BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 2603|
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THIRD READING
Bill No: AB 2603
Author: V. Manuel Pérez (D), et al.
Amended: 8/7/14 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 6/24/14
AYES: Hancock, Anderson, De León, Knight, Liu, Mitchell,
Steinberg
ASSEMBLY FLOOR : 79-0, 5/28/14 - See last page for vote
SUBJECT : Controlled substances: permissive lawful possession
SOURCE : California Attorneys for Criminal Justice
DIGEST : This bill provides 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, as
specified.
Senate Floor Amendments of 8/7/14 substitute the term "intent of
the possessor" for "purpose of the possession."
ANALYSIS :
Existing law:
1. Classifies controlled substances in five schedules according
to their danger and potential for abuse. Schedule I
controlled substances have the greatest restrictions and
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penalties, including prohibiting the prescribing of a
Schedule I controlled substance.
2. Makes it a crime to possess specified controlled substances
without a valid prescription from a licensed physician,
dentist, podiatrist, or veterinarian.
3. Makes it a crime to transport for sale specified controlled
substances unless upon the written prescription of a licensed
physician, dentist, podiatrist, or veterinarian.
4. 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."
5. 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."
6. 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."
7. Provides that a dangerous drug sold or delivered to a person
within California shall be transferred, sold or delivered
only to:
A. An entity licensed by the Pharmacy Board;
B. A manufacturer;
C. An ultimate user; or
D. The ultimate user's agent.
1. 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.
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2. States that no prescription for a controlled substance shall
be furnished to any person unknown and unable to properly
establish his/her identity.
3. 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.
This bill provides that it is not unlawful for a person other
than the prescription holder to possess a prescribed controlled
substance under the following circumstances:
1. The possession of the prescribed controlled substance is at
the direction or with the express authorization of the
prescription holder; and
2. The sole intent of the possessor is to deliver the
prescription to the prescription holder for its prescribed
use or to discard the substance in a lawful manner.
Comments
According to the author:
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." ? 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
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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
prescription holder. This is especially important to ensure
that the ill, elderly and residents of remote areas can obtain
the medications they need.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 8/8/14)
California Attorneys for Criminal Justice (source)
California Association for Nursing Home Reform
California Public Defenders Association
California Senior Legislature
Congress of California Seniors
Consumer Federation of California
Drug Policy Alliance
Legal Services for Prisoners with Children
Taxpayers for Improving Public Safety
ASSEMBLY FLOOR : 79-0, 5/28/14
AYES: Achadjian, Alejo, Allen, Ammiano, Bigelow, Bloom,
Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian
Calderon, Campos, Chau, Chávez, Chesbro, Conway, Cooley,
Dababneh, Dahle, Daly, Dickinson, Donnelly, Eggman, Fong, Fox,
Frazier, Beth Gaines, Garcia, Gatto, Gomez, Gonzalez, Gordon,
Gorell, Gray, Grove, Hagman, Hall, Harkey, Roger Hernández,
Holden, Jones, Jones-Sawyer, Levine, Linder, Logue, Lowenthal,
Maienschein, Mansoor, Medina, Melendez, Mullin, Muratsuchi,
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Nazarian, Nestande, Olsen, Pan, Patterson, Perea, John A.
Pérez, V. Manuel Pérez, Quirk, Quirk-Silva, Rendon,
Ridley-Thomas, Rodriguez, Salas, Skinner, Stone, Ting, Wagner,
Waldron, Weber, Wieckowski, Wilk, Williams, Yamada, Atkins
NO VOTE RECORDED: Vacancy
JG:k 8/12/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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