BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 472 (Ammiano)
As Amended: May 23, 2011
Hearing date: June 7, 2011
Health and Safety Code
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CONTROLLED SUBSTANCE OVERDOSES
HISTORY
Source: Health Officers of California; Drug Policy Alliance;
American Civil Liberties Union
Prior Legislation: AB 2460 (Ammiano) - 2010, Vetoed
AB 1999 (Portantino) - Ch. 245, Stats. 2010
Support: A New Path; Asian Pacific
AIDS Intervention Team; Bay Area Addiction Research &
Treatment, Inc.; Broken No More; California
Association of Alcohol and Drug Program Executives,
Inc.; California Attorneys for Criminal Justice;
California Opioid Maintenance Providers; California
Professional Firefighters; California Public Defenders
Association; California Society of Addiction Medicine;
Common Ground; County Alcohol and Drug Program
Administrators Association of California; Drug Abuse
Alternatives Center; Families ACT!;
Homeless Health Care Los Angeles; Los Angeles
Community Action Network; Grief Recovery After a
Substance Passing; National Association of Social
Workers; Justice Now; Several Individuals
Opposition:California State Sheriffs' Association
AB 472 (Ammiano)
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Assembly Floor Vote: Ayes 46 - Noes 24
KEY ISSUE
SHOULD IT NOT BE A CRIME FOR A PERSON TO BE UNDER THE INFLUENCE OF A
CONTROLLED SUBSTANCE, OR TO POSSESS A CONTROLLED SUBSTANCE OR DRUG
PARAPHERNALIA FOR PERSONAL USE, IF THE PERSON SEEKS EMERGENCY
ASSISTANCE FOR HIMSELF OR HERSELF OR ANOTHER PERSON WHO IS
EXPERIENCING A DRUG OVERDOSE, AS SPECIFIED?
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 a controlled
substance, or to possess a controlled substance or drug
paraphernalia for personal use, if the person, in good faith,
seeks emergency assistance for an overdose victim whose drug use
was related to the drug possession by the person seeking
assistance; and 2) provide that it is not a crime for a person
to be under the influence of a controlled substance, or to
possess a controlled substance or drug paraphernalia for
personal use, if the person suffers an overdose, and one or more
persons at the scene seek emergency assistance in good faith 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
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defendant was under the influence of a controlled substance.
(Health & Saf. Code � 11550, subd. (f).)
This bill includes legislative findings and intent concerning
the prevalence of drug overdoses and the benefits of very
limited criminal immunity in encouraging drug overdose victims
and witnesses to seek emergency assistance, as specified.
This bill provides that it is not a crime for a person 1) to be
under the influence of a controlled substance, <1> or 2) to
possess for personal use a controlled substance or drug
paraphernalia, if that person, in good faith, seeks medical
assistance for a drug overdose victim and the person seeking the
assistance does not obstruct medical or law enforcement
personnel.
This bill provides that where a person experiences a drug
overdose, he or she shall not be guilty of being under the
influence of a controlled substance, or possessing a controlled
substance for personal drug paraphernalia for personal use, if
the overdose victim or others at the scene seek medical
assistance for the overdose victim and do not obstruct medical
or law enforcement personnel
This bill expressly states that it shall not be interpreted to
create immunities or protections from arrest or prosecution
other than those specifically stated in the bill.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
---------------------------
<1> The bill also applies to controlled substance analogs.
California law provides that an analog - a drug that is
chemically equivalent to a controlled substance - shall
essentially be considered a controlled substance. (Health &
Saf. Code 11401.)
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over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
California has the highest number of overdose deaths
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in the country, with 3,646 deaths from drug and
alcohol overdose in 2006 alone,<2> equating to 10
people overdose deaths per day. The death rate from
drug and alcohol overdose in California rose from 7.4
deaths per 100,000 people in 2000<3> to 9.8 per
100,000 in 2006<4> - an increase of 24%. Many of these
deaths are preventable. Studies have shown that death
rarely occurs immediately from a drug-related
overdose. Most deaths occur 1 to 3 hours after the
initial dose.<5> Thus, timely response by emergency
personnel is imperative.
Numerous academic studies examining predictors of
fatal drug overdose have shown that fear of arrest and
incarceration among witnesses is the leading cause
for delay or failure to seek emergency medical care in
a potentially deadly drug or alcohol overdose.<6>,
----------------------
<2> California Department of Alcohol and Drug Programs, Overdose
Deaths in California.
http://adp.ca.gov/oara/pdf/overdose_dths_2006.pdf .
<3> California Department of Alcohol and Drug Programs,
Accidental or Intentional Poisoning (Overdose) Deaths.
http://www.adp.ca.gov/oara/pdf/overdose_dths_2003.pdf
<4> California Department of Alcohol and Drug Programs, Overdose
Deaths in California.
http://adp.ca.gov/oara/pdf/overdose_dths_2006.pdf
<5> Davidson, Peter J. et al., "Witnessing heroin-related
overdoses: the experiences of young injectors in San Francisco,"
Addiction. 2002, December. 97 (12):1511.
<6> Tracy, Melissa et al., "Circumstances of witnessed drug
overdose in New York City: implications for intervention," Drug
and Alcohol Dependence. 2005, (79) 181-190. Lewis, Deborah K.
et al., "Safety first: A medical amnesty approach to alcohol
poisoning at a U.S. university," The International Journal of
Drug Policy. 2006, (17) 329-338.
<7> Davidson, Peter J., et al. "Witnessing heroin-related
overdoses: the experiences of young injectors in San Francisco."
Addiction 97 (2002) 1511-1516
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<7>, <8> Death or disability is preventable if
witnesses feel less personally threatened when
confronting a medical emergency.
Under California law, if a person contacts emergency
help for a drug overdose victim, and the person
seeking the help is either under the influence of
drugs or in possession of drugs or drug paraphernalia,
he or she risks arrest, incarceration and un-medicated
withdrawal in a jail cell. UCSF researchers and law
enforcement officials have found that arrest and
incarceration at the scene of drug overdose is rare,
in that law enforcement's primary interest is in
securing the scene and assisting paramedics in saving
the life of the overdose patient. Nevertheless,
research also shows that fear of arrest is the leading
barrier to timely rescue of overdose victims.
This bill addresses this public health crisis by
creating limited criminal immunity for those who
contact emergency services to report an overdose and
for those experiencing an overdose. By removing the
fear of arrest for simple possession and being under
the influence of drugs, people will be more likely to
obtain life-saving medical help for overdose victims.
Two states, New Mexico and Washington, currently have
such laws in place, and have significantly reduced the
amount of deaths caused by drug overdose. A Cornell
University study found that more students contacted
emergency services to report overdoses after a Good
Samaritan policy was in place.<9>
2. Similar Laws Enacted in New Mexico Washington State in
2007 and 2010 Respectively
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<8> Pollini, Robin A., et al. "Response to Overdose Among
Injection Drug Users." American Journal of Preventative
Medicine 2006; 31 (3) 261-264
<9> Ibid.
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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.
(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.
Washington State recently enacted 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. The Washington statute also deems 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.)
3. 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 for the crimes of being under
the influence of a controlled substance, or for possession of a
controlled substance or drug paraphernalia. To qualify for such
immunity, the person seeking emergency assistance must act in
good faith and not interfere with law enforcement or emergency
personnel.
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SHOULD A PERSON SEEKING ASSISTANCE FOR A DRUG OVERDOSE VICTIM BE
GRANTED LIMITED IMMUNITY FROM PROSECUTION FOR BEING UNDER THE
INFLUENCE OF A CONTROLLED SUBSTANCE, OR FOR POSSESSING A
CONTROLLED SUBSTANCE OR DRUG PARAPHERNALIA?
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