BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 2460 (Ammiano) 0
As Amended April 28, 2010
Hearing date: June 29, 2010
Health & Safety Code
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OVERDOSE EMERGENCIES:
LIMITED IMMUNITY
HISTORY
Source:Drug Policy Alliance; American Civil Liberties Union
Prior Legislation: AB 767 (Ridley-Thomas) - Ch. 477, Stats. 2007
SB 1134 (Escutia) - 2001-02, Vetoed
SB 1695 (Escutia) - Ch. 678, Stats. 2002
Support: A New PATH (Parents for Addiction Treatment &
Healing); Asian Pacific AIDS Intervention Team;
California Attorneys for Criminal Justice; California
Professional Firefighters; California Public Defenders
Association; California Attorneys for Criminal
Justice; Clean Needles Now; Common Ground; Grief
Recovery After Substance Passing; Homeless HealthCare
Los Angeles; Interfaith Drug Policy Initiative; KLEAN
West Hollywood; NCADD/Women to Women Recovery
Programs; Oxykillskids.com; Students for Sensible Drug
Policy; Youth R.I.S.E; California Society for
Addiction Medicine; California Opioid Maintenance
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AB 2460 (Ammiano)
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Providers; Health Officers Association of California;
Friends Committee on Legislation; California Church
IMPACT; Stop Rx Drug Abuse; Marin Institute; County
Alcohol and Drug Program Administrators Association of
California
Opposition:None known
Assembly Floor Vote: Ayes 45 - Noes 28
KEY ISSUES
SHOULD IT NOT BE A CRIME FOR A PERSON TO BE UNDER THE INFLUENCE OF,
OR TO POSSESS FOR PERSONAL USE, A CONTROLLED SUBSTANCE OR ITS
ANALOG, OR ALCOHOL OR DRUG PARAPHERNALIA IF THE PERSON, IN GOOD
FAITH, SEEKS EMERGENCY ASSISTANCE FOR A PERSON SUFFERING FROM A DRUG
OVERDOSE OR ALCOHOL OVERDOSE THAT IS RELATED TO DRUG OR ALCOHOL
POSSESSION, SHARING OR FURNISHING BY THE PERSON SEEKING ASSISTANCE?
SHOULD IT NOT BE A CRIME FOR A PERSON TO BE UNDER THE INFLUENCE OF,
OR TO POSSESS FOR PERSONAL USE, A CONTROLLED SUBSTANCE, CONTROLLED
SUBSTANCE ANALOG, ALCOHOL OR DRUG PARAPHERNALIA, IF THE PERSON
SUFFERS AN OVERDOSE AND THE PERSON OR ONE OR MORE PERSONS AT THE
SCENE OF THE OVERDOSE, IN GOOD FAITH, SEEK EMERGENCY ASSISTANCE FOR
THE PERSON EXPERIENCING AN OVERDOSE?
PURPOSE
The purposes of this bill are to 1) provide that it is not a
crime for a person to be under the influence of, or to possess
for personal use, a controlled substance or its analog, or
alcohol or drug paraphernalia, if the person, in good faith,
seeks emergency assistance for a person suffering an overdose
related to the drug or alcohol possession, sharing or furnishing
by the person seeking assistance; and 2) provide that it is not
a crime for a person to be under the influence of, or to possess
for personal use, a controlled substance or its analog, or
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alcohol or drug paraphernalia, if the person suffers an
overdose, and one or more persons at the scene of the overdose,
in good faith, seek emergency assistance for the person
suffering an overdose.
Existing law states that unauthorized possession of specified
controlled substances, including opiates or cocaine, is
punishable by imprisonment in the state prison and a fine of up
to $10,000. Special fines and fees also apply. (Health & Saf.
Code 11350 and 11377.)
Existing law provides that it is a crime to be under the
influence of a controlled substance, as specified. The crime is
generally a misdemeanor, with a minimum jail term of 90 days.
Special penalties, including felony penalties, apply where other
circumstances are shown in addition to the fact that the
defendant was under the influence of a controlled substance.
(Health & Saf. Code 11550, subd. (f).)
This bill contains legislative findings stating that drug
overdose is the second leading cause of injury death in the
United States, and that the numbers of drug overdose deaths is
increasing.
This bill states that many drug overdoses occur when people
involved in or present at the incident do not summon emergency
services because they fear police involvement.
This bill states legislative intent to encourage witnesses of a
drug overdose to seek emergency services in a timely manner as
to save the life of an overdose victim.
This bill states legislative intent not to protect individuals
from prosecution for other offenses or to interfere with law
enforcement protocols.
This bill provides that it is not a crime for a person to be
under the influence of, or to possess for personal use a
controlled substance or controlled substance analogue, alcohol,
or drug paraphernalia, if that person, in good faith, seeks
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medical assistance for another person experiencing an overdose
related to that controlled substance.
This bill provides that it is not a crime for a person who
experiences an overdose, or another person who witnesses the
overdose, and in good faith seeks medical assistance, to be
under the influence or in possession of, a controlled substance,
controlled substance analogue, alcohol, or drug paraphernalia.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house . .
. (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
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for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010 ruling
---------------------------
<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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pending the state's appeal of the decision to the U.S. Supreme
Court. On Monday, June 14, 2010, The U.S. Supreme Court agreed
to hear the state's appeal in this case.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
Whenever people are drinking or using drugs, there
remains a risk of overdose or of alcohol poisoning
that can lead to death. If appropriate medical care
is received in a timely manner, many drug- and
alcohol-related deaths can be prevented. Drug
treatment professionals have often reported that after
surviving an overdose experience, a drug addict is
much more likely to seek drug treatment. However,
existing law discourages others from calling 911 in
these emergency situations. Existing laws criminalize
those who might be illegally using drugs or alcohol
with the victim. This leads to an extraordinarily
dangerous situation in which a victim starts to suffer
from an overdose but their friend fears the criminal
consequences from being in possession of an illegal
substance. As a result, he or she hesitates to call
911. In some cases the person suffering the overdose
may recover on his or her own. There are cases in
which overdose victims have been dumped at the
entrance to an emergency room. In too many cases,
however, no treatment is sought and the victim dies.
A person shouldn't fear calling 911. Everybody should
be ready and willing to call 911 to save a life. This
bill would encourage people to do so.
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2. Accidental Drug Overdoses are Increasing and Preventable
According to the Drug Policy Alliance, "Accidental drug overdose
is now the second leading cause of accidental death in
California. Since 1990, accidental overdose deaths in
California increased by more than 100%, surpassing deaths caused
from firearms, homicides and AIDS. Accidental drug overdose is
now the leading cause of injury-related death for people between
the ages of 35-54, and is the second leading cause of death for
15-34 year olds. More accidental drug overdose deaths occur in
California than anywhere else in the United States." (Drug
Policy Alliance, Preventing Overdose, Saving Lives: Strategies
for Combating a National Crisis (March 2009) p. 12.)
3. Fear of Prosecution Prevents Witnesses from Seeking Needed
Medical Assistance and Increases Fatalities
According to the Drug Policy Alliance, "The chance of surviving
an overdose, like that of surviving a heart attack, depends
greatly on how fast one receives medical assistance. Witnesses
to heart attacks rarely think twice about calling 911, but
witnesses to an overdose often squander precious time hesitating
to call for help. In many cases, witnesses simply don't make
the call. The most common reason people cite for not calling 911
is fear of police involvement. People using drugs illegally
often fear arrest, even in cases where they need professional
medical assistance for a friend or family member." (Id, at p.
13.)
4. Similar Laws Enacted in New Mexico Washington State in 2007
and 2010 Respectively
On April 3, 2007, Governor Bill Richardson signed SB 200,
Immunity for Assistance for Overdoses. The New Mexico law
provides limited immunity for a person who seeks medical
assistance for a drug-related overdose suffered by the person
seeking assistance or another person. The immunity covers
prosecution for possession of a controlled substance if that
evidence was gained as a result of seeking medical assistance.
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(N.M. Stat. Ann. Section 30-31-25.1) Additionally, the New
Mexico law states that seeking medical attention for another
should be a mitigating factor in any drug-related prosecution
arising from the incident.
This year, the State of Washington passed SB 5516, Chapter 9,
Laws of 2010, which is substantially similar to both this bill
and the New Mexico statute mentioned above. The Washington law
provides limited immunity prosecution for possession of a
controlled substance for individuals who seek medical assistance
for a drug-related overdose under the same circumstances
specified in the New Mexico law. (Wash. S.B. 5516, Chapter 9,
Laws of 2010.) The Washington statute also demes seeking medical
attention for another to be a mitigating factor in any
drug-related prosecution arising from the incident.
Additionally, SB 5516 also contains provisions related to the
possession and use of naloxone, a drug used to counter the
effects of a drug-related overdose. (Wash. S.B. 5516, Chapter
9, Laws of 2010.)
5. Immunity Provided Under This Bill is Limited
This bill does not provide immunity for most drug-related
crimes, including selling, providing, giving or exchanging of
drugs or alcohol for money, goods, or services, or forcible
administration of drugs or alcohol against a person's will.
This bill provides immunity only in the limited circumstances
where a victim or witness of a drug overdose in good faith seeks
medical assistance and is under the influence of, or possession
of, a controlled substance.
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