A02063 Summary:
BILL NO | A02063C |
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SAME AS | SAME AS S04454-B |
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SPONSOR | Gottfried (MS) |
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COSPNSR | Dinowitz, Cahill, Galef, Jaffee, Brook-Krasny, DenDekker, Ortiz, Spano, Rivera P, Lavine, Abinanti |
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MLTSPNSR | Giglio, Hooper, Jacobs, Lopez V, McDonough, McEneny, Paulin, Perry, Rabbitt, Saladino, Scarborough, Titone, Weisenberg |
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Amd S390.40, CP L; amd S220.03, add S220.78, Pen L | |
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Provides limitations on use of evidence obtained in connection with a person seeking or receiving health care for a drug overdose. |
A02063 Memo:
Go to topNEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)   BILL NUMBER: A2063C SPONSOR: Gottfried (MS)
  TITLE OF BILL: An act to amend the penal law and the criminal proce- dure law, in relation to prosecution of a person who, in good faith, seeks health care for someone who is experiencing a drug or alcohol overdose or other life threatening medical emergency   PURPOSE OR GENERAL IDEA OF BILL: This legislation will encourage a witness or victim of a drug or alcohol related overdose to call 911 or seek other emergency assistance in order to save the life of an overdose victim by establishing a state policy of protecting the witnesses or victim from arrest, charge, and prosecution for drug possession, drug paraphernalia possession, and certain alcohol related offenses. Recognizing that most who are in need of treatment for an overdose are unable to seek treatment on their own due to the nature of the medical condition, the bill encourages those who may be with the person to obtain health care for the individual who has over- dosed by exempting evidence found on them as well.   SUMMARY OF SPECIFIC PROVISIONS: Subdivision 3 of section 2 of the bill defines "drug or alcohol over- dose" and "health care." Subdivision 1 of section two states that a person who in good faith seeks health care for someone who is experiencing a drug or alcohol overdose, shall not be arrested, charged or prosecuted for or convicted of possession of a controlled substance or criminal or unlawful possession of marihuana, alcohol or drug paraphernalia that was obtained as a result of seeking or receiving health care. Subdivision 2 of section two states that a person experiencing a drug or alcohol overdose and in good faith seeks health care for himself or herself, shall not be arrested, charged or prosecuted for, or convicted of possession of a controlled substance or criminal or unlawful possession of marihuana, alcohol or drug paraphernalia that was obtained as a result of seeking or receiving health care. Section 3 states that the act of seeking health care for someone experi- encing an overdose or other life threatening emergency, shall be consid- ered by the court when presented as a mitigating factor in any criminal prosecution for controlled substance, marihuana, drug paraphernalia or alcohol related offense. Section 5 is the effective date.   JUSTIFICATION: Fear of prosecution can be a real obstacle to seeking medical care for someone suffering from a drug or alcohol overdose. We don't want to condone drug use, but neither would we want to subject drug users to a death penalty. This legislation will limit the use of evidence relating to possession of a controlled substance, marihuana, drug paraphernalia or alcohol, where the evidence results from seeking treatment for a drug overdose, including where someone seeks treatment for someone else. In New York, overdose is the number one cause of accidental death, exceed- ing traffic fatalities. In 2008, over 1,350 people died from accidental drug overdoses in New York State, an increase of more than 60% from 1999. The primary reason people do not call 911 or go to the hospital for an overdose is fear of prosecution.   PRIOR LEGISLATIVE HISTORY: 2007-08: A.8740 referred to rules committee 2009-10: A.8147 passed assembly   FISCAL IMPLICATIONS: None noted.   EFFECTIVE DATE: Immediately.
A02063 Text:
Go to top STATE OF NEW YORK ________________________________________________________________________ 2063--C Cal. No. 444 2011-2012 Regular Sessions IN ASSEMBLY January 13, 2011 ___________ Introduced by M. of A. GOTTFRIED, DINOWITZ, CAHILL, GALEF, JAFFEE, BROOK-KRASNY, DenDEKKER, ORTIZ, SPANO, P. RIVERA, LAVINE -- Multi- Sponsored by -- M. of A. GIGLIO, HOOPER, JACOBS, V. LOPEZ, McDONOUGH, McENENY, PAULIN, PERRY, RABBITT, SALADINO, SCARBOROUGH, TITONE, WEIS- ENBERG -- read once and referred to the Committee on Codes -- commit- tee discharged, bill amended, ordered reprinted as amended and recom- mitted to said committee -- again reported from said committee with amendments, ordered reprinted as amended and recommitted to said committee -- passed by Assembly and delivered to the Senate, recalled from the Senate, vote reconsidered, bill amended, ordered reprinted, retaining its place on the order of third reading AN ACT to amend the penal law and the criminal procedure law, in relation to prosecution of a person who, in good faith, seeks health care for someone who is experiencing a drug or alcohol overdose or other life threatening medical emergency The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Legislative intent. It is the intent of the legislature to 2 encourage a witness or victim of a drug or alcohol related overdose to 3 call 911 or seek other emergency assistance in order to save the life of 4 an overdose victim by establishing a state policy of protecting the 5 witnesses or victim from arrest, charge, prosecution, and conviction for 6 drug possession, drug paraphernalia possession, and certain alcohol 7 related offenses. It is not the intent of the legislature to protect 8 individuals from arrest, charge, or prosecution for other offenses, 9 including drug trafficking, or to interfere with law enforcement proto- 10 cols to secure the scene of an overdose. 11 § 2. The penal law is amended by adding a new section 220.78 to read 12 as follows: 13 § 220.78 Witness or victim of drug or alcohol overdose. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD05375-05-1A. 2063--C 2 1 1. A person who, in good faith, seeks health care for someone who is 2 experiencing a drug or alcohol overdose or other life threatening 3 medical emergency shall not be charged or prosecuted for a controlled 4 substance offense under article two hundred twenty or a marihuana 5 offense under article two hundred twenty-one of this title, other than 6 an offense involving sale for consideration or other benefit or gain, or 7 charged or prosecuted for possession of alcohol by a person under age 8 twenty-one years under section sixty-five-c of the alcoholic beverage 9 control law, or for possession of drug paraphernalia under article thir- 10 ty-nine of the general business law, with respect to any controlled 11 substance, marihuana, alcohol or paraphernalia that was obtained as a 12 result of such seeking or receiving of health care. 13 2. A person who is experiencing a drug or alcohol overdose or other 14 life threatening medical emergency and, in good faith, seeks health care 15 for himself or herself or is the subject of such a good faith request 16 for health care, shall not be charged or prosecuted for a controlled 17 substance offense under this article or a marihuana offense under arti- 18 cle two hundred twenty-one of this title, other than an offense involv- 19 ing sale for consideration or other benefit or gain, or charged or pros- 20 ecuted for possession of alcohol by a person under age twenty-one years 21 under section sixty-five-c of the alcoholic beverage control law, or for 22 possession of drug paraphernalia under article thirty-nine of the gener- 23 al business law, with respect to any substance, marihuana, alcohol or 24 paraphernalia that was obtained as a result of such seeking or receiving 25 of health care. 26 3. Definitions. As used in this section the following terms shall have 27 the following meanings: 28 (a) "Drug or alcohol overdose" or "overdose" means an acute condition 29 including, but not limited to, physical illness, coma, mania, hysteria 30 or death, which is the result of consumption or use of a controlled 31 substance or alcohol and relates to an adverse reaction to or the quan- 32 tity of the controlled substance or alcohol or a substance with which 33 the controlled substance or alcohol was combined; provided that a 34 patient's condition shall be deemed to be a drug or alcohol overdose if 35 a prudent layperson, possessing an average knowledge of medicine and 36 health, could reasonably believe that the condition is in fact a drug or 37 alcohol overdose and (except as to death) requires health care. 38 (b) "Health care" means the professional services provided to a person 39 experiencing a drug or alcohol overdose by a health care professional 40 licensed, registered or certified under title eight of the education law 41 or article thirty of the public health law who, acting within his or her 42 lawful scope of practice, may provide diagnosis, treatment or emergency 43 services for a person experiencing a drug or alcohol overdose. 44 4. It shall be an affirmative defense to a criminal sale controlled 45 substance offense under this article or a criminal sale of marihuana 46 offense under article two hundred twenty-one of this title, not covered 47 by subdivision one or two of this section, with respect to any 48 controlled substance or marihuana which was obtained as a result of such 49 seeking or receiving of health care, that: 50 (a) the defendant, in good faith, seeks health care for someone or for 51 him or herself who is experiencing a drug or alcohol overdose or other 52 life threatening medical emergency; and 53 (b) the defendant has no prior conviction for the commission or 54 attempted commission of a class A-I, A-II or B felony under this arti- 55 cle.A. 2063--C 3 1 5. Nothing in this section shall be construed to bar the admissibility 2 of any evidence in connection with the investigation and prosecution of 3 a crime with regard to another defendant who does not independently 4 qualify for the bar to prosecution or for the affirmative defense; nor 5 with regard to other crimes committed by a person who otherwise quali- 6 fies under this section; nor shall anything in this section be construed 7 to bar any seizure pursuant to law, including but not limited to pursu- 8 ant to section thirty-three hundred eighty-seven of the public health 9 law. 10 6. The bar to prosecution described in subdivisions one and two of 11 this section shall not apply to the prosecution of a class A-I felony 12 under this article, and the affirmative defense described in subdivision 13 four of this section shall not apply to the prosecution of a class A-I 14 or A-II felony under this article. 15 § 3. Section 390.40 of the criminal procedure law is amended by adding 16 a new subdivision 3 to read as follows: 17 3. The act of seeking health care for someone who is experiencing a 18 drug or alcohol overdose or other life threatening medical emergency 19 shall be considered by the court when presented as a mitigating factor 20 in any criminal prosecution for a controlled substance, marihuana, drug 21 paraphernalia, or alcohol related offense. 22 § 4. The opening paragraph of section 220.03 of the penal law, as 23 amended by chapter 284 of the laws of 2010, is amended to read as 24 follows: 25 A person is guilty of criminal possession of a controlled substance in 26 the seventh degree when he or she knowingly and unlawfully possesses a 27 controlled substance; provided, however, that it shall not be a 28 violation of this section when a person possesses a residual amount of a 29 controlled substance and that residual amount is in or on a hypodermic 30 syringe or hypodermic needle obtained and possessed pursuant to section 31 thirty-three hundred eighty-one of the public health law; nor shall it 32 be a violation of this section when a person's unlawful possession of a 33 controlled substance is discovered as a result of seeking immediate 34 health care as defined in paragraph (b) of subdivision three of section 35 220.78 of the penal law, for either another person or him or herself 36 because such person is experiencing a drug or alcohol overdose or other 37 life threatening medical emergency as defined in paragraph (a) of subdi- 38 vision three of section 220.78 of the penal law. 39 § 5. This act shall take effect on the sixtieth day after it shall 40 have become a law.