RA 9165 Comprehensive Dangerous Drug Board

7/28/2019 RA 9165 Comprehensive Dangerous Drug Board

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PERTINENT PROVISIONS OF R.A. 9165and

DDB ISSUED REGULATIONS

Atty. CESAR G. POSADALegal Consultant

Dangerous Drugs Board


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Sec. 15, Article II of R.A. 9165 A person apprehended or arrested, who is found to

be positive for use of any dangerous drugs after

confirmatory test shall be imposed a penalty of a

minimum of six (6) months rehabilitation.

Rehabilitative confinement of a drug abuser

should not be a subject of legislation.

In the U.S., the first major Federal Program to

provide treatment in response to the problems ofnarcotic addiction resulted from legislation in

1929 with the following intent:


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-it provide treatment and rehabilitation for

convicted offenders- would prevent the prosecution by providing

treatment and rehabilitation for voluntary patients.

- provide information concerning the cause,diagnosis, treatment control and prevention of

drug abuse.

- would encourage and assist states inproviding adequate facilities and treatment for the

care of drug abusers.


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Sec. 23. Plea-Bargaining Provision. - withheld

to a drug trafficker

Sec. 29. Criminal Liability for Planting Evidence


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A. Imprisonment (death)

B. Fines (P100,000.00 - P10,000,000.00)

C. Forfeitures / Confiscation

D. Administrative Sanctions

E. Deportation

F. Under Sec. 35 - disqualified to exercise his/her civil

rights (convicted) e.g. parental authority,guardianship and lost of political rights. (These are

suspended pending appeal after conviction).


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SEC. 36 AUTHORIZED DRUG TEST

A. To be done by Government Forensic laboratories or by anydrug testing laboratories accredited and monitored (IDITOMIS)by DOH

TWO (2) TESTING METHODS:Screening Test to determine the positive result and

type of drug usedConfirmatory test to confirm a positive result test

OUR CONCERN

Sec. 36 (c) Student of secondary and tert iary sch oo lsshal l pu rsuant to the rules and regulat ion as 1) contained in

the schools students handbook 2) Not ice to the parents

undergo a MANDATORY RANDOM drug test.


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B. Covered

a. Applicants for Drivers License

b. Applicants for Firearms and Permit

to Carry

c. Students of Secondary and Tertiary

Level

d. Officer / Employees of Public/PrivateOffices

e. Military, Police and Other Law

Enforcement Agencies

C. Issuance of False or Fraudulent Drug Test Result

(Knowingly, Willfully or Gross Negligence)


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f. Those charge with the Prosecutors Office where the penalty is

imprisonment of more than six (6) years

g. Candidates to any appointive or elected officials (National or

Local)

Those found positive shall be in addition to suspension ortermination, shall be subject to Sec. 15 of the Act.


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GR NO. 157870 (SJS vs. DDB & PDEA)

This is a PETITION FOR PROHIBITION under Rule 65 of the Rules

of CourT The Petition seeks to prohibit DDB and PDEA fromenforcing among other Sec. 36 (c) (d-workers) (f-personcharge)(g-candidates) of RA 9165 becuase according to thepetitioner the said provision is constitutionally INFIRM because:ISSUES RAISED a) Undue delegation of legislative power when it gave unbridled

discretion to schools to determine the manner of drug testing. In

denying this allegation in the petition the Supreme court says thatsaid contention hardly merits concurrence for one Sec. 36expressly provides how drug testing should for student beconducted. It enumerates the persons who shall undergo drugTesting, the testing shall be in accordance with rules ascontained in the student handbook and with notice to

parents plus compliance to board Regulation No.6 s.2003(Guideline in the conduct of Drug Testing) and to be done byrandom /chance.Moreover, the Supreme Court says that the validityof delegating legislative power is now a quiet area in the


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1. Drug testing among student while mandatory is random andsuspicionless2. The objective is to stamp out illegal drugs and in the process SAFEGUARD the wellbeing of the citizenry, particularly the youth from theharmful effect of dangerous drugs (policy declaration of RA9165 Sec. 2introductory section) which can be achieve via the pursuit by the stateof an intensive and unrelenting drive against trafficking and USE of illegaldrugs thru an integrated system of planning, implementation andenforcement of anti drug abuse policies, programs and project.3. The primary legislative intent is not criminal prosecution as thosefound positive for drug abuses as a result of random drug testing are notnecessarily treated as criminals. They may even be EXEMPTED fromcriminal liability should they consent (users) to undergo rehabilitationas provided under

Sec. 54 (Vol. Surrender) 54 (Exemption from criminal liability(not convicted,no escape, pose no serious danger)


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4.In ruling that the provision of Sec. 36 of RA9165 is within the Constitutional

boundaries the Supreme Court cited the following:

a. It is within the prerogative of educational institution to require as a

condition for admission, compliance with reasonable school rules

and regulations and policies.

b. The right to enroll is not absolute, it is subject to firm reasonable and

equitable requirements

In addition, the Supreme Court cited some relevant US jurisprudences

(VERNONIA CASE)

c. As noted by the US Supreme Court school children are most vulnerable to the physical, psychological and addictive effects of

drugs

d. Schools stand in LOCO PARENTIS over student

e. School children while not shedding their constitutional rights, have

less privacy rights

f. Requiring urine sample does not invade the students privacy since a

student need not undress

g.There is a need for drug test because of the dangerous effects

of drugs


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IN THE CASE OF:

Board of Education of Pottawatomie Country vs. Earis

(State of Oklahoma)

h. Schools custodial responsibility and authority

i. Schools /teachers acts in place of parents with similar

interest and duty to safeguard the health of the student

and this kind (drugtest) is a search - that a reasonable

parent might need to engage (Loco Parentis)


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Likewise, in turning down/denying the petition (SJS) the Supreme Courtnoted that petitioner, other than saying that subjecting almost everybodyto drug test, without probable cause is unreasonable, an unwarrantedintrusion to individuals right to privacy HAS FAILED TO SHOW HOW themandatory, random and suspicionless drug testing under Sec. 36 (c)violates the right to privacy and constitute unlawful and /or unconsentedsearch under Art. III Secs. 1 & 2 of the Constitution Petitioners lamentis just as simplistic, sweeping and gratuitous and does not merit seriousconsideration. As correctly pointed out by DDB and PDEA SJS andLaserna failed to alleged any incident amounting to any violation of anyof the constitutional rights there in mentioned in the petition.

On question of PRIVACY the court while saying that the right to privacymeans the right to be free from unwarranted exploitation of ones personor intrusion into ones private activities in such a way as to causehumiliation to a persons ordinary sensibilities, cited the case of C.CAMARA vs. MUNICIPAL COURT authorities are agreed though that theright to privacy yields to certain paramount rights of the public anddefers to the states exercise of police power.


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ON THE ISSSUE AGAINST UNREASONABLESEARCH

The Supreme Court citing the warrantless clause of

Sec. 2, Art. III of the Constitution say that with respect tothe validity of a government search or intrusion, thesearch must be reasonable and reasonableness of thesearch in issue, is judged by the balancing ofgovernments mandated intrusion of the inidviduals

private interest as against the compelling interest incriminal context, reasonableness requires showing ofprobable cause to be personally determined by a Judge,considering that the drug testing of students under Sec.36 of RA9165 is in the nature of administrative search,

needing what was referred to in the VERNONIA case asswift and informal disciplinary procedures, the probablecause standard is not required or even practicable.


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1. Board Regulation No. 6 s.2003 General Guidelines

in the conduct of Random Drug Testing for Secondary

and Tertiary student (this should be followed)

2. Sec. 32 Art. II - Liability of persons violating any

regulations issued by the Board.

Imprisonment - 6 months to 4 years and fine ofP10,000 to P50,000 plus administrative sanctions.


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Sec. 47. Need to adopt a drug-free workplace policy for

companies having ten (10) or more employees.

Sec. 49. Labor Organizations, Unions, Federations, etc. may

include in their Collective Bargaining Agreement the adoption

of a policy


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A. Allocation of reasonable amount for preventive or educational

programs and for treatment and rehabilitation

B. Abatement of Drug-Related Public Nuisance. Complaint upon

a place that have been on two (2) or more occasion as site for

unlawful sale or delivery of dangerous drugs.


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Sec. 54. Voluntary Submission of a Drug Dependent to

Confinement, Treatment and Rehabilitation - can beavailed of by:

A. A drug dependent or any person who violates Sec. 15.

- He / She may be arrested / apprehended

or not.


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B. Thru an application (duly Recognized Representativefiled with the Board) byher/himself, parents, SPOUSE,

guardian or relative within the fourth degree ofconsanguinity or affinity.

C. Issuance of Court Orderif so warranted

- Rehabilitation Center designated by the Board (6

months but not more than one (1) year).


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- Care of a DOH-accredited physician, if there is no

drug rehabilitation center.

- If treatment and rehabilitation need to exceed one (1)

year, it need the court and the Board to determine.


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A person apprehended or arrested, who is found to be

positive for use of any dangerous drugs after confirmatory

test shall be imposed a penalty of a minimum of six (6)months rehabilitation.

Rehabilitative confinement of a drug abuser

should not be a subject of legislation.

In the U.S., the first major Federal Program toprovide treatment in response to the problems

of narcotic addiction resulted from legislation in

1929 with the following intent:


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- it provide treatment and rehabilitation forconvicted offenders

- would prevent the prosecution byproviding treatment and rehabilitation forvoluntary patients.

- provide information concerning the cause,diagnosis, treatment control and prevention ofdrug abuse.

- would encourage and assist states inproviding adequate facilities and treatment forthe care of drug abusers.


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Sec. 541. A drug dependent or

persons who violates Sec.15.

2.

By himself or thru his/herparents, spouse,guardian, relative withinthe 4th degree ofconsanguinity APPLY TO

THE BOARD

Sec. 151. Persons arrested or

apprehended.2. Found positive for

dangerous drugs afterconfirmatory test.3. Shall be imposed a

penalty of a minimum ofsix (6) months

rehabilitation in agovernment center


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3. BOARD to bring forththe same to the RTC

where the drugdependent resides.

4. Court issue and Orderfor the drug

dependent to beexamined for drugdependency by aDOH accredited

physician.

for the firstoffense subject to

Article VIII of theAct.

4. If arrested for thesecond time for use

6 years & 1 day to

12 years and fineP50,000.00P200,000.00.

5. This Section will notapply for violation ofSec. 11 (Possession)


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6. If there is no Center near/accessible, thedrug dependent to be placed under the care

of DOH accredited physician.- if dependent is below 18 years and a first time

minor drug .

dependent and non-confinement in a Center will

not pose a danger to (himself) his/her family of

the community.


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Sec. 61 CompulsoryConfinementRefused to Applyunder VoluntarySubmission

1. Any persondetermined andfound to bedependent on

dangerous drugs.2. For the Board to file

the petition

Sec. 62 CompulsoryRehabilitation of a

Person Charged Withan Offense

1. The imposablepenalty shall beLESS than 6 years

2. Found by theprosecutor or at anystage of theproceedings (TRIAL)to be a drugdependent


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3. Confinement in aCenter dulyaccredited

4. Petition to be filedby the Board or anyperson authorizedby the Board (RTC)

5. Court to fix date ofhearing6. Court to issue an

Order for the

dependent to beexamined by two (2)accredited physician

3. The proceedingsshall be suspendedand

4. for the RECORDS tobe transmitted tothe BOARD.

5. If Board foundhim/her to be a drugdependent, theBoard will file a

PETITION for his/herconfinement fortreatment andrehabilitation


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7. If the physician havedifferent findings , ahearing is set.

8. If the Court findshim to be a drugdependent, theCourt will issue a

Order for his/herconfinement (six (6)months to not morethan one (1) year +follow-up and after-care, this, however,can be extended.

6. After treatment andrehabilitation asshown in a

Certificate issuedby the Center andthe Board.

6. He/she will bereturn to the Courtfor his dischargefrom the Center and

continue thesuspendedproceedings


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8. If convicted, rehabilitative confinementmay be deducted from actual sentence

if

convicted for violation of Sec. 15 and he/sheis not a RECIDIVIST; the penalty imposed isdeemed served by his rehabilitative

confinement.


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Section 55. Exempt from a criminal liability

1. Complied with all rules and regulationsissued

by the Court, BOARD and Center2. Not charged or convicted of any offensepunishable under RA 9165, RA 6425, RCPC orany special law.

3. No record of escape4. He / She poses no serious danger to

him/herself, family or community


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Section 56. TEMPORARY RELEASE1. A minor first-time offender certified bythe Center.2. Court to Order the temporary release :- Report to DOH for after-care and follow-up program (18 months)

- to undergo urine drug test- during after-care and follow-up; is acertified as rehabilitated, court may issuedischarge order

- otherwise RECOMMITMENT ORDER isissued (this may be repeated)


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Section 57 . Discharge form the Center butnot qualified for exemption from CriminalLiability

Drug dependent will be charged in Court

Place on probation and undergocommunity service

Without prejudice to the outcome of thepending case. (community service deemedpart of his/her after-care/follow-upprogram


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Section 60. Confidentiality ofRecordsMedical and judicial records.

Can not be use as evidence against him

To determine number of times he headbeen placed on rehabilitation


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Section 66. SUSPENSION OF SENTENCE of aFIRST TIME MINOR DRUG OFFENDERAccused is OVER fifteen (15) years of age at

the time of the commission of the offense(SEC. 11)

NOT MORE THAN eighteen (180 years at the

time when judgment should have beenpromulgatedHe/She is found GUILTY (Sec. 11)

No previous conviction

No previous commitment to a TRCBOARD to favorably recommend BOARD REG. NO. ______


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Section 72. LIABILITY FOR VIOLATIONS

OF CONFIDENTIALITY OF RECORDS.

Six (6) months & one (1) day to six (6) years + FINEP1,000.00 to P6,000.00

Official custodianThose having access to the records

Those who have gained possessionGOVERNMENT OFFICER-apply maximum of the

penalty + absolute perpetual disqualificationUse for unlawful purposes (blackmail) 6 mos. to 6 years in addition to the penalty imposed for

the unlawful act committed


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Sec. 73. Liability of a Parent, Spouse or Guardian etc.

Who Refuses to Cooperate With the Board or anyConcerned Agency. (Treatment and Rehabilitation)

Court may cite him/her for CONTEMPT.

Sec. 74. Cost-Sharing in the Treatment andRehabilitation of a Drug Dependent


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Sec. 81. Powers and Duties of the Boardrelative to rehabilitation of a drug

dependent. (a) Formulate, develop and establish a comprehensive, integrated, unified and balanced national drug use and prevention program. (b) Promulgation of such rules and regulations as may

be necessary to carry out the purposes of the Act(Sec. 32).

(j) Initiate and authorize closure proceedings againsterring rehabilitation centers.

(q) Issue guidelines as to the approval / disapproval of applications for voluntary treatment, rehabilitation or

confinement.


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Sec. 90. Jurisdiction. RTC have jurisdiction to

exclusively try drug cases.

Sec. 91. Responsibility and Liability of Law

Enforcement Agencies and Other Government

Officials and Employees in Testifying as

Prosecution Witnesses in Dangerous Drugs

Cases.

12 years to 20 years imprisonment

Fine not less than P500,000.00

Administrative liability


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For immediate superior who fails to exertreasonable effort to present witnesses to

the Court:

2 months to 6 years imprisonment

Fine P10,000.00 to P50,000.00

Perpetual absolute disqualification

Witnesses should not be transferred from

their present jurisdictional assignment duringthe pendency of the case without leave ofCourt (24 hours notice).


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If superior violates:

2 months to 6 years imprisonment

P10,000.00 - P50,000.00 fine Perpetual absolute disqualification

Sec. 92. Delay and Bungling in the Prosecution of DrugCases.

Patent laxity

Inexcusable neglect

Unreasonable delay


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Deliberately cause unsuccessful prosecution

12 - 20 years imprisonment without prejudice

to his/her prosecution under pertinentprovision of the Revised Penal Code.

Sec. 93. Power of the Board to Re-classify, Add or Removeany Drug from the List of Dangerous Drugs


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Documents

RA 9165 Comprehensive Dangerous Drug Board