BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 260 (Cannella)
As Amended March 22, 2011
Hearing date: April 26, 2011
Health and Safety Code
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PSEUDOEPHEDRINE AND OTHER CONTROLLED CHEMICALS:
REPORTS OF TRANSACTIONS
HISTORY
Source: Author
Prior Legislation: SB 484 (Wright) - 2009-2010, failed passage
in Assembly Public Safety
AB 1455 (Hill) - 2009-2010, held in Senate
Judiciary
SB 1299 (Speier) - Ch. 646, Stats. 2006
Support: Unknown
Opposition:Drug Policy Alliance; California Public Defenders
Association
KEY ISSUE
SHOULD POSSESSION OF ONE-HALF POUND OR MORE OF PSEUDOEPHEDRINE,
EPHEDRINE OR SPECIFIED RELATED CHEMICALS, OR POSSESSION OF ONE-HALF
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POUND OR MORE OF A SUBSTANCE CONTAINING SUCH CHEMICALS, BE A FELONY,
PUNISHABLE BY A PRISON TERM OF 2, 4 OR 6 YEARS AND A FINE OF UP TO
$10,000?
PURPOSE
The purpose of this bill is to provide that any person or entity
that possesses one-half pound or more of pseudoephedrine, or a
specified related chemical, or one-half pound of a substance
containing pseudoephedrine or a related chemical, as specified,
is guilty of a felony, punishable by a prison term of 2, 4, or 6
years and a fine of up to $10,000, unless enhancements apply
based on the weight or volume of the substance.
Existing law provides a detailed regulatory scheme for the
production and distribution of specified chemicals, including
pseudoephedrine, which may be precursors to controlled
substances. (Health & Saf. Code � 11100.) Producers and users
of precursor chemicals must obtain permits from the Department
of Justice ("DOJ") or face prosecution for a misdemeanor or a
felony. (Health & Saf. Code � 11106.)
Existing law provides that any person or entity that sells or
transfers specified chemical precursors must obtain and retain
the information about the purchaser's identity, business and how
the chemical is to be used. (Health & Saf. Code � 11100, subd.
(c).)
Existing law requires any person or entity that sells,
transfers, or furnishes a controlled chemical must submit a
report to the DOJ, generally within 21 days of each
transaction. A first-time violation is a misdemeanor
punishable by a jail term of up to 6 months, a fine of up to
5,000, or both. A subsequent violation is an alternate
felony-misdemeanor, punishable by imprisonment for 16 months,
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two years or three years, a jail term of up to 1 year, a fine
of up to $100,000, or both. (Health & Saf. Code � 11100,
subd. (f).)
Existing law provides that any person or entity that sells a
controlled chemical (precursor) with knowledge or intent that
the chemical will be used to manufacture a controlled substance
is guilty of a felony, punishable by imprisonment in state
prison for 16 months, two years or three years and a fine of up
to $10,000. (Health & Saf. Code � 11104, subd. (a).)
Existing law provides that any person who manufactures compounds
? or prepares methamphetamine is guilty of a felony punishable
by three, five or seven years in state prison. (Health & Saf.
Code � 11379.6.)
Existing law provides that the possession of specified
chemicals, including pseudoephedrine, ephedrine and numerous
others, with the intent to manufacture methamphetamine is a
felony punishable by two, four, or six years in state prison.
(Health & Saf. Code � 11383.5.)
Existing law provides that any person who possesses precursor
chemicals, with the intent to sell or transfer such chemicals,
and with the knowledge that the chemicals will be used to
manufacture methamphetamine, is guilty of a felony, punishable
by imprisonment in state prison for 16 months, two year or three
years. (Health & Saf. Code �11383.7.)
Existing law provides that the possession of specified chemicals
with the intent to manufacture methamphetamine is a felony,
punishable by imprisonment in the state prison for 2, 4, or 6
years. (Health and Saf. Code � 11383.5)
This bill provides that any person who possesses one-half pound
or more of pseudoephedrine or ephedrine is guilty of a felony,
punishable by imprisonment in state prison for 2, 4 or 6 years
and a fine of up to $10,000.
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This bill provides that any person who possesses one-half pound
or more of a substance containing pseudoephedrine or ephedrine
is guilty of a felony, punishable by imprisonment in state
prison for 2, 4 or 6 years and a fine of up to $10,000.
This bill provides that its provisions "shall not apply to drug
manufacturers licensed by this state or persons authorized by
regulation of the California State Board of Pharmacy to possess
those substances or a combination of substances, or to persons
as otherwise authorized by law to possess" the substance
described by this 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
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 Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
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early as this spring.
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 appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1.Need for This Bill
According to the author:
SB 260 helps law enforcement more effectively and more
swiftly deal with persons who possess exorbitant
amounts of ephedrine or pseudoephedrine.
Specifically, it would make it a felony for an
individual to possess one-half pound or more of these
substances.
Despite efforts by law enforcement and lawmakers in
recent years, methamphetamine (meth) remains a major
problem in California and especially in the Central
Valley. In 2005, Congress tried to address the
growing problem of meth labs by requiring that
ephedrine and pseudoephedrine, two of the primary
ingredients used to make meth, only be available
behind the counter at pharmacies. The law limits
customers to one package per day and requires them to
sign a logbook documenting the purchase.
These increased restrictions have had little impact as
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producers have learned to get around the law. The
most common practice is called "smurfing," in which
makers of meth pay people to purchase packages of
ephedrine or pseudoephedrine as they move from store
to store. Most pharmacies do not share purchase
information; if police suspect someone is buying
exorbitant amounts of the drug, they have to go from
store to store to compare logbooks to verify their
suspicion.
When law enforcement finds an individual in possession
of large amounts of ephedrine or pseudoephedrine, they
are required to prove the individual intended to
manufacture meth to convict him or her of a felony.
Since a half pound of these drugs is an amount too
large to serve any individual medical purpose, the
"intent to manufacture" requirement is unnecessary and
only slows down the process of catching and stopping
likely manufacturers of meth.
2.Elements of the Crime Proposed by This Bill; Intent
Court decisions on possession of controlled substances
(illegal drugs) hold that a defendant must be aware that he
or she possesses a substance and be aware of its nature as
a controlled substance. (People v. Redrick (19610 55
Cal.2d 282, 285; People v. Tripp (2007) 151 Cal.App.4th
1504, 1507.) The defendant need not know what specific
drug he or she possesses. (People v. Romero (55
Cal.App.4tth 147.)
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Consistent with the case law on possession of controlled
substances, it is likely that the only intent or knowledge
elements in the crime created by this bill would be
knowledge of possessing or controlling the substance and
knowledge that the substance is a controlled or restricted
chemical. The prosecution would not be required to prove
that the defendant intended to make methamphetamine, or
that the defendant knew that a person to whom the chemical
would be transferred intended to make methamphetamine, or
even that the chemicals could be used to make
methamphetamine.
3. Existing Crimes Applicable to Possession of Pseudoephedrine
Compared to This Bill
A number of crimes apply to possession of pseudoephedrine under
existing law. Felony penalties apply where a person possesses
pseudoephedrine with the intent to make methamphetamine.
(Health & Saf. Code � 11383.5.) Felony penalties also apply
where a person possesses pseudoephedrine with the intent to
transfer the chemical and the knowledge that it will be used to
make methamphetamine. (Health & Saf. Code � 11383.7.) Another
statute - part of a detailed regulatory scheme for chemicals
that can be used to make controlled substances, but that may
have other uses - provides that sale or transfer of such
chemicals with knowledge or intent that they be used to make a
controlled substance is a felony.
This bill differs from existing law in that this bill does not
require the prosecution to prove that the defendant intended to
make methamphetamine or knew that the pseudoephedrine he or she
possessed would be used to make methamphetamine. The defendant
must only possess pseudoephedrine in an amount proscribed by
this bill. As is discussed in the preceding comment, it is
likely that the prosecution need only prove that the defendant
knew the substance was a controlled chemical.
SHOULD A NEW FELONY BE CREATED CRIMINALIZING THE POSSESSION OF
SPECIFIED SUBSTANCES WHERE PROSECUTORS WOULD NOT HAVE TO PROVE
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THAT A DEFENDANT INTENDED TO MAKE METHAMPHETAMINE, OR KNEW THAT
THE CHEMICAL THEY POSSSESSED WOULD BE USED TO MAKE
METHAMPHETAMINE?
4. One-half Pound is a Substantial Amount of Pseudoephedrine
Federal law allows a person to purchase, over-the-counter, no
more than 9 grams of pseudoephedrine per month. Nine grams is
approximately 6.25 packages of 48 tablets, generally the
standard package amount. Approximately 20 of these packages
would equal an ounce of pseudoephedrine. Approximately 160
packages would equal one-half pound of pseudoephedrine. Under
federal law, a person can purchase no more than 3.6 grams of
pseudoephedrine per day.
5 Proportionality: This Bill Would Impose Identical Punishments
for Possession of One-Half Pound of Pure Pseudoephedrine and
Possession of One-Half Pound of a Substance Containing Some
Pseudoephedrine
The bill covers cases where the defendant either possessed
one-half pound of pure pseudoephedrine or one-half pound of a
substance containing pseudoephedrine. Many products contain
pseudoephedrine and other drugs and substances. One-half pound
of a substance containing pseudoephedrine could contain
significantly less pseudoephedrine than one-half pound of pure
pseudoephedrine. A person who possesses pure pseudoephedrine
could make much more methamphetamine, and make methamphetamine
more easily, than a person who possesses a substance containing
pseudoephedrine. A person who can obtain pure pseudoephedrine
is likely to have ties to sophisticated drug traffickers.
As drafted, this bill could be used to impose the same
punishment on two defendants who possessed very different
amounts of pseudoephedrine and who may present very different
levels of threat to public safety.
SHOULD A DEFENDANT WHO POSSESSES ONE-HALF POUND OF PURE
PSEUDOEPHEDRINE RECEIVE THE SAME PUNISHMENT AS A DEFENDANT WHO
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POSSESES ONE-HALF POUND OF A SUBSTANCE THAT CONTAINS
PSEUDOEPHEDRINE AS ONLY ONE OF ITS INGREDIENTS, AS THE PURE
PSEUDOEPHEDRINE CAN PRODUCE MORE FINISHED METHAMPHETAMINE?
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