Legislature(2013 - 2014)CAPITOL 120
03/21/2014 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB369 | |
| HB235 | |
| HB366 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 235 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 366 | TELECONFERENCED | |
| += | HB 369 | TELECONFERENCED | |
HB 369-IMMUNITY FOR DRUG RELATED OFFENSE
1:12:49 PM
VICE CHAIR LYNN announced that the next order of business would
be HB 369, "An Act relating to limited immunity from criminal
prosecution for a person who seeks medical assistance for a
person experiencing a drug overdose."
1:13:51 PM
REPRESENTATIVE LANCE PRUITT moved to adopt the proposed CS for
HB 369, Version 28-LS1515\C, Strasbaugh, 3/20/14, as the working
document.
REPRESENTATIVE CHARISSE MILLETT objected.
1:14:15 PM
REPRESENTATIVE PRUITT said that there was concern from the
Department of Law (DOL) regarding broad immunity in that
individuals could call 911 or be dropped off [at emergency
facilities], and from that point they would be immune from
prosecution. That is not the intent of HB 369, he expressed.
He said he worked with the DOL and changed the provision to a
"restriction on prosecution," which relates only to personal
[drug] possession and would not include an individual with an
amount of substances whereby there is intent to distribute.
"They can still prosecute that intent to distribute," he
explained.
1:15:50 PM
MORGAN HOPSON, Staff, Representative Lance Pruitt, Alaska State
Legislature, stated that in Alaska, immunity may lead to
transactional immunity which would make it more difficult to
prosecute for any other charges other than possession.
VICE CHAIR LYNN clarified that "immunity" was too broad and the
scope has been narrowed.
MS. HOPSON responded, "Yes, that is correct."
1:17:11 PM
RODNEY DIAL, LIEUTENANT, Deputy Commander, A Detachment,
Division of Alaska State Troopers, Department of Public Safety
(DPS), said the DPS understands the importance of creating an
environment that supports reporting a medical emergency due to
drug overdoses. He said the DPS has reviewed the committee
substitute and had initial concerns, which it addressed with the
Department of Law and is now awaiting clarification. He noted
that, in order to obtain a search warrant for medical records to
prove that an overdose actually did not exist, CSHB 369 might
require law enforcement to present evidence to a judicial
officer that there is evidence of a particular crime or tends to
show that a certain person has committed a crime. The concern
is if the judicial officer believes the person had immunity and
no crime was committed it may be difficult for law enforcement
to obtain a warrant in order to determine whether the immunity
was initially justified. The DPS believes that the committee
substitute addresses the initial concern that an astute drug
dealer--fearing a potential drug raid--could use an acquaintance
to feign an overdose and report [the alleged overdose] prior to
the raid and thereby obtain immunity from drug prosecution. The
new bill probably addresses that, he stated. He understands
that the bill does not prevent law enforcement from charging
other crimes that could be applicable, such as manslaughter,
criminally negligent homicide, assault, reckless endangerment,
and so forth.
LIEUTENANT DIAL responded to Vice Chair Lynn that DPS is happy
with the changes made in the committee substitute.
1:19:24 PM
REPRESENTATIVE MILLETT questioned if someone reports a person
overdosing and is offered immunity, what would indicate to law
enforcement that the individual may have large quantities of
drugs and that a search would be warranted. If 911 is called
for an overdose and medical people arrive, would that give law
enforcement access to the residence?
1:20:08 PM
LIEUTENANT DIAL responded that it would be a case-by-case
situation, but generally when an individual reports an overdose,
the last thing on law enforcement's mind is making an arrest;
the medical issue is dealt with first. Law enforcement then
contacts the individuals in the house and begins an
investigation into how the drugs were obtained or ingested and
determines if any other laws have been violated. In the event
law enforcement suspects the individual calling in the overdose
is just a user or has simple possession, it may not do anything
with the individual-at least initially. There could be
instances where law enforcement discovers drugs on the person
during a safety pat-down search, but it is difficult to
speculate on how law enforcement would proceed.
1:21:18 PM
REPRESENTATIVE MILLETT questioned if law enforcement would have
the right to search the premises once an individual allows
access to his or her house to respond to a medical situation.
LIEUTENANT DIAL responded that generally they do not unless
something was in plain view. However, if law enforcement
believed there may be a large quantity of drugs in the back
bedroom, its only options would be to ask for permission to go
look or to go before a court and seek a warrant.
1:22:14 PM
REPRESENTATIVE MILLETT posed the scenario of law enforcement
responding to a call of an individual overdosing on meth and
they discover a meth lab. Will the person who called 911 and
saved someone's life--but who has that meth lab--get immunity?
1:22:41 PM
LIEUTENANT DIAL noted that scenario could potentially happen and
law enforcement would have to consult with the Department of Law
and the District Attorney on what steps could be taken at that
point. Currently, when law enforcement responds to a residence
and notices evidence of a meth lab in plain view, it would
process the medical emergency and, in consultation with the
District Attorney, probably get a warrant anyway to be on the
safe side and then process the scene for the meth lab.
1:23:22 PM
REPRESENTATIVE MILLETT surmised that the immunity would not be
extended to the individual who reported the victim.
1:23:32 PM
LIEUTENANT DIAL reiterated that currently there would be no
immunity, but under [CSHB 369] that would be a decision to be
addressed with the Department of Law and the District Attorney's
Office as to whether or not that would exceed some threshold of
personal possession, and personal possession would be immune
under CSHB 369.
1:23:55 PM
REPRESENTATIVE MILLETT stated that there is no personal
possession of meth allowed by law. She questioned how long it
would take to obtain a warrant to search the premises if a meth
lab is suspected but not in plain view.
1:24:28 PM
LIETENANT DIAL advised that law enforcement can obtain a warrant
telephonically if necessary; if not, law enforcement will tell
everyone to vacate the residence and secure the house while
officers go before a judge to obtain a warrant.
1:24:52 PM
VICE CHAIR LYNN questioned if "in plain sight" included smelling
the meth lab.
1:25:06 PM
REPRESENTATIVE PRUITT noted that [CSHB 369] does not change law
enforcement's ability to investigate the meth lab itself, as
under the committee substitute, immunity is no longer
transactional, and it does not make the entire incident immune.
1:25:35 PM
REPRESENTATIVE MILLETT related that she is concerned about
unlawful search and seizure, because the individual allowed law
enforcement to come into the house to respond to a medical
emergency and then the issue of the meth lab would not be
allowed in the court proceeding. "You came in for a medical
reason and then you did an illegal search and seizure in the
house; … that would be deleted from prosecution."
1:26:13 PM
MS. HOPSON advised that within the committee substitute,
immunity is deleted and in its place is "restriction from
prosecution." She noted that the only offense CSHB 369 protects
against is possession, and should law enforcement enter the
premises and have an inclination there was more, they would be
able to prosecute. If there was no indication that there may be
something else going on, law enforcement would not have the
ability to "go after that," she explained.
1:27:01 PM
REPRESENTATIVE NEAL FOSTER offered a scenario including "Person
A" and "Person B." Person A calls for medical assistance
because Person B is overdosing. In the event Person A gave
Person B the drugs and provided the paraphernalia, could Person
A be charged with reckless endangerment?
1:27:42 PM
LIEUTENANT DIAL responded that prosecution was possible as law
enforcement would look at a number of charges, such as reckless
endangerment, assault, and potentially criminally negligent
homicide.
1:28:06 PM
REPRESENTATIVE GRUENBERG asked about any legal opinions or
memoranda regarding CSHB 369.
1:28:22 PM
MS. HOPSON noted that for this particular change they did not
have legal memoranda yet, as the change was received by the
sponsor this morning. The drafter is on line and available to
answer questions, she stated.
1:28:50 PM
REPRESENTATIVE GRUENBERG asked about any [legal opinions] for
previous versions of HB 369.
1:28:56 PM
MS. HOPSON responded that she would have to check her files.
1:29:06 PM
REPRESENTATIVE GRUENBERG expressed his belief that CSHB 369 is
"unusually drafted" because it is a restriction on prosecutorial
discretion. It basically reads that the prosecutor may not
exercise discretion on whether or not to prosecute for several
crimes. "We haven't seen that," he stated. Under Alaska Public
Defender Agcy. v. Superior Court, 584 P.2d 1106 (1978), the
court does not have the power to control the exercise of the
Attorney General's discretion as to whether to take action on
any particular case. He opined that it is a separation of
powers issue and noted that CSHB 369 may get into the same
problem. He questioned why this kind of language was chosen
when it could have been drafted to provide that this would be a
defense to the crime. "Clearly we can do that," he stated, and
it may make it constitutionally clear. If the bill was written
that way, should it be an affirmative defense with the burden of
proof on the prosecution? He asked why the bill was drafted the
way it was. He said he litigated a similar case where the
defense to the possession of heroin was "I took the heroin to
flush it down the toilet."
1:32:06 PM
REPRESENTATIVE PRUITT answered that the affirmative defense was
suggested by the Department of Law, and he pushed back against
that idea because it is his intention to allow those assisting a
friend who is overdosing to not have to consider that if they
help their friend they will automatically have to hire a lawyer.
"I don't want that person to have to think in their mind, do I
help my friend or do I leave them in the gutter because I don't
want to deal with a legal mess?" He had requested the drafter
find another manner of addressing the issue of not offering
broad immunity but still allowing [immunity] for possession. He
acknowledged that the drafting is unique, but within Section 1,
"Restriction of prosecution for certain persons connected with
the overdose," the violations are drug related and there are no
restrictions regarding prosecution for assault or other [crimes]
that take place. Basically, CSHB 369 allows persons who may
have a small bit of drugs or paraphernalia on them to save their
friend's life, he opined.
1:34:24 PM
REPRESENTATIVE GRUENBERG stated his concern of whether the way
CSHB 369 is phrased is constitutional, but he had no problem
with the intent.
1:35:12 PM
REPRESENTATIVE GABRIELLE LEDOUX asked if police generally
respond [to the scene] when an individual calls 911 about an
overdose.
1:35:40 PM
REPRESENTATIVE PRUITT responded that Legislative Legal and
Research Services reviewed that issue and said that the State of
Washington has something similar to this bill where, in almost
every overdosing incident, the police arrived along with the
Emergency Medical Service (EMS). He highlighted that of the
Washington police officers responding with EMS, approximately 60
percent said they would not prosecute the individual who was not
dealing drugs, even when law enforcement had the discretion to
prosecute. Washington determined that 50 percent of drug users
said they would call for help if their friend was overdosing, no
matter what, but the number increased to 88 percent when drug
users realized that they would not find themselves in a legal
bind. "You actually had an increase in people who were willing
to make that call and try to save their friend." He described
it as taking street law and making actual law.
1:37:23 PM
REPRESENTATIVE LEDOUX asked if when calling EMS to report a
friend dying of a heart attack, only EMS shows up, but if the
individual reports the friend is overdosing [the police will
respond]. She noted that she very much likes CSHB 369 and wants
to get the language right. She suggested that [under Section 1,
AS 11.71.311] "a person may not be prosecuted" could be changed
to "a person is not guilty of an offense."
1:38:19 PM
VICE CHAIR LYNN remarked that a person is not guilty or innocent
until after a court comes to a decision.
1:38:31 PM
REPRESENTATIVE GRUENBERG related that he supports the idea that
a person should not have to fear an unjust prosecution, but from
the point of view of the prosecutor and the police, in the
beginning they will only have the person's statement of
innocence. They would probably still investigate and possibly
prosecute until they learned the truth. It is unlikely that,
unless there was no clear involvement, the police would not do
something, as they are unlikely to take a person's assertion at
their word.
1:39:24 PM
REPRESENTATIVE PRUITT agreed with Representative Gruenberg in
that responding officers would continue to investigate to figure
out if there was more at play.
1:39:47 PM
VICE CHAIR LYNN said, "The greatest quality of a police officer
is not a score on their pistol ring; it's common sense."
1:40:01 PM
REPRESENTATIVE LEDOUX suggested that rather than "[a person] is
not guilty of," the language could read "a person has not
committed the crime of ..." or something to that effect.
1:40:48 PM
MS. HOPSON explained that the bill is a balance of how to
prosecute the event and how individuals will perceive CSHB 369
as far as protecting themselves if they call in. The sponsor
chose not to include an affirmative defense as people would
assume they would have to go to court to defend themselves if
called in. By drafting CSHB 369 in the manner it was drafted
the hope is that the immediate reaction would be that they could
call in because they are safe from a possession charge.
1:41:48 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), said it is
the Department of Law's preference that the language be an
affirmative defense rather than a bar to prosecution. She
expressed concern about an incident being a real overdose and
not something that was manufactured to avoid prosecution of a
drug dealer. The various pieces of information are in the hands
of the person being charged, as they have their medical records
and know whether they are acting in good faith, she explained.
She noted that DOL appreciates that the language is no longer
immunity, which is a huge improvement. Immunity means some
things to judges, prosecutors, and defendants that is not
necessary to address here. She explained that the person
claiming the affirmative defense would have the burden by a
preponderance of the evidence--which is the lowest burden in
Alaska law--to prove that these various factors [existed] in
that he or she was acting in good faith to obtain assistance for
the person experiencing an overdose.
MS. CARPENETI said that the way CSHB 369 is drafted, the
prosecution would have to disprove beyond a reasonable doubt
that these facts existed, which would be difficult under the
circumstances. She said she has not read the decision that
Representative Gruenberg described whereby "the court does not
have the power to limit the attorney general's discretion," but
the legislature would be remedying the attorney general's
discretion, and that is what the legislature does all the time:
it decides what is against the law and what is not. She said
that she would like to read the aforementioned decision.
1:44:31 PM
REPRESENTATIVE GRUENBERG agreed that the legislature makes law,
but each time the legislature says something is not a crime,
that is a bar, but it is not termed in the way it is done in
this bill. This may cause needless confrontations, which he
would like to avoid.
MS. CARPENETI maintained that DOL would like the language to
read in an affirmative defense to avoid some of the concerns.
1:45:26 PM
MS. CARPENETI responded to Representative Gruenberg that within
an affirmative defense there must be some evidence supporting
the defense. The person claiming the affirmative defense, which
is the defendant in a criminal prosecution, has the burden of
proof by a preponderance of evidence as to whether or not he or
she has established that affirmative defense.
REPRESENTATIVE GRUENBERG asked if the issue goes to the jury
first.
MS. CARPENETI responded in the affirmative and stated that when
district attorneys are screening cases, if they are aware that
the person called and reported the [overdosing friend] to
medical authorities, they would take it into account before even
charging.
1:46:17 PM
REPRESENTATIVE GRUENBERG questioned if there is a constitutional
problem with establishing an affirmative defense that flips the
burden from the prosecution, beyond a reasonable doubt, to the
defendant to prove by a preponderance of the evidence.
MS. CARPENETI responded that there are several affirmative
defenses in Alaska laws that have been upheld and she believes
it is constitutional.
1:46:53 PM
REPRESENTATIVE MILLETT referred to her aforementioned scenario
and questioned the search and seizure laws.
MS. CARPENETI expanded on Lieutenant Dial's testimony in that if
medical personnel and a law enforcement officer go into a house
to assist the overdosing individual and, for example, on the
living room table are scales and large amounts of controlled
substances in plain view, police officers would be, she
believes, allowed to seize it to use as evidence. If the
evidence is in the back bedroom, it depends upon the
circumstances. Officers can obtain search warrants over the
telephone, so they can call a judge and explain what they see as
probably cause and have the judge make a determination. As
Lieutenant Dial testified, in the event the evidence is
compelling, police officers could secure the scene and wait for
the search warrant to be granted.
1:48:47 PM
REPRESENTATIVE MILLETT surmised that as long as police officers
obtain a search warrant the evidence would be admissible in
court. Her concern is violating a search and seizure law to
obtain evidence and it being disallowed in court.
MS. CARPENETI related that if the drugs were in a back bedroom
and there was sufficient probable cause for the officers to
obtain a search warrant and to search the room pursuant to the
warrant, she could not see a reason that evidence could not be
used in a prosecution for a meth lab "or something like that."
1:49:38 PM
REPRESENTATIVE LEDOUX offered a scenario where a resident of an
apartment had a meth lab; police officers are in the house and
do not have probable cause to go into the back bedroom or obtain
a search warrant. She questioned if the resident could tell the
police to leave so everything could be flushed down the toilet
while the officers were trying to obtain the warrant.
MS. CARPENETI responded that "You could tell them that they
wouldn't have to do that." She then said that the police
officers had probable cause to get into the house because they
were invited.
REPRESENTATIVE LEDOUX questioned if the police could be
uninvited and told their permission is terminated.
MS. CARPENETI remarked that a person could say that, but
depending upon the circumstances, the officers could determine
they have reason to believe that there is illegal activity on
the premises and then consult judicial authority. It is her
belief that the police officers would be able to stay in the
residence and secure the premises as Lieutenant Dial suggested.
1:51:12 PM
KATHLEEN STRASBAUGH, Attorney, Legislative Legal Counsel,
Legislative Legal and Research Services, Legislative Affairs
Agency, explained that the State of Washington's law is as
follows: "A person acting in good faith who seeks medical
assistance for someone experiencing a drug-related overdose
shall not be charged or prosecuted for possession." Another
option sometimes used in Alaska Statute is a non-applicability
provision. She agreed with Ms. Carpeneti. "Because the
legislature makes laws with respect to what may or may not be
prosecuted that there's not a constitutional interference in the
manner of the case described by Representative Gruenberg in
which the court took it upon itself to tell the prosecutor
whether or not they would bring a case--wanted to force them,
essentially, to bring a case--and the court did not have a role
in making that decision. But it wasn't really quite the same,
and I have to agree with Ms. Carpeneti on that issue."
1:53:28 PM
REPRESENTATIVE MILLETT assumed that as Alaskans can legally
possess marijuana in their house in an amount for personal use,
marijuana that was in clear sight would not be seized.
MS. CARPENETI responded that all situations depend upon
circumstances, but with no other facts there would be no grounds
for arrest because no one was violating the law with marijuana.
She did not believe that the marijuana would be seized.
VICE CHAIR LYNN advised that under Ravin v. State, 537 P.2d 494,
(Alaska 1975), four ounces of marijuana is legal.
REPRESENTATIVE LEDOUX recalled that marijuana was made illegal
back in 2005 or 2006.
MS. CARPENETI said that sounds familiar, but she was not
involved in that issue.
1:56:53 PM
VICE CHAIR LYNN closed public testimony.
1:57:04 PM
REPRESENTATIVE MILLETT removed her objection in adopting the CS
to HB 369. She moved to report CSHB 369, labeled 28-LS1515\C,
Strasbaugh, 3/20/14, out of committee with individual
recommendations and the accompanying fiscal notes.
1:57:52 PM
REPRESENTATIVE GRUENBERG objected. He stated [the proposal]
probably is not a restriction on prosecution, but the style is
different in HB CSHB 369 than Alaska normally uses. "I think it
is important to stick with the kinds of style that prosecutors
and police are used to in this state." The State of
Washington's drafting style may be different, he opined. He
said he believes it would be clearer to style the provision as
an affirmative defense.
1:58:41 PM
REPRESENTATIVE LEDOUX said she believes that styling legislation
as an affirmative defense puts the person who wants to call EMS
to help a friend into the position of having to go to court even
if the person is found innocent. She opined that the intention
of CSHB 369 is to let it be known on the street that if someone
is overdosing, "call the cops and you're not going to go to jail
or go to court." She acknowledged that the style may be a bit
different, but if the Department of Law is not going to court to
challenge the law constitutionally, and the defendant certainly
won't [challenge it], she said to leave the language as it is.
1:59:54 PM
VICE CHAIR LYNN stated that he is more concerned with substance
than he is with style.
REPRESENTATIVE MILLETT remarked that she liked the drafting of
CSHB 369 because, for instance, someone on probation makes the
call and they have to go before the court, which could be a
violation of their probation. She assumed CSHB 369 ensures it
would not be a violation of probation in reporting an overdose.
2:00:33 PM
MS. CARPENETI noted that the legislation includes "may not be
prosecuted for a violation of the possession statutes" and does
not say the individual cannot be prosecuted for a probation
violation.
2:00:55 PM
REPRESENTATIVE MILLETT questioned what the violation would be if
the individual was not being prosecuted or taken to court. She
surmised that the individual is saving a person's life but if a
condition of [probation] is that he or she couldn't be in
contact with someone using drugs that would be a probation
violation. "Is that what you are saying?"
2:01:19 PM
MS. CARPENETI remarked that it depends upon the circumstances as
Lieutenant Dial testified, rarely do police officers arrest
people on the scene of a medical emergency like an overdose.
The language reads that a person may not be prosecuted for
possession of such drugs, and it does not say it could not be
used as a basis for a petition to revoke probation, she said.
2:01:50 PM
REPRESENTATIVE LEDOUX questioned what language Ms. Carpeneti
would recommend in order to establish that the [probation issue]
is covered.
2:02:01 PM
MS. CARPENETI said she could go to her office and return with
her best suggestions, but criminal law is too important to write
it "on the fly."
2:02:19 PM
The committee took a brief at-ease.
2:03:29 PM
REPRESENTATIVE MILLETT withdrew her motion to move CSHB 369 out
of committee.
2:03:51 PM
REPRESENTATIVE GRUENBERG offered a situation where an individual
says he or she is not in possession and just called in to help a
friend, but the police officers question the story and decide to
investigate. At that point, the issue would be taken to trial.
He related that the drafting is ambiguous. He asked if it is
clear from the text that this would be an affirmative defense.
"I think it's ambiguously drafted and if there's a question
whether it's an affirmative defense or an element of a crime of
some type, might not the court apply the Rule of Leniency and
not make it an affirmative defense but in some manner make it an
element of the crime? Isn't this somewhat unclear?"
2:05:29 PM
MS. CARPENETI stated it is not unclear. As it is currently
drafted, it is clear that it is not an affirmative defense. The
evidence would be treated like a defense, like self-defense or
various other defenses that the prosecution has to disprove
beyond a reasonable doubt, she opined.
2:06:06 PM
REPRESENTATIVE GRUENBERG asked, "So as long as the defendant
introduced some evidence to put the issue in play?"
2:06:13 PM
MS. CARPENETIT stated, "That is correct."
2:06:15 PM
REPRESENTATIVE PRUITT remarked that he wanted to follow up with
Representative Millett's probation discussion and noted it
appeared to be a policy call on the part of the legislature on
whether or not to include "safe harbor" in probation. He
questioned if the discussion was stretching too far.
2:07:04 PM
MS. CARPENETI related that it was a difficult question because a
person on probation should be trying to avoid using drugs, and
assuming it is a condition of his or her probation not to use a
controlled substance, the person is probably not doing very well
on probation. As a question of that person's wellbeing, the
legislature may not want to add prohibition on bringing a
probation revocation in regard to that conduct, but she would
prefer giving the issue some thought, she maintained.
2:07:46 PM
VICE CHAIR LYNN questioned if the above issue goes to the heart
of CSHB 369.
MS. CARPENETI opined that the heart of the bill reads that DOL
cannot prosecute for possession offenses that are class B and C
felonies and class A and B misdemeanors.
VICE CHAIR LYNN stated that it was very narrow.
MS. CARPENETI agreed that it was narrow in the world of drug
prosecution.
2:08:20 PM
REPRESENTATIVE MILLETT posed a scenario of a person on probation
and not aware another person is doing drugs but who begins to
overdose. She expressed that it is a disincentive for someone
on probation to call for help unless they are not charged with
an offense against their probation. She said there should be a
"safe harbor" for someone on probation. "Maybe they are trying
to save this person. Maybe they've gone through drug
rehabilitation and they are on probation and they're trying to
do an intervention on their buddy, and he has an overdose, and
he's actually doing a good deed, but, in some case, it would
violate his probation and he would also be prosecuted," she
stated.
2:09:52 PM
REPRESENTATIVE LEDOUX related that the legislature should want
to include the person on probation doing the wrong thing. She
related that there must be a balance and she errs on balancing
to save a life. The great piece of CSHB 369 is getting word out
on the street that a person can call and they will not get into
trouble, she opined.
VICE CHAIR LYNN agreed and stated CSHB 369 is a pro-life bill
and if the bill passed it could save someone's life.
2:10:42 PM
REPRESENTATIVE MILLETT presumed that the legislature does not
want to put someone back in prison because they violated their
probation by being a Good Samaritan in a bad situation that they
did not create on their own.
VICE CHAIR LYNN said he totally agrees.
2:11:11 PM
The committee took a brief at-ease.
2:11:26 PM
REPRESENTATIVE PRUITT stated he would like to know if the House
Judiciary Standing Committee would like to include the
[probation] issue.
REPRESENTATIVE FOSTER stated that he supports adding the
probation language, but he does not want to stall the bill.
2:12:57 PM
REPRESENTATIVE GRUENBERG related his concern that someone could
be on probation for an entirely different crime, and many cases
that involve a Petition to Revoke Probation (PTR) is brought
with a new charge. There must be consideration whether the
legislature is going to exempt any PTRs that result from this,
or just drug-related [charges]. Another concern is that Ms.
Carpeneti said if there is any doubt in law enforcement's mind,
they will continue the investigation. The question will be how
CSHB 369 is interpreted. He stated it needs to be an
affirmative defense to put the burden on the defendant who would
have the knowledge, unless, under the manner CSHB 369 is
drafted, it would be an element of the crime as long as evidence
is admitted, and the burden remains on the prosecution to
disprove beyond a reasonable doubt. "We have to consider how
this will work in a court of law if the thing goes forward," he
stated.
2:15:37 PM
REPRESENTATIVE MILLETT expressed that she does not want the
affirmative defense because the incentive is to save a life. To
put the burden on the person reporting the overdose to prove
they were not involved in it, is a disincentive for someone to
call EMS to save a life, she maintained. When you add the
burden of proof on the defendant, it causes disincentive, which
would gut the bill. Speaking of probation, "I think that we
could have a Rules meeting … I don't want to slow down the bill
either because I think this is a life-saving bill." She spoke
of a recent overdosing event behind the Lucky Wishbone where a
man might have been saved. It is imperative that CSHB 369 is
passed this session; she does not want anyone else to die of an
overdose because friends are scared of being prosecuted. She
said she wants the bill to move, and if the sponsor decides to
add a probation provision or "safe harbor," it would be great;
there is time in the Senate to make the change.
REPRESENTATIVE LEDOUX said at some point before CSHB 369 becomes
law, the probation issue should be included, or the bill will
not be as effective as it could be.
REPRESENTATIVE PRUITT stated he did not understand the full
capacity of what the provision on probation aspect would be. He
would like to see CSHB 369 pass this year with the commitment
that he will look at the probation piece as it continues through
the legislature, or, if necessary, during the interim.
2:21:07 PM
REPRESENTATIVE MILLETT moved to report CSHB 369, labeled 28-
LS1515\C, Strasbaugh, 3/20/14, out of committee with individual
recommendations and the accompanying fiscal notes.
There being no objections, CSHB 369(JUD) passed out of
committee.
2:21:40 PM
The committee took an at-ease from 2:21 p.m. to 2:25 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| CSHB 235 (STA) Explanation of Changes.pdf |
HJUD 3/21/2014 1:00:00 PM |
HB 235 |
| CSHB 235 (STA) Sectional Analysis.pdf |
HJUD 3/21/2014 1:00:00 PM |
HB 235 |
| HB 235 Sectional Analysis.pdf |
HJUD 3/21/2014 1:00:00 PM |
HB 235 |
| HB 235 Sponsor Statement.pdf |
HJUD 3/21/2014 1:00:00 PM |
HB 235 |
| CSHB 366 (JUD) Fiscal Note~DPS.pdf |
HJUD 3/21/2014 1:00:00 PM |
HB 366 |
| CSHB 366 (JUD) Fiscal Note~LAW.pdf |
HJUD 3/21/2014 1:00:00 PM |
HB 366 |
| CSHB 369 ver. C Draft.pdf |
HJUD 3/21/2014 1:00:00 PM |
HB 369 |
| CSHB 366 (JUD) ver. Y.pdf |
HJUD 3/21/2014 1:00:00 PM |
HB 366 |
| CSHB 366 (JUD) ver. Y Accompanying Legal Memo.pdf |
HJUD 3/21/2014 1:00:00 PM |
HB 366 |