OAG 92-93


June 4, 1992


Mr. John Poundstone, M.D., M.P.H.

Commissioner

Lexington-Fayette County Health Department

650 Newtown Pike

Lexington, Kentucky 40508

Dear Mr. Poundstone:

You recently contacted this office requesting an opinion on whether a needle exchange program would violate Kentucky law. It would.

The very purpose of a needle exchange program would presuppose illegal use of those needles by recipients. Hence, a needle exchange program would violate KRS 218A.500(3).

Urban-county health departments are not exempted by the Kentucky statutes from the prohibition of KRS 218A.500(3) against any person delivering, possessing with intent to deliver, or manufacturing with intent to deliver, ". . . drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to . . . inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter." The term "drug paraphernalia" is defined in KRS Chapter 218A to include "[h]ypodermic syringes, needles and other objects used, intended for use, or designed for use in parenterally injecting controlled substances into the human body." KRS 218A.500(1)(k). Under KRS 218A.500(5), added by House Bill 132 in the 1992 Session of the Kentucky General Assembly, "[a]ny person who violates any provision of . . . [KRS 218A.500] . . . shall be guilty of a Class A misdemeanor for the first offense and a Class D felony for subsequent offenses."

The proscription contained in KRS 218A.500(3) applies to any "person." Under KRS 446.010(26), " '[p]erson' may extend and be applied to bodies-politic and corporate, societies, communities, the public generally, individuals, partnerships, and joint stock companies." Thus, a needle exchange program potentially could subject the health department and its governing board, as well as the individuals involved, to criminal liability.

Moreover, KRS 217.177(6) directs that "[a]ny physician, other licensed medical person, hospital, or clinic disposing of hypodermic syringes or needles shall crush the barrel of same or otherwise render the instrument incapable of further use." KRS 217.990(11) sets forth the potential rang of penalties for a violation of KRS 217.177(6). KRS 217.990(11) states:

Any person who violates any of the provisions of KRS 217.177 shall be fined not less than twenty-five dollars ($25.00) nor more than five hundred dollars ($500.00) or be imprisoned in the county jail for not less than five (5) nor more than thirty (30) days, or both.

KRS 217.015(3) defines "person" to include ". . . any public or private entity." The proscription contained in KRS 217.177(60) would therefore apply to an urban-county health department and any physicians or licensed medical persons employed by or working at its direction.

A needle exchange program might also subject an urban-county health department, its governing board and its employees to penalties under federal law. However, a discussion of those potential penalties is beyond the scope of this opinion.

We hope this opinion has been of some assistance to you.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL





By: Kent T. Young

Assistant Attorney General

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