PERTINENT PROVISIONS OF R.A.

and

9165

DDB ISSUED REGULATIONS

Atty. CESAR G. POSADA

Legal Consultant Dangerous Drugs Board

 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 of narcotic addiction resulted from legislation in 1929 with the following intent:

- 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 in providing adequate facilities and treatment for the care of drug abusers.

Sec. 23.

Plea-Bargaining Provision. - withheld to a drug trafficker

Sec. 29. Criminal Liability

for Planting Evidence

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).

SEC. 36 AUTHORIZED DRUG TEST

A. To be done by Government Forensic laboratories or by any drug testing laboratories accredited and monitored (IDITOMIS) by DOH TWO (2) TESTING METHODS: Screening Test to determine the positive result and type of drug used Confirmatory test to confirm a positive result test OUR CONCERN Sec. 36 (c) Student of secondary and tertiary schools shall pursuant to the rules and regulation as 1) contained in the schools students handbook 2) Notice to the parents undergo a MANDATORY RANDOM drug test.

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/Private Offices e. Military, Police and Other Law Enforcement Agencies C. Issuance of False or Fraudulent Drug Test Result (Knowingly, Willfully or Gross Negligence)

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 or termination, shall be subject to Sec. 15 of the Act.

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 from enforcing among other Sec. 36 (c) (d-workers) (f-person charge)(g-candidates) of RA 9165 becuase according to the petitioner 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 that said contention hardly merits concurrence for one Sec. 36 expressly provides how drug testing should for student be conducted. It enumerates the persons who shall undergo drug Testing, the testing shall be in accordance with rules as contained 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 by random /chance. Moreover, the Supreme Court says that the validity of delegating legislative power is now a quiet area in the

1. Drug testing among student while mandatory is random and suspicionless 2. The objective is to stamp out illegal drugs and in the process SAFEGUARD the wellbeing of the citizenry, particularly the youth from the harmful effect of dangerous drugs (policy declaration of RA9165 Sec. 2 introductory section) which can be achieve via the pursuit by the state of an intensive and unrelenting drive against trafficking and USE of illegal drugs thru an integrated system of planning, implementation and enforcement of anti drug abuse policies, programs and project.

3. The primary legislative intent is not criminal prosecution as those found positive for drug abuses as a result of random drug testing are not necessarily treated as criminals. They may even be EXEMPTED from criminal liability should they consent (users) to undergo rehabilitation as provided under Sec. 54 (Vol. Surrender) 54 (Exemption from criminal liability(not convicted, no escape, pose no serious danger)

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

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)

Likewise, in turning down/denying the petition (SJS) the Supreme Court noted that petitioner, other than saying that subjecting almost everybody to drug test, without probable cause is unreasonable, an unwarranted intrusion to individuals right to privacy HAS FAILED TO SHOW HOW the mandatory, random and suspicionless drug testing under Sec. 36 (c) violates the right to privacy and constitute unlawful and /or unconsented search under Art. III Secs. 1 & 2 of the Constitution Petitioners lament is just as simplistic, sweeping and gratuitous and does not merit serious consideration. As correctly pointed out by DDB and PDEA SJS and Laserna failed to alleged any incident amounting to any violation of any of the constitutional rights there in mentioned in the petition. On question of PRIVACY the court while saying that the right to privacy means the right to be free from unwarranted exploitation of ones person or intrusion into ones private activities in such a way as to cause humiliation to a persons ordinary sensibilities, cited the case of C. CAMARA vs. MUNICIPAL COURT authorities are agreed though that the right to privacy yields to certain paramount rights of the public and defers to the states exercise of police power.

ON THE ISSSUE AGAINST UNREASONABLE SEARCH The Supreme Court citing the warrantless clause of Sec. 2, Art. III of the Constitution say that with respect to the validity of a government search or intrusion, the search must be reasonable and reasonableness of the search in issue, is judged by the balancing of governments mandated intrusion of the inidviduals private interest as against the compelling interest in criminal context, reasonableness requires showing of probable 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 as swift and informal disciplinary procedures, the probable cause standard is not required or even practicable.

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 of P10,000 to P50,000 plus administrative sanctions.

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

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.

Sec. 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and Rehabilitation - can be availed of by: A. A drug dependent or any person who violates Sec. 15. - He / She may be arrested / apprehended or not.

B. Thru an application (duly Recognized Representative filed with the Board) by her/himself, parents, SPOUSE, guardian or relative within the fourth degree of consanguinity or affinity.
C. Issuance of Court Order if so warranted - Rehabilitation Center designated by the Board (6 months but not more than one (1) year).

- 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.

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 of narcotic addiction resulted from legislation in 1929 with the following intent:

- 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 in providing adequate facilities and treatment for the care of drug abusers.


1.

2.

Sec. 54 A drug dependent or persons who violates Sec. 15. By himself or thru his/her parents, spouse, guardian, relative within the 4th degree of consanguinity APPLY TO THE BOARD

1. 2.

3.

Sec. 15 Persons arrested or apprehended. Found positive for dangerous drugs after confirmatory test. Shall be imposed a penalty of a minimum of six (6) months rehabilitation in a government center

3.

4.

BOARD to bring forth the same to the RTC where the drug dependent resides. Court issue and Order for the drug dependent to be examined for drug dependency by a DOH accredited physician.

4.

5.

for the first offense subject to Article VIII of the Act. If arrested for the second time for use 6 years & 1 day to 12 years and fine P50,000.00 P200,000.00. This Section will not apply for violation of Sec. 11 (Possession)

6.

If there is no Center near/accessible, the drug 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.

1.

2.

Sec. 61 Compulsory Confinement Refused to Apply under Voluntary Submission Any person determined and found to be dependent on dangerous drugs. For the Board to file the petition

Sec. 62
Compulsory Rehabilitation of a Person Charged With an Offense The imposable penalty shall be LESS than 6 years Found by the prosecutor or at any stage of the proceedings (TRIAL) to be a drug dependent

1.

2.

3.

4.

5. 6.

Confinement in a 3. The proceedings Center duly shall be suspended accredited and Petition to be filed by the Board or any 4. for the RECORDS to person authorized be transmitted to by the Board (RTC) the BOARD. Court to fix date of 5. If Board found hearing him/her to be a drug Court to issue an dependent, the Order for the Board will file a dependent to be PETITION for his/her examined by two (2) confinement for accredited physician treatment and rehabilitation

7.

8.

If the physician have different findings , a hearing is set. If the Court finds him to be a drug dependent, the Court will issue a Order for his/her confinement (six (6) months to not more than one (1) year + follow-up and aftercare, this, however, can be extended.

6.

After treatment and rehabilitation as shown in a Certificate issued by the Center and the Board.
He/she will be return to the Court for his discharge from the Center and continue the suspended proceedings

6.

8. If convicted, rehabilitative confinement

may be deducted from actual sentence if convicted for violation of Sec. 15 and he/she is not a RECIDIVIST; the penalty imposed is deemed served by his rehabilitative confinement.

Section 55. Exempt from a criminal liability

1. Complied with all rules and regulations issued by the Court, BOARD and Center 2. Not charged or convicted of any offense punishable under RA 9165, RA 6425, RCPC or any special law. 3. No record of escape 4. He / She poses no serious danger to him/herself, family or community

Section 56. TEMPORARY RELEASE 1. A minor first-time offender certified by the Center. 2. Court to Order the temporary release : - Report to DOH for after-care and followup program (18 months) - to undergo urine drug test - during after-care and follow-up; is a certified as rehabilitated, court may issue discharge order - otherwise RECOMMITMENT ORDER is issued (this may be repeated)

Section 57 . Discharge form the Center but not qualified for exemption from Criminal Liability
Drug

dependent will be charged in Court Place on probation and undergo community service Without prejudice to the outcome of the pending case. (community service deemed part of his/her after-care/follow-up program

Section 60. Confidentiality of Records

Medical

and judicial records. Can not be use as evidence against him To determine number of times he head been placed on rehabilitation

Section 66. SUSPENSION OF SENTENCE of a FIRST TIME MINOR DRUG OFFENDER

Accused

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 been promulgated He/She is found GUILTY (Sec. 11)
No previous conviction No previous commitment to a TRC BOARD to favorably recommend BOARD REG. NO. ______

Section 72. LIABILITY FOR VIOLATIONS OF CONFIDENTIALITY OF RECORDS.

Six (6) months & one (1) day to six (6) years + FINE P1,000.00 to P6,000.00 Official custodian Those having access to the records Those who have gained possession GOVERNMENT OFFICER-apply maximum of the penalty + absolute perpetual disqualification Use for unlawful purposes (blackmail)

6 mos. to 6 years in addition to the penalty imposed for the unlawful act committed

Sec. 73. Liability of a Parent, Spouse or Guardian etc. Who Refuses to Cooperate With the Board or any Concerned Agency. (Treatment and Rehabilitation)

Court may cite him/her for CONTEMPT.

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

Sec. 81. Powers and Duties of the Board relative 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 against erring rehabilitation centers. (q) Issue guidelines as to the approval / disapproval of applications for voluntary treatment, rehabilitation or confinement.

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

 For immediate superior who fails to exert reasonable 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 during the pendency of the case without leave of Court (24 hours notice).

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 Drug Cases.

Patent laxity Inexcusable neglect Unreasonable delay

 Deliberately cause unsuccessful prosecution 12 - 20 years imprisonment without prejudice to his/her prosecution under pertinent provision of the Revised Penal Code.
Sec. 93. Power of the Board to Re-classify, Add or Remove any Drug from the List of Dangerous Drugs