BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 1011 (Calderon) 1
As Introduced February 10, 2010
Hearing date: April 13, 2010
Business & Profession Code
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911 CALLS IN ALCOHOL OVERDOSE CASES:
IMMUNITY FROM PROSECUTION FOR UNDERAGE DRINKERS
HISTORY
Source: Author
Prior Legislation: None directly on point
Support: Emergency Medical Services Administrators Association
of California; California Professional Firefighters
Opposition:None known
KEY ISSUES
WHERE A PERSON UNDER THE AGE OF 21 YEARS SEEKS EMERGENCY MEDICAL
ASSISTANCE FOR ANOTHER PERSON UNDER THE AGE OF 21 YEARS WHO IS
SUFFERING FROM ALCOHOL OVERDOSE OR POISONING, SHOULD THE PERSON WHO
SOUGHT EMERGENCY ASSISTANCE BE IMMUNE FROM PROSECUTION FOR
POSSESSING OR PURCHASING ALCOHOLIC BEVERAGES?
SHOULD THE IMMUNITY APPLY ONLY IF THE PERSON WHO CALLED 911
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IDENTIFIED HIMSELF OR HERSELF, WAS THE FIRST PERSON TO CALL 911,
REMAINED AT THE SCENE, AND COOPERATED WITH MEDICAL AND LAW
ENFORCEMENT PERSONNEL?
PURPOSE
The purpose of this bill is to provide that where a person under
the age of 21 years calls 911 to obtain emergency medical
assistance for another young person who is suffering from
alcohol overdose, the young person who sought assistance shall
be immune from prosecution for purchasing alcohol or possessing
alcohol in a public place if a) the young person was the first
caller to 911; b) the person identified himself or herself; and
c) the person remained at the scene and cooperated with medical
personnel and law enforcement responders.
Existing law states that every person who sells, furnishes,
gives, or causes to be sold, furnished, or given away, any
alcoholic beverage to any person under the age of 21 years is
guilty of a misdemeanor. (Bus. & Prof. Code 25658, subd.
(a).)
Existing law provides that any person under the age of 21 years
who attempts to purchase any alcoholic beverage from a licensee,
or the licensee's agent or employee, is guilty of an infraction
and shall be punished by a fine of not more than $250, or the
person shall be required to perform not less than 24 hours or
more than 32 hours of community service during hours when the
person is not employed or is not attending school, or a
combination of fine and community service. A second or
subsequent violation shall be a fine of not more than $500 plus
penalty assessments and 36-48 hours of community service. These
penalties do not preclude prosecution or punishment under any
other provision of law. (Bus. & Prof. Code 25658.5.)
Existing law provides that any person under the age of 21 years
who presents or offers to any licensee, his or her agent or
employee, any written, printed, or photostatic evidence of age
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and identity which is false, fraudulent or not actually
his or her own for the purpose of ordering, purchasing,
attempting to purchase or otherwise procuring or attempting to
procure, the serving of any alcoholic beverage, or who has in
his or her possession any false or fraudulent written, printed,
or photostatic evidence of age and identity, is guilty of a
misdemeanor and shall be punished by a fine of at least $250, no
part of which shall be suspended; or the person shall be
required to perform between 24 and 32 hours of community service
during hours when the person is not employed and is not
attending school, or a combination of fine and community
service. A second or subsequent violation of this section shall
be punished by a fine of not more than $500 plus penalty
assessments, or the person shall be required to perform between
36 and 48 hours of community service, or a combination of fine
and community service. These penalties do not preclude
prosecution or punishment under any other provision of law.
(Bus. & Prof. Code 25661.)
Existing law provides that any person under the age of 21 who
has any alcoholic beverage in his or her possession on any
street or highway or in any public place or in any place open to
the public is guilty of a misdemeanor and shall be punished by a
fine of $250 or the person shall be required to perform not less
than 24 hours or more than 32 hours of community service during
hours when the person is not employed or is not attending
school. A second and subsequent violation shall be punishable
as a misdemeanor and the person shall be fined not more than
$500 or required to perform between 36 and 48 hours of community
service during hours when the person is not employed or is not
attending school or a combination of fine and community service.
These penalties do not preclude prosecution or punishment under
any other provision of law. (Bus. & Prof. Code 25662.)
This bill grants immunity from prosecution under subdivision (b)
of Section 25662 and Section 25658, for a person under the age
of 21 years where all of the following occurred:
The person called 911 and reported that another underage
person was in need of medical assistance due to alcohol
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consumption.
He or she gave his or her name to the 911 operator.
He or she was the first person to make the 911 call.
The person remained with the underage person in need of
medical assistance until that assistance arrived.
The person cooperated with medical assistance and law
enforcement personnel on the scene.
This bill provides that enhanced penalties for repeated acts of
purchasing or possessing alcoholic beverages by a person under
the age of 21 shall not be imposed based on prior violations if
the defendant, on the prior occasion, was not subject to
prosecution because he or she called 911 for an underage drinker
and qualified for the protections provided in this bill.
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
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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
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
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adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010, ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
The author submits the following background and argument:
SB 1011 will protect underage drinkers from punishment
when they call law enforcement or emergency medical
services in order to save a fellow drinker in need of
emergency care.
Binge drinking is a deadly phenomenon among
college-aged and under-aged drinkers that results in
thousands of deaths every year. Alcohol poisoning is
often the result of binge drinking and can result in
death. This death is often preventable when medical
authorities are able to intervene in a timely manner.
Unfortunately, many times friends of the person
suffering from alcohol poisoning are unwilling to call
911 for help because they are underage and fear
prosecution as underage drinkers. This has resulted
in preventable deaths and mental anguish of both the
----------------------
<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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victim's family and their friends.
Bills to grant immunity to underage drinkers when they
call 911 in order to save a friend are not new.
Several states have similar laws on the books
including Colorado, New Jersey and Texas. The first
state to pass an immunity law was Colorado in 2005
after a particularly deadly summer in 2004 in which
several youths died as the result of binge drinking.
In many cases people suffering from alcohol poisoning
or the resulting symptoms can be saved when medical
assistance is delivered in a timely manner.
Unfortunately too many youngsters die unnecessarily
while their friends agonize over whether to call 911
or to attempt to revive the victim themselves to avoid
being punished for their own underage drinking. SB
1011 would relieve youngsters of this decision and
grants immunity to an underage drinker that calls in
good faith in order to save another person's life.
Similar laws have been passed in other States with
positive results.
2. Binge Drinking, With the Inherent Danger of Alcohol Overdose
or Poisoning, May Often Occur in Groups Where Some are Under
21 Years and Some are Over 21Years of Age
This bill provides immunity from prosecution for alcohol
possession and purchase for an underage drinker who calls 911 to
report an alcohol overdose or poisoning. As currently drafted,
the bill only provides immunity to a young person who calls 911,
if the person suffering from alcohol overdose or poisoning is
also under the age of 21.
Binge drinking appears to be a serious problem at colleges
across the country. According to a 2008 report by the Center
for Science in the Public Interest, college presidents agree
that binge drinking is the most serious problem on campus.
Media reports in recent years have noted cases where college
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students died after parties or events from alcohol poisoning.
The Center for Science in the Public Interest reported that
30,000 college students require treatment for alcohol overdoses
annually. The Center also reported that "binge drinkers
consumed 91% of all alcohol that college students reported
drinking, while 68% of alcohol was consumed by frequent binge
drinkers."
In gatherings of college students, there may often be a mix of
students who are over 21 and students who are under 21.
Underage drinkers at these gatherings may have purchased alcohol
for the event illegally or possessed and consumed alcohol. A
person who succumbs to alcohol overdose or poisoning at such an
event may be either over or under the age of 21 years. The
background submitted by the author includes media descriptions
of cases where college students over the age of 21 died from
alcohol overdoses. Under this bill, an underage drinker who
called 911 would have immunity if the overdose victim is under
the age of 21, but would not have immunity if the overdose
victim is over the age of 21.
There may be numerous other circumstances where a person who is
under the age of 21 is drinking with a person of legal drinking
age. In many of these circumstances, the person under the age
of 21 could have violated alcohol restriction laws by possessing
or obtaining alcohol.
Arguably, if the purpose of this bill is to encourage underage
drinkers to seek emergency treatment for a person who is
suffering from alcohol overdose, the purpose may be best served
by providing immunity to the reporter of the incident regardless
of the age of the overdose victim. In many college party
circumstances, an underage drinker might not know how old the
overdose victim is.
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SHOULD THIS BILL BE AMENDED TO PROVIDE IMMUNITY WHERE AN
UNDERAGE DRINKER REPORTS AN ALCOHOL POISONING OR OVERDOSE
SUFFERED BY A PERSON OF LEGAL DRINKING AGE?
3. Erroneous and Confusing Statutory References Could or Would
Prevent the Intended Application of the Bill
The purpose of this bill is to provide that where a person who
is under the age of 21 years calls 911 to seek medical
assistance for an underage drinker, the young person who called
911 shall not face prosecution on charges of purchasing or
consuming alcohol or possessing alcohol in a public place. In
granting such immunity, the bill refers incorrectly to
subdivisions in Business and Professions Code Sections 25658 and
25662.
In particular, the bill provides that an underage person, in the
qualifying circumstances, shall not face prosecution under
subdivision (b) of section 25662. However, subdivision (b)
concerns seizure of alcoholic beverages by police officers at
social gatherings. Subdivision (a) of Section 25662 defines the
misdemeanor or illegal possession of alcohol by a person under
the age of 21.
The bill also could be read as providing that a young person who
seeks emergency assistance for an underage drinker would not
face prosecution under any subdivision of Section 25658.
Subdivision (b) of Section 25658 describes the crime of the
purchase of alcoholic beverages by a person who is under the age
of 21 years. It appears that the intent of the author is to
provide immunity from prosecution under subdivision (b) of
25658. It appears that numerous other subdivisions of Section
25658 would not be relevant to the intent of the author.
Reference to all of Section 25658 thus may be confusing and
perhaps adversely affect prosecutions.
To correct a clear error, the bill should refer to subdivision
(a) of Section 25662. To make the bill clear, the bill should
refer to subdivision (b) of Business and Professions Code
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Section 25658.
SHOULD THESE STATUTORY REFERENCES BE CORRECTED?
4. Argument in Support
The California Professional Firefighters argue in support:
In many cases, people suffering from alcohol poisoning
or the resulting symptoms can be saved when medical
assistance is delivered in a timely manner.
Unfortunately too many youngsters die unnecessarily
while their friends agonize over whether to call 911
to avoid being punished for their own underage
drinking. SB 1011 would relieve youngsters of this
decision by granting immunity to an underage drinker
who calls law enforcement in good faith in order to
save another person's life.
5. Related Bill Pending in the Assembly - AB 1999 (Portantino)
AB 1999 (Portantino) is similar to this bill. AB 1999 was
recently approved by the Assembly. The Digest of AB 1999 states
in part:
This bill would provide that it shall not be a crime
for certain persons under the age of 21 years to
knowingly possess or knowingly consume alcoholic
beverages under specific circumstances relating to the
reporting in good faith of medical emergencies
arising from alcohol consumption, as specified. The
bill would specify that it shall not affect liability
for any offense that involves activities made
dangerous by the consumption of alcohol.
The Assembly Public Safety analysis noted that the author had
provided information about a Cornell University study about an
alcohol reporting immunity program at Cornell. Cornell found
that publicity about an immunity program resulted in an increase
of 22% in calls for assistance in alcohol emergencies. Cornell
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also reported that students were less fearful of making such
calls and that twice as many students sought counseling for
alcohol abuse than prior to the program.
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