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A02063 Summary:

BILL NOA02063C
 
SAME ASSAME AS S04454-B
 
SPONSORGottfried (MS)
 
COSPNSRDinowitz, Cahill, Galef, Jaffee, Brook-Krasny, DenDekker, Ortiz, Spano, Rivera P, Lavine, Abinanti
 
MLTSPNSRGiglio, Hooper, Jacobs, Lopez V, McDonough, McEneny, Paulin, Perry, Rabbitt, Saladino, Scarborough, Titone, Weisenberg
 
Amd S390.40, CP L; amd S220.03, add S220.78, Pen L
 
Provides limitations on use of evidence obtained in connection with a person seeking or receiving health care for a drug overdose.
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A02063 Memo:

NEW 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.
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A02063 Text:



 
                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.
                                                                   LBD05375-05-1

        A. 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.
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