Bill Text: CA AB776 | 2011-2012 | Regular Session | Amended

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Bill Title: Controlled substances: unlawful use.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2012-02-01 - Died pursuant to Art. IV, Sec. 10(c) of the Constitution. From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. [AB776 Detail]

Download: California-2011-AB776-Amended.html

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BILL NUMBER: AB 776	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  JANUARY 4, 2012

INTRODUCED BY   Assembly Member Mitchell

                        FEBRUARY 17, 2011

   An act to amend Section 11550 of the Health and Safety Code,
relating to controlled substances.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 776, as amended, Mitchell. Controlled substances: unlawful use.

   Existing  law classifies controlled substances into 5
schedules and places the greatest restrictions and penalties on the
use those substances placed in Schedule I. Existing  law
provides that no person shall  urse   use 
, or be under the influence of, specified controlled substances
 including a narcotic drug classified in Schedule III, IV, or
V  , except when administered by or under the direction of
a person licensed by the state to dispense, prescribe, or administer
controlled substances.  Existing law provides that a person
convicted   of violating this provision is guilty of a
misdemeanor punishable by at least 90 days in a county jail. However,
under the Substance Abuse and Crime Prevention Act of 2000, or
Proposition 36, which was approved by the voters at the November 7,
2000, statewide general election, and amended by the Legislature in
2001 and in 2006, the superior court is required to grant probation
with a drug treatment condition to any person convicted of a
nonviolent drug possession offense, including a person who is
convicted of unlawfully using or being under the influence of a
controlled substance. Furthermore, Proposition 36 prohibits
incarceration as a condition of probation.  
   This bill would delete the above provision requiring incarceration
in a county jail for any person convicted of unlawfully using or
being under the influence of specified controlled substances, in
conformance with Proposition 36.  
   This bill would make technical, nonsubstantive changes to that
provision. 
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 11550 of the Health and Safety Code is amended
to read:
   11550.  (a) No person shall use, or be under the influence of, any
controlled substance that is (1) specified in subdivision (b), (c),
or (e) of, or paragraph (1) of subdivision (f) of, Section 11054,
specified in paragraph (14), (15), (21), (22), or (23) of subdivision
(d) of Section 11054, specified in subdivision (b) or (c) of Section
11055, or specified in paragraph (1) or (2) of subdivision (d) or in
paragraph (3) of subdivision (e) of Section 11055, or (2) a narcotic
drug classified in Schedule III, IV, or V, except when administered
by or under the direction of a person licensed by the state to
dispense, prescribe, or administer controlled substances. It shall be
the burden of the defense to show that it comes within the
exception. Any person convicted of violating this subdivision is
guilty of a misdemeanor  and shall be sentenced to serve a
term of not less than 90 days or more than one year in a county jail.
The court may place a person convicted under this subdivision on
probation for a period not to exceed five years and, except as
provided in subdivision (c), shall in all cases in which probation is
granted require, as a condition thereof, that the person be confined
in a county jail for at least 90 days. Other than as provided by
subdivision (c), in no event shall the court have the power to
absolve a person who violates this subdivision from the obligation of
spending at least 90 days in confinement in a county jail 
.
   (b) Any person who (1) is convicted of violating subdivision (a)
when the offense occurred within seven years of that person being
convicted of two or more separate violations of that subdivision, and
(2) refuses to complete a licensed drug rehabilitation program
offered by the court pursuant to subdivision (c), shall be punished
by imprisonment in a county jail for not less than 180 days nor more
than one year. In no event does the court have the power to absolve a
person convicted of a violation of subdivision (a) that is
punishable under this subdivision from the obligation of spending at
least 180 days in confinement in a county jail unless there are no
licensed drug rehabilitation programs reasonably available.
   For the purpose of this section, a drug rehabilitation program
shall not be considered reasonably available unless the person is
required to pay no more than the court determines that he or she is
reasonably able to pay, in order to participate in the program.
   (c) The court may, when it would be in the interest of justice,
permit any person convicted of a violation of subdivision (a)
punishable under subdivision (a) or (b) to complete a licensed drug
rehabilitation program in lieu of part or all of the imprisonment in
the county jail. As a condition of sentencing, the court may require
the offender to pay all or a portion of the drug rehabilitation
program.
   In order to alleviate jail overcrowding and to provide recidivist
offenders with a reasonable opportunity to seek rehabilitation
pursuant to this subdivision, counties are encouraged to include
provisions to augment licensed drug rehabilitation programs in their
substance abuse proposals and applications submitted to the state for
federal and state drug abuse funds.
   (d) In addition to any fine assessed under this section, the judge
may assess a fine not to exceed seventy dollars ($70) against any
person who violates this section, with the proceeds of this fine to
be used in accordance with Section 1463.23 of the Penal Code. The
court shall, however, take into consideration the defendant's ability
to pay, and no defendant shall be denied probation because of his or
her inability to pay the fine permitted under this subdivision.
   (e) Notwithstanding subdivisions (a) and (b) or any other
provision of law, any person who is unlawfully under the influence of
cocaine, cocaine base, heroin, methamphetamine, or phencyclidine
while in the immediate personal possession of a loaded, operable
firearm is guilty of a public offense punishable by imprisonment in a
county jail for not exceeding one year or in state prison.
   As used in this subdivision "immediate personal possession"
includes, but is not limited to, the interior passenger compartment
of a motor vehicle.
   (f) Every person who violates subdivision (e) is punishable upon
the second and each subsequent conviction by imprisonment in the
state prison for two, three, or four years.
   (g) Nothing in this section prevents deferred entry of judgment or
a defendant's participation in a preguilty plea drug court program
under Chapter 2.5 (commencing with Section 1000) of Title 6 of Part 2
of the Penal Code unless the person is charged with violating
subdivision (b) or (c) of Section 243 of the Penal Code. A person
charged with violating this section by being under the influence of
any controlled substance which is specified in paragraph (21), (22),
or (23) of subdivision (d) of Section 11054 or in paragraph (3) of
subdivision (e) of Section 11055 and with violating either
subdivision (b) or (c) of Section 243 of the Penal Code or with a
violation of subdivision (e) shall be ineligible for deferred entry
of judgment or a preguilty plea drug court program.