HB 10: "An Act relating to misconduct involving a controlled substance; providing for substitution of judgment; and relating to sentencing."
00 HOUSE BILL NO. 10 01 "An Act relating to misconduct involving a controlled substance; providing for 02 substitution of judgment; and relating to sentencing." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. AS 11.71.040(a) is amended to read: 05 (a) Except as authorized in AS 17.30, a person commits the crime of 06 misconduct involving a controlled substance in the third degree if the person 07 (1) manufactures or delivers any amount of a schedule IVA or VA 08 controlled substance or possesses any amount of a schedule IVA or VA controlled 09 substance with intent to manufacture or deliver; 10 (2) manufactures or delivers, or possesses with the intent to 11 manufacture or deliver, one or more preparations, compounds, mixtures, or substances 12 of an aggregate weight of one ounce or more containing a schedule VIA controlled 13 substance; 14 (3) possesses any amount of a schedule IA controlled substance listed
01 in AS 11.71.140(e); 02 (4) possesses a schedule IIIA, IVA, VA, or VIA controlled substance 03 (A) with reckless disregard that the possession occurs 04 (i) on or within 500 feet of school grounds; or 05 (ii) at or within 500 feet of a recreation or youth center; 06 or 07 (B) on a school bus; 08 (5) knowingly keeps or maintains any store, shop, warehouse, 09 dwelling, building, vehicle, boat, aircraft, or other structure or place that is used for 10 keeping or distributing controlled substances in violation of a felony offense under this 11 chapter or AS 17.30; 12 (6) makes, delivers, or possesses a punch, die, plate, stone, or other 13 thing that prints, imprints, or reproduces a trademark, trade name, or other identifying 14 mark, imprint, or device of another or any likeness of any of these on a drug, drug 15 container, or labeling so as to render the drug a counterfeit substance; 16 (7) knowingly uses in the course of the manufacture or distribution of a 17 controlled substance a registration number that is fictitious, revoked, suspended, or 18 issued to another person; 19 (8) knowingly furnishes false or fraudulent information in or omits 20 material information from any application, report, record, or other document required 21 to be kept or filed under AS 17.30; 22 (9) obtains possession of a controlled substance by misrepresentation, 23 fraud, forgery, deception, or subterfuge; 24 (10) affixes a false or forged label to a package or other container 25 containing any controlled substance; [OR] 26 (11) manufactures or delivers, or possesses with the intent to 27 manufacture or deliver, 28 (A) one or more preparations, compounds, mixtures, or 29 substances of an aggregate weight of less than one gram containing a schedule 30 IA controlled substance; 31 (B) less than 25 tablets, ampules, or syrettes containing a
01 schedule IA controlled substance; 02 (C) one or more preparations, compounds, mixtures, or 03 substances of an aggregate weight of less than 2.5 grams containing a schedule 04 IIA or IIIA controlled substance; or 05 (D) less than 50 tablets, ampules, or syrettes containing a 06 schedule IIA or IIIA controlled substance; or 07 (12) under circumstances not proscribed under AS 11.71.030(a)(3) 08 or (3) of this subsection, possesses any amount of a schedule IA or IIA controlled 09 substance and has been previously convicted on two or more separate occasions 10 of a crime under 11 (A) this paragraph; 12 (B) AS 11.71.050(a)(4); or 13 (C) a law or ordinance of this or another jurisdiction with 14 elements similar to a crime listed under (A) or (B) of this paragraph. 15 * Sec. 2. AS 11.71.050(a) is amended to read: 16 (a) Except as authorized in AS 17.30, a person commits the crime of 17 misconduct involving a controlled substance in the fourth degree if the person 18 (1) manufactures or delivers, or possesses with the intent to 19 manufacture or deliver, one or more preparations, compounds, mixtures, or substances 20 of an aggregate weight of less than one ounce containing a schedule VIA controlled 21 substance; 22 (2) [REPEALED] 23 (3) fails to make, keep, or furnish any record, notification, order form, 24 statement, invoice, or information required under AS 17.30; or 25 (4) under circumstances not proscribed under AS 11.71.030(a)(3), 26 11.71.040(a)(3), (4), or (12) [11.71.040(a)(3), 11.71.040(a)(4)], or 11.71.060(a)(2), 27 possesses any amount of a schedule IA, IIA, IIIA, IVA, VA, or VIA controlled 28 substance. 29 * Sec. 3. AS 11.71.311(a) is amended to read: 30 (a) A person may not be prosecuted for a violation of AS 11.71.030(a)(3), 31 11.71.040(a)(3), (4), or (12) [11.71.040(a)(3) OR (4)], 11.71.050(a)(4), or
01 11.71.060(a)(1) or (2) if that person 02 (1) sought, in good faith, medical or law enforcement assistance for 03 another person who the person reasonably believed was experiencing a drug overdose 04 and 05 (A) the evidence supporting the prosecution for an offense 06 under AS 11.71.030(a)(3), 11.71.040(a)(3), (4), or (12) [11.71.040(a)(3) OR 07 (4)], 11.71.050(a)(4), or 11.71.060(a)(1) or (2) was obtained or discovered as a 08 result of the person seeking medical or law enforcement assistance; 09 (B) the person remained at the scene with the other person until 10 medical or law enforcement assistance arrived; and 11 (C) the person cooperated with medical or law enforcement 12 personnel, including by providing identification; 13 (2) was experiencing a drug overdose and sought medical assistance, 14 and the evidence supporting a prosecution for an offense under AS 11.71.030(a)(3), 15 11.71.040(a)(3), (4), or (12) [11.71.040(a)(3) OR (4)], 11.71.050(a)(4), or 16 11.71.060(a)(1) or (2) was obtained as a result of the overdose and the need for 17 medical assistance. 18 * Sec. 4. AS 12.55 is amended by adding a new section to read: 19 Sec. 12.55.076. Substitution of judgment. (a) Except as provided in (f) of this 20 section, if a person is found guilty of or pleads guilty to misconduct involving a 21 controlled substance in the third degree under AS 11.71.040(a)(12), the court may, 22 with the consent of the defendant and the prosecution and without entering a judgment 23 of guilt, defer further proceedings, place the person on probation, and order the person 24 to complete a treatment program. The court shall require the person to enroll in the 25 treatment program by a specific date and to complete the treatment program by the 26 end of the period of probation. The court may, for good cause, extend the period in 27 which a person is required to enroll in the treatment program, provided the person is 28 able to complete the treatment program within the period of probation. The period of 29 probation may not exceed the applicable terms set out in AS 12.55.090(c). 30 (b) The court shall impose conditions of probation for a person on probation 31 as provided in (a) of this section, which may include that the person
01 (1) abide by all local, state, and federal laws; 02 (2) not leave the state without prior consent of the court; 03 (3) pay restitution as ordered by the court; and 04 (4) obey any other conditions of probation set by the court. 05 (c) At any time during the probationary term of the person released on 06 probation, a probation officer may, without warrant or other process, rearrest the 07 person so placed in the officer's care and bring the person before the court, or the court 08 may, in its discretion, issue a warrant for the rearrest of the person. The court may 09 revoke and terminate the probation if the court finds that the person placed on 10 probation is 11 (1) violating the conditions of probation; 12 (2) engaging in criminal practices; or 13 (3) violating an order of the court to participate in or comply with the 14 treatment program. 15 (d) If the court finds that the person has violated the conditions of probation 16 ordered by the court, the court may revoke and terminate the person's probation, enter 17 judgment on the person's previous plea or finding of guilt to the charge under 18 AS 11.71.040(a)(12), and pronounce sentence at any time within the maximum 19 probation period authorized by this section. 20 (e) If the court finds that the person has successfully completed probation and 21 the treatment program, the court shall, following motion by the person at the end of 22 the probationary period set by the court, vacate the charge under AS 11.71.040(a)(12) 23 and substitute the judgment by entering a conviction for misconduct involving a 24 controlled substance in the fourth degree under AS 11.71.050(a)(4). 25 (f) The court may not substitute judgment for a person who has one or more 26 prior convictions for a violation of AS 11.41 or for a violation of a law in this or 27 another jurisdiction having similar elements to an offense under AS 11.41 in this state; 28 for the purposes of this subsection, a person shall be considered to have a prior 29 conviction even if that conviction has been set aside under AS 12.55.085(e) or under 30 the equivalent provision of the laws of another jurisdiction. 31 * Sec. 5. AS 12.55.078(f) is amended to read:
01 (f) The court may not suspend the imposition or entry of judgment and may 02 not defer prosecution under this section of a person who 03 (1) is charged with a violation of AS 11.41.100 - 11.41.220, 11.41.260 04 - 11.41.320, 11.41.360 - 11.41.370, 11.41.410 - 11.41.530, AS 11.46.400, 05 AS 11.61.125 - 11.61.128, [OR] AS 11.66.110 - 11.66.135, or AS 11.71.040(a)(12); 06 (2) uses a firearm in the commission of the offense for which the 07 person is charged; 08 (3) has previously been granted a suspension of judgment under this 09 section or a similar statute in another jurisdiction, unless the court enters written 10 findings that by clear and convincing evidence the person's prospects for rehabilitation 11 are high and suspending judgment under this section adequately protects the victim of 12 the offense, if any, and the community; 13 (4) is charged with a violation of AS 11.41.230, 11.41.250, or a felony 14 and the person has one or more prior convictions for a misdemeanor violation of 15 AS 11.41 or for a felony or for a violation of a law in this or another jurisdiction 16 having similar elements to an offense defined as a misdemeanor in AS 11.41 or as a 17 felony in this state; for the purposes of this paragraph, a person shall be considered to 18 have a prior conviction even if 19 (A) the charges were dismissed under this section; 20 (B) the conviction has been set aside under AS 12.55.085; or 21 (C) the charge or conviction was dismissed or set aside under 22 an equivalent provision of the laws of another jurisdiction; or 23 (5) is charged with a crime involving domestic violence, as defined in 24 AS 18.66.990. 25 * Sec. 6. AS 12.55.085(f) is amended to read: 26 (f) The court may not suspend the imposition of sentence of a person who 27 (1) is convicted of a violation of AS 11.41.100 - 11.41.220, 11.41.260 28 - 11.41.320, 11.41.360 - 11.41.370, 11.41.410 - 11.41.530, AS 11.46.400, 29 AS 11.61.125 - 11.61.128, [OR] AS 11.66.110 - 11.66.135, or AS 11.71.040(a)(12); 30 (2) uses a firearm in the commission of the offense for which the 31 person is convicted; or
01 (3) is convicted of a violation of AS 11.41.230 - 11.41.250 or a felony 02 and the person has one or more prior convictions for a misdemeanor violation of 03 AS 11.41 or for a felony or for a violation of a law in this or another jurisdiction 04 having similar elements to an offense defined as a misdemeanor in AS 11.41 or as a 05 felony in this state; for the purposes of this paragraph, a person shall be considered to 06 have a prior conviction even if that conviction has been set aside under (e) of this 07 section or under the equivalent provision of the laws of another jurisdiction. 08 * Sec. 7. The uncodified law of the State of Alaska is amended by adding a new section to 09 read: 10 APPLICABILITY. (a) AS 11.71.040(a), as amended by sec. 1 of this Act, and 11 AS 11.71.050(a), as amended by sec. 2 of this Act, apply to offenses committed on or after 12 the effective date of this Act. 13 (b) AS 11.71.311(a), as amended by sec. 3 of this Act, AS 12.55.076, enacted by sec. 14 4 of this Act, AS 12.55.078(f), as amended by sec. 5 of this Act, and AS 12.55.085(f), as 15 amended by sec. 6 of this Act, apply to prosecutions occurring on or after the effective date of 16 secs. 3 - 6 of this Act, for offenses committed before, on, or after the effective date of secs. 3 - 17 6 of this Act.