BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
2
6
0
AB 2603 (V. Manuel Pérez) 3
As Amended May 23, 2014
Hearing date: June 24, 2014
Health and Safety Code
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LAWFUL POSSESSION OF A CONTROLLED SUBSTANCE:
POSSESSION FOR DELIVERY TO THE PRESCRIPTION HOLDER
HISTORY
Source: California Attorneys for Criminal Justice
Prior Legislation: AB 721 (Bradford) - Ch. 504, Stats. 2013
Support: Long Term Care Justice and Advocacy; California Senior
Legislature; Congress of California Seniors; Drug
Policy Alliance; Legal Services for Prisoners with
Children; California Public Defenders Association
Opposition:None known
Assembly Floor Vote: Ayes 79 - Noes 0
KEY ISSUES
SHOULD RELEVANT LAW SPECIFY THAT A PERSON MAY POSSESS A CONTROLLED
SUBSTANCE WITH THE AUTHORITY OF THE PATIENT FOR WHOM THE
PRESCRIPTION WAS ISSUED AND FOR THE PURPOSE OF DELIVERING THE
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CONTROLLED SUBSTANCE TO THE PATIENT?
SHOULD THE LAW SPECIFY THAT A PERSON MAY POSSESS A PRESCRIPTION
CONTROLLED SUBSTANCE FOR THE PURPOSE OF DISPOSAL?
PURPOSE
The purpose of this bill is to provide that it is lawful for a
person to possess a prescription controlled substance with the
authority of the person for whom the prescription was issued and
for the purpose or intent of delivering the prescription to him
or her within a reasonable period of time, and that is lawful to
possess a prescription solely for the purpose of authorized
disposal.
Existing law classifies controlled substances in five schedules
according to their danger and potential for abuse. Schedule I
controlled substances have the greatest restrictions and
penalties, including prohibiting the prescribing of a Schedule I
controlled substance. (Health & Saf. Code, §§ 11054 to 11058.)
Existing law makes it a crime to possess specified controlled
substances without a valid prescription from a licensed
physician, dentist, podiatrist, or veterinarian. (Health & Saf.
Code, §§ 11350 and 11377.)
Existing law makes it a crime to transport for sale specified
controlled substances unless upon the written prescription of a
licensed physician, dentist, podiatrist, or veterinarian.
(Health & Saf. Code, §§ 11352 and 11379.)
Existing law defines "prescription" for purposes of the
Controlled Substances Act (CSA), as "an oral order or electronic
transmission prescription for a controlled substance given
individually for the person(s) for whom prescribed, directly
from the prescriber to the furnisher or indirectly by means of a
written order of the prescriber." (Health & Saf. Code, § 11027,
subd. (a).)
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Existing law defines "ultimate user" for purposes of the CSA, as
"a person who lawfully possesses a controlled substance for his
own use or for the use of a member of his household or for
administering to an animal owned by him or by a member of his
household." (Health & Saf. Code, § 11030.)
Existing law defines "agent" for purposes of the CSA, as "an
authorized person who acts on behalf of or at the direction of a
manufacturer, distributor, or dispenser. It does not include a
common or contract carrier, public warehouseman, or employee of
the carrier or warehouseman." (Health & Saf. Code, § 11003.)
Existing law provides that a dangerous drug sold or delivered to
a person within California shall be transferred, sold or
delivered only to:
An entity licensed by the Pharmacy Board;
A manufacturer;
An ultimate user; or
The ultimate user's agent. (Bus. & Prof. Code, §
4059.5, subd. (b).)
Existing law states that no person shall possess any controlled
substance, except that furnished to a person upon the
prescription of a physician, dentist, podiatrist, veterinarian,
or other specified persons in the medical field. (Bus. & Prof.
Code, § 4060.)
Existing law states that no prescription for a controlled
substance shall be furnished to any person unknown and unable to
properly establish his or her identity. (Bus. & Prof. Code,
§ 4075.)
Existing law allows the Pharmacy Board to establish procedures
to prevent unauthorized persons from receiving prescription
drugs furnished to a patient or a representative of the patient.
(Bus. & Prof. Code, § 4075.)
This bill provides that it is not unlawful for a person other
than the prescription holder to possess a prescribed controlled
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substance under the following circumstances:
The possession of the prescribed controlled substance is
at the direction or with the express authorization of the
prescription holder; and
The person intends to deliver the prescription within a
reasonable amount of time or intends to discard the
controlled substance in an authorized manner.
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.
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
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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;
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
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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.
COMMENTS
1. Need for this Bill
According to the author:
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Relevant provisions in the Business and Professions
Code regulating pharmacies allow a prescription
holder's "agent" or "representative" to pick up the
prescription and deliver it to the prescription
holder. This agent is usually, and very often, a
family member. This is especially likely where the
prescription holder is too sick or frail to go the
pharmacy. The Board of Pharmacy also may promulgate
regulations "to prevent unauthorized persons from
receiving drugs furnished to a patient or
representative of the patient." (Bus. & Prof. Code
§4075.) This appears to establish a clear legislative
intent that a representative or agent of a patient -
such as a family member or friend - may pick up a
prescription and deliver it to the patient.
However, the Health and Safety Code provisions on
controlled substances appear to criminalize possession
of a controlled substance by any person other than the
holder of the prescription. The controlled substance
statutes do not include an exception or privilege for
possession for the sole purpose of delivering a drug
to the holder of a valid prescription. A recent
decision of the Court of Appeal - that has been
depublished by order of the Supreme Court -
essentially held that the Health and Safety Code
controlled substance statutes trump the Business and
Professions Code provisions that authorize an agent or
representative of a patient to deliver a prescription
to the holder of the prescription. While the
appellate case no longer is valid law, it still
illustrates a problematic conflict in the law.
AB 2603 addresses the conflict or inconsistency
between the Business and Professions Code and the
Health and Safety Code. AB 2603 clarifies and
establishes the prescription defense in the Health and
Safety Code. This bill will clarify that a family
member or friend will not inadvertently violate the
law by picking up and delivering a prescription to the
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prescription holder. This is especially important to
ensure that the ill, elderly and residents of remote
areas can obtain the medications they need.
2. Impetus for this Bill - No Privilege or Authority for a Third
Party to Possess a Prescription Controlled Substance to
Deliver it to the Prescription Holder
In People v. Carboni (2014) - formerly at 222 Cal.App.4th 834 -
the Third District Court of Appeal held that the prescription
defense does not apply to third-persons for whom the
prescription was not written. The California Supreme Court
denied review of the decision and ordered that opinion not be
published. As such, the decision has no precedential value and
cannot be cited to establish a point of law. Nevertheless, the
case illustrates the issues presented by this bill.
Following a traffic stop, Carboni was found in possession of 200
pills in a prescription bottle with a scratched-off label. He
did not have a prescription for the pills which were morphine,
hydrocodone, and valium. He was charged with possession and
transportation of controlled substances. (Health & Saf. Code,
§§ 11350, 11352, 11377 and 11379)<1>. At trial, the defense
presented evidence that Carboni had been helping an ill friend
move. Multiple witnesses testified that the pills belonged to
Carboni's friend and that he had valid prescriptions for them.
(Id. at pp.836-840.) The trial court refused to instruct on the
prescription defense, which provides that a person is not guilty
of possessing or transporting a controlled substance if he or
she has a valid written prescription for that substance by a
licensed physician. (Id. at p. 841.) Appellant was convicted
and appealed, alleging the trial court erred in failing to
instruct the jury on the application of the prescription
defense. (Id. at p. 842.)
The appellate court reviewed the language of the relevant Health
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<1> AB 721 (Bradford) Ch. 504, Stats. 2013 would provide a
defense to the transportation charge. AB 721 specifies that
"transportation" means transportation for sale.
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and Safety Code sections, each of which contained the words,
"unless upon the written prescription of a physician." (People
v. Carboni, supra, 222 Cal.App.4th at p. 842.) Applying the
rules of statutory construction, the court found that this
language clearly and unambiguously limits the prescription
defense to the person for whom the prescription was written.
(Ibid.) The court stated it is not enough that the prescription
drugs be issued under a valid prescription and subsequently
possessed or transported by another with an innocent reason for
doing so. (Ibid.) To allow the prescription defense to apply
to someone other than the person for whom the prescription is
written would rewrite the statutory requirements of the criminal
offenses at issue. (Id. at p. 843.)
The court acknowledged that its holding creates a legal
conundrum by not allowing the person who merely picks up a
relative's prescription at the pharmacy, fully intending to
deliver it to the prescription-holder, to assert the defense.
Nevertheless the court declined to expand the scope of the
prescription defense, stating it is for the Legislature, not the
court, to do so. (People v. Carboni, supra, 222 Cal.App.4th at
p. 844.)
The dissenting justice disagreed, noting that another rule of
statutory construction teaches "that the language of a statute
should not be given a literal meaning if doing so would result
in absurd consequences." (People v. Carboni, supra, 222
Cal.App.4th at p. 849.) The dissent noted that,
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"Under the majority's construction, common life experiences
would be criminalized, such as the act of a person picking up a
prescription from the pharmacy for an ill spouse.? Baby boomer
adults would be prevented from obtaining their parents'
medications from the pharmacy, transporting those medications,
and otherwise possessing those medications for the benefit of
their parents. Friends, neighbors and others who might also
assist a patient would face the same prohibition." (Id. at p.
850.)
The dissent also noted that the controlled substance statutes
define the "ultimate user" of a controlled substance more
broadly than the prescription holder, including both the person
who lawfully possesses the drug for his or her own use, or for
the use of a household member. (People v. Carboni, supra, 222
Cal.App.4th at p. 851.) Further, the Business and Professions
Code related to pharmacy law, contemplates that a pharmacist can
dispense prescription medication not only to the patient, but
also to the patient's agent or representative. (Id. at pp.
851-852.) For these reasons, the scope of the prescription
defense should include application to a patient's agent who
possesses or transports drugs for the patient's benefit. (Id.
at pp. 857-858.)
This bill clarifies that a patient's representative may possess
or transport prescription medications for a patient without
facing criminal prosecution.
3. Issue of the Length of Time the Defendant Held a Controlled
Substance Prescribed to Another Person
The bill provides that a person may be in possession of a
prescription controlled substance for a reasonable amount of
time in order to deliver the prescription to the prescription
holder. The sponsor and interested parties have discussed
whether the term "reasonable" amount of time is vague. There
have been suggestions that the bill could include a jury
instruction telling the jury how to consider evidence of the
length of time the defendant held the prescription in
determining if his or her purpose was to deliver it the
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prescription. It appears that the purpose of the defendant is
the critical element in the privilege to possess the drug. The
time the drug was possessed is properly a factor in determining
the defendant's intent, not the sole measure of intent or the
essence of the privilege or the crime of illicit possession if
the privilege does not apply. An instruction could be included
with the bill to guide the jury in considering the length of
time the defendant held the drug in determining the defendant's
intent.
An instruction in the following form is suggested. It is
similar to other instructions concerning specific kinds of
evidence:
In determining whether a defendant possessed a
prescription controlled substance with the express
authorization of the prescription holder and with the
intent to deliver the controlled substance to the
prescription holder, the jury may consider the length
of time the defendant was in possession of the
controlled substance and the activities of the
defendant after receiving the controlled substance.
The weight to which evidence of the length of time the
defendant held the prescription controlled substance
is entitled is a matter for the jury to determine.
The instruction can be modified to address circumstances where
the defendant possessed the controlled substance solely for the
purpose of disposing it in a lawful manner.
4. Analogous Circumstances Where Possession of an Otherwise
Illegal Object or Device is Lawful
This bill concerns an excuse or defense against otherwise
illegal possession of a controlled substance because the person
in possession of the controlled substance only possessed it for
the purpose of delivering it to a person who held a prescription
for the drug or for the purpose of discarding the drug. In a
reasonably analogous situation, a convicted felon may possess a
firearm for the purpose of self-defense if the possession is
AB 2603 (V. Manuel Pérez)
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without predesign and for no longer than necessary to carry out
this valid purpose. (People v. Mizchele (1983) 142 Cal.App.3d
686, 692.) While Mizchele involved the bedrock right of
self-defense, it can be analogized to other circumstances where
a person is essentially privileged to possess an otherwise
illicit object or substance because he or she possessed it for a
valid purpose.
5. Application of the Bill to Disposal of Drugs
Prescription drug abuse has grown in recent years. To address
the problem of misuse of prescription drugs by persons other
than the holder of the prescription, law enforcement and public
health officials have encouraged people to dispose of unused or
expired controlled substance prescriptions, eliminating the
opportunity for someone other than the prescription holder to
take the drugs. It has been often noted that drugs should not
be flushed down toilets or poured into drains. This creates a
public health problem because the drugs can get into drinking
water, as filtration and treatment system often cannot remove
drug residue.<2> The drugs should be taken to a pharmacy or
other authorized location. This bill would provide clarity that
a person who possesses a controlled substance solely for the
purpose of disposing of the drug is not in violation of the law.
Ironically, the lack of such a privilege or excuse could lead
to more drug abuse. Further, despite the need for disposal of
unused controlled substances, the process can be difficult and
complicated.<3>
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<2>
http://www.uspharmacist.com/content/d/pharmacy%20law/c/12639/
<3>
http://www.deadiversion.usdoj.gov/drug_disposal/non_registrant/s_
3397.pdf ;
http://www.deadiversion.usdoj.gov/21cfr/cfr/1307/1307_21.htm.
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