BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 1162 (Runner) 2
As Amended May 21, 2012
Hearing date: June 12, 2012
Penal Code (URGENCY)
MK:mc
ANIMAL CONTROL: TRANQUILIZERS
HISTORY
Source: City of Hesperia; Town of Apple Valley
Prior Legislation: Not applicable
Support: City of Adelanto; League of California Cities; Santa
Clara County Board of Supervisors; California
Veterinary Medical Association (if amended); State
Humane Association of California (if amended)
Opposition: None known
(THIS ANALYSIS REFLECTS AUTHOR'S AMENDMENTS TO BE OFFERED IN
COMMITTEE)
KEY ISSUE
SHOULD AN ANIMAL CONTROL OFFICER OR HUMANE OFFICER BE PERMITTED TO
ADMINISTER A TRANQUILIZER TO AN ANIMAL WHEN IT IS NECESSARY FOR THE
HEALTH AND SAFETY OF THE ANIMAL OR OTHERS AND WHEN THE ANIMAL
CONTROL OFFICER IS UNDER THE DIRECT OR INDIRECT SUPERVISION OF, AND
HAS RECEIVED THE SPECIFIED TRAINING FROM, A VETERINARIAN?
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PURPOSE
The purpose of this bill is to allow an animal control or humane
officer to administer a tranquilizer when under the direct or
indirect supervision of, and trained by, a veterinarian.
Existing law authorizes any peace officer, humane society
officer, or animal control officer to take possession of a stray
or abandoned animal and to provide care and treatment for the
animal until the animal is deemed to be in suitable condition to
be returned to the owner and also authorizes the officer to
immediately seize the animal, as specified, if the officer has
reasonable grounds to believe that very prompt action is
required to protect the health or safety of the animal or the
health or safety of others. (Penal Code � 597.1 (a).)
Existing law authorizes an officer to take charge of any animal,
including a dog or cat, that by reason of lameness, sickness,
feebleness, or neglect, is unfit for the labor it is performing,
or that in any manner is being cruelly treated, and provide care
and treatment for the animal until it is deemed to be in a
suitable condition to be returned to the owner. (Penal Code �
597.1 (b).)
Existing law provides that every sick, disabled, infirm, or
crippled animal, except a dog or cat, that is abandoned in any
city, county, city and county, or judicial district may be
killed by the officer if, after a reasonable search, no owner of
the animal can be found. However, it shall be the duty of all
officers to cause the animal to be killed or rehabilitated and
placed in a suitable home on information that the animal is a
stray or abandoned. (Penal Code � 597.1 (b).)
Existing law provides that any officer shall convey all injured
cats and dogs found without their owners in a public place
directly to a veterinarian for a determination of whether the
animal shall be immediately and humanely destroyed or shall be
hospitalized under proper care and given emergency treatment.
(Penal Code � 597.1 (c) (1).)
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Existing law provides that any peace officer, humane society
officer, or any animal control officer may, with the approval of
his or her immediate superior, humanely destroy any stray or
abandoned animal in the field in any case where the animal is
too severely injured to move or where a veterinarian is not
available and it would be more humane to dispose of the animal.
(Penal Code � 597.1 (e).)
Existing law provides that animal control officers are not peace
officers but may exercise the powers of arrest, serve warrants,
or carry and use firearms if they receive the appropriate
training as specified. "Firearms" includes capture guns,
blowguns, carbon dioxide operated rifles and pistols, air guns,
handguns, rifles and shotguns. (Penal Code � 830.9.)
Existing law establishes the California Uniform Controlled
Substances Act which regulates controlled substances which are
classified according to the degrees of medical usefulness and
are subject to restrictions on their use and administration.
(Health and Safety Code �� 11000-11651.)
Existing law provides that except in the regular practice of his
or her profession (as a practitioner), no person shall knowingly
prescribe, administer, dispense, or furnish a controlled
substance to or for any person or animal, which is not under his
or her treatment for a pathology or condition other than
addiction to a controlled substance, except as otherwise
provided, and that no person shall knowingly solicit, direct,
induce, aid, or encourage a practitioner authorized
to write a prescription to unlawfully prescribe, administer,
dispense, or furnish a controlled substance. (Health and Safety
Code � 11154.)
Existing law defines a "practitioner" as:
A physician, dentist, veterinarian, podiatrist,
pharmacist, a registered or advanced registered nurse,
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physician assistant, or optometrist acting within their
scope of practice as provided under the Business and
Professions Code.
A pharmacy, hospital, or other institution licensed,
registered, or otherwise permitted to distribute, dispense,
conduct research with respect to, or to administer, a
controlled substance in the course of professional practice
or research in this state.
A scientific investigator, or other person licensed,
registered, or otherwise permitted, to distribute,
dispense, conduct research with respect to, or administer,
a controlled substance in the course of professional
practice or research in this state. (Health Safety Code �
11026.)
Existing law specifies that only a practitioner including a
naturopathic doctor may write or issue a prescription as
permitted under the Business and Professions Code. (Health and
Safety Code
� 11150.)
Existing law provides that a prescription for a controlled
substance shall only be issued for a legitimate medical purpose
by an individual practitioner acting in the usual course of his
or her professional practice. The responsibility for the proper
prescribing and dispensing of controlled substances is upon the
prescribing practitioner. (Health and Safety Code � 11153.)
Existing law makes possession of a controlled substance a felony
unless upon the written prescription of a physician, dentist,
podiatrist, or veterinarian licensed to practice in this state.
(Health and Safety Code � 11350.)
Existing law establishes the Veterinary Medicine Practice Act,
which provides for the licensing and regulation of approximately
9,800 veterinarians and 4,300 registered veterinary technicians
(RVT) by the Veterinary Medical Board within the Department of
Consumer Affairs.
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Existing law provides that a person practices veterinary
medicine, surgery, and dentistry, and the various branches
thereof, when he or she does any of the following:
Represents himself or herself as engaged in the practice
of veterinary medicine, veterinary surgery, or veterinary
dentistry in any of its branches.
Diagnoses or prescribes a drug, medicine, appliance,
application, or treatment of whatever nature for the
prevention, cure, or relief of a wound, fracture, bodily
injury, or disease of animals.
Administers a drug, medicine, appliance, application, or
treatment of whatever nature for the prevention, cure, or
relief of a wound, fracture, bodily injury, or disease of
animals, except where the medicine, appliance, application,
or treatment is administered by a registered veterinary
technician or an unregistered assistant at the direction of
and under the direct supervision of a licensed
veterinarian, as specified.
Performs a surgical or dental operation upon an animal.
Uses any words, letters, or titles in such connection or
under such circumstances as to induce the belief that the
person using them is engaged in the practice of veterinary
medicine, veterinary surgery, or veterinary dentistry.
This use shall be prima facie evidence of the intention to
represent himself or herself as engaged in the practice of
veterinary medicine, veterinary surgery, or veterinary
dentistry. (Business and Professions Code � 4826.)
Existing law allows a RVT or an unregistered assistant to
administer a drug under the direct or indirect supervision of a
licensed veterinarian when done pursuant to the order, control,
and full professional responsibility of a licensed veterinarian.
(Business and Professions Code � 4836.1 (a).)
Existing law defines "drug" as specified under the Health and
Safety Code (which includes controlled substances), and defines
"indirect supervision" as:
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The supervisor is not physically present at the location
where animal health care job tasks are to be performed, but
has given either written or oral instructions ("direct
orders") for treatment of the animal patient.
The animal has been examined by a veterinarian at such
time as good veterinary practice requires, consistent with
the particular delegated animal health care task and the
animal is not anesthetized as defined in current
regulations of the Board. (Title 16, California Code of
Regulations � 2034.)
This bill provides that if an animal control or humane control
officer, when necessary to protect the health and safety of a
wild, stray or abandoned animal or the health and safety of a
wild, stray, or abandoned animal or the health and safety of
others, seeks to administer a tranquilizer that contains a
controlled substances to gain control of the animal, he or she
may possess and administer that tranquilizer with direct or
indirect supervision as determined by a licensed veterinarian
provided that the officer has received the specified training in
the administration of tranquilizers from a licensed
veterinarian.
This bill provides that in order to administer the tranquilizer,
the officer must meet all of the following requirements:
The training required shall be approved by the
California Veterinary Medical Board.
He or she has successfully completed the firearms
component of a course relating to the exercise of police
powers as specified in Section 832 of the Penal Code.
He or she is authorized by his or her agency or
organization to possess and administer the tranquilizer in
accordance with a policy established by the agency or
organization and approved by the veterinarian who obtained
the controlled substance.
He or she has successfully completed the euthanasia
training set forth in Section 2039 of Title 16 of the
California Code of Regulations.
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He or she has completed a state and federal
fingerprinting background check and does not have any drug
or alcohol related convictions.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
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
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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. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
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1. Need for This Bill
According to the author:
When necessary to protect an animal or the safety of
the public, animal control officers are required to
take possession of any stray or abandoned animal and
provide care and treatment for the animal.
Local animal control officers must sometimes use a
controlled substance to tranquilize and gain control of
an animal. California law requires that such drugs be
stored in a central location and officers obtain
contemporaneous authorization from a licensed
veterinarian prior to administering any drugs. In
practice, however, a licensed veterinarian is not
always available and the necessity of having a
veterinarian supervise when administering the drugs
could jeopardize public safety.
A recent Attorney General's decision indicates that
prior consultation with a licensed veterinarian is
insufficient. (Opinion 08-505, 12/23/11.) Moreover,
the AG's opinion finds that "the duties of local animal
control officers, which consist of protecting animals
and the public through the enforcement of local animal
control laws," does not fit within the context of
current law.
Animal control officers must act quickly when there is
an emergency situation in the field in order to capture
injured animals or to protect the public from dangerous
animals. It is not always possible to immediately
determine whether or not an animal is stray, abandoned
or wild. While animal control officers have general
authority to kill an injured animal or one posing an
immediate threat to public safety, this is a remedy of
the last resort. In the case of a protected species,
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like a mountain lion, a depredation permit may be
required before killing the animal which caused further
concerns.
Limited authorization to use tranquilizers would be
humane and would better protect public safety.
2. Background
A recent Attorney General's Opinion (Opinion 08-505, 12/23/11)
stated that California law requires that an animal control
officer must take possession of an animal that he or she
reasonably believes is a stray or has been abandoned by its
owner, and must provide care and treatment for the animal until
it is in a fit condition to be returned to its owner, or place
for adoption. An animal control officer may also seize an
animal when reasonably necessary to protect the safety of the
animal or the public, and that he or she may destroy an animal
when circumstances require, for example when an animal is too
severely injured to move and it would be more humane to destroy
it. Although they are not peace officers, animal control
officers may, under specified circumstances, exercise powers of
arrest, carry and use firearms, and serve warrants.
The AG Opinion further pointed out animal control officers must
often react swiftly to emergency situations in the field in
order to capture injured animals or to protect the public from
rabid or otherwise dangerous, domesticated or wild animals such
as dogs, foxes, and coyotes, as well as from inherently
dangerous wild animals, such as mountain lions and bears. In
many cases, it is necessary to use controlled substances (which
are stored securely in a city's or county's animal control
shelter) to subdue an animal. However, prior to any use of
drugs, animal control officers must obtain authorization from a
designated licensed veterinarian.
The AG Opinion indicates that they have been told that in
practice a licensed veterinarian is not always available for
consultation when an animal-control emergency arises. Moreover,
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the necessity of retrieving controlled substances from a central
location and of waiting for them to be brought into the field
can create delays that may be detrimental to the public's health
and safety.
The AG was asked to determine whether an animal control officer
may ever lawfully administer a controlled substance on his or
her own authority to subdue wild or dangerous animals without
the contemporaneous consultation of a licensed veterinarian.
The AG concluded that the applicable statutory scheme does not
give animal control officers independent authority to administer
controlled substances. The AG opined that the California
Uniform Controlled Substances Act prohibits the possession of a
controlled substance, unless upon the written prescription of a
licensed practitioner, as defined, or the administering of this
type of drug in the field by an animal control officer without
first contemporaneously consulting and receiving direction from
a licensed veterinarian.
However, the AG did indicate (as a footnote) that they
understand the practice and need for animal control officers in
some local jurisdictions to administer controlled substances in
the field without contemporaneous consultation with licensed
veterinarians, and the reasons why this is done stem directly
from the difficulties encountered in trying to manage extreme
and dangerous emergencies where time is of the essence; and the
only other alternative may be to destroy the animal in question.
The AG states, "This opinion concludes that this practice does
not comport with current law. In view of the asserted need for
more humane alternatives, the Legislature may wish to consider
examining the circumstances confronting local jurisdictions to
determine whether adjustments in the law are in order to ensure
that the option of tranquilization will be available as an
alternative to destroying the animals. Development of such a
policy is, however, beyond the scope of this opinion."
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3. DEA Enforcement of Controlled Substances Act
The Drug Enforcement Administration (DEA) is the primary federal
agency responsible to enforce the controlled substances laws and
regulations of the U.S. Recently, the DEA has become concerned
about controlled substances which are provided to licensed
(practitioner) registrants being stored outside the registered
place of business of the registrant. According to the
California Veterinary Medical Association (CVMA), in recent
weeks, the Sacramento District Office of the DEA has been
actively addressing this issue by notifying veterinary
professionals of the current law that these drugs must reside
with the registrant. CVMA is concerned that this may cause
problems when the tranquilizer drug (controlled substance) is
maintained at a location other than that of the veterinarians
registered place of business such as an animal shelter or animal
control offices. Specifically, their concern is because the
veterinarian:
as the holder of the DEA license-not the animal control
officer-is ultimately liable should these drugs be
improperly utilized or stored or if an animal is
inadvertently injured or killed. Since animal control
officers are not authorized to obtain DEA licenses, the
controlled drugs must be obtained by a veterinarian,
using his or her DEA license.
4. Direct or Indirect Supervision by Veterinarians
The term used by the AG, "contemporaneous consulting," is not
normally used within the context of the appropriate level of
oversight or direction to be given by a health care
practitioner. The degree of oversight or what is commonly
referred to as "supervision" of one practitioner by another, or
of someone who is not a licensed practitioner, is usually
referred to as either direct or indirect supervision. If direct
supervision is required, it may require the actual presence and
consultation with the practitioner; or if indirect supervision
is required, it may require that special procedures, protocols,
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or written or oral orders be followed with possible consultation
either pre- or post-treatment or when the administration of
drugs (controlled substances) is provided. The degree or level
of supervision is usually determined by the supervising
practitioner and with those being supervised and with facilities
where treatment or the administration of drugs is to be
provided. For example, licensed veterinarians may allow a
registered veterinary technician, or an unregistered
(un-licensed) assistant to administer a drug, including a
controlled substance, under either direct or indirect
supervision when done pursuant to the order, control, and full
professional responsibility of a veterinarian. Regulations of
the Veterinary Medical Board define both direct and indirect
supervision and it generally says that the veterinarian does not
have to be present at the time and that providing the controlled
substance can be done pursuant to either written or oral
instructions prior to its administration. As proposed to be
amended, this bill would allow either direct or indirect
supervision, which would allow the veterinarian to decide what
the appropriate supervision should be.
5. Requirements for Administering a Tranquilizer
As proposed to be amended, this bill specifies that an officer
must meet all the following requirements:
The training required shall be approved by the
California Veterinary Medical Board.
He or she has successfully completed the firearms
component of a course relating to the exercise of police
powers as specified in Section 832 of the Penal Code.
He or she is authorized by his or her agency or
organization to possess and administer the tranquilizer in
accordance with a policy established by the agency or
organization and approved by the veterinarian who obtained
the controlled substance.
He or she has successfully completed the euthanasia
training set forth in Section 2039 of Title 16 of the
California Code of Regulations.
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He or she has completed a state and federal
fingerprinting background check and does not have any drug
or alcohol related convictions.
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