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SB-176 Controlled substances: fentanyl and carfentanil.(2017-2018)

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Date Published: 01/24/2017 09:00 PM
SB176:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 176


Introduced by Senator Bates
(Coauthors: Senators Nguyen and Stone)
(Coauthor: Assembly Member Brough)

January 24, 2017


An act to amend Section 6929 of the Family Code, and to amend Sections 11055, 11370.4, 11372, and 11839.2 of the Health and Safety Code, relating to controlled substances.


LEGISLATIVE COUNSEL'S DIGEST


SB 176, as introduced, Bates. Controlled substances: fentanyl and carfentanil.
Existing law classifies controlled substances into 5 schedules and places the greatest restrictions and penalties on the use of those substances placed in Schedule I. The drug fentanyl, an opiate, is classified in Schedule II. Existing law prohibits a person from possessing for sale or purchasing for purposes of sale specified controlled substances, including fentanyl, and provides for imprisonment in a county jail for 2, 3, or 4 years for a violation of this provision. Existing law also imposes an additional term and a specified fine upon a person who is convicted of a violation of, or of a conspiracy to violate, specified provisions of law with respect to a substance containing heroin, cocaine base, and cocaine, depending on the weight of the substance.
This bill would classify carfentanil, an opiate, in Schedule II. The bill would also make the provisions imposing an additional term and fine, as described above, applicable with respect to a substance containing carfentanil or fentanyl. By imposing additional incarceration costs on local agencies, the bill would impose a state-mandated local program. The bill would also make conforming changes.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 6929 of the Family Code is amended to read:

6929.
 (a) As used in this section:
(1) “Counseling” means the provision of counseling services by a provider under a contract with the state or a county to provide alcohol or drug abuse counseling services pursuant to Part 2 (commencing with Section 5600) of Division 5 of the Welfare and Institutions Code or pursuant to Division 10.5 (commencing with Section 11750) of the Health and Safety Code.
(2) “Drug or alcohol” includes, but is not limited to, any substance listed in any of the following:
(A) Section 380 or 381 of the Penal Code.
(B) Division 10 (commencing with Section 11000) of the Health and Safety Code.
(C) Subdivision (f) of Section 647 of the Penal Code.
(3) “LAAM” means levoalphacetylmethadol as specified in paragraph (10) (11) of subdivision (c) of Section 11055 of the Health and Safety Code.
(4) “Professional person” means a physician and surgeon, registered nurse, psychologist, clinical social worker, professional clinical counselor, marriage and family therapist, registered marriage and family therapist intern when appropriately employed and supervised pursuant to Section 4980.43 of the Business and Professions Code, psychological assistant when appropriately employed and supervised pursuant to Section 2913 of the Business and Professions Code, associate clinical social worker when appropriately employed and supervised pursuant to Section 4996.18 of the Business and Professions Code, or registered clinical counselor intern when appropriately employed and supervised pursuant to Section 4999.42 of the Business and Professions Code.
(b) A minor who is 12 years of age or older may consent to medical care and counseling relating to the diagnosis and treatment of a drug- or alcohol-related problem.
(c) The treatment plan of a minor authorized by this section shall include the involvement of the minor’s parent or guardian, if appropriate, as determined by the professional person or treatment facility treating the minor. The professional person providing medical care or counseling to a minor shall state in the minor’s treatment record whether and when the professional person attempted to contact the minor’s parent or guardian, and whether the attempt to contact the parent or guardian was successful or unsuccessful, or the reason why, in the opinion of the professional person, it would not be appropriate to contact the minor’s parent or guardian.
(d) The minor’s parent or guardian is not liable for payment for any care provided to a minor pursuant to this section, except that if the minor’s parent or guardian participates in a counseling program pursuant to this section, the parent or guardian is liable for the cost of the services provided to the minor and the parent or guardian.
(e) This section does not authorize a minor to receive replacement narcotic abuse treatment, in a program licensed pursuant to Article 3 (commencing with Section 11875) 11876) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code, without the consent of the minor’s parent or guardian.
(f) It is the intent of the Legislature that the state shall respect the right of a parent or legal guardian to seek medical care and counseling for a drug- or alcohol-related problem of a minor child when the child does not consent to the medical care and counseling, and nothing in this section shall be construed to restrict or eliminate this right.
(g) Notwithstanding any other provision of law, in cases where a parent or legal guardian has sought the medical care and counseling for a drug- or alcohol-related problem of a minor child, the physician and surgeon shall disclose medical information concerning the care to the minor’s parent or legal guardian upon his or her request, even if the minor child does not consent to disclosure, without liability for the disclosure.

SEC. 2.

 Section 11055 of the Health and Safety Code is amended to read:

11055.
 (a) The controlled substances listed in this section are included in Schedule II.
(b) Any of the following substances, except those narcotic drugs listed in other schedules, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by combination of extraction and chemical synthesis:
(1) Opium, opiate, and any salt, compound, derivative, or preparation of opium or opiate, with the exception of naloxone hydrochloride (N-allyl-14-hydroxy-nordihydromorphinone hydrochloride), but including the following:
(A) Raw opium.
(B) Opium extracts.
(C) Opium fluid extracts.
(D) Powdered opium.
(E) Granulated opium.
(F) Tincture of opium.
(G) Codeine.
(H) Ethylmorphine.
(I) Hydrocodone.
(J) Hydromorphone.
(K) Metopon.
(L) Morphine.
(M) Oxycodone.
(N) Oxymorphone.
(O) Thebaine.
(2) Any salt, compound, isomer, or derivative, whether natural or synthetic, of the substances referred to in paragraph (1), but not including the isoquinoline alkaloids of opium.
(3) Opium poppy and poppy straw.
(4) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, but not including decocainized coca leaves or extractions which do not contain cocaine or ecgonine.
(5) Concentrate of poppy straw (the crude extract of poppy straw in either liquid, solid, or powder form which contains the phenanthrene alkaloids of the opium poppy).
(6) Cocaine, except as specified in Section 11054.
(7) Ecgonine, whether natural or synthetic, or any salt, isomer, derivative, or preparation thereof.
(c) Opiates. Unless specifically excepted or unless in another schedule, any of the following opiates, including its isomers, esters, ethers, salts, and salts of isomers, esters, and ethers whenever the existence of those isomers, esters, ethers, and salts is possible within the specific chemical designation, dextrorphan and levopropoxyphene excepted:
(1) Alfentanyl.
(2) Alphaprodine.
(3) Anileridine.
(4) Bezitramide.
(5) Bulk dextropropoxyphene (nondosage forms).
(6) Carfentanil.

(6)

(7) Dihydrocodeine.

(7)

(8) Diphenoxylate.

(8)

(9) Fentanyl.

(9)

(10) Isomethadone.

(10)

(11) Levoalphacetylmethadol, also known as levo-alpha-acetylmethadol, levomethadyl acetate, or LAAM. This substance is authorized for the treatment of narcotic addicts under federal law (see Part 291 290 (commencing with Section 291.501) 290.1) and Part 1308 (commencing with Section 1308.01) of Title 21 of the Code of Federal Regulations).

(11)

(12) Levomethorphan.

(12)

(13) Levorphanol.

(13)

(14) Metazocine.

(14)

(15) Methadone.

(15)

(16) Methadone-Intermediate, 4-cyano-2-dimethylamino-4, 4-diphenyl butane.

(16)

(17) Moramide-Intermediate, 2-methyl-3-morpholino-1, 1-diphenylpropane-carboxylic acid.

(17)

(18) Pethidine (meperidine).

(18)

(19) Pethidine-Intermediate-A, 4-cyano-1-methyl-4-phenylpiperidine.

(19)

(20) Pethidine-Intermediate-B, ethyl-4-phenylpiperidine-4-carboxylate.

(20)

(21) Pethidine-Intermediate-C, 1-methyl-4-phenylpiperidine-4-carboxylic acid.

(21)

(22) Phenazocine.

(22)

(23) Piminodine.

(23)

(24) Racemethorphan.

(24)

(25) Racemorphan.

(25)

(26) Sufentanyl.
(d) Stimulants. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system:
(1) Amphetamine, its salts, optical isomers, and salts of its optical isomers.
(2) Methamphetamine, its salts, isomers, and salts of its isomers.
(3) Dimethylamphetamine (N,N-dimethylamphetamine), its salts, isomers, and salts of its isomers.
(4) N-Ethylmethamphetamine (N-ethyl, N-methylamphetamine), its salts, isomers, and salts of its isomers.
(5) Phenmetrazine and its salts.
(6) Methylphenidate.
(7) Khat, which includes all parts of the plant classified botanically as Catha Edulis, whether growing or not, the seeds thereof, any extract from any part of the plant, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or extracts.
(8) Cathinone (also known as alpha-aminopropiophenone, 2-aminopropiophenone, and norephedrone).
(e) Depressants. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a depressant effect on the central nervous system, including its salts, isomers, and salts of isomers whenever the existence of those salts, isomers, and salts of isomers is possible within the specific chemical designation:
(1) Amobarbital.
(2) Pentobarbital.
(3) Phencyclidines, including the following:
(A) 1-(1-phenylcyclohexyl) piperidine (PCP).
(B) 1-(1-phenylcyclohexyl) morpholine (PCM).
(C) Any analog of phencyclidine which is added by the Attorney General by regulation pursuant to this paragraph.
The Attorney General, or his or her designee, may, by rule or regulation, add additional analogs of phencyclidine to those enumerated in this paragraph after notice, posting, and hearing pursuant to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. The Attorney General shall, in the calendar year of the regular session of the Legislature in which the rule or regulation is adopted, submit a draft of a proposed bill to each house of the Legislature which would incorporate the analogs into this code. No rule or regulation shall remain in effect beyond January 1 after the calendar year of the regular session in which the draft of the proposed bill is submitted to each house. However, if the draft of the proposed bill is submitted during a recess of the Legislature exceeding 45 calendar days, the rule or regulation shall be effective until January 1 after the next calendar year.
(4) Secobarbital.
(5) Glutethimide.
(f) Immediate precursors. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances:
(1) Immediate precursor to amphetamine and methamphetamine:

(A)Phenylacetone.

Phenylacetone. Some trade or other names: phenyl-2 propanone; P2P; benzyl methyl ketone; methyl benzyl ketone.
(2) Immediate precursors to phencyclidine (PCP):
(A) 1-phenylcyclohexylamine.
(B) 1-piperidinocyclohexane carbonitrile (PCC).

SEC. 3.

 Section 11370.4 of the Health and Safety Code is amended to read:

11370.4.
 (a) Any (1) A person convicted of a violation of, or of a conspiracy to violate, Section 11351, 11351.5, or 11352 with respect to a substance containing heroin, carfentanil, fentanyl, cocaine base as specified in paragraph (1) of subdivision (f) of Section 11054, or cocaine as specified in paragraph (6) of subdivision (b) of Section 11055 shall receive an additional term as follows:

(1)Where

(A) If the substance exceeds one kilogram by weight, the person shall receive an additional term of three years.

(2)Where

(B) If the substance exceeds four kilograms by weight, the person shall receive an additional term of five years.

(3)Where

(C) If the substance exceeds 10 kilograms by weight, the person shall receive an additional term of 10 years.

(4)Where

(D) If the substance exceeds 20 kilograms by weight, the person shall receive an additional term of 15 years.

(5)Where

(E) If the substance exceeds 40 kilograms by weight, the person shall receive an additional term of 20 years.

(6)Where

(F) If the substance exceeds 80 kilograms by weight, the person shall receive an additional term of 25 years.

The

(2) The conspiracy enhancements provided for in this subdivision shall not be imposed unless the trier of fact finds that the defendant conspirator was substantially involved in the planning, direction, execution, or financing of the underlying offense.
(b) Any (1) A person convicted of a violation of, or of conspiracy to violate, Section 11378, 11378.5, 11379, or 11379.5 with respect to a substance containing methamphetamine, amphetamine, phencyclidine (PCP) and its analogs shall receive an additional term as follows:

(1)Where

(A) If the substance exceeds one kilogram by weight, or 30 liters by liquid volume, the person shall receive an additional term of three years.

(2)Where

(B) If the substance exceeds four kilograms by weight, or 100 liters by liquid volume, the person shall receive an additional term of five years.

(3)Where

(C) If the substance exceeds 10 kilograms by weight, or 200 liters by liquid volume, the person shall receive an additional term of 10 years.

(4)Where

(D) If the substance exceeds 20 kilograms by weight, or 400 liters by liquid volume, the person shall receive an additional term of 15 years.

In

(2) In computing the quantities involved in this subdivision, plant or vegetable material seized shall not be included.

The

(3) The conspiracy enhancements provided for in this subdivision shall not be imposed unless the trier of fact finds that the defendant conspirator was substantially involved in the planning, direction, execution, or financing of the underlying offense.
(c) The additional terms provided in this section shall not be imposed unless the allegation that the weight of the substance containing heroin, carfentanil, fentanyl, cocaine base as specified in paragraph (1) of subdivision (f) of Section 11054, cocaine as specified in paragraph (6) of subdivision (b) of Section 11055, methamphetamine, amphetamine, or phencyclidine (PCP) and its analogs exceeds the amounts provided in this section is charged in the accusatory pleading and admitted or found to be true by the trier of fact.
(d) The additional terms provided in this section shall be in addition to any other punishment provided by law.
(e) Notwithstanding any other provision of law, the court may strike the additional punishment for the enhancements provided in this section if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment.

SEC. 4.

 Section 11372 of the Health and Safety Code is amended to read:

11372.
 (a) In addition to the term of imprisonment provided by law for persons convicted of violating Section 11350, 11351, 11351.5, 11352, 11353, 11355, 11359, 11360, or 11361, the trial court may impose a fine not exceeding twenty thousand dollars ($20,000) for each offense. In no event shall a fine be levied in lieu of or in substitution for the term of imprisonment provided by law for any of these offenses.
(b) Any A person receiving an additional term pursuant to subparagraph (A) of paragraph (1) of subdivision (a) of Section 11370.4, may, in addition, be fined by an amount not exceeding one million dollars ($1,000,000) for each offense.
(c) Any A person receiving an additional term pursuant to subparagraph (B) of paragraph (2) (1) of subdivision (a) of Section 11370.4, may, in addition, be fined by an amount not to exceed four million dollars ($4,000,000) for each offense.
(d) Any A person receiving an additional term pursuant to subparagraph (C) of paragraph (3) (1) of subdivision (a) of Section 11370.4, may, in addition, be fined by an amount not to exceed eight million dollars ($8,000,000) for each offense.
(e) The court shall make a finding, prior to the imposition of the fines authorized by subdivisions (b) to (e), (d), inclusive, that there is a reasonable expectation that the fine, or a substantial portion thereof, could be collected within a reasonable period of time, taking into consideration the defendant’s income, earning capacity, and financial resources.

SEC. 5.

 Section 11839.2 of the Health and Safety Code is amended to read:

11839.2.
 The following controlled substances are authorized for use in narcotic replacement therapy by licensed narcotic treatment programs:
(a) Methadone.
(b) Levoalphacetylmethadol (LAAM) as specified in paragraph (10) (11) of subdivision (c) of Section 11055.
(c) Buprenorphine products or combination of products approved by the federal Food and Drug Administration for maintenance or detoxification of opioid dependence.
(d) Any other federally approved, controlled substances used for the purpose of narcotic replacement treatment.

SEC. 6.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.