STATE OF NEW YORK
________________________________________________________________________
5703
2011-2012 Regular Sessions
IN SENATE
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:
1 Section 1. It is the intent of the legislature to encourage a witness
2 or victim of a drug or alcohol related overdose to call 911 or seek
3 other emergency assistance in order to save the life of an overdose
4 victim by establishing a state policy of protecting the witnesses or
5 victim from prosecution and conviction for drug or drug paraphernalia
6 possession, and certain alcohol related offenses. It is not the intent
7 of the legislature to protect individuals for other offenses, including
8 drug trafficking, or to interfere with law enforcement protocols to
9 secure the scene of an overdose.
10 § 2. The penal law is amended by adding a new section 220.78 to read
11 as follows:
12 § 220.78 Affirmative defense of a witness or victim of drug or alcohol
13 overdose.
14 1. Definitions. As used in this section the following terms shall have
15 the following meanings:
16 (a) "Drug or alcohol overdose" or "overdose" means an acute condition
17 including, but not limited to, physical illness, coma, mania, hysteria
18 or death, which is the result of consumption or use of a controlled
19 substance or alcohol and relates to an adverse reaction to or the quan-
20 tity of the controlled substance or alcohol or a substance with which
21 the controlled substance or alcohol was combined; provided that a
22 patient's condition shall be deemed to be a drug or alcohol overdose if
23 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
1 health, could reasonably believe that the condition is in fact a drug or
2 alcohol overdose and (except as to death) requires health care.
3 (b) "Health care" means the professional services provided to a person
4 experiencing a drug or alcohol overdose by a health care professional
5 licensed, registered or certified under title eight of the education law
6 or article thirty of the public health law who, acting within his or her
7 lawful scope of practice, may provide diagnosis, treatment or emergency
8 services for a person experiencing a drug or alcohol overdose.
9 2. It shall be an affirmative defense to a controlled substance
10 offense under article two hundred twenty or a marihuana offense under
11 article two hundred twenty-one of the penal law, or for possession of
12 alcohol by a person under age twenty-one years under section
13 sixty-five-c of the alcoholic beverage control law, or for possession of
14 drug paraphernalia under article thirty-nine of the general business
15 law, with respect to any controlled substance, marihuana, alcohol or
16 paraphernalia that was obtained as a result of such seeking or receiving
17 of health care if:
18 (a) the defendant seeks immediate health care for someone or for him
19 or herself who is experiencing a drug or alcohol overdose or other life
20 threatening medical emergency;
21 (b) the defendant has no prior conviction for the commission or
22 attempted commission of a class A-I, A-II or B felony under article two
23 hundred twenty of the penal law; and
24 (c) the controlled substance or marihuana were not possessed or
25 provided in the context of a business transaction.
26 3. This affirmative defense shall not be construed to bar the admissi-
27 bility of any evidence obtained in connection with the investigation and
28 prosecution of the crime with regard to another defendant who does not
29 qualify for the affirmative defense.
30 4. This affirmative defense shall not apply to the prosecution of a
31 class A-I or A-II felony under article two hundred twenty of the penal
32 law.
33 § 3. Section 390.40 of the criminal procedure law is amended by adding
34 a new subdivision 3 to read as follows:
35 3. The act of seeking health care as defined in paragraph (b) of
36 subdivision 1 of section 220.78 of the penal law for someone who is
37 experiencing a drug or alcohol overdose or other life threatening
38 medical emergency as defined in paragraph (a) of subdivision 1 of
39 section 220.78 of the penal law may be considered by the court as a
40 mitigating factor in any criminal prosecution for a controlled
41 substance, marihuana, drug paraphernalia, or alcohol related offense.
42 § 4. The opening paragraph of section 220.03 of the penal law, as
43 amended by chapter 284 of the laws of 2010, is amended to read as
44 follows:
45 A person is guilty of criminal possession of a controlled substance in
46 the seventh degree when he or she knowingly and unlawfully possesses a
47 controlled substance; provided, however, that it shall not be a
48 violation of this section when a person possesses a residual amount of a
49 controlled substance and that residual amount is in or on a hypodermic
50 syringe or hypodermic needle obtained and possessed pursuant to section
51 thirty-three hundred eighty-one of the public health law; nor shall it
52 be a violation of this section when a person's unlawful possession of a
53 controlled substance is discovered as a result of seeking immediate
54 health care as defined in paragraph (b) of subdivision 1 of section
55 220.78 of the penal law, for either another person or him or herself
56 because such person is experiencing a drug or alcohol overdose or other
S. 5703 3
1 life threatening medical emergency as defined in paragraph (a) of subdi-
2 vision one of section 220.78 of the penal law.
3 § 5. This act shall take effect immediately.
