Bill Text: CA AB890 | 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: probation.

Spectrum: Slight Partisan Bill (Republican 8-3)

Status: (Passed) 2023-10-13 - Chaptered by Secretary of State - Chapter 818, Statutes of 2023. [AB890 Detail]

Download: California-2023-AB890-Amended.html

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Amended  IN  Assembly  March 16, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill

No. 890

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Introduced by Assembly Member Joe Patterson

February 14, 2023

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An act to amend Section 11373 of, and to add Section 11356.6 to to, the Health and Safety Code, relating to controlled substances.

LEGISLATIVE COUNSEL'S DIGEST

AB 890, as amended, Joe Patterson. Controlled substances: probation.

Existing law prohibits the possession, sale, and transport, as specified, of certain controlled substances. Existing law requires a person granted probation for controlled substance offenses to, as a condition of probation, secure education or treatment from a local community agency designated by the court, if the service is available and the person is likely to benefit from the service.

This bill would require the court to order a person granted probation pursuant to those provisions for a violation of specified laws involving any amount of fentanyl, carfentanil, benzimidazole opiate, or any analog thereof, to successfully complete a fentanyl and synthetic opiate education program, if one is available.

The bill would require a court ordering a defendant to complete those courses to only order the defendant to participate in programs approved by the State Department of Public Health. The bill would require the department to, among other things, set education provider standards, approve program providers, and conduct periodic audits of probation departments and program providers to ensure compliance. The bill would require the education programs to include, among other things, information regarding the nature and addictive elements of fentanyl and other synthetic opiates and their danger to a person’s life and health. The bill would require probation departments to report an unexcused absence by a defendant from a fentanyl and synthetic opiate education program to the court within 2 business days. By imposing additional duties on local probation departments, this bill would create a state-mandated local program.

This bill would require a defendant granted probation for a violation of those laws involving any amount of fentanyl, carfentanil, benzimidazole opiate, or an analog thereof, to also complete a fentanyl and synthetic opiate education program, as specified. The bill would require the program to include, among other things, information regarding the nature and addictive elements of fentanyl and other synthetic opiates and their danger to a person’s life and health. The bill would require the State Department of Public Health to develop guidelines for the development of the content of the classes, and would require probation departments to design and implement an approval and renewal process for fentanyl and synthetic opiate education programs, as specified. By imposing additional duties on local probation departments, this bill would create a state-mandated local program.

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, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Digest Key

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

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Bill Text

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

SECTION 1.

 Section 11356.6 is added to the Health and Safety Code, to read:

11356.6.

 (a) The court shall refer a defendant subject to paragraph (2) of subdivision (a) of Section 11373 only to a fentanyl and synthetic opiate education program that has been approved by the State Department of Public Health pursuant to subdivision (b) of this section.

(b) The State Department of Public Health shall oversee the fentanyl and synthetic opiate education program. The department shall be responsible for all of the following:

(1) Collaborating with relevant stakeholders to set education provider standards.

(2) Approving, monitoring, and renewing approvals of program providers.

(3) Conducting periodic audits of probation departments and program providers to ensure compliance with this section.

(4) Developing comprehensive, statewide standards through regulations, including, but not limited to, standards for program provider curricula and the training of program staff.

(5) Identifying and developing a comprehensive final assessment tool to assess whether a defendant has satisfactorily completed the requirements of the program.

(6) Analyzing the effectiveness of programs, including, but not limited to, thorough tracking of relevant participant and program data.

(c) The fentanyl and synthetic opiate education program shall include education on the dangers of fentanyl and other synthetic opiates, including, but not limited to, information on all of the following:

(1) How the use of fentanyl and synthetic opiates affects the body and brain.

(2) The dangers of fentanyl and other synthetic opiates to a person’s life and health.

(3) Factors that contribute to physical dependence.

(4) The physical and mental health risks associated with substance use disorders.

(5) How to recognize and respond to the signs of a drug overdose, including information regarding access to, and the administration of, opiate antagonists and immunity for reporting a drug-related overdose pursuant to Section 11376.5.

(6) The legality of drug testing equipment pursuant to subdivision (g) of Section 11364.5.

(d) The education may also include the criminal penalties for controlled substance offenses regarding fentanyl and other synthetic opiates.

(e) The education shall be culturally and linguistically appropriate.

(f) The court may allow a defendant to participate in a fentanyl and synthetic opiate education program via remote technology, if one is available.

(g) The probation department shall report an unexcused absence by a defendant from a fentanyl and synthetic opiate education program to the court within two business days. A defendant who is absent from a session of the fentanyl and synthetic opiate education program shall be required to complete any and all components of the fentanyl and synthetic opiate education program that the defendant did not attend.

(h) As used in this section, “opiate” includes “opioid” drugs.

SEC. 2.

 Section 11373 of the Health and Safety Code is amended to read:

11373.

 (a) (1) (A) Whenever any person who is otherwise eligible for probation is granted probation by the trial court after conviction for a violation of any controlled substance offense under this division, the trial court shall, as a condition of probation, order that person to secure education or treatment from a local community agency designated by the court, if the service is available and the person is likely to benefit from the service.

If

(B) If the defendant is a minor, the trial court shall also order his or her their parents or guardian to participate in the education or treatment to the extent the court determines that participation will aid the education or treatment of the minor.

If

(C) If a minor is found by a juvenile court to have been in possession of any controlled substance, in addition to any other order it may make, the juvenile court shall order the minor to receive education or treatment from a local community agency designated by the court, if the service is available and the person is likely to benefit from the service, and it shall also order his or her their parents or guardian to participate in the education or treatment to the extent the court determines that participation will aid the education or treatment of the minor.

(2) To fulfill the requirements of paragraph (1), whenever a defendant is granted probation by the trial court after conviction for a violation of Section 11350, 11351, or 11352 involving any amount of fentanyl, carfentanil, benzimidazole opiate, or an analog thereof, the trial court shall order that person to successfully complete a fentanyl and synthetic opiate education program, if one is available.

(b) The willful failure to complete a court ordered education or treatment program shall be a circumstance in aggravation for purposes of sentencing for any subsequent prosecution for a violation of Section 11353, 11354, or 11380. The failure to complete an education or treatment program because of the person’s inability to pay the costs of the program or because of the unavailability to the defendant of appropriate programs is not a willful failure to complete the program.

(c) As used in this section, “opiate” includes “opioid” drugs.

SEC. 3.

 If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.

SECTION 1.Section 11356.6 is added to the Health and Safety Code, to read:

11356.6.

(a)If a defendant is granted probation for a violation of Section 11350, 11351, or 11352 involving any amount of fentanyl, carfentanil, benzimidazole opiate, or an analog thereof, the terms of probation shall include a requirement that the person successfully complete a fentanyl and synthetic opiate education program, or, if none is available, another appropriate counseling or education program designated by the court, which shall consist of not more than eight hours of content and be completed by the defendant within six months of the court’s order.

(b)The fentanyl and synthetic opiate education program shall include information regarding the nature and addictive elements of fentanyl and other synthetic opiates, their danger to a person’s life and health, access to, and administration of, opiate antagonists, nonlaboratory detection tests, including the legality of drug testing equipment pursuant to subdivision (g) of Section 11364.5, and laws regarding synthetic opiates, including criminal penalties and immunity for reporting a drug-related overdose pursuant to Section 11376.5. The court may allow the defendant to participate in a fentanyl and synthetic opiate education program via remote technology, if it is available from a program provider approved by that county.

(c)(1)The defendant shall be required to pay a fee for participation in the fentanyl and synthetic opiate education program. The fentanyl and synthetic opiate education program shall utilize a sliding fee schedule based on the defendant’s ability to pay. A program provider shall develop and utilize a sliding fee scale that recognizes both the defendant’s ability to pay and the necessity of programs to meet overhead expenses. An indigent defendant may negotiate a deferred payment schedule, but shall pay a nominal fee, if the defendant has the ability to pay the nominal fee. Upon a hearing and a finding by the court that the defendant does not have the financial ability to pay the nominal fee, the court shall waive this fee. The payment of the fee shall be made a condition of probation if the court determines the defendant has the present ability to pay the fee. The fee shall be paid during the term of probation unless the fentanyl and synthetic opiate education program provider sets other conditions. The acceptance policies shall be in accordance with the scaled fee system.

(2)A program provider shall publicly post its fee schedule on its internet website or otherwise make the fee schedule available to the public and a copy of the applicable fee schedule and the fee schedules of other approved providers in the county shall be provided to any defendant ordered to participate in the program.

(3)As used in this subdivision, “indigent” includes any person described in Section 68632 of the Government Code.

(d)The court shall advise the defendant that the failure to enroll in a specified fentanyl and synthetic opiate education program, as directed by the court or the probation department, shall result in possible further incarceration. The court, in the interests of justice, may relieve the defendant from the requirement to enroll in a specified fentanyl and synthetic opiate education program set forth in this section based upon the defendant’s mistake or excusable neglect. Application for this relief shall be filed within 20 court days of the missed deadline. This time limitation may not be extended. A copy of any application for relief shall be served on the office of the prosecuting attorney.

(e)The State Department of Public Health shall develop guidelines for development of the content of a fentanyl and synthetic opiate education program. The department may update the fentanyl and synthetic opiate education program curriculum as necessary.

(f)The probation department shall design and implement an approval and renewal process for fentanyl and synthetic opiate education programs and shall solicit input from criminal justice agencies.

(g)The probation department shall report an unexcused absence by a defendant from a fentanyl and synthetic opiate education program to the court within two business days. A defendant who is absent from a session of the fentanyl and synthetic opiate education program, or other appropriate counseling or education program designed by the court, shall be required to complete any and all components of the fentanyl and synthetic opiate education program that the defendant did not attend.

(h)The court shall refer defendants only to fentanyl and synthetic opiate education programs that have been approved by the probation department pursuant to subdivision (f). The probation department shall do both of the following:

(1)Provide for the issuance of a provisional approval, provided that the applicant is in substantial compliance with applicable laws and regulations and an urgent need for approval exists. A provisional approval shall be considered an authorization to provide services and shall not be considered a vested right.

(2)If the probation department determines that a fentanyl and synthetic opiate education program is not in compliance with standards set by the probation department, the department shall provide written notice of the noncompliant areas to the program. The program shall submit a written plan of corrections within 14 days from the date of the written notice on noncompliance. A plan of correction shall include, but not be limited to, a description of each corrective action and timeframe for implementation. The probation department shall review and approve all or any part of the plan of correction and notify the program of approval or disapproval in writing. If the program fails to submit a plan of correction or fails to implement the approved plan of correction, the department shall consider whether to revoke or suspend approval and, upon revoking or suspending approval, shall have the option to cease referrals of defendants under this section.

(3)No fentanyl and synthetic opiate education program provider, regardless of its source of funding, shall be approved unless it meets all of the following standards:

(A)The establishment of guidelines and criteria for education services, including standards of services that may include lectures, classes, and group discussions.

(B)Supervision of the defendant for the purpose of evaluating the person’s progress in the program.

(C)Adequate reporting requirements to ensure that all defendants, after being ordered to attend and complete a program, may be identified for either failure to enroll in, or failure to successfully complete, the fentanyl and synthetic opiate education program or for the successful completion of the program as ordered. The program provider shall notify the court and the probation department, in writing, within the period of time, and in the manner specified by the court, of any person who fails to complete the program. Notification shall be given if the fentanyl and synthetic opiate education program provider determines that the defendant is performing unsatisfactorily or if the defendant is not benefiting from the education or counseling.

(D)No victim or derivative shall be compelled to participate in a program or counseling, and no program may condition a defendant’s enrollment on participation by the victim.

(4)In making referrals of indigent defendants to approved fentanyl and synthetic opiate education programs, the probation department shall apportion these referrals evenly among the approved program providers.

(5)The probation department shall have the sole authority to approve a fentanyl and synthetic opiate education program provider for probation. The program provider shall be required to obtain only one approval, but shall renew that approval annually.

(A)The procedure for the approval of a new or existing program provider shall include all of the following:

(i)The completion of a written application containing necessary and pertinent information describing the applicant program.

(ii)The demonstration by the fentanyl and synthetic opiate education program provider that it possesses adequate administrative and operational capability to operate a fentanyl and synthetic opiate education program.

(iii)The onsite review of the program provider, including monitoring of a session to determine that the fentanyl synthetic opiate education program provider adheres to applicable statutes and regulations.

(iv)The payment of the approval fee.

(B)The probation department shall fix a fee for approval not to exceed two hundred fifty dollars ($250) and for approval renewal not to exceed two hundred fifty dollars ($250) every year in an amount sufficient to cover its costs in administering the approval process under this section. No fee shall be charged for the approval of local governmental entities.

(C)The probation department has the sole authority to approve the issuance, denial, suspension, or revocation of approval and to cease new enrollments or referrals to a fentanyl and synthetic opiate education program under this section. The probation department shall review information relative to a program provider’s performance or failure to adhere to standards, or both. The probation department may suspend or revoke an approval issued under this subdivision or deny an application to renew an approval or to modify the terms and conditions of approval, based on grounds established by probation, including, but not limited to, either of the following:

(i)Violation of this section by any person holding approval or by a program provider employee in a program under this section.

(ii)Misrepresentation of any material fact in obtaining the approval.

(i)An act or omission relating to the approval of a fentanyl and synthetic opiate education program under this section is a discretionary act pursuant to Section 820.2 of the Government Code.

(j)As used in this section, “opiate” includes “opioid” drugs.

SEC. 2.

If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.