Legislature(1999 - 2000)
04/22/1999 01:20 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 180 - DRUGS WHERE MINORS ARE PRESENT
CHAIRMAN KOTT announced the next order of business is HB 180, "An
Act relating to the possession, manufacture, use, display, or
delivery of controlled substances while children are present."
Number 0477
REPRESENTATIVE JOHN COWDERY, Alaska State Legislature, came before
the committee as sponsor of HB 180. The bill is under the premise
that second-hand smoking is dangerous to a person's health;
therefore, what does cocaine do to children in their presence? The
intent of the bill is to charge a person with child abuse who
smokes cocaine or uses a controlled substance in front of an
underage child. The intent of the bill is to also charge a person
with child abuse who is caught drinking and driving with an
underage child and convicted.
Number 0545
PETER TORKELSON, Researcher for Representative John Cowdery, Alaska
State Legislature, came before the committee to explain the bill
further. He explained HB 375, from last year, opened up this very
section and set out a new provision. This bill deletes the
language from AS 11.51.110 - "Endangering the welfare of a child in
the second degree" - and uses that intent and moves it up to AS
11.51.100 - "Endangering the welfare of a child in the first
degree." It also expands the sphere of beyond just a dwelling or
vehicle. Representative Cowdery is concerned about a campsite or
an enclosed yard for example. As a result, the bill reads, "the
immediate physical presence of." He noted that the dwelling and
vehicle parameters are still maintained.
MR. TORKELSON further stated that the bill has two standards. One
for younger children, which is harsher, and one for older children.
In addition, AS 11.51.130 brings in possession. In other words,
maybe it can't be shown that drugs are being manufactured or used
in a particular place, but they are there.
Number 0678
REPRESENTATIVE MURKOWSKI asked Mr. Torkelson to clarify the age
breakdown in the bill.
MR. TORKELSON replied the current law only recognizes the
endangerment of children around drugs under the age of 10, which is
a small group of people. It doesn't hurt a child the age of 11?
he asked. At that age, a child is still impressionable. The bill
raises the bar to under the age of 16 with a stiffer penalty. The
bill also raises the bar to under the age of 18 with a less stiff
penalty because at that point a child is less vulnerable.
Number 0753
REPRESENTATIVE MURKOWSKI questioned the language removed in Section
2(a).
MR. TORKELSON noted that the language was removed because it became
redundant once the bar was raised.
REPRESENTATIVE GREEN noted in Section 1 the language "display" is
used, while in Section 3 the language "delivery" is used. He asked
Mr. Torkelson whether there is a reason for the difference.
MR. TORKELSON replied the language "display" is from the existing
controlled substance laws. He's not sure why the word "delivery"
was used instead of "display" in Section 3, however. He noted that
the standard of proof in (A) is knowing the possession was
occurring, while in (B) it is over actions - manufacture, use and
delivery. A reasonable person should be able to recognize when
those types of activities are occurring in that person's presence,
which is a lower standard of reckless disregard.
CHAIRMAN KOTT noted that the difference in verbiage still needs to
be clarified.
Number 0921
REPRESENTATIVE COWDERY informed the committee that Mr. Del Smith
[Deputy Commissioner, Department of Public Safety] thought it was
a good idea. He also noted that the attorneys in the Department of
Law felt that the penalties would be too hard to prosecute. It was
his decision to leave that hardness in the bill because a
prosecution is difficult even for easy cases. He is hoping that
the penalities would be just enough to get a person's attention.
Number 0990
MR. TORKELSON said it is not clear just by looking at the bill to
determine the penalty provisions. He explained in AS 11.51.100 the
penalty is a class C felony, and in AS 11.51.130 the penalty is a
class A misdemeanor.
Number 1040
REPRESENTATIVE MURKOWSKI asked Representative Cowdery whether he
has considered how this would play into the new laws relating to
the medical use of marijuana.
REPRESENTATIVE COWDERY replied he hasn't thought about it.
Number 1066
MR. TORKELSON noted that there are a couple of pending pieces of
legislation that are working in-concert with the medical use of
marijuana initiative.
Number 1088
CHAIRMAN KOTT asked Mr. Gerald Luckhaupt from the Legislative
Affairs Agency whether the medical use of marijuana would be
lawful; therefore it wouldn't fall within the parameters of the
bill, if it can be determined what is and isn't lawful.
Number 1094
GERALD LUCKHAUPT, Attorney, Legislative Legal Counsel, Legislative
Legal and Research Services, Legislative Affairs Agency, came
before the committee to answer questions. He replied the bill says
knowing that a controlled substance is unlawful. The initiative
provides immunity for a person using medical marijuana from any
criminal charge, prosecution, or civil sanction. Therefore, it
would also provide immunity for the criminal act in the bill, if it
could even be argued that it was criminal. It would provide
immunity even if the word "unlawful" was not in the bill.
Number 1155
REPRESENTATIVE MURKOWSKI said, provided that a person has
registered.
MR. LUCKHAUPT replied no. The initiative doesn't require a person
to register.
REPRESENTATIVE MURKOWSKI said she understands that. She explained
that she attended a House Health, Education and Social Services
Standing Committee meeting where former-Representative Finkelstein
- sponsor of the initiative - indicated that in order for a person
to have immunity that person had to be registered.
Number 1201
MR. LUCKHAUPT said is it pretty clear that the initiative provides
immunity for every criminal action for a person who doesn't
register. If a person registers, then there is a list of
restrictions. He cited a person can't smoke in public, a person
can't use it anywhere where that person could be seen in public,
and a person can't use it in a way that endangers another person.
Those restrictions only apply to people who have registered. There
are no restrictions for a person who does not register. He stated
that former-Representative Finkelstein was probably incorrect on
that point.
Number 1262
REPRESENTATIVE GREEN asked Mr. Luckhaupt to explain why the word
"display" is used in one section and the word "delivery" is used in
another section.
Number 1292
MR. LUCKHAUPT replied "use" and "display" were both used in the
1992 initiative to recriminalize marijuana in regards to misconduct
involving a controlled substance in the sixth degree. Those terms
were not defined in statute, so he had to work them into the bill.
The use or display of marijuana is a violation of that statute. He
indicated that he probably left out the word "display" from the
other section unintentionally. He noted that "delivery" was not
included in the other section because he tried to pick out what is
being done in sections from current law. It seems, however, that
delivery should be included in the manufacturing section along with
use, manufacture, or display.
Number 1473
ANNE D. CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law, came before
the committee to testify. She said it's hard for her to take a
position on this bill, especially the first section. The statute
- "Endangering the welfare of a child in the first degree" - is
unusual because it provides separate penalties for the various ways
to violate the law. She cited deserting a child in a dangerous
situation, leaving a child with a sex offender, and leaving a child
with a child abuser and the child suffers harm as the three ways to
violate the statute. The violation for the first two is a class C
felony. The violation for the third one depends on the harm
suffered to the child - either a class B felony or all the way down
to a class A misdemeanor. She mentioned that the sponsor needs to
think about how serious this conduct is, at which time, she can
give the committee a better idea of the department's position on
the bill. She further noted that the conduct covered in Section 1,
of the bill, is awfully broad. She's not certain that allowing a
child to be in the presence of a person smoking a "joint" should be
treated as a felony. Perhaps, it should be a class A misdemeanor.
She also mentioned she is concerned about the use of the word
"display." It's not very clear, and she's not sure why it should
be repeated in this bill. In terms of contributing to the
delinquency of a minor, she suggested making it one section and
taking out possession. As the bill is written now, it would be
illegal to have a "joint" in a person's pocket when around a child.
It's fine to have manufacture, use, or delivery under this section,
but possession should be removed.
Number 1744
REPRESENTATIVE CROFT asked Ms. Carpeneti what the penalty is for
using a controlled substance in front of a child.
MS. CARPENETI replied it depends on the person's culpable mental
state, which is another problem with the bill. It's not clear what
conduct comes under each penalty. She thinks, if a person is using
a controlled substance in front of a child it falls under
endangering the welfare of a child in the first degree. She
assumes that the sponsor intended it to be a felony, but there is
a class A misdemeanor in that section too. She noted, if a person
is holding a child and using drugs unlawfully, it falls under the
language, "immediate physical presence."
REPRESENTATIVE CROFT asked Ms. Carpeneti what the is penalty for
that.
MS. CARPENETI replied there is no penalty for that in the bill,
which is a problem that needs to be fixed. It might also come
under contributing to the delinquency of a minor which is a class
A misdemeanor. In that case, the culpable mental state is reckless
disregard.
REPRESENTATIVE CROFT asked Ms. Carpeneti whether the short answer
to his question is that the penalty comes under AS 11.51.130.
MS. CARPENETI replied yes.
Number 1981
REPRESENTATIVE COWDERY suggested visiting the Anchorage Police
Department and riding with a patrol officer on the weekend. That
is where this bill started to develop with him. He said, "It's an
eye opener."
Number 2064
MR. TORKELSON referred to AS 11.51.100 and noted that endangering
the welfare of a child in the first degree is a class C felony
under (a)(1) or (2). He was advised that a class C felony is the
base penalty applied in AS 11.51.100.
Number 2138
REPRESENTATIVE CROFT said it seems the more analogous section is a
class A misdemeanor and not a class C felony. A class C felony
seems to be more than a one level jump. He thinks it is not
categorized at all in AS 11.51.100 and it would be an error to
categorize it as a class C felony. There appears to be a graduated
penalty depending on the violation. He cited it's a "B" if the
child dies, a "C" if there's sexual contact or serious physical
injury, and an "A" if there's any physical injury at all.
Number 2260
REPRESENTATIVE JAMES asked how the existing statute for children in
need of aid would tie into this kind of an accusation. The statute
is specific in terms of when a child can or cannot be removed from
a home.
Number 2332
MS. CARPENETI replied, according to her impression, it seems that
a person smoking dope in front of a child would be on the low end
of priority for the Department of Health and Social Services. It
really is a civil division chore. She's doesn't have a good
answer.
Number 2416
MR. LUCKHAUPT noted that it would have some affect in the foster
care area. The amendments that have been made over the last few
years to foster care have included offenses against the families
under AS 11.51. The problem is there are different offenses listed
for the revocation of a license, for denying someone a license, and
for the placement of a child. The Senate has a bill to try...
TAPE 99-39, SIDE A
Number 0001
MR. LUCKHAUPT continued. Right now, the authority to create a
license is not in statute because of the changes that have been
made over the last few years. It's a real mess. He reiterated
this would affect the foster care area because there are specific
provisions that include references to offenses against the family
in terms of disqualifying a person from being a foster parent.
He's not sure whether that would or wouldn't remain in the new
draft of the Senate bill. The problem exists in other sections of
the title as well. He's trying to solve this one, then he will
look at the other sections.
Number 0117
REPRESENTATIVE JAMES said the whole issue of children is very
troublesome to her. It seems that the legislature wants to make
everything perfect for them when it can't. In the process,
families are being destroyed. She has had 19 different foster
children of her own and has been exposed to the net result of the
state getting involved. She is opposed to drug exposure to
children, but noted that tobacco and alcohol are lawful "drugs."
Number 0257
MR. LUCKHAUPT stated, in response to Representative Croft's
question earlier, an earlier version of the bill corresponded to
leaving a child someplace and risking injury to that child.
Number 0352
REPRESENTATIVE CROFT asked Mr. Luckhaupt whether it would be a
class B misdemeanor under Section 1 (a)(4) of the bill. There is
a sequence of penalties going down as the physical harm goes down
until there is a base level at which point a person has to prove
any harm.
MR. LUCKHAUPT replied no. If a person violates Section 1 (a)(4),
of the bill, it would be a class C felony in all cases. It doesn't
depend on whether or not a child suffers any injury. That is also
how it works for (a)(1) and (2) - intentionally deserting a child
and leaving a child with another person who has been convicted of
various things in the past. It's only (a)(3) that depends upon the
injury suffered by a child. It was the intent of the sponsor to
place (a)(4) in the class C felony range with (a)(1) and (2), but
that is not how the bill is written now.
Number 0429
REPRESENTATIVE CROFT noted that it's a class A misdemeanor, if a
child is left with another person under (a)(3) and that person has
previously mistreated or has had sexual contact with another child
and causes injury to the child - as long as it's not serious
physical injury. But, if somebody smokes a "joint" around a child,
it would be a class C felony.
MR. LUCKHAUPT replied yes that would be the penalty under (a)(4).
REPRESENTATIVE CROFT noted that the person doesn't even have to
smoke, but display or have...
MR. LUCKHAUPT replied that's correct. It is conduct that probably
can't be prosecuted, if it's done in a person's home because Raven
is still in law and controlling. Raven allows for the use and
display of marijuana in a person's own home as long as the
quantities are for personal use. He noted that, even though there
is a law against it, the Department of Law has not prosecuted
anybody successfully yet under misconduct of controlled substances
in the sixth degree. The cases that came after Raven allowed the
state to outlaw personal use and possession by minors. He noted
that, even though this might be a protected activity under the
privacy clause, it isn't something that is protected in front of
children. He further noted that, even though it was classified as
a violation under last year's child abuse bill, the sponsor feels
strongly that it should be penalized somewhat above that. It
seemed like a reasonable place to put that as a starting point,
since there are only class C felonies in AS 11.51.100 now for
conduct that is not based upon harm caused to a child.
Number 0644
CHAIRMAN KOTT indicated that the bill would be held over for
further consideration.
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