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F I S C A L I M P A C T R E P O R T

SPONSOR Martinez

ORIGINAL DATE

LAST UPDATED

1/25/2007

1/26/2007 HB

SHORT TITLE Immunity for Assistance for Overdoses

SB 200

ANALYST Schuss

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

New Mexico Corrections Department (CD)

Attorney General’s Office (AGO)

Public Defender Department (PDD)

Administrative Office if the District Attorney (AODA)

SUMMARY

Synopsis of Bill

Senate Bill 200 provides limited immunity from prosecution for a person who seeks or obtains

medical assistance for a drug-related overdose. The bill also provides limited immunity from

prosecution for those who assist an individual in seeking medical attention that is suffering from

a drug overdose.

FISCAL IMPLICATIONS

The Corrections Department (CD) states that if the bill results in a few less felony convictions

for possession of a controlled substance, then it would slightly decrease the prison population

and probation/parole caseloads. It would also slightly decrease department revenues (the

probation or parole supervision fees gathered by the department) due to slightly fewer persons

being placed on parole/probation for possession convictions.

The contract/private prison annual cost of incarcerating an inmate is $23,867 per year for males.

Senate Bill 200 – Page

2

The cost per client to house a female inmate at a privately operated facility is $21,651 per year.

Because state owned prisons are essentially at capacity, any net increase in inmate population

will be housed at a contract/private facility.

The cost per client in probation and parole for a standard supervision program is $1,467 per year.

The cost per client in intensive supervision programs is $3,383 per year. The cost per client in

department-operated community corrections programs is $3,503 per year. The cost per client in

privately-operated community corrections programs is $7,917 per year. The cost per client per

year for male and female residential community corrections programs is $39,401.

SIGNIFICANT ISSUES

The Attorney General’s Office (AGO) notes the only significant issue is the language contained

in paragraph C which states that: “the act of seeking medical assistance for someone who is

experiencing a drug-related overdose may be used as a mitigating factor in a criminal

prosecution pursuant to the Controlled Substances Act." The legislative intent of this particular

language is rather vague and may impact drug prosecutions in unforeseen ways. For example,

does this language impose new evidentiary standards on courts and prosecutors. Does it seek to

offer new guidance in sentencing defendants.

The Public Defender believes that the bill seeks to balance the State’s interest in criminalizing

drug use with a significant interest of preventing needless death. Often, drug addicts will not

seek treatment for themselves or others when an overdose occurs due to the stiff criminal

penalties for possession of a controlled substance.

The Administrative Office of the District Attorney (AODA) lists the following significant issues:

The bill would allow a drug user or trafficker to be immune from prosecution if he/she

seeks help for themselves or another because of a drug-related overdose. The bill would also

permit a court to allow mitigation of a drug user or trafficker if he she sought assistance for

someone experiencing an overdose

This will provide a legal loophole for drug users and traffickers to escape accountability

and responsibility for their actions. The incentive to save a life should be enough without having

a guarantee of immunity from prosecution as the motivator to seek medical assistance. Most

addicts will not get help unless the system requires it. Taking away the ability to prosecute

addicts with the goal towards getting them into drug courts or other treatment alternatives will

negatively affect the community.

PERFORMANCE IMPLICATIONS

The CD notes that a slight reduction in prisoners or probationers/parolees could allow existing

staff to have a little more time to provide services to those offenders already in prison and on

probation/parole.

TECHNICAL ISSUES

The AODA notes that the granting of immunity and the allowing of mitigation for violations of

any existing criminal statutes should be left to the discretion of the judiciary as each case is

factually, procedurally and legally unique.

Senate Bill 200 – Page

3

OTHER SUBSTANTIVE ISSUES

The AGO states that as long as SB 200 limits immunity from prosecution to Section 30-31-23

NMSA 1978 and not other sections of the Controlled Substances Act, then there are no other

significant issues to be concerned about from the criminal justice perspective. However,

expanding immunity beyond that may potentially limit prosecutions of more substantial dealers

and traffickers who remain liable under Section 30-31-20 NMSA 1978.

According to the PDD, this bill can be considered a harm reduction initiative. It will prevent

unneeded death by allowing those with potentially fatal overdoses to seek medical care without

the concern of prosecution.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

The PDD believes that if the bill is not enacted there would be additional deaths due to drug

overdoses that are preventable.

The AODA states that presently prosecutors, defense attorneys and the courts can take into

account the attempts of a person to seek medical assistance for another or themselves. Likewise,

drug users would continue to be referred to drug courts or other treatment alternatives while

being held accountable for their conduct. There would be no adverse consequences.

BS/nt