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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.