Bill Text: CA AB2136 | 2023-2024 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Controlled substances: analyzing and testing.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2024-09-27 - Chaptered by Secretary of State - Chapter 701, Statutes of 2024. [AB2136 Detail]

Download: California-2023-AB2136-Amended.html

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Amended  IN  Assembly  April 15, 2024

Amended  IN  Assembly  March 18, 2024

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill

No. 2136

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Introduced by Assembly Member Jones-Sawyer

February 06, 2024

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An act to amend Sections 11014.5, 11364, 11364.5, and 11364.7 of of, and to add Article 5 (commencing with Section 11300) to Chapter 5 of Division 10 of, the Health and Safety Code, relating to controlled substances.

LEGISLATIVE COUNSEL'S DIGEST

AB 2136, as amended, Jones-Sawyer. Controlled substances: analyzing and testing.

Existing law, the California Uniform Controlled Substances Act, categorizes controlled substances into 5 schedules and places the greatest restrictions on those substances contained in Schedule I. Existing law also defines drug paraphernalia and prohibits, among other things, the manufacture, sale, and possession, as specified, of drug paraphernalia. Existing law excludes from these prohibitions any testing equipment that is designed, marketed, used, or intended to be used to analyze a substance for the presence of fentanyl, ketamine, gamma hydroxybutyric acid, or any analog of fentanyl.

This bill would instead exclude from the definition of drug paraphernalia equipment, products, and materials that are designed for use or marketed for use in testing or analyzing a controlled substance. The bill would exclude from the criminal liability of possessing drug paraphernalia those individuals obtaining drug checking services controlled substance checking services and would state that it is lawful to use, possess, or distribute equipment intended for use or designed for use in identifying, or in analyzing the strength, effectiveness, or purity of a controlled substance. The bill would authorize the provision of controlled substance checking services and define those services as the process of identifying or analyzing a substance to determine its chemical composition. The bill would provide a person engaged in providing or using those services immunity from arrest, criminal prosecution, and civil liability, among other things. The bill would prohibit a controlled substance service provider or harm reduction service provider, as defined, from retaining personally identifiable information from service users and from providing that information to law enforcement.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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Bill Text

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

SECTION 1.

 Section 11014.5 of the Health and Safety Code is amended to read:

11014.5.

 (a) “Drug paraphernalia” means all equipment, products, and materials of any kind that are designed for use or marketed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this division. It includes, but is not limited to:

(1) Kits designed for use or marketed for use in planting, propagating, cultivating, growing, or harvesting of any species of plant that is a controlled substance or from which a controlled substance can be derived.

(2) Kits designed for use or marketed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances.

(3) Isomerization devices designed for use or marketed for use in increasing the potency of any species of plant that is a controlled substance.

(4) Scales and balances designed for use or marketed for use in weighing or measuring controlled substances.

(5) Containers and other objects designed for use or marketed for use in storing or concealing controlled substances.

(6) Hypodermic syringes, needles, and other objects designed for use or marketed for use in parenterally injecting controlled substances into the human body.

(7) Objects designed for use or marketed for use in ingesting, inhaling, or otherwise introducing cannabis, cocaine, hashish, or hashish oil into the human body, such as:

(A) Carburetion tubes and devices.

(B) Smoking and carburetion masks.

(C) Roach clips, meaning objects used to hold burning material, such as a cannabis cigarette, that has become too small or too short to be held in the hand.

(D) Miniature cocaine spoons, and cocaine vials.

(E) Chamber pipes.

(F) Carburetor pipes.

(G) Electric pipes.

(H) Air-driven pipes.

(I) Chillums.

(J) Bongs.

(K) Ice pipes or chillers.

(b) For the purposes of this section, the phrase “marketed for use” means advertising, distributing, offering for sale, displaying for sale, or selling in a manner that promotes the use of equipment, products, or materials with controlled substances.

(c) In determining whether an object is drug paraphernalia, a court or other authority may consider, in addition to all other logically relevant factors, the following:

(1) Statements by an owner or by anyone in control of the object concerning its use.

(2) Instructions, oral or written, provided with the object concerning its use for ingesting, inhaling, or otherwise introducing a controlled substance into the human body.

(3) Descriptive materials accompanying the object that explain or depict its use.

(4) National and local advertising concerning its use.

(5) The manner in which the object is displayed for sale.

(6) Whether the owner or anyone in control of the object is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products.

(7) Expert testimony concerning its use.

(d) If any provision of this section or the application thereof to any person or circumstance is held invalid, it is the intent of the Legislature that the invalidity shall not affect other provisions or applications of the section that can be given effect without the invalid provision or application and to this end the provisions of this section are severable.

SEC. 2.

 Article 5 (commencing with Section 11300) is added to Chapter 5 of Division 10 of the Health and Safety Code, to read:

Article  5. Controlled Substance Checking Services

11300.

 For the purposes of this article, the following terms shall have the following meanings:

(a) “Controlled substance analog” has the same meaning as described in Section 11041.

(b) “Controlled substance checking” means the process of identifying, analyzing, or testing a substance, controlled or otherwise, or residue on drug paraphernalia or controlled substance packaging, to determine its chemical composition to assist in determining whether the substance contains contaminants, toxic substances, hazardous compounds, or other adulterants within a substance.

(c) “Controlled substance checking equipment” means equipment, products, technologies, or materials used, designed for use, or intended for use to perform chemical analysis of controlled substances or controlled substance analogs, including materials and items used by the person operating the equipment or products to store, measure, or process samples for analysis. Controlled substance checking equipment includes, but is not limited to, fentanyl test strips, other controlled substance or controlled substance analog immunoassay strips, colorimetric reagents, spectrometers such as Fourier transform infrared and Raman spectrometers, and equipment that uses high-performance liquid chromatography, gas chromatography, mass spectrometry, or nuclear magnetic resonance techniques.

(d) “Controlled substance checking service provider” means an individual or group that provides controlled substance checking services.

(e) “Controlled substance packaging” means the materials or items used by persons selling, buying, or ingesting controlled substances or controlled substance analogs to store, contain, cover, or transport small amounts of one or more controlled substances or controlled substance analogs.

(f) “Harm reduction” has the same meaning as described in subdivision (a) of Section 1954.08 of the Civil Code.

(g) “Harm reduction service provider” means a community-based organization, nonprofit organization, homeless service organization, mutual aid group, harm reduction organization, or outreach worker that works with individuals who use controlled substances or controlled substance analogs.

(h) “Person” means an individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal, commercial, or informal entity or group.

11301.

 Notwithstanding any other law, it is not a violation of this division for a controlled substance checking service provider or a harm reduction service provider to do any of the following solely for the purpose of providing controlled substance checking services:

(a) Receive voluntarily provided samples of substances potentially containing controlled substances or controlled substance analogs.

(b) Possess, transport, transfer, or store a sample of a controlled substance or a controlled substance analog solely for the purpose of analyzing the substance to determine its chemical composition.

(c) Use available technologies to analyze the contents of samples to obtain timely and accurate information regarding the composition of controlled substances or controlled substance analogs.

(d) Provide results of analysis obtained from controlled substance checking equipment to the person requesting controlled substance checking services.

(e) Provide information and harm reduction services and advice to help individuals make informed decisions about use of controlled substances and controlled substance analogs.

(f) Disseminate data containing only the results of analysis and containing no personally identifiable information to community members at risk of overdose.

(g) If necessary, arrange for a sample of a substance to be tested by a laboratory for secondary verification, including transportation of samples.

(h) Purchase, obtain, possess, provide, transport, distribute, use, or evaluate the use of controlled substance checking equipment.

(i) Provide training and technical assistance concerning controlled substance checking equipment, the process of controlled substance checking, and the purpose of controlled substance checking.

(j) Work in collaboration with a county health officer, the State Department of Public Health, or a research institution to conduct or engage in any activities authorized by this article.

11302.

 In operating a controlled substance checking service, personally identifiable information may be collected from a service user providing a controlled substance or a controlled substance analog to a controlled substance checking service provider or harm reduction service provider only as necessary to communicate controlled substance checking results to the service user. Personally identifiable information collected solely for the purposes of communicating controlled substance checking results shall not be retained after delivery of results.

11303.

 A program, employee, contractor, volunteer, owner, or other person acting in the good faith provision of controlled substance checking services and acting in accordance with established protocols shall not be subject to any of the following:

(a) Arrest or prosecution for a violation of this division, including for attempting to, aiding and abetting in, or conspiracy to commit a violation of this division.

(b) Forfeiture of property.

(c) Any civil or administrative penalty or liability of any kind, including disciplinary action by a professional licensing board, credentialing restrictions, contractual or civil liability, or employment action.

(d) Denial of a right or privilege for actions, conduct, or omissions relating to the operation of a controlled substance checking service in compliance with this article and any rules adopted pursuant to this article.

11304.

 An individual possessing a controlled substance or a controlled substance analog who provides any portion of the substance to a controlled substance checking service provider or harm reduction service provider pursuant to this section for the purpose of obtaining controlled substance checking services shall not be subject to any criminal or civil penalty, forfeiture of property, or investigation based solely on the individual’s utilization of a controlled substance checking service or actions authorized by this act, including, but not limited to, any of the following:

(a) Arrest.

(b) Criminal prosecution, including a violation or revocation of a grant of probation, parole, pretrial release, or any other form of community supervision.

(c) Civil, disciplinary, or administrative action.

(d) Detention, referral, or transfer to United States Immigration and Customs Enforcement.

11305.

 (a) A government agency shall not collect, maintain, use, or disclose any personal information relating to an individual from whom the agency receives a controlled substance or controlled substance analog for checking or disposal and shall not provide this information to law enforcement.

(b) Notwithstanding subdivision (a), collection and disclosure of aggregate information that is not linked to an individual and does not contain a personal identifier may be released to clinicians, public health officials, researchers, or other local and state agencies as requested and may be stored or uploaded onto an internet website.

SEC. 2.SEC. 3.

 Section 11364 of the Health and Safety Code is amended to read:

11364.

 (a) It is unlawful to possess an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking (1) a controlled substance specified in subdivision (b), (c), or (e) or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, specified in subdivision (b) or (c) of Section 11055, or specified in paragraph (2) of subdivision (d) of Section 11055, or (2) a controlled substance that is a narcotic drug classified in Schedule III, IV, or V.

(b) This section shall not apply to hypodermic needles or syringes that have been containerized for safe disposal in a container that meets state and federal standards for disposal of sharps waste.

(c) This section does not apply to an individual obtaining drug checking services. controlled substance checking services, as described in Article 5 (commencing with Section 11300) of Chapter 5.

(d) Until January 1, 2026, as a public health measure intended to prevent the transmission of HIV, viral hepatitis, and other bloodborne diseases among persons who use syringes and hypodermic needles, and to prevent subsequent infection of sexual partners, newborn children, or other persons, this section shall not apply to the possession solely for personal use of hypodermic needles or syringes.

SEC. 3.SEC. 4.

 Section 11364.5 of the Health and Safety Code is amended to read:

11364.5.

 (a) Except as authorized by law, a person shall not maintain or operate any a place of business in which drug paraphernalia is kept, displayed, or offered in any manner, sold, furnished, transferred, or given away unless that drug paraphernalia is completely and wholly kept, displayed, or offered within a separate room or enclosure to which persons under 18 years of age who are not accompanied by a parent or legal guardian are excluded. Each entrance to such a room or enclosure shall be signposted in reasonably visible and legible words to the effect that drug paraphernalia is kept, displayed, or offered in the room or enclosure and that minors, unless accompanied by a parent or legal guardian, are excluded.

(b) Except as authorized by law, an owner, manager, proprietor, or other person in charge of a room or enclosure, within a place of business, in which drug paraphernalia is kept, displayed, or offered in any manner, sold, furnished, transferred, or given away shall not permit or allow a person under 18 years of age to enter, be in, remain in, or visit the room or enclosure unless that minor person is accompanied by their parent or legal guardian.

(c) Unless authorized by law, a person under 18 years of age shall not enter, be in, remain in, or visit a room or enclosure in a place of business in which drug paraphernalia is kept, displayed, or offered in any manner, sold, furnished, transferred, or given away unless accompanied by their parent or legal guardian.

(d) As used in this section, “drug paraphernalia” means all equipment, products, and materials of any kind which are intended for use or designed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance. “Drug paraphernalia” includes, but is not limited to, all of the following:

(1) Kits intended for use or designed for use in planting, propagating, cultivating, growing, or harvesting of any species of plant that is a controlled substance or from which a controlled substance can be derived.

(2) Kits intended for use or designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances.

(3) Isomerization devices intended for use or designed for use in increasing the potency of any species of plant that is a controlled substance.

(4) Scales and balances intended for use or designed for use in weighing or measuring controlled substances.

(5) Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose, and lactose, intended for use or designed for use in cutting controlled substances.

(6) Separation gins and sifters intended for use or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, cannabis.

(7) Blenders, bowls, containers, spoons, and mixing devices intended for use or designed for use in compounding controlled substances.

(8) Capsules, balloons, envelopes, and other containers intended for use or designed for use in packaging small quantities of controlled substances.

(9) Containers and other objects intended for use or designed for use in storing or concealing controlled substances.

(10) Hypodermic syringes, needles, and other objects intended for use or designed for use in parenterally injecting controlled substances into the human body.

(11) Objects intended for use or designed for use in ingesting, inhaling, or otherwise introducing cannabis, cocaine, hashish, or hashish oil into the human body, such as the following:

(A) Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls.

(B) Water pipes.

(C) Carburetion tubes and devices.

(D) Smoking and carburetion masks.

(E) Roach clips, meaning objects used to hold burning material, such as a cannabis cigarette that has become too small or too short to be held in the hand.

(F) Miniature cocaine spoons, and cocaine vials.

(G) Chamber pipes.

(H) Carburetor pipes.

(I) Electric pipes.

(J) Air-driven pipes.

(K) Chillums.

(L) Bongs.

(M) Ice pipes or chillers.

(e) In determining whether an object is drug paraphernalia, a court or other authority may consider, in addition to all other logically relevant factors, the following:

(1) Statements by an owner or by anyone in control of the object concerning its use.

(2) Prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance.

(3) Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom they know, or should reasonably know, intend to use the object to facilitate a violation of this section. The innocence of an owner, or of anyone in control of the object, as to a direct violation of this section shall not prevent a finding that the object is intended for use, or designed for use, as drug paraphernalia.

(4) Instructions, oral or written, provided with the object concerning its use.

(5) Descriptive materials, accompanying the object which explain or depict its use.

(6) National and local advertising concerning its use.

(7) The manner in which the object is displayed for sale.

(8) Whether the owner or anyone in control of the object is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products.

(9) The existence and scope of legitimate uses for the object in the community.

(10) Expert testimony concerning its use.

(f) This section shall not apply to any of the following:

(1) Any pharmacist or other authorized person who sells or furnishes drug paraphernalia described in paragraph (10) of subdivision (d) upon the prescription of a physician, dentist, podiatrist, or veterinarian.

(2) Any physician, dentist, podiatrist, or veterinarian who furnishes or prescribes drug paraphernalia described in paragraph (10) of subdivision (d) to a patient.

(3) Any manufacturer, wholesaler, or retailer licensed by the California State Board of Pharmacy to sell or transfer drug paraphernalia described in paragraph (10) of subdivision (d).

(g) Notwithstanding any other law, it is lawful to use, possess, or distribute equipment intended for use or designed for use in identifying, or in analyzing the strength, effectiveness, or purity of a controlled substance.

(h) Notwithstanding any other law, including Section 11374, violation of this section shall not constitute a criminal offense, but operation of a business in violation of the provisions of this section shall be grounds for revocation or nonrenewal of any license, permit, or other entitlement previously issued by a city, county, or city and county for the privilege of engaging in such business and shall be grounds for denial of any future license, permit, or other entitlement authorizing the conduct of such business or any other business, if the business includes the sale of drug paraphernalia.

SEC. 4.SEC. 5.

 Section 11364.7 of the Health and Safety Code is amended to read:

11364.7.

 (a) (1) Except as authorized by law, a person who delivers, furnishes, or transfers, possesses with intent to deliver, furnish, or transfer, or manufactures with the intent to deliver, furnish, or transfer, drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance, except as provided in subdivision (b), in violation of this division, is guilty of a misdemeanor.

(2) A public entity, its agents, or employees shall not be subject to criminal prosecution for distribution of hypodermic needles or syringes or any materials deemed by a local or state health department to be necessary to prevent the spread of communicable diseases, or to prevent drug overdose, injury, or disability to participants in clean needle and syringe exchange projects authorized by the public entity pursuant to Chapter 18 (commencing with Section 121349) of Part 4 of Division 105.

(b) Except as authorized by law, a person who manufactures with intent to deliver, furnish, or transfer drug paraphernalia knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body cocaine, cocaine base, heroin, phencyclidine, or methamphetamine in violation of this division shall be punished by imprisonment in a county jail for not more than one year, or in the state prison.

(c) Except as authorized by law, a person, 18 years of age or over, who violates subdivision (a) by delivering, furnishing, or transferring drug paraphernalia to a person under 18 years of age who is at least three years their junior, or who, upon the grounds of a public or private elementary, vocational, junior high, or high school, possesses a hypodermic needle, as defined in Section 11014.5, with the intent to deliver, furnish, or transfer the hypodermic needle, knowing, or under circumstances where one reasonably should know, that it will be used by a person under 18 years of age to inject into the human body a controlled substance, is guilty of a misdemeanor and shall be punished by imprisonment in a county jail for not more than one year, by a fine of not more than one thousand dollars ($1,000), or by both that imprisonment and fine.

(d) The violation, or the causing or the permitting of a violation, of subdivision (a), (b), or (c) by a holder of a business or liquor license issued by a city, county, or city and county, or by the State of California, and in the course of the licensee’s business shall be grounds for the revocation of that license.

(e) All drug paraphernalia defined in Section 11014.5 is subject to forfeiture and may be seized by any peace officer pursuant to Section 11471 unless its distribution has been authorized pursuant to subdivision (a).

(f) If any provision of this section or the application thereof to any person or circumstance is held invalid, it is the intent of the Legislature that the invalidity shall not affect other provisions or applications of this section that can be given effect without the invalid provision or application and to this end the provisions of this section are severable.

SEC. 6.

 The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.