Read first time 01/26/09.   Referred to Committee on Judiciary.

     AN ACT Relating to drug overdose prevention; amending RCW 18.130.180; reenacting and amending RCW 9.94A.535; adding a new section to chapter 69.50 RCW; adding a new section to chapter 18.130 RCW; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The legislature intends to save lives by increasing timely medical attention to drug overdose victims through the establishment of limited immunity from prosecution for people who seek medical assistance in a drug overdose situation. Drug overdose is the leading cause of unintentional injury death in Washington state, ahead of motor vehicle related deaths. Washington state is one of sixteen states in which drug overdoses cause more deaths than traffic accidents. Drug overdose mortality rates have increased significantly since the 1990s, according to the centers for disease control and prevention, and illegal and prescription drug overdoses killed more than thirty-eight thousand people nationwide in 2006, the last year for which firm data is available. The Washington state department of health reports that in 1999, unintentional drug poisoning was responsible for four hundred three deaths in this state; in 2007, the number had increased to seven hundred sixty-one, compared with six hundred ten motor vehicle related deaths that same year. Many drug overdose fatalities occur because peers delay or forego calling 911 for fear of arrest or police involvement, which researchers continually identify as the most significant barrier to the ideal first response of calling emergency services.

NEW SECTION.  Sec. 2   A new section is added to chapter 69.50 RCW to read as follows:
     (1)(a) A person acting in good faith who seeks medical assistance for someone experiencing a drug-related overdose shall not be charged or prosecuted for possession of a controlled substance pursuant to RCW 69.50.4013, or penalized under RCW 69.50.4014, if the evidence for the charge of possession of a controlled substance was obtained as a result of the person seeking medical assistance.
     (b) A person acting in good faith may receive a naloxone prescription, possess naloxone, and administer naloxone to an individual suffering from an apparent opiate-related overdose.
     (2) A person who experiences a drug-related overdose and is in need of medical assistance shall not be charged or prosecuted for possession of a controlled substance pursuant to RCW 69.50.4013, or penalized under RCW 69.50.4014, if the evidence for the charge of possession of a controlled substance was obtained as a result of the overdose and the need for medical assistance.
     (3) The protection in this section from prosecution for possession crimes under RCW 69.50.4013 shall not be grounds for suppression of evidence in other criminal charges.

NEW SECTION.  Sec. 3   A new section is added to chapter 18.130 RCW to read as follows:
     The administering, dispensing, prescribing, purchasing, acquisition, possession, or use of naloxone shall not constitute unprofessional conduct under chapter 18.130 RCW, or be in violation of any provisions under this chapter, by any practitioner or person, if the unprofessional conduct or violation results from a good faith effort to assist:
     (1) A person experiencing, or likely to experience, an opiate-related overdose; or
     (2) A family member, friend, or other person in a position to assist a person experiencing, or likely to experience, an opiate-related overdose.

Sec. 4   RCW 9.94A.535 and 2008 c 276 s 303 and 2008 c 233 s 9 are each reenacted and amended to read as follows:
     The court may impose a sentence outside the standard sentence range for an offense if it finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence. Facts supporting aggravated sentences, other than the fact of a prior conviction, shall be determined pursuant to the provisions of RCW 9.94A.537.
     Whenever a sentence outside the standard sentence range is imposed, the court shall set forth the reasons for its decision in written findings of fact and conclusions of law. A sentence outside the standard sentence range shall be a determinate sentence.
     If the sentencing court finds that an exceptional sentence outside the standard sentence range should be imposed, the sentence is subject to review only as provided for in RCW 9.94A.585(4).
     A departure from the standards in RCW 9.94A.589 (1) and (2) governing whether sentences are to be served consecutively or concurrently is an exceptional sentence subject to the limitations in this section, and may be appealed by the offender or the state as set forth in RCW 9.94A.585 (2) through (6).
     (1) Mitigating Circumstances - Court to Consider
     The court may impose an exceptional sentence below the standard range if it finds that mitigating circumstances are established by a preponderance of the evidence. The following are illustrative only and are not intended to be exclusive reasons for exceptional sentences.
     (a) To a significant degree, the victim was an initiator, willing participant, aggressor, or provoker of the incident.
     (b) Before detection, the defendant compensated, or made a good faith effort to compensate, the victim of the criminal conduct for any damage or injury sustained.
     (c) The defendant committed the crime under duress, coercion, threat, or compulsion insufficient to constitute a complete defense but which significantly affected his or her conduct.
     (d) The defendant, with no apparent predisposition to do so, was induced by others to participate in the crime.
     (e) The defendant's capacity to appreciate the wrongfulness of his or her conduct, or to conform his or her conduct to the requirements of the law, was significantly impaired. Voluntary use of drugs or alcohol is excluded.
     (f) The offense was principally accomplished by another person and the defendant manifested extreme caution or sincere concern for the safety or well-being of the victim.
     (g) The operation of the multiple offense policy of RCW 9.94A.589 results in a presumptive sentence that is clearly excessive in light of the purpose of this chapter, as expressed in RCW 9.94A.010.
     (h) The defendant or the defendant's children suffered a continuing pattern of physical or sexual abuse by the victim of the offense and the offense is a response to that abuse.
     (i) The defendant was making a good faith effort to obtain or provide medical assistance for someone who is experiencing a drug-related overdose.
     (2) Aggravating Circumstances - Considered and Imposed by the Court
     The trial court may impose an aggravated exceptional sentence without a finding of fact by a jury under the following circumstances:
     (a) The defendant and the state both stipulate that justice is best served by the imposition of an exceptional sentence outside the standard range, and the court finds the exceptional sentence to be consistent with and in furtherance of the interests of justice and the purposes of the sentencing reform act.
     (b) The defendant's prior unscored misdemeanor or prior unscored foreign criminal history results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter, as expressed in RCW 9.94A.010.
     (c) The defendant has committed multiple current offenses and the defendant's high offender score results in some of the current offenses going unpunished.
     (d) The failure to consider the defendant's prior criminal history which was omitted from the offender score calculation pursuant to RCW 9.94A.525 results in a presumptive sentence that is clearly too lenient.
     (3) Aggravating Circumstances - Considered by a Jury -Imposed by the Court
     Except for circumstances listed in subsection (2) of this section, the following circumstances are an exclusive list of factors that can support a sentence above the standard range. Such facts should be determined by procedures specified in RCW 9.94A.537.
     (a) The defendant's conduct during the commission of the current offense manifested deliberate cruelty to the victim.
     (b) The defendant knew or should have known that the victim of the current offense was particularly vulnerable or incapable of resistance.
     (c) The current offense was a violent offense, and the defendant knew that the victim of the current offense was pregnant.
     (d) The current offense was a major economic offense or series of offenses, so identified by a consideration of any of the following factors:
     (i) The current offense involved multiple victims or multiple incidents per victim;
     (ii) The current offense involved attempted or actual monetary loss substantially greater than typical for the offense;
     (iii) The current offense involved a high degree of sophistication or planning or occurred over a lengthy period of time; or
     (iv) The defendant used his or her position of trust, confidence, or fiduciary responsibility to facilitate the commission of the current offense.
     (e) The current offense was a major violation of the Uniform Controlled Substances Act, chapter 69.50 RCW (VUCSA), related to trafficking in controlled substances, which was more onerous than the typical offense of its statutory definition: The presence of ANY of the following may identify a current offense as a major VUCSA:
     (i) The current offense involved at least three separate transactions in which controlled substances were sold, transferred, or possessed with intent to do so;
     (ii) The current offense involved an attempted or actual sale or transfer of controlled substances in quantities substantially larger than for personal use;
     (iii) The current offense involved the manufacture of controlled substances for use by other parties;
     (iv) The circumstances of the current offense reveal the offender to have occupied a high position in the drug distribution hierarchy;
     (v) The current offense involved a high degree of sophistication or planning, occurred over a lengthy period of time, or involved a broad geographic area of disbursement; or
     (vi) The offender used his or her position or status to facilitate the commission of the current offense, including positions of trust, confidence or fiduciary responsibility (e.g., pharmacist, physician, or other medical professional).
     (f) The current offense included a finding of sexual motivation pursuant to RCW 9.94A.835.
     (g) The offense was part of an ongoing pattern of sexual abuse of the same victim under the age of eighteen years manifested by multiple incidents over a prolonged period of time.
     (h) The current offense involved domestic violence, as defined in RCW 10.99.020, and one or more of the following was present:
     (i) The offense was part of an ongoing pattern of psychological, physical, or sexual abuse of the victim manifested by multiple incidents over a prolonged period of time;
     (ii) The offense occurred within sight or sound of the victim's or the offender's minor children under the age of eighteen years; or
     (iii) The offender's conduct during the commission of the current offense manifested deliberate cruelty or intimidation of the victim.
     (i) The offense resulted in the pregnancy of a child victim of rape.
     (j) The defendant knew that the victim of the current offense was a youth who was not residing with a legal custodian and the defendant established or promoted the relationship for the primary purpose of victimization.
     (k) The offense was committed with the intent to obstruct or impair human or animal health care or agricultural or forestry research or commercial production.
     (l) The current offense is trafficking in the first degree or trafficking in the second degree and any victim was a minor at the time of the offense.
     (m) The offense involved a high degree of sophistication or planning.
     (n) The defendant used his or her position of trust, confidence, or fiduciary responsibility to facilitate the commission of the current offense.
     (o) The defendant committed a current sex offense, has a history of sex offenses, and is not amenable to treatment.
     (p) The offense involved an invasion of the victim's privacy.
     (q) The defendant demonstrated or displayed an egregious lack of remorse.
     (r) The offense involved a destructive and foreseeable impact on persons other than the victim.
     (s) The defendant committed the offense to obtain or maintain his or her membership or to advance his or her position in the hierarchy of an organization, association, or identifiable group.
     (t) The defendant committed the current offense shortly after being released from incarceration.
     (u) The current offense is a burglary and the victim of the burglary was present in the building or residence when the crime was committed.
     (v) The offense was committed against a law enforcement officer who was performing his or her official duties at the time of the offense, the offender knew that the victim was a law enforcement officer, and the victim's status as a law enforcement officer is not an element of the offense.
     (w) The defendant committed the offense against a victim who was acting as a good samaritan.
     (x) The defendant committed the offense against a public official or officer of the court in retaliation of the public official's performance of his or her duty to the criminal justice system.
     (y) The victim's injuries substantially exceed the level of bodily harm necessary to satisfy the elements of the offense. This aggravator is not an exception to RCW 9.94A.530(2).
     (z)(i)(A) The current offense is theft in the first degree, theft in the second degree, possession of stolen property in the first degree, or possession of stolen property in the second degree; (B) the stolen property involved is metal property; and (C) the property damage to the victim caused in the course of the theft of metal property is more than three times the value of the stolen metal property, or the theft of the metal property creates a public hazard.
     (ii) For purposes of this subsection, "metal property" means commercial metal property, private metal property, or nonferrous metal property, as defined in RCW 19.290.010.
     (aa) The defendant committed the offense with the intent to directly or indirectly cause any benefit, aggrandizement, gain, profit, or other advantage to or for a criminal street gang as defined in RCW 9.94A.030, its reputation, influence, or membership.

Sec. 5   RCW 18.130.180 and 2008 c 134 s 25 are each amended to read as follows:
     The following conduct, acts, or conditions constitute unprofessional conduct for any license holder under the jurisdiction of this chapter:
     (1) The commission of any act involving moral turpitude, dishonesty, or corruption relating to the practice of the person's profession, whether the act constitutes a crime or not. If the act constitutes a crime, conviction in a criminal proceeding is not a condition precedent to disciplinary action. Upon such a conviction, however, the judgment and sentence is conclusive evidence at the ensuing disciplinary hearing of the guilt of the license holder of the crime described in the indictment or information, and of the person's violation of the statute on which it is based. For the purposes of this section, conviction includes all instances in which a plea of guilty or nolo contendere is the basis for the conviction and all proceedings in which the sentence has been deferred or suspended. Nothing in this section abrogates rights guaranteed under chapter 9.96A RCW;
     (2) Misrepresentation or concealment of a material fact in obtaining a license or in reinstatement thereof;
     (3) All advertising which is false, fraudulent, or misleading;
     (4) Incompetence, negligence, or malpractice which results in injury to a patient or which creates an unreasonable risk that a patient may be harmed. The use of a nontraditional treatment by itself shall not constitute unprofessional conduct, provided that it does not result in injury to a patient or create an unreasonable risk that a patient may be harmed;
     (5) Suspension, revocation, or restriction of the individual's license to practice any health care profession by competent authority in any state, federal, or foreign jurisdiction, a certified copy of the order, stipulation, or agreement being conclusive evidence of the revocation, suspension, or restriction;
     (6) Except when authorized by section 3 of this act, the possession, use, prescription for use, or distribution of controlled substances or legend drugs in any way other than for legitimate or therapeutic purposes, diversion of controlled substances or legend drugs, the violation of any drug law, or prescribing controlled substances for oneself;
     (7) Violation of any state or federal statute or administrative rule regulating the profession in question, including any statute or rule defining or establishing standards of patient care or professional conduct or practice;
     (8) Failure to cooperate with the disciplining authority by:
     (a) Not furnishing any papers, documents, records, or other items;
     (b) Not furnishing in writing a full and complete explanation covering the matter contained in the complaint filed with the disciplining authority;
     (c) Not responding to subpoenas issued by the disciplining authority, whether or not the recipient of the subpoena is the accused in the proceeding; or
     (d) Not providing reasonable and timely access for authorized representatives of the disciplining authority seeking to perform practice reviews at facilities utilized by the license holder;
     (9) Failure to comply with an order issued by the disciplining authority or a stipulation for informal disposition entered into with the disciplining authority;
     (10) Aiding or abetting an unlicensed person to practice when a license is required;
     (11) Violations of rules established by any health agency;
     (12) Practice beyond the scope of practice as defined by law or rule;
     (13) Misrepresentation or fraud in any aspect of the conduct of the business or profession;
     (14) Failure to adequately supervise auxiliary staff to the extent that the consumer's health or safety is at risk;
     (15) Engaging in a profession involving contact with the public while suffering from a contagious or infectious disease involving serious risk to public health;
     (16) Promotion for personal gain of any unnecessary or inefficacious drug, device, treatment, procedure, or service;
     (17) Conviction of any gross misdemeanor or felony relating to the practice of the person's profession. For the purposes of this subsection, conviction includes all instances in which a plea of guilty or nolo contendere is the basis for conviction and all proceedings in which the sentence has been deferred or suspended. Nothing in this section abrogates rights guaranteed under chapter 9.96A RCW;
     (18) The procuring, or aiding or abetting in procuring, a criminal abortion;
     (19) The offering, undertaking, or agreeing to cure or treat disease by a secret method, procedure, treatment, or medicine, or the treating, operating, or prescribing for any health condition by a method, means, or procedure which the licensee refuses to divulge upon demand of the disciplining authority;
     (20) The willful betrayal of a practitioner-patient privilege as recognized by law;
     (21) Violation of chapter 19.68 RCW;
     (22) Interference with an investigation or disciplinary proceeding by willful misrepresentation of facts before the disciplining authority or its authorized representative, or by the use of threats or harassment against any patient or witness to prevent them from providing evidence in a disciplinary proceeding or any other legal action, or by the use of financial inducements to any patient or witness to prevent or attempt to prevent him or her from providing evidence in a disciplinary proceeding;
     (23) Current misuse of:
     (a) Alcohol;
     (b) Controlled substances; or
     (c) Legend drugs;
     (24) Abuse of a client or patient or sexual contact with a client or patient;
     (25) Acceptance of more than a nominal gratuity, hospitality, or subsidy offered by a representative or vendor of medical or health-related products or services intended for patients, in contemplation of a sale or for use in research publishable in professional journals, where a conflict of interest is presented, as defined by rules of the disciplining authority, in consultation with the department, based on recognized professional ethical standards.