Senate Bill S5191A

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 5191--A

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             April 27, 2009
                               ___________

Introduced  by  Sen.  DUANE  -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes  --  recommitted  to
  the  Committee  on  Codes  in accordance with Senate Rule 6, sec. 8 --
  committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted to said committee

AN  ACT  to  amend the criminal procedure law, in relation to seeking or
  receiving health care for a drug or alcohol overdose

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. 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  protocols  to  secure
the scene of an overdose.
  S  2.  The  criminal  procedure law is amended by adding a new section
140.60 to read as follows:
S 140.60 WITNESS OR VICTIM OF DRUG OR ALCOHOL OVERDOSE.
  1. 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11568-06-0
              

S. 5191--A                          2

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.
  2. A PERSON OR PERSONS WHO, IN GOOD FAITH, SEEKS HEALTH CARE FOR SOME-
ONE WHO IS EXPERIENCING A DRUG OR ALCOHOL OVERDOSE OR OTHER LIFE THREAT-
ENING  MEDICAL  EMERGENCY SHALL NOT BE ARRESTED, CHARGED, PROSECUTED FOR
OR CONVICTED OF CRIMINAL POSSESSION  OF  A  CONTROLLED  SUBSTANCE  UNDER
ARTICLE TWO HUNDRED TWENTY OF THE PENAL LAW, OR FOR UNLAWFUL OR CRIMINAL
POSSESSION  OF  MARIHUANA  UNDER  ARTICLE  TWO HUNDRED TWENTY-ONE OF THE
PENAL LAW, OR 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
GENERAL  BUSINESS LAW, WITH RESPECT TO ANY SUBSTANCE, MARIHUANA, ALCOHOL
OR PARAPHERNALIA THAT WAS OBTAINED  AS  A  RESULT  OF  SUCH  SEEKING  OR
RECEIVING SUCH HEALTH CARE.
  3.  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  ARRESTED, CHARGED, PROSECUTED FOR OR
CONVICTED OF CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE UNDER ARTICLE
TWO HUNDRED TWENTY OF  THE  PENAL  LAW,  OR  FOR  UNLAWFUL  OR  CRIMINAL
POSSESSION  OF  MARIHUANA  UNDER  ARTICLE  TWO HUNDRED TWENTY-ONE OF THE
PENAL LAW, OR 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
GENERAL  BUSINESS LAW, WITH RESPECT TO ANY SUBSTANCE, MARIHUANA, ALCOHOL
OR PARAPHERNALIA THAT WAS OBTAINED  AS  A  RESULT  OF  SUCH  SEEKING  OR
RECEIVING SUCH HEALTH CARE.
  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  MEDIAL  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. This act shall take effect immediately.