BILL ANALYSIS �
SB 1283
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Date of Hearing: June 17, 2014
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 1283 (Galgiani) - As Amended: May 27, 2014
As Proposed to be Amended in Committee
SUMMARY : Creates a new infraction for the use and possession of
specified synthetic stimulant compounds, or synthetic
cannabinoids. Specifically, this bill :
1)Creates an infraction for the use or possession of specified
synthetic stimulant compounds or synthetic stimulant
derivatives, or any synthetic cannabinoid compound or any
synthetic cannabinoid derivative. Specifies the punishment
for the infraction is a maximum fine of $250.
2)Requests the Luskin School of Public Affairs at the University
of California, Los Angeles, or would require Judicial Council
to contract with another entity if the university does not
comply with that request, to design an evidence-based
education program and treatment model for participation in by
individuals convicted of the specified crimes.
3)Requires the Judicial Council to approve the program and
treatment model upon a finding that courts can successfully
implement the program and education model.
4)Authorizes a defendant, in his or her discretion, to elect to
participate in the evidence-based education program and
treatment model, if convicted of the above-described crimes,
in which case the execution of sentence would be stayed. The
bill would specify that upon successful completion of the
program, the case against the defendant would be dismissed.
EXISTING LAW :
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1)Lists controlled substances in five "schedules" - intended to
list drugs in decreasing order of harm and increasing medical
utility or safety - and provides penalties for possession of
and commerce in controlled substances. (Health & Saf. Code ��
11350-11401.)
2)Lists cathinone as a Schedule II controlled substance
stimulant and provides that simple possession of cathinone is
a misdemeanor, punishable by a jail term of up to six month, a
fine of up to $1,000, or both. (Health & Saf. Code �� 11055,
subd. (d)(8) and 11377, subd. (b)(3).)
3)Provides that possession for sale of khat or cathinone is a
felony punishable by 16 months, 2 years, or 3 years in state
prison. (Health & Saf. Code � 11378.)
4)Provides that transportation, sale, or furnishing of khat or
cathinone is a felony punishable by 2, 3, or 4 years in state
prison and a fine of up to $10,000. (Health & Saf. Code �
11379.)
5)Provides that any person who possesses for sale, sells or
furnishes any synthetic cannabinoid compound shall be punished
by imprisonment in the county jail for up to six months, a
fine of up to $1,000, or both. (Health & Saf. Code � 11357,
subd. (a.)
6)Provides that any person who sells, dispenses, distributes, or
gives the stimulant substances naphthylpyrovalerone or
cathinone, or specified variations of these drugs, or who
offers to do such acts, is guilty of a misdemeanor, punishable
by a jail term of up to six months, a fine of up to $1,000, or
both. (Health & Saf. Code � 11375.5.)
7)Provides that "no person shall use, or be under the influence
of, a specified controlled substance. Violation of this
provision is a misdemeanor. (Health & Saf. Code � 11550.)
Penalties and special provisions for being under the influence
of a controlled substance are the following: (Health & Saf.
Code � 11550, subds. (a)-(c).)
a) First time conviction: Jail term of from 90 days to one
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year. Probation may last up to five years. The court must
include a 90-day jail term as a condition of probation;
b) Third conviction within seven years of the prior
convictions: If the defendant refuses to complete a
licensed drug treatment program, the court must impose a
term of at least 180 days in jail unless there are no
reasonably available licensed programs;
c) The court may allow a defendant convicted for a second
time to complete a licensed drug treatment program in lieu
of all or part of the mandatory jail term; and,
d) Counties are encouraged to augment applications for
federal and state drug treatment money to treat persons
convicted of this offense.
8)Holds that within the context of Health and Safety Code
Section 11550, "use" of a controlled substance means current
use, or use immediately prior to arrest. (Bosco v. Justice
Court (1978) 77 Cal.App.3d 179, 191; People v. Velasquez
(1976) 54 Cal.App.3d 695.)
9)Requires non-violent drug possession offenders to be offered
drug treatment on probation, which shall not include
incarceration as a condition of probation, in the form of,
Proposition 36 (Nov. 2000 election), the Substance Abuse and
Crime Prevention Act of 2000 (SACPA). (Pen. Code �� 1210.1.)
10)Provides that non-violent drug possession offenses include:
(Pen. Code � 1210.)
a) Unlawful use, possession for personal use, or
transportation for personal use of a controlled substance;
b) Being under the influence of a controlled substance;
and,
c) SACPA eligibility is not affected by the classification
of the underlying drug possession offense as a felony or
misdemeanor. The controlling factor is that the drug is a
controlled substance.
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FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The current law
relating to synthetic drugs is inconsistent with the rest of
the law relating to controlled substances. Although
possession for sale is currently illegal, simple use and
possession is perfectly legal. This incentivizes the use of
these drugs despite their inherent danger. Kids believe that
it's not dangerous if it isn't illegal. Also, the
manufacturers of these drugs market their product to kids as
'legal drugs' because if the kids get caught, they will not
face any punishment."
2)Failure of the "War on Drugs" : In June 2011, the Global
Commission on Drug Policy (Commission) released a report, "War
on Drugs", examining global drug policy over the past
half-century. The purpose of the Commission is to "bring to
the international level an informed, science-based discussion
about humane and effective ways to reduce the harm caused by
drugs to people and societies" and is comprised of current and
former heads of state, public officials, and experts. (Global
Commission on Drug Policy. For a full list of Commission
members, please visit
< http://www.globalcommissionondrugs.org/Commission >.)
The report states, "The global war on drugs has failed, with
devastating consequences for individuals and societies around
the world. Fifty years after the initiation of the UN Single
Convention on Narcotic Drugs, and 40 years after President
Nixon launched the US government's war on drugs, fundamental
reforms in national and global drug control policies are
urgently needed.
"Vast expenditures on criminalization and repressive measures
directed at producers, traffickers and consumers of illegal
drugs have clearly failed to effectively curtail supply or
consumption. Apparent victories in eliminating one source or
trafficking organization are negated almost instantly by the
emergence of other sources and traffickers. Repressive
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efforts directed at consumers impede public health measures to
reduce HIV/AIDS, overdose fatalities and other harmful
consequences of drug use. Government expenditures on futile
supply reduction strategies and incarceration displace more
cost-effective and evidence-based investments in demand and
harm reduction." [Global Commission on Drug Policy, War on
Drugs (June 2011).]
Among the recommendations found in the report, the Commission
recommended implementing drug policies and strategies that are
fiscally responsible and are grounded in science, health,
security and human rights, rather than those driven by
ideology and political convenience. (Id. at pg. 3.)
Specifically, the Commission recommends reassessing the manner
in which drugs are scheduled, mentioning cannabis as one drug
that is anomalously scheduled high in proportion to its risk,
as determined by an independent expert assessment of risk.
(Id. at 11-12.) The Commission does not specifically mention
synthetic cannabinoid compounds, but because of the chemical
similarity to cannabis (marijuana), it is likely the
commission would view regulation of such compounds in a
similar manner.
In preparation of the final report, the Commission requested a
number of background papers. One of these background papers
examined the effects of current drug policy on the criminal
justice system and incarceration. This paper stated, "The
last three decades have witnessed a global increase in the
criminalization of improper drug use. Criminalization has
resulted in increased use of harsh punitive sanctions imposed
on drug offenders and dramatic increases in rates of
incarceration. These policies have had limited impact on
eliminating or reducing illegal drug use and may have resulted
in adverse consequences for social and community health. The
criminal justice system has proved to be an ineffective forum
for managing or controlling many aspects of the drug trade or
the problem of illegal drug usage."
"Drug Policy and the incarceration of low-level drug offenders
is the primary cause of mass incarceration in the United
States. 40% of drug arrests are for simple possession of
marijuana. There is also evidence that drug enforcement has
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diverted resources from law enforcement of violent crimes and
other threats to public safety. Incarceration of low-level
drug offenders has criminogenic effects that increase the
likelihood of recidivism and additional criminal behavior . .
. . Growing evidence indicates that drug treatment and
counseling programs are far more effective in reducing drug
addiction and abuse than is incarceration." [Bryan Stevenson,
Global Commission on Drug Policy, Drug Policy, Criminal
Justice, and Mass Imprisonment (January 2011) pg. 2.]
3)Synthetic Cannabinoids : The European Monitoring Centre for
Drugs and Drug Addiction (EMCDDA) is a European Union agency.
The EMCDDA website states that it "exists to provide the EU ?
with a factual overview of European drug problems and a solid
evidence base to support the drugs debate."
The EMCDDA website includes the following information about
synthetic cannabinoids:
Synthetic cannabinoids ?. bind to the same cannabinoid
receptors in the brain [as THC] ? More correctly
designated as cannabinoid receptor agonists, they were
developed over the past 40 years as therapeutic
agents, often for ? pain. However, it proved difficult
to separate the desired properties from unwanted
psychoactive effects. Although often referred to
simply as synthetic cannabinoids, many of the
substances are not structurally related to the
so-called 'classical' cannabinoids, i.e., compounds,
like THC?
The synthetic cannabinoids fall into seven major
structural groups ?. Identification and quantitative
analysis is limited by the availability of pure
reference samples. No field tests ? will detect the
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majority of synthetic cannabinoids. [F]orensic
analysis of blood samples for the recent intake
detection of synthetic cannabinoids [is] available in
some laboratories. [D]etection of metabolites in
urine samples is not yet fully developed.
[L]ittle is known about the detailed pharmacology and
toxicology of the synthetic cannabinoids and few
formal human studies have been published. It is
possible that, apart from high potency, some
cannabinoids could have? long half-lives potentially
leading to a prolonged psychoactive effect. ? [T]here
could be considerable ? batch variability? in terms of
substances present and ?quantity. Thus, there is a
higher potential for overdose than with cannabis.
(Italics added.)
4)Regulation of Synthetic Cannabinoids : Cannabinoids are
essentially drugs that bind to certain receptors in the brain
- the same receptors to which THC and other drugs obtained
from cannabis bind. Synthetic cannabinoids are often
inaccurately described as "synthetic marijuana" or "synthetic
THC" - the most prominent psychoactive chemical in marijuana.
However, as the preceding comment illustrates, synthetic
cannabinoids are often not closely related chemically or
similar to THC.
If any synthetic cannabinoid can be shown to be chemically
equivalent to THC, or the effects of the drug equivalent to
THC, conduct involving the synthetic cannabinoid would be
subject to prosecution because the drug would be considered an
analog of THC. An analog is a drug that is substantially
similar in chemical structure or effects to a scheduled drug.
Under California law, an analog of a controlled substance is
essentially treated as a controlled substance. Because many
synthetic cannabinoids may not be similar in properties or
chemical structure to THC, the ability of prosecutors to use
the analog statute in synthetic cannabinoid cases may be
limited. This is particularly likely if the defendant retains
an expert who can explain the chemistry and effects of
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cannabinoids.
The diverse structures and effects on a user of synthetic
cannabinoids also make it difficult to draft a statute
including the drugs in the controlled substance schedules as
generic groups or classes of drugs, unlike opiates for
example. It could be necessary to name each class or form of
similar synthetic cannabinoids, and perhaps numerous
individual chemicals. There are dozens, if not hundreds, of
synthetic cannabinoids and more could be developed.
A legislative effort to ban synthetic cannabinoids could be
difficult to achieve. The National Conference of State
Legislatures (NCSL) has posted a list of the eight groups of
synthetic cannabinoids that are variously prohibited in
numerous state codes. Consistent with the NCSL list, it
appears that as of 2013 the federal controlled substances
schedules include 26 individual synthetic cannabinoids or
synthetic stimulants and eight types of synthetic
cannabinoids. This was done through congressional action and
emergency scheduling by the federal Drug Enforcement
Administration (DEA). Nevertheless, in February of 2013, the
American Association for Clinical Chemistry Website posted
diagrams of the chemical composition of synthetic cannabinoids
in products tested in September 2012. Of the 16 detected
compounds or chemicals, only five were included in the federal
drug schedules.
A March 3, 2014 posting on the Website-electronic journal
EmDocs - Emergency Medicine Education - noted that new forms
of synthetic cannabinoids were being developed to avoid
detection in drug tests and greater intoxication. Each new
form has its own "distinctive binding affinity" to cannabinoid
receptors. "First generation synthetic cannabinoids are
believed to be more benign than the newer generation
cannabinoids, which are more likely to cause cardiotoxicity
and neurotoxicity." It appears that efforts to stay ahead of
synthetic cannabinoid prohibitions will result in more
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problematic substances.
5)Synthetic Stimulant Naphthylpyrovalerone : The United Kingdom
Advisory Council on the Misuse of Drugs (ACMD) is an agency of
the UK Home Office that advises policy makers on drug issues.
In the past few years, the ACMD has reported on the synthetic
stimulants covered by this bill.
The ACMD has stated that naphthylpyrovalerone (or naphyrone)
"acts as a triple monoamine reuptake inhibitor, producing
psychostimulant effects." The report<1> noted that naphyrone
has been described as being stronger than cocaine or
amphetamines. However, a prominent product branded as NRG-1
may not necessarily contain naphyrone or naphthylpyrovalerone,
but may contain "naphyrone or any number of other
cathinones?caffeine or other?constituents."
Triple reuptake inhibitors affect the neurotranmitters
dopamine, serotonin and norepinephrine. Cocaine is a triple
reuptake inhibitor. (Methamphetamine affects dopamine
neurotransmitters and MDMA (ecstasy) affects the serotonin
system.) Naphyrone also appears to cause direct release of
neurotransmitters. In sum, naphyrone appears to be a highly
potent stimulant, perhaps many times stronger than cocaine.
6)Analog Prosecution Issues : The ACMD report also stated:
"Naphyrone has a close structural resemblance to the
cathinones such as mephedorne and methylenedioxy-pyrovalerone
MDVP. Naphyrone, however, remains outside the generic
definition in which a number of cathinones ? were controlled
[in 2010]." In particular, the ACMD report stated:
"Naphyrone is a naphthyl analogue of the cathinones ?" The
European drug monitoring agency reports that synthetic
cathinones are controlled as a class of drug in the UK.
California controlled substance law includes five schedules.
The schedules list specified chemicals and often include the
salts and other variants of the scheduled drug. It would
appear that many of the listed controlled substances could be
said to include generic definitions.
--------------------------
<1> UK Advisory Council on Misuse of Drugs (ACMD) Consideration
of naphthylpyrovalerone analogues and related compounds .
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California controlled substance law also allows prosecution of
a person for possession of and commerce in a drug that is an
"analog" of a Schedule I or II drug. (Health & Saf. Code ��
11400-11401.) The purpose of the analog law is to prevent
"street chemists" from circumventing drug laws by synthesizing
drugs "which have, are represented to have, or are intended to
have effects on the central nervous system which are
substantially similar to, or greater than" scheduled drugs.
(Health & Saf. Code � 11400.)
An analog is defined as:
(1) A substance the chemical structure of which is
substantially similar to the chemical structure of a
[Schedule I or II controlled substance].
(2) A substance which has, is represented as having,
or is intended to have a stimulant, depressant, or
hallucinogenic effect on the central nervous system
that is substantially similar to, or greater than, the
stimulant, depressant, or hallucinogenic effect on the
central nervous system of a [Schedule I or II
controlled substance]. (Health & Saf. Code � 11401.)
Appellate court decisions have held that the analog statute
has a broad application. Clearly, an analog need not fit
within the definition of a scheduled drug. In People v.
Becker (2010) 183 Cal. App. 4th 1151, the appellate court
upheld the defendant's conviction for possession of MDMA as an
analog of methamphetamine, a Schedule II controlled substance.
The court found that there was substantial evidence that MDMA
produced effects that were "substantially similar" to
methamphetamine. The major testimony to support the
prosecution's case was that of the police investigator who
stated: "It's initially much like cocaine. Its methyldioxy
methamphetamine that is what MDMA is. So from the
methamphetamine, logically it's a stimulant, so you would get
a dramatically raised heartbeat?" The investigator noted that
MDMA also has hallucinogenic effects. (Id., at p. 1154-1155.)
The Becker case supports a conclusion that the California
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analog law is quite broad. Cathinone is a Schedule II
stimulant. (Health & Saf. Code � 11055, subd. (d)(8).) If
the UK ACMD report is correct that naphthylpyrovalerone "has a
close structural resemblance to cathinones" and that the drug
is a psychostimulant, naphthylprovalerone may be found to be
an analog of cathinone under California law. Further, as
naphthylpyrovalerone interacts with the same neurotransmitters
as cocaine, and produces similar effects, it could possibly be
said to be an analog of cocaine.
Committee staff is unaware of any case where a district
attorney was unable to prosecute possessors of so-called "bath
salts" under the analog statute. Nor is staff aware of any
particular cases where such a prosecution was upheld.
However, discussions with representatives of district
attorneys indicate that the Los Angeles District Attorney may
believe that his or her office can prosecute bath salt
(naphthylpyrovalerone) cases pursuant to the analog law.
The DEA has reported significant success in applying the
federal analogue statute to "many" synthetic drugs of all
kinds. However, it is not clear if most synthetic
cannabinoids in current use are included.
Nevertheless, the National Institutes of Health's PubMed site
included an abstract of an emergency medicine journal article
that stated as to all of the new classes of synthetic drugs:
"Slight alterations of the basic chemical structure of
substances create an entirely new drug no longer regulated by
current laws and an ever-changing landscape of clinical
effects." It also appears that new forms of synthetic drugs
are being constantly developed.
The author has expressed a willingness to further define the
scientific compounds and analogs of the substances referenced
in this bill. These amendments would strengthen the
legislation and improve the policy.
7)Argument in Support : According to the California Narcotic
Officers' Association , "The California Narcotic Officers
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Association commends you for your introduction of Senate Bill
1283. This legislation would prohibit the possession of
so-called 'bath salts' and 'synthetic marijuana.'
" 'Ivory Wave,' 'Purple Wave,' 'Vanilla Sky,' and 'Bliss' are
among the many street names of so-called designer drugs known
as 'bath salts,' which have sparked thousands of calls to
poison centers across the U.S. These drugs contain synthetic
chemicals that are similar to amphetamines. Some, but not
all, of the chemicals used to make them are illegal.
"With names like Spice, K2, No More Mr. Nice Guy, and hundreds
of others, the drugs often called 'synthetic marijuana' are -
in reality - very different from marijuana. They contain
powerful chemicals called cannabimimetics and can cause
dangerous health effects. The drugs are made specifically to
be abused. Like many other illegal drugs, synthetic marijuana
is not tested for safety, and users don't really know exactly
what chemicals they are putting into their bodies.
"Although sale and possession for sale are prohibited in
California, possession of bath salts or spice is permitted.
"Put simply, these are products that not only harm the user,
they are pharmacological assault weapons. There have been
numerous instances of persons under the influence of bath
salts or spice engaging in aggressive actions against others.
The most visible manifestation of those actions involved an
incident in Miami where a person under the influence of bath
salts literally ate the face off of a homeless man.
"Senate Bill 1283 will prohibit the possession of bath salts
or spice, making possession a misdemeanor. The reality is
that persons arrested for possession will not be incarcerated.
Instead, pursuant to Proposition 36, they will be sent to a
treatment program, where they will have a chance to free
themselves from an extremely destructive addiction."
8)Argument in Opposition: According to the Drug Policy
Alliance , "As currently written, SB 1283 would create new
penalties for the possession of synthetic cannabinoids and
stimulants for personal use.
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"We do not believe that it is the author's intent to deny
young people and others the opportunity to go to college, join
the armed forces, or find employment. However, that is the
likely outcome of SB 1283. The lifetime consequences of a
misdemeanor drug possession offense include: loss of
educational benefits to pay for college; denial of federally
subsidized housing benefits; denial of nutritional and job
training benefits (in other states); reduced opportunity for
employment in the public and private sector; discharge from
military service; and, loss of veterans benefits, among
others. These life-long collateral consequences are simply
not warranted, and do nothing to advance our state's public
safety, public health and economic goals.
"Further, the Drug Policy Alliance opposes this bill because
our current drug laws are applied in a racially and
economically biased manner and there is no reason to believe
that these new penalties will be applied equitably.
"Drug Policy Alliance did not oppose penalties for sale or
possession for sale of synthetic cannabinoids and stimulants,
in order to get these new and potentially harmful products out
of convenience store or other settings where adults or minors
might purchase them. However, we cannot ever condone locking
someone up for what they put into their own body, or possess
solely for their own personal use. The drug war/mass
incarceration approach has wasted billions of public dollars,
and erected lifetime barriers to successful employment and
education. These employment, housing, nutrition and education
barriers fall hardest on low income communities of color."
9)Prior Legislation :
a) AB 2420 (Hueso) 2011-2012 legislative session, would
have created infraction and misdemeanor penalties for
possession or use of specified synthetic stimulants and
synthetic cannabinoids. AB 2420 failed passage in Assembly
Public Safety.
b) AB 486 (Hueso), Chapter 656, Statutes of 2011,
prohibited the sale, dispensing, distribution, furnishment,
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administration or giving, or attempt to do so, of any
synthetic stimulant compound of any specified synthetic
stimulant derivative. Violation of this section is
punishable by imprisonment in a county jail not exceeding 6
months, or by a fine not exceeding $1,000, or by both that
fine and imprisonment.
c) SB 420 (Hernandez) Chapter 420, Statutes of 2011,
prohibited the sale, dispensing, distribution, furnishment,
administration or giving, or attempt to do so, of any
synthetic cannabinoid compound or any synthetic cannabinoid
derivative. Violation of this section is punishable by
imprisonment in a county jail not exceeding 6 months, or by
a fine not exceeding $1,000, or by both that fine and
imprisonment.
REGISTERED SUPPORT / OPPOSITION :
Support
California Narcotic Officers' Association
Opposition
A New PATH
American Civil Liberties Union
American Friends Service Committee
California Attorneys for Criminal Justice
California CURE
California Public Defenders Association
Drug Policy Alliance
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744
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