Bill Text: NY S05703 | 2011-2012 | General Assembly | Introduced

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

Sponsorship: Partisan Bill (Republican 1)

Status: (Introduced - Dead) 2012-01-04 - REFERRED TO CODES [S05703 Detail]

Download: New_York-2011-S05703-Introduced.html

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                           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:
    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    S  2.  The penal law is amended by adding a new section 220.78 to read
   11  as follows:
   12  S 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    S 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    S  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    S 5. This act shall take effect immediately.