Relates to hypodermic syringes and the lawful possession of such syringes

Summary of provisions

Section 1 of the bill amends Penal Law § 220.03, the misdemeanor offense of Criminal Possession of a Controlled Substance in the Seventh Degree, to provide that a person does not commit this crime when he or she possesses only a residual amount of a controlled substance that is in or on a syringe that he or she possesses pursuant to a needle exchange program set forth in Public Health Law § 3381.

Section 2 of the bill would add similar language to Penal Law §220.45, to make it explicit that a person does not criminally possess a hypo- dermic instrument when he or she possesses a hypodermic needle or syringe pursuant to Public Health Law § 3381.

Section 3 of the bill would require the commissioner of the Division of Criminal Justice Services (DCJS) to ensure that law enforcement agencies and prosecutors are aware of both an individual's right to possess hypo- dermic needles or syringes pursuant to the Public Health Law's needle exchange programs, and the methods available to verify that a person is participating in such a program.

Section 4 of the bill contains the effective date.

Existing law

Public Health Law § 3381 establishes programs by which certain persons may lawfully obtain hypodermic needles and syringes. Under these programs, it is unlawful for a person to obtain a hypodermic needle or syringe, unless: (a) such possession is authorized by the Commissioner of Health; (b) possession is pursuant to a prescription; or (c) the hypodermic needle or syringe was dispensed by an authorized pharmacy, health care facility or health care practitioner in accordance with certain statutory criteria. As part of their participation in ESAP, and in accordance with Department of Health (DOH) regulations, the author- ized pharmacies, health care facilities and health care practitioners must cooperate in the safe disposal of used needles and syringes.

Under Penal Law § 220.03, it is the class A misdemeanor of Criminal Possession of a Controlled Substance in the Seventh Degree when a person knowingly and unlawfully possesses a controlled substance. The New York Court of Appeals has held that unusable "residue," such as that which may remain in or on a used needle or syringe, is legally sufficient to support a seventh-degree possession charge. People v. Mizell, 72 N.Y.2d 651 (1988).

Penal Law § 220.45 provides that it is the class A misdemeanor of Crimi- nally Possessing a Hypodermic Instrument when a person knowingly and unlawfully possesses or sells a hypodermic needle or syringe.

Statement in support

Numerous state, national and international studies have found that programs that provide access to clean syringes and to substance abuse counseling and health care, such as is provided by New York's syringe exchange programs, are effective in reducing transmission of blood-borne diseases such as HIV. According to a December 2005 report from the Centers for Disease Control and Prevention (CDC), syringe exchange programs like those contained in Public Health Law § 3381 are an effec- tive means of preventing new infections of life-threatening blood-borne diseases such as HIV/AIDS and Hepatitis C, and that the costs of such programs are considerably less than the medical costs of treating persons infected with one of these diseases. (www.cdc.gov/idu/facts/AED_IDU_SYR.pdf).

In New York State, published research indicates that the legalization and expansion of syringe exchange in New York City has been associated with a very substantial (80%) reduction in HIV incidence among injecting drug users in the city. Furthermore, a National Institute of Health report concluded that studies on syringe exchange programs "show a reduction in risk behaviors as high as 80% in injection drug users, with estimates of a 30 percent or greater reduction in HIV."

New York State has had syringe exchange programs for at least two decades, as set forth in Public Health Law § 3381, but participants in these programs report that they continue to be arrested and charged with possession of lawfully acquired syringes and residual amounts of controlled substances present on those syringes. While these charges are typically dismissed by prosecutors, individuals may have to spend time in a local jail awaiting dismissal. Participants also report that some- law enforcement entities and defense attorneys are unfamiliar with the provisions of the Public Health Law that make such possession of the syringes lawful.

Some of the confusion about the legality of an individual's possession of a needle or syringe may result from the fact that the crimes with which participants are charged are contained in the Penal Law, but the statute giving them the lawful right to possess the needles and syringes are contained in the Public Health Law. To address this issue, this bill would add language to Penal Law §220.45, the statute defining the crime

of Criminally Possessing a Hypodermic Instrument, to make it clear that it is not a violation of that provision if a person possesses the needle or syringe pursuant to the Public Health Law program.

Second, although there is nothing in the Public Health Law that explic- itly makes it lawful to possess residual amounts of controlled substances on or in needles or syringes possessed on account of a needle exchange program, charging an individual with possession of that residue is inconsistent with the underlying intent and rationale of such a program - that used needles are to be retained by the participant and returned and properly disposed of so that any infectious diseases contained on them cannot be spread to other addicts who might otherwise share the needle. To address this issue, this bill would add language to Penal Law § 220.03, the Criminal Possession of a Controlled Substance in the Seventh Degree statute, to make it clear that it is not a violation of the statute when an individual possesses only a residual amount of a controlled substance on a needle or syringe that he or she is lawfully entitled to possess under the Public Health Law.

Finally, in order to help prevent further arrests of persons who are lawfully entitled to possess these needles and syringes and the residual amounts of drugs present on them, this bill would charge the Commission- er of DCJS with taking steps necessary to routinely notify law enforce- ment agencies and prosecutors of the Public Health Law's SEP and the steps that they can take to verify a particular individual's partic- ipation in the program.

Taking these steps will enhance use of New York's programs that minimize disease transmission and maximize access to care and treatment. As now implemented, intravenous drug users may see little benefit in partic- ipating in such programs if participants continue to be arrested. Howev- er, by making these programs function as intended, more intravenous drug users will have an incentive to join them, which can reduce the inci- dence of life-threatening infectious diseases that are spread by re-use and sharing of contaminated needles and syringes and increase the number of individuals who are provided prevention education and who are referred to health, supportive and substance use treatment services.

Budget implications

This bill would have no state fiscal-impact.

Effective date

This bill would become effective 90 days after enactment.