S04454 Summary:

BILL NO    S04454B

SAME AS    SAME AS A02063-C

SPONSOR    DEFRANCISCO

COSPNSR    ADAMS, BONACIC, GOLDEN, HANNON, KLEIN, KRUEGER, LANZA, LARKIN,
           LAVALLE, MARTINS, MONTGOMERY, RANZENHOFER, ZELDIN

MLTSPNSR   

Add S220.78, amd S220.03, Pen L; amd S390.40, CP 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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S04454 Actions:

BILL NO    S04454B

04/06/2011 REFERRED TO CODES
05/13/2011 AMEND (T) AND RECOMMIT TO CODES
05/13/2011 PRINT NUMBER 4454A
06/15/2011 AMEND (T) AND RECOMMIT TO CODES
06/15/2011 PRINT NUMBER 4454B
06/20/2011 COMMITTEE DISCHARGED AND COMMITTED TO RULES
06/20/2011 ORDERED TO THIRD READING CAL.1386
06/20/2011 SUBSTITUTED BY A2063C
           A02063  AMEND=C  Gottfried (MS)
           01/13/2011 referred to codes
           05/03/2011 amend and recommit to codes
           05/03/2011 print number 2063a
           05/12/2011 amend and recommit to codes
           05/12/2011 print number 2063b
           05/24/2011 reported 
           05/26/2011 advanced to third reading cal.444
           06/02/2011 passed assembly
           06/02/2011 delivered to senate
           06/02/2011 REFERRED TO CODES
           06/16/2011 recalled from senate
           06/16/2011 RETURNED TO ASSEMBLY
           06/16/2011 vote reconsidered - restored to third reading
           06/16/2011 amended on third reading (t) 2063c
           06/20/2011 repassed assembly
           06/20/2011 returned to senate
           06/20/2011 REFERRED TO RULES
           06/20/2011 SUBSTITUTED FOR S4454B
           06/20/2011 3RD READING CAL.1386
           06/20/2011 PASSED SENATE
           06/20/2011 RETURNED TO ASSEMBLY
           07/08/2011 delivered to governor
           07/20/2011 signed chap.154
           07/20/2011 approval memo.4
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S04454 Votes:

There are no votes for this bill in this legislative session.
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S04454 Memo:

Memo not available
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S04454 Text:

                           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:

    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    S 2. The penal law is amended by adding a new section 220.78  to  read
   12  as follows:
   13  S 220.78 WITNESS OR VICTIM OF DRUG OR ALCOHOL OVERDOSE.
   14    1.  A  PERSON WHO, IN GOOD FAITH, SEEKS HEALTH CARE FOR SOMEONE WHO IS
   15  EXPERIENCING A DRUG  OR  ALCOHOL  OVERDOSE  OR  OTHER  LIFE  THREATENING
   16  MEDICAL  EMERGENCY  SHALL  NOT BE CHARGED OR PROSECUTED FOR A CONTROLLED
   17  SUBSTANCE OFFENSE UNDER  ARTICLE  TWO  HUNDRED  TWENTY  OR  A  MARIHUANA
   18  OFFENSE  UNDER  ARTICLE TWO HUNDRED TWENTY-ONE OF THIS TITLE, OTHER THAN
   19  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

    1  CHARGED OR PROSECUTED FOR POSSESSION OF ALCOHOL BY A  PERSON  UNDER  AGE
    2  TWENTY-ONE  YEARS  UNDER  SECTION SIXTY-FIVE-C OF THE ALCOHOLIC BEVERAGE
    3  CONTROL LAW, OR FOR POSSESSION OF DRUG PARAPHERNALIA UNDER ARTICLE THIR-
    4  TY-NINE  OF  THE  GENERAL  BUSINESS  LAW, WITH RESPECT TO ANY CONTROLLED
    5  SUBSTANCE, MARIHUANA, ALCOHOL OR PARAPHERNALIA THAT WAS  OBTAINED  AS  A
    6  RESULT OF SUCH SEEKING OR RECEIVING OF HEALTH CARE.
    7    2.  A  PERSON  WHO IS EXPERIENCING A DRUG OR ALCOHOL OVERDOSE OR OTHER
    8  LIFE THREATENING MEDICAL EMERGENCY AND, IN GOOD FAITH, SEEKS HEALTH CARE
    9  FOR HIMSELF OR HERSELF OR IS THE SUBJECT OF SUCH A  GOOD  FAITH  REQUEST
   10  FOR  HEALTH  CARE,  SHALL  NOT BE CHARGED OR PROSECUTED FOR A CONTROLLED
   11  SUBSTANCE OFFENSE UNDER THIS ARTICLE OR A MARIHUANA OFFENSE UNDER  ARTI-
   12  CLE  TWO HUNDRED TWENTY-ONE OF THIS TITLE, OTHER THAN AN OFFENSE INVOLV-
   13  ING SALE FOR CONSIDERATION OR OTHER BENEFIT OR GAIN, OR CHARGED OR PROS-
   14  ECUTED FOR POSSESSION OF ALCOHOL BY A PERSON UNDER AGE TWENTY-ONE  YEARS
   15  UNDER SECTION SIXTY-FIVE-C OF THE ALCOHOLIC BEVERAGE CONTROL LAW, OR FOR
   16  POSSESSION OF DRUG PARAPHERNALIA UNDER ARTICLE THIRTY-NINE OF THE GENER-
   17  AL  BUSINESS  LAW,  WITH RESPECT TO ANY SUBSTANCE, MARIHUANA, ALCOHOL OR
   18  PARAPHERNALIA THAT WAS OBTAINED AS A RESULT OF SUCH SEEKING OR RECEIVING
   19  OF HEALTH CARE.
   20    3. DEFINITIONS. AS USED IN THIS SECTION THE FOLLOWING TERMS SHALL HAVE
   21  THE FOLLOWING MEANINGS:
   22    (A) "DRUG OR ALCOHOL OVERDOSE" OR "OVERDOSE" MEANS AN ACUTE  CONDITION
   23  INCLUDING,  BUT  NOT LIMITED TO, PHYSICAL ILLNESS, COMA, MANIA, HYSTERIA
   24  OR DEATH, WHICH IS THE RESULT OF CONSUMPTION  OR  USE  OF  A  CONTROLLED
   25  SUBSTANCE  OR ALCOHOL AND RELATES TO AN ADVERSE REACTION TO OR THE QUAN-
   26  TITY OF THE CONTROLLED SUBSTANCE OR ALCOHOL OR A  SUBSTANCE  WITH  WHICH
   27  THE  CONTROLLED  SUBSTANCE  OR  ALCOHOL  WAS  COMBINED;  PROVIDED THAT A
   28  PATIENT'S CONDITION SHALL BE DEEMED TO BE A DRUG OR ALCOHOL OVERDOSE  IF
   29  A  PRUDENT  LAYPERSON,  POSSESSING  AN AVERAGE KNOWLEDGE OF MEDICINE AND
   30  HEALTH, COULD REASONABLY BELIEVE THAT THE CONDITION IS IN FACT A DRUG OR
   31  ALCOHOL OVERDOSE AND (EXCEPT AS TO DEATH) REQUIRES HEALTH CARE.
   32    (B) "HEALTH CARE" MEANS THE PROFESSIONAL SERVICES PROVIDED TO A PERSON
   33  EXPERIENCING A DRUG OR ALCOHOL OVERDOSE BY A  HEALTH  CARE  PROFESSIONAL
   34  LICENSED, REGISTERED OR CERTIFIED UNDER TITLE EIGHT OF THE EDUCATION LAW
   35  OR ARTICLE THIRTY OF THE PUBLIC HEALTH LAW WHO, ACTING WITHIN HIS OR HER
   36  LAWFUL  SCOPE OF PRACTICE, MAY PROVIDE DIAGNOSIS, TREATMENT OR EMERGENCY
   37  SERVICES FOR A PERSON EXPERIENCING A DRUG OR ALCOHOL OVERDOSE.
   38    4. IT SHALL BE AN AFFIRMATIVE DEFENSE TO A  CRIMINAL  SALE  CONTROLLED
   39  SUBSTANCE  OFFENSE  UNDER  THIS  ARTICLE OR A CRIMINAL SALE OF MARIHUANA
   40  OFFENSE UNDER ARTICLE TWO HUNDRED TWENTY-ONE OF THIS TITLE, NOT  COVERED
   41  BY  SUBDIVISION  ONE  OR  TWO  OF  THIS  SECTION,  WITH  RESPECT  TO ANY
   42  CONTROLLED SUBSTANCE OR MARIHUANA WHICH WAS OBTAINED AS A RESULT OF SUCH
   43  SEEKING OR RECEIVING OF HEALTH CARE, THAT:
   44    (A) THE DEFENDANT, IN GOOD FAITH, SEEKS HEALTH CARE FOR SOMEONE OR FOR
   45  HIM OR HERSELF WHO IS EXPERIENCING A DRUG OR ALCOHOL OVERDOSE  OR  OTHER
   46  LIFE THREATENING MEDICAL EMERGENCY; AND
   47    (B)  THE  DEFENDANT  HAS  NO  PRIOR  CONVICTION  FOR THE COMMISSION OR
   48  ATTEMPTED COMMISSION OF A CLASS A-I, A-II OR B FELONY UNDER  THIS  ARTI-
   49  CLE.
   50    5. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO BAR THE ADMISSIBILITY
   51  OF  ANY EVIDENCE IN CONNECTION WITH THE INVESTIGATION AND PROSECUTION OF
   52  A CRIME WITH REGARD TO ANOTHER  DEFENDANT  WHO  DOES  NOT  INDEPENDENTLY
   53  QUALIFY  FOR  THE BAR TO PROSECUTION OR FOR THE AFFIRMATIVE DEFENSE; NOR
   54  WITH REGARD TO OTHER CRIMES COMMITTED BY A PERSON WHO  OTHERWISE  QUALI-
   55  FIES UNDER THIS SECTION; NOR SHALL ANYTHING IN THIS SECTION BE CONSTRUED
   56  TO  BAR ANY SEIZURE PURSUANT TO LAW, INCLUDING BUT NOT LIMITED TO PURSU-
       S. 4454--B                          3

    1  ANT TO SECTION THIRTY-THREE HUNDRED EIGHTY-SEVEN OF  THE  PUBLIC  HEALTH
    2  LAW.
    3    6.  THE  BAR  TO  PROSECUTION DESCRIBED IN SUBDIVISIONS ONE AND TWO OF
    4  THIS SECTION SHALL NOT APPLY TO THE PROSECUTION OF A  CLASS  A-I  FELONY
    5  UNDER THIS ARTICLE, AND THE AFFIRMATIVE DEFENSE DESCRIBED IN SUBDIVISION
    6  FOUR  OF  THIS SECTION SHALL NOT APPLY TO THE PROSECUTION OF A CLASS A-I
    7  OR A-II FELONY UNDER THIS ARTICLE.
    8    S 3. Section 390.40 of the criminal procedure law is amended by adding
    9  a new subdivision 3 to read as follows:
   10    3. THE ACT OF SEEKING HEALTH CARE FOR SOMEONE WHO  IS  EXPERIENCING  A
   11  DRUG  OR  ALCOHOL  OVERDOSE  OR OTHER LIFE THREATENING MEDICAL EMERGENCY
   12  SHALL BE CONSIDERED BY THE COURT WHEN PRESENTED AS A  MITIGATING  FACTOR
   13  IN  ANY CRIMINAL PROSECUTION FOR A CONTROLLED SUBSTANCE, MARIHUANA, DRUG
   14  PARAPHERNALIA, OR ALCOHOL RELATED OFFENSE.
   15    S 4. The opening paragraph of section 220.03  of  the  penal  law,  as
   16  amended  by  chapter  284  of  the  laws  of 2010, is amended to read as
   17  follows:
   18    A person is guilty of criminal possession of a controlled substance in
   19  the seventh degree when he or she knowingly and unlawfully  possesses  a
   20  controlled  substance;  provided,  however,  that  it  shall  not  be  a
   21  violation of this section when a person possesses a residual amount of a
   22  controlled substance and that residual amount is in or on  a  hypodermic
   23  syringe  or hypodermic needle obtained and possessed pursuant to section
   24  thirty-three hundred eighty-one of the public health law; NOR  SHALL  IT
   25  BE  A VIOLATION OF THIS SECTION WHEN A PERSON'S UNLAWFUL POSSESSION OF A
   26  CONTROLLED SUBSTANCE IS DISCOVERED AS  A  RESULT  OF  SEEKING  IMMEDIATE
   27  HEALTH  CARE AS DEFINED IN PARAGRAPH (B) OF SUBDIVISION THREE OF SECTION
   28  220.78 OF THE PENAL LAW, FOR EITHER ANOTHER PERSON  OR  HIM  OR  HERSELF
   29  BECAUSE  SUCH PERSON IS EXPERIENCING A DRUG OR ALCOHOL OVERDOSE OR OTHER
   30  LIFE THREATENING MEDICAL EMERGENCY AS DEFINED IN PARAGRAPH (A) OF SUBDI-
   31  VISION THREE OF SECTION 220.78 OF THE PENAL LAW.
   32    S 5. This act shall take effect on the sixtieth  day  after  it  shall
   33  have become a law.
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