Legislature(1999 - 2000)
02/04/2000 01:38 PM House FIN
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HOUSE BILL NO. 180
"An Act relating to the possession, manufacture, use,
display, or delivery of controlled substances while
children are present."
Co-Chair Therriault provided members with a proposed
committee substitute, work draft 1-LS0188\K, dated 2/3/00
(copy on file).
Representative J. Davies MOVED to ADOPT the proposed
committee substitute, work draft 1-LS0188\K, dated 2/3/00.
There being NO OBJECTION, it was so ordered.
Mr. Tibbles noted the committee substitute addresses
concerns that were expressed, at the Committee's 2/01/00
hearing, that there were inconsistencies between provisions
that apply to parents and those that apply to an adult.
Standards of proof and the level of difficulty to prove were
not uniform. There was also some duplication. Sections 1, 2
and 3 were deleted. These applied to parents with a minor.
Verbs such as allowing, aiding, and inducing have been
picked up and moved into the provisions that now apply to
all adults. The new standard is set at the higher standard
of "knowing", which applied to parents. The penalty of a
class A misdemeanor was retained.
Co-Chair Mulder asked how difficult a standard is "knowing".
ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES
SECTION, CRIMINAL DIVISION, DEPARTMENT OF LAW explained that
"knowing" is the standard culpable mental state that is
presumed on a criminal statute that doesn't have a culpable
mental state.
Co-Chair Mulder concluded that there is a distinction
between the implication of knowing. Ignorance of the law
can't be claimed because there is an implication that they
law should be known.
Ms. Carpeneti observed that culpable mental states apply to
what you do and what you intend. "Knowing" is being aware of
facts surrounding what is happening and knowing that the
result is likely of the behavior.
Representative Grussendorf referred to page 1, line 11. Ms.
Carpeneti clarified that the statute refers to emancipated
youths.
Representative J. Davies referred to the use of "unlawful"
on page 2, line 1. He questioned if this is an additional
burden. Ms. Carpeneti gave examples of "knowing". She
clarified that it would have to be proved that an individual
knowingly takes a minor where an unlawful possession occurs.
Representative J. Davies questioned if a person could plead
that they did not know it was against the law.
Co-Chair Therriault concluded that the second use of
"unlawful" was not necessary.
Representative J. Davies MOVED to Delete "unlawful" on page
2, line 1.
Co-Chair Mulder noted that it is not the intention to allow
another point for defense.
Ms. Carpeneti agreed with the deletion.
There being NO OBJECTION, "unlawful" was deleted on page
2,line 1.
Vice Chair Bunde asked for more information regarding the
indeterminate fiscal note from the Department of
Corrections.
CANDACE BROWER, LEGISLATIVE LIASON, DEPARTMENT OF
CORRECTIONS provided information on the fiscal note. She
emphasized that it is difficult to quantify the ultimate
outcome in regards to incarceration. The department suspects
that there will be a fiscal cost.
Vice Chair Bunde questioned if the legislation would be
considered an aggravator in sentencing.
Ms. Carpeneti explained that it would be a new offence. The
legislation includes possession, manufacture, use, display,
or delivery. There were four - six of these cases prosecuted
in Anchorage in the last year.
Co-Chair Mulder questioned how wide a net the legislation
would cast. Ms. Carpeneti responded that the legislation may
be broadened by the addition of "possession."
Ms. Carpeneti explained that a person would have to have
knowledge that something is happening. Co-Chair Therriault
concluded that if an individual encounters a situation, with
a minor, where there are controlled substances and
immediately removed the minor from the situation that they
would have an allowable defense. Ms. Carpeneti observed that
if the person were unaware of the activity before they
entered that they would not have a culpable state of mind.
They would not have encouraged a child to enter into a
situation where an illegal activity is occurring. "Allowing"
applies some sort of knowledge, as does to "aid, encourage
or induce" a person. She emphasized that the intent is not
to prosecute a person who innocently walks into a party
where an illegal activity is occurring.
Representative J. Davies observed that "immediate physical
presence" is the operative phrase. He asked the significance
of "immediate physical presence".
Ms. Carpeneti interpreted that the phase "immediate physical
presence" to imply that there is no barrier between the
child and the activity. The activity could take place on a
lawn or park bench. Immediate physical presence has been
interpreted in case law to allow a visible connection. It is
not defined in statute.
Co-Chair Therriault questioned if a judge would instruct a
jury on the meaning of the phase. Ms. Carpeneti noted that
it would depend on the case, but that a prosecutor may want
the jury to be instructed.
Vice Chair Bunde questioned the application of the law if
the initiative to legalize marijuana were enacted. Ms.
Carpeneti noted that prosecution could still occur under
federal law, but that the state would probably not prosecute
under this statute if it were not illegal under state law.
BLAIR MCCUNE, PUBLIC DEFENDER'S OFFICE pointed out that
there are a lot of controlled substances in drug stores. He
expressed concern that the removal of "unlawful" could
broaden the legislation to a level where it could apply to a
situation such as a drug store.
Co-Chair Therriault pointed out that "unlawful" was not
removed from its first reference in the sentence.
REPRESENTATIVE JOHN COWDERY, SPONSOR spoke in support of the
legislation. He acknowledged that the law already exists in
a broad sense, but emphasized that his intent is to keep the
law as tight as possible.
Co-Chair Therriault felt that the committee substitute
struck a balance and helped clarify the legislation. He
concluded that the net is still cast broadly.
Representative Foster MOVED to report CSHB 180 (FIN) out of
Committee with the accompanying fiscal note. Representative
G. Davis OBJECTED. He noted that every additional crime adds
expenses to the Department of Corrections, Alaska Court
System and Department of Law, at the same time that their
budgets are being reduced.
Representative Grussendorf expressed concern that the
legislation goes too far.
A roll call vote was taken on the motion.
IN FAVOR: Austerman, Bunde, Davies, Foster, Grussendorf,
Phillips, Therriault, Mulder
OPPOSED: Davis, Moses
The MOTION PASSED (8-2).
CSHB 180 (FIN) was REPORTED out of Committee with a "do not
pass" recommendation and a new fiscal impact note by the
Department of Administration, a new zero fiscal note by the
Alaska Court System, and two new indeterminate fiscal notes,
one by the Department of Corrections and one by the
Department of Law.
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