California Criminal Law: New Controlled Substance

In 2017, the National Institute on Drug Abuse (NIDA) reports that there were 2,199 overdose deaths involving opioids in the state of California – that's a shocking 5.3 deaths per 100,000 people. Perhaps even more surprising is the fact that California drug providers wrote 39.5 opioid prescriptions for every 100 people that same year.

New controlled substance laws for 2019 in California are, in large part, a response to this national crisis. As such, they don't dip too far into criminal law territory, instead focusing on regulating prescriptions. However, legislation will likely continue to expand, affecting both prescribers and patients, until the opioid epidemic subsides.

Of the 2,199 opioid-related deaths reported by the NIDA in 2017, 1,169 of them were related to prescription opioids, with synthetic opioid deaths, particularly fentanyl, increasing more than twofold compared to the prior two years.

According to the American Addiction Centers, "all opiate drugs, both those used medicinally and opiate drugs that are not used medicinally, are classified as controlled substances." Exceptions exist only for drugs that are in development and not yet registered with the government or those that are manufactured illegally. Because virtually all opiate drugs are controlled substances, the bulk of California's modern controlled substance laws address opiates.

It's rare that criminal law comes into the picture on the prescriber side, but in 2019, California Attorney General Xavier Becerra charged a Santa Rosa doctor, Thomas McNeeese Keller, with killing four of his patients by overprescribing opioids and narcotics. Keller was charged with second-degree murder and felony elder abuse, potentially facing a life sentence. This marks the first time that a California attorney general has filed murder charges against a physician for overprescribing opioids.

In late 2018, the California State Assembly, the Medical Board of California and the state's department of justice worked in tandem to pass new regulations on controlled substances, specifically targeting opioids.

Foremost, these new regulations require prescribers to consult the Controlled Substance Utilization Review and Evaluation System, or CURES, and run a Patient Activity Report within 24 hours of prescribing, ordering or administering a controlled substance. CURES, developed by the state's department of justice, is a database that keeps track of patient, prescription and prescriber details in California, and can be consulted by pharmacists, regulating agencies and law enforcement. Physicians must also check CURES at least every four months for as long as the patient continues to use a controlled substance.

Approved in September of 2018, California's Assembly Bill No. 2760 requires prescribers to offer naloxone – a nonaddictive agent used to combat opioid overdoses – when prescribing opioids in doses equivalent to more than 90 morphine milligrams or opioids prescribed with benzodiazepine. Patients at an increased risk for overdose must also receive the offer of naloxone, and all patients, plus one or more persons designated by the patient, must receive a prescriber-provided education on overdose prevention and the use of naloxone.

Read More: Possession of Controlled Substance Laws: California Drug-Involved Laws

California controlled substance prescription requirements in 2019 were altered by new federal Medicare regulations passed in January of that year, which require that initial opioid prescription filled for the treatment of acute pain are limited to a seven-day supply at the point of sale, such as a pharmacy.

Senate Bill 1109 requires physicians and surgeons to partake in continuing education courses on pain management and addiction risks, and AB 2789 requires doctors to write electronic prescriptions starting January 1, 2022.

Failure to comply with regulations such as the new CURE system won't automatically result in criminal charges for prescribers. Rather, the prescriber's respective state professional licensing board, the California Medical Board, will typically respond with administrative sanctions.

While there's not much new in the way of California laws in this department, possession of controlled substance penalties fall under California Health and Safety Code Section 11350. Under Propositions 36 and 47, most Californians charged with possession of a controlled substance are eligible to participate in a diversion program or face misdemeanor charges, with a maximum penalty of one year in county jail or fines up to $1,000.

The story changes in cases of possession of controlled substances that are intended for sale. Under California Health and Safety Code Section 11351, this may result in felony charges and up to four years in state prison. Likewise, transportation of a controlled substance in California is a felony with a penalty of three to five years in state prison.