Legislature(2007 - 2008)CAPITOL 120

02/25/2008 01:00 PM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Meeting Postponed to 1:30pm Today --
Heard & Held
Scheduled But Not Heard
Scheduled But Not Heard
+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved HCS CSSB 196(JUD) Out of Committee
<Bill Held Over from 02/22/08>
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                                                               
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                                                               
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                                                               
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                                                               
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)                                                               
          (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                                                               
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                                                               
[HB 400 was held over.]                                                                                                         

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