Legislature(2003 - 2004)
02/19/2004 03:06 PM House HES
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HB 380-AGGRAVATING FACTOR FOR DRUG OVERDOSE SALE Number 0050 CHAIR WILSON announced that the first order of business will be HOUSE BILL NO. 380, "An Act relating to aggravating factors at sentencing." Number 0070 REPRESENTATIVE KEVIN MEYER, Alaska State Legislature, testified as sponsor of HB 380. He explained that while it is important that this bill be reviewed by the House Health Education and Social Services Standing Committee, the subject is heavily tilted toward the judiciary and will be closely reviewed by the House Judiciary Standing Committee. The bill pertains to illegal drug sales and adds a new aggravator [in sentencing]. He commented that if this bill passes it will be 31st aggravator. Number 0127 CHAIR WILSON told the members that the committee will look at the portion of the bill that is pertinent to this committee, and the House Judiciary Standing Committee will address the legal aspects of the bill. REPRESENTATIVE MEYER explained that HB 380 adds an aggravator for illegal sales of drugs that result in a death. He said currently if a person is convicted of selling illegal drugs the judge may apply a sentence of a presumptive term which is five years, and a maximum of 20 years. Representative Meyer told the members that in the sentencing stage years can be added to the presumptive term with aggravators, or deducted with mitigators. REPRESENTATIVE MEYER pointed to an example in the bill packet of a case that occurred in Ketchikan where a person was convicted of selling heroin. During the trial process it was discovered that that sale of heroin led to another person's death due to an overdose. He told the members that during the sentencing proceedings it was argued that if physical harm occurs because of sale of drugs, then additional time can be added to the sentence. Representative Meyer said that the argument was not upheld because it was said that no physical harm or injury occurred. He told the members that there were arguments back and forth that death is [or is not] physical injury. REPRESENTATIVE MEYER summarized that this bill would add an aggravator for death so that there is no question when cases similar to this come to the courts. He said he believes that a fatal overdose should be considered when sentencing someone of illegal sale of drugs because there are other ramifications involved besides the selling of drugs. Number 0367 REPRESENTATIVE GATTO asked if this aggravator would apply if the drugs were received as a gift. For instance, he said, an individual could be coerced or given drugs without paying for them. Another situation might be where an individual gives someone medicine, which could be the wrong dose, with the understanding that the individual receiving the medicine pay the person back at a later time. Number 0424 SUZANNE CUNNINGHAM, staff to Representative Meyer, Alaska State Legislature, testified on HB 380 and answered questions from the members. In response to Representative Gatto's question she explained that under the aggravator it says that if the defendant is convicted of an offense under AS 11.71, which is the controlled substances criminal statutes, misconduct involving controlled substances includes delivering any amount of a certain drug, selling a drug, or having an enterprise where drugs are sold. In the two examples which Representative Gatto posed, the individuals would have to be convicted under this statute for the aggravator to apply. CHAIR WILSON asked for clarification on illegal drugs. MS. CUNNINGHAM pointed to a list in the members' packets with a schedule of all the IA through VIA drugs. There are prescription drugs that are listed, she noted. If a person gives someone a prescription drug, and is convicted [under AS 11.71], then this aggravator could apply, Ms. Cunningham summarized. Number 0506 CHAIR WILSON announced for the record that Representative Wolf has joined the meeting. REPRESENTATIVE MEYER commented that this is something that the two attorneys would discuss during the sentencing portion of the trial. He said it is important to note that this aggravator does not become a factor until a person has been found guilty of a crime. Representative Meyer explained that if someone gave Representative Gatto an aspirin and he died of an overdose, he does not believe this would have any [relevance]. Number 0541 REPRESENTATIVE COGHILL emphasized that this bill will allow a judge discretion in sentencing someone who has been convicted [of a crime] and is not something that must be used. He stated that because of some narrowly crafted laws, mitigators and aggravators have become necessary tools in sentencing. Number 0585 REPRESENTATIVE GATTO told of a person he knows in the community who has been involved with kids, sports, and does many good things. However, one day this person did something stupid. Someone needed medication which this person happened to have, and he sold it to the other person. Representative Gatto pointed out that no one died, but he's facing 20 years [in prison]. Representative Gatto asked for clarification that a death would have to occur for this bill to have any effect. REPRESENTATIVE MEYER replied that is correct; someone would have to die for this bill to have any effect. REPRESENTATIVE GATTO commented that in the example he used this person was just saying that he paid $14 per pill, and if the other person would pay him the $14 he could have it. REPRESENTATIVE MEYER responded that if this were a situation where a person did this once and it was a stupid mistake, then that would be an issue to discuss during the sentencing phase. CHAIR WILSON announced for the record that Representative Cissna has joined the meeting. Number 0670 REPRESENTATIVE SEATON commented that there is one other significant change in the statute. He pointed to the sponsor statement where it says currently law allows that if "a person, other than an accomplice, sustained physical injury", and what has been taken out [of current law] is "other than accomplice". Representative Seaton said [with that language removed] the situation is such that two people can conspire to commit a crime, and one person will receive an aggravated sentence; whereas the current statute says the person injured cannot be an accomplice. Representative Seaton asked for Representative Meyer to comment on that point. MS. CUNNINGHAM responded that this bill will add an aggravator to the current list of aggravators. In the case of Whitesides v. State of Alaska [where] a person other than an accomplice sustained a physical injury as a direct result [of the crime]. She told the members that there would be no change to current law. The way this bill is drafted it does not specify "accomplice", it says "a person" dies or suffers serious physical injury from that controlled substance. Ms. Cunningham said the way it is written implies that the person was selling or giving drugs to someone. The assumption is that the person is committing an illegal act and because of that act, someone dies of it. REPRESENTATIVE SEATON replied that he understands what Ms. Cunningham is saying, but said he believes this would provide a dual standard. If someone experiences physical harm, and the person is an accomplice, an aggravator does not apply, but if someone [who is an accomplice] dies, an aggravator does apply, he pointed out. Representative Seaton commented that perhaps the House Judiciary Standing Committee should take a look at this point. He noted that there is the same situation as far as the seller goes; however, it does not apply to the person if they are injured, but the aggravator does apply if the person dies. He stated he does not like the duality of this standard. CHAIR WILSON agreed that the Representative Seaton's point should be addressed in the House Judiciary Standing Committee. Number 0861 REPRESENTATIVE CISSNA asked for clarification of the term "physical injury." CHAIR WILSON explained that earlier in the meeting there was discussion concerning that point. She directed Representative Cissna to a case in the bill packet [Whitesides v. State of Alaska] which demonstrates the needs to clarify the law because a person avoided aggravating factors in the sentencing portion of the case because death was not considered physical injury. This bill would add death as an aggravating factor to clarify statute and provide the courts with an additional tool in sentencing. REPRESENTATIVE MEYER commented that currently law provides that if someone is convicted of selling drugs and a person is physically injured, then the courts could add [time] to the sentence. He commented that there isn't any [aggravating factor] that deals with death. Common sense would say that if a person dies, the person is physically injured, but in the court of law [the language] has to be black and white. He summarized that all this bill does is allow for the sentencing judge to use this aggravating factor. He emphasized that the judge does not have to use this in sentencing. Number 0946 REPRESENTATIVE SEATON referred to AS 11.71 and asked if there is any potential for a pharmacist who misprescribes to be found guilty of a crime in this case. MS. CUNNINGHAM responded that it would have to be proven that there was intentional misconduct on the part of the pharmacists to even warrant a criminal charge. She said she is not even sure that would fall under a misconduct involving a controlled substance. She said she would look into it and get back to Representative Seaton. REPRESENTATIVE SEATON replied that he would appreciate that because if this bill implements a new liability on pharmacists then this committee would be concerned. He said that he would like to draw attention to this issue [to ensure that the bill does not criminalize a pharmacist's misprescribing drugs]. REPRESENTATIVE GATTO asked if a pharmacist gives a double dose of pills by accident, is that an offense. MS. CUNNINGHAM replied that she is unsure if that would be an offense under AS 11.71, which is the statute this bill deals with. The statute pertains to misconduct involving a controlled substance, where a person deals and distributes drugs. She reiterated that she does not know how the situation he mentioned would be interpreted under current statutes. Number 1087 REPRESENTATIVE MEYER told the members that he would get back to the committee on both questions. He said he believes that pharmacy issues would fall somewhere else in statutes. REPRESENTATIVE GATTO shared a story of getting a prescription that said, put three drops in each ear, three times a day. The treatment was for his eyes, and it was obvious the problem was the doctor's writing. So what do you do, he asked, complain to the doctor, complain to the pharmacist, or just stick [the drops in his] eyes as it was intended. Errors are made. He said he believes that no one wants to criminalize a mistake or create a situation where an [ill-worded statute] generates a lot of litigation. Number 1154 REPRESENTATIVE MEYER assured the members that he would check on the two questions Representatives Gatto and Seaton posed to him. He told the members that he does not believe either case would fall under the criminal code, but will verify it. Number 1170 REPRESENTATIVE SEATON moved to report HB 380 out of committee with individual recommendations and the accompanying fiscal notes. REPRESENTATIVE GATTO objected for discussion purposes. He asked if there is a zero fiscal note. In response to Representative Meyer's affirmative response he asked, if there are not additional court expenses related to the bill as this may be another [law] to be challenged. REPRESENTATIVE MEYER commented that he had the same concern, but found that there are not that many cases where this aggravator could apply. REPRESENTATIVE GATTO withdrew his objection. There being no objection, HB 380 was reported out of the House Health, Education and Social Services Standing Committee. REPRESENTATIVE MEYER told the members that he would research and e-mail answers to the committee's questions.
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