BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 1735 (Hall) 5
As Amended May 5, 2014
Hearing date: June 24, 2014
Penal Code
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DISTRIBUTION OF NITROUS OXIDE - KNOWLEDGE IT WILL BE MISUSED
RECORDING OF INFORMATION ABOUT THE PURCHASER
HISTORY
Source: Los Angeles County Sheriff's Department
Prior Legislation: AB 1015 (Torlakson) Ch. 266, Stats. 2009
Support: California State Sheriffs' Association
Opposition:American Civil Liberties Union; California Automotive
Wholesaler's Association
(Oppose Unless Amended)
Assembly Floor Vote: Ayes 76 - Noes 0
KEY ISSUES
IF A PERSON DISPENSES NITROUS OXIDE TO ANOTHER PERSON WHOM THE
DISPENSER KNOWS OR HAS "REASON TO BELIEVE" WILL INHALE IT FOR
INTOXICATION, SHOULD THE DISPENSER BE GUILTY OF A MISDEMEANOR IF THE
PERSON OBTAINING THE NITROUS OXIDE CAUSES DEATH OR GREAT BODILY
INJURY TO HIMSELF, HERSELF OR ANOTHER?
SHOULD A DISPENSER OF NITROUS OXIDE RECORD THE IDENTIFYING
INFORMATION AND SIGNATURE OF THE PERSON OBTAINING IT AND WARN THE
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PERSON THAT INHALATION FOR INTOXICATION IS DANGEROUS AND UNLAWFUL
AND THAT DISPENSATION FOR SUCH A PURPOSE IS UNLAWFUL?
SHOULD THE IDENTIFYING INFORMATION ABOUT A PERSON OBTAINING NITROUS
OXIDE BE AVAILABLE TO THE BOARD OF PHARMACY OR LAW ENFORCEMENT
PURSUANT TO A WARRANT?
PURPOSE
The purpose of this bill is to 1) provide that a dispenser or
distributor of nitrous oxide is guilty of a misdemeanor if the
dispenser knows or has reason to believe that the person
obtaining the nitrous oxide will use it for intoxication and
that person or another person dies or suffers great bodily
injury as a result; 2) require the dispenser or distributor to
view the person's government-issued identification and record
the person's identifying information in a written or electronic
document; 3) require the dispenser or distributor to sign and
date the document and obtain the dated signature of the person
obtaining the nitrous oxide; 4) require the dispenser or
distributor to warn the person obtaining the nitrous oxide that
use for intoxication is dangerous and illegal and that
dispensing for such a purpose is illegal; and 5) authorize law
enforcement or the board of pharmacy to obtain the information
pursuant to a warrant.
Existing law provides that any person that possesses nitrous
oxide (N2O) or any substance containing N2O with the intent to
inhale or ingest it for purposes of intoxication or distorting
of the senses or mental processes, is a guilty of a misdemeanor
punishable by imprisonment in a county jail by a term not to
exceed six months, a fine not to exceed $1,000, or both. Being
under the influence of N2O is also a misdemeanor with the same
penalties. (Pen. Code � 381 subd. (b).)
Existing law states that every person who sells, furnishes or
administers a device or receptacle containing N2O or a chemical
compound containing N2O to a person under 18 years of age is
guilty of a misdemeanor punishable by imprisonment in a county
jail by a term not to exceed six months, by a fine not to exceed
$1,000, or by both imprisonment and a fine. The court shall
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consider ordering community service as a condition of probation.
(Pen. Code � 381c, subd. (b).)
Existing law provides that it is a defense to the crime of
selling or dispensing N2O to a minor that the defendant honestly
and reasonably believed that the minor was at least 18 years of
age. (Pen. Code � 381c, subd. (c)(1)-(2).)
This bill makes it a misdemeanor punishable by a term of
imprisonment not to exceed six months, by a fine not to exceed
$1,000, or both, for any person to dispense or distribute N2O to
a person knowing or having reason to believe that the N2O will
be ingested or inhaled by the person for the purposes of causing
intoxication, euphoria or stupefaction and that person
proximately cause great bodily injury or death to himself,
herself, or any other person.
This bill requires a person who distributes or dispenses nitrous
oxide to record each transaction involving N2O in a written or
electronic document. The person dispensing or distribution the
N2O shall require the purchaser to sign the document, provide a
residential address and present a valid government issued photo
identification. The person dispensing or distributing the N2O
shall sign and date the document and retain it at the business
address for one year from the date of the transaction.
This bill states that a person dispensing or distributing N2O
shall make transaction records available during normal business
hours for inspection and copying by officers and employees of
the California State Board of Pharmacy, or of other law
enforcement agencies of this state or of the United States, upon
presentation of a duly authorized search warrant.
This bill requires that the document used to record each
transaction shall inform the purchaser of all of the following:
The inhalation of N2O may be hazardous to your health;
That it is a violation of state law to possess N2O or
any substance containing N2O with the intent to breathe,
inhale, or ingest it for the purpose of intoxication;
outside of a clinical setting; and,
That it is a violation of state law to knowingly
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distribute or dispense N2O or any substance containing N2O,
to a person who intends to breathe, ingest, or inhale it
for the purpose of intoxication.
This bill states that these requirements shall not apply in the
following circumstances:
Where N2O is administered for the purpose of providing
medical or dental care by a medical or dental provider
licensed by this state or at the direction or under the
supervision of a practitioner licensed in this state;
Where the N2O is contained in food products for use as a
propellant; and,
Where a transaction involves a wholesaler licensed by
the Board of Pharmacy or "a manufacturer classified under
Code Number 325120 or 424690 of the North American Industry
Classification System (NAICS)."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
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In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014, and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013, Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
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141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety or
criminal activity for which there is no other reasonable,
appropriate remedy.
COMMENT
1. Need for This Bill
According to the author:
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AB 1735 will make it a misdemeanor to knowingly
distribute Nitrous Oxide to a customer for an illegal
use and where that person causes great bodily injury
or death, require Nitrous Oxide distributors to
provide customers with written information on the
dangers of illegal Nitrous Oxide use.
These safeguards will help to reduce the illegal sale
and consumption of Nitrous Oxide, hold distributors
and consumers accountable to ensure its proper use and
ultimately reduce the number of injuries and violent
crimes committed as a result of illegal NOS
consumption throughout California.
2. Unusual Criminal Knowledge Standard - the Defendant Knows or
"has Reason to Believe" Nitrous Oxide will be Inhaled for
Intoxication
The most basic definition of a crime is a prohibited act that is
done with a criminal intention or state of mind. For some
crimes, the relevant state of mind is that the defendant knew or
should have known a specified fact. For example, where a
defendant faces enhanced penalties because the victim is
elderly, the prosecution must prove that the defendant knew or
should have known the victim was elderly.
This bill uses the criminal knowledge element that the defendant
knew or had reason to believe that a person obtaining N2O would
use it for intoxication. The standard of "reason to believe" is
an unusual standard that could be established by speculation
about the defendant's subjective awareness, not facts that would
bring a reasonable person to know that the N2O would be misused.
Prosecutors, courts and defense attorneys would not likely be
familiar with or consistently apply the standard in this
context. As noted, because the standard is very broad and
amorphous, a defendant would likely argue that because the crime
definition is unconstitutionally vague, such that an average
person could not reasonably know how to comply with the law.
(People v. McCoy (2002) 27 Cal.4th 601, 634.)
It is suggested that has "reason to believe" be replaced by
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"should have known." The standard that the defendant should
have known a specified fact is familiar to courts and
practitioners in criminal cases.
SHOULD THE ELEMENT THAT THE DEFENDANT HAD "REASON TO BELIEVE"
THAT THE PERSON OBTAINING NITROUS OXIDE WOULD USE IT FOR
INTOXICATION BE REPLACED BY AN ELEMENT THAT HE OR SHE "SHOULD
HAVE KNOWN" OF THE ILLICIT USE OF NITROUS OXIDE?
3. No Restrictions on use by the Dispenser of Nitrous Oxide of
the Personal Identifying Information about the Person
Obtaining the Nitrous Oxide
This bill requires law enforcement or officers of the Board of
Pharmacy to obtain a warrant before gaining access to
identifying information about purchasers or receivers of N2O.
However, the bill does not restrict the use of the information
by the dispenser or distributor of N2O. The information could
be used for any number of improper purposes, including identity
theft. Further, as the 4th Amendment prohibition on searches
and seizures without a warrant only apply to actions by the
state, the warrant requirement would not apply if the dispenser
or distributor provided the information to law enforcement
directly or indirectly. It is suggested that the distributor or
dispenser should have no access to or authorized use of the
information other than to record the information, store it and
provide it to law enforcement or the Board of Pharmacy upon
presentation of a warrant.
This bill is similar to existing federal law that requires the
recording of personal information about the purchaser of
pseudoephedrine and prohibits sales of more than specified
amounts of the drug. Pseudoephedrine is the main ingredient
used in illicit methamphetamine manufacturing. The paper or
electronic logs on which the purchaser's identifying information
is recorded may be inspected by law enforcement. Other
disclosure or use of the information is subject to federal civil
and criminal sanctions.
There have been a number of bills considered by the Legislature
that would require electronic recording of all pseudoephedrine
sales in California in a single database. To address privacy
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concerns, the electronic system was to be designed so as to
allow the retail clerk to only determine if the purchase would
violate the restrictions on the amount of pseudoephedrine a
person could purchase. The information could not otherwise be
accessed or used by the clerk. Further, failure to keep the
purchaser's identifying information confidential would be a
misdemeanor.
As noted, this bill does not require the dispenser of N2O to
keep the identifying information of the persons obtaining the
N2O confidential. Further, unlike the proposed electronic
tracking system for pseudoephedrine purchases, the information
about the person obtaining the N2O would not be placed in an
electronic system that would not be retrievable by the seller.
To be consistent with similar laws, provide an incentive to
maintain the confidentiality of the information and to sanction
misuse of the information, it is suggested that any use of the
information other than to comply with the requirements of this
bill be a misdemeanor.
SHOULD IDENTIFYING INFORMATION OF A PERSON OBTAINING NITROUS
OXIDE REMAIN CONFIDENTIAL, WITH NO AUTHORIZED USE OF OR ACCESS
TO THE INFORMATION BY THE PERSON DISPENSING OR DISTRIBUTING THE
INFORMATION?
SHOULD FAILURE TO KEEP CONFIDENTIAL THE IDENTIFYING INFORMATION
OF PERSONS OBTAINING NITROUS OXIDE BE A MISDEMEANOR?
4. North American Industry Classification System
This bill exempts transactions involving a "manufacturer
classified under Code Number 325120 or 424690 of the North
American Industry Classification System (NAICS)." The United
States Census Bureau Website explains:
The North American Industry Classification System
(NAICS) is the standard used by Federal statistical
agencies in classifying business establishments for
the purpose of collecting, analyzing, and publishing
statistical data related to the U.S. business economy.
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NAICS was developed under the auspices of the Office
of Management and Budget (OMB), and adopted in 1997 to
replace the Standard Industrial Classification (SIC)
system. It was developed jointly by the U.S. Economic
Classification Policy Committee (ECPC), Statistics
Canada and Mexico's Instituto Nacional de Estadistica
y Geografia
325120 Industrial Gas Manufacturing:
This industry comprises establishments primarily
engaged in manufacturing industrial organic and
inorganic gases in compressed, liquid, and solid
forms.
Examples include nitrous oxide manufacturing, helium, hydrogen,
dry ice, carbon dioxide and oxygen manufacturing.
424690 Other Chemical and Allied Products Merchant
Wholesalers
This industry comprises establishments primarily
engaged in the merchant wholesale distribution of
chemicals and allied products (except agricultural and
medicinal chemicals, paints and varnishes, fireworks,
and plastics materials and basic forms and shapes).
Examples include acids, industrial chemicals, automotive
chemicals (except lubricating oils and greases) and industrial
salts wholesalers
5. Use of Nitrous Oxide in Dentistry
Nitrous oxide, in combination with pure oxygen, is commonly
used for sedation of patients and pain relief during dental
procedures. The website of the American Academy of Dental
Pediatrics provides the following information on the use of
N2O in dental procedures for children:
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Nitrous oxide/oxygen (N2O -O2) is a blend of two gases
-- oxygen and nitrous oxide. A fitted mask is placed
over the nose and, as the patient breathes normally,
uptake occurs through the lungs. At the end of
treatment, it is eliminated after a short period of
breathing oxygen and has no lingering effects.
[The patient] smells a faint, sweet aroma and
experience a sense of well-being and relaxation.
Since it may produce a feeling of giddiness or
euphoria, it is often called "laughing gas." Children
sometimes report dreaming and their arms and legs may
feel "tingly." It raises the pain threshold and may
even make the time appear to pass quickly.
Nitrous oxide/oxygen is perhaps the safest sedative in
dentistry. It is well tolerated. It has a rapid
onset, is reversible, can be adjusted in various
concentrations and is non-allergenic. Your child
remains fully conscious -- keeps all natural reflexes
-- when breathing nitrous oxide/oxygen. He/she will
be capable of responding to a question or request.
Nitrous oxide/oxygen may also be used in combination
with other sedative agents.
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6. Use of Nitrous Oxide in Food Preparation, Motor Sports and
Model Rockets
NO is commercially sold in a steel cylinder or cartridge
primarily as a whipping agent for use in a whip cream dispenser
and in some cooking sprays. NO is commonly used in coffee
shops and restaurants to make whipped cream as its
bacteriostatic properties keep bacteria from growing and because
NO produces a lighter, fluffier whipped cream.
NO is also used as an oxidizer in model rockets and motor
vehicle racing due to its low temperature and high oxygen
content.
7. Argument in Support
The Los Angeles County Sheriff's Department argues:
Nitrous oxide use has spiked in the last several
years. Social media has become a popular place to
advertise parties that include nitrous oxide. The
Department has investigated murder, assault, rape,
vehicle collisions and other crimes that surround the
use of nitrous oxide.
Oftentimes, businesses that advertise themselves as
auto parts suppliers, conduct a large business as
distributors of nitrous oxide which is used at large
parties advertised on social media. Currently, that
practice is not illegal; however, Assembly Bill 1735
will address this problem.
8. Argument in Opposition
The American Civil Liberties Union states:
We are concerned about infringing on individual's
right to privacy in their purchases of lawful products
by requiring them to provide their name, address, and
driver's license information. People should not be
required to provide detailed personal information to
purchase products. This is not just an abstract
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privacy concern, but also a safety issue because
retailers and their employees could use the
information for unauthorized purposes. Finally, the
state should not be requiring the gathering of
personal information without demonstrating a
compelling need for that information and showing that
there are no less intrusive means to achieve that
interest.
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