Bill Text: CA SB46 | 2023-2024 | Regular Session | Amended

California Senate Bill 46 (Prior Session Legislation)

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

Bill Title: Controlled substances: treatment.

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Passed) 2023-10-08 - Chaptered by Secretary of State. Chapter 481, Statutes of 2023. [SB46 Detail]

Download: California-2023-SB46-Amended.html

Amended IN Assembly September 07, 2023

Amended IN Assembly June 29, 2023

Amended IN Senate May 18, 2023

Amended IN Senate March 21, 2023

Amended IN Senate March 06, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Senate Bill

No. 46

Introduced by Senator Roth
(Coauthor: Senator Umberg)
(Coauthor: Assembly Member Cervantes)

December 05, 2022

An act to amend Section 11373 of the Health and Safety Code, and to amend Sections 1210 and 1211 of the Penal Code, relating to controlled substances.

LEGISLATIVE COUNSEL'S DIGEST

SB 46, as amended, Roth. Controlled substances: treatment.

Existing law, as added by the Substance Abuse and Crime Prevention Act of 2000, adopted by voters as Proposition 36 at the November 7, 2000, statewide general election, requires that persons convicted of certain nonviolent drug possession offenses be granted probation and participate in and complete an appropriate drug treatment program as a condition of that probation. After completion of drug treatment and the terms of probation, the act requires the court to conduct a hearing, set aside the conviction, and dismiss the complaint if the court finds, among other requirements, that the defendant successfully completed drug treatment. For purposes of the act, a defendant has successfully completed treatment if they have completed the prescribed course of drug treatment and, as a result, there is reasonable cause to believe that they will not abuse controlled substances in the future. The act allows its amendment by a statute passed by 2/3 of both houses of the Legislature and requires that all amendments further the act and be consistent with its purposes.

This bill would amend the act by removing the requirement that there be reasonable cause to believe that the defendant will not abuse controlled substances in the future in order to be considered as having successfully completed treatment.

Existing law requires the court, when granting probation after conviction of any controlled substance offense, as specified, to order as a condition of probation that the defendant secure education or treatment from a local community agency designated by the court. Existing law requires a juvenile court to order a minor, found to have been in possession of any controlled substance, to receive education or treatment from a local community agency, as specified, and to order the minor’s parents or guardian to participate in the education or treatment if beneficial to the minor. Existing law provides that a defendant’s willful failure to complete a court-ordered education or treatment program shall be a circumstance in aggravation for purposes of sentencing in any subsequent prosecution for specified controlled substance violations.

This bill would allow the court to order the defendant to complete a controlled substance education or treatment program, as specified, if available and as appropriate for the individual. The bill would require the court to determine the defendant’s ability to pay for the program and would authorize the court to develop a sliding fee schedule based on the person’s inability to pay, including making a person who is granted specified relief from court fees and costs not responsible for any costs. The bill would strike the requirement that a juvenile court order a minor and their parents or guardians to receive education or treatment. The bill would require the court or probation department to refer defendants to controlled substance education or treatment programs that adhere to specified standards. The bill would require the county drug program ~~administrator and representatives of the court, with input from the~~ administrator, with input from representatives of the court, the county probation ~~department~~ department, and substance use treatment providers, to design and implement an approval and renewal process for controlled substance education and treatment programs. The bill would require the court, when a defendant is convicted of a controlled substance offense resulting in imprisonment, to recommend that the defendant attend a controlled substance education or treatment program while imprisoned. By imposing additional duties on local entities, the bill would impose a state-mandated local program.

Existing law requires every county drug program administrator, in consultation with representatives of the court and the county probation department, to establish minimum requirements, criteria, and fees for the successful completion of drug diversion programs, including a minimum of 20 hours of education, counseling, or any combination of both for each divertee.

This bill would require that the 20 hours or more of education or counseling include education about, among other things, how the use of controlled substances affects the body and the dangers of using controlled substances, as specified.

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 with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

This bill would incorporate additional changes to Section 11373 of the Health and Safety Code proposed by AB 890 to be operative only if this bill and AB 890 are enacted and this bill is enacted last.

Vote: 2/3 Appropriation: NO Fiscal Committee: YES Local Program: YES

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

SECTION 1.

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

11373.

(a) (1) When a person who is otherwise eligible for probation is granted probation by the trial court or sentenced pursuant to subdivision (h) of Section 1170 of the Penal Code, 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 complete successfully a controlled substance education or treatment program, as appropriate for the individual, approved pursuant to subdivision (c), or if none is available, from a local community agency designated by the court.

(2) For purposes of this section, “complete successfully” means that a defendant who has had controlled substance education or treatment imposed as a condition of probation has completed the prescribed course of controlled substance education or treatment as recommended by the treatment provider and ordered by the court. Completion of education or treatment shall not require cessation of narcotic replacement therapy.

(3) When referring a person pursuant to this subdivision, the court shall determine the person’s ability to pay. If the court finds that the person is financially unable to pay, the court may develop a sliding fee schedule for the program based on the person’s ability to pay. A person who meets the criteria set forth in Section 68632 of the Government Code shall not be responsible for any costs.

(b) The willful failure to complete a court-ordered controlled substance 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 for the purposes of this section.

(2) A controlled substance education and treatment program shall be based on the best available current science and evidence and provide educational resources on the pathology of addiction and existing treatment modalities. The goal of a controlled substance education or treatment program shall be to save lives and reduce the risks associated with drug use, including the manufacture and distribution of controlled substances, and to reduce the recidivism that occurs from the use of controlled substances. As such, a controlled substance education or treatment program shall include education about how the use of controlled substances affects the body and brain, factors that contribute to physical dependence, how to recognize and respond to the signs of drug overdose, and the dangers of using controlled substances, unless under appropriate medical supervision. Such education shall be culturally and linguistically appropriate and may include, but is not limited to, informing program participants about the physical and mental health risks associated with substance use disorders, the grave health risk to those who are exposed to controlled substances and the extreme danger to human life when manufactured or distributed.

(d) Upon conviction of any felony in which the defendant is sentenced to state prison for a violation of any controlled substance offense under this division, a court shall, in addition to any other terms of imprisonment, fine, and conditions, recommend in writing that the defendant participate in a controlled substance education or treatment program while imprisoned that complies with the standards outlined in paragraph (2) of subdivision (c).

(e) Upon conviction of any felony in which the defendant is sentenced pursuant to subdivision (h) of Section 1170 of the Penal Code and the court does not order suspension of the execution of the term of imprisonment pursuant to subparagraph (B) of paragraph (5) of subdivision (h) of Section 1170 of the Penal Code, for a violation of any controlled substance offense under this division, a court shall, in addition to any other terms of imprisonment, fine, and conditions, recommend in writing that the defendant participate in a controlled substance education or treatment program while imprisoned that complies with the standards outlined in paragraph (2) of subdivision (c).

SEC. 1.5.

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

11373.

(a) ~~Whenever any~~ (1) When a person who is otherwise eligible for probation is granted probation by the trial court or sentenced pursuant to subdivision (h) of Section 1170 of the Penal Code, 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.~~ complete successfully a controlled substance education or treatment program, as appropriate for the individual, approved pursuant to subdivision (c), or if none is available, from a local community agency designated by the court.

If the defendant is a minor, the trial court shall also order his or her 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 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 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) For purposes of this section, “complete successfully” means that a defendant who has had controlled substance education or treatment imposed as a condition of probation has completed the prescribed course of controlled substance education or treatment as recommended by the treatment provider and ordered by the court. Completion of education or treatment shall not require cessation of narcotic replacement therapy.
(3) When referring a person pursuant to this subdivision, the court shall determine the person’s ability to pay. If the court finds that the person is financially unable to pay, the court may develop a sliding fee schedule for the program based on the person’s ability to pay. A person who meets the criteria set forth in Section 68632 of the Government Code shall not be responsible for any costs.
(4) (A) To fulfill the requirements of paragraph (1), when 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) A fee shall not be imposed for participation or enrollment in a fentanyl and synthetic opiate education program.

(b) The willful failure to complete a ~~court ordered~~ court-ordered controlled substance 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.~~ program for the purposes of this section.

(c) (1) The court or the probation department shall refer defendants only to controlled substance education or treatment programs that follow standards outlined in paragraph (2), which may include, but are not limited to, lectures, classes, group discussions, and counseling. The county drug program administrator, with input from representatives of the court, the county probation department, and substance use treatment providers, shall design and implement an approval and renewal process for controlled substance education or treatment programs.
(2) A controlled substance education and treatment program shall be based on the best available current science and evidence and provide educational resources on the pathology of addiction and existing treatment modalities. The goal of a controlled substance education or treatment program shall be to save lives and reduce the risks associated with drug use, including the manufacture and distribution of controlled substances, and to reduce the recidivism that occurs from the use of controlled substances. As such, a controlled substance education or treatment program shall include education about how the use of controlled substances affects the body and brain, factors that contribute to physical dependence, how to recognize and respond to the signs of drug overdose, and the dangers of using controlled substances, unless under appropriate medical supervision. Such education shall be culturally and linguistically appropriate and may include, but is not limited to, informing program participants about the physical and mental health risks associated with substance use disorders, the grave health risk to those who are exposed to controlled substances and the extreme danger to human life when manufactured or distributed.
(d) Upon conviction of any felony in which the defendant is sentenced to state prison for a violation of any controlled substance offense under this division, a court shall, in addition to any other terms of imprisonment, fine, and conditions, recommend in writing that the defendant participate in a controlled substance education or treatment program while imprisoned that complies with the standards outlined in paragraph (2) of subdivision (c).
(e) Upon conviction of any felony in which the defendant is sentenced pursuant to subdivision (h) of Section 1170 of the Penal Code and the court does not order suspension of the execution of the term of imprisonment pursuant to subparagraph (B) of paragraph (5) of subdivision (h) of Section 1170 of the Penal Code, for a violation of any controlled substance offense under this division, a court shall, in addition to any other terms of imprisonment, fine, and conditions, recommend in writing that the defendant participate in a controlled substance education or treatment program while imprisoned that complies with the standards outlined in paragraph (2) of subdivision (c).
(f) As used in this section, “opiate” includes “opioid” drugs.

SEC. 2.

Section 1210 of the Penal Code is amended to read:

1210.

As used in Sections 1210.1 and 3063.1 of this code, and Division 10.8 (commencing with Section 11999.4) of the Health and Safety Code, the following definitions apply:

(a) The term “nonviolent drug possession offense” means the unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance identified in Section 11054, 11055, 11056, 11057, or 11058 of the Health and Safety Code, or the offense of being under the influence of a controlled substance in violation of Section 11550 of the Health and Safety Code. The term “nonviolent drug possession offense” does not include the possession for sale, production, or manufacturing of any controlled substance and does not include violations of Section 4573.6 or 4573.8.

(b) The term “drug treatment program” or “drug treatment” means a state licensed or certified community drug treatment program, which may include one or more of the following: drug education, outpatient services, narcotic replacement therapy, residential treatment, detoxification services, and aftercare services. The term “drug treatment program” or “drug treatment” includes a drug treatment program operated under the direction of the Veterans Health Administration of the Department of Veterans Affairs or a program specified in Section 8001. That type of program shall be eligible to provide drug treatment services without regard to the licensing or certification provisions required by this subdivision. The term “drug treatment program” or “drug treatment” does not include drug treatment programs offered in a prison or jail facility.

(c) The term “successful completion of treatment” means that a defendant who has had drug treatment imposed as a condition of probation has completed the prescribed course of drug treatment as recommended by the treatment provider and ordered by the court. Completion of treatment shall not require cessation of narcotic replacement therapy.

(d) The term “misdemeanor not related to the use of drugs” means a misdemeanor that does not involve (1) the simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or (2) any activity similar to those listed in (1).

SEC. 3.

Section 1211 of the Penal Code is amended to read:

1211.

(a) In order to ensure the quality of drug diversion programs provided pursuant to this chapter and Chapter 2.5 (commencing with Section 1000) of Title 6, and to expand the availability of these programs, the county drug program administrator in each county, in consultation with representatives of the court and the county probation department, shall establish minimum requirements, criteria, and fees for the successful completion of drug diversion programs, which shall be approved by the county board of supervisors no later than January 1, 1995. These minimum requirements shall include, but not be limited to, all of the following:

(1) An initial assessment of each divertee, which may include all of the following:

(A) Social, cultural, linguistic, economic, and family background.

(B) Education.

(D) Criminal history.

(E) Medical history.

(F) Drug history and previous treatment.

(2) A minimum of 20 hours of either effective education or counseling or any combination of both for each divertee. The education and counseling program shall include education about how the use of controlled substances affects the body and brain, factors that contribute to physical dependence, how to recognize and respond to the signs of drug overdose, and the dangers of using controlled substances unless under appropriate medical supervision. This education shall be culturally and linguistically appropriate and may include, but is not limited to, informing program participants about the physical and mental health risks associated with substance use disorders, the grave health risk to those who are exposed to controlled substances and the extreme danger to human life when controlled substances are manufactured and distributed.

(3) An exit conference which shall reflect the divertee’s progress during their participation in the program.

(4) Fee exemptions for persons who cannot afford to pay.

(b) The county drug program administrator shall implement a certification procedure for drug diversion programs.

(c) The county drug program administrator shall recommend for approval by the county board of supervisors programs pursuant to this chapter. No program, regardless of how it is funded, may be approved unless it meets the standards established by the administrator, which shall include, but not be limited to, all of the following:

(1) Guidelines and criteria for education and treatment services, including standards of services that may include lectures, classes, group discussions, and individual counseling. However, any class or group discussion other than lectures shall not exceed 15 persons at any one meeting.

(2) Established and approved supervision, either on a regular or irregular basis, of the person for the purpose of evaluating the person’s progress.

(3) A schedule of fees to be charged for services rendered to each person under a county drug program plan in accordance with the following provisions:

(A) Fees shall be used only for the purposes set forth in this chapter.

(B) Fees for the treatment or rehabilitation of each participant receiving services under a certified drug diversion program shall not exceed the actual cost thereof, as determined by the county drug program administrator according to standard accounting practices.

(i) All costs incurred by the providers of diversion programs.

(ii) All expenses incurred by the county for administration, certification, or management of the drug diversion program in compliance with this chapter.

(d) The county shall require, as a condition of certification, that the drug diversion program pay to the county drug program administrator all expenses incurred by the county for administration, certification, or management of the drug diversion program in compliance with this chapter. No fee shall be required by any county other than that county where the program is located.

SEC. 4.
Section 1.5 of this bill incorporates amendments to Section 11373 of the Health and Safety Code proposed by both this bill and Assembly Bill 890. That section shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2024, (2) each bill amends Section 11373 of the Health and Safety Code, and (3) this bill is enacted after Assembly Bill 890, in which case Section 1 of this bill shall not become operative.

SEC. 4.SEC. 5.

To the extent that this act has an overall effect of increasing certain costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment Legislation within the meaning of Section 36 of Article XIII of the California Constitution, it shall apply to local agencies only to the extent that the state provides annual funding for the cost increase. Any new program or higher level of service provided by a local agency pursuant to this act above the level for which funding has been provided shall not require a subvention of funds by the state or otherwise be subject to Section 6 of Article XIII B of the California Constitution.

However, if the Commission on State Mandates determines that this act contains other 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.