Existing law makes it a crime to possess specified controlled substances, a controlled substance analog, or drug paraphernalia. Existing law provides that it is not a crime for a person who experiences a drug-related overdose and who, in good faith, seeks medical assistance, or any other person who, in good faith, seeks medical assistance for the person experiencing a drug-related overdose, to be under the influence of, or to possess for personal use, a controlled substance, controlled substance analog, or drug paraphernalia, under certain circumstances related to a drug-related overdose that prompted seeking medical assistance if that person does not obstruct medical or law enforcement personnel.

This bill would define seeking medical assistance for the purposes of the above-described exemption. The bill would also provide that it is not a crime for a person to possess for personal use a controlled substance, controlled substance analog, or drug paraphernalia, if the person delivers the controlled substance or controlled substance analog to the local public health department or law enforcement and notifies them of the likelihood that other batches of the controlled substance may have been adulterated with other substances, if known. The bill would make the persons identity confidential.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make a legislative finding to that effect.

Existing law makes it a crime to possess specified controlled substances, a controlled substance analog, or drug paraphernalia. Existing law provides that it is not a crime for a person who experiences a drug-related overdose and who, in good faith, seeks medical assistance, or any other person who, in good faith, seeks medical assistance for the person experiencing a drug-related overdose, to be under the influence of, or to possess for personal use, a controlled substance, controlled substance analog, or drug paraphernalia, under certain circumstances related to a drug-related overdose that prompted seeking medical assistance if that person does not obstruct medical or law enforcement personnel.

This bill would define seeking medical assistance for the purposes of the above-described exemption. The bill would also provide that it is not a crime for a person to possess for personal use a controlled substance, controlled substance analog, or drug paraphernalia, if the person delivers the controlled substance or controlled substance analog to the local public health department or law enforcement and notifies them of the likelihood that other batches of the controlled substance may have been adulterated with other substances, if known. The bill would make the persons identity confidential.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make a legislative finding to that effect.

Existing law makes it a crime to possess specified controlled substances, a controlled substance analog, or drug paraphernalia. Existing law provides that it is not a crime for a person who experiences a drug-related overdose and who, in good faith, seeks medical assistance, or any other person who, in good faith, seeks medical assistance for the person experiencing a drug-related overdose, to be under the influence of, or to possess for personal use, a controlled substance, controlled substance analog, or drug paraphernalia, under certain circumstances related to a drug-related overdose that prompted seeking medical assistance if that person does not obstruct medical or law enforcement personnel.

This bill would define seeking medical assistance for the purposes of the above-described exemption. The bill would also provide that it is not a crime for a person to possess for personal use a controlled substance, controlled substance analog, or drug paraphernalia, if the person delivers the controlled substance or controlled substance analog to the local public health department or law enforcement and notifies them of the likelihood that other batches of the controlled substance may have been adulterated with other substances, if known. The bill would make the persons identity confidential.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make a legislative finding to that effect.

Existing law makes it a crime to possess specified controlled substances, a controlled substance analog, or drug paraphernalia. Existing law provides that it is not a crime for a person who experiences a drug-related overdose and who, in good faith, seeks medical assistance, or any other person who, in good faith, seeks medical assistance for the person experiencing a drug-related overdose, to be under the influence of, or to possess for personal use, a controlled substance, controlled substance analog, or drug paraphernalia, under certain circumstances related to a drug-related overdose that prompted seeking medical assistance if that person does not obstruct medical or law enforcement personnel.

This bill would define seeking medical assistance for the purposes of the above-described exemption. The bill would also provide that it is not a crime for a person to possess for personal use a controlled substance, controlled substance analog, or drug paraphernalia, if the person tests the controlled substance or controlled substance analog and determines that the substance is adulterated with another substance, including, but not limited to, fentanyl, and notifies law enforcement, as specified. The bill would state the intent of the Legislature. delivers the controlled substance or controlled substance analog to the local public health department or law enforcement and notifies them of the likelihood that other batches of the controlled substance may have been adulterated with other substances, if known. The bill would make the persons identity confidential.

Existing law provides that it is not a crime for a person who experiences a drug-related overdose and who, in good faith, seeks medical assistance, or any other person who, in good faith, seeks medical assistance for the person experiencing a drug-related overdose, to be under the influence of, or to possess for personal use, a controlled substance, controlled substance analog, or drug paraphernalia, under certain circumstances related to a drug-related overdose that prompted seeking medical assistance if that person does not obstruct medical or law enforcement personnel.

This bill would provide that it is not a crime for a person to possess for personal use a controlled substance, controlled substance analog, or drug paraphernalia, if the person tests the controlled substance or controlled substance analog and determines that the substance is adulterated with another substance, including, but not limited to, fentanyl, and notifies law enforcement, as specified. The bill would state the intent of the Legislature.

Existing law defines certain chemicals as controlled substances and prohibits, among other things, the possession and use of those substances. Existing law also defines drug paraphernalia and prohibits, among other things, the manufacture, sale, and possession, as specified, of drug paraphernalia.

This bill would make technical, nonsubstantive changes to that provision.

 UNFINISHED BUSINESS  

Bill No: SB 250

Author: Umberg (D)

Amended: 6/14/23

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 5-0, 4/25/23

AYES: Wahab, Ochoa Bogh, Bradford, Skinner, Wiener

SENATE FLOOR: 40-0, 5/22/23

AYES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

ASSEMBLY FLOOR: 71-0, 6/22/23 (Consent) - See last page for vote

SUBJECT: Controlled substances: punishment

SOURCE: Author

DIGEST:

This bill prohibits the use of a statement made by a person who is immune from prosecution for being under the influence of a controlled substance or in possession of a controlled substance, controlled substance analog, or drug paraphernalia, as specified, as evidence in a criminal proceeding against the person for being under the influence of, or possessing for personal use, a controlled substance, controlled substance analog, or drug paraphernalia; and provides that it is not a crime for a person to possess for personal use a controlled substance, controlled substance analog, or drug paraphernalia if specified conditions are satisfied.

Assembly Amendments

revise provisions of the bill to clarify that communications made verbally or in writing for the purpose of obtaining medical assistance are covered under the existing immunity from prosecution for being under the influence of or for possession of a controlled substance when seeking medical assistance for a drug overdose; and provide that a person who delivers a controlled substance believed to be adulterated by another substance to law enforcement may also deliver the substance to the local health department, their identity will remain confidential, and the person is not required to identify the person from whom they received the controlled substance.

ANALYSIS:

Existing law:

1. Prohibits the possession of several specified controlled substances. (Health & Saf. Code, §§ 11350, 11377.)
2. Provides that it is unlawful to be under the influence of specified controlled substances. (Health & Saf. Code, § 11550, subd. (a).)
3. Defines “drug paraphernalia” as all equipment, products and materials of any kind which are designed for use or marketed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of existing law. (Health & Saf. Code, § 11041.5, subd. (a).)
4. Specifies that “drug paraphernalia” does not include any testing equipment designed, marketed, intended to be used, or used, to test a substance for the presence of fentanyl, ketamine, gamma hydroxybutyric acid, or any analog of fentanyl. (Health & Saf. Code, § 11041.5, subd. (d).)
5. Provides that it is not a crime for a person to be under the influence of, or to possess for personal use, a controlled substance, controlled substance analog, or drug paraphernalia, if that person, in good faith, seeks medical assistance for another person experiencing a drug-related overdose that is related to the possession of a controlled substance, controlled substance analog, or drug paraphernalia of the person seeking medical assistance, and that person does not obstruct medical or law enforcement personnel. Provides that no other immunities or protections from arrest or prosecution for violations of the law are intended or may be inferred. (Health & Saf. Code, § 11376.5, subd. (a).)
6. Provides that it is not a crime for a person who experiences a drug-related overdose and who is in need of medical assistance to be under the influence of, or to possess for personal use, a controlled substance, controlled substance analog, or drug paraphernalia, if the person or one or more other persons at the scene of the overdose, in good faith, seek medical assistance for the person experiencing the overdose. Provides that no other immunities or protections from arrest or prosecution for violations of the law are intended or may be inferred. (Health & Saf. Code, § 11376.5, subd. (b).)
7. Provides that the above provisions pertaining to immunity do not affect laws prohibiting the selling, providing, giving, or exchanging of drugs, or laws prohibiting the forcible administration of drugs against a person’s will. (Health & Saf. Code, § 11376.5, subd. (c).)
8. Provides defines “drug-related overdose” as an acute medical condition that is the result of the ingestion or use by an individual of one or more controlled substances or one or more controlled substances in combination with alcohol, in quantities that are excessive for that individual that may result in death, disability, or serious injury. Provides that an individual’s condition is deemed to be a “drug-related overdose” if a reasonable person of ordinary knowledge would believe the condition to be a drug-related overdose that may result in death, disability, or serious injury. (Health & Saf. Code, § 11376.5, subd. (e).)
9. Provides immunity from criminal prosecution for possession of alcohol or purchasing alcohol when under 21 years of age to any person under the age of 21 years, where the person establishes all of the following:
10. The underage person called 911 and reported that either himself or herself or another person was in need of medical assistance due to alcohol consumption.
11. The underage person was the first person to make the 911 report.
12. The underage person, who reported that another person was in need of medical assistance, remained on the scene with the other person until that medical assistance arrived and cooperated with medical assistance and law enforcement personnel on the scene.

(Bus. & Prof. Code, § 25667, subd. (a).)

This bill:

1. Prohibits a statement provided by a person who is immune from prosecution for being under the influence of a controlled substance or in possession of a controlled substance, controlled substance analog, or drug paraphernalia, and which is made in connection with the acts giving rise to that immunity, from being used as evidence in a criminal proceeding against the person for the crime of being under the influence of, or possessing for personal use, a controlled substance, controlled substance analog, or drug paraphernalia, if all of the following are satisfied:
2. One of the immunity provisions is used as an affirmative defense against the charge.
3. The statement was made by the person in the course of seeking medical assistance for another person experiencing a drug-related overdose.
4. The drug-related overdose of the other person is related to the possession of a controlled substance, controlled substance analog, or drug paraphernalia by the person seeking medical assistance.
5. Provides that its provisions do not apply to a criminal charge of the person where none of the existing immunity provisions is a viable affirmative defense.
6. Provides that is not a crime for a person to possess for personal use a controlled substance, controlled substance analog, or drug paraphernalia if both of the following conditions are satisfied:
   1. The person tests the controlled substance or controlled substance analog and determines that the substance is adulterated with another substance, including, but not limited to, fentanyl.
   2. After receiving the testing result, the person notifies law enforcement of the positive test, the individual from whom the person obtained the controlled substance or controlled substance analog, and the likelihood that other batches of the controlled substance may have been adulterated with other substances.
7. Provides that no other immunities or protections from arrest or prosecution for violations of the law are intended or may be inferred.

Background

In 2012, the Legislature enacted AB 472 (Ammiano, Chapter 338, Statutes of 2012) which established immunity from criminal prosecution for a person to be under the influence of, or to possess for personal use, a controlled substance, controlled substance analog, or drug paraphernalia, if the person, in good faith, sought medical assistance for another person experiencing a drug-related overdose that was related to the possession of a controlled substance, controlled substance analog, or drug paraphernalia of the person seeking medical assistance, and that person does not obstruct medical or law enforcement personnel. AB 472 was introduced following an increase in drug overdoses in the state with the intent of encouraging drug overdose victims and witnesses to seek emergency assistance by providing those seeking medical attention with limited immunity for conducted related to drug use (i.e., being under the influence of a controlled substance and possession of a controlled substance, controlled substance analog, or drug paraphernalia).

This bill clarifies that the immunity would apply when a person seeks medical assistance verbally, in writing, or in the form of data from a health-monitoring device. This bill also provides that it is not a crime for a person to possess a controlled substance for personal use if the person delivers the controlled substance to the local public health department or to law enforcement, and if the person provides the agency with information about the likelihood that the substance has been adulterated with another substance. The goal of this bill is to encourage people to inform a public health official or law enforcement if they suspect drugs in their possession have been adulterated.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 6/22/23)

Attorney General Rob Bonta

California Youth Empowerment Network

Govern for California

Mental Health America of California

OPPOSITION: (Verified 6/22/23)

None received

ASSEMBLY FLOOR: 71-0, 6/22/23

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Vince Fong, Friedman, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ta, Villapudua, Waldron, Wallis, Ward, Weber, Wilson, Wood, Zbur, Rendon

NO VOTE RECORDED: Bains, Gabriel, Lowenthal, Maienschein, Pellerin, Sanchez, Ting, Valencia, Wicks

Prepared by: Stephanie Jordan / PUB. S. /

6/23/23 12:29:17

**** END ****

Date of Hearing: June 13, 2023

Counsel: Andrew Ironside

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 250

Author:(Umberg) – As Amended Ver:June 5, 2023

As Proposed to be Amended in Committee

SUMMARY: Provides that a person is immune from prosecution for possession of a controlled substance or controlled substance analog for personal use if they deliver the substance to the local public health agency or to local law enforcement. Specifically, this bill:

1. Provides that it shall not be a crime for a person to possess for personal use a controlled substance, controlled substance analog, or drug paraphernalia if the person delivers the controlled substance or controlled substance analog to the local public health department or to law enforcement and notifies them of the likelihood that other batches of the controlled substance may have been adulterated with other substances.
   
2. Provides that the identity of a person who delivers a controlled substance to the local public health department or to law enforcement shall remain confidential.
   
3. Provides that the person may, but shall not be required to, reveal the identity of the individual from whom the person obtained the controlled substance or controlled substance analog.
   
4. Defines “seeks medical assistance” or “seek medical assistance,” for purposes of the Good Samaritan Law, as any communication made verbally, in writing, or in the form of data from a health-monitoring device, including, but not limited to, smart watches, for the purpose of obtaining medical assistance.
   
5. Declares that it is necessary to restrict access to public records and maintain confidentiality of people who deliver controlled substances to public health officials or law enforcement in order to encourage people to relinquish controlled substances they suspect have been adulterated.

EXISTING LAW:

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. Schedule I includes the most serious and heavily controlled substances, with Schedule V being the least serious and most lightly controlled substances. (Health & Saf. Code, §§ 11054-11058.)
   
2. Provides that the possession of specified controlled substances is a misdemeanor punishable by up to one year in county jail, except when a person has one or more specified prior convictions. (Health & Saf. Code, §§ 11350, 11377.)
   
3. Provides that to be under the influence of specified controlled substances is a misdemeanor punishable by up to one year in county jail and, subject to the court’s discretion, a term of probation not to exceed five years. (Health & Saf. Code, § 11550, subd. (a).)
   
4. Provides that it is not a crime for a person to be under the influence of, or to possess for personal use, a controlled substance, controlled substance analog, or drug paraphernalia, if that person, in good faith, seeks medical assistance for another person experiencing a drug-related overdose that is related to the possession of a controlled substance, controlled substance analog, or drug paraphernalia of the person seeking medical assistance, and that person does not obstruct medical or law enforcement personnel. This is known as the Good Samaritan Law. (Health & Saf. Code, § 11376.5, subd. (a).)
   
5. Provides that it is not a crime for a person who experiences a drug-related overdose and who is in need of medical assistance to be under the influence of, or to possess for personal use, a controlled substance, controlled substance analog, or drug paraphernalia, if the person or one or more other persons at the scene of the overdose, in good faith, seek medical assistance for the person experiencing the overdose. (Health & Saf. Code, § 11376.5, subd. (b).)
   
6. Provides that the provisions pertaining to immunity for seeking medical assistance for some suffering an drug-related overdose do not affect laws prohibiting the selling, providing, giving, or exchanging of drugs, or laws prohibiting the forcible administration of drugs against a person’s will. (Health & Saf. Code, § 11376.5, subd. (c).)
   
7. Defines “drug-related overdose” as an acute medical condition that is the result of the ingestion or use by an individual of one or more controlled substances or one or more controlled substances in combination with alcohol, in quantities that are excessive for that individual that may result in death, disability, or serious injury. Provides that an individual’s condition is deemed to be a “drug-related overdose” if a reasonable person of ordinary knowledge would believe the condition to be a drug-related overdose that may result in death, disability, or serious injury. (Health & Saf. Code, § 11376.5, subd. (e).)
   
8. Provides that, except as specified, the term "controlled substance analog" means either of the following:
   
   1. A substance the chemical structure of which is substantially similar to the chemical structure of specified controlled substances; or
      
   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 specified controlled substances. (Health & Saf. Code, § 11401, subd. (b)(1) & (2).)
      
9. Specifies that the term "controlled substance analog" does not mean “any substance for which there is an approved new drug application as specified under the federal Food, Drug, and Cosmetic Act or which is generally recognized as safe and effective as specified by the federal Food, Drug, and Cosmetic Act.” (Health & Saf. Code, § 11401, subd. (c)(1).)
   
10. Defines “drug paraphernalia” as all equipment, products and materials of any kind which are designed for use or marketed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of existing law. (Health & Saf. Code, § 11041.5, subd. (a).)
    
11. Specifies that “drug paraphernalia” does not include any testing equipment designed, marketed, intended to be used, or used, to test a substance for the presence of fentanyl, ketamine, gamma hydroxybutyric acid, or any analog of fentanyl. (Health & Saf. Code, § 11041.5, subd. (d).)
    

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author's Statement: According to the author, “The intent of this legislation is to redirect focus away from users or individuals with substance abuse disorders onto sellers and thus create an environment that allows a user to report fentanyl poisonings or opioid-related overdoses to medical or law authorities to better reduce harm. This bill is not intended to increase the incarceration of users. By providing a form of testimonial immunity to users who report fentanyl poisonings to law enforcement, this bill aims to reduce the number of sellers who are distributing opioids containing fentanyl.”
   
2. Existing Criminal Immunity for Drug-Related Acts: In 2012, the Legislature enacted AB 472 (Ammiano, Chapter 338, Statutes of 2012) which established immunity from criminal prosecution for a person to be under the influence of, or to possess for personal use, a controlled substance, controlled substance analog, or drug paraphernalia, if the person, in good faith, sought medical assistance for another person experiencing a drug-related overdose that was related to the possession of a controlled substance, controlled substance analog, or drug paraphernalia of the person seeking medical assistance, and that person does not obstruct medical or law enforcement personnel. AB 472 was introduced following an increase in drug overdoses in the state with the intent of encouraging drug overdose victims and witnesses to seek emergency assistance by providing those seeking medical attention with limited immunity for conducted related to drug use (i.e., being under the influence of a controlled substance and possession of a controlled substance, controlled substance analog, or drug paraphernalia).
   
   This bill would clarify that the immunity would apply when a person seeks medical assistance verbally, in writing, or in the form of data from a health-monitoring device.
   
3. New Immunity for Drug-Related Acts: This bill would provide that it is not a crime for a person to possess a controlled substance for personal use if the person delivers the controlled substance to the local public health department or to law enforcement, and if the person provides the agency with information about the likelihood that the substance has been adulterated with another substance. The goal of this bill is to encourage people to inform a public health official or law enforcement if they suspect drugs in their possession have been adulterated.
   
   In California, the number of drug overdoses have increased dramatically over the course of the last decade. The primary driver of this increase is the increased prevalence of illicit fentanyl in the drug supply. According to the Centers for Disease Control (CD):

Fentanyl, a synthetic and short-acting opioid analgesic, is 50-100 times more potent than morphine and approved for managing acute or chronic pain associated with advanced cancer.… [M]ost cases of fentanyl-related morbidity and mortality have been linked to illicitly manufactured fentanyl and fentanyl analogs, collectively referred to as non-pharmaceutical fentanyl (NPF). NPF is sold via illicit drug markets for its heroin-like effect… While NPF-related overdoses can be reversed with naloxone, a higher dose or multiple number of doses per overdose event may be required …due to the high potency of NPF. (Internal quotation marks and footnotes omitted.) (CDhttp://emergency.cdc.gov/han/han00384.asp)

(CDC, Increases in Fentanyl Drug Confiscations and Fentanyl-related Overdose Fatalities (Oct. 26, 2015) <https://emergency.cdc.gov/han/han00384.asp> [as of June 7, 2023] [internal citations omitted].)

Illicit fentanyl is typically available as either a liquid or powder. It is often mixed with other drugs like heroin, cocaine, or methamphetatime, and is widely used in counterfeit prescription opioids. Because of mixing, users are often not be aware that that the substance they are consuming have been adulterated with fentanyl. (CDC, Fentanyl Facts <https://www.cdc.gov/stopoverdose/fentanyl/index.html> [as of June 7, 2023].)

One way for people to protect themselves from unknowingly consuming fentanyl is to test their drugs using fentanyl testing strips (FTS). According to the CDC, “FTS are small strips of paper that can detect the presence of fentanyl in all different kinds of drugs (cocaine, methamphetamine, heroin, etc.) and drug forms (pills, powder, and injectables).” (CDC, Fentanyl Test Strips: A Harm Reduction Strategy <https://www.cdc.gov/stopoverdose/fentanyl/fentanyl-test-strips.html> [as of June 7, 2023]) This bill would provide a person whose drugs test positive for fentanyl with the option to turn them into the local public health department or to law enforcement without fear of prosecution for possession for personal use or possession of drug paraphernalia.

This immunity extends to persons who discover their drugs have been adultered with a substance other than fentanyl, as well as to those who have not tested their drugs for adulterants. FTS cost approximately $1.00 each, and are often available for free or low-cost at syringe services programs (SSPs). (California Department of Public Health, Fentanyl and Fentanyl Test Strips: Frequently Asked Questions (FAQs) <https://www.cdph.ca.gov/Programs/CCDPHP/sapb/CDPH Document Library/Fentanyl-test-strips-FAQs-FINAL-10.17.pdf> [as of June 7, 2023].) Nevertheless, a person who suspects their drugs may be tainted may not know where to get FTS, have the money to buy them, or have access to a SSP. Even without using an FTS, a person may have reason to believe that their drugs have been adulterated, such as learning that a friend overdosed on the same supply or receiving a warning to consume a smaller dose of the drug. They may just decide that using the drug is not worth the risk. Moreover, as a result of prohibition, new and more potent synthetic substances are likely to infiltrate the illicit drug market, substances for which FTS and other drug testing kits are not designed. With these realities in mind, this bill would extend immunity for personal possession to include any person who delivers their drugs to a local public health agency or law enforcement, regardless of whether they have tested those drugs before relinquishing them.

Finally, this bill would also provide that the person may reveal the identity of the individual from whom they obtained the drug, but they need not make such disclosure to enjoy immunity created by this bill.

1. Argument in Support: According to the Attorney General, “While California’s Good Samaritan Law does protect those who call 911 during an overdose from prosecution, it does not include similar provisions for people who use medical devices like FTS to test their drugs, find them to be contaminated, and choose to report their product to law enforcement. SB 250 would extend immunity not only for individuals reporting opioid-related overdoses in cases of medical assistance, but also for individuals reporting substances that test positive for fentanyl to law enforcement. Providing this immunity will encourage reporting to law enforcement, which will assist law enforcement efforts in tracking down dealers and getting fentanyl off the streets.
   
   “In California, there were 7,175 deaths related to an opioid overdose in 2021, and 5,961 of those deaths were specifically attributed to Fentanyl. This opioid crisis is a multifaceted public health and safety issue — and addressing this crisis requires a thoughtful and strategic approach. The California Department of Justice (DOJ) works with local and federal law enforcement partners through the Fentanyl Enforcement Program to detect, deter, disrupt, and dismantle criminal fentanyl operations. DOJ’s ongoing work to address the fentanyl crisis includes the seizure of over four million fentanyl pills and almost 900 pounds of fentanyl powder, and over 200 arrests through the DOJ’s Bureau of Investigation and work with allied task forces throughout California since April 2021.
   
   “Opioid addiction, abuse, and overdose deaths have torn families apart, damaged relationships, and eroded the social fabric of communities. SB 250 is an important part of a legislative approach needed to address this ongoing crisis.” (citations omitted)
   
2. Related Legislation:
   1. AB 915 (Arambula), would require the State Department of Public Health to establish a certification training program for public high school pupil to learn how to identify and respond to an opioid overdose. AB 915 is pending referral in the Senate.
      
   2. SB 10 (Cortese), would add to the list of requirements for a comprehensive school safety plan a protocol in the event a pupil is suffering or is reasonably believed to be suffering from an opioid overdose. SB 10 is pending referral in the Assembly.
      
3. Prior Legislation:
   
   1. AB 1598 (Davies), Chapter 201, Statutes of 2022, excludes from the definition of “drug paraphernalia” any testing equipment that is designed, marketed, used, or intended to be used, to analyze for the presence of fentanyl or any analog of fentanyl.
      
   2. AB 472 (Ammiano), Chapter 338, Statutes of 2012, provided that it shall not be a crime to be under the influence of, or in possession of, a controlled substance or drug paraphernalia if that individual seeks medical assistance for himself, herself, or another person for a drug-related overdose.
      
   3. AB 2460 (Ammiano), of the 2009-2010 Legislative Session, would have provided limited criminal immunity to people experiencing a drug related overdose who contact emergency services. The Governor vetoed AB 2460.
      
   4. AB 1999 (Portantino), Chapter 245, Statutes of 2010, granted immunity to a person under the age of 21 years to knowingly possess or consume alcoholic beverages under specific circumstances relating to the reporting of medical emergencies arising from alcohol consumption.
      

REGISTERED SUPPORT / OPPOSITION:

Support

Attorney General Rob Bonta
California Youth Empowerment Network
Govern for California
Mental Health America of California

Opposition

None submitted.

Analysis Prepared by: Andrew Ironside / PUB. S. / (916) 319-3744

 THIRD READING  

Bill No: SB 250

Author: Umberg (D)

Amended: 3/9/23

Vote: 27

SENATE PUBLIC SAFETY COMMITTEE: 5-0, 4/25/23

AYES: Wahab, Ochoa Bogh, Bradford, Skinner, Wiener

SUBJECT: Controlled substances: punishment

SOURCE: Author

DIGEST:

This bill prohibits the use of a statement made by a person who is immune from prosecution for being under the influence of a controlled substance or in possession of a controlled substance, controlled substance analog, or drug paraphernalia, as specified, as evidence in a criminal proceeding against the person for being under the influence of, or possessing for personal use, a controlled substance, controlled substance analog, or drug paraphernalia; and provides that it is not a crime for a person to possess for personal use a controlled substance, controlled substance analog, or drug paraphernalia if specified conditions are satisfied.

ANALYSIS:

Existing law:

1. Prohibits the possession of several specified controlled substances. (Health & Saf. Code, §§ 11350, 11377.)
2. Provides that it is unlawful to be under the influence of specified controlled substances. (Health & Saf. Code, § 11550, subd. (a).)
3. Defines “drug paraphernalia” as all equipment, products and materials of any kind which are designed for use or marketed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of existing law. (Health & Saf. Code, § 11041.5, subd. (a).)
4. Specifies that “drug paraphernalia” does not include any testing equipment designed, marketed, intended to be used, or used, to test a substance for the presence of fentanyl, ketamine, gamma hydroxybutyric acid, or any analog of fentanyl. (Health & Saf. Code, § 11041.5, subd. (d).)
5. Provides that it is not a crime for a person to be under the influence of, or to possess for personal use, a controlled substance, controlled substance analog, or drug paraphernalia, if that person, in good faith, seeks medical assistance for another person experiencing a drug-related overdose that is related to the possession of a controlled substance, controlled substance analog, or drug paraphernalia of the person seeking medical assistance, and that person does not obstruct medical or law enforcement personnel. Provides that no other immunities or protections from arrest or prosecution for violations of the law are intended or may be inferred. (Health & Saf. Code, § 11376.5, subd. (a).)
6. Provides that it is not a crime for a person who experiences a drug-related overdose and who is in need of medical assistance to be under the influence of, or to possess for personal use, a controlled substance, controlled substance analog, or drug paraphernalia, if the person or one or more other persons at the scene of the overdose, in good faith, seek medical assistance for the person experiencing the overdose. Provides that no other immunities or protections from arrest or prosecution for violations of the law are intended or may be inferred. (Health & Saf. Code, § 11376.5, subd. (b).)
7. Provides that the above provisions pertaining to immunity do not affect laws prohibiting the selling, providing, giving, or exchanging of drugs, or laws prohibiting the forcible administration of drugs against a person’s will. (Health & Saf. Code, § 11376.5, subd. (c).)
8. Provides defines “drug-related overdose” as an acute medical condition that is the result of the ingestion or use by an individual of one or more controlled substances or one or more controlled substances in combination with alcohol, in quantities that are excessive for that individual that may result in death, disability, or serious injury. Provides that an individual’s condition is deemed to be a “drug-related overdose” if a reasonable person of ordinary knowledge would believe the condition to be a drug-related overdose that may result in death, disability, or serious injury. (Health & Saf. Code, § 11376.5, subd. (e).)
9. Provides immunity from criminal prosecution for possession of alcohol or purchasing alcohol when under 21 years of age to any person under the age of 21 years, where the person establishes all of the following:
10. The underage person called 911 and reported that either himself or herself or another person was in need of medical assistance due to alcohol consumption.
11. The underage person was the first person to make the 911 report.
12. The underage person, who reported that another person was in need of medical assistance, remained on the scene with the other person until that medical assistance arrived and cooperated with medical assistance and law enforcement personnel on the scene.

(Bus. & Prof. Code, § 25667, subd. (a).)

This bill:

1. Prohibits a statement provided by a person who is immune from prosecution for being under the influence of a controlled substance or in possession of a controlled substance, controlled substance analog, or drug paraphernalia, and which is made in connection with the acts giving rise to that immunity, from being used as evidence in a criminal proceeding against the person for the crime of being under the influence of, or possessing for personal use, a controlled substance, controlled substance analog, or drug paraphernalia, if all of the following are satisfied:
2. One of the immunity provisions is used as an affirmative defense against the charge.
3. The statement was made by the person in the course of seeking medical assistance for another person experiencing a drug-related overdose.
4. The drug-related overdose of the other person is related to the possession of a controlled substance, controlled substance analog, or drug paraphernalia by the person seeking medical assistance.
5. Provides that its provisions do not apply to a criminal charge of the person where none of the existing immunity provisions is a viable affirmative defense.
6. Provides that is not a crime for a person to possess for personal use a controlled substance, controlled substance analog, or drug paraphernalia if both of the following conditions are satisfied:
   1. The person tests the controlled substance or controlled substance analog and determines that the substance is adulterated with another substance, including, but not limited to, fentanyl.
   2. After receiving the testing result, the person notifies law enforcement of the positive test, the individual from whom the person obtained the controlled substance or controlled substance analog, and the likelihood that other batches of the controlled substance may have been adulterated with other substances.
7. Provides that no other immunities or protections from arrest or prosecution for violations of the law are intended or may be inferred

Background

In 2012, the Legislature enacted AB 472 (Ammiano, Chapter 338, Statutes of 2012) which established immunity from criminal prosecution for a person to be under the influence of, or to possess for personal use, a controlled substance, controlled substance analog, or drug paraphernalia, if the person, in good faith, sought medical assistance for another person experiencing a drug-related overdose that was related to the possession of a controlled substance, controlled substance analog, or drug paraphernalia of the person seeking medical assistance, and that person does not obstruct medical or law enforcement personnel. AB 472 was introduced following an increase in drug overdoses in the state with the intent of encouraging drug overdose victims and witnesses to seek emergency assistance by providing those seeking medical attention with limited immunity for conducted related to drug use (i.e., being under the influence of a controlled substance and possession of a controlled substance, controlled substance analog, or drug paraphernalia).

This bill prohibits statements related to the conduct that is immune from prosecution under existing law from being used as evidence in a criminal proceeding against the person for being under the influence of, or possessing for personal use, a controlled substance, controlled substance analog, or drug paraphernalia, if all of the following are satisfied: (1) one of the immunity provisions is used as an affirmative defense against the charge; (2) the statement was made by the person in the course of seeking medical assistance for another person experiencing a drug-related overdose; and (3) the drug-related overdose of the other person is related to the possession of a controlled substance, controlled substance analog, or drug paraphernalia by the person seeking medical assistance.

Given that a person enjoys immunity from prosecution for being under the influence of a drug or in possession of a drug or drug paraphernalia under the specific circumstances delineated above, it follows that the person’s statements related to the conduct giving rise to that immunity would not be used as evidence to prosecute for those crimes under current law because there is no criminal case to charge. In other words, these provisions of the bill appear to codify what is likely already the case in practice given the immunity from prosecution that individuals who meet the conditions in Health and Safety Code Section 11376.5 enjoy.

This bill additionally provides that is not a crime for a person to possess for personal use a controlled substance, controlled substance analog, or drug paraphernalia if both of the following conditions are satisfied:

• The person tests the controlled substance or controlled substance analog and determines that the substance is adulterated with another substance, including, but not limited to, fentanyl.
• After receiving the testing result, the person notifies law enforcement of the positive test, the individual from whom the person obtained the controlled substance or controlled substance analog, and the likelihood that other batches of the controlled substance may have been adulterated with other substances

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 4/27/23)

Attorney General Rob Bonta

California Youth Empowerment Network

Govern for California

Mental Health America of California

OPPOSITION: (Verified 4/27/23)

ACLU California Action

ARGUMENTS IN SUPPORT: Attorney General Bonta writes:

SB 250 expands California’s 911 Good Samaritan law to include self-reporting of fentanyl poisonings and opioid overdoses to law enforcement and medical assistance through fentanyl testing strips (FTS) and other medical devices such as smart watches.

While California’s Good Samaritan Law does protect those who call 911 during an overdose from prosecution, it does not include similar provisions for people who use medical devices like FTS to test their drugs, find them to be contaminated, and choose to report their product to law enforcement. SB 250 would extend immunity not only for individuals reporting opioid-related overdoses in cases of medical assistance, but also for individuals reporting substances that test positive for fentanyl to law enforcement. Providing this immunity will encourage reporting to law enforcement, which will assist law enforcement efforts in tracking down dealers and getting fentanyl off the streets.

In California, there were 7,175 deaths related to an opioid overdose in 2021, and 5,961 of those deaths were specifically attributed to Fentanyl. This opioid crisis is a multifaceted public health and safety issue — and addressing this crisis requires a thoughtful and strategic approach. …

Opioid addiction, abuse, and overdose deaths have torn families apart, damaged relationships, and eroded the social fabric of communities. SB 250 is an important part of a legislative approach needed to address this ongoing crisis.

ARGUMENT IN OPPOSITION: According to the ACLU California Action:

SB 250 would erode immunity for those who seek medical help after experiencing or witnessing a drug-related overdose by allowing their statements to be used as evidence in a criminal proceeding against them. This bill would discourage overdose reporting and thereby negatively impact public health and safety.

Under current law, those experiencing an overdose and those who seek medical help for another person are immune from prosecution for being “under the influence of, or possession for personal use, a controlled substance, controlled substance analog, or drug paraphernalia” (HSC, 11367.5). This law was established in 2013 when AB 472, an ACLU co-sponsored bill, was signed into law.

AB 472 granted immunity from prosecution to overdose victims and witnesses to address situations where witnesses to an overdose hesitated to contact emergency services because they feared arrest for themselves or for the overdose victim. Fear of police involvement and criminal punishment for themselves or their friends is statistically one of the most common reasons people cite for not calling 911 when they witness an overdose. …

Creating an environment that encourages people to call 911 and save the life of someone experiencing an overdose is the right thing to do. SB 250 would erase the progress made under AB 472 and lead to more needless deaths.

Prepared by: Stephanie Jordan / PUB. S. /

4/28/23 15:14:55

**** END ****

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: SB 250 Hearing Date: April 25, 2023

Subject: Controlled substances: punishment

HISTORY

Source: Author

Prior Legislation: AB 1598 (Davies), Ch. 201, Stats. 2022

AB 472 (Ammiano), Ch. 338, Stats. 2012

AB 2460 (Ammiano), vetoed in 2010

AB 1999 (Portantino), Ch. 245, Stats. 2010

Support: Attorney General Rob Bonta; California Youth Empowerment Network; Govern for California; Mental Health America of California

Opposition: None known

PURPOSE

The purpose of this bill is to prohibit the use of a statement made by a person who is immune from prosecution for being under the influence of a controlled substance or in possession of a controlled substance, controlled substance analog, or drug paraphernalia, as specified, as evidence in a criminal proceeding against the person for being under the influence of, or possessing for personal use, a controlled substance, controlled substance analog, or drug paraphernalia.

Existing law prohibits the possession of several specified controlled substances. (Health & Saf. Code, §§ 11350, 11377.)

Existing law provides that it is unlawful to be under the influence of specified controlled substances. (Health & Saf. Code, § 11550, subd. (a).)

Existing law defines “drug paraphernalia” as all equipment, products and materials of any kind which are designed for use or marketed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of existing law. (Health & Saf. Code, § 11041.5, subd. (a).)

Existing law specifies that “drug paraphernalia” does not include any testing equipment designed, marketed, intended to be used, or used, to test a substance for the presence of fentanyl, ketamine, gamma hydroxybutyric acid, or any analog of fentanyl. (Health & Saf. Code, § 11041.5, subd. (d).)

Existing law provides that it is not a crime for a person to be under the influence of, or to possess for personal use, a controlled substance, controlled substance analog, or drug paraphernalia, if that person, in good faith, seeks medical assistance for another person experiencing a drug-related overdose that is related to the possession of a controlled substance, controlled substance analog, or drug paraphernalia of the person seeking medical assistance, and that person does not obstruct medical or law enforcement personnel. Provides that no other immunities or protections from arrest or prosecution for violations of the law are intended or may be inferred. (Health & Saf. Code, § 11376.5, subd. (a).)

Existing law provides that it is not a crime for a person who experiences a drug-related overdose and who is in need of medical assistance to be under the influence of, or to possess for personal use, a controlled substance, controlled substance analog, or drug paraphernalia, if the person or one or more other persons at the scene of the overdose, in good faith, seek medical assistance for the person experiencing the overdose. Provides that no other immunities or protections from arrest or prosecution for violations of the law are intended or may be inferred. (Health & Saf. Code, § 11376.5, subd. (b).)

Existing law provides that the above provisions pertaining to immunity do not affect laws prohibiting the selling, providing, giving, or exchanging of drugs, or laws prohibiting the forcible administration of drugs against a person’s will. (Health & Saf. Code, § 11376.5, subd. (c).)

Existing law provides defines “drug-related overdose” as an acute medical condition that is the result of the ingestion or use by an individual of one or more controlled substances or one or more controlled substances in combination with alcohol, in quantities that are excessive for that individual that may result in death, disability, or serious injury. Provides that an individual’s condition is deemed to be a “drug-related overdose” if a reasonable person of ordinary knowledge would believe the condition to be a drug-related overdose that may result in death, disability, or serious injury. (Health & Saf. Code, § 11376.5, subd. (e).)

Existing law provides immunity from criminal prosecution for possession of alcohol or purchasing alcohol when under 21 years of age to any person under the age of 21 years, where the person establishes all of the following:

• The underage person called 911 and reported that either himself or herself or another person was in need of medical assistance due to alcohol consumption.
• The underage person was the first person to make the 911 report.
• The underage person, who reported that another person was in need of medical assistance, remained on the scene with the other person until that medical assistance arrived and cooperated with medical assistance and law enforcement personnel on the scene.

(Bus. & Prof. Code, § 25667, subd. (a).)

This bill prohibits a statement provided by a person who is immune from prosecution for being under the influence of a controlled substance or in possession of a controlled substance, controlled substance analog, or drug paraphernalia, and which is made in connection with the acts giving rise to that immunity, from being used as evidence in a criminal proceeding against the person for the crime of being under the influence of, or possessing for personal use, a controlled substance, controlled substance analog, or drug paraphernalia, if all of the following are satisfied:

• One of the immunity provisions is used as an affirmative defense against the charge.
• The statement was made by the person in the course of seeking medical assistance for another person experiencing a drug-related overdose.
• The drug-related overdose of the other person is related to the possession of a controlled substance, controlled substance analog, or drug paraphernalia by the person seeking medical assistance.

This bill provides that its provisions do not apply to a criminal charge of the person where none of the existing immunity provisions is a viable affirmative defense.

This bill provides that no other immunities or protections from arrest or prosecution for violations of the law are intended or may be inferred.

COMMENTS

1. Need For This Bill

According to the author:

The fentanyl crisis continues to get worse. Of the approximately 107,477 people dying from drug overdoses from August 2021 to August 2022, around 66% of these deaths are caused by illicit synthetic drugs such as fentanyl and methamphetamine. Fentanyl testing strips (FTS) serve as a low-cost method to prevent drug overdoses and further reduce harm. While California’s Good Samaritan Law does protect those who call 911 during drug-related overdoses from prosecution, it does not include similar provisions for individuals who utilize fentanyl testing strips to test their drugs, find them to be contaminated with fentanyl, and choose to report their product and their source to law enforcement. Under California’s 911 Good Samaritan law, individuals are criminally protected from prosecution when seeking medical assistance for drug-related overdoses when self-reporting or reporting as a third party bystander. SB 250 aims to expand this law to include the self-reporting of fentanyl poisonings and opioid overdoses to law enforcement through use of fentanyl testing strips or medical devices such as smart watches.

1. Existing Criminal Immunity for Drug-Related Acts

In 2012, the Legislature enacted AB 472 (Ammiano, Chapter 338, Statutes of 2012) which established immunity from criminal prosecution for a person to be under the influence of, or to possess for personal use, a controlled substance, controlled substance analog, or drug paraphernalia, if the person, in good faith, sought medical assistance for another person experiencing a drug-related overdose that was related to the possession of a controlled substance, controlled substance analog, or drug paraphernalia of the person seeking medical assistance, and that person does not obstruct medical or law enforcement personnel. AB 472 was introduced following an increase in drug overdoses in the state with the intent of encouraging drug overdose victims and witnesses to seek emergency assistance by providing those seeking medical attention with limited immunity for conducted related to drug use (i.e., being under the influence of a controlled substance and possession of a controlled substance, controlled substance analog, or drug paraphernalia).

This bill prohibits statements related to the conduct that is immune from prosecution under existing law from being used as evidence in a criminal proceeding against the person for being under the influence of, or possessing for personal use, a controlled substance, controlled substance analog, or drug paraphernalia, if all of the following are satisfied: (1) one of the immunity provisions is used as an affirmative defense against the charge; (2) the statement was made by the person in the course of seeking medical assistance for another person experiencing a drug-related overdose; and (3) the drug-related overdose of the other person is related to the possession of a controlled substance, controlled substance analog, or drug paraphernalia by the person seeking medical assistance.

Given that a person enjoys immunity from prosecution for being under the influence of a drug or in possession of a drug or drug paraphernalia under the specific circumstances delineated above, it follows that the person’s statements related to the conduct giving rise to that immunity would not be used as evidence to prosecute for those crimes under current law because there is no criminal case to charge. In other words, this bill appears to codify what is likely already the case in practice given the immunity from prosecution that individuals who meet the conditions in Health and Safety Code section 11376.5 enjoy.

1. Argument in Support

Attorney General Bonta writes:

SB 250 expands California’s 911 Good Samaritan law to include self-reporting of fentanyl poisonings and opioid overdoses to law enforcement and medical assistance through fentanyl testing strips (FTS) and other medical devices such as smart watches.

While California’s Good Samaritan Law does protect those who call 911 during an overdose from prosecution, it does not include similar provisions for people who use medical devices like FTS to test their drugs, find them to be contaminated, and choose to report their product to law enforcement. SB 250 would extend immunity not only for individuals reporting opioid-related overdoses in cases of medical assistance, but also for individuals reporting substances that test positive for fentanyl to law enforcement. Providing this immunity will encourage reporting to law enforcement, which will assist law enforcement efforts in tracking down dealers and getting fentanyl off the streets.

In California, there were 7,175 deaths related to an opioid overdose in 2021, and 5,961 of those deaths were specifically attributed to Fentanyl. This opioid crisis is a multifaceted public health and safety issue — and addressing this crisis requires a thoughtful and strategic approach. …

Opioid addiction, abuse, and overdose deaths have torn families apart, damaged relationships, and eroded the social fabric of communities. SB 250 is an important part of a legislative approach needed to address this ongoing crisis

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