senate Bill S4454A

Signed By Governor
2011-2012 Legislative Session

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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Archive: Last Bill Status Via A2063 - Signed by Governor


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

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jul 20, 2011 approval memo.4
signed chap.154
Jul 08, 2011 delivered to governor
Jun 20, 2011 returned to assembly
passed senate
3rd reading cal.1386
substituted for s4454b
Jun 20, 2011 substituted by a2063c
ordered to third reading cal.1386
committee discharged and committed to rules
Jun 15, 2011 print number 4454b
amend (t) and recommit to codes
May 13, 2011 print number 4454a
amend (t) and recommit to codes
Apr 06, 2011 referred to codes

Votes

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Bill Amendments

Original
A
B (Active)
Original
A
B (Active)

Co-Sponsors

S4454 - Bill Details

See Assembly Version of this Bill:
A2063B
Law Section:
Criminal Procedure Law
Laws Affected:
Add §140.60, CP L

S4454 - Bill Texts

view summary

Provides limitations on use of evidence obtained in connection with a person seeking or receiving health care for a drug overdose.

view sponsor memo
BILL NUMBER:S4454

TITLE OF BILL:

An act
to amend the criminal procedure law, in relation to evidence obtained as
a result of seeking or receiving health care for a drug overdose

PURPOSE:

This legislation will encourage people to seek treatment for a drug
overdose by preventing authorities from using any evidence relating
to possession of a controlled substance that is obtained during the
course of seeking medical attention. 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 overdosed by exempting evidence found on them
as well.

SUMMARY OF PROVISIONS:

Subparagraph 1 of section one of the bill defines "drug overdose" and
"health care."

Subparagraph 2 of section one of the bill states that any evidence
relating to criminal possession of a controlled substance or criminal
or unlawful possession or marihuana obtained because a person seeks
health care for someone experiencing a drug overdose shall not be
admissible as evidence.

Subparagraph 3 of section one of the bill states that any evidence
relating to criminal possession of a controlled substance or criminal
or unlawful possession of marihuana obtained because a person seeks
or receives health care for a drug overdose shall not be admissible
as evidence.

Section 2 of the bill is the effective date.

JUSTIFICATION:

Fear of prosecution can be a real obstacle to seeking medical care for
someone suffering :from a drug 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 or marihuana where the
evidence results from seeking treatment for a drug overdose, including
where someone seeks treatment for someone else.

According to the Centers for Disease Control (CDC), unintentional drug
overdose is the second leading cause of accidental death in the
United States, trailing only automobile accidents. The primary reason
people do not call 911 or go to the hospital for an overdose is fear
of prosecution.

LEGISLATIVE HISTORY:


2008: S.8366/A.8740

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

This act shall take effect immediately.

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

                                  4454

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              April 6, 2011
                               ___________

Introduced  by  Sens. DeFRANCISCO, GOLDEN, RANZENHOFER -- read twice and
  ordered printed, and when printed to be committed to the Committee  on
  Codes

AN  ACT  to  amend  the  criminal procedure law, in relation to evidence
  obtained as a result of seeking or receiving health care  for  a  drug
  overdose

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

  Section 1. The criminal procedure law  is  amended  by  adding  a  new
section 60.78 to read as follows:
S 60.78 RULES OF EVIDENCE; HEALTH CARE FOR DRUG OVERDOSE; LIMITED USE OF
           EVIDENCE.
  1. DEFINITIONS. AS USED IN THIS SECTION THE FOLLOWING TERMS SHALL HAVE
THE FOLLOWING MEANINGS:
  (A)  "DRUG  OVERDOSE"  OR  "OVERDOSE"  SHALL  MEAN  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 AND RELATES TO AN ADVERSE REACTION TO OR THE QUANTITY  OF  THE
CONTROLLED  SUBSTANCE OR A SUBSTANCE WITH WHICH THE CONTROLLED SUBSTANCE
WAS COMBINED; PROVIDED THAT A PATIENT'S CONDITION SHALL BE DEEMED TO  BE
A  DRUG OVERDOSE IF A PRUDENT LAYPERSON, POSSESSING AN AVERAGE KNOWLEDGE
OF MEDICINE AND HEALTH, COULD REASONABLY BELIEVE THAT THE  CONDITION  IS
IN FACT A DRUG OVERDOSE AND (EXCEPT AS TO DEATH) REQUIRES HEALTH CARE.
  (B) "HEALTH CARE" MEANS THE PROFESSIONAL SERVICES PROVIDED TO A PERSON
EXPERIENCING  A  DRUG  OVERDOSE  BY A HEALTH CARE PROFESSIONAL LICENSED,
REGISTERED OR CERTIFIED UNDER TITLE EIGHT OF THE EDUCATION LAW OR  ARTI-
CLE 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 OVERDOSE.
  2. WHERE ANY PERSON, IN GOOD FAITH,  SEEKS  HEALTH  CARE  FOR  SOMEONE
EXPERIENCING  A  DRUG OVERDOSE, ANY EVIDENCE RELATING TO POSSESSION OF A

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10559-01-1

S. 4454                             2

CONTROLLED SUBSTANCE OR POSSESSION OF MARIHUANA BY SUCH PERSON THAT  WAS
OBTAINED  AS  A  RESULT OF THE SEEKING OR RECEIVING OF HEALTH CARE SHALL
NOT BE ADMISSIBLE AGAINST SUCH PERSON IN ANY PROSECUTION FOR ANY  DEGREE
OF  CRIMINAL  POSSESSION  OF  A  CONTROLLED  SUBSTANCE UNDER ARTICLE TWO
HUNDRED TWENTY OF THE PENAL LAW OR UNLAWFUL OR  CRIMINAL  POSSESSION  OF
MARIHUANA UNDER ARTICLE TWO HUNDRED TWENTY-ONE OF THE PENAL LAW.
  3.  WHERE ANY PERSON EXPERIENCES A DRUG OVERDOSE AND SEEKS OR RECEIVES
HEALTH CARE,  ANY  EVIDENCE  RELATING  TO  POSSESSION  OF  A  CONTROLLED
SUBSTANCE OR POSSESSION OF MARIHUANA BY SUCH PERSON THAT WAS OBTAINED AS
A  RESULT OF THE SEEKING OR RECEIVING OF HEALTH CARE SHALL NOT BE ADMIS-
SIBLE AGAINST SUCH PERSON IN ANY PROSECUTION FOR ANY DEGREE OF  CRIMINAL
POSSESSION OF A CONTROLLED SUBSTANCE UNDER ARTICLE TWO HUNDRED TWENTY OF
THE  PENAL  LAW  OR  UNLAWFUL  OR CRIMINAL POSSESSION OF MARIHUANA UNDER
ARTICLE TWO HUNDRED TWENTY-ONE OF THE PENAL LAW.
  S 2. This act shall take effect immediately.

Co-Sponsors

view additional co-sponsors

S4454A - Bill Details

See Assembly Version of this Bill:
A2063B
Law Section:
Criminal Procedure Law
Laws Affected:
Add §140.60, CP L

S4454A - Bill Texts

view summary

Provides limitations on use of evidence obtained in connection with a person seeking or receiving health care for a drug overdose.

view sponsor memo
BILL NUMBER:S4454A

TITLE OF BILL:
An act
to amend the criminal procedure law, in relation to
seeking or receiving health care for a drug or alcohol overdose

PURPOSE:
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 overdosed by
exempting evidence found on them as well.

SUMMARY OF PROVISIONS:
Subparagraph 1 of the bill defines "drug or alcohol overdose" and
"health care."

Subparagraph 2 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.

Subparagraph 3 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
experiencing an overdose or other life threatening emergency, shall
be considered by the court when
presented as a mitigating factor in any criminal prosecution for
controlled substance, marihuana, drug paraphernalia or alcohol
related offense.

Section 4 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, exceeding 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.

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

                                 4454--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              April 6, 2011
                               ___________

Introduced  by Sens. DeFRANCISCO, ADAMS, GOLDEN, KRUEGER, RANZENHOFER --
  read twice and ordered printed, and when printed to  be  committed  to
  the  Committee on Codes -- 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
A PRUDENT LAYPERSON, POSSESSING AN AVERAGE  KNOWLEDGE  OF  MEDICINE  AND

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10559-02-1

S. 4454--A                          2

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 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  ARRESTED, CHARGED, PROSECUTED FOR OR
CONVICTED OF A CONTROLLED SUBSTANCE OFFENSE UNDER  ARTICLE  TWO  HUNDRED
TWENTY  OR  A  MARIHUANA OFFENSE UNDER ARTICLE TWO HUNDRED TWENTY-ONE OF
THE PENAL LAW, OTHER THAN AN OFFENSE INVOLVING SALE FOR COMPENSATION, 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 GENER-
AL 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.
  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  A  CONTROLLED SUBSTANCE OFFENSE UNDER ARTICLE TWO HUNDRED
TWENTY OR A MARIHUANA OFFENSE UNDER ARTICLE TWO  HUNDRED  TWENTY-ONE  OF
THE PENAL LAW, OTHER THAN AN OFFENSE INVOLVING SALE FOR COMPENSATION, 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 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.
  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. This act shall take effect immediately.

Co-Sponsors

view additional co-sponsors

S4454B (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A2063B
Law Section:
Criminal Procedure Law
Laws Affected:
Add §140.60, CP L

S4454B (ACTIVE) - Bill Texts

view summary

Provides limitations on use of evidence obtained in connection with a person seeking or receiving health care for a drug overdose.

view sponsor memo
BILL NUMBER:S4454B

TITLE OF BILL:
An act
to amend the criminal procedure law, in relation to
seeking or receiving health care for a drug or alcohol overdose

PURPOSE:
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 overdosed by
exempting evidence found on them as well.

SUMMARY OF PROVISIONS:
Subparagraph 1 of the bill defines "drug or alcohol overdose" and
"health care."

Subparagraph 2 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.

Subparagraph 3 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
experiencing an overdose or other life threatening emergency, shall
be considered by the court when
presented as a mitigating factor in any criminal prosecution for
controlled substance, marihuana, drug paraphernalia or alcohol
related offense.

Section 4 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, exceeding 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.

LEGISLATIVE HISTORY:
2007-08: A.8740 Referred to Rules Committee
2009-10: A.8147 Passed Assembly

FISCAL IMPLICATIONS:
None noted.

EFFECTIVE DATE:
Immediately.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 4454--B

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              April 6, 2011
                               ___________

Introduced  by Sens. DeFRANCISCO, ADAMS, BONACIC, GOLDEN, HANNON, KLEIN,
  KRUEGER, LARKIN, MONTGOMERY, RANZENHOFER --  read  twice  and  ordered
  printed, and when printed to be committed to the Committee on Codes --
  committee  discharged,  bill amended, ordered reprinted as amended and
  recommitted to said committee -- committee discharged,  bill  amended,
  ordered reprinted as amended and recommitted to said committee

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.
  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10559-05-1

S. 4454--B                          2

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.
  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-

S. 4454--B                          3

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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