Legislature(2015 - 2016)CAPITOL 120
02/25/2015 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB79 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 79 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 79-MARIJUANA REG;CONT. SUBST;CRIMES;DEFENSES
1:09:04 PM
CHAIR LEDOUX announced that the only order of business would be
HOUSE BILL NO. 79, "An Act relating to controlled substances;
relating to marijuana; relating to driving motor vehicles when
there is an open marijuana container; and providing for an
effective date."
1:09:41 PM
REPRESENTATIVE KELLER moved to adopt committee substitute (CS)
for HB 79, Version 29-LS0409\S, Martin, 2/23/15, as the working
document. There being no objection, Version S was before the
committee.
1:10:12 PM
CHAIR LEDOUX advised that the intent is not to amend or move
this bill today in that the House Judiciary Standing Committee
will amend [SB 30] when it arrives in committee. In the
meantime, there will be discussions regarding CSHB 79, in order
to determine what this body wants in the bill.
1:11:33 PM
THOMAS BROWN, Staff, Representative Gabrielle LeDoux, Alaska
State Legislature, paraphrased the following sectional analysis
[original punctuation provided]:
Sections 1 - 43 are conforming amendments dealing with
under age consumption, impaired driving, weapons
misconduct and medical use of marijuana.
Section 44 relates to the personal possession limits
of marijuana.
Sections 45 - 49 create new crimes associated with the
new marijuana industry.
Sections 50 relates to options for local governments.
Section 51 creates new crimes associated with the
misconduct of marijuana.
Sections 53 - 56 are conforming amendments dealing
with treatment.
Sections 57 - 78 are conforming amendments dealing
with drug testing in the workplace and employment.
Sections 79 - 126 are conforming amendments dealing
with drivers licenses and operating motor vehicles
while under the influence of marijuana.
Sections 127-128 creates new sections dealing with
enforcement and municipal control.
Sections 129-138 are conforming amendments concerning
landlords and tenants.
Sections 139-158 are conforming amendments dealing
with substance abuse, testing and treatment.
Section 159-160 repealed sections of law and effective
date.
______________________________________________________
Section 1 Amends AS 02.30.030(b) Operation of an
aircraft under the influence. A person cannot operate
an aircraft with a crew member or passenger who is
intoxicated. Adds "marijuana."
Section 2 Amends AS 04.16.050(e) Possession, control,
or consumption by a person under the age of 21.
Requires the court to prohibit the use of alcohol as a
condition of probation. Adds "marijuana."
Section 3 Amends AS 05.45.100(c) Duties and
responsibilities of skiers. Prohibiting the use of a
tramway, ski slope or trail under the influence. Adds
"marijuana."
Section 4 Amends AS 08.68.270 Grounds for denial,
suspension, or revocation. Grounds for denial,
suspension, or revocation of a nursing license for
habitual use of alcohol. Adds "marijuana."
Section 5 Amends AS 08.72.272 Prohibited prescriptions
in the practice of optometry. Removes VIA from the
list of controlled substances an optometrist is
prohibited from prescribing.
Section 6 Amends AS 08.76.170(a) Customer and
transaction limitations. Prohibiting a pawnbroker
from entering into a transaction with someone who is
impaired. Adds "marijuana."
Section 7 Amends AS 09.50.170 Abatement of places used
for certain acts. Prohibits illegal activity
involving alcoholic beverages, gambling, controlled
substances and prostitution. Adds "marijuana "and
"illegal activity involving marijuana."
Section 8 Amends AS 09.60.070(c) Attorney fees for
victims of serious criminal offenses. The insurer is
liable in cases of a serious criminal offense. The
list of these types of offenses includes driving under
the influence of alcohol. Driving under the influence
of "marijuana" is added.
Section 9 Amends AS 09.65.210 Damages resulting from
commission of a felony while under the influence of
alcohol or drugs. Prohibits a person who is operating
a vehicle under the influence from collecting damages
in certain circumstances. Adds "marijuana"
Sections 10 and 11 Amends AS 09.65.315(a) Damages
resulting from driving the vehicle of a person under
the influence of alcoholic beverages. This statute
excludes a person from personal liability beyond the
limits of an applicable insurance policy for damages
resulting from a motor vehicle accident, if the owner
of the vehicle was impaired. Adds "marijuana"
Section 12 Amends AS 09.65.320(b) Nonrecovery for
damages for economic losses resulting from operating a
motor vehicle while uninsured. Prohibits recovery of
noneconomic losses in cases of drivers under the
influence. Adds "marijuana"
Section 13 Amends AS 11.41.110(a) Murder in the second
degree. Relating to misconduct in the second degree of
a controlled substance. Line 17, removes the reference
to 11.71.040(a)(2) which is repealed in this draft
(noted on page 91, section 160.)
Section 14 Amends AS 11.41.150 (a) Murder of an unborn
child. Line 18, removing the reference to
11.71.040(a)(2) which is repealed in this draft (noted
on page 91, section 160.)
Section 15 Amends AS 11.61.200(a) Misconduct involving
weapons in the third degree. In subsection (4)
knowingly sells or transfers a weapon to someone under
the influence of alcohol or a controlled substance.
In subsection (7) A violation of Crimes of trespass in
the first degree and during the violation possesses a
firearm and under the influence of alcohol or a
controlled substance. Adds "marijuana" in subsections
(4) and (7)
Section 16 Amends AS 11.61.210(a) Misconduct involving
weapons in the fourth degree crimes. In subsection
(1) it is misconduct to possess a firearm or have a
firearm inside the vehicle when impaired and under the
influence of alcohol or a controlled substance. Adds
"marijuana" in subsection (1.)
Section 17 Amends AS 11.71.030(a) Misconduct involving
a controlled substance in the third degree. Line 29
in subsection (2) removes reference to VIA.
Section 18 Amends AS 11.71.040(a) this section
clarifies the repeals of AS 11.71.040(a)(2) and AS
11.71.040(F) noted on page 91, section 160. In
subsection (3) on line 13, removes reference to VIA.
Sections 19 and 20 Amends AS 11.71.120(a) Controlled
Substances Advisory Committee Removes 11.71.190
(marijuana) from the list of drugs reviewed by the
Controlled Substances Advisory Committee.
Section 21 Amends AS 11.71.180(a) Definitions Schedule
VA Substances Removes the reference of VIA (marijuana)
from the definition of a Schedule VA substances.
Section 22 Amends AS 11.71.311(a) Restriction on
prosecution for certain persons in connection with a
drug overdose. In cases which someone seeks medical
or law enforcement assistance in cases of an overdose
of a controlled substance they are prevented from
being prosecution under this section. Adds "marijuana"
Section 23 Amends AS 11.71.900(4) Definitions
Controlled Substances. Removes 11.71.190 (Schedule
VIA) from the definition of "controlled substances."
Section 24 Amends AS 11.71.900(13) Definitions
Manufacture.
Adds "the growing of marijuana for personal use is not
manufacturing" to the definition of
"manufacture."
Section 25 Amends 11.81.900(b)(34) Definitions
Intoxicated. Adds "marijuana" to the definition of
"intoxicated."
Sections 26 Amends AS 12.30.011(b) Release for trial.
Conditions that a judicial officer may impose on a
person who is released on bail. The judicial officer
can (9) prohibit the person from using or possessing
marijuana; (18) require them to enroll in the 24/7
testing program; and/or (19) prohibit them from
entering a marijuana retail store, as additional
conditions of release.
Section 27 Amends 12.30.016 Release for before trial
in certain cases. Relating to release on bail in
particular types of cases, by adding a new subsection
(g) granting a judge in a case charging violations of
the new marijuana offenses the ability to prohibit the
person from using and/or possessing marijuana, require
them to submit to searches without a warrant, require
them to submit to drug testing, require them to enroll
in the 24/7 testing program, and prohibiting them from
entering a marijuana retail store.
Sections 28 and 29 Definitions & Laboratory report of
a controlled substance. Amends AS 12.45.080; AS
12.45.084(a) AS 12.45.080 Provides the definitions
for "marijuana," "marijuana accessories," and
"marijuana products" in AS 12.30.080 are provided in
AS 17.38.900. Requirements for laboratory test
requirements for DPS and law enforcement. Adds
"marijuana" and "usable marijuana" with the given
meaning of marijuana given in AS 17.38.900.
Section 30 Amends AS 12.55.015 Fixing eligibility for
discretionary parole at sentences. (a) Relating to
sentencing by allowing a court to order a defendant to
refrain from using marijuana as a probation condition,
just as they can currently order a defendant to
refrain from consuming alcohol. Adds "marijuana."
Section 31 Amends AS 12.55.015(j) Fixing eligibility
for discretionary parole at sentences. To clarify
that the courts are not limited or restricted from
ordering restrictions on the use of marijuana at the
time of sentencing or probation, just as they are not
limited in their orders about the consumption of
alcohol.
Section 32 Amends AS 12.55.15 (c) (30) Factors in
aggravation and mitigation. This statute relates to
factors in aggravation and mitigation, and includes
the use of controlled substances and alcohol as a
factor in a crime if the substance was used
incapacitate the victim. Adds "marijuana"
Section 33 Amends AS 12.55.155 (c) (5) Factors in
aggravation and mitigation. This statute relates to
factors in aggravation and mitigation, and includes
the use of controlled substances and alcohol as a
factor in a crime if the substance was used
incapacitate the victim. Adds "marijuana"
Section 34 Amends AS 12.55.155(g) Factors in
aggravation and mitigation. This statute relates to
factors in aggravation and mitigation, and includes
the use of controlled substances and alcohol as a
factor in a crime if the substance was used
incapacitate the victim this section provides this
would not be used in cases when the substances were
taken voluntarily. Adds "marijuana"
Section 35 Adds a new paragraph to AS 12.55.185
Definitions Adds "marijuana" with the definition
provided in AS 17.38.900.
Section 36 Amends AS 17.21.010(b) Illicit synthetic
drugs. Relating to illicit synthetic drugs, adds
marijuana in places that reference controlled
substances subsections (B); (C); and (E.)
Section 37 Amends AS 17.21.090(3) Definitions
Synthetic drug. Relating to the definitions of
synthetic drug to include marijuana in places
referencing controlled substances subsections (B) and
(C.)
Section 38 Amends AS 17.30.070(c) Controlled
substances. Relating to the classification of
controlled substances, removes AS 11.71.900
(marijuana.)
Section 39 Amends AS 17.30.080(a) Controlled
Substances Act. Relating to the Federal Controlled
Substances Act and prescribing doctors, removes AS
11.71.900 (marijuana.)
Section 40 Amends AS 17.30.080(b) Controlled
Substances Act. Relating to the Federal Controlled
Substances Act and prescribing doctors. Removes AS
11.71.900 (marijuana.)
Section 41 Amends AS 17.30.140 Education and research.
Directs the Department of Health and Social Services,
working in cooperation with the Department of Law and
Public Safety, to develop educational programs for the
public regarding alcohol and marijuana abuse
prevention.
Section 42 Amends AS 17.37.030 Medical Marijuana.
Relating to medical use of marijuana, provides an
affirmative defense for registered caregivers charged
with offenses related to medical marijuana as
previously provided in AS 11.71.090.
Section 43 Amends AS 17.37.070(a) Definitions Medical
use of Marijuana. Concerning the definition of
medical use of marijuana. Provides the definition of
"medical use" for marijuana as previously provided in
AS 11.71.090.
Section 44 Adds AS 17.38.020: Relating to the personal
use of marijuana.
Provides:
-Possessing, using, displaying, purchasing, or
transporting marijuana accessories or one ounce or
less marijuana
-Possessing, growing, processing, or transporting six
marijuana plants, with three or fewer being mature and
possession of the marijuana produced by the plants on
the premises where the plants were grown
-Transferring one ounce or less and up to six immature
plants to a person 21 years of age or older without
remuneration
Prohibits:
-Use of marijuana of in public place Additionally
provides the definition of "assisting" does not
include possessing, using, displaying, purchasing, or
transporting marijuana and marijuana plants in excess
of the amount allowed in this section.
Section 45 Amends AS 17.38.070(a) Lawful operation of
marijuana related facilities. Establishes that a
person 21 years of age or older may own, operate, be
an agent of or be employed by a retail marijuana store
with a valid registration and perform all of the
related duties and activities and not be prosecuted
for it or have it be a basis for seizure or
forfeiture. Language from Ballot Measure 2 with the
exception of the phrase: "NOTWITHSTANDING ANY OTHER
PROVISION OF LAW" and other stylistic clarifying
changes.
Section 46 Amends AS 17.38.070(b) Lawful operation of
marijuana related facilities. Establishes that a
person 21 years of age or older may own, operate, be
an agent of or be employed by a marijuana cultivation
facility with a valid registration and perform all of
the related duties and activities and not be
prosecuted for it or have it be a basis for seizure or
forfeiture. Language from Ballot Measure 2 with the
exception of the phrase: "NOTWITHSTANDING ANY OTHER
PROVISION OF LAW" and other stylistic clarifying
changes.
Section 47 Amends AS 17.38.070(c) Lawful operation of
marijuana related facilities. Establishes that a
person 21 years of age or older may own, operate, be
an agent of or be employed by a marijuana product
manufacturing facility with a valid registration and
perform all of the related duties and activities and
not be prosecuted for it or have it be a basis for
seizure or forfeiture. Language from Ballot Measure 2
with the exception of the phrase: "NOTWITHSTANDING ANY
OTHER PROVISION OF LAW" and other stylistic clarifying
changes.
Section 48 Amends AS 17.38.070(d) Lawful operation of
marijuana related facilities. Establishes that a
person 21 years of age or older may own, operate, be
an agent of or be employed by a marijuana testing
facility with a valid registration and perform all of
the related duties and activities and not be
prosecuted for it or have it be a basis for seizure or
forfeiture. Language from Ballot Measure 2 with the
exception of the phrase: "NOTWITHSTANDING ANY OTHER
PROVISION OF LAW" and other stylistic clarifying
changes.
Section 49 Amends AS 17.38.070(e) Lawful operation of
marijuana related facilities. Relating to licensed
businesses that operate in accordance with the laws
cannot be subject to forfeiture or seizure. Language
from Ballot Measure 2 with the exception of the
phrase: "NOTWITHSTANDING ANY OTHER PROVISION OF LAW"
and other stylistic clarifying changes.
Section 50 Amends AS 17.38.090 Rulemaking Directs the
board to adopt a regulation that will prohibit a
retail marijuana store from selling more than five
grams of marijuana concentrate per day to a costumer.
Section 51 Amends AS 17.38.110(a) Local Control Allows
for a local governments and established villages to
prohibit the operation of marijuana cultivation
facilities, marijuana product manufacturing
facilities, marijuana testing facilities, or marijuana
retail stores through the act of an ordinance.
Section 52.
AS 17.38.200 Misconduct involving marijuana in the
first degree. A person commits the crime of MIM in
the 1st degree, which is a class A misdemeanor, if
they do any of the following without a license:
- Possesses 25 or more marijuana plants.
- Manufactures more than six marijuana plants.
- Delivers or transports more than one ounce of usable
marijuana or more than six marijuana plants.
- Gives any amount of marijuana to a person under 21.
- Manufactures a marijuana concentrate using a
volatile or explosive gas.
- Delivers or transports one ounce or less of usable
marijuana for remuneration.
- Delivers or transports up to six immature plants for
remuneration;
A person with a registered marijuana establishment
commits the crime of MIM in the 1st degree if they do
not comply with the license requirements and
knowingly:
- Possesses 25 or more marijuana plants.
- Manufactures more than six marijuana plants.
- Transports more than one ounce of usable marijuana
or more than six marijuana plants.
- Delivers any amount of marijuana to a person under
21.
- Manufactures a marijuana concentrate using a
volatile or explosive gas.
A person with a registered marijuana establishment
commits the crime of MIM in the 1st degree if they do
the following with criminal negligence:
- Allows a person to deliver marijuana to a person
under 21 who is not a medical marijuana patient 18
years of age or older.
- Allows a person under 21 years to enter and remain
in the licensed premise who is not a medical marijuana
patient 18 years of age or older.
- Allows a person under 21 years to use marijuana
within the licensed premises.
- Allows a person under 21 to deliver marijuana.
- Delivers marijuana to a person under 21 who is not a
medical marijuana patient 18 years of age or older.
AS 17.38.210 Misconduct involving marijuana in the
second degree. A person commits the crime of MIM in
the 2nd degree, which is a class B misdemeanor, if, at
the time of the misconduct, the person:
- Is at least 21 years of age, is not a registered
marijuana establishment and knowingly:
o Possesses 6-25 marijuana plants or possesses;
or
o Delivers more than one ounce of usable
marijuana in a public place or possesses or
delivers more than six marijuana plants.
- Is a registered marijuana establishment not in
compliance with the registration requirements and
knowingly:
o Possesses 6-25 marijuana plants
o Delivers or sells any amount of marijuana
- Is not a registered marijuana establishment and
knowingly sells any amount of marijuana.
AS 17.38.220 Misconduct involving marijuana in the
third degree.
A person commits MIM in the 3rd degree, which is a
violation, if they:
- Manufacture marijuana in a location where the plants
are in public view, not
secure from unauthorized access, or on property not in
possession of the person or without consent of the
property owner.
- Are under 21 and attempts to purchase marijuana with
false identification, or otherwise misrepresents the
person's age.
- Are under 18 and possesses, uses, or displays any
amount of marijuana.
- This section does not apply to a person assisting
enforcement.
AS 17.38.230 Misconduct involving marijuana in the
fourth degree.
A person commits MIM in the 4th degree, which is a
violation, if they:
- Are over 21 and use any amount of marijuana in a
public place
- Are between 18-20 and use, display, or possess 1
ounce or less of marijuana.
AS 17.38.240 Proof of registration to be exhibited on
demand; penalty. Requires a licensee to have a copy of
their marijuana license at all times when transporting
more than one ounce of marijuana, and shall present
the license on demand by a peace officer.
AS 17.38.250 Bail forfeiture for certain offenses.
Requires the court to make a bail schedule allowing
defendants to pay the fine for violations without a
court appearance for MIM 3rd (AS 17.38.220) and MIM
4th (AS 17.38.230.)
AS 17.38.260 Restriction on prosecution for certain
persons in connection with a significant adverse
marijuana reaction. A person may not be prosecuted for
various marijuana misconduct crimes if that person
seeks, in good faith, medical or law enforcement
assistance for another person who is believed to be
experiencing a significant adverse marijuana reaction
and the person remains at the scene until assistance
arrives and cooperates with medical or law enforcement
personnel.
AS 17.38.270 Affirmative defense to a prosecution
under AS 17.38.200 - AS 17.38.230; medical use of
marijuana.
In a prosecution for certain MIM crimes, it is an
affirmative defense that the defendant is a patient,
or the primary caregiver for a patient, and:
- At the time of the alleged misconduct, the person is
a medical marijuana cardholder.
- The alleged misconduct complies with requirements of
AS 17.37 and the defendant is the primary or alternate
caregiver.
AS 17.38.280 Court records of violations by minors
confidential.
The court records of a MIM crime or violation are
confidential if the person is under 18 years of age.
AS 17.38.290 Local option.
An established village shall prohibit the operation of
marijuana establishments if a majority of the voters
in the election approve the ban. A ballot to adopt a
local option must contain language substantially
similar to the following: "Shall (name of village)
adopt a local option to prohibit the operation of
marijuana establishments? (yes or no)."
AS 17.38.300 Removal of local option.
An established village shall remove a local option if
a majority of the voters vote to remove the option.
The option is repealed effective the first day of the
month following certification of the election results.
A ballot question to remove a local option must at
least contain language similar to the following:
"Shall (name of village) remove the local option
currently in effect, that prohibits the operation of
marijuana establishments, so that there is no longer
any local option in effect? (yes or no)." When issuing
a registration in an area that has removed a local
option, the board shall give priority to an applicant
who was formerly licensed.
AS 17.38.310 Effect of local option on registrations
of prohibition of marijuana establishments.
If a local option is in effect, the board may not
issue, renew, or transfer a registration for a
marijuana establishment located within the perimeter
of the village.
AS 17.38.320 Procedure for local option elections.
An election to adopt or remove a local option shall be
conducted as follows:
- The lieutenant governor shall place on a separate
ballot at a special election the content from a
petition that received at least 35 percent of
registered voters within the village.
- The election may not be conducted during the first
24 months after the local option was adopted or more
than once in a 36-month period.
- Another petition may not be filed until after the
question presented in the first petition has been
voted on. Only one local option question may be
presented in an election.
-
AS 17.38.330 Establishment of perimeter of established
village.
For purposes of the local option law, the perimeter of
a village is a circle around the village that includes
an area within a five-mile radius of the post office
of the village, or a five-mail radius of another site
selected by the local governing body, or the board, if
the village doesn't have a local governing body. If
the perimeter overlaps with another village's
perimeter, and that other village has not adopted a
local option, then the local option does not apply in
the overlapping area.
AS 17.38.340 Notice of the results of a local option
election.
If a majority of the voters approve or remove a local
option, the lieutenant governor shall notify the board
of the results immediately following the election, and
the board shall immediately notify the Department of
Law and the Department of Public Safety.
Section 53 Amends AS 17.38.900(6) Definitions
Marijuana. Provides the definition of marijuana.
Section 54 Adds a new section to AS 17.38.900
Definitions. Adds definitions for criminal
negligence, deliver(y), established village,
knowingly, manufacture, marijuana concentrate, public
place and "usable marijuana."
Section 55 Amends AS 18.66.100(c) Protective orders:
eligible petitioners; relief. Allows for protective
orders to require the respondent to participate in
marijuana abuse treatment programs
Sections 56; 57 Amends AS 18.67.080; AS 18.67.101
Violent Crimes Compensation. Prohibits the violent
crimes compensation board from denying a victim based
on their use of marijuana or from being injured in a
vehicle operated by someone under the influence of
marijuana
Section 58 Amends AS 21.42.365(b) Coverage for
treatment of alcoholism or drug abuse. For insurance
purposes defines drug abuse to include marijuana
dependency
Section 59 Amends AS 23.10.600(a) Employer protection
from litigation. Prohibits legal actions against an
employer for drug testing, and the results of the drug
testing. Adds marijuana and marijuana impairment
testing.
Section 60 Amends AS 23.10.600(b) Employer protection
from litigation. Creates an exception in cases when
an employer tampers with a test or creates a false
positive. Adds marijuana.
Section 61 Amends AS 23.10.600(d) Employer protection
from litigation. Prohibits legal actions against an
employer for a false negative test. Adds marijuana
impairment testing.
Section 62 Amends AS 23.10.600(e) Employer protection
from litigation. Prohibits action against an employer
for not implementing drug testing or prevention
programs. Adds marijuana impairment testing and
marijuana.
Section 63 Amends AS 23.10.610 Limits on causes of
action for disclosures. Prohibits action against an
employer for defamation, slander or libel due to their
use of a drug or alcohol test. Adds marijuana and
marijuana impairment testing.
Section 64 Amends AS 23.10.620(a) Employer policy.
Prohibits employers from conducting drug and alcohol
testing without first adopting a written policy and
properly informing employees. Adds marijuana.
Section 65 Amends AS 23.10.620(b) Employer policy.
Describes the requirements for a written policy on
drug testing. Adds marijuana.
Section 66 Amends AS 23.10.620(c) Employer policy.
Allows employers to test for drug and alcohol testing
and investigation. Adds marijuana impairment testing.
Section 67 Amends AS 23.10.620(e) Employer policy.
Describes the parameters of employer drug and alcohol
testing Adds marijuana.
Section 68 Amends AS 23.10.620(f) Employer policy.
Clarifies the statute requirements for alcohol and
drug impairment testing are not in an effort to hinder
testing by employers. Adds marijuana impairment
testing.
Section 69 Amends AS 23.10.630(a) Collection of
samples. Allows employers to test potential employees
for alcohol impairment. Adds marijuana.
Section 70 Amends AS 23.10.630(c) Collection of
samples. Describes how alcohol impairment testing
should be scheduled. Adds marijuana impairment
testing.
Section 71 Amends AS 23.10.630(d) Collection of
samples. Requires employers to pay the entire cost
for alcohol testing. Adds "marijuana impairment
testing."
Section 72 Amends AS 23.10.640(a) Testing procedures.
Adds "marijuana impairment".
Section 73 Amends AS 23.10.645(a) On-site testing.
Adds "marijuana" to the list of substances an employer
can include in its on-site testing policy.
Section 74 Amends AS 23.10.650 Training of test
administrators. Adds "marijuana" to the list of
substances included in the certified test
administrator training program.
Section 75 Amends AS 23.10.655 Disciplinary
procedures. Includes "marijuana impairment testing"
to the list of tests that permit an employer to take
adverse employment action if there is a positive drug
test and it violates the employer's written policy.
Section 76 Amends AS 23.10.660 Confidentiality of
results; access to records. Includes "marijuana
impairment test" to the list of tests that are
privileged and confidential, and may only be disclosed
to the employee in question, the individuals
designated by the employer to evaluate test results,
or if the disclosure is ordered by a court or
governmental agency.
Section 77 Amends AS 23.10.670 Effect of mandatory
testing obligations. Adds "marijuana impairment
testing" to provide that an employer who is obligated
by state or federal law to have drug and alcohol
testing shall receive the full protections from
litigation contained within AS 23-10.600 - 23.10.699.
Section 78 Amends AS 23.10.699 Definitions.
"Marijuana" has the meaning given in AS 17.38.900.
Section 79 Amends AS 25.20.061 Visitation in
proceedings involving domestic violence. Includes
"marijuana" in the list of substances a domestic
violence perpetrator shall abstain from possessing or
consuming during parent/child visitation and 24 hours
prior.
Section 80 Amends AS 28.01.010(j) Provisions uniform
throughout state. Pertaining to the requirement that
ignition interlock devices must be applied to all DUI
crimes, Includes "marijuana" in the list of substances
that could incur DUI.
Section 81 Amends AS 28.15.031(b) Persons not to be
licensed. Adds "marijuana" to the list of substances
that, if used habitually to the degree that the person
is incapable of safely driving, precludes the
department from issuing a driver's license to that
person.
Section 82 Amends AS 28.15.046(d) Licensing of school
bus drivers. Pertaining to disqualifications from
being issued a school bus driver's license, adds
"marijuana" to the list of substances that can incur a
DUI. Mainly conforming language to the DUI statutes.
Section 83 AS 28.15.046(k) Licensing of school bus
drivers. Pertaining to persons permitted to receive a
school bus driver's license, adds "marijuana" to the
list of substances that can incur a DUI.
Section 84 Amends AS 28.15.081(a) Examination of
applicants. Applicants for a driver's license must
undergo a test of the applicant's knowledge of the
laws and effects of list of substances. Adds
"marijuana" to the list of substances contained in the
test.
Section 85 Amends AS 28.15.085 Alcohol and drug
awareness and safety examination of applicants.
Pertaining to a person applying for a new license
after the previous license has expired, adds
"marijuana" to the list of substances.
Section 86 Amends AS 28.15.165(c) Administrative
revocations and disqualifications resulting from
chemical sobriety tests and refusals to submit to
tests. Adds "marijuana" to the list of substances
that can incur a DUI.
Section 87 Amends AS 28.15.166(g) Administrative
review of revocation. Adds "marijuana" to the list of
substances that can incur a DUI.
Section 88 Amends AS 28.15.181(a) Court suspensions,
revocations, and limitations. Adds "marijuana" to the
list of substances that can incur a DUI or refusal,
which leads to immediate license revocation, if
convicted.
Section 89 Amends AS 28.15.183(a) Administrative
revocation of license to drive. Includes "marijuana"
into the administrative license revocation statutes as
it relates to the crime of a minor operating a vehicle
after consuming alcohol.
Section 90 Amends AS 28.15.183(h) Administrative
revocation of license to drive. Adds "marijuana" and
"marijuana abuse treatment" to ensure that the
juvenile ASAP program, if required before issuing a
new license, is waived if marijuana treatment is
unavailable where that person resides.
Section 91 Amends AS 28.15.184(g) Administrative
review of revocation of a minor's license. Adds
"marijuana" to a provision referencing the crime of a
minor operating a vehicle after consuming alcohol.
Section 92 Amends AS 28.15.191(e) Court and parole
board reports to department; surrender of license or
identification card. Adds "marijuana" to provide that
the court shall report to the department every legal
change of name of any person considered to be
afflicted with a mental disability or is an habitual
user of alcohol, marijuana, or another drug.
Section 93 Amends AS 28.15.191(g) Court and parole
board reports to department; surrender of license or
identification card. Adds "marijuana" to the section
of law that requires the court to surrender someone's
ID card, enable the court to order a person from
refraining from marijuana consumption, in the same
fashion as alcohol, as part of a sentence for
conviction under 28.35.030, 28.35.032, or some other
similar thing.
Section 94 Amends AS 28.15.191(h) Court and parole
board reports to department; surrender of license or
identification card. Adds "marijuana" to a statute
relating to conditions of parole and notification.
Section 95 Amends AS 28.15.271(e) Fees. Adds
"marijuana" to a statute relating to the issuance of
new licenses to replace a cancelled license due to
being restricted from purchasing alcohol. If the
person has been ordered to refrain from consuming
alcoholic beverages under Title 4.
Section 96 Amends AS 28.20.230(c) Proof of financial
responsibility for the future. Adds "marijuana" to
the list of substances that can incur a DUI or refusal
charge.
Section 97 Amends AS 28.33.030 Operating a commercial
motor vehicle. Operating a motor vehicle while under
the influence of an alcoholic beverage, marijuana,
inhalant, or controlled substance. Adds "marijuana"
Section 98 Amends AS 28.33.031(a) Implied consent for
operators of commercial motor vehicles. Adds
"marijuana" to statutes relating to DUI and refusal.
Section 99 Amends AS 28.33.130(a) Out-of-service
orders. Adds "marijuana" to the list of substances
that are prohibited from being consumed in the past
four hours while operating a commercial motor vehicle.
This also includes possession of marijuana, unless the
marijuana is manifested and documented as part of an
authorized shipment of cargo.
Section 100 Amends AS 28.33.140(a) Conviction
resulting in disqualification from driving commercial
vehicle. Adds "marijuana" to offenses that are
grounds for immediate disqualification from driving a
commercial motor vehicle.
Section 101 Amends AS 28.33.190 Definitions. Defines
"marijuana" as having the same meaning given in AS
17.38.900.
Section 102 Amends AS 28.35.028(h)(1) Court-ordered
treatment. Includes "marijuana" into the definitions
of "court-ordered treatment program" and "treatment
plan".
Section 103 Amends AS 28.35.029(a) Open container.
Provides that a person may not drive a motor vehicle
when there is an open marijuana container in the
passenger compartment with the exceptions provided
below (b.)
Section 104 Amends AS 28.35.029(b) Open container.
Creates exceptions to an open marijuana container
being in the vehicle: the container is in the trunk of
the vehicle; behind the last upright seat in certain
vehicles; behind a solid partition that separates the
driver from the passengers, or certain types of
passenger vehicles.
Section 105 Amends AS 28.35.029(c) Open container.
Defines "open marijuana container" as a receptacle
that contains marijuana, is open or has a broken seal
and there is evidence marijuana has been consumed in
the vehicle.
Section 106 Amends AS 28.35.030(a) Operating a
vehicle, aircraft or watercraft while under the
influence of an alcoholic beverage, inhalant, or
controlled substance. Adds "marijuana" to the DUI
statutes.
Section 107 Amends AS 28.35.030(b) Operating a
vehicle, aircraft or watercraft while under the
influence of an alcoholic beverage, inhalant, or
controlled substance. Adds "marijuana" to the DUI
statutes.
Section 108 Amends AS 28.35.031(a) Implied consent.
Adds "marijuana" to the list of substances associated
with DUI. A person is considered to have given consent
to a chemical test if lawfully arrested for driving
impaired on those substances.
Section 109 Amends AS 28.35.031(g) Implied consent.
Adds "marijuana" to the implied consent statute. With
probable cause, consent is implied to test blood or
urine for the presence of marijuana if the person is
involved in a motor vehicle accident that causes death
or serious physical injury to another person.
Section 110 Amends AS 28.35.032(a) Refusal to submit
to chemical test. Adds "marijuana" to the refusal
statutes.
Section 111 Amends AS 28.35.032(e) Refusal to submit
to chemical test. Adds "marijuana" to the refusal
statutes.
Section 112 Amends AS 28.35.033(a) Presumptions and
chemical analysis of breath or blood. Adds
"marijuana" to the list of substances associated with
DUI statutes, and changes
Section 113 Amends AS 28.35.035(a) Administration of
chemical tests without consent. Adds "marijuana" to
the statute providing that a chemical test can be
administered without consent if the offender causes
death or physical injury to another person.
Section 114 Amends AS 28.35.035(b) Administration of
chemical tests without consent. Adds "marijuana" to
the statute that an unconscious person who is
incapable of refusal is considered not to have
withdrawn consent and a chemical test may be
administered.
Section 115 Amends AS 28.35.039(1) Definitions:
Alcohol safety and controlled substances. Amends the
definition of "alcohol safety action program" to
include marijuana.
Section 116 Amends AS 28.35.039 Definitions:
Marijuana. Adds a new paragraph providing "marijuana"
has the meaning set forth in AS 17.38.900.
Section 117 Amends AS 28.35.280(a) Minor operating a
vehicle after consuming alcohol. A peace officer with
probable cause can arrest or request a chemical test
from a minor, who is at least 14 years of age, but not
yet 21, for suspicion of operating a vehicle after
consuming alcohol. This section includes the
operation of motor vehicles, aircraft, or watercraft.
Adds "Marijuana."
Section 118 Amends AS 28.35.280(b) Minor operating a
vehicle after consuming alcohol. In cases involving
minors and vehicles if a chemical test is performed
and the discovery of any amount of alcohol is found,
the person is cited and released to their parental
guardian or legal custodian. Adds "Marijuana."
Section 119 Amends AS 28.35.280(d) Minor operating a
vehicle after consuming alcohol. Involving
sentencing, fines and community work for a minors
found guilty of operating a vehicle under the
influence of alcohol. Adds "Marijuana"
Sections 120-123 Amends AS 28.35.285(a);(c);(d) Minors
refusal to submit to chemical test. The refusal to
submit to a chemical test of a person's breath, is a
violation subject to the same caveats and conditions
attending a minor's refusal to submit to a request of
a peace officer to undergo chemical testing. Adds
"marijuana."
Section 124;125 Amends AS 28.35.290(a);(b) Minors
Driving during the 24 hours after being cited for
alcohol or breath test offenses. Involving
sentencing, fines and community work for a minors
found guilty of operating a vehicle during the 24 hour
period after being cited for operating a vehicle under
the influence of alcohol. Adds "marijuana"
Section 126;127 Amends AS 29.10.200; AS 29.35 Article
1 Limitation of home rule powers. Municipal powers
and duties. Adds a new section, involving the general
powers of municipalities. Provides the right to limit
marijuana to the state and municipalities cannot enact
or enforce an ordinance inconsistent with 17.38,
except as specifically provided by state statute. The
section applies to home rule and general law
municipalities.
Section 128 Amends AS 33.16.060(c) Duties of the board
of parole. To conform to the removal of marijuana
from inclusion under the definition of a "controlled
substance" by separately identifying "marijuana" as a
substance falling within the purview of the subsection
Section 129 Amends AS 33.16.150(b) Conditions of
parole. Adds subsection (b)(11) which permits
prohibiting the entry into an establishment where
marijuana is sold or otherwise dispensed as a
condition of parole.
Section 130 Amends AS 33.16.900(3) Definitions
Controlled Substance Removes AS 11.71.190 or
"marijuana" from the schedule of control substances
definition provided for the chapter.
Section 131 Amends AS 33.30.015(a) Living conditions
for prisoners. Describes the authority and
limitations of the commissioner of corrections.
Subsection (a)(3)(k) relating to controlled substances
and alcohol, adds "marijuana."
Section 132 Amends AS 33.30.065(b) Service of sentence
by electronic monitoring. In determining whether to
designate a prisoner to serve a term of imprisonment
or period of temporary commitment by electronic
monitoring. Adds "marijuana" to the list of
substances of abuse for consideration for determining
whether electronic monitoring is appropriate.
Sections 133- 137 Tenant obligation Landlord Tenant
Act. Amends AS 34.03.120; AS 34.03.360(7); AS
34.05.100(a); AS 34.05.100(d)(1) Activities a tenant
may not knowingly engage in on rented premises. Adds
" illegal activity involving marijuana."
Section 138 Amends AS 44.19.645(a) Alaska Criminal
Justice Commission. Removes AS 11.71.190 or
"marijuana" from the list of controlled substances
reviewed by the Alaska Criminal Justice Commission for
the purposes evaluation of sentencing laws and
criminal justice practices.
Section 139 Amends AS 47.10.900(17) Child in Need of
Aid Definitions Intoxicant Adds "marijuana" to the
definition of "intoxicant."
Section 140 Amends AS 47.17.024(a) Duties of
practitioners of the healing arts. Requirement that a
practitioner must notify closest office of Department
of Health and Social Services if the practitioner
determines infant adversely affected by alcohol, drug
abuse or misuse of inhalants or hazardous materials.
Adds "marijuana."
Section 141 Amends AS 47.37.010 Declaration of policy.
The State's policy of recognizing, appreciating, and
reinforcing examples of sobriety; and in its policy of
not criminally prosecuting "alcoholics and intoxicated
persons" finding treatment to be a better option. Adds
"marijuana."
Section 142 Amends AS 47.37.030 Powers of Department
of Health and Social Services. The list of prevention
and treatment programs the Department is empowered to
establish and maintain; in addition, treats "marijuana
abusers" throughout subsections in same manner as
alcoholics and persons addicted to other substances.
Section 143 Amends AS 47.37.040 Duties of Department
of Health and Social Services. The Department of
Health and Social Services with corporation from the
Department of Public Safety and Administration is
required to implement prevention-of-abuse programs.
Adds "marijuana abuse" and "marijuana abusers" to the
list of types of activity for which these programs are
developed.
Section 144 Amends AS 47.37.170(b) Protective custody.
By including marijuana in the list of causes of
incapacitation requiring peace officers to take the
incapacitated person into protective custody and
deliver the incapacitated person to a treatment
facility or secure facility. Minors are not permitted
to be placed in jail or other secure facility.
Section 145 Amends AS 47.37.170(d) Definitions. List
of causes of incapacitation for which an incapacitated
person may not be held beyond his or her period of
incapacitation, or for more than 48 hours in any
event, at a facility. Adds "marijuana."
Section 146 Amends AS 47.37.170(f) Treatment and
services for intoxicated persons and persons
incapacitated by alcohol or drugs. If a person is
admitted to an approved treatment facility, and not
incapacitated by drugs or alcohol, they can request
that his or her next of kin not be notified and this
will be upheld. Adds a person can also not be
incapacitated by use marijuana for this privilege.
Section 147 Amends AS 47.37.170(g) No action for
damages. List of incapacitating substances which, if
caused an incapacitated person to be taken into
custody, prevents an incapacitated person from
bringing an action for damages, unless damages were
caused by gross negligence or intentional misconduct.
Adds "marijuana"
Section 148 Amends AS 47.37.170(i) Detention. Adding
marijuana incapacitation to the rules governing length
of time an incapacitated person may be held in a
detention facility.
Section 149 Amends AS 47.37.180(a) Emergency
commitment. By adding incapacitation by marijuana to
the list of incapacitating substances that qualify for
committing an incapacitated person to an approved
public treatment facility for emergency treatment.
Section 150 Amends AS 47.37.190(a) Involuntary
commitment. By adding marijuana to the list of
substances which, if abused, can, along with other
criteria, form the basis for involuntary commitment.
Section 151 Amends AS 47.37.205(a) Procedure for
recommitment following 30-day commitment. By adding
marijuana to the list of substances which, if abused,
can, along with other criteria, form the basis for
extended involuntary commitment.
Section 152 Amends AS 47.37.270(1) Definitions:
Alcoholic or drug abuser. Alcoholic or drug abuser,
commissioner, department, drugs by including marijuana
and marijuana abuser in the defined terms.
Section 153 Amends AS 47.37.270(4) Definitions: Drugs
By defining the term "drugs" in reference to statutes
which no longer include marijuana as a controlled or
scheduled substance.
Section 154 Amends AS 47.37.270(7) Definitions:
Incapacitated. Incapacitated by alcohol, adds
marijuana to the definition of what it means to be
incapacitated.
Section 155 Amends AS 47.37.270(10) Definitions:
Intoxicated person. By adding marijuana to the
definition of what it means to be intoxicated.
Section 156 Amends AS 47.38.020(a) Alcohol and
substance abuse monitoring program. By adding
marijuana to the list of substances prohibited from
use by a parolee enrolled in certain programs.
Section 157 Amends AS 47.38.020(c) Alcohol and
substance abuse monitoring program twice a day
testing. By adding marijuana to the provision for
twice-a-day testing under the program of release and
parole.
Section 158 Repeals the enumerated statutes.
Section 159 Amends the uncodified law of Alaska by
adding a new section which provides that the Act
applies to offenses committed on or after the
effective date of the Act; except that certain
exceptions apply to amendments affecting sentences
imposed on or after the effective date for an offense
committed on or after the effective date; to
amendments that apply to causes of action accrued on
or after the effective date of the Act; and to
amendments that apply to conditions of parole ordered
on or after the effective date of the Act.
Section 160 Provides for an immediate effective date
pursuant to AS 01.10.070(c).
1:12:35 PM
MR. BROWN corrected the sectional analysis in each member's
packet by pointing to the bottom of the first page in the
"Overview" it reads "Sections 129-138 are conforming amendments
concerning landlords and tenants." He advised that is an error.
The "Overview" should read "Sections 129-132 are conforming
amendments dealing with the Department of Corrections; Sections
133-137 concern landlords and tenants; and, Section 138 is a
conforming amendment dealing with the criminal justice
commission."
1:15:34 PM
MR. BROWN pointed to Sec. 50 and 52, page 29, beginning line 6,
and said the new Sec. 50 amends AS 17.38.090 by instructing the
Marijuana Control Board, yet to be created, that it should adopt
a regulation prohibiting a retail marijuana establishment from
selling more than five grams of marijuana concentrate per day,
per customer.
CHAIR LEDOUX assumed that five grams is less than one ounce.
MR. BROWN responded "significantly less."
CHAIR LEDOUX further assumed an individual is not allowed to
have more than five grams of marijuana concentrate.
MR. BROWN advised "that is correct." It is simply eliminating
the amount an individual can purchase from a retail outlet of
marijuana concentrate per day.
CHAIR LEDOUX offered that an individual could go to different
stores and purchase five grams from each store. She asked the
thought process behind this [provision].
MR. BROWN responded that since marijuana concentrate is
considered to be more potent than regular marijuana, it was wise
to consider limiting the amount any customer could purchase in a
single day from a single outlet. He advised that no real ideas
have been put forth as to how to prevent that scenario.
1:17:55 PM
REPRESENTATIVE GRUENBERG reiterated that the bill reads that one
store cannot sell more than five grams of concentrate each day
to one customer. He opined that would not prohibit the customer
from going from store to store.
MR. BROWN advised "that is exactly correct and [the drafters] do
not have a way around that yet."
1:18:32 PM
REPRESENTATIVE GRUENBERG asked whether it is wise or
constitutional for the board to do this all by regulation or
should this be in the statute.
MR. BROWN opined that the strongest arguments against this is
that this does not belong in a criminal bill. He further opined
this would more appropriately be in a regulatory bill as this
subsection is not criminal law.
REPRESENTATIVE GRUENBERG questioned whether the legislature
should enact it, or a board.
1:19:22 PM
REPRESENTATIVE MILLETT remarked that she had a long conversation
with Senator Coghill regarding this amendment and whether it
should be in this bill. She noted that where the initiative was
vague on quantity of hash oil, it left a broad range of quantity
of hash oil that one could possess. However, she said, the
initiative did limit the amount of marijuana plants and the
marijuana itself. This is an attempt to also limit hash oil
because five grams of hash oil has the same amount of quantity
as one ounce of leaf marijuana. She related that leaving hash
oil out of the bill, but limiting the amount of plants and the
amount of leaf marijuana an individual can possess would be a
failure on the part of the legislature. She offered that THC
and hash oil are much stronger than an ounce of marijuana leaf
that an individual smokes. Ingesting hash oil is a much more
direct form of medicinal value than smoking marijuana. She
acknowledged "this is a clumsy way to do it" but it is part of
the committee process that the House Judiciary Standing
Committee come up with ... five grams of hash oil equals
approximately one ounce of marijuana. She noted that within the
initiative there is not a limitation on hash oil whereas there
are limitations on leaf marijuana. She opined it would be wise
for the committee to consider "something."
1:21:23 PM
CHAIR LEDOUX said that if the intent is to prohibit an
individual from possessing, displaying, consuming more than five
grams of hash oil then the criminal bill should say no one is
allowed to have more than five grams of hash oil. She offered
that the committee could consider that language rather than
saying that "an establishment can't ... if we say that, then it
would also be forbidden to sell more than five grams of hash
oil." She opined that there is a regulation stipulating that
one store cannot sell more than five grams of hash oil, yet it
is still not illegal for an individual to possess more than five
grams of hash oil. Chair LeDoux expressed that she was not sure
this way accomplishes what the committee may or may not want to
do but is something to consider.
1:22:58 PM
MR. BROWN referred to [Sec. 52, AS 17.38.200], page 29, line 28,
and noted that it adds the words "delivers or" to the provision,
which read:
(iii) delivers or transports more than one ounce of
usable marijuana or more than six plants;
MR. BROWN noted it is replicated a multiple of times throughout
the bill with similar instances.
1:23:26 PM
MR. BROWN responded in the affirmative to Chair LeDoux that he
is referring to [AS 17.38.200(a)(1)(A)](iii).
CHAIR LEDOUX noted that prior to this change it read
"transports." She questioned if anyone knew the difference
between "delivers" and "transports."
1:23:49 PM
MR. BROWN opined that "transporting" is simply moving something
from one place to another. Whereas, "delivery" implies a
commercial aspect but, his definitions could be wrong, he
acknowledged.
1:24:18 PM
CHAIR LEDOUX pointed the committee to [Sec. 52, AS 17.38.200],
page 30, lines 3-6, "for remuneration."
1:24:49 PM
REPRESENTATIVE CLAMAN offered that classic delivery is a sale
and there are statutes with "intent to deliver." Possession
with intent to deliver is an individual in the process of sale,
he explained. Whereas, "transportation" is when an individual
is caught with an illegal substance in a vehicle or an airplane.
There is not a sale, but there is an assumption [the product] is
being taken to Point B, for purposes of delivery except the
individual is caught before arriving at Point B.
1:25:41 PM
MR. BROWN referred the committee to [Sec. 52], page 29, lines
28-29, and page 30, lines 3-6 wherein the language is "delivers
or transports more than one ounce of usable marijuana or more
than six marijuana plants," which is above the threshold
established by the initiative. He continued that according to
the initiative and this bill it is legal to possess up to one
ounce of marijuana and six marijuana plants. He referred to
page 29, lines 28-29, and stated the language makes it illegal
to deliver or transport more than that legal amount.
MR. BROWN then addressed page 30, lines 3-6, and said it makes
the distinction that an individual cannot deliver or transport
any amount for remuneration.
CHAIR LEDOUX pointed out that when talking about remuneration it
was supposed to be the difference between delivery and
transport. She assumed delivery means something an individual
is transporting or delivering for remuneration, as opposed to
transporting and taking it from Point A to Point B. She then
referred to two sections [page 30, lines 3-6] which talk about
the same thing, but "for remuneration."
1:27:14 PM
REPRESENTATIVE MILLETT reiterated that the bill is clumsy "at
best" for what the committee is trying to do. Possibly
Legislative Legal and Research Services could offer language
clarifying the issue.
1:27:53 PM
REPRESENTATIVE KELLER said he is not sure he understands the
discussion. He then moved to the difference between [Sec. 52,
AS 17.38.200(a)(1)(A)], page 29, line 22-24, which read:
(A) is not a registered marijuana establishment under
this chapter or acting in the person's capacity as an
officer, agent, or employee of the marijuana
establishment and knowingly ...
REPRESENTATIVE KELLER and the scenario described on page [Sec.
52, AS 17.38200(a)(1)(B)], page 30, lines 7-11, which read:
(B) is a registered marijuana establishment under this
chapter or acting in the person's capacity as an
officer, agent or employee of the marijuana
establishment, the possession, manufacture, transport,
or delivery does not comply with the requirements of
the registration, and the person knowingly ...
REPRESENTATIVE KELLER understood Mr. Brown to mention earlier
that there was a typo, but he still did not understand.
Representative Keller pointed out that [A] is not a registered
marijuana establishment, and [B] is a registered marijuana
establishment and he gets lost in the difference.
1:28:55 PM
MR. BROWN explained that [(A)], page 29, beginning line 22,
stated the only people allowed to possess more than six plants
or one ounce limit are registered marijuana establishments. He
then read a portion of (A) "if someone is 'not' a registered
marijuana establishment" they may not possess that amount for
any reason. Whereas, if an individual is transporting,
possessing, manufacturing, or delivering any of these amounts,
the individual is breaking the law.
MR. BROWN further explained that [(B)], page 39, beginning line
7, references an individual as a registered marijuana
establishment that is not complying with the requirements of the
registration and are knowingly, personally, possessing above the
established amount. He agreed that the language was cumbersome
and awkward because the state did not have registration
requirements yet, so to suggest an individual is not complying
is a catch-22, at best.
1:30:23 PM
CHAIR LEDOUX conveyed she was still confused with the language
because if an individual is a registered marijuana establishment
who is not complying with the terms of the registration, then
the individual is not a registered marijuana establishment. She
offered the scenario that if a bar has a liquor license and the
ABC board takes away its liquor license because the bar is doing
something wrong, then the bar cannot sell liquor as if it is a
bar.
MR. BROWN advised that this actually takes place before, in said
scenario, "they yank your license. This is the reason they yank
your license."
1:30:59 PM
REPRESENTATIVE MILLETT related that it would be as if a bar did
not have a license but was selling alcohol, or the bar has a
license and is selling liquor but transporting it in the wrong
way.
1:31:31 PM
CHAIR LEDOUX questioned if the bar is transporting it or selling
it in the wrong way ...
REPRESENTATIVE MILLETT stated it is very clumsy the way ... "we
should probably work on this section" because she imagined there
is better language to say it is illegal to transport the
quantity of marijuana being discussed.
1:32:06 PM
CHAIR LEDOUX suggested it is the same crime for the registered
marijuana establishment who is not complying with being an
appropriate registered marijuana establishment, as with an
individual not registered in the first place.
1:32:22 PM
MR. BROWN noted there are legal minds online or in the audience
to assist.
1:32:37 PM
REPRESENTATIVE MILLETT referred to the definitions in [Sec. 54,
AS 17.38.900(16), page 37, lines 27-29, which read:
(16) "deliver" or "delivery" means the actual,
constructive, or attempted transfer from one person to
another of marijuana, whether or not there is an
agency relationship;
CHAIR LEDOUX noted there did not appear to be a definition of
transport on pages 37-38.
1:33:49 PM
NANCY MEADE, General Counsel, Office of the Administrative
Director, Alaska Court System, said the court system is neutral
on this bill, but she may be able to assist in understanding the
provisions. The definition of "transport" means to carry.
Transport is not a defined term a court would look to, as it is
a commonly understood definition, she explained. The definition
of "deliver" is that an individual is about to give a [product]
to another individual at the end of the transport, whether for
sale or as a gift, or otherwise. The Senate bill was drafted
for transport and delivery to be two different concepts.
1:34:57 PM
CHAIR LEDOUX referred to the issues previously discussed on
pages 29-30, beginning line 22. The issue is a registered
marijuana establishment that does not comply with the
requirements of registration.
MS. MEADE reminded the committee to keep in mind these are
criminal laws being passed so the law enforcement officer would
look to which section of law was violated. She offered the
scenario of an unregistered individual being in possession of 40
plants, the officer will cite under (A)(1). She explained that
if the individual is registered and an establishment, such as
The Brown Jug and "messing up" the officer will cite under
(B)(1) because the individual is registered, and not complying.
She opined that Legislative Legal and Research Services opted to
split (A) and (B) into two separate subsections of the same
misdemeanor crime.
1:36:33 PM
CHAIR LEDOUX questioned Hilary Martin why she chose to draft the
language in the manner she drafted the provisions.
HILARY MARTIN, Attorney, Legislative Legal Counsel, Legislative
Legal and Research Services, Legislative Affairs Agency, said
for example, the issue is whether the committee wants to make
possession of 25 or more marijuana plants a crime, the bill
could read that it is a crime. However, under the initiative,
the issue becomes that there are marijuana establishments
authorized to grow marijuana plants. They will likely have more
than 25 plants, so there must be a system that allows for an
individual that is a registered establishment operating within
the bounds of their registration, to have more plants than 25.
The issue then becomes, for example, "a retail store is not
licensed to actually grow plants, and then they are growing
plants. Then you have to ... then they are not complying with
their registration, and so that is a crime." She said the
reason she separated the issues is that there are regular
individuals not registered and committing illegal actions, and
there are registered individuals not complying with the terms of
their registration.
1:38:37 PM
CHAIR LEDOUX asked why on [page 29, lines 26-27], (A)(iii) the
language is "delivers or transports more than one ounce of
usable marijuana ..." Whereas on [page 30, lines 15-16],
(B)(iii) the language only talks about "transporting more than
one ounce of usable marijuana ..."
1:39:54 PM
MS. MARTIN advised she did not have an answer as sections (i)-
(v) are the same, except for [(iii)].
1:40:16 PM
CHAIR LEDOUX offered that it may not be a drafting error as
there may have been an amendment in the Senate and it was not
necessarily caught.
1:40:30 PM
MR. BROWN advised Chair LeDoux that she was correct, as this was
added from the previous version as an amendment and it only
included the section on page 29, and did not include the section
on page 30. The amendment was not complete as it did not
address everything.
1:40:54 PM
REPRESENTATIVE KELLER asked whether the list given on a
registered non-compliant establishment is a comprehensive list.
He then asked the scope of potential violations.
MR. BROWN responded that such a list does not yet exist but will
be addressed in the regulatory bill which was introduced in the
Senate today.
1:42:03 PM
CHAIR LEDOUX quiered whether a violation of a regulation that is
not legislated by the legislature, but is promulgated by the ABC
Board or a possible Marijuana Control Board, can lead to
criminal sanctions as opposed to regulatory licensing problems.
1:42:40 PM
MS. MEADE responded that violations by boards can be put on
Supreme Court "bail schedules." She opined that this bill sets
up two misdemeanors and three violations. The violations are to
be put on bail schedules which are easier to think of as fine
schedules. The legislature tells the Supreme Court to put
certain things that are violations on a schedule so people can
pay their ticket without showing up at court. The court may put
regulations on bail schedules as well, so law enforcement can
enforce the regulations through a ticket or otherwise. She
opined that the executive branch cannot create crimes through
regulations, but there are violations on bail schedules.
1:43:53 PM
CHAIR LEDOUX surmised that penalties can be created by
regulations, but a crime must be created through the legislative
body.
1:44:06 PM
MS. MEADE answered in the affirmative with the understanding
that the Department of Law will correct her if she is wrong.
Violations with only a fine amount are considered minor offenses
and not crimes.
REPRESENTATIVE CLAMAN said he thought there were violations that
were administratively identified, but are incorporated by
reference. For example, he said, a fishing violation does not
list everything in the statute but refers back to regulation and
it would become criminal violations.
1:44:47 PM
MS. MEADE responded that she does not know the answer to that,
but she will investigate.
1:45:19 PM
MR. BROWN pointed the committee to [Sec. 52, AS
17.38.210(a)(1)], page 31, line 15, and said the language added
to the statute is "21 years of age or older ..." In order to
conform with a Senate amendment, he pointed to [AS
17.38210(a)(B)(i) and (ii)], page 31, lines 22-25, and advised
he had received a suggestion to delete phrases, which read:
(i) except when authorized by the terms of
registration issued under this chapter, or
(ii) except when authorized by the terms of
registration issued under this chapter;
He explained that the Senate amendment, [CSSB 30] page 33, line
7, deleted the language "except when authorized by the terms of
registration issued under this chapter."
1:49:09 PM
CHAIR LEDOUX asked what deleting that [phrase] accomplishes.
MS. MEADE answered that eliminating the two "except" clauses in
(B)(i) and (B)(ii) means it would be a "mim 2 misdemeanor." She
used the example of an unregistered adult possessing more than
one ounce of marijuana in public, it gets rid of "except." In
other words, she explained, an individual cannot ever possess
more than one ounce in a public place. The current language
offers that an individual can [possess more] if the terms of
registration allow them to. By eliminating those clauses the
exception is gone, she advised.
1:50:34 PM
CHAIR LEDOUX assessed that when the clause is taken out for
registered establishments, they can't have more than six plants
so there could not be growing operations in the state.
1:50:53 PM
MS. MEADE advised the (B)(i) is just in a public place, whereas
(B)(ii) has the drafting problem Chair LeDoux pointed out and
she cannot speak to the intent of the drafter. She expressed
she does not know why someone would want the "except" clause out
of the bill, and determined that Chair LeDoux is correct in what
the result would be.
1:51:23 PM
CHAIR LEDOUX said to "totally, basically, to gut the
initiative."
MS. MEADE said "to be clear" these are not registered marijuana
establishments so when reviewing AS 17.38.210(a)(1) the
discussion is that an individual "is 21 years of age, or older,
an adult not registered ...." Whereas the discussion in AS
17.38.210(a)(1)(B) is "possesses (ii) more than six marijuana
plants." She opined it does not make sense to say "except when
authorized by registration" because one is already not
registered.
1:51:53 PM
CHAIR LEDOUX surmised that if the committee did this, there
could not be any marijuana establishments with more than six
plants in the state.
1:52:12 PM
MS. MEADE pointed that out (1) is for not registered, and (2)
like the prior "mim 1 misdemeanor," the drafter has separated
out different subsections of the statute to apply to registered
people, and unregistered people. Sub (1) is a not registered
marijuana establishment and an individual will be cited under it
if the individual commits one of these. Sub (2) is a registered
establishment. She summarized that if an individual is not
registered they cannot have more than six plants, and that is
the provision the individual would be cited under, no
exceptions.
REPRESENTATIVE GRUENBERG requested that the committee go through
and flag issues.
CHAIR LEDOUX stated "that is what we are trying to do. We are
not trying to resolve anything right now, we're flagging it,
minimally discussing it, and come back to it when we come back
to it."
1:54:26 PM
MR. BROWN advised there was a suggestion from the Public
Defender's Office regarding [Sec. 52, AS 17.38.210(a)(1)], page
31, beginning line 15, inserting language similar to "is not
knowingly a registered marijuana establishment under this
chapter ..." In that manner, reckless activity could be
targeted and the innocent protected, he said.
REPRESENTATIVE GRUENBERG stated he was not sure if under the
general mental state statute AS 11.81, the action has to be done
knowingly and the result has to be reckless. He mentioned
asking Legislative Legal and Research Services about the
language.
1:58:07 PM
MR. BROWN referred the committee to [Sec. 52, AS 17.38.210],
page 32, lines 2-4, added (a)(3), which read:
(3) is not a registered marijuana establishment under
this chapter or acting in the person's capacity as an
officer, agent, or employee of the marijuana
establishment and knowingly sells any amount of
marijuana.
MR. BROWN turned to [Sec. 52, AS 17.38.230], page 33, line 7,
and stated the language deleted read: "except when authorized by
the terms of registration issued under this chapter." He opined
the clause was deleted due to the prior explanation of Ms.
Meade.
CHAIR LEDOUX surmised that the individual is 21 or older, and
uses any amount of marijuana in a public [place] and questioned
whether that would prohibit marijuana bars, or marijuana clubs,
or any sort of place where marijuana can be bought and used. Is
it the intent of the drafter that those be considered public
places, she asked.
2:00:10 PM
MS. MEADE offered she does not know the intent of the drafter
but there is quite a bit of discussion regarding that issue.
She believes the Senate may still be considering amendments as
to whether a public place would include a marijuana bar or
marijuana social club.
CHAIR LEDOUX asked that if the bill was left in this manner the
committee would be saying there are no clubs, and nothing like
Amsterdam, and so forth.
2:00:58 PM
MS. MEADE, in response to Chair LeDoux, replied that would be
the conclusion ... an individual cannot be over 21 and use
marijuana in public. She explained that if those bars are
considered a public place the individual would be subject to
$100 fine and that is exactly the issue.
2:01:09 PM
REPRESENTATIVE GRUENBERG remarked that the general intent
statute would apply here in that the person would have to
knowingly use marijuana.
2:01:37 PM
CHAIR LEDOUX advised that the bigger issue for this committee to
decide is as a policy issue, whether it is appropriate that
there be marijuana clubs, marijuana establishments, marijuana
bars in which people who enter those establishments can
knowingly or unknowingly consume cannabis.
REPRESENTATIVE GRUENBERG opined that the committee has to deal
with both issues.
2:02:23 PM
MR. BROWN remarked there have been suggestions for changes to
the bill from many departments and requested those in the
audience or on line be allowed to convey their suggestions to
the committee.
2:02:59 PM
REPRESENTATIVE KELLER referred the committee to [Sec. 17, AS
11.71.030(a)(3)(A)(i) and (ii), page 13, lines 4-5, which read:
(i) on or within 500 feet of school rounds; or
(ii) at or within 500 feet of a recreation or youth
center;
REPRESENTATIVE KELLER asked the committee to consider whether
"500 feet" from a school should be amended to read "1,000 feet."
Representative Keller suggested the same language change in
[Sec. 18, AS 11.71.040(a)(4)(i) and (ii)], page 14, lines 17-18,
which read:
(i) on or within 500 feet of school rounds; or
(ii) at or within 500 feet of a recreation or youth
center;
2:03:40 PM
CHAIR LEDOUX suggested that those [provisions] do not apply to
marijuana at all right now as they apply to controlled
substances and marijuana has been removed from the controlled
substances section. "This would totally not be applicable."
She offered that if this is amended to include marijuana, then
if an individual is walking by a school and has marijuana in the
backpack, the individual would be guilty of a crime. She said
she does not believe the state does that with liquor right now.
2:05:24 PM
REPRESENTATIVE FOSTER pointed out that in view of Alaska's small
communities, such as Nome 1,000 feet would probably be about
one-third of the entire town, and it could be an entire village.
He suggested possible language of "in places that have a
population of greater than ..." and maybe 1,000 feet could
apply.
2:05:56 PM
REPRESENTATIVE KELLER stated he wanted to bring it up for
thought and [to mark it].
2:06:09 PM
REPRESENTATIVE MILLETT she assessed that because marijuana
cannot be smoked in public, and alcohol cannot consumed in
public, and since the committee has not decided whether to have
marijuana establishments, at this point, walking past a school
with a six-pack of beer doesn't pose any danger. She suggested
that since marijuana can be sold, maybe the committee should
look at a statute that says it is illegal to sell, distribute
... those types of things, rather than possessing in front of a
school.
2:07:05 PM
REPRESENTATIVE KELLER clarified that this section is
incidentally open solely because the word "marijuana" is being
inserted.
2:07:16 PM
CHAIR LEDOUX advised that the bill removed "marijuana" as it had
read was "you couldn't have any controlled substance within 500
yards of the school," but now marijuana is not a controlled
substance as of yesterday.
2:07:52 PM
REPRESENTATIVE KELLER referred the committee to [Sec. 27, AS
12.30.016(g)(2)], Page 19, lines 21-26, which read:
(2) submit to a search without a warrant of the
person, the person's personal property, the person's
residence, or any vehicle or other property over which
the person has control, for the presence of marijuana,
marijuana products, or marijuana accessories by a
peace officer who has reasonable suspicion that the
person is violating the terms of the person's release
by possessing marijuana, marijuana products, or
marijuana accessories;
REPRESENTATIVE KELLER said this subsection is new and submitting
to a search without a warrant is "serious stuff." He questioned
whether the bill goes too far in searching without a warrant,
and pointed out the issue of forfeiture items.
2:09:07 PM
REPRESENTATIVE CLAMAN related that this [provision] is for
someone on probation and not for the average citizen. He
explained that when an individual is placed on probation the
court is allowed to order, as a condition of probation or parole
that they have to submit to searches.
REPRESENTATIVE KELLER asked whether this is the standard for
anyone on probation whether marijuana is involved or not.
REPRESENTATIVE CLAMAN described the Probation Code as very
standard, and stated it revokes many rights the rest of us are
pleased to hold.
MS. MEADE responded to Representative Keller that it is a bail
condition provision rather than probation condition provision,
but the crux is the same. The judicial officer has these sorts
of options as bail conditions in other drug crimes, or alcohol
related crimes, or other crimes in general.
2:10:30 PM
REPRESENTATIVE GRUENBERG reiterated Ms. Meade's previous
statement and added that the peace officer says they have
reasonable suspicion and anything found in the search is
admissible because it is pursuant to a lawful search. He asked
Ms. Meade whether he was correct in that if anything is found
the individual can be charged with new crimes.
MS. MEADE responded "I believe that to be the case."
REPRESENTATIVE GRUENBERG opined that the impact goes far beyond
revoking the bail, as it could lead to other crimes.
2:11:52 PM
CHAIR LEDOUX asked whether an individual charged with an alcohol
related crime must submit to a search without a warrant to look
for alcohol.
MS. MEADE stated she believes that is a standard bail condition
that the judge may apply in any particular alcohol related, and
in this case marijuana related prosecution.
2:12:20 PM
CHAIR LEDOUX asked with respect to any prosecution of any crime
with bail, whether the individual has to basically give up their
right to not be searched without a warrant.
MS. MEADE answered that it can be one of the choices a judicial
officer has regarding bail conditions.
2:12:44 PM
CHAIR LEDOUX opined that this is not that different from any
other crime. She remarked that she understands Representative
Gruenberg's comment and policy implication, but it is not making
any change just for marijuana. She noted that possibly in
another bill somewhere this could be considered.
MS. MEADE said it is a fair way to characterize that provision.
2:13:16 PM
REPRESENTATIVE CLAMAN noted that Ms. Meade is correct, that this
is the bail statute and further noted there are companion
provisions in the parole statute that he is not suggesting be
amended. He pointed out that he is aware there are companion
provisions in the parole and probation statute that are probably
not Title 12 that give the court and probation officer similar
latitude to order similar searches without a warrant.
2:13:40 PM
REPRESENTATIVE KELLER referred to [Sec. 48, AS 17.38.0709(d)],
page 28, lines 17-22, and stated this provision has to do with a
marijuana testing facility. He then referred to [Sec. 48, AS
17.38.0709(d)(1)], page 28, lines 23-24, which read:
(1) possessing, cultivating, processing, repackaging,
storing, transporting, displaying, transferring, or
delivering marijuana;
REPRESENTATIVE KELLER questioned why a testing facility would be
"cultivating," and why that would be okay.
CHAIR LEDOUX said to mark that [provision] and asked if this
[language] is in the initiative itself.
MS. MEADE responded in the affirmative and suggested someone on
line could be more knowledgeable.
CHAIR LEDOUX reiterated to mark the provision as there was no
one on line to assist.
2:15:20 PM
REPRESENTATIVE KELLER referred to [Sec. 48, AS
17.38.0709(d)(2)], page 28, lines 25-27, which read:
(2) receiving marijuana or marijuana products from a
registered marijuana cultivation facility, a
registered marijuana retail store, a registered
marijuana products manufacturer, or a person 21 years
of age or older; and
REPRESENTATIVE KELLER questioned why the language reads "or a
person 21 years or older."
2:16:37 PM
MR. BROWN advised that Representative Keller is reading the
language correctly as "registered marijuana cultivation
facility, a registered marijuana retail store, a registered
marijuana products manufacturer" can all go to a testing
facility to have their products testing, as can anyone 21 or
older.
REPRESENTATIVE KELLER opined that it seems strange to make a law
of what is legal.
CHAIR LEDOUX remarked that is one of the interesting
characteristics of the initiative process in that the bill is
saying what is legal. Generally, she noted, criminal law says
what is not legal, but the committee is trying to live up to the
terms of the initiative and this is what the initiative said.
2:18:04 PM
REPRESENTATIVE KELLER referred to [Sec. 48, AS 17.38.0709(b)],
page 27, lines 9-14, which read:
(b) The [NOTWITHSTANDING ANY OTHER PROVISION OF LAW,
THE] following acts, when performed by a marijuana
cultivation facility with a current, valid
registration, or a person 21 years of age or older who
is acting in the person's capacity as an owner,
employee, or agent of a marijuana cultivation
facility, are lawful and are not offenses [SHALL NOT
BE AN OFFENSE] under Alaska law or bases [BE A BASIS]
for seizure or forfeiture of assets under Alaska law:
REPRESENTATIVE KELLER pointed out it discusses a registered
marijuana cultivation facility. He noted there is nothing in
this section discussing minor children and he questioned what a
cultivation facility look like, would it be a home, should there
be a comment about minors and how they would fit into the
licensed facility.
CHAIR LEDOUX related that is an interesting point and is duly
noted.
2:18:59 PM
CHAIR LEDOUX questioned Cynthia Franklin, Alaska Alcohol Control
Board (ABC Board) Director, about a statement in the [2/24/15]
Alaska Dispatch wherein Ms. Franklin had addressed a question
regarding the issue of more than one individual living in the
home. Chair LeDoux posed a scenario of four people living in a
home, and asked whether each person can have their own ounce of
marijuana and their own six plants. Ms. Franklin responded "No"
because she interpreted the law to mean one home equals only one
ounce of marijuana, and Chair LeDoux asked whether Ms. Franklin
was misquoted, or if she was misunderstood.
2:20:13 PM
CYNTHIA FRANKLIN, Director, Alaska Alcohol Beverage Control
Board, stated she was misquoted in the sense of one ounce in the
home. The initiative discusses possession of one ounce or less
of marijuana by an adult over 21. Ravin v. State of Alaska, 537
P.2d 494 (Alaska 1975), and Noy v. State of Alaska, 83 P.3d 538
(2003), discuss a small amount of marijuana in their home being
defined as up to four ounces. She pointed out that the question
was original placed on the Alcoholic Beverage Control Board (ABC
Board) web site as part of the six plants question. She offered
that if an individual is allowed to grow six plants in their
home, does that mean that four adults over the age of 21 living
in the home could grow 24 plants. She explained the reason the
ABC Board said "No" is due to court decisions that interpret and
define the term possession as it relates to possessing a
controlled substance. She opined that there have been several
cases over the years where more than one individual is caught
with a controlled substance. She further opined there is a lot
of case law on this subject and ideas such as "joint possession"
and "constructive possession" have been defined and interpreted
by courts. Essentially, she said, both when it comes to a
controlled substance and to other types of property that
individuals might be found in possession of ... in the case
[Nelson v. State of Alaska, 628 P.2d 884 (Alaska 1981] where the
Supreme Court discusses the concept of burgled goods, for
instance. She opined that case stands for the proposition that,
if an individual has burgled goods in a home and you are an
adult in the home, then you have constructively possessed those
goods. She offered the scenario of living in a house with her
husband and she possesses six plants, he also possesses those
same six plants as they both have equal control over the plants
which means over the area in which the plants are grown. When
speaking of a regular household where everyone has access to all
of the rooms, it is the ABC Board's opinion, based on case law,
that everyone in the house possesses the plants that are grown
in the house, she explained. She acknowledged that there are
various scenarios wherein an individual has four roommates who
were growing in their rooms and each of their rooms were locked
off from the other rooms. She opined there can always be a
scenario where it can be argued. But, the ABC Board's general
message has been that these are personal use plants and once the
number gets up into a 24 plant category, "why do you need that
many plants." This is actually talking about growing for other
than personal use, she remarked.
2:23:27 PM
MS. FRANKLIN continued that the [initiative] does allow an
individual to possess the harvest of six plants without any type
limitations on how many ounces that is. The short answer is
"Yes," the ABC Board interprets Alaska case law, and the term
possess as it has been applied in both controlled substances and
burgled or stolen goods cases, to mean that if an individual has
equal access or control to the area where the plants are being
grown, that individual jointly possess those plants with any
other adult who has equal access and control. She opined it
would be clearer, without requiring people to interpret case
law, to put a household limit on plants grown. In Colorado, at
the state level, there is a 12 plant limit and the City of
Boulder established a six plant per household limit. In that
manner, she suggested, the committee is just left with the
question of what constitutes a household. In general, she
remarked, the ABC Board has the impression that most people who
ask this question are trying to find a way to take personal grow
and make it into a quasi-commercial grow where they can make
money off of it. As opposed to truly being the type of personal
use, private marijuana grow of six plants that originated with
the Supreme Court decisions in Ravin and Noy, and then work
(indisc) in AS 17.38.
2:25:19 PM
CHAIR LEDOUX remarked it was obvious this would be a policy
decision of the House Judiciary Standing Committee. She stated
she has always read six plants to mean an individuals can have
six plants. In the event the committee disagrees with Ms.
Franklin's interpretation, it must specifically put into law
exactly what is meant by six plants per individual or household,
she expressed.
2:26:13 PM
REPRESENTATIVE CLAMAN commented that he generally concurs with
Chair LeDoux's observations about six plants, especially under
Ravin and the right to privacy. He opined that Alaska court
would analyze that as an open question and he believes there are
many situations of people sharing a house and they each have
plants in their own bedroom. By the same token they could elect
to work together to grow their own individual plants in the
basement, he further opined. He noted that the argument they
all get accumulated when each individual has the right to
possession is a complicated and thorny issue. He hesitated to
opine on what the Supreme Court, if given the opportunity, would
offer on that.
2:27:18 PM
CHAIR LEDOUX expressed that the goal of the committee is to take
the opportunity away from the Supreme Court and away from the
judiciary, as it is the committee's job to be clear enough that
both the law enforcement community and the public knows what a
crime is.
2:27:42 PM
REPRESENTATIVE KELLER questioned Ms. Franklin regarding what
constitutes an ounce. He noted that the definition of
marijuana, [Sec. 53, AS 17.38.900(6)], page 37, [lines 17-24],
which reads:
(6) "marijuana" means all parts of the plant
of the genus cannabis whether growing or not, the
seeds thereof, the resin extracted from any part
of the plant, and every compound, manufacturer,
[SALT,] [sic] derivative, mixture, or preparation
of the plant, its seeds, or its resin, including
marijuana concentrate; "marijuana" does not
include fiber produced from the stalks, oil, or
cake made from the seeds of the plant, sterilized
seed of the plant that [WHICH] is incapable of
germination, or the weight of any other
ingredient combined with marijuana to prepare
topical or oral administrations, food, drink, or
other products;
REPRESENTATIVE KELLER asked what constitutes an ounce and
whether there is a way the committee can tie the potency level
to the ounce so there some sort of connect.
2:28:53 PM
MS. FRANKLIN responded that the ABC Board has struggled with
this question in that "how do you make an ounce not an ounce
when it comes to certain types of marijuana products." She
opined there is not a way to regulate the THC content of
marijuana. She said they asked their counterparts in Colorado
and Oregon those questions and the problem is that unlike
alcohol where the manufacturer controls the strength of the
product, the THC content of any given crop of marijuana plant is
controlled somewhat by nature. There has been testimony that
marijuana plants being cultivated today, generally speaking,
have a higher THC content than previous generations of marijuana
plants as some growers and cultivators are working to increase
the THC content. When the solvent processes are used, CO2
process, or simply simmering the marijuana plant in butter or
oil, there is a higher THC content. She explained that the ABC
Board cannot determine how to regulate by THC content without
creating a regulatory nightmare for themselves. She explained
that the fact the voters have defined marijuana as including
concentrates would foreclose the opportunity to make an ounce of
concentrate not an ounce. "An ounce is an ounce," she said, and
opined that the way to deal with concentrates in a regulated
environment is to focus on the serving sizes. Although that
suggestion is outside the scope of [CSHB 79], the concentrates
are used to make edibles, the concentrates are combined with
other products to make edibles, or the concentrates are sold in
a concentrated form. But, in terms of attempting to control the
peoples' use of this product, and how much they have at any
given time by redefining or using a different measuring system
for the concentrates is going down a road that would make it
difficult to get consistent regulations.
2:32:03 PM
MS. FRANKLIN said that the other states have not done that and
believes issues around concentrates can be carefully evolved in
a manner that has a lot of limits already set in place by virtue
of regulating the products that are sold. "It's a long way of
saying I don't know of a way that we can make an ounce, not an
ounce without violating the intent of the initiative," she
remarked. She suggested the committee keep in mind that very
little concentrate is used in edible product. She advised they
asked a Colorado retail marijuana establishment how many edible
products they would have to buy to get to the one ounce resident
limit in that store, and was told "95." There is a practical
limit on how many of these products a person can physically eat
at one time. In other words, she explained, even though they
may be buying an ounce of concentrate when in the edible form,
there are other fill ingredients. She said she is optimistic
about concentrates, and the committee could honor the voters'
intent that an ounce of marijuana be allowed, which would
include an ounce of concentrate. By regulating the form in
which these products are marketed, and educating the public
about what they are, the state can avoid some of the less
desirable consequences that states like Colorado have seen.
2:34:27 PM
REPRESENTATIVE KELLER opined that the committee cannot back off
on this because if the committee decides a tax, and bases it on
a per ounce system, in essence the committee is perversely
incentivizing the oils and the concentrates if there is less
cost. He expressed it has to be tied somehow to the THC
percentage.
2:35:08 PM
MS. FRANKLIN responded that the tax is imposed at the grower
level so the state would only be taxing the plant and never the
concentrate. She explained the $50 an ounce state tax is at the
grow level, and the marijuana then travels to the processors
which is the stage that the concentrates are made. She opined
that by that time the marijuana all would have been taxed
equally. She acknowledged that is her understanding from
reading the initiative.
2:36:48 PM
REPRESENTATIVE GRUENBERG questioned Kaci Schroeder, Alaska
Department of Law, whether her answers differ legally from any
of the answers the committee has received today. He asked that
she review the tape and forward a memo to the committee with her
response. He said there may be several lawyers testifying on
the bill and he would like to see what they agree on and do not
agree on.
2:37:37 PM
KACI SCHROEDER, Assistant Attorney General, Criminal Division,
Alaska Department of Law, said she would be happy to review the
hearing today.
2:38:24 PM
REPRESENTATIVE MILLETT referred to the earlier discussion of
five grams of hash oil equivalency to one ounce of marijuana,
and asked whether the Department of Law has a position on
whether the amount of hash oil or marijuana oil should be
limited in the legislation. Obviously, she remarked, an ounce
of hash oil is not equivalent to an ounce of marijuana.
2:39:06 PM
MS. SCHROEDER responded that the Department of Law does not have
an official position, and she agrees with Representative
Millett's statement that they are more concentrated. However,
she pointed out that the initiative reads one ounce, and it is
within the committee's purview to limit that should it choose.
2:39:24 PM
CHAIR LEDOUX surmised that hash oil is a concentrate and heard
"Ms. Franklin say a couple of minutes ago that an ounce is an
ounce, is an ounce." Subsequently, she heard Ms. Schroeder say
that hash oil is a concentrate but [CSHB 79 Version S] discusses
five grams. She then referred to a new section, Sec. 50, [AS
17.38.090(c)] page 29, lines 7-8, which read:
(c) the board shall adopt a regulation that prohibits
a retail marijuana store from selling more than five
grams of marijuana concentrate a day to a customer.
2:40:19 PM
MS. SCHROEDER responded that it says "marijuana concentrate,"
which is a sub part of marijuana, if you look at the definition.
She said the definition of marijuana arguably does include
concentrate and described marijuana as the [umbrella] and the
concentrate as the sub part.
2:40:38 PM
CHAIR LEDOUX said she is trying to determine whether saying five
grams of marijuana concentrate, as opposed to one ounce of
marijuana be it concentrated or not concentrated, contravenes
the initiative.
2:41:04 PM
MS. SCHROEDER responded "potentially." She reiterated it is
within the legislature's purview to amend the initiative, should
they choose to do so.
2:41:20 PM
CHAIR LEDOUX questioned "so we choose not to abide by the will
of the people."
2:41:25 PM
REPRESENTATIVE MILLETT opined that is a loaded question because
she is not sure that when people voted on the initiative, they
understood the difference between marijuana concentrate and
marijuana leaves. The issue of going against the will of the
people, she expressed, is for each legislator to understand and
decide policy based on "our" interpretation of the initiative,
what it meant, and what is known now.
2:42:34 PM
REPRESENTATIVE GRUENBERG noted that a court would attempt to
find an answer to the question by looking at the history of the
initiative.
2:42:57 PM
REPRESENTATIVE MILLETT replied "only if it was challenged."
2:43:01 PM
REPRESENTATIVE GRUENBERG maintained that Representative Millett
was asking a legal question, therefore the legal answer is how a
court would likely look at it. He asked Ms. Schroeder if she
knew whether the answer was in the legislative history. He
questioned whether the sponsors of the initiative or official
documents refer to the phrase "five grams" and whether it was
defined as concentrate, or defined as a leaf, or undefined.
2:44:21 PM
MS. SCHROEDER said she does not believe there was a lot of
discussion regarding concentrates but Major Dennis Casanovas,
Department of Public Safety (DPS) attended many of the hearings
and may have a better recollection of the legislative history
and what actually occurred at the hearings.
2:44:50 PM
DENNIS CASANOVAS, Major, Deputy Director, Division of Alaska
State Troopers, Department of Public Safety, said he did listen
to all of the public hearings and stood by for questions. There
was testimony and comments about concentrates probably at each
of the public hearings and the sponsors of the [initiative]
primarily described the ballot measure and that the definition
of marijuana in essence included concentrates, much like the
definition in [CSHB 79].
2:45:51 PM
CHAIR LEDOUX submitted that page 29, lines 7-8, discusses
limiting sale to five grams of marijuana concentrate per day per
customer.
2:46:21 PM
MAJOR CASANOVAS responded that Chair LeDoux is correct. He said
he was referring to Sec. 53, AS 17.38.900(6), page 37, lines 17-
24, where the definition of marijuana in this legislation is
very similar to what was on the ballot measure. He observed
there is a subtle difference as the bill elects to remove the
word "salt" from what is considered marijuana. He pointed out
that the word "oil" appears on line 21 as something that is not
defined as marijuana. The ballot initiative as well as CSHB 79
still has vagueness the committee may want to take into
consideration to refine the definitions. He stated he does not
believe the ballot initiative or any of the testimony spoke
specifically to the five grams referred to. He informed the
committee there are approximately 28.35 grams in an ounce.
Therefore, if a person were to be restricted to only purchase
five grams per store, a person would have to go to five stores
to receive approximately one ounce.
2:48:34 PM
REPRESENTATIVE MILLETT questioned what 28.35 grams of
concentrate equals how many ounces of leaf marijuana.
2:49:02 PM
MAJOR CASANOVAS responded that a concern of law enforcement is
the definition of an ounce as it does not appear that the
initiative or CSHB 79 defines whether or not it is the weight of
an ounce, or a fluid ounce. He explained, that if the
interpretation is only the weight of an ounce, the viscosity of
honey oil, or hash oil, those sort of concentrates, in bulk
might only be about the size of half of a tangerine, depending
on the viscosity of the concentrate itself.
2:50:06 PM
REPRESENTATIVE LYNN requested that someone bring in samples of
an ounce of liquid or bulk, but not the actual product, to
demonstrate what it looks like. He questioned whether law
enforcement takes a scale with them, or a volume amount of some
kind to measure.
2:51:19 PM
CHAIR LEDOUX replied that she thought liquids were weighed by a
fluid ounce versus non-liquid by dry ounces. When talking about
hash oil would it be by fluid ounces.
2:51:44 PM
REPRESENTATIVE MILLETT asked Ms. Schroeder how the Department of
Law (DOL) is measuring an ounce of marijuana, by the fluid ounce
or the weight.
2:51:59 PM
MS. SCHROEDER responded that DOL would defer to law enforcement
on that issue. Ms. Schroeder clarified that earlier in her
testimony when she said "the initiative says one ounce," she
meant in reference to possession not in reference to scale.
2:52:22 PM
CHAIR LEDOUX opined that the committee had better clarify that
in the bill. She then said Major Casanovas, on page 37, line
21, mentioned that oil was not included in the definition of
marijuana. She advised that she reads the provision as
"marijuana does include fiber produced from the stalks, oil, or
cake made from the seeds of the plant, sterilized seed of the
plant which is incapable of germination..." She opined
marijuana does include oil, but not oil from the seed which is
not capable of germination.
2:53:32 PM
MS. SCHROEDER opined that was probably the intent, however, from
a grammatical standpoint oil is isolated by commas and therefore
is read as an isolated substance. She suggested a way to clear
it up is to delete the comma after oil ", oil or cake made from
the seeds ..." so it would be the one item. She noted that DOL
agrees with Major Casanovas in that there must be further
clarity in the definition.
2:54:12 PM
CHAIR LEDOUX said to mark it and the committee would deal with
the grammar [later].
2:54:26 PM
REPRESENTATIVE GRUENBERG agreed with Representative Lynn in that
he would like a demonstration. He pointed out how important a
comma can be in legislation as it can change the meaning of a
phrase.
2:55:28 PM
REPRESENTATIVE CLAMAN said he is not certain how the weight
question is applied in Alaska law, but federal law does not get
involved in fluid ounces and is concerned about grams.
2:56:09 PM
REPRESENTATIVE MILLETT questioned if the federal government
would recognize Alaska's legislation on marijuana when it comes
to ounces.
2:56:20 PM
REPRESENTATIVE CLAMAN said "it is always comforting to know he
does not speak on behalf of the federal government."
2:56:23 PM
REPRESENTATIVE MILLETT added that the federal government does
not recognize marijuana as legal.
2:56:26 PM
REPRESENTATIVE GRUENBERG opined it may be helpful in some of the
issues to review federal law.
2:56:44 PM
CHAIR LEDOUX directed that someone from the Department of
Community and Regional Affairs be available at the next meeting
in order that the committee can review local options. Chair
LeDoux expressed she is not sure that local options should be in
the marijuana crime bill. She expressed concern that the
committee may not be perceiving ramifications regarding Tribal
government versus local governments.
2:58:04 PM
REPRESENTATIVE GRUENBERG said with respect to the Alaskan Native
villages and Alaska law he would like a witness available to
discuss the interplay.
2:58:35 PM
CHAIR LEDOUX agreed with Representative Gruenberg's request,
although, she stated, she was not certain the committee will
necessarily want to have that provision one way or the other in
this bill.
[HB 79 was held over.]
2:58:54 PM
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB79 Summary of Changes ver P to ver G.pdf |
HJUD 2/25/2015 1:00:00 PM |
HB 79 |
| HB79 Draft Proposed CS ver S.pdf |
HJUD 2/25/2015 1:00:00 PM |
HB 79 |
| HB79 Sectional Analysis Version S.pdf |
HJUD 2/25/2015 1:00:00 PM |
HB 79 |