Legislature(2011 - 2012)HOUSE FINANCE 519

02/24/2011 01:30 PM FINANCE

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved CSHB 7(JUD) Out of Committee
Moved Out of Committee
<Bill Held Over from 2/22/11>
HOUSE BILL NO. 7                                                                                                              
     "An Act classifying certain synthetic cannabinoids as                                                                      
     schedule IIA controlled substances; and providing for                                                                      
     an effective date."                                                                                                        
1:41:11 PM                                                                                                                    
JAMES  ARMSTRONG, STAFF,  CO-CHAIR  BILL STOLTZE,  explained                                                                    
that the  fiscal notes  adopted out  of the  House Judiciary                                                                    
Committee had  not been  updated. He  stated that  the three                                                                    
fiscal  notes from  the Departments  of Corrections,  Public                                                                    
Safety, and Law were in order.  He noted that there could be                                                                    
future supplemental  or incremental  requests for  some that                                                                    
were indeterminate.                                                                                                             
Co-Chair Stoltze  believed there  could be  consequences and                                                                    
costs when something  was made illegal. He  noted there were                                                                    
still questions about the accuracy of the fiscal notes.                                                                         
Vice-chair Fairclough  requested more information  about the                                                                    
Department of  Corrections (DOC)  fiscal note. She  wanted a                                                                    
quantifiable range of potential  costs, and wondered whether                                                                    
other  fiscal  notes coming  from  the  department would  be                                                                    
LESLIE   HOUSTON,  DIRECTOR,   DIVISION  OF   ADMINISTRATIVE                                                                    
SERVICES,  DEPARTMENT OF  CORRECTIONS, responded  that there                                                                    
would  not be  across-the-board  indeterminate fiscal  notes                                                                    
from DOC. She  detailed that there had to be  a certain type                                                                    
of  data based  on  past convictions  in  order to  quantify                                                                    
incarceration  costs.  There  was  no  data  available;  DOC                                                                    
usually looked to the Department of  Law (DOL) for a base to                                                                    
draw from. Since there were  no numbers, DOC made the fiscal                                                                    
note  indeterminate,  knowing   that  one  conviction  would                                                                    
indicate an impact.                                                                                                             
1:44:55 PM                                                                                                                    
Vice-chair  Fairclough  asked   whether  DOC  could  provide                                                                    
numbers based on  the current population in  jail because of                                                                    
drug convictions. Ms. Houston replied  that DOC did not look                                                                    
at all  the drug  convictions, but  were trying  to consider                                                                    
drug convictions  in the same  class as the schedule  on the                                                                    
legislation  and   anything  that  could  be   considered  a                                                                    
parallel.  There  was  no  correlation  for  the  particular                                                                    
schedule III cannabinoid.                                                                                                       
Co-Chair Stoltze queried  the population incarcerated solely                                                                    
for drug  convictions, not convictions connected  with other                                                                    
charges such as  armed robbery. He did not  think there were                                                                    
many  people incarcerated  for  drug  possession alone.  Ms.                                                                    
Houston responded that someone  could be arrested for felony                                                                    
drunk driving with possession.                                                                                                  
Co-Chair  Stoltze wanted  the  numbers  for drug  possession                                                                    
alone. Ms. Houston replied that  the data could be obtained.                                                                    
She noted that  there was had been a delay  in releasing the                                                                    
2010 offender  profile, which would break  the numbers down;                                                                    
she told the committee the  profile would be released within                                                                    
in the next month.                                                                                                              
Vice-chair Fairclough wanted the  department's best guess at                                                                    
the cost  or possible  range of  costs for  the legislation.                                                                    
Once  it was  known how  many drug  offenders the  state had                                                                    
incarcerated, she thought the  next question would relate to                                                                    
the average length of incarceration  for the drug offenders,                                                                    
which could  provide some numbers.  She queried  the average                                                                    
length of incarceration. Ms. Houston  offered to look at the                                                                    
data  more  broadly;  the   department  had  considered  the                                                                    
information more specifically.                                                                                                  
Representative Joule wondered whether  there was a mechanism                                                                    
to  reference  a particular  offense  back  to a  particular                                                                    
piece  of   legislation  so  that  specific   costs  of  the                                                                    
legislation  could be  determined.  He pointed  out that  an                                                                    
indeterminate  note put  the  detail of  the  costs off  for                                                                    
awhile,  but  he  noted  that  he  often  did  not  see  the                                                                    
reference back to the original fiscal note.                                                                                     
1:48:32 PM                                                                                                                    
Ms. Houston responded  that once there was  a conviction and                                                                    
someone  was sentenced,  the department  did have  a way  to                                                                    
measure the costs. The data would  be put into a fiscal note                                                                    
at  that time.  She  provided  the example  of  SB 222  (the                                                                    
sexual  assault   and  domestic  violence   initiative  that                                                                    
addressed unregistered sex offenders);  DOC had come back in                                                                    
the  current  year with  the  specific  data resulting  from                                                                    
convictions since July because of the legislation.                                                                              
Representative Guttenberg referred to  a discussion with the                                                                    
commissioner of  DOC, whom  he had asked  for the  number of                                                                    
people  in corrections  institutions who  were there  solely                                                                    
because of  marijuana possession or trafficking.  He pointed                                                                    
out that he had not gotten the numbers.                                                                                         
Co-Chair   Stoltze  added   that  he   had  asked   for  the                                                                    
information repeatedly  and had not received  it either. Ms.                                                                    
Houston agreed that the question had been asked.                                                                                
Co-Chair  Stoltze strongly  stated concerns  about questions                                                                    
that  had  not  been  answered by  the  department.  He  had                                                                    
concerns about  what was not  being said. He stated  that he                                                                    
would  ask   repeatedly.  Ms.  Houston  answered   that  she                                                                    
Representative Wilson asked how  the cities of Fairbanks and                                                                    
Anchorage would handle the costs of testing.                                                                                    
SUE  STANCLIFF, LEGISLATIVE  LIAISON,  DEPARTMENT OF  PUBLIC                                                                    
SAFETY, replied  that the  state crime  lab did  the testing                                                                    
for  all  the cities.  The  crime  lab's responsibility  was                                                                    
state-wide; the cost was not charged back to the cities.                                                                        
Co-Chair  Stoltze surmised  that  the fiscal  impact of  the                                                                    
local ordinance was not brought  before the committee in the                                                                    
1:51:46 PM                                                                                                                    
Representative Doogan  thought only one case  related to the                                                                    
legislation  had gone  through the  crime lab  to date,  and                                                                    
that  there was  no prediction  about how  many cases  there                                                                    
would be once the substance  was made illegal. He thought it                                                                    
was fair  to guess  that there would  be fewer  people using                                                                    
the  substance rather  than  more once  it  was illegal.  He                                                                    
wanted to know why the  department thought there should be a                                                                    
new and  separate employee position  created to  enforce the                                                                    
specific  law. Ms.  Stancliff responded  that the  crime lab                                                                    
would receive the substance to  be analyzed before the issue                                                                    
went to DOC  or DOL. She stressed that the  key to synthetic                                                                    
drugs  was analysis  to determine  what they  were and  what                                                                    
they were  not. The  commissioner had told  her that  it was                                                                    
important to  have adequate staffing  at the  lab. Currently                                                                    
there  was  only  enough  resource  to  adequately  maintain                                                                    
current  levels  of  response.  She  noted  that  additional                                                                    
positions  were included  in the  10-year plan  for the  new                                                                    
crime lab, but  the new lab would not open  for another year                                                                    
and  a half.  House Bill  7 would  take effect  immediately,                                                                    
which the department anticipated  would impact the crime lab                                                                    
while the substance was still on the street.                                                                                    
ORIN  DYM, FORENSIC  LABORATORY MANAGER,  ALASKA CRIME  LAB,                                                                    
DEPARTMENT  OF  PUBLIC  SAFETY (via  teleconference),  added                                                                    
that the crime  lab had not seen any of  the material, since                                                                    
it was currently but not  illegal. Once the substance became                                                                    
controlled,  scientific   analysis  was  the  only   way  to                                                                    
determine  if  any  suspect  plant  material  had  the  drug                                                                    
present. He  stated that there  were no field tests  for the                                                                    
substance and  no officer recognition protocol,  which there                                                                    
was  with  marijuana. He  expected  that  any suspect  plant                                                                    
material would come to the  crime lab first to determine the                                                                    
presence of the drug.                                                                                                           
Representative Doogan wanted to make  sure that DOC was able                                                                    
to produce  evidence in  future years  that the  request for                                                                    
the position  was necessary.  He stated  that he  would deny                                                                    
the increment as  there was no evidence to  support the idea                                                                    
that it would  be necessary. He was willing to  make a "leap                                                                    
of  faith"  if necessary,  but  he  wanted evidence  in  the                                                                    
Vice-chair  Fairclough  stated  that she  was  contemplating                                                                    
asking  for a  zero  fiscal note.  She  asked whether  there                                                                    
would   be  training   for  law   enforcement  officers   to                                                                    
prioritizing  testing.  Ms.  Stancliff  replied  that  there                                                                    
would  be  training  for  the  Alaska  State  Troopers;  she                                                                    
believed the  training would also  be shared  with municipal                                                                    
Vice-chair  Fairclough queried  the criteria  established so                                                                    
that officers would know when to request testing.                                                                               
LT.  RODNEY  DIAL,  ALASKA  STATE  TROOPERS,  DEPARTMENT  OF                                                                    
PUBLIC SAFETY  (via teleconference), responded that  any new                                                                    
regulation  or law  was immediately  followed by  a training                                                                    
bulletin  and   then  in-service  training.   Officers  were                                                                    
trained at  the academy to  forward any substance  that they                                                                    
suspected was illegal to the  crime lab for actual analysis;                                                                    
the practice would be continued for the new substance.                                                                          
1:59:48 PM                                                                                                                    
Vice-chair Fairclough  explained that she was  familiar with                                                                    
the processing and  costs of the rape kit, but  not with the                                                                    
process  of  drug  analysis. She  asked  whether  everything                                                                    
brought  forward  was tested  or  whether  the officers  set                                                                    
priorities  concerning what  should  be  analyzed. Lt.  Dial                                                                    
responded that the issue would  be decided on a case-by-case                                                                    
basis.  He  opined that  procedures  would  be developed  in                                                                    
consultation with  DOL if there  were ways to  recognize the                                                                    
substance  without analyzing  it  and the  offense was  low-                                                                    
level. However,  for something more serious,  such as injury                                                                    
resulting  in  death because  an  individual  was under  the                                                                    
influence, the  substance would  be sent  to the  crime lab.                                                                    
The substance would  be sent outside the state  if the state                                                                    
crime lab did not have the ability to analyze it.                                                                               
Vice-chair  Fairclough queried  the  physical attributes  of                                                                    
the  substance and  how  it might  be  identified. Lt.  Dial                                                                    
responded that the substance could  be sprayed onto anything                                                                    
that  could be  smoked and  onto some  things that  were not                                                                    
smoked,  such as  potpourri. He  said there  was no  way for                                                                    
officers in the  field to make a visual  determination or to                                                                    
identify the substance through smell.                                                                                           
Co-Chair  Stoltze  referred  to television  shows  in  which                                                                    
people readily  admitted what substance they  were using and                                                                    
wondered whether  the troopers  had similar  experience. Lt.                                                                    
Dial  replied  that  the  statement  could  be  true  for  a                                                                    
substance like  marijuana. He did  not have  experience with                                                                    
the particular  substance in the  bill. He noted  that there                                                                    
were field-test kits for most  substances that could be used                                                                    
to confirm  the identity of a  suspected substance. However,                                                                    
the  substance being  discussed came  in many  varieties and                                                                    
there  were  no   known  test  kits.  The   issue  would  be                                                                    
developing the  best evidence possible  in the field  to try                                                                    
and support  what an officer  thought the substance  was; if                                                                    
that could not be done, the  substance would have to be sent                                                                    
to the crime lab.                                                                                                               
Representative  Costello  stated   concerns  about  spending                                                                    
money to test  victims affected by the  substance instead of                                                                    
spending  money  to  educate possible  users.  She  believed                                                                    
young people were  being exposed to the new  drug and needed                                                                    
information about  the risks. She  suggested talking  to the                                                                    
Department  of Health  and Social  Services about  including                                                                    
questions  on the  Youth Behavior  Risk Survey  to find  out                                                                    
more about  how widespread  the use  was. She  asked whether                                                                    
the volume of work at the  lab correlated to the crime rate.                                                                    
Mr.  Dym   thought  the  connection  between   the  two  was                                                                    
difficult to make;  there had been a 15  percent increase in                                                                    
business  the prior  fiscal year  over  the previous  fiscal                                                                    
year,  which was  greater  than the  increase  in the  crime                                                                    
rate. He believed that the  crime laboratory had become more                                                                    
efficient  as backlogs  had decreased,  but there  were then                                                                    
more submissions.                                                                                                               
2:05:39 PM                                                                                                                    
Representative Costello did not  understand the logic behind                                                                    
the fiscal note. Mr. Dym replied  that the crime lab had had                                                                    
1,250 cases of potential  controlled substances submitted in                                                                    
the  last calendar  year. The  1,250  cases comprised  2,700                                                                    
items; 2,400 of the items  were substances that were illegal                                                                    
(such   as   375   items   of    cocaine,   325   items   of                                                                    
methamphetamine, and so on).                                                                                                    
Mr. Dym  continued that the  department had  heard testimony                                                                    
that the  substance being discussed was  popular with people                                                                    
who wanted to circumvent  employment drug-testing. There was                                                                    
currently  no mechanism  for employment  screening detection                                                                    
of  the drug  and  it  had become  popular  with people  who                                                                    
wanted to alter their sense  of reality without losing their                                                                    
jobs. The role  of the crime lab connected  to suspect plant                                                                    
material  was  to determine  whether  or  not the  drug  was                                                                    
present so that a decision could  be made about how the case                                                                    
moved forward in the justice system.                                                                                            
Representative Costello  believed that  the drug  could have                                                                    
unanticipated effects  that were  very severe.  She wondered                                                                    
whether  people  would  use it  instead  of  marijuana.  She                                                                    
questioned whether marijuana was a  gateway drug to the drug                                                                    
being discussed. She thought more  information about the use                                                                    
and  effects  of the  drug  was  needed before  attaching  a                                                                    
fiscal note.                                                                                                                    
Co-Chair Stoltze  noted the  presence of  Jim Duncan  in the                                                                    
committee room.                                                                                                                 
Representative  Guttenberg admitted  that he  had originally                                                                    
been cynical  about the legislation,  and that  his feelings                                                                    
about it had gone back and  forth. He wanted to know whether                                                                    
an  officer sent  marijuana to  the crime  lab to  be tested                                                                    
each time  it was found.  He thought the  employment testing                                                                    
aspect  was problematic.  Lt. Dial  responded that  most pot                                                                    
encountered in the  field was not sent to the  crime lab, as                                                                    
law  enforcement  was  able  to conduct  a  field  test  and                                                                    
forward  charges. He  noted that  there was  the ability  to                                                                    
send the  substance off to  get a  higher-level verification                                                                    
of  the substance  if the  district  attorney's office  felt                                                                    
that was important.                                                                                                             
Lt.  Dial   opined  that  the  department   would  start  an                                                                    
education program  with officers if the  legislation passed.                                                                    
He  anticipated  that the  substance  would  most likely  be                                                                    
encountered in the motoring public;  people would be driving                                                                    
with obvious signs  of impairment and officers  would try to                                                                    
find out the  cause. He stated that  the substance concerned                                                                    
him because it  was far more potent  than average marijuana,                                                                    
currently easy to access, legal,  and would make it possible                                                                    
for a person to pass a drug test.                                                                                               
2:12:27 PM                                                                                                                    
Lt. Dial continued that it  would be imperative for officers                                                                    
in  the  field to  have  the  ability  to confirm  what  the                                                                    
substances were  in cases  where they might  not be  able to                                                                    
detect them  otherwise. In addition,  they would need  to be                                                                    
able  to  build  a  case  in  order  to  make  prosecutions,                                                                    
hopefully  without  sending the  substance  to  the lab.  He                                                                    
thought  the   most  important  cases  would   be  potential                                                                    
Representative Gara  asked whether  the first  possession of                                                                    
marijuana was  a crime  or a  violation. Lt.  Dial responded                                                                    
that  the  first  incident of  possession  was  generally  a                                                                    
Representative  Gara saw  no proof  that a  full-time person                                                                    
would  be  needed  to analyze  the  substance.  He  wondered                                                                    
whether overtime could be used  during the first year, or if                                                                    
there  were  other  ways  to  get the  work  done.  Mr.  Dym                                                                    
responded  that currently,  68 percent  of  the crime  lab's                                                                    
cases were turned around in  a reasonable amount of time; he                                                                    
noted that there  was always a lot of drug  work to be done.                                                                    
He acknowledged  that there  was a question  as to  how much                                                                    
additional  work  would come  in  with  the passage  of  the                                                                    
legislation. He  assured the  committee that  the additional                                                                    
position would not result in "idle  hands" at the lab, but a                                                                    
faster  turn-around  time  in  drug  cases  in  general.  In                                                                    
addition,  with  the  particular substance,  he  anticipated                                                                    
increased court  time; 20  percent of  cases that  the crime                                                                    
lab worked resulted  in subpoenas. Court time  tended to run                                                                    
anywhere  from one  to  three days  depending  on where  the                                                                    
analysis  was  sent. He  pointed  out  that in  addition  to                                                                    
analysis  time, there  could be  a lot  of additional  court                                                                    
time  spent explaining  the drug  to  a jury,  such as  what                                                                    
positional isomers  were and why the  substance was actually                                                                    
controlled.  The other  function  that would  be needed  was                                                                    
law-enforcement  training  to  provide screening  tools  for                                                                    
officers in the  field. He opined that it  would be possible                                                                    
to keep an additional position very busy.                                                                                       
2:16:19 PM                                                                                                                    
Representative  Gara  voiced concerns  that  HB  7 would  be                                                                    
charged for  the cost  of doing  other work  in the  lab. He                                                                    
thought the budget request should come in separately.                                                                           
Representative Joule  asked whether the substance  levels of                                                                    
THC  were  traceable  in  the way  they  were  traceable  in                                                                    
marijuana  use, in  terms of  employment  testing. Lt.  Dial                                                                    
replied in  the affirmative.  He explained that  since there                                                                    
was no current  urinalysis test for the  substance, the drug                                                                    
had become a  problem for the military and  for other states                                                                    
in the  year since it had  been introduced. He did  not know                                                                    
whether a  test had  been developed or  whether there  was a                                                                    
special place to send a sample  to; the usual places did not                                                                    
have the ability to detect the substance.                                                                                       
Representative  Joule  asked  whether  the  substance  would                                                                    
conceal the effects of the  marijuana when it was applied to                                                                    
a joint.  Lt. Dial did  not believe  it would, and  that the                                                                    
THC from the marijuana would show up on the urinalysis.                                                                         
Representative Joule thought the  things tested would not be                                                                    
other controlled  substances as much as  everyday substances                                                                    
like  cigarettes or  candy. Lt.  Dial  responded that  their                                                                    
experience  had  been  that the  synthetic  drug  was  being                                                                    
applied to legal substances, such  as potpourri; he expected                                                                    
that practice to continue.                                                                                                      
Representative Joule  wondered how  to measure the  kinds of                                                                    
things the labs would be testing for in a fiscal note.                                                                          
2:20:02 PM                                                                                                                    
Vice-chair Fairclough  asked whether  the product had  to be                                                                    
smoked to create the chemical  reaction, or whether it could                                                                    
go on  something like a  candy bar.  Lt. Dial did  not know,                                                                    
since  he  did  not  have  a  lot  of  experience  with  the                                                                    
Vice-chair Fairclough  asked for more information  about the                                                                    
field test  used to check  for marijuana. Lt.  Dial answered                                                                    
that an officer  might identify impairment in  the field and                                                                    
then attempt to determine  whether the impairment was caused                                                                    
by  something that  could be  a  violation of  law, such  as                                                                    
driving a  motor vehicle  with possession  of a  firearm. An                                                                    
officer would  attempt to  determine whether  the impairment                                                                    
was  caused  by introduction  of  an  illegal substance,  or                                                                    
whether the issue was medical,  or something else. He stated                                                                    
that  there were  field tests  for most  illegal substances;                                                                    
for substances that have been  consumed but not found in the                                                                    
vehicle,  the officer  could do  a  standard field  sobriety                                                                    
test.  There  were  tests  for  alcohol.  There  were  drug-                                                                    
recognition experts  in the department  who did a  series of                                                                    
tests to determine drug impairment,  such as dilated pupils.                                                                    
Ultimately, if  enough probable cause  can be  developed, an                                                                    
officer can  seek a  search warrant for  blood or  urine and                                                                    
send that off for analysis.                                                                                                     
Vice-chair  Fairclough  thought  there  were  at  least  two                                                                    
different types  of tools to  test for the  substance either                                                                    
in  the bloodstream  or the  urine. She  still had  concerns                                                                    
about the fiscal  note. She wondered whether  there could be                                                                    
a scenario in which a motor  vehicle would have to be stored                                                                    
through the length of a  trial because it possibly contained                                                                    
2:23:59 PM                                                                                                                    
Representative  Wilson  questioned whether  different  items                                                                    
would be  looked for in a  car, or whether there  would be a                                                                    
blood or urine  test. Lt. Dial responded  that if impairment                                                                    
were detected,  the investigation would be  worked from that                                                                    
point.  He thought  investigations could  be lengthy  if the                                                                    
substance could be sprayed on an  item and the result was as                                                                    
serious as a  death from a motor vehicle  accident. Based on                                                                    
prior investigative practices, in  a serious crime, the time                                                                    
would be  taken to  determine what  the person  was impaired                                                                    
by. Evidence  would be  taken, and if  the evidence  did not                                                                    
provide the  information, a search  warrant would  be sought                                                                    
to obtain blood and urine samples.                                                                                              
Representative Wilson asked whether  the substance stayed on                                                                    
a product  for a  long time. She  was more  comfortable with                                                                    
testing the  impaired person  rather than  all the  items in                                                                    
their car. Lt.  Dial agreed. He noted that  there were times                                                                    
when  a  drug   dog  was  used  to  speed   the  process  of                                                                    
identifying possible substances,  because physically testing                                                                    
all the surfaces of a  car for residue from other substances                                                                    
was  not practical.  He thought  there would  be a  learning                                                                    
curve for the  department; training would be  needed as well                                                                    
as  policy  to  develop  the   best  way  to  test  for  the                                                                    
Co-Chair  Stoltze  recalled  testimony that  the  crime  lab                                                                    
tested all  the work the municipalities  sent. He speculated                                                                    
about  the amount  of sworn  officers and  thought 40  or 50                                                                    
percent of  the work  would be done  in the  municipality of                                                                    
Anchorage in  an urban environment. He  wondered whether the                                                                    
testing would be needed whether  or not the bill passed. Lt.                                                                    
Dial responded  that if the  substance was not  made illegal                                                                    
and an officer  had reason to believe  someone was impaired,                                                                    
they would still work the case in the same way.                                                                                 
Co-Chair  Stoltze clarified  that he  was talking  about the                                                                    
department   accepting  work   from   the  municipality   of                                                                    
Anchorage,  which   had  passed   an  ordinance   about  the                                                                    
substance.  He asked  whether the  department would  get the                                                                    
work whether or not the  bill passed. Lt. Dial believed that                                                                    
the substance would  be referred to the crime  lab since the                                                                    
municipality had made the substance illegal.                                                                                    
2:28:28 PM                                                                                                                    
Representative  Gara  asked  whether  there was  any  way  a                                                                    
fiscal note could  be used that was not the  cost of a full-                                                                    
time employee. He also wanted  to know whether the Anchorage                                                                    
ordinance had been around long enough  to get a sense of the                                                                    
work load. Mr.  Dym replied that staff at the  crime lab was                                                                    
not eligible  for overtime, so  using overtime would  not be                                                                    
an  option.  He  stated  that  there  was  a  real  lack  of                                                                    
experienced drug chemists in Alaska,  let alone any who were                                                                    
interested in part-time work, so  a part-time position would                                                                    
not be an option.                                                                                                               
Mr. Dym  clarified that the  crime lab viewed  their mission                                                                    
as  conducting analysis  related  to state  statute, not  to                                                                    
municipal  ordinance; the  lab was  not currently  analyzing                                                                    
substances controlled  by municipal  statute. The  lab would                                                                    
perform the  analysis for the municipality  if the substance                                                                    
were  to be  controlled at  the  state level  under a  state                                                                    
Representative Gara  had been under the  assumption that the                                                                    
crime lab  processed municipal crime.  He asked  whether the                                                                    
state  crime  lab  would  analyze  the  substance  that  was                                                                    
illegal because of  municipal law. Mr. Dym  replied that the                                                                    
crime  lab  did  analysis  for all  state  law  enforcement,                                                                    
including all municipal law  enforcement for those materials                                                                    
that  were  controlled or  illegal  per  state law.  In  the                                                                    
instance where  a municipality passed an  ordinance that was                                                                    
not covered  by state  statute, the crime  lab would  not do                                                                    
the work.                                                                                                                       
Representative Gara  pointed out that the  municipality must                                                                    
have some experience.  He queried the work load  done by the                                                                    
crime lab  for the municipality to  get a sense of  the work                                                                    
load for  the fiscal note.  Mr. Dym replied  that discussion                                                                    
with  the municipal  prosecutor's office  had revealed  that                                                                    
the  municipality  was  not  currently  pursuing  possession                                                                    
charges  under  the  municipality,  so there  was  no  data.                                                                    
However, the municipality  was pursuing DUI-related charges,                                                                    
which were not sent to the crime laboratory.                                                                                    
2:32:36 PM                                                                                                                    
Representative  Gara   MOVED  Amendment   1  (27-LS0044\T.1,                                                                    
Luckhaupt, 2/23/11):                                                                                                            
     Page 1, line 1, following "substances":                                                                                  
          Insert "and  relating to penalties  for possession                                                                  
     of those substances"                                                                                                     
     Page 1, following line 3:                                                                                                  
          Insert new bill sections to read:                                                                                     
        "* Section 1. AS 11.71.040(a) is amended to read:                                                                   
               (a)  Except as authorized in AS 17.30, a                                                                         
          person commits  the crime of  misconduct involving                                                                    
          a  controlled substance  in the  fourth degree  if                                                                    
          the person                                                                                                            
                    (1)     manufactures  or   delivers  any                                                                    
          amount  of   a  schedule  IVA  or   VA  controlled                                                                    
          substance or  possesses any  amount of  a schedule                                                                    
          IVA  or VA  controlled  substance  with intent  to                                                                    
          manufacture or deliver;                                                                                               
                    (2)     manufactures  or   delivers,  or                                                                    
          possesses  with  the   intent  to  manufacture  or                                                                    
          deliver,  one  or  more  preparations,  compounds,                                                                    
          mixtures, or substances of  an aggregate weight of                                                                    
          one  ounce  or  more  containing  a  schedule  VIA                                                                    
          controlled substance;                                                                                                 
                    (3)  possesses                                                                                              
                         (A)  any amount of a schedule IA                                                                       
               or IIA controlled substance;                                                                                     
                         (B)  25 or more tablets, ampules,                                                                      
               or syrettes containing a schedule IIIA or                                                                        
               IVA controlled substance;                                                                                        
                         (C)  one or more preparations,                                                                         
               compounds, mixtures, or substances of an                                                                         
               aggregate weight of                                                                                              
                              (i)  three grams or more                                                                      
                    containing  a   schedule  IIIA   or  IVA                                                                    
                    controlled     substance    except     a                                                                
                    controlled  substance in  a form  listed                                                                
                    in (ii) of this subparagraph;                                                                           
                              (ii)  six grams or more                                                                       
                    containing  a  schedule IIIA  controlled                                                                
                    substance  listed in  AS 11.71.160(f)(7)                                                                
                    -  (16)  that  has been  sprayed  on  or                                                                
                    otherwise applied  to tobacco,  an herb,                                                                
                    or another organic material;                                                                            
                         (D)  50 or more tablets, ampules,                                                                      
               or syrettes containing a schedule VA                                                                             
               controlled substance;                                                                                            
                         (E)  one or more preparations,                                                                         
               compounds, mixtures, or substances of an                                                                         
               aggregate weight of six grams or more                                                                            
               containing    a   schedule    VA   controlled                                                                    
                         (F)  one or more preparations,                                                                         
               compounds,  mixtures,  or  substances  of  an                                                                    
               aggregate  weight  of  four  ounces  or  more                                                                    
               containing   a    schedule   VIA   controlled                                                                    
               substance; or                                                                                                    
                         (G)  25 or more plants of the                                                                          
               genus cannabis;                                                                                                  
                    (4)   possesses  a  schedule IIIA,  IVA,                                                                    
          VA, or VIA controlled substance                                                                                       
                         (A)  with reckless disregard that                                                                      
               the possession occurs                                                                                            
                              (i)  on or within 500 feet of                                                                     
                    school grounds; or                                                                                          
                              (ii)  at or within 500 feet                                                                       
                    of a recreation or youth center; or                                                                         
                         (B)  on a school bus;                                                                                  
                    (5)   knowingly  keeps or  maintains any                                                                    
          store,   shop,   warehouse,  dwelling,   building,                                                                    
          vehicle,  boat, aircraft,  or  other structure  or                                                                    
          place  that is  used for  keeping or  distributing                                                                    
          controlled  substances in  violation  of a  felony                                                                    
          offense under this chapter or AS 17.30;                                                                               
                    (6)   makes,  delivers,  or possesses  a                                                                    
          punch,  die, plate,  stone,  or  other thing  that                                                                    
          prints,  imprints,  or   reproduces  a  trademark,                                                                    
          trade  name, or  other identifying  mark, imprint,                                                                    
          or device  of another  or any  likeness of  any of                                                                    
          these upon a drug,  drug container, or labeling so                                                                    
          as to render the drug a counterfeit substance;                                                                        
                    (7)   knowingly  uses in  the course  of                                                                    
          the  manufacture or  distribution of  a controlled                                                                    
          substance   a   registration    number   that   is                                                                    
          fictitious,  revoked,  suspended,   or  issued  to                                                                    
          another person;                                                                                                       
                    (8)     knowingly  furnishes   false  or                                                                    
          fraudulent  information   in  or   omits  material                                                                    
          information from any  application, report, record,                                                                    
          or  other document  required to  be kept  or filed                                                                    
          under AS 17.30;                                                                                                       
                    (9)  obtains  possession of a controlled                                                                    
          substance  by  misrepresentation, fraud,  forgery,                                                                    
          deception, or subterfuge; or                                                                                          
                    (10)   affixes a  false or  forged label                                                                    
          to  a package  or other  container containing  any                                                                    
          controlled substance.                                                                                                 
        * Sec. 2. AS 11.71.050(a) is amended to read:                                                                         
               (a)   Except  as  authorized  in AS 17.30,  a                                                                    
          person commits  the crime of  misconduct involving                                                                    
          a controlled substance in the  fifth degree if the                                                                    
                    (1)     manufactures  or   delivers,  or                                                                    
          possesses  with  the   intent  to  manufacture  or                                                                    
          deliver,  one  or  more  preparations,  compounds,                                                                    
          mixtures, or substances of  an aggregate weight of                                                                    
          less  than one  ounce  containing  a schedule  VIA                                                                    
          controlled substance;                                                                                                 
                    (2)  possesses                                                                                              
                         (A)  less than 25 tablets,                                                                             
               ampules,  or syrettes  containing a  schedule                                                                    
               IIIA or IVA controlled substance;                                                                                
                         (B)  one or more preparations,                                                                         
               compounds,  mixtures,  or  substances  of  an                                                                    
               aggregate weight of less than                                                                                    
                              (i)  three grams containing a                                                                 
                    schedule   IIIA    or   IVA   controlled                                                                    
                    substance except  a controlled substance                                                                
                    in  a  form  listed   in  (ii)  of  this                                                                
                              (ii)  six grams or more                                                                       
                    containing  a  schedule IIIA  controlled                                                                
                    substance  listed in  AS 11.71.160(f)(7)                                                                
                    -  (16)  that  has been  sprayed  on  or                                                                
                    otherwise applied  to tobacco,  an herb,                                                                
                    or another organic material;                                                                            
                         (C)  less than 50 tablets,                                                                             
               ampules,  or syrettes  containing a  schedule                                                                    
               VA controlled substance;                                                                                         
                         (D)  one or more preparations,                                                                         
               compounds,  mixtures,  or  substances  of  an                                                                    
               aggregate  weight  of  less  than  six  grams                                                                    
               containing    a   schedule    VA   controlled                                                                    
               substance; or                                                                                                    
                         (E)  one or more preparations,                                                                         
               compounds,  mixtures,  or  substances  of  an                                                                    
               aggregate  weight   of  one  ounce   or  more                                                                    
               containing   a    schedule   VIA   controlled                                                                    
               substance; or                                                                                                    
                    (3)   fails  to make,  keep, or  furnish                                                                    
          any record,  notification, order  form, statement,                                                                    
          invoice, or information required under AS 17.30."                                                                     
     Page 1, line 4:                                                                                                            
          Delete "Section 1"                                                                                                  
          Insert "Sec. 3"                                                                                                     
     Renumber the following bill section accordingly.                                                                           
Co-Chair Stoltze OBJECTED.                                                                                                      
Representative Gara  explained Amendment  1. He  thought the                                                                    
drug was  serious enough that  dealers should be  treated as                                                                    
felons;  he stressed  that that  part of  the bill  would be                                                                    
unchanged by  the amendment. People  who used the  drug were                                                                    
sometimes doing  so unwittingly and sometimes  simply trying                                                                    
to mimic the  use of pot. He  wanted to find a  way to allow                                                                    
people who used the drug for  the first time in a relatively                                                                    
small  amount   for  personal  use   to  be  treated   as  a                                                                    
misdemeanor  and  not  a  felon.  The  original  bill  would                                                                    
stipulate that  possession of three  grams of  the substance                                                                    
was a  felony. Amendment  1 would change  the amount  to six                                                                    
grams. He recalled that three  grams was something like nine                                                                    
cigarettes  worth  of  the substance;  the  amendment  would                                                                    
double the amount for a felony charge.                                                                                          
Representative Gara  believed that felony charges  should be                                                                    
reserved for the worst crimes.  He thought dealing was a bad                                                                    
crime and that possession of  a lesser amount should not fit                                                                    
into  the category  of worst  crimes. He  noted there  was a                                                                    
question left open  by the way the amendment  was drafted as                                                                    
to whether  the substance was  covered in pill form.  He had                                                                    
thought the substance had to  be smoked, which was reflected                                                                    
in the amendment.                                                                                                               
JERRY LUCKHAUPT, ASSISTANT  REVISER OF STATUTES, LEGISLATIVE                                                                    
LEGAL  SERVICES, reported  that in  most cases  the ultimate                                                                    
user would  use the  substance by  smoking it.  The products                                                                    
identified as "K2"  or "Spice" that could be  bought in many                                                                    
communities in the  state were made by  taking synthetic THC                                                                    
(probably  in  a solid  form  from  overseas) and  making  a                                                                    
solution which  was then sprayed  onto an  organic material,                                                                    
either tobacco,  herbs, or potpourri. The  individual packet                                                                    
of  the  organic  material  that had  been  laced  with  the                                                                    
synthetic THC could then be  made into a cigarette or smoked                                                                    
in a  pipe to get  the euphoric effect. The  substance could                                                                    
also  be bought  in  a purer  form in  a  solution or  solid                                                                    
directly  from manufacturers,  such as  Cayman Chemical.  He                                                                    
said the pure form would  have more effect than spraying the                                                                    
substance  on other  material. However,  three grams  in the                                                                    
pure form  would have a  greater effect than three  grams of                                                                    
organic material  with the substance  laced into it.  He had                                                                    
been charged by Representative Gara  to not make the later a                                                                    
Mr. Luckhaupt  continued that he  had come up with  a method                                                                    
to  distinguish  between  possession  in  a  pure  form  and                                                                    
possession of  the substance  on other  material. Possession                                                                    
of the substance  in a pure form would remain  a felony with                                                                    
the  amendment; in  most cases  the possessor  would not  be                                                                    
using the substance in the pure  form as it could kill them.                                                                    
End users would  be using the laced  organic material. There                                                                    
was no  way of  removing the  controlled substance  from the                                                                    
organic  material  to  weigh   it  separately,  so  the  law                                                                    
considered  the total  weight of  the material.  The organic                                                                    
material was weighed and the  amount doubled. A person could                                                                    
theoretically possess  up to  six grams  of a  material that                                                                    
had  been laced  with the  substance and  be charged  with a                                                                    
2:39:26 PM                                                                                                                    
Mr.  Luckhaupt  emphasized  that he  wanted  to  distinguish                                                                    
using  the substance  in a  pure form,  which was  much more                                                                    
dangerous than when it was added to other material.                                                                             
Representative Costello  queried the sentencing  options for                                                                    
Class B  and Class  C felonies and  how the  amendment would                                                                    
affect  the  sentencing  options  for  a  judge  in  a  case                                                                    
involving the substance.                                                                                                        
ANNE CARPENETI,  ASSISTANT ATTORNEY GENERAL,  LEGAL SERVICES                                                                    
SECTION,  CRIMINAL  DIVISION,  DEPARTMENT OF  LAW,  believed                                                                    
that the  amendment would mean  that a person  could possess                                                                    
six  grams of  the material  and still  be prosecuted  for a                                                                    
Class A  misdemeanor. It would  take more than six  grams of                                                                    
the substance  on vegetable material or  possession of three                                                                    
grams and  above in  the pure  form for  possession to  be a                                                                    
Class C  felony. The maximum term  for a Class C  felony was                                                                    
five  years  imprisonment; for  a  Class  A misdemeanor  the                                                                    
maximum term was one year imprisonment.                                                                                         
Representative  Costello queried  the  minimum sentence  for                                                                    
Class B and  Class C felonies. Ms.  Carpeneti responded that                                                                    
for  the  first   conviction  of  a  Class   C  felony,  the                                                                    
sentencing range was  from zero to two years;  for the first                                                                    
conviction of a  Class B felony, the range was  one to three                                                                    
Mr. Luckhaupt added  that basically zero to  two years meant                                                                    
there was  no presumptive  term for a  first Class  C felony                                                                    
conviction;  a person  would get  a  term less  than what  a                                                                    
second  felony  conviction  would  be  or  than  the  person                                                                    
convicted  of a  Class B  felony. The  range for  a Class  B                                                                    
felony was one to three years,  so the person convicted of a                                                                    
Class C  felony should usually  get something less  than one                                                                    
year. For  a Class A misdemeanor,  a person could get  up to                                                                    
one year; there was no minimum term.                                                                                            
2:43:49 PM                                                                                                                    
Vice-chair Fairclough  asked whether district  attorneys had                                                                    
the opportunity to negotiate charges  down. For example, she                                                                    
wondered whether  a district attorney  could take a  Class B                                                                    
felony  and  negotiate  it  to  a  Class  A  misdemeanor  or                                                                    
something lower than  the Class B felony  under a possession                                                                    
charge.  Ms.  Carpeneti   responded  that  Alaskan  district                                                                    
attorneys had  the authority  to negotiate  plea agreements.                                                                    
Generally, that was done through  charges, and would have to                                                                    
be  a reasonable  interpretation of  the facts.  The charges                                                                    
could be  reduced if the  facts and  circumstances justified                                                                    
that. A district  attorney could not get a  conviction for a                                                                    
Class B  felony and  call it  a Class  C felony;  they would                                                                    
have  to  look  at  other charges  and  determine  what  was                                                                    
reasonable under the circumstances.                                                                                             
Vice-chair Fairclough surmised that  a district attorney had                                                                    
the discretion to charge a  person with terms that were like                                                                    
a Class  A misdemeanor  if they believed  that the  case was                                                                    
not severe enough  or the evidence presented  was not severe                                                                    
enough  to   warrant  a  Class  B   felony,.  Ms.  Carpeneti                                                                    
responded that they had the authority to do that.                                                                               
Vice-chair Fairclough  asked whether district  attorneys had                                                                    
the authority  to charge  at a  higher level.  Ms. Carpeneti                                                                    
responded that district attorneys  brought charges that they                                                                    
believed they  could prove  beyond a  reasonable doubt  to a                                                                    
jury of  peers of the  individual being charged.  She called                                                                    
that an  ethical obligation; a  district attorney  could not                                                                    
charge a  higher offense than  the facts justified,  or than                                                                    
the person  felt he or  she could prove beyond  a reasonable                                                                    
Vice-chair  Fairclough believed  that  the  law left  public                                                                    
safety officers  and the court  system with the  ability and                                                                    
flexibility   to  appropriately   charge  and   punish  each                                                                    
individual. She  opined that lowering the  threshold for the                                                                    
punishment would affect that flexibility.                                                                                       
Vice-chair Fairclough spoke in  opposition to the amendment.                                                                    
She argued that a product that  was not distilled but of the                                                                    
same weight could  be very harmful to a person.  She was not                                                                    
familiar with packages of cigarettes  being passed by youth;                                                                    
she  thought nine  joints or  cigarettes were  a lot  and to                                                                    
double the  amount to  18 seemed  unreasonable. She  did not                                                                    
want youth or workers to think  they could have six grams of                                                                    
the substance and  think that was okay.  She emphasized that                                                                    
the issue  was a safety issue  for people on the  roads. She                                                                    
pointed out  that the bill  matched federal law and  the way                                                                    
that they  were proposing to  hold users as well  as dealers                                                                    
accountable.  She stated  that  she  supported the  original                                                                    
bill and opposed the amendment.                                                                                                 
2:48:10 PM                                                                                                                    
Representative   Guttenberg   spoke   in  support   of   the                                                                    
amendment. He  stated that the amendment  addressed concerns                                                                    
he  had  about  the  bill.  He pointed  to  the  words  "any                                                                    
quantity"  in  the  original  bill  (page  1,  line  7).  He                                                                    
reminded the  committee that Alaskan citizens  had the right                                                                    
to  possess  minimal  amounts of  marijuana,  although  they                                                                    
could not grow  it or buy it. He was  concerned that someone                                                                    
could go  down the  street to acquire  a substance  and then                                                                    
find out inadvertently  that "any quality" was  a felony. He                                                                    
believed  the  amendment  addressed the  difference  between                                                                    
someone   possessing   in   order  to   sell   and   someone                                                                    
inadvertently possessing  something that  would make  them a                                                                    
felon. He emphasized that he  did not support the ability of                                                                    
any  person to  drive  inebriated, drunk,  stoned, or  high;                                                                    
there  would  still  be reckless  endangerment  charges.  He                                                                    
thought it was  appropriate to make the charge  a felony for                                                                    
someone who had enough to know they were selling it.                                                                            
Representative  Wilson  spoke  against  the  amendment.  She                                                                    
stated that she  was not a chemist and would  not be able to                                                                    
distinguish between  the different  amounts outlined  in the                                                                    
amendment. She  did not want  to make the same  decision for                                                                    
citizens.  She respected  what the  amendment was  trying to                                                                    
do, but believed a strong  stand should be taken against the                                                                    
substance, as it  was dangerous no matter how  much a person                                                                    
Co-Chair  Thomas spoke  in opposition  to the  amendment. He                                                                    
wanted the  drug to be cut  off completely in the  state. He                                                                    
did not want  to show leniency related to  possession of the                                                                    
drug in any amount.                                                                                                             
Representative Gara acknowledged  the difficulty of figuring                                                                    
out  what the  exact crime  level should  be. He  noted that                                                                    
felonies  cost the  state more,  because the  jail term  was                                                                    
longer. He  believed the state  needed to rank what  sort of                                                                    
punishment it wanted to impose  on people based on the crime                                                                    
that was committed.                                                                                                             
Representative Gara pointed out  that the amendment left two                                                                    
things the  same in the bill.  First, the pill form  was the                                                                    
same. Second,  possession of the non-smokable  substance was                                                                    
still a felony  for three grams. In the  amendment, a person                                                                    
could have six grams of  smokable material with the sprayed-                                                                    
on substance before the charge was a felony.                                                                                    
Representative Gara argued that  people were not educated by                                                                    
the state  making a  crime s  Class A or  Class B  felony or                                                                    
misdemeanor; people were  educated differently. For example,                                                                    
people could  be educated through  the Department  of Health                                                                    
of Human Services, through  public service announcements, or                                                                    
having a  public official like  the governor  draw attention                                                                    
to  the issue.  He stressed  that  people in  the middle  of                                                                    
committing a  crime did not  take the time  consider whether                                                                    
the action would be a Class A or  a Class B felony. He had a                                                                    
hard time  thinking of people  who would be  low-level users                                                                    
of a  substance they think is  like pot as felons.  He noted                                                                    
that  the  sentence  would  continually  go  up  for  repeat                                                                    
Representative  Gara argued  that  any  level of  engagement                                                                    
with the substance would still  be a crime. People would not                                                                    
research  the law  books to  determine  what their  sentence                                                                    
would be.  He believed the  substance would be  cleared from                                                                    
the  street because  it would  be a  felony to  sell it.  He                                                                    
believed  the  dealers  would  go   back  to  selling  other                                                                    
2:54:11 PM                                                                                                                    
Vice-chair Fairclough  stressed that workers were  using the                                                                    
drug because they could not be  screened for it at work. She                                                                    
was especially concerned about  commercial drivers using the                                                                    
substance.  She thought  sometimes a  "good swift  kick" was                                                                    
more  appropriate than  a lighter  punishment. She  believed                                                                    
the issue was a safety one.                                                                                                     
Representative  Gara pointed  out that  a person  who killed                                                                    
another while  driving under the influence  of the substance                                                                    
would be  charged with negligent homicide,  manslaughter, or                                                                    
murder.  He   thought  the   distinction  proposed   in  the                                                                    
amendment would not apply in those circumstances.                                                                               
Co-Chair  Stoltze queried  the position  of the  sponsor and                                                                    
the administration on the amendment.                                                                                            
KENDRA KLOSTER, STAFF,  REPRESENTATIVE CATHY MUNOZ, SPONSOR,                                                                    
stated  that  the  sponsor  liked  the  original  bill.  She                                                                    
understood  Representative Gara's  concerns, which  had been                                                                    
discussed at  length in the House  Judiciary Committee; that                                                                    
was why the  charge had been dropped to a  Schedule III. She                                                                    
noted that the substance was  sold in three-gram packets, so                                                                    
it would be a misdemeanor to possess one.                                                                                       
Ms. Carpeneti stated that the  department was neutral on the                                                                    
Representative  Joule  clarified  that  the  unamended  bill                                                                    
allowed three grams and the  amendment would make the amount                                                                    
six grams.                                                                                                                      
2:59:02 PM                                                                                                                    
Co-Chair Stoltze MAINTAINED his OBJECTION.                                                                                      
A roll call vote was taken on the motion.                                                                                       
IN FAVOR: Gara, Guttenberg                                                                                                      
OPPOSED:  Wilson,   Costello,  Doogan,   Fairclough,  Joule,                                                                    
Thomas, Stoltze                                                                                                                 
Representatives  Neuman  and  Edgmon were  absent  from  the                                                                    
The MOTION FAILED (2/7).                                                                                                        
Co-Chair Stoltze  questioned the  need to change  the fiscal                                                                    
Vice-chair Fairclough MOVED to zero  out the fiscal note for                                                                    
FY 12 through 17.                                                                                                               
Co-Chair Stoltze  OBJECTED to comment. He  stated that there                                                                    
would be other discussions.                                                                                                     
Co-Chair Stoltze WITHDREW his OBJECTION.                                                                                        
Representative Gara  pointed out  that regarding  the fiscal                                                                    
note, the  department could have a  supplemental request the                                                                    
following  year if  actual experience  caused a  substantial                                                                    
amount of  extra work. However, based  on evidence currently                                                                    
available, he agreed with zeroing out the fiscal note.                                                                          
Vice-chair  Fairclough MOVED  to report  CSHB 7(JUD)  out of                                                                    
committee   with   individual    recommendations   and   the                                                                    
accompanying fiscal notes. There  being NO OBJECTION, it was                                                                    
so ordered.                                                                                                                     
CS HB 7(JUD) was REPORTED out  of committee with a "do pass"                                                                    
recommendation  and with  attached new  indeterminate fiscal                                                                    
note by the Department of  Corrections, new zero impact note                                                                    
by the  Department of Law, and  new zero impact note  by the                                                                    
House  Finance  Committee  for   the  Department  of  Public                                                                    
3:01:37 PM                                                                                                                    
AT EASE                                                                                                                         
3:04:45 PM                                                                                                                    

Document Name Date/Time Subjects
HB7NEWFN(JUD)-DPS-02-22-11.pdf HFIN 2/24/2011 1:30:00 PM
HB 7
HB7(JUD)NEWFN-DOC02-23-11.pdf HFIN 2/24/2011 1:30:00 PM
HB 7
HB7 DPS HFIN NEW ZERO FN.pdf HFIN 2/24/2011 1:30:00 PM
HB 7
HB7 Gara Amendment Failed.pdf HFIN 2/24/2011 1:30:00 PM
HB 7