoons, and scales. The defendants claimed that the
statute was a violation of due process and was void for
vagueness because the statute did not sufficiently describe
the conduct that was prohibited, and encouraged arbitrary and
discriminatory enforcement. The court affirmed defendants'
conviction and held that although HSC Section 11014.5
disclosed no overt scienter requirement, Section 11364.7(a)
exhibited a double scienter standard. [People v. Nelson, 171
Cal. App. 3d Supp. 1, 218 Cal. Rptr. 279 (1985).]
The court held that the statute was not void for vagueness
because it did adequately describe the conduct that was
AB 1811
Page 7
prohibited and it also contained a double scienter standard.
(Id.). The void-for-vagueness doctrine requires that a penal
statute define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct
is prohibited and in a manner that does not encourage
arbitrary and discriminatory enforcement. [Kolender v. Lawson
461 U.S. 352, 357 (1983).]
"It is a basic principle of due process that an enactment is
void for vagueness if its prohibitions are not clearly
defined. Vague laws offend several important values. First,
because we assume that man is free to steer between lawful and
unlawful conduct, we insist that laws give the person of
ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly. Vague laws may
trap the innocent by not providing fair warning. Second, if
arbitrary and discriminatory enforcement is to be prevented,
laws must provide explicit standards for those who apply them.
A vague law impermissibly delegates basic policy matters to
policemen, judges, and juries for resolution on an ad hoc and
subjective basis, with the attendant dangers of arbitrary and
discriminatory application." [Grayned v. City of Rockford,
408 U.S. 104, 108-109 (1972).]
The phrases "designed for use" and "marketed for use" contained
in HSC Section 11014.5, which defines the term "drug
paraphernalia," are not unconstitutionally void for vagueness,
since such phrases reflect the Legislature's attempt to assign
the appropriate scienter to each category of offender within
that section's ambit. The phrases clearly refer to the state
of mind of the person in control of the item, i.e., the
manufacturer or seller, without reference to a third person's
state of mind. The common denominator in both instances is
that the requisite state of mind belongs to the person in
control of the item at the time the item is manufactured, or
delivered, furnished, or transferred, etc.
HSC Section 11364.7(a) embodies the offense component while HSC
Section 11014.5 contains the definitional component of a drug
paraphernalia offense. Additionally, while HSC Section
11014.5 discloses no overt scienter requirement, HSC Section
11364.7(a), exhibits what appears to be a two-tier or double
scienter standard (i.e., "intent" and "knowing, or under
circumstances where one reasonably should know").
AB 1811
Page 8
Under the holding of Nelson, this bill is not void for vagueness
because this bill does not change the "designed for use" and
"marketed for use" language contained in HSC Sections 11014.5
relating to the definition of "drug paraphernalia."
4)Arguments in Support : According to the Drug Policy Alliance ,
"California voters adopted Proposition 215, the Compassionate
Use Act, in 1996 to ensure that sick and suffering people
could legally obtain and consume marijuana to relieve their
pain and treat a variety of ailments as recommended by a
physician. Under California law, medical marijuana patients
may cultivate, purchase, possess, smoke, and ingest marijuana.
However their ability to obtain paraphernalia to assist in
cultivating or using marijuana remains prohibited by statute.
"AB 1811 would ensure that those who are using drug
paraphernalia lawfully to consume medical marijuana are free
from unnecessary prosecution, helping reserve our right
overburdened courthouses and overcrowded jails and prisons for
serious offenders."
5)Arguments in Opposition : According to the California
Correctional Supervisors Organization , "Current law provides a
clear road map for law enforcement officers in determining if
an item is used for illegal drug use. This measure will have
the unintended consequences of expanding the illegal drug use
by taking items for drug use and putting them in the
mainstream. We have seen the problem of medical marijuana
shops springing up all over the state (in some places there
are more medicinal marijuana shops than there are Starbucks
shops) with the passage of the medical marijuana law."
REGISTERED SUPPORT / OPPOSITION :
Support
California National Organization for the Reform of Marijuana
Laws
Drug Policy Alliance
Marijuana Policy Project
Opposition
California Correctional Supervisors Organization
AB 1811
Page 9
Analysis Prepared by : Meghan Masera / PUB. S. / (916)
319-3744