Legislature(2007 - 2008)CAPITOL 120
02/25/2008 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB196 | |
| HB400 | |
| SB196 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 400 | TELECONFERENCED | |
| += | HB 237 | TELECONFERENCED | |
| += | HB 255 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 196 | TELECONFERENCED | |
HB 400 - MITIGATING FACTOR: CARE FOR DRUG OVERDOSE 2:14:18 PM REPRESENTATIVE COGHILL announced that the next order of business would be HOUSE BILL NO. 400, "An Act relating to a person who seeks medical assistance for a person experiencing a drug overdose." [Included in members' packets was a proposed committee substitute (CS) for HB 400, Version 25-LS1518\M, Luckhaupt, 2/23/08.] 2:14:29 PM REPRESENTATIVE BETH KERTTULA, Alaska State Legislature, sponsor, stated that she introduced HB 400 at the request of a constituent. She explained that her staff found a New Mexico program that is using mitigation and immunity to try to encourage others to help people who are having drug overdoses. She noted that the jury considers mitigating factors, as well. She said that she decided to sponsor the bill because it can help to save a life, which she opined "is a reasonable step." 2:17:20 PM REPRESENTATIVE COGHILL turned the gavel over to Vice Chair Dahlstrom. 2:17:48 PM AURORA HAUKE, Staff to Representative Beth Kerttula, Alaska State Legislature, stated on behalf of the sponsor, Representative Kerttula, that a proposed committee substitute would add an immunity provision for possession involving a controlled substance of misconduct in the fourth to sixth degree. 2:18:23 PM REPRESENTATIVE SAMUELS moved to adopt the proposed committee substitute (CS) for HB 400, Version 25-LS1518\M, Luckhaupt, 2/23/08, as the working document. VICE CHAIR DAHLSTROM objected. MS. HAUKE offered some statistics to support introduction of HB 400. She stated that over the past 5 years in Alaska, approximately 85 people died per year from drug overdoses, which is well over the national average as is the drug usage rate in Alaska. She noted a recent New York study showed that at least 50 percent of the time witnesses do not call for medical help. The reason most cited in not calling or in delaying to call for help was fear of police. REPRESENTATIVE SAMUELS inquired as to whether the sponsor could explain the committee substitute in terms of immunity issues. He expressed concern that someone could be granted immunity and could later confess to having committed other crimes, perhaps even murder. He specifically asked whether a person who possessed a firearm and was granted immunity, if the firearm could be used as evidence. MS. HAUKE answered that the intent is to offer immunity for only the possession of a controlled substance. 2:21:36 PM ANGELA HULL stated that on March 26, 2007, her 27-year-old daughter was at home with two other adults who were all using drugs. Neither of the two other adults called 911. She said that her 4-year-old granddaughter went to a neighbor to ask for help, while her 10-year-old grandson performed cardiopulmonary resuscitation (CPR) on his mother as he had seen done on television. Once the other adults realized that emergency medical help was coming, they locked the first responders out. She said she did not know how long that her daughter was [unconscious] and whether it would have made a difference if medical help arrived sooner. She opined that if the other adults using drugs had not been afraid of being arrested, they may have called 911 and it may have made a difference to her daughter. MS. HULL explained that people with substance abuse problems do not think in the same way as normal adults think. However, they know the laws and know how to "skirt" trouble. Drug users understand that if they are caught possessing drugs they will not only be arrested, but will lose access to their drugs, she stated. Instead of calling for help, the drug abusers use that precious time to dispose of their paraphernalia and drugs, she stated. In her daughter's instance, small children did the right thing and called 911, she stated. It is too late for her daughter and some of her friends, she explained, since in the last 5 years, 7 of her daughter's friends also lost their lives to drug overdoses. She opined that HB 400 would provide a small safety net that could save lives. 2:25:14 PM RODNEY DIAL, Lieutenant, Deputy Commander, A Detachment, Division of Alaska State Troopers, Department of Public Safety (DPS), stated that the DPS is neutral on HB 400, but understands the goals of HB 400. He expressed concern that immunity would transfer to all actions taken after the call. He posed a scenario that outlined his concern such that a murder victim could be found at the scene when police arrive. Additionally, he explained that children who live in homes where methamphetamine is produced can be poisoned. He posed another scenario in which a child is brought to a hospital suffering from meth exposure. He inquired as to whether law enforcement would be barred from investigating the incident due to the immunity clause in HB 400. In the event, the DPS could investigate, would the court refuse to issue a search warrant since the parents may be considered immune and not be subject to any crime. Lieutenant Dial noted that the many times the ones who would benefit from immunity offered in HB 400 are under conditions of release and are on probation or parole. He inquired as to whether HB 400 would conflict with the conditions of the caller who is on probation or parole. 2:27:21 PM REPRESENTATIVE GRUENBERG expressed the same concern as Lieutenant Dial. He said that he did not believe he could support Version M. He referred to penalties for several crimes, such as the failure to report crimes against a child under AS 11.56.765, which is a class A misdemeanor for murder, kidnapping, and sexual assault. Last year a similar statute was passed by the legislature which adds AS ll.56.767, which is nearly identical for failure to report violent crimes against an adult, he stated. However, neither statute contained a provision for a failure to report a potentially fatal overdose, he opined. He outlined that current AS ll.56.770, which relates to hindering prosecution of a felony in the first degree, is a class C felony. He further advised that AS 11.56.780, which relates to hindering prosecution of a misdemeanor in the second degree is a class B misdemeanor. He inquired as to whether the failure to place a telephone call in the case of a drug overdose is currently a crime in Alaska. LIEUTENANT DIAL answered that in those instances the DPS would investigate and ask the district attorney's office to make a determination. REPRESENTATIVE GRUENBERG inquired as to whether the two adults who barred the door and refused entry would currently constitute a crime. LIEUTENANT DIAL stated that the district attorney would also make that determination. 2:30:29 PM ANNE CARPENETI, Assistant Attorney General, Legal Services Section, Criminal Division, Department of Law (DOL), stated that the DOL has some concerns with HB 400. She relayed her fear that the bill would not address the situation outlined by Ms. Hull. She said she spoke to Captain Keith Mallard from Alaska Bureau of Alcohol and Drug Enforcement (ABADE), who advised her that he cannot remember ever prosecuting the second person when two people were using drugs together and one overdosed. She stated that she is worried that HB 400 will assist those who provide drugs to people in avoiding arrest. She offered that it may curb prosecution in cases such as possession of controlled substances with the intent to sell. Although the bill only pertains to possession, she pointed out that it doesn't limit the quantity of the drugs involved. She offered concern over the term "limited immunity" and concluded that the DOL has concern with the immunity provisions in the bill. 2:33:08 PM REPRESENTATIVE SAMUELS stated that he preferred the original bill over Version M and withdrew his motion to adopt Version M. REPRESENTATIVE GRUENBERG referred to his earlier questions and asked Ms. Carpeneti to respond. MS. CARPENETI answered that she did not believe that failure to make a telephone call in instances of drug overdoses would constitute a crime. In further response to Representative Gruenberg, she said she thought that barring the door to medical personnel might be crime. She stated that she previously held discussions with Ms. Hauke about the crime of barring the door. She said she discussed the possibility of relating the crime of barring the door to hindering the delivery of medical care by a person instead of offering immunity to those who call for medical assistance. She related her understanding that this matter may be covered under AS 18.08.075. REPRESENTATIVE COGHILL inquired as to whether the discussion could move to focus on the impact of mitigators, once the discussion of the Title 18 issue is finished. MS. CARPENETI noted that a person who refuses to comply with an emergency medical technician request to deliver services is guilty of a class A misdemeanor, upon conviction. 2:36:12 PM REPRESENTATIVE GRUENBERG noted that AS 18.08.075(a)(5) and (b) read: (a) An emergency medical technician who responds to an emergency with an ambulance service or first responder service, who has in the technician's possession a current emergency medical technician identification card, and who provides emergency medical care or other emergency medical service, has the authority to ... (5) enter a building, including a private dwelling, or premises where a report of an injury or illness has taken place or where there is a reasonable cause to believe an individual has been injured or is ill to render emergency medical care; ... (b) A person who knowingly refuses to comply with an order of an emergency medical technician authorized under (a) of this section is, upon conviction, guilty of a class B misdemeanor. In this subsection, "knowingly" has the meaning given in AS 11.81.900(a). REPRESENTATIVE GRUENBERG stated that this statute has a very narrow meaning, and opined that the crime would not include refusing access to fire or police. MS. CARPENETI suggested it would be interesting to also review the definitions that apply to the referenced statute, but noted that she has not yet done so. 2:37:24 PM MS. CARPENETI, in response to Representative Coghill, answered that mitigating factors are proven to a judge by clear and convincing evidence at sentencing, after conviction. Mitigating factors are not proven to a jury. Furthermore, explaining how mitigating factors would be applied, she stated that if the sentencing range is for four years or below, the court could reduce the sentence to zero and if the sentencing range is above four years that the mitigating factors could reduce the sentence by half. MS. CARPENETI, in response to Representative Samuels, clarified that if the lower end is a sentence of five years, that the court could only reduce the sentence to two and one-half years. She further added that mitigating factors give the judge discretion, but are not required to be applied. MS. CARPENETI related her understanding that HB 400 would only apply to people using drugs together. She expressed concern about the person who supplied the drugs to the person who overdosed. 2:41:12 PM VICE CHAIR DAHLSTROM announced her intention to hold HB 400 over to allow the sponsor an opportunity to address the concerns with the bill. REPRESENTATIVE SAMUELS inquired as to whether drug overdose would also include alcohol. MS. CARPENETI answered that HB 400 would only apply to AS 11.71, which relates to controlled substances and not to alcohol. She offered to research that issue further. REPRESENTATIVE GRUENBERG said that he hopes that this matter of restricting access to patients will also be reviewed since people barring the door and not allowing medical personnel to enter could prove fatal in circumstances other than drug overdoses. [HB 400 was held over.]
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