Amendment #7 to S.2142

Drug incapacity in a public place

Mrs. O'Connell of Taunton move that the bill be amended by inserting after SECTION 18 the following section:--



"SECTION 18A. Chapter 94C of the General Laws, as so appearing, is hereby further amended by inserting after section 36 the following section:--



Section 36A. (a) Any person who is incapacitated by drugs in a public place may be assisted by a police officer with or without his consent to his residence, to a facility for substance abuse treatment or to a police station. To determine for purposes of this section only, whether or not such person is incapacitated by drugs, the police officer, following a standard, uniform procedure developed by the state police, may request the person to submit to a test, as approved by the department of public health, the bureau of substance abuse services and the state police, to determine whether the person is incapacitated due to drug use.



(b) Any person assisted by a police officer to a police station shall have the right, and be informed in writing of said right, to request and be administered said test. If evidence from said test indicates that the person is incapacitated by drugs, the person shall be placed in protective custody at a police station or transferred to a facility for substance abuse treatment. If evidence from said test indicates that the person is not incapacitated by drugs, the person shall be released from custody forthwith. If evidence from said test is inconclusive, there shall be no presumption made based solely on said test. In such instance a reasonable test of coordination or speech coherency must be administered to determine if said person is incapacitated by drugs. Only when such test of coordination or speech coherency indicates said person is incapacitated by drugs shall he be placed in protective custody at a police station or transferred to a facility for substance abuse treatment.



(c) Any person presumed incapacitated by drugs and to be held in protective custody at a police station shall, immediately after such presumption, have the right and be informed of said right to make one phone call at his own expense and on his own behalf. Any person assisted by a police officer to a facility for substance abuse treatment under this section shall have the right to make one phone call at his own expense on his own behalf and shall be informed forthwith upon arriving at the facility of said right. The parent or guardian of any person, under the age of 18, to be held in protective custody at a police station shall be notified forthwith upon his arrival at said station or as soon as possible thereafter.



(d) If any incapacitated person is assisted to a police station, the officer in charge or his designee shall notify forthwith the nearest facility for substance abuse that the person is being held in protective custody. If suitable treatment services are available at a facility, the department of public health shall thereupon arrange for the transportation of the person to the facility.



(e) No person assisted to a police station pursuant to this section shall be held in protective custody against his will; provided, however, that if suitable treatment at a facility is not available, an incapacitated person may be held in protective custody at a police station until he is no longer incapacitated or for a period of not longer than twelve hours, whichever is shorter.



(f) A police officer acting in accordance with the provisions of this section may use such force as is reasonably necessary to carry out his authorized responsibilities. If the police officer reasonably believes that his safety or the safety of other persons present so requires, he may search such person and his immediate surroundings, but only to the extent necessary to discover and seize any dangerous weapons which may on that occasion be used against the officer or other person present; provided, however, that if such person is held in protective custody at a police station all valuables and all articles which may pose a danger to such person or to others may be taken from him for safekeeping and if so taken shall be inventoried.



(g) A person assisted to a facility or held in protective custody by the police pursuant to the provisions of this section, shall not be considered to have been arrested or to have been charged with any crime. An entry of custody shall be made indicating the date, time, place of custody, the name of the assisting officer, the name of the officer in charge, whether the person held in custody exercised his right to make a phone call, whether the person held in custody exercised his right to take a test to determine incapacity, and the results of the test to determine incapacity if taken, which entry shall not be treated for any purposes, as an arrest or criminal record.



(h) This section shall not apply to any person whom the police have reasonable cause to believe has committed a misdemeanor, in addition to being incapacitated by drugs in a public place; nor to any person whom the police have reasonable cause to believe has committed any felony."