Senate Bill S5703

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 - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 04, 2012	referred to codes
Jun 10, 2011	referred to codes

2011-S5703 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Add §220.78, amd §220.03, Pen L; amd §390.40, CP L

2011-S5703 (ACTIVE) - Summary

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

2011-S5703 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S5703

TITLE OF BILL:
An act
to amend the penal law and 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 an affirmative
defense for the witnesses or victim to a controlled substance
offense. 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.

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

Subparagraph 2 of section two establishes an affirmative defense for a
person who seeks immediate health care for someone who is
experiencing a drug or alcohol overdose or other life threatening

emergency given certain stated conditions.

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 states that it shall not be violation of section 220.03 of
the penal law when a person's unlawful possession of a controlled
substance is discovered as a result of seeking immediate health care
for either another person or him or herself because such person is
experience a drug or alcohol overdose or other life threatening
medical emergency.

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 60a 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.

2011-S5703 (ACTIVE) - Bill Text download pdf

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

                                  5703

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              June 10, 2011
                               ___________

Introduced  by  Sen.  HANNON -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes

AN ACT to amend the  penal  law  and  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  prosecution  and conviction for drug or drug paraphernalia
possession, and certain alcohol related offenses. It is not  the  intent
of  the legislature to protect individuals for other offenses, including
drug trafficking, or to interfere  with  law  enforcement  protocols  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 AFFIRMATIVE DEFENSE OF A 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.
                                                           LBD10559-04-1

S. 5703                             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.  IT  SHALL  BE  AN  AFFIRMATIVE  DEFENSE  TO A CONTROLLED SUBSTANCE
OFFENSE UNDER ARTICLE TWO HUNDRED TWENTY OR A  MARIHUANA  OFFENSE  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 CONTROLLED  SUBSTANCE,  MARIHUANA,  ALCOHOL  OR
PARAPHERNALIA THAT WAS OBTAINED AS A RESULT OF SUCH SEEKING OR RECEIVING
OF HEALTH CARE IF:
  (A)  THE  DEFENDANT SEEKS IMMEDIATE HEALTH CARE FOR SOMEONE OR FOR HIM
OR HERSELF WHO IS EXPERIENCING A DRUG OR ALCOHOL OVERDOSE OR OTHER  LIFE
THREATENING MEDICAL EMERGENCY;
  (B)  THE  DEFENDANT  HAS  NO  PRIOR  CONVICTION  FOR THE COMMISSION OR
ATTEMPTED COMMISSION OF A CLASS A-I, A-II OR B FELONY UNDER ARTICLE  TWO
HUNDRED TWENTY OF THE PENAL LAW; AND
  (C)  THE  CONTROLLED  SUBSTANCE  OR  MARIHUANA  WERE  NOT POSSESSED OR
PROVIDED IN THE CONTEXT OF A BUSINESS TRANSACTION.
  3. THIS AFFIRMATIVE DEFENSE SHALL NOT BE CONSTRUED TO BAR THE ADMISSI-
BILITY OF ANY EVIDENCE OBTAINED IN CONNECTION WITH THE INVESTIGATION AND
PROSECUTION OF THE CRIME WITH REGARD TO ANOTHER DEFENDANT WHO  DOES  NOT
QUALIFY FOR THE AFFIRMATIVE DEFENSE.
  4.  THIS  AFFIRMATIVE  DEFENSE SHALL NOT APPLY TO THE PROSECUTION OF A
CLASS A-I OR A-II FELONY UNDER ARTICLE TWO HUNDRED TWENTY OF  THE  PENAL
LAW.
  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 AS DEFINED IN PARAGRAPH (B) OF
SUBDIVISION 1 OF SECTION 220.78 OF THE PENAL  LAW  FOR  SOMEONE  WHO  IS
EXPERIENCING  A  DRUG  OR  ALCOHOL  OVERDOSE  OR  OTHER LIFE THREATENING
MEDICAL EMERGENCY AS DEFINED  IN  PARAGRAPH  (A)  OF  SUBDIVISION  1  OF
SECTION  220.78  OF  THE  PENAL  LAW MAY BE CONSIDERED BY THE COURT 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  1  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

S. 5703                             3

LIFE THREATENING MEDICAL EMERGENCY AS DEFINED IN PARAGRAPH (A) OF SUBDI-
VISION ONE OF SECTION 220.78 OF THE PENAL LAW.
  S 5. This act shall take effect immediately.

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Senate Bill S5703

Sponsored By

Archive: Last Bill Status - In Senate Committee Codes Committee

Actions

2011-S5703 (ACTIVE) - Details

2011-S5703 (ACTIVE) - Summary

2011-S5703 (ACTIVE) - Sponsor Memo

2011-S5703 (ACTIVE) - Bill Text download pdf

Comments

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Sponsored By

Kemp Hannon

Archive: Last Bill Status - In Senate Committee Codes Committee

Actions

2011-S5703 (ACTIVE) - Details

2011-S5703 (ACTIVE) - Summary

2011-S5703 (ACTIVE) - Sponsor Memo

2011-S5703 (ACTIVE) - Bill Text download pdf

Comments