assembly Bill A2063C

Signed by Governor

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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Sponsor

GOTTFRIED

Co-Sponsors

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Multi-Sponsors

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed by Governor
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actions

  • 13 / Jan / 2011
    • REFERRED TO CODES
  • 03 / May / 2011
    • AMEND AND RECOMMIT TO CODES
  • 03 / May / 2011
    • PRINT NUMBER 2063A
  • 12 / May / 2011
    • AMEND AND RECOMMIT TO CODES
  • 12 / May / 2011
    • PRINT NUMBER 2063B
  • 24 / May / 2011
    • REPORTED
  • 26 / May / 2011
    • ADVANCED TO THIRD READING CAL.444
  • 02 / Jun / 2011
    • PASSED ASSEMBLY
  • 02 / Jun / 2011
    • DELIVERED TO SENATE
  • 02 / Jun / 2011
    • REFERRED TO CODES
  • 16 / Jun / 2011
    • RECALLED FROM SENATE
  • 16 / Jun / 2011
    • RETURNED TO ASSEMBLY
  • 16 / Jun / 2011
    • VOTE RECONSIDERED - RESTORED TO THIRD READING
  • 16 / Jun / 2011
    • AMENDED ON THIRD READING (T) 2063C
  • 20 / Jun / 2011
    • REPASSED ASSEMBLY
  • 20 / Jun / 2011
    • RETURNED TO SENATE
  • 20 / Jun / 2011
    • REFERRED TO RULES
  • 20 / Jun / 2011
    • SUBSTITUTED FOR S4454B
  • 20 / Jun / 2011
    • 3RD READING CAL.1386
  • 20 / Jun / 2011
    • PASSED SENATE
  • 20 / Jun / 2011
    • RETURNED TO ASSEMBLY
  • 08 / Jul / 2011
    • DELIVERED TO GOVERNOR
  • 20 / Jul / 2011
    • SIGNED CHAP.154
  • 20 / Jul / 2011
    • APPROVAL MEMO.4

Summary

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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Bill Details

See Senate Version of this Bill:
S4454B
Versions:
A2063
A2063A
A2063B
A2063C
Legislative Cycle:
2011-2012
Law Section:
Criminal Procedure Law
Laws Affected:
Amd §390.40, CP L; amd §220.03, add §220.78, Pen L
Versions Introduced in Previous Legislative Cycles:
2009-2010: A8147A
2007-2008: A8740
view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 2063--C
                                                        Cal. No. 444

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            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:

  Section 1. Legislative intent. It is the intent of the legislature  to
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, prosecution, and conviction for
drug  possession,  drug  paraphernalia  possession,  and certain alcohol
related offenses. It is not the intent of  the  legislature  to  protect
individuals  from  arrest,  charge,  or  prosecution for other offenses,
including drug trafficking, or to interfere with law enforcement  proto-
cols to secure the scene of an overdose.
  S  2.  The penal law is amended by adding a new section 220.78 to read
as follows:
S 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. 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 SHALL NOT BE CHARGED OR PROSECUTED  FOR  A  CONTROLLED
SUBSTANCE  OFFENSE  UNDER  ARTICLE  TWO  HUNDRED  TWENTY  OR A MARIHUANA
OFFENSE  UNDER  ARTICLE TWO HUNDRED TWENTY-ONE OF THIS TITLE, OTHER THAN
AN OFFENSE INVOLVING SALE FOR CONSIDERATION OR OTHER BENEFIT OR GAIN, OR
CHARGED OR PROSECUTED FOR POSSESSION OF ALCOHOL BY A  PERSON  UNDER  AGE
TWENTY-ONE  YEARS  UNDER  SECTION SIXTY-FIVE-C OF THE ALCOHOLIC BEVERAGE
CONTROL LAW, OR FOR POSSESSION OF DRUG PARAPHERNALIA UNDER ARTICLE THIR-
TY-NINE OF THE GENERAL BUSINESS LAW,  WITH  RESPECT  TO  ANY  CONTROLLED
SUBSTANCE,  MARIHUANA,  ALCOHOL  OR PARAPHERNALIA THAT WAS OBTAINED AS A
RESULT OF SUCH SEEKING OR RECEIVING OF HEALTH CARE.
  2. A PERSON WHO IS EXPERIENCING A DRUG OR ALCOHOL  OVERDOSE  OR  OTHER
LIFE THREATENING MEDICAL EMERGENCY AND, IN GOOD FAITH, SEEKS HEALTH CARE
FOR  HIMSELF  OR  HERSELF OR IS THE SUBJECT OF SUCH A GOOD FAITH REQUEST
FOR HEALTH CARE, SHALL NOT BE CHARGED OR  PROSECUTED  FOR  A  CONTROLLED
SUBSTANCE  OFFENSE UNDER THIS ARTICLE OR A MARIHUANA OFFENSE UNDER ARTI-
CLE TWO HUNDRED TWENTY-ONE OF THIS TITLE, OTHER THAN AN OFFENSE  INVOLV-
ING SALE FOR CONSIDERATION OR OTHER BENEFIT OR GAIN, OR CHARGED OR PROS-
ECUTED  FOR POSSESSION OF ALCOHOL BY A PERSON UNDER AGE TWENTY-ONE YEARS
UNDER SECTION SIXTY-FIVE-C OF THE ALCOHOLIC BEVERAGE CONTROL LAW, OR FOR
POSSESSION OF DRUG PARAPHERNALIA UNDER ARTICLE THIRTY-NINE OF THE GENER-
AL BUSINESS LAW, WITH RESPECT TO ANY SUBSTANCE,  MARIHUANA,  ALCOHOL  OR
PARAPHERNALIA THAT WAS OBTAINED AS A RESULT OF SUCH SEEKING OR RECEIVING
OF HEALTH CARE.
  3. DEFINITIONS. AS USED IN THIS SECTION THE FOLLOWING TERMS SHALL HAVE
THE FOLLOWING MEANINGS:
  (A)  "DRUG OR ALCOHOL OVERDOSE" OR "OVERDOSE" MEANS AN ACUTE CONDITION
INCLUDING, BUT NOT LIMITED TO, PHYSICAL ILLNESS, COMA,  MANIA,  HYSTERIA
OR  DEATH,  WHICH  IS  THE  RESULT OF CONSUMPTION OR USE OF A CONTROLLED
SUBSTANCE OR ALCOHOL AND RELATES TO AN ADVERSE REACTION TO OR THE  QUAN-
TITY  OF  THE  CONTROLLED SUBSTANCE OR ALCOHOL OR A SUBSTANCE WITH WHICH
THE CONTROLLED SUBSTANCE  OR  ALCOHOL  WAS  COMBINED;  PROVIDED  THAT  A
PATIENT'S  CONDITION SHALL BE DEEMED TO BE A DRUG OR ALCOHOL OVERDOSE IF
A PRUDENT LAYPERSON, POSSESSING AN AVERAGE  KNOWLEDGE  OF  MEDICINE  AND
HEALTH, COULD REASONABLY BELIEVE THAT THE CONDITION IS IN FACT A DRUG OR
ALCOHOL OVERDOSE AND (EXCEPT AS TO DEATH) REQUIRES HEALTH CARE.
  (B) "HEALTH CARE" MEANS THE PROFESSIONAL SERVICES PROVIDED TO A PERSON
EXPERIENCING  A  DRUG  OR ALCOHOL OVERDOSE BY A HEALTH CARE PROFESSIONAL
LICENSED, REGISTERED OR CERTIFIED UNDER TITLE EIGHT OF THE EDUCATION LAW
OR ARTICLE THIRTY OF THE PUBLIC HEALTH LAW WHO, ACTING WITHIN HIS OR HER
LAWFUL SCOPE OF PRACTICE, MAY PROVIDE DIAGNOSIS, TREATMENT OR  EMERGENCY
SERVICES FOR A PERSON EXPERIENCING A DRUG OR ALCOHOL OVERDOSE.
  4.  IT  SHALL  BE AN AFFIRMATIVE DEFENSE TO A CRIMINAL SALE CONTROLLED
SUBSTANCE OFFENSE UNDER THIS ARTICLE OR A  CRIMINAL  SALE  OF  MARIHUANA
OFFENSE  UNDER ARTICLE TWO HUNDRED TWENTY-ONE OF THIS TITLE, NOT COVERED
BY SUBDIVISION  ONE  OR  TWO  OF  THIS  SECTION,  WITH  RESPECT  TO  ANY
CONTROLLED SUBSTANCE OR MARIHUANA WHICH WAS OBTAINED AS A RESULT OF SUCH
SEEKING OR RECEIVING OF HEALTH CARE, THAT:
  (A) THE DEFENDANT, IN GOOD FAITH, SEEKS HEALTH CARE FOR SOMEONE OR FOR
HIM  OR  HERSELF WHO IS EXPERIENCING A DRUG OR ALCOHOL OVERDOSE OR OTHER
LIFE THREATENING MEDICAL EMERGENCY; AND
  (B) THE DEFENDANT HAS  NO  PRIOR  CONVICTION  FOR  THE  COMMISSION  OR
ATTEMPTED  COMMISSION  OF A CLASS A-I, A-II OR B FELONY UNDER THIS ARTI-
CLE.

A. 2063--C                          3

  5. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO BAR THE ADMISSIBILITY
OF ANY EVIDENCE IN CONNECTION WITH THE INVESTIGATION AND PROSECUTION  OF
A  CRIME  WITH  REGARD  TO  ANOTHER DEFENDANT WHO DOES NOT INDEPENDENTLY
QUALIFY FOR THE BAR TO PROSECUTION OR FOR THE AFFIRMATIVE  DEFENSE;  NOR
WITH  REGARD  TO OTHER CRIMES COMMITTED BY A PERSON WHO OTHERWISE QUALI-
FIES UNDER THIS SECTION; NOR SHALL ANYTHING IN THIS SECTION BE CONSTRUED
TO BAR ANY SEIZURE PURSUANT TO LAW, INCLUDING BUT NOT LIMITED TO  PURSU-
ANT  TO  SECTION  THIRTY-THREE HUNDRED EIGHTY-SEVEN OF THE PUBLIC HEALTH
LAW.
  6. THE BAR TO PROSECUTION DESCRIBED IN SUBDIVISIONS  ONE  AND  TWO  OF
THIS  SECTION  SHALL  NOT APPLY TO THE PROSECUTION OF A CLASS A-I FELONY
UNDER THIS ARTICLE, AND THE AFFIRMATIVE DEFENSE DESCRIBED IN SUBDIVISION
FOUR OF THIS SECTION SHALL NOT APPLY TO THE PROSECUTION OF A  CLASS  A-I
OR A-II FELONY UNDER THIS ARTICLE.
  S 3. Section 390.40 of the criminal procedure law is amended by adding
a new subdivision 3 to read as follows:
  3.  THE  ACT  OF SEEKING HEALTH CARE FOR SOMEONE WHO IS EXPERIENCING A
DRUG OR ALCOHOL OVERDOSE OR OTHER  LIFE  THREATENING  MEDICAL  EMERGENCY
SHALL  BE  CONSIDERED BY THE COURT WHEN PRESENTED AS A MITIGATING FACTOR
IN ANY CRIMINAL PROSECUTION FOR A CONTROLLED SUBSTANCE, MARIHUANA,  DRUG
PARAPHERNALIA, OR ALCOHOL RELATED OFFENSE.
  S  4.  The  opening  paragraph  of section 220.03 of the penal law, as
amended by chapter 284 of the laws  of  2010,  is  amended  to  read  as
follows:
  A person is guilty of criminal possession of a controlled substance in
the  seventh  degree when he or she knowingly and unlawfully possesses a
controlled  substance;  provided,  however,  that  it  shall  not  be  a
violation of this section when a person possesses a residual amount of a
controlled  substance  and that residual amount is in or on a hypodermic
syringe or hypodermic needle obtained and possessed pursuant to  section
thirty-three  hundred  eighty-one of the public health law; NOR SHALL IT
BE A VIOLATION OF THIS SECTION WHEN A PERSON'S UNLAWFUL POSSESSION OF  A
CONTROLLED  SUBSTANCE  IS  DISCOVERED  AS  A RESULT OF SEEKING IMMEDIATE
HEALTH CARE AS DEFINED IN PARAGRAPH (B) OF SUBDIVISION THREE OF  SECTION
220.78  OF  THE  PENAL  LAW, FOR EITHER ANOTHER PERSON OR HIM OR HERSELF
BECAUSE SUCH PERSON IS EXPERIENCING A DRUG OR ALCOHOL OVERDOSE OR  OTHER
LIFE THREATENING MEDICAL EMERGENCY AS DEFINED IN PARAGRAPH (A) OF SUBDI-
VISION THREE OF SECTION 220.78 OF THE PENAL LAW.
  S  5.  This  act  shall take effect on the sixtieth day after it shall
have become a law.

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