Legislature(1999 - 2000)
03/10/1999 01:27 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 LISTED CHEMICALS Number 1099 CHAIRMAN KOTT announced the next order of business is HB 3, "An Act relating to controlled substances and to the possession and distribution of certain chemicals." CHAIRMAN KOTT indicated there is a proposed committee substitute (1-LS0040\H, Luckhaupt, 3/8/99) and called for a motion to adopt it. Number 1117 REPRESENTATIVE GREEN made a motion to adopt the proposed committee substitute for HB 3 (1-LS0040\H, Luckhaupt, 3/8/99). There being no objection, it was so adopted. Number 1135 CHAIRMAN KOTT explained the changes in the proposed committee substitute. Section 1 now states that possession with intent is a class A felony in the second degree. An attempt would, therefore, drop to a class B felony correcting the anomaly in the statutes. Language was also added to include "immediate precursor", a term of art referencing certain chemical types primarily in the methamphetamine statutes. Section 5 was also eliminated that required the reporting by retailers. The new Section 5 is a list of chemicals that are used in the manufacturing of controlled substances in violation of AS 11.71. Number 1223 REPRESENTATIVE CROFT noted that the registration requirement was also eliminated. Number 1235 REPRESENTATIVE GREEN referred to the listed chemicals in Section 5 and wondered whether the possession of a similar type of chemical with paraphernalia would be enough to go back to a class B felony. Number 1272 REPRESENTATIVE CROFT said, "It's two different approaches to that. We try in Section 5 to say listed chemicals and chemicals that are used in the manufacture they include. And, so that's one way we give them a hook to maybe even charge the A. At least, it would be if I have beakers and a unlisted chemicals that they can show are in fact constituents of--of meth, that I would be able to do an attempt of this crime, which is the crimes in A and attempt would be a B." REPRESENTATIVE GREEN stated a charge could fall back to an class B felony, if a class A felony doesn't make it. That sounds good. Number 1310 REPRESENTATIVE ROKEBERG said he is a little disappointed and concerned about the list of chemicals in Section 5 and the reference to it in Section 2. The language reads in Section 2, "(c) In this section, 'listed chemical' means a chemical described under AS 11.71.200." The term "a" is singular. He said, "I think we're right back to the--the mom's got the iodine problem and that's really, really troublesome on any (indisc.). And, we had the discussion at the last committee hearing that the Legislative Counsel about the (indisc.) case that we can't adopt by reference. We're trapped in this perhaps case that demands some legislative over--overturning. In terms of adopting by reference, we've found ourselves in that problem because we can't refer with federal--with federal list of changes, dynamic, on-going, organic basis for the changes. We have to be stuck with listing all the stuff in statute. And, I'm very (indisc.). Could you speak to the problems encountered in doing that? I mean it's really a problem to me." Number 1375 REPRESENTATIVE CROFT said, "Well, I can, Mr. Chairman. It's an important public policy decision that I think you and I disagree on. Obviously, with this draft before us, you could propose an amendment that would do that." The issue is, can the statutes be amended in an area where people will go to jail for a long time for something that happens outside of this body. It is a problem that arose in the changes to the building and/or plumbing codes. He said, "Can we allow the third annual or twenty-fifth annual meeting of the plumbers association in Las Vegas to change our statutes? With all respect to what they do at the twenty-fifth annual meeting of the plumbers in Las Vegas, I don't yet know if I want to adopt some, all or none of what they've done. And, when we say in a statute as is amended from time to time by this or other private, or semi-public or public group, even the federal, we're going to make our own decisions about what our law contains..." Number 1437 REPRESENTATIVE ROKEBERG interjected and stated the departments adopt additions by regulation. They are not adopted in a vacuum or in blank. REPRESENTATIVE CROFT replied the legislature has proposed to put in statute the building code as it is adopted from time to time. And the legislature has proposed to put in statute that the departments may adopt building codes by regulation. He thinks it is appropriate to adopt by regulation. It is troublesome enough in the building code area and even more troublesome when someone could be sent away for a long time. Number 1480 REPRESENTATIVE ROKEBERG said the building codes are adopted on a periodic basis after an Administrative Procedure Act (APA) review. They are not adopted totally be reference. The concept is adopted by reference, but there is a regulatory process taken to update them. There is a review and public comment overcoming any of the arguments. He reiterated he is troubled by Section 2(c) and wondered whether it restricts the list to this particular chapter or offense or is there a sideboard. He wants a sideboard or fence put around the list so that it doesn't slop over into general use. He reiterated he is troubled by the language in Section 2(c) and would like to see it word smithed so that it only applies to the intent. He wondered whether AS 11.71.020 refers only to the offense it references. Number 1603 REPRESENTATIVE GREEN stated it seems a definition is being added on page 2, line 7, "(4) possesses a listed chemical with intent to manufacture any...". In other words, if a person has a bottle of iodine to take care of a scratch, there is no intent because that person doesn't have the paraphernalia to manufacture methamphetamine. CHAIRMAN KOTT asked Ms. Carpeneti whether she agrees with Representative Green's assessment. ANNE D. CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law, replied yes she agrees with Representative Green's assessment. "Listed chemical" is added to page 2, line 7 and is being defined in AS 11.71.020. She is not aware of the term being used in any other area of criminal law. Number 1670 REPRESENTATIVE ROKEBERG asked whether AS 11.71 deals with methamphetamine. REPRESENTATIVE CROFT stated the only statute that concerns this list is in the methamphetamine statute. He said, "We don't 'criminalize' possession of a listed chemical with intent to produce cocaine or whatever. The only time we ever use it in statute is on page 2, lines 7-12, where we say possessing a listed chemical with intent to manufacture meth or an immediate precursor. So, while it sounded generic, it is only ever referenced in the meth statute." Number 1710 REPRESENTATIVE ROKEBERG asked what will be done about "ecstasy" and other street compounds that come along. He wondered whether there will be multiple lists in the statutes. REPRESENTATIVE CROFT said, "In those areas because of the special dangers of meth labs, we've chosen to take the step down into listed chemicals. And, under any other drug, we penalize the manufacture, actual manufacture, possession with intent to distribute, possession at a lower level and in some cases attempted manufacture. This listed chemical step has only really been done in meth because of the dangers of meth labs and the dangers of using these listed chemical in the preparation process. Number 1742 REPRESENTATIVE MURKOWSKI asked whether AS 11.71 specifically deals with the manufacture of methamphetamine. REPRESENTATIVE CROFT replied AS 11.71 is the general controlled substances area of Chapter 71. There could be a listed chemicals for methamphetamine because it's only ever used in the methamphetamine statute. It is in effect that already. Number 1767 REPRESENTATIVE ROKEBERG noted it is common in drafting language to refer to definitions that are applicable to certain sections or subsections in chapters. He appreciates the comments made by Representative Green and Ms. Carpeneti regarding the intent. He wants to make sure it is clear. Number 1812 REPRESENTATIVE KERTTULA noted that there has to be the intent to manufacture methamphetamine and the list sets out exactly what a person has to have. REPRESENTATIVE ROKEBERG stated the problem here is the constitutional right to accuse someone with the intent to manufacture with the possession of one of these chemicals. CHAIRMAN KOTT stated that is a potential problem, but proving intentional behavior is extremely difficult. Number 1845 REPRESENTATIVE CROFT referred to Section 11.71.020 and noted the only time "listed chemical" is said in the proposed committee substitute is on page 2, lines 7-12. Therefore, whether a housewife possess a listed chemical with the intent to manufacture methamphetamine or an immediate precursor that housewife is in, and if not, that housewife is out. CHAIRMAN KOTT said that is his understanding as well. MS. CARPENETI said it is actually limited to this one particular paragraph of this section. Number 1890 REPRESENTATIVE GREEN said, "On that same issue, when we go back to the schedule where there are harmful products--I mean there's two to three pages in here where they're by themselves listed and it's under a heading that says, 'a substance shall be placed on schedule A, if it is found under the statute to have the highest degree of danger or probable danger to the person in public'. Iodine certainly wouldn't fall under that category, and so it's listed separately over here which as we've said just applies to this particular section. It's not one of these nasty bad guys that's listed here over a general purpose, so says my counsel." Number 1922 MS. CARPENETI stated the head of the drug enforcement unit in Anchorage thinks it is an excellent draft and appreciates the efforts. REPRESENTATIVE CROFT stated the sponsor likes the draft. Number 1940 REPRESENTATIVE TOM BRICE, Alaska State Legislature, sponsor of HB 3, expressed his appreciation for the work done by the committee and Representative Croft, and announced his support of the proposed committee substitute. Number 1962 REPRESENTATIVE GREEN made a motion to move the proposed committee substitute to HB 3 (1-LS0040\H, Luckhaupt, 3/8/99) from the committee with individual recommendations and the attached zero fiscal note. There being no objection, CSHB 3(JUD) was so moved from the House Judiciary Standing Committee.
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