Legislature(1999 - 2000)
02/17/1999 01:03 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 3 - DRUGS: POSSESSION OF PRECURSOR CHEMICALS CHAIRMAN KOTT called on Representative Brice, sponsor of HB 3, to present the bill. REPRESENTATIVE TOM BRICE, Alaska State Legislature, presented the following sponsor statement: Currently, state statutes prohibit law enforcement from arresting people making methamphetamines until they are actually producing a drug. The chemicals involved are dangerous, as is the production process. HB 3 will criminalize the possession of certain chemicals used in manufacturing methamphetamines, giving law enforcement the ability to be proactive when fighting methamphetamine production in Alaska. This legislation also requires stores to notify authorities when a customer purchases large quantities of the chemicals that are used to make methamphetamines. Given the volatility of the production process, passage of this bill will also protect the lives and property in the neighborhoods where a drug lab may go into operation. The sponsor was asked to create this legislation by employees in the Department of Public Safety who were unable to make an arrest until a methamphetamine lab started cooking a drug. REPRESENTATIVE BRICE explained that the problem with methamphetamines in Alaska has been expanding beyond drug usage to include the dangerous conditions in methamphetamine laboratories. Some of these labs, he emphasized, have been likened to the "worst hazardous material dump sites." He reported that law enforcement officers have to take extreme precaution when raiding these facilities due to the high volatility of the chemicals used. A drug laboratory cannot currently be broken down, he stated, until a product has actually been produced. REPRESENTATIVE BRICE defined the goals of HB 3 to be as follows: creating two lists of chemicals used specifically in the creation of methamphetamine, and giving law enforcement the ability to determine whether or not an individual possessing these chemicals intends to produce methamphetamine. He stated his belief that most of the concerns regarding potential communication problems between state and federal officials have been addressed; however, additional recommendations brought out in upcoming testimonies may need to be taken into consideration. Number 0468 NANCY A. BUKAR, State Government Counsel, Nonprescription Drug Manufacturers Association (NDMA), testified via teleconference from Washington, D.C. on behalf of NDMA. She referred the committee to handouts faxed to Representative Brice's office. She detailed some of the drugs that could be covered by HB 3, including everyday cough, cold and sinus remedies such as Sudafed, Tylenol Cold Medicine and Actifed. Additionally, a number of weight loss aids would be covered by this legislation, including Acutrim and Dexatrim. The manufacturers of these medications, she added, have concerns as to how this legislation would affect availability of these products. MS. BUKAR pointed to existing federal legislation, namely, the Comprehensive Methamphetamine Control Act of 1996 (MCA). She referred the members to the handout which outlines the details of that legislation. At that time, she added, there were a number of changes to the distribution of products containing ephedrine, pseudoephedrine and phenylpropanolamine (PPA). The distributors are now required to report all suspicious orders to the local office of the United States Drug Enforcement Administration (DEA), as soon as they receive the order, before completion of the sale, or as soon as practical thereafter. She indicated, from experience, that distributors take suspicious order reporting very seriously, and keep very detailed records on those sales. MS. BUKAR further explained that if these distributors were not already registered with the DEA as controlled substance handlers, they must obtain a chemical list registration from the DEA. In order to obtain that registration, she added, applicants much go through detailed background checks, as well as inspection of their facilities to make sure they have adequate security and storage space. When selling these products, the distributor must verify the identity of the customer with a photo identification, usually a state-issued driver's license. Finally, she stated, distributors must ensure adequate security, and employees must inform security personnel of diversion by theft or loss of these products. MS. BUKAR described the "safe harbor exemption" that covers products containing pseudoephedrine and PPA under 3 grams in each package. In addition, the package must contain only two tablets per blister, which would ensure that the packages are quite small. Those retailers that only sell "safe harbor" products, she added, are exempt from the requirements under the Comprehensive Methamphetamine Control Act of 1996 (MCA). MS. BUKAR went on to present the model language developed by the Nonprescription Drug Manufacturers Association (NDMA) to help states combat the methamphetamine problem. She informed the committee that nine states have adopted language mirroring the NDMA model language, including the two states with the worst methamphetamine problem (California and Missouri). She said, "The model language that we have drafted punishes for possession with intention to manufacture methamphetamine, similar to the language in Alaska House Bill 3 in the beginning of the Act." This language distinguishes between legitimate use of over-the-counter medicines and diversion activities, giving consumers access to these products without feeling punished for purchasing them. MS. BUKAR referred the committee to the proposed amendment to HB 3 included in their handouts. It is the recommendation of NDMA that Section 11.71.195 (Exempted Drugs) be struck in its entirety. They further recommend the following addition to Section 17.30.090: (d) The provisions of Section 17.30.090 (a)-(c) shall not apply to any substance that may be lawfully sold over the counter without a prescription under the federal Food, Drug and Cosmetic Act (21 U.S.C. 301-392). MS. BUKAR emphasized that if HB 3 was passed as written without this amendment, it would result in massive record keeping required by all distributors and retailers, no matter how small they might be. Convenience stores, for example, may chose to avoid this kind of burden by not selling these products, which may result in increased prices and decreased availability for the legitimate consumer. She stressed that NDMA recognizes the problems involved with methamphetamine, and they have worked very hard with Partnership for a Drug-Free America, the DEA and local law enforcement to combat this problem. Number 1033 CHAIRMAN KOTT asked if NDMA would support striking out the entire recording requirement found in the bill in 17.30.090. MS. BUKAR stated that there are some changes in the "exempted drugs" section that still could cause some problems. As drafted now, over-the-counter products would not be exempt from subsequent proposals for record keeping. They do, however, support the removal of any record-keeping provisions, she added. CHAIRMAN KOTT clarified that by deleting the entire section 17.30.090, the amendment offered by NDMA would have to be inserted elsewhere. Number 1115 REPRESENTATIVE CROFT inquired if NDMA would support HB 3 if the proposed amendment was accepted. MS. BUKAR confirmed that NDMA would definitely support the bill under those conditions, and encouraged the committee to do so also. Number 1147 REPRESENTATIVE CROFT noted that there has been difficulty in the past with state law enforcement getting the reporting information from federal law enforcement. He asked whether this has been a problem in other states as well. MS. BUKAR reported, from past experience, that the DEA has been working to contact state narcotic enforcement agents. She added that NDMA is in the process of contacting DEA as well to inform them of their concern with this problem. Number 1193 REPRESENTATIVE MURKOWSKI sought clarification as to whether NDMA had a part in drafting HB 3 or if their model language is included somehow in this particular legislation. MS. BUKAR specified that their model language has been adopted, in whole or in part, in nine states, and the federal bill was worked on by a number of different trade associations. REPRESENTATIVE MURKOWSKI inquired as to how the nine states that had adopted this model language have handled the record-keeping issue. MS. BUKAR explained that these states decided that record-keeping would be too much of a burden on distributors, retailers and the Department of Public Safety. She emphasized that there are literally thousands of products that contain these various chemicals. Number 1287 CHAIRMAN KOTT directed attention to the list of type I and type II chemicals. He wondered if these lists would have to be updated at some point based on new synthetic drugs becoming available. MS. BUKAR acknowledged that the NDMA asks that same question of themselves every day. She explained, "The people who manufacture methamphetamine are amazing in their skills of finding new ways to manufacture methamphetamine." In the early 1990s, she added, they were only using ephedrine, and they were actually told by the DEA chemists that there was no way any other drugs could be used. After that, however, pseudoephedrine began showing up in the methamphetamine labs. She indicated that it would be very difficult to forecast what methamphetamine cooks will come up with next, and informed the committee that there are many different recipes containing various chemicals. Even with limiting all of those chemicals, she stressed, someone who is desperate enough to make and use this drug will find a way to do it. CHAIRMAN KOTT reported that he had heard producing methamphetamine was "about as easy as making chocolate chip cookies." MS. BUKAR said it wasn't quite that simple; however, there are recipes on the Internet that make it sound very easy. It is important to remember, she emphasized, that the chemicals used in combination to make methamphetamine are extremely dangerous, and the clean-up costs for this chemical waste can reach into "the five figures," depending upon the size of the laboratory. She reported hearing methamphetamine could even be made in the bathtub, but stressed that this combination is volatile no matter how it is manufactured. Number 1413 REPRESENTATIVE CROFT called attention to Ms. Bukar's previous statement regarding striking section 11.71.195. He asked if she meant striking the amendment to the section or the entire section. MS. BUKAR indicated that it was the position of NDMA to strike the entire section, and that adding their model language would still allow law enforcement to go after the methamphetamine criminals without having retailers carry the burden of reporting and record-keeping. Number 1444 REPRESENTATIVE CROFT observed that 11.71.195 and the NDMA proposed amendment (d) did similar things, and he wondered what exactly they preferred about their section (d) amendment. MS. BUKAR called attention to the sentence in 11.71.195 that says "Except as otherwise provided in this chapter, a". She felt that this suggested that all the listed chemicals carried the reporting and record-keeping requirement. REPRESENTATIVE CROFT agreed, but added, "that provides the phrase, and if we don't change it, then 11.71.195 will stay the same, without that 'except', and provide for the exemption if exempted under federal law." He felt that getting rid of the reporting provision in its entirety would require keeping 11.71.195, because without it there would be no exemption anywhere. He supported removing the "except" phrase, but asked if there were any other provisions in 11.71.195 that NDMA would like to see "tightened up." MS. BUKAR reiterated that it was their preference to remove the reporting and record-keeping statutes in their entirety. This would still provide an exemption for those products legitimately sold over-the-counter. Number 1543 REPRESENTATIVE CROFT observed that there are two options: either using the NDMA amendment or keeping 11.71.195 the same. He sought clarification as to whether there was any difference between the phrase "which is explicitly exempt from criminal penalty under federal law" and the phrase "may be lawfully sold over-the-counter." He believed these phrases do much of the same thing, but wondered if there was a nuance that he was missing. MS. BUKAR felt the phrase "explicitly exempt from criminal penalty under federal law" may be referring to the "safe harbor products" that she had previously mentioned. She did concur that there was not a great difference between the two phrases. REPRESENTATIVE CROFT inquired if the second sentence in 11.71.195, referring to 21 U.S.C. 301-392, was almost identical to their amendment. MS. BUKAR said, "I think so. One thing that I am concerned about though is making sure that your law enforcement officials still would retain the authority to prosecute for possession of over-the-counter products that are found in a lab." REPRESENTATIVE CROFT agreed that the phrasing was crucial, because these chemicals would not be exempt if the other element of intent to manufacture was found. MS. BUKAR clarified that the change would need to exempt over-the-counter products from the reporting and record-keeping burden, and yet still allow for prosecution of possession with intent to manufacture. Number 1641 REPRESENTATIVE KERTTULA questioned if keeping the "except as otherwise provided in this chapter" phrase would cover criminalization of possessing these chemicals in an attempt to manufacture methamphetamine. REPRESENTATIVE BRICE said yes. REPRESENTATIVE KERTTULA expressed concern that removing the record-keeping clause and the language in 11.72.295 would somehow cause a problem in allowing people to have nonprescription drugs due to the legislation being taken too broadly. Number 1718 REPRESENTATIVE ROKEBERG asked if the committee had the model statute that the last witness mentioned. REPRESENTATIVE BRICE responded that a number of different statutes have been implemented across the states. The bill before the committee, he explained, was based on the Oklahoma and Arkansas statutes, as well as a small portion of the United States code, and did not represent the uniform statute that Ms. Bukar alluded to. MS. BUKAR indicated her willingness to provide a copy of the NDMA model methamphetamine Act if needed. CHAIRMAN KOTT directed the witness to fax the document to the committee as soon as possible. Number 1808 REPRESENTATIVE CROFT asked if the Oklahoma and Arkansas Acts were modeled after the NDMA model. MS. BUKAR said that Arkansas, California, Idaho, Illinois, Iowa, Minnesota, Missouri, Montana, North Carolina and Washington have already enacted laws that punish those with intent to manufacture methamphetamine. She was not familiar with the Oklahoma legislation, but she volunteered to look at it for the committee. Number 1842 CHAIRMAN KOTT requested that Ms. Bukar draw some comparisons between the Alaskan proposed legislation and their model methamphetamine Act. MS. BUKAR noted that she has not had time to thoroughly review the two Acts and compare them, but she indicated her willingness to do so. She deferred further questions on comparison to her colleague, and left the teleconference momentarily to summon him. REPRESENTATIVE ROKEBERG asked Chairman Kott if his intention was for the committee to rewrite the bill during the current meeting. CHAIRMAN KOTT said no, and indicated that the intention was simply to review and compare to see if anything needed to be added to the bill. Number 1912 STEVEN M. MISTER, Associate General Counsel and Deputy Director of Government Relations, Nonprescription Drug Manufacturers Association (NDMA), testified via teleconference from Washington, D.C. He pointed out that their model legislation is very similar to what they are proposing in Alaska; however, it goes about things differently. He reiterated that the legislation punishes the possession of ephedrine, pseudoephedrine or phenylpropanolamine (PPA) with the intent to manufacture methamphetamine. Additionally, some of the other nine states with this legislation have added a section punishing those who sell the product knowing that it is going to be used for methamphetamine. This has been particularly useful in the Midwestern United States; law enforcement has staged raids on truck stops and other places that sell these products to undercover agents who specifically tell the distributor that their purpose is to go home and make methamphetamine. MR. MISTER addressed concerns the NDMA had about the Alaska legislation as recorded. Under federal law, he explained, retailers are exempted from reporting and record-keeping. It was the intention of NDMA, he acknowledged, to carve out the over-the-counter retailers from record-keeping and recording, but, at the same time, addressing possession with intent to manufacture. Specifically, he addressed the language of "except as otherwise provided in this chapter, a", indicating it should be left in. He stressed that it is their intent to prosecute an individual that buys an over-the-counter drug legitimately and then goes home and attempts to make methamphetamine with it; however, the desire of NDMA is that those types products be exempted from record-keeping and registration. Number 2035 REPRESENTATIVE GREEN referred to the states that criminalized knowingly selling chemicals for the purpose of manufacturing methamphetamine, and asked if those states were successful in their attempts to prosecute such individuals. MR. MISTER directed attention to two states, Iowa and Missouri, that have prosecuted store owners that have sold with absolute knowledge of intent to manufacture, and it is his belief that those prosecutions have held up. REPRESENTATIVE GREEN asked for clarification that, in fact, these individuals were actually convicted. MR. MISTER said yes, and explained that these were situations where undercover agents attempted to purchase thousands of pills and told the distributor what they were going to use them for. This type of a law, he added, allows law enforcement to operate "sting operations." Number 2093 REPRESENTATIVE CROFT directed attention to the model legislation. He questioned whether accepting the NDMA's amendment, or otherwise removing the reporting requirement, would then make Alaskan legislation substantially similar to their model. MR. MISTER stated that was correct. Number 2116 REPRESENTATIVE BRICE emphasized that he wanted the reporting requirement placed in the bill initially in an effort to discuss communication between local, state and federal law enforcement agencies on the issue. It was never intended, he explained, for that clause to remain in the bill, and he submitted to the committee that Section 5 could probably be done away with. He expressed willingness to work with the committee in establishing retail "sting" provisions, if they so desired. Number 2185 REPRESENTATIVE GREEN wondered if there had been a free exchange of the federal government's information to the state regulatory agencies or law enforcement. MS. BUKAR admitted that certain regional DEA offices are generally more cooperative than others, and stated that NDMA was very distressed to learn that Alaska's Department of Public Safety has been having problems getting this information. In certain states, however, there is a definite free exchange of information between local and federal DEA personnel. REPRESENTATIVE GREEN inquired, "Because of the onerous fiscal possibilities, would we be at our peril then relying on the graciousness of the particular federal agency that might be dealing with Alaska?" MS. BUKAR assured the committee that the DEA takes the methamphetamine problem very seriously and is striving for the best method to combat this problem. It is her hope that things will improve once the federal DEA is made aware of the communications problem in certain states. Number 2317 DEL SMITH, Deputy Commissioner, Officer of the Commissioner, Department of Public Safety, State of Alaska, testified in support of legislation regarding methamphetamine laboratories, and stressed the department's past and future willingness to work with the bill sponsor. He summarized the two most recent situations that occurred in Fairbanks last year. He reported that DEA agents responded to both of those incidents, and they are prosecuting one of the cases federally due to the sophistication of the operation and individuals involved. The other case, he noted, is being treated as an attempted manufacture and is being prosecuted by the state. MR. SMITH addressed previous concerns that the reporting section needs to remain in the bill due to lack of cooperation on the part of the federal government; however, he emphasized that the process of reporting would be onerous to Department of Public Safety and the public sector. He was surprised to hear of a problem with access to these reports because he thought communication would be duplicated, to some degree, by the federal government's involvement. Lieutenant William Gause, Statewide Drug Enforcement; Lieutenant Dennis Casanovas, Criminal Investigations Unit; and First Sargeant David Hudson, Division of Alaska State Troopers, have all absolutely assured Mr. Smith that there has not been a communication problem. MR. SMITH contacted the DEA office in the state of Alaska, and they also confirmed that they have been forthcoming in providing requested information. Nationally, he reported, the DEA is very concerned about the methamphetamine problem. He proudly declared that the level of cooperation between the local, state and federal agencies is unique to the state of Alaska. MR. SMITH cited the discovery of recent mobile methamphetamine labs in Seattle, and stressed the risks of mixing such volatile chemicals in populated areas. Not knowing the locations of mobile labs places entire neighborhoods in grave danger, he added. He described the extreme safety precautions that firefighters and hazardous materials specialists have to undergo. He readdressed one of the incidents in Fairbanks, and reported that the attempted manufacture charge reduced it to a C felony. The Department of Public Safety would have liked that to be higher, because of all the lives placed in peril by these labs. Number 2470 REPRESENTATIVE JAMES asked if the collection of these chemicals carried the same danger as manufacturing the methamphetamine. MR. SMITH indicated that would depend upon what form it was being collected in. Individual pills, for example, would probably not be as dangerous as a mixture sitting in a 55-gallon drum. TAPE 99-6, SIDE B Number 0004 REPRESENTATIVE JAMES inquired if criminalizing possession itself would improve chances of catching manufacturers of methamphetamine, She added, "Otherwise, you would have to wait until they went to the next step, and by that that time they may have blown up everybody." MR. SMITH pointed out that an individual having, for example, "six pallets of some kind of drugs" in the back of their house should, at least, be required to explain their intent. Number 0027 REPRESENTATIVE MURKOWSKI acknowledged that possession of such large amounts of a chemical carries with it a fairly clear intent; however, she wondered about the smaller quantities and/or combinations. She asked, "How bad does it have to get before we are concerned about it, in terms of the amount that you actually have in your possession? At what point do you go from just having it in your possession to actually being able to do something with it so that you do have that intent to manufacture?" CHAIRMAN KOTT agreed with Mr. Smith to defer that question to an upcoming witness, Sargeant Hudson, and announced that the question would be held until the time of his testimony. REPRESENTATIVE CROFT mentioned that he had various questions about the amounts, the merger issue, and about intent. He wondered if these questions, too, should be deferred to Sargeant Hudson. MR. SMITH indicated he would prefer that they would be. REPRESENTATIVE KERTTULA emphasized that by making it a violation just to possess and not changing section 11.71.195, possession of Sudafed for a common cold would become a crime. REPRESENTATIVE CROFT agreed, and added that quantity alone would not necessarily indicate intent, otherwise large stores would be prosecuted. Number 0117 REPRESENTATIVE JAMES recognized, however, that more than one person could be involved in this enterprise, and those individuals could distribute the various chemicals amongst themselves. She cited the example of a residential trailer in a rural area containing large amounts of a certain drug, and observed that the intent in this instance was probably not merely curing the occupants' colds. CHAIRMAN KOTT referred to Section 5 of HB 3 dealing with reporting of distribution of listed chemicals, and commented that he felt it was a little onerous. He asked Mr. Smith how the Commissioner of the Department of Public Safety would go about determining an amount or a quantity requiring reporting. MR. SMITH acknowledged that this has been a problem for him in the past couple of weeks. He indicated that a fiscal note might be needed for a clerk, computerization, notices and monitoring of businesses that report these chemicals. In view of the current financial situation in the state of Alaska, and the fact that the federal government is already doing this, it is his belief that this should not be the direction this legislation should go. Number 0221 REPRESENTATIVE ROKEBERG wondered how the state has currently been handling methamphetamine possession prosecutions. MR. SMITH referred back to the two cases in Fairbanks, and explained how they are being prosecuted. He stated that methamphetamine laboratories have been prosecuted since he arrived in Alaska in the 1970s. The strong odor used to make it very easy to identify these labs, and in those days the rumor was that many of them were located on islands in the Prince of William Sound. However, through the use of filters and other devices, methamphetamine can now even be manufactured in a trailer on a busy street in Seattle. REPRESENTATIVE ROKEBERG asked, "So, one thing you like about this bill is that it raises the threshold or the amount of penalty?" MR. SMITH again referred to one of the cases in Fairbanks as an example. He explained that the difficulty in prosecuting that particular case was that law enforcement had to charge attempted manufacturing instead of manufacturing, despite the fact that the lab was clearly manufacturing methamphetamine. Number 0298 REPRESENTATIVE GREEN wondered if the penalty would represent a graduating scale based on determining the amount the lab intended to produce. MR. SMITH indicated that issue was something he had thought about, and expressed his opinion that a large operation on one side of town and a small operation on the other ought to represent varied levels of severity. He said he suspected this was already the case, but did not have a direct answer as to "what level that would kick in." He felt that Sargeant Hudson, an upcoming witness, would be better qualified to answer that question. REPRESENTATIVE GREEN expressed concern that individuals would simply possess smaller quantities of these chemicals and manufacture methamphetamine more often in an attempt to lessen the degree of their penalty. MR. SMITH commented, "If you had possession of all these items that you could do something with, but you had not reduced them to the common denominator and you didn't have any equipment to do that, it is slightly, or substantially, different, in my view, than having all of this sitting outside the building and you've got the necessary equipment inside to make methamphetamine." He felt that all of these factors should be considered when determining at what level an individual is charged. He stressed that he and his staff have been on a "steep learning curve" in trying to figure out the best way to address this problem without impacting the vendors or agencies inadvertently, but he had no recommendations at this point. Number 0449 REPRESENTATIVE ROKEBERG noted that there was a long list of chemicals in the sponsor's bill; however, only three chemicals are listed in the model legislation. He sought clarification as to whether the model legislation would be adequate or if the "laundry list" of drugs needed to be incorporated in the bill. He reminded the committee that previous testimony has indicated that these chemicals can change on a daily basis. MR. SMITH advised that he was concerned about a detailed list, and specified that the broadest possible indicator would be his choice, as opposed to specifics. He agreed with previous testimony that someone could come up with a chemical that did the same thing, but was not on the detailed list, at any given time. REPRESENTATIVE KERTTULA wondered if the state would run into proof problems if the legislation was written this broadly. MR. SMITH agreed, and added that it would be very fine balance. Number 0536 REPRESENTATIVE CROFT stated that he was uncertain what some of the chemicals were, specifically, ephedrine. MR. SMITH defined ephedrine as "a stimulant used as an ingredient in diet pills, illegal recreational drugs, and legitimate over-the-counter medications to treat congestion and asthma." REPRESENTATIVE CROFT pointed out that pseudoephedrine, ephedrine and phenylpropanolamine (PPA) were listed in both HB 3 and the model legislation. If the concern was that HB 3 would not have as broad of a coverage as the model legislation, he stressed, it should be noted that it does. REPRESENTATIVE ROKEBERG called attention to the fact that inadvertently leaving something out of a specific, detailed list would give grounds for defense; whereas, if there is a more generic definition, it may be all-encompassing. On the other hand, certain language may be too vague and could fail under "constitutionality grounds." He felt that the Department of Law could help clarify this matter. CHAIRMAN KOTT expressed his belief that the model legislation was a little more narrow than HB 3. Number 0661 FIRST SARGEANT DAVID HUDSON, Central Office, Division of Alaska State Troopers, answered questions via teleconference from Anchorage. REPRESENTATIVE CROFT acknowledged that he had concerns about the merger aspects of this violation. He said it was his understanding that the completed manufacture of methamphetamine is a B felony, but it would be an A felony under HB 3 to possess the precursors with intent to manufacture, and attempt to manufacture would either be an A or B. He wondered how the court would handle possession of a precursor as a higher penalty than successful manufacture. FIRST SARGEANT HUDSON responded that he was not sure how the Department of Law makes their determination of A, B or C felonies. He agreed that, under current law, manufacture is a B felony, and attempt is reduced by one count to a C felony. He was unsure why it was proposed that possession with intent be an A felony when, in fact, manufacture indicates a B felony under current statute. REPRESENTATIVE CROFT stated that he had heard it was really difficult to quantify amounts of methamphetamine. He sought clarification as to what would be a standard usage of methamphetamine. FIRST SARGEANT HUDSON testified that the actual usage on the street is very, very minimal, and that is why it is such a lucrative business to take a small amount of chemicals and turn them into an even smaller amount of chemicals. Under the Chemical Diversion of Trafficking Act of 1996, ephedrine can be tracked at the sales level at + kilogram. For pseudoephedrine, he explained, the federal government recommends that stores not sell more than 48 grams of pseudoephedrine at a time, approximately two packages. This legislation does not mean an individual is required to give their name and identification when purchasing two packages of cold medication, but it is suggested that customers purchasing more than two packages of pseudoephedrine in one transaction would be unusual. What is being done around the nation to circumvent this rule, he reported, is that individuals will buy two packages of pseudoephedrine, walk out the door, walk back in the door and buy two more packs, and literally do this all day. He stressed that it takes a small amount of these analogues to be put together to make a final processed chemical which can be sold on the street for a large amount of money, and that is why it is so difficult to quantify specific minimum amounts that law enforcement would want to track. It would so burden the average consumer and vendor to completely track these chemicals, he pointed out, that getting individuals to comply would be extremely difficult. Number 0908 REPRESENTATIVE CROFT called attention to the model legislation referring to ephedrine, pseudoephedrine and PPA. He asked Sargeant Hudson if he had a copy of HB 3 bill, and, if so, if he was familiar with any of the other chemicals listed on that bill. Specifically, he wondered if the chemicals listed were sometimes used for the same or similar illegal purposes. FIRST SARGEANT HUDSON reported that he gave the legislation to a laboratory specialist. He asked the lab if these chemicals were also used in the process, how they were used, and if others were used. He was told that there are other substances that are not on this list that are being found adequate as substitutes for chemicals on the list. He mentioned "red phosphorous" which is a chemical used to separate pseudoephedrine from its binders, and stated that it is not on this list. In the 1997 Federal Diversion and Trafficking Act, there were 34 substances on their list I and II; however, literally on a monthly basis, other substances are being found and used to circumvent the current registration law. It is important to remember, he added, that many of the chemicals on these lists have legitimate commercial purposes daily. CHAIRMAN KOTT asked the witness if he had been involved in any of the methamphetamine laboratory "busts." FIRST SARGEANT HUDSON stated that he worked in narcotics from 1993 to 1995. Although he went to numerous training sessions on drug labs, at that time they were really uncommon in this state; therefore, he has never been to a methamphetamine laboratory when it was being raided. CHAIRMAN KOTT wondered how often pseudoephedrine is discovered in any drug lab busts in this state. It was his understanding that it was only found in about 38% of the cases in the lower 48. FIRST SARGEANT HUDSON indicated that was his understanding as well. He testified that the chemical was usable, but by no means was it always present in these labs. CHAIRMAN KOTT asked if, statistically, Alaska was still about three years behind the lower 48 in usage. FIRST SARGEANT HUDSON stated that DEA representatives have indicated to him that Alaska is "behind the curve" according to national standards, but did not specify how many years; however, he reported that he has heard the three-year figure in the past. Number 1150 REPRESENTATIVE GREEN cited personal experience from laboratory classes in college, and said that he felt he used chemicals from this list, in one form or another, to do experiments in class. He wondered if a school lab could be charged if an individual expropriated chemicals from it or if the individual would be charged. His concern was that by using a detailed list, however, the state could "get ourselves in a box" with regard to the rapid change in usable chemicals, but questioned whether or not something else had to be added to the list in the model legislation. He asked, "Are we making this much more difficult than necessary?" FIRST SARGEANT HUDSON stressed that this is a dynamic and changing business of manufacturing drugs, and the state would probably not want to tie their hands by making an exhaustive list of chemicals. He referred to a California statute that states an individual possessing two, specifically named, chemicals at the same time would be guilty of a felony crime. The state of Alaska would probably benefit from looking at what our definition of manufacture is in this state under title 11.71, or possibly look at making the attempted manufacture of these methamphetamine-type drugs the same level of crime as the actual manufacture, he added. By doing so, he explained, the state could utilize the laws that are already in place. He explored another option, which would be to look at a statute of possession of chemicals in a grouping, as these chemicals used in various ways by themselves are not illicit. Combination of these chemicals to certain analogues, however, could only be construed to be an attempt to construct these illicit substances. Number 1407 ANNIE D. CARPENETI, Assistant Attorney General, Juneau Legal Services Section, Criminal Division, Department of Law, provided testimony in support of the efforts of HB 3 in trying to prevent the development of large-scale methamphetamine laboratories in our state. She reiterated that they are very dangerous, not just to the people that work in them, but to the innocent victims who happen to live around them, and also to the environment. The department is unsure at this time, however, as to the correct approach to this problem. One of the problems with the HB 3, she explained, is that it makes it a class A felony to possess legal substances with intent to manufacture an illegal chemical, but the current law makes it a class B felony to manufacture and to possess the immediate precursors with the intent to manufacture. MS. CARPENETI testified that the second problem is making an inclusive list that will not change. The individuals who manufacture methamphetamine, she reported, know a lot more about the usable ingredients and are very clever about making substitutes. If you make the offense possession of a listed chemical with the intent to manufacture an illegal drug, people will figure out other chemicals to use for manufacturing methamphetamine. Under the federal law, she added, drug schedules can be changed by regulation, and this is done on a monthly basis by adding and taking away substances from their schedules. In Alaska, this can only be done by legislation, so it is a much tougher process to add and delete substances. Number 1566 REPRESENTATIVE ROKEBERG asked if the federal DEA type of list could be adopted by reference. MS. CARPENETI stated that she believed our statutes required the state to make changes by legislation. The suggestion of the Department of Law, she reported, is that the legislation consider raising the manufacture of methamphetamine to either a first or second-degree misconduct involving controlled substances. This would involve removing the offense from its current B-felony status, which is third degree, and move it up to first or second-degree. They recommend not having a list, per se, of particular chemicals, but provide that it is a more serious crime to manufacture or to attempt to manufacture methamphetamine. After placing both attempt and manufacture on the same level, she added, you could then make some statutory provisions to guide the court in its evidentiary decisions and provide that possession of particular chemicals, in whatever combination, may be evidence of intent to manufacture. Number 1690 REPRESENTATIVE CROFT sought clarification as to whether this would still consider possession of any of these items a substantial step towards qualifying for the attempt to manufacture. MS. CARPENETI said that was correct. She added that this would not make it a conclusive presumption, but that if somebody had a pallet of chemicals they would have no other use for, the court could instruct the fact finder that it would up to them to conclude whether or not they should indulge that presumption or not. MS. CARPENETI provided the committee with an update on the newspaper article about one of the cases in Fairbanks. She agreed that the article was probably correct when it was published, but since that time, the individual in question was indicted for attempted manufacture of a controlled substance. He was extradited to Oklahoma, and faces sentences of 20 years to life in two different counties. Number 1786 REPRESENTATIVE CROFT referred to the suggestion in the model language, section 2, for punishing sales when the person knows the purchaser is going to use the chemicals for manufacture of a controlled substance. This section was created to assist in "sting operations," and he asked Ms. Carpeneti if there were any legal problems with such legislation. MS. CARPENETI responded that it would be very hard to prove, and it would be highly unlikely that the purchaser would state they were buying those chemicals to make methamphetamine. She indicated her willingness to work with the sponsor in drafting the suggestions of the Department of Law . Number 1889 REPRESENTATIVE GREEN wondered if circumstantial evidence was grounds for prosecution of a felony. MS. CARPENETI specified that there was great circumstantial evidence and bad circumstantial evidence. Some circumstantial evidence can be as good as direct evidence, but it depends upon the situation. REPRESENTATIVE GREEN referred back to the quantity issue, and wondered if that could be used to prove intent. MS. CARPENETI believed it could definitely be argued that possession of large amounts of chemicals that have no other purpose than use in these labs could go to intent, and that this would be persuasive evidence that the person intended to use them for this purpose. Number 1994 GERALD LUCKHAUPT, Attorney, Legislative Legal Counsel, Legislative Legal and Research Services, Legislative Affairs Agency, came forward to testify on HB 3. He cited personal experience of having been at a methamphetamine laboratory in the 1980s when he was a prosecutor. He referred to Representative Rokeberg's question about the possibility of adopting the federal schedules by reference and not having a specific list of chemicals. He stated that the drafting manual from the Attorney General's office says that this should never be done, and he gave the example of the Northern Lights Motel in Anchorage. This case had to do with do with adoption of a plumbing code by reference, and the issue was if this code could be adopted by some non-governmental group and then applied as a penalty to Alaska citizens. The Supreme Court basically said that the legislature could not do this, and that they would have to adopt it themselves or identify a specific list. He observed that dealing with felony offenses makes this even harder to justify. MR. LUCKHAUPT added, "When I worked for the Attorney General down in Wyoming, I was the attorney that added drugs to our schedule. Whenever the feds changed their list and I signed it on behalf of the attorney general as the commissioner of drugs of Wyoming, and I would just sign this and adopt it, it became part of the law and went into the statute books the next year by regulation. That was a regulatory context in which I was doing that. We had decisions, though, in Wyoming that were different based upon the Wyoming constitution that allowed us to adopt these schedules from other states or other regulatory bodies." He reported having had to research this issue two to three years ago with regard to the federal drug schedules when dealing with adding the "date rape drug." If there is any discrepancy when dealing with controlled substances, he stressed, state prosecutions will be affected for quite some time and will have to wait until the legislature meets again. Because of that, he explained, the committee at that time decided not to "go down that road." State constitution is the determining factor as to whether new controlled substances can be added by legislation or regulation. MR. LUCKHAUPT reiterated that the federal government decided to use the list of chemicals; however, the only time there is a problem with possession is if there is intent to manufacture an illegal controlled substance. Disregarding the reporting requirement issue, if intent to manufacture is not proven, possession of such chemicals is not a problem. Many times, manufacturers simply substitute what they are able to find on that particular day, and they also spend time trying to find additional chemicals that will work. TAPE 99-7, SIDE A Number 0001 MR. LUCKHAUPT specified that all chemicals do not have to be on a list in order to convict someone of attempt to manufacture. The state could always set a level of evidence by statute to meet the state's burden for conviction, he explained, and once those two or three things are established, the burden is then shifted to the defendant to refute intention to manufacture. An example of this would be combining the possession of a listed chemical along with glassware in a particular structure, and that could meet the requirements for having an illicit laboratory. He did not endorse the NDMA model legislation. He indicated that ephedrine cannot be sold freely over-the-counter in the United States any more, unless it is combined with significant amounts of other medicinal substances for a specific purpose. Pseudoephedrine and PPA can still be purchased over-the-counter, however, and are found in various cold medications. It is these three ingredients that methamphetamine producers usually use as the base material of their product. MR. LUCKHAUPT advised that, since reporting has been required, it has become popular to use the plant ephedra as it grows naturally throughout the world. Since the United States ephedra plants do not usually contain as much ephedrine, it is often imported from China. One of the varieties of this plant is Ma Huang, which has been popular in health food stores and gyms, and this is used to give people energy. He added, "If we just identify those three things here in the statute, what about a person that is going out to buy one of those three things, but they have already located the material they need to separate out the methamphetamine itself from the other base materials?" Sometimes, he explained, those types of chemicals are more difficult to get than the ephedrine, pseudoephedrine or PPA, which can often be simply purchased at the grocery store. Number 0438 REPRESENTATIVE GREEN recognized that the chemical list could be so long that an omission would allow someone to escape punishment. With that in mind, he asked if it would be better to just penalize the end result, and if the word "methamphetamine" would simply be enough to prosecute. In other words, could the legislation simply say that it is illegal to have the materials with the intent to make methamphetamine, and not get so embroiled in all the various definitions? MR. LUCKHAUPT agreed that doing that would definitely have its benefits. He stated that he drafted both HB 3 and HB 11 over a period of time, depending upon the particular direction people were going at the time. He mentioned that the state can already prosecute these offenses as an attempt to manufacture now; however, it moves one step down to a class C felony. The legislation has been drafted to equalize the penalty, because the attempt is just as dangerous as the manufacture. He reiterated that the fact that a particular drug not being on the list would not necessarily stop the state from prosecuting as an attempt to manufacture. He referred to federally scheduled drugs, and pointed out that there are over 100 different drugs listed as Schedule I. Schedule II drugs include methamphetamine, immediate precursors to methamphetamine, and various chemical forms of methamphetamine. These drugs are specifically listed in statute, he stressed, because of the length of potential incarceration. In Alaska, he reported, the drug schedules have not really been kept up to federal schedules. They matched the federal schedules in 1982 when they were adopted; however, the Alaska legislature has chosen over the years to classify some drugs differently than the federal schedules. Mr. Luckhaupt stressed that any attempts to adopt the federal schedules by reference would affect the other classifications as well. The legislature has also chosen not to add drugs to the schedules in the past, he added, and gave anabolic steroids as an example. Marijuana is another example of a drug that was, at one point, legal to possess under state law but illegal under federal law. He agreed that drug manufacturers usually do stay one step ahead of the lists to a certain extent; however, schedules can be amended when they need to be. MR. LUCKHAUPT urged the committee to consider if the creation of a drug lab in an apartment building was as dangerous as selling drugs to children. If it is decided to be, he stressed, then the penalty should be the same, and an increase in the penalty for manufacturing methamphetamine may be warranted. He cited his personal experience in law enforcement, and stated that he personally never came across another type of drug lab, only marijuana grow operations and methamphetamine labs. It was his opinion that LSD laboratories were not as common; however, if there are other drug laboratories that are a problem, the legislation should not be limited to methamphetamine. He stated, "If it is a problem that seems to exclusively apply to methamphetamine, then maybe we need to pick out methamphetamine, its analogues, its immediate precursors, the salts, the optical isotopes, the salts of the optical isotopes, and create a section that just deals specifically with them, and make that part of misconduct involving controlled substances in the first or second degree. If you manufacture, attempt to manufacture, conspire to manufacture, solicit the manufacture of any of these drugs, the penalty will be the same, because the danger is all the same." Number 1010 REPRESENTATIVE CROFT asked if the manufacture of methamphetamine could be increased to an A felony, which would increase the attempt to a B, and clarify somewhere that possession of any of these precursors, and maybe fold the list into that, may be considered a substantial step to qualify under the attempts statutes. MR. LUCKHAUPT said that would be possible. By setting up a presumptive offense, he clarified, the state would not necessarily exclude any other attempted prosecution using different factual circumstances or different chemicals to the extent somebody uses one that is not on the list. Number 1079 REPRESENTATIVE ROKEBERG wondered if there was a particular reason red phosphorous was omitted from the list in HB 3. MR. LUCKHAUPT stated that if it was not on the federal list, he did not draft it on the HB 3 list. He agreed that he had heard red phosphorous was one of the chemicals used, but he has not confirmed it was not already listed there under a different chemical name. REPRESENTATIVE ROKEBERG referred to the previously mentioned Northern Lights Motel case. He questioned whether or not the legislature could turn over a Supreme Court decision that is not based on constitutional dimension by enacting a law to change "that which seems absolutely ludicrous." He stressed that the legislature had to change the way they were doing business, which would involve drafting statutes that are not always so complex. MR. LUCKHAUPT agreed, but not if the Supreme Court states it is of constitutional dimension. He added, "The point the Court was trying to make in that case was the legislature is elected by the people. If other group changes this group of regulations that does not exist in Alaska, maybe some trade group, those people in Alaska do not have a right to turn to their legislator and influence that decision. It just automatically changes when this other group makes the change. The Supreme Court said that was the legislature delegating its law-making powers to some other group, and that is where the problem comes in, and that is of constitutional dimension." If you identify a date and time certain, he continued, the public would then have notice and it would not automatically change in the future. Number 1272 REPRESENTATIVE KERTTULA asked for specific examples of other crimes where the attempt is actually at the same level as the underlying crime. Normally, she pointed out, the attempt is actually the next step down. MR. LUCKHAUPT said that attempted first degree murder was the only example of that. There were one or two other situations, he reported, where the word "attempt" is actually mentioned in Title 11, outside of AS 11.31.100 which is the "attempt statute." Other than first degree murder, however, attempt is always punished one step down. REPRESENTATIVE KERTTULA clarified that this legislation would create an anomaly by stating the attempt was in the same class as the crime. MR. LUCKHAUPT explained that it is generally recognized that the attempt to commit a crime is less serious than the actual commission of the crime; therefore, this would encourage people to abandon their attempt to commit a crime in an effort to benefit from some lenience. However, the argument with drug labs is that you do not actually have to complete the commission of the crime in order to provide the main hazards: the volatility of the chemicals, the hazardous materials, and the danger it presents to other people. Consequently, the argument for a step-down penalty is not there, he noted. Number 1367 REPRESENTATIVE MURKOWSKI requested a brief summary on the differences between HB 3 and HB 11. MR. LUCKHAUPT outlined that HB 11 also requires the person possessing chemicals to file a statement with the Commissioner of the Department of Public Safety when they cross a threshold amount of chemicals. He assumed that either one of these bills would necessitate adoption of federal limits, and these limits were set by the Attorney General of the United States. The federal statutes provide an exemption for over-the-counter drugs, takes away the exemption for pseudoephedrine, ephedrine or PPA, and then gives the exemption back for less than 24 grams of pseudoephedrine or PPA, as well as retail sales for ephedrine. REPRESENTATIVE MURKOWSKI asked if it was "suspicious activity" that is to be reported. MR. LUCKHAUPT explained that an individual buying two packages of cold tablets should not be reported. He indicated that a medium-sized methamphetamine lab would require at least 80 packages of 12 tablets of pseudoephedrine or PPA to cook a small batch. The federal regulations state that DEA will contact retail manufacturers and will inform them to look out for certain individuals, and will actually give them names, that they are suspicious of, and educate retail manufacturers on how to identify suspicious sales. Number 1536 WILDA RODMAN, Legislative Assistant to Representative Gene Therriault, Alaska State Legislature, presented a statement for the record from Representative Therriault regarding HB 3. He wanted to state his concerns with some of the cost-effectiveness of the recording requirements. She stated, "Representative Brice has the lower numbers, so we are willing to go with the consensus of the committee on HB 3." CHAIRMAN KOTT asked Representative Brice if he had anything to add, and indicated his intention to hold HB 3 in committee to allow staff to work with the Department of Law, the bill drafter, and Representative Brice's office. Number 1592 REPRESENTATIVE BRICE wondered if the bill should take the direction of having the evidence establish prima facie, rather than the specific lists of chemicals. He stated that either way was amenable to him, and expressed his willingness to draft a couple of different proposals to present back to the committee. CHAIRMAN KOTT announced that House Bill 3 would be held in committee for further consideration.
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