Amendment #51 to H3944
Protective Custody
Representatives O'Connell of Taunton, Lyons of Andover, DeCoste of Norwell, Diehl of Whitman and Kuros of Uxbridge move to amend the bill by adding the following section:-
"SECTION XX. 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 hospital. 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) If evidence from said test indicates that the person is not incapacitated by drugs, the person shall be released forthwith.
(c) Any person presumed incapacitated by drugs and assisted by a police officer to a hospital 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 shall be notified forthwith upon his arrival at said hospital, or as soon as possible thereafter.
(d) If any incapacitated person is assisted to a hospital, the hospital may 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 hospital pursuant to this section shall be held in protective custody against his will; provided, however, that an incapacitated person may be held in protective custody 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.
(g) A person assisted to a hospital 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."