BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator John Vasconcellos, Chair A
1999-2000 Regular Session B
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AB 163 (Wayne)
As Amended January 14, 2000
Hearing date: June 27, 2000
Health and Safety Code
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CONTROLLED SUBSTANCES
CLONAZEPAM - A BENZODIAZEPINE SEDATIVE
HISTORY
Source: San Diego Police Department
Prior Legislation: SB 2164 (Hayden) - Ch. 846, Sts. 1996
AB 3876 (Filante) - Ch. 1635, Sts. 1984
Support: California State Commission on the Status of Women;
National Organization for Women (California,
Sacramento, San Gabriel Valley-Whittier, Chapters);
Doris Tate Crime Victims Bureau; California District
Attorneys Association; California Narcotics Officers
Association; Mayor of San Diego; San Diego County Board
of Supervisors; San Bernadino District Attorney
Opposition:California Attorneys for Criminal Justice
Assembly Floor Vote: Ayes 76 - Noes 0
AB 163 (Wayne)
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KEY ISSUE
SHOULD THE LEGISLATURE CREATE A SPECIFIC MISDEMEANOR IN THE HEALTH
AND SAFETY CODE FOR SIMPLE POSSESSION OF CLONAZEPAM, BUT NOT FOR
OTHER, SIMILAR ANTI-ANXIETY DRUGS OF THE BENZODIAZEPINE CLASS?
PURPOSE
The purpose of this bill is to define simple possession of
clonazepam as a misdemeanor in the Health and Safety Code.
Existing law lists controlled substances in five "Schedules,"
according to their potential for abuse. Schedule I drugs have
no recognized medical use and generally are covered by the most
severe penalties. (Health & Saf. Code 11054-11058,
11350-11360.)
Existing law places benzodiazepines, a class of sedatives, in
Schedule IV, which indicates that while the drugs may be abused,
they have substantial medical utility and are less likely to
create dependence than drugs in lower schedules. (21 U.S.C.,
812; Health & Saf. Code 11057.)
Existing law provides that sale, or possession for sale, of most
benzodiazepines, such as diazepam (Valium) and clonazepam
(Klonopin), is an alternate felony/misdemeanor, punishable by
imprisonment for up to one year in the county jail or in state
prison for 16 months, two years, or three years. Simple
possession of these substances is not defined as a crime in the
Health and Safety Code. (Health & Saf. Code 11375.)
(Possession of flunitrazepam (Rohypnol) is an alternate
felony-misdemeanor. (Health and Saf. Code 11377.)
Existing law provides that possession of a controlled substance
without a prescription is unlawful, and thus an alternate
misdemeanor-infraction. (Bus. & Prof. Code 11460.)
This bill makes every person who possesses clonazepam, unless
upon the prescription of a physician, dentist, podiatrist, or
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veterinarian licensed to practice, guilty of a misdemeanor
punishable by imprisonment in a county jail for a period of not
more than one year.
COMMENTS
1. Need for this Bill
According to the Author:
Current law does not prohibit the simple possession
of clonazepam. Clonazepam is an extremely strong
prescription medication used for the treatment of
anxiety. Unfortunately, clonazepam is being used as
a recreational drug by some juveniles and adults.
The drug produces serious motor incoordination,
disorientation, sleep that cannot be aroused,
amnesia, and if ingested in very high doses it could
lead to coma and respiratory failure. Effects begin
in about 15-20 minutes, depending on the mode of
ingestion and can last up to 12 hours. Clonazepam is
now commonly found in local high schools, college
campuses and parties. It is used to facilitate rape
and other assaults. Sometimes, it is administered to
unknowing victims by putting it in their drinks.
Because pills are often sold for a dollar, clonazepam
is being called the "dollar a date" drug by many who
use it. AB 163 will make it a misdemeanor to possess
clonazepam without a prescription. I believe we must
do everything in our power to stop the proliferation
of "date rape drugs."
2. Basic Pharmacology and Use of Clonazepam and Other
Benzodiazepines
a. Benzodiazepines in General
Clonazepam, manufactured by Roche as Klonopin in the United
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States and Rivotril in Mexico, is one of the class of sedative
drugs called benzodiazepines. The most commonly known
benzodiazepine is Valium - diazepam. These drugs have been
used for many years as anti-anxiety drugs. Clonazepam is also
prescribed for epilepsy and panic disorders. Benzodiazepines
are used in surgical procedures in combination with synthetic
narcotics such as Demerol for safe sedation. The use of such
a drug combination reduces the risk of central nervous system
related (CNS) respiratory failure, while allowing the
physician to fully sedate a patient during outpatient surgical
procedures.
Benzodiazepines are among the ten most prescribed drugs in the
United States and throughout the world. These drugs are
widely and commonly available.
b. Pharmacokinetics - How Clonazepam is Ingested and Absorbed
by the Body
The onset of action for clonazepam is 20-60 minutes. Maximum
concentration in the blood is achieved between 1 and 4 hours
after ingestion. In clinical trials, amnesia was reported in
about 4 percent of cases, as opposed to 2 percent with a
placebo. (Roche package insert.) It does not appear that
clonazepam can be described as an "extremely strong"
anti-anxiety drug in comparison with other benzodiazepines.
According to pharmacists, subjective reports have indicated
that clonazepam (as well as Xanax and Halcion) may produce
marginally more of a "high," and relatively less of a feeling
of sedation, than Valium and similar benzodiazepines.
Pharmacists contacted by the Committee stated that clonazepam
has a much slower, less pronounced and less lengthy action
than Rohypnol (flunitrazepam), which has been associated with
reports of so-called "date-rape." Rohypnol produces very
quick and relatively profound sedation, with amnesiac effects.
Rohypnol is indicated for the short-term treatment of
particularly severe sleep disorders. According to the federal
drug control office, pharmacists and the manufacturer Rohypnol
is ten times more potent than Valium and clonazepam in equal
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concentrations.
c. Clonazepam Does not Easily Dissolve in Drinks -
Surreptitious Administration of Clonazepam Use Would be
Relatively More Difficult Than Other Drugs
Clonazepam does not dissolve well in water or alcohol.
Studies have shown that 45 minutes of vigorous stirring would
be required in order to dissolve a clonazepam tablet in a
drink. By contrast, the original form of Rohypnol was highly
dissolvable. Thus, if clonazepam were slipped into a drink,
the intended victim would likely need to swallow the tablet
whole in order to ingest it. A person would not likely notice
the original form of Rohypnol. (Rohypnol is not legally
available in the United States. It has been reformulated in
other countries so that when placed in a drink, it clumps and
turns the drink a different color.)
d. Date-Rape Potential for Royhypnol is Much Higher
Than for Clonazepam
Rohypnol would thus relatively easily allow a perpetrator to
commit sex acts with a victim without the knowledge or memory
of the victim. Clonazepam-induced sedation occurs more
gradually, and is much less profound than Rohypnol. A person
who has been unwittingly given clonazepam would likely
gradually begin to notice the effects of the drug and ask for
assistance. A person given Rohypnol would very quickly reach
sedation. Further, she or he would be relatively likely to
recall events that occurred while under the influence of the
drug.
3. Benzodiazepine Prescriptions for Use with Prozac-type (SSRI)
Antidepressants
According to psychiatrists and pharmacists contacted by the
Committee staff, in recent years, clonazepam has been widely
prescribed to reduce significant side effects from the newer
class of selective serotonin re-uptake inhibitor
anti-depression drugs (SSRIs), such as Prozac, Effexor and
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Paxil. SSRIs, which are particularly effective for treatment
of intractable depression, often produce moderate to severe
anxiety reactions in the first weeks of use. Clonazepam
reduces the anxiety reaction and allows the patient to
continue taking the SSRI. SSRIs are among the few most
prescribed drugs in the United States.
4. Coma and Death From Clonazepam Ingestion Without Alcohol is
Unlikely. Reported Uncoordination and Disorientation are
Overdose Symptoms, Not Clinical Dose Effects
The background supplied by the author includes this statement
from a San Diego detective: "Both drugs [clonazepam and
Rohypnol] produce incoordination, disorientation, unarousable
sleep, amnesia, and if ingested in very high doses could lead to
coma and respiratory failure."
a.Risk of Respiratory Failure and Death is Low Without Alcohol
Use
Clonazepam and similar benzodiazepines are central nervous
system depressants. However, the risk of death or coma from
even a high overdose is understood to be rather low. That is
even true for Rohypnol, a very potent form of benzodiazepine.
Death from the ingestion of a benzodiazepine would likely be
accompanied by relatively heavy ingestion of alcohol - more
than one or two drinks. (David E. Smith, M.D. Donald R.
Wesson, M.D. Sarah R. Calhoun, M.P.H.- Haight-Ashbury Clinic.)
b. Disorientation and Lack of Muscle Control Likely Only From
High Overdose or Combination With Significant Alcohol
Ingestion
Medical reports and clinical evaluations indicate that such
effects would not be expected from even relatively high
clinical doses of clonazepam. Such effects would indicate a
relatively substantial overdose, or the effect of clonazepam
in combination with more than one or two drinks of alcohol.
5. Analyses of Samples From Sexual Assault Victims Who Believed
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They Had Been Drugged
Because of the controversy surrounding the reported use of
Rohypnol in sexual assaults, the manufacturer - Roche - has
funded ongoing analyses from around the United States of 3,303
urine samples taken from the victims of sexual assaults who
reported that they may have been drugged. The analyses were
done at an independent laboratory in Mississippi. California
law enforcement agencies provided 413 samples. No drugs or
alcohol were found in 159 of the samples. Benzodiazepines were
found in 50 samples, of which 1 contained Rohypnol. In
contrast, alcohol was found in 173 samples and amphetamines in
78. GHB was found in 19 samples and opiates in 17 samples. The
samples were submitted between June 1996 and March 2000. San
Diego results were not different than other cities. ( Prevalence
of Drugs Used in Cases of Alleged Sexual Assault , Journal of
Analytical Toxicology, May-June 1999.)
6. San Diego Ordinance Addresses This Issue
According to the author's office and news reports, San Diego, a
charter city, has enacted an ordinance that defined possession
of clonazepam as a misdemeanor. (San Diego Munic. Code,
52.3201, et seq.) San Diego has reported a great increase in
cases where people detained by the police, generally young
people, were found in possession of Mexican manufactured
clonazepam. It appears that in some of these cases the people
believed they were carrying Rohypnol. Charter cities can enact
such municipal ordinances. (Cal. Const., Art XI, 7.) Thus,
San Diego police can arrest suspects, and San Diego prosecutors
can prosecute defendants for simple possession of clonazepam.
AS SAN DIEGO HAS ENACTED AN ORDINANCE DEFINING THE POSSESSION OF
CLONAZEPAM AS A MISDEMEANOR, AND AS SAN DIEGO HAS REPORTED THE
MAJORITY OF CLONAZEPAM INCIDENTS, IS A STATEWIDE STATUTE
NECESSARY?
7. Legal Status - History of Health and Safety Code Section 11375
Virtually all benzodiazepines (except Rohypnol) are included in
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Health and Safety Code section 11375, not just clonazepam.
Health and Safety Code section 11375 essentially provides that a
person is guilty of an alternate felony if he or she possesses a
benzodiazepine for purposes of sale, or where the person sold
the drug. Simple possession of a benzodiazepine, except
flunitrazepam, is not defined as a crime in the Health and
Safety Code. Flunitrazepam possession is an alternate
felony-misdemeanor.
Health and Safety Code section 11375 was added to the law by
Assembly Bill 3876, Chapter 1635, Statutes of 1984, which
substantially reorganized the controlled substance schedules and
made changes to other codes. Analysis of the bill did not
include any specific references to Health and Safety Code
section 11375, other than to reflect that possession for sale or
sale of substances such as Valium would be punished by jail or
prison.
8. Creating a Crime for Possession of One Form of Benzodiazepine,
but not Others
This bill would create a misdemeanor for the possession of a
single benzodiazepine drug, clonazepam. Possession of another,
equivalent, or even and arguably identical, drug, would not be a
crime. The basis for the distinction in classification is that
San Diego law enforcement officials have reported an increase in
possession of clonazepam by young people in that area. San
Diego authorities believe that young people, particularly of
college-age, have been obtaining clonazepam in Mexico and
bringing it across the border. (It appears that clonazepam is
legally available in Mexico only by prescription.) It appears
that word-of-mouth has helped spread the popularity of
clonazepam in San Diego. It also appears that similar increases
in clonazepam use have not been made in other cities.
From various law enforcement reports submitted to the Committee
by the author, it appears that Rohypnol has gained near mythic
status as a powerful and desirable drug. Part of the cache for
Rohypnol may stem from the vehemence of efforts to ban the drug.
A similar phenomenon may occur in with making possession of
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clonazepam a misdemeanor. Further, efforts to interdict
clonazepam may spur an increase in the un-prescribed use of
other benzodiazepines such as Xanax. This whole process could
be repeated in following years.
SHOULD POSSESSION OF CLONAZEPAM, AND NOT POSSESSION OF
EQUIVALENT BENZODIAZEPINE DRUGS, BE DEFINED AS A MISDEMEANOR?
WOULD CREATING A CRIME FOR POSSESSION OF CLONAZEPAM, BUT NOT
OTHER EQUIVALENT DRUGS, HAVE THE UNINTENDED, NEGATIVE
CONSEQUENCE OF INCREASING THE REPUTATION OF THE DRUG AS A
DESIRABLE DRUG OF ABUSE?
WILL FUTURE YEARS SEE A SIMILAR PHENOMENON WITH THE INCREASE
REPUTATION OF ALL BENZODIAZEPINES AS DESIRABLE DRUGS OF ABUSE
AND THE INTRODUCTION OF BILLS SEEKING TO CREATE MISDEMEANORS FOR
OTHER BENZODIAZEPINES?
9. Does This Bill Create a Particularly Anomalous Punishment
Scheme Where Giving Clonazepam is not a Crime, but Possessing
Clonazepam is a Crime?
Health and Safety Code provisions, such as Health and Safety
Code sections 11378 and 11379 that prohibit sale and possession
for sale of controlled substances also prohibit giving away,
transporting furnishing etc. However, Health and Safety Code
section 11375, which defines crimes related to benzodiazepines
such as diazepam and clonazepam, require that the substances be
sold or possessed for sale before a crime can be proved.
This bill does not amend Health and Safety Code section 11375,
but rather creates a new section, Health and Safety Code section
11375.5. Thus, a person who gave a clonazepam tablet to another
would not be guilty of any crime. For example, a person who
gave his or her friend clonazepam tablets to ease a particularly
traumatic event, such as divorce proceedings, would not be
guilty of a crime. The friend would, however, be guilty of a
misdemeanor. A high-school student who received a clonazepam
tablet from his or her parent to ease the shock of the death of
a friend would be guilty of a misdemeanor. Because clonazepam
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is a relatively commonly prescribed drug, this scenario is not
likely remote. In another plausible, but more ominous scenario,
a person who supplied clonazepam to his friends for recreation
or other uses would not likely be guilty of a crime, while those
who received the drug from the supplier would be guilty of a
misdemeanor.
IF THIS BILL IS ENACTED, WILL SIMPLE POSSESSION OF CLONAZEPAM BE
A CRIME, WHILE GIVING ANOTHER PERSON THE DRUG WOULD NOT BE A
CRIME?
10. Clonazepam is Likely Widely used Without Prescription for
Many Purposes, not Just as a Date Rape Drug
As noted in other comments, clonazepam is a commonly prescribed
drug. The drug can be found in the medicine cabinets of very
many households. In most cases where a person uses clonazepam
without a prescription, it is likely used for relief of anxiety,
not to accomplish a sexual assault. In many cases, a friend or
colleague gave the person clonazepam or Valium, etc., for
anxiety relief. Even where used for "recreational" purposes, it
is likely that most users intoxicate themselves, and do not use
it against others to commit sexual assault.
While the author focuses on the so-called date rape related use
of clonazepam, it is likely that most violations of this law
would not have anything to do with sexual assault.
AS MANY OR MOST VIOLATIONS OF THIS LAW WOULD NOT BE COMMITTED BY
PERSONS WHO INTENDED TO COMMIT A SEXUAL ASSAULT, SHOULD THIS
BILL CREATE A MISDEMEANOR, OR IS AN ALTERNATE
MISDEMEANOR-INFRACTION THE MORE APPROPRIATE PENALTY?
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11. Application of Health and Safety Code Section 11377, Which
Governs Most Schedule IV Drugs, and 11375 Which Governs Most
Benzodiazepine Schedule IV Drugs, is Confusing
Health and Safety Code section 11377, subdivision(a), provides
that possession of any non-narcotic Schedule IV drugs is an
alternate felony/misdemeanor. Arrests and convictions under
section 11377 are very common. However, Health and Safety Code
section 11375 governs the punishment for most benzodiazepine
sedatives that are listed in Schedule IV. Health and Safety
Code section 11377 contains no reference to section 11375.
Prosecutors have informed Committee staff that suspects have
been arrested under section 11377 because law enforcement
officers, and often some prosecutors and defense attorneys, are
not aware of section 11375. A defendant could possibly receive
an unauthorized Three-Strikes sentence under such circumstances.
It has been suggested that section 11377 should be amended to
include a reference to section 11375.
SHOULD HEALTH AND SAFETY CODE SECTION 11377, WHICH PROVIDES AN
ALTERNATE FELONY-MISDEMEANOR PENALTY FOR POSSESSION OF SCHEDULE
1V CONTROLLED SUBSTANCES, BE AMENDED TO INCLUDE A REFERENCE TO
HEALTH AND SAFETY CODE SECTION 11375, WHICH PROVIDES A SPECIFIC
PUNISHMENT FOR A NUMBER OF SCHEDULE IV SEDATIVES, SUCH AS
CLONAZEPAM AND VALIUM?
12. Does Business and Professions Code Section 4060 Define a
Misdemeanor-Infraction for the Possession of any Controlled
Substance Without Prescription, Including Clonazepam?
Business and Professions Code section 4060 provides: "No person
shall possess any controlled substance, except . . . upon
prescription. This section shall not apply to the possession of
any controlled substance by the manufacturer, wholesaler,
pharmacy, physician . . . when in [labeled containers]."
The author's office has obtained a Legislative Counsel opinion
that states that Business and Professions Code section 4060 is
trumped by Health and Safety Code section 11375, as section
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11375 is a more specific provision. (People v. Kessler (1967)
250 Cal.App.2d 642.) Other maxims of statutory construction,
such as that repeal by implication is disfavored and that the
plain meaning of statutory language shall be followed, may be
cited to argue an opposing opinion. According to the San Diego
County District Attorney, a 1998 appellate opinion holding that
a person could not be prosecuted under Business and Professions
Code section 4060 for possessing a small amount of valium, has
been depublished. As such, the case cannot be cited as valid
law. However, the District Attorney agrees with the logic of
the ruling. The District Attorney also argued that Business and
Professions Code sections are designed to regulate pharmacists,
not punish individual users of drugs.
Legislative Counsel also, in part, relied upon the analysis of
the bill that enacted Health and Safety Code section 11375 (AB
3876 (Filante) - Ch. 1635, Sts. 1984, which noted that the law
would include no crime for the simple possession of the
substances listed in that section.
IN LIGHT OF THE FACT THAT BUSINESS AND PROFESSIONS CODE SECTION
4060 MAKES IT A CRIME TO POSSESS A CONTROLLED SUBSTANCE WITHOUT
A PRESCRIPTION, IS THIS BILL NECESSARY?
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