Legislature(2013 - 2014)SENATE FINANCE 532

04/01/2014 09:00 AM Senate FINANCE


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ SB 28 SUSITNA STATE FOREST; SALE OF TIMBER TELECONFERENCED
Heard & Held
+ SB 66 IMITATION CONTROLLED SUBSTANCE TELECONFERENCED
Moved CSSB 66(JUD) Out of Committee
+ SB 178 PASSENGER VEHICLE RENTAL TAX TELECONFERENCED
Heard & Held
+ HB 305 JUNK DEALER & METAL SCRAPPER LICENSING TELECONFERENCED
Scheduled But Not Heard
+ HB 297 HOME ENERGY RATING SYSTEMS TELECONFERENCED
Scheduled But Not Heard
+ Bills Previously Heard/Scheduled TELECONFERENCED
SENATE BILL NO. 66                                                                                                            
                                                                                                                                
     "An Act relating to imitation controlled substances;                                                                       
     and providing for an effective date."                                                                                      
                                                                                                                                
10:23:55 AM                                                                                                                   
                                                                                                                                
SENATOR  DENNIS EGAN,  stated that  the legislation  made it                                                                    
easier for law enforcement to  crack down on drug dealers by                                                                    
making  illegal any  substance represented  by a  controlled                                                                    
substance.  Currently  a drug  dealer  could  sell a  felony                                                                    
drugs during a  sting operation, the officer  could not make                                                                    
a charge, because  the substance did not  contain a specific                                                                    
ingredient on  the list  of imitation  controlled substances                                                                    
in statute.  The current definition of  imitation controlled                                                                    
substances  in AS  11.73.099 listed  chemicals, a  substance                                                                    
must contain, in order for it  to be illegal. He stated that                                                                    
SB  66 changed  the  definition of  an imitation  controlled                                                                    
substance to  more generally make  illegal that was  made to                                                                    
look like an  already illegal drug. He stated  that the most                                                                    
recent version of the bill  reduced the penalties for crimes                                                                    
under the statute.                                                                                                              
                                                                                                                                
ALIDA BUS, STAFF,  SENATOR DENNIS EGAN, stated  that she had                                                                    
nothing to add to the testimony.                                                                                                
                                                                                                                                
10:26:16 AM                                                                                                                   
                                                                                                                                
LIEUTENANT   KRIS  SELL,   POLICE  OFFICER,   JUNEAU  POLICE                                                                    
DEPARTMENT,  testified that  the legislation  was a  request                                                                    
from  the  Juneau Police  Department.  She  stated that  the                                                                    
legislation was as written because  of the police experience                                                                    
in field operations in purchasing  narcotics. She found that                                                                    
there  were some  instances where  drug  dealers would  sell                                                                    
"sham narcotics"  such as  salt, sheet  rock dust,  or other                                                                    
unidentified  substances. She  shared that  there were  some                                                                    
states that  identified the  sale sham  narcotics as  a drug                                                                    
charge. She  examined Alaska's law,  and noticed  that there                                                                    
were  limitations  by the  list  of  very specific  chemical                                                                    
compounds  that  could  be   charged  as  selling  imitation                                                                    
controlled   substances.   Those   chemicals   were   mostly                                                                    
precursors   or  "cut"   that   was   used  for   controlled                                                                    
substances. She  stressed that many of  those chemicals were                                                                    
expensive,  and sometimes  more  difficult to  find than  an                                                                    
average  household products,  so many  drug dealers  did not                                                                    
use those chemicals when selling  the sham drugs. She shared                                                                    
that  sometimes she  had been  required to  make sham  drugs                                                                    
when  there was  a controlled  delivery, because  the police                                                                    
operation did  not want to  run the  risk of losing  a large                                                                    
amount of  controlled substances. She stated  that she could                                                                    
make a very realistic version  of the drug, meth, with flour                                                                    
and a heavy  coating of hair spray. She  announced that many                                                                    
known drug dealers  were getting a pass on  selling the fake                                                                    
drugs to  the customer,  but the customer  did not  have the                                                                    
option to complain  to law enforcement, they  would just use                                                                    
a new dealer.                                                                                                                   
                                                                                                                                
Senator  Dunleavy  wondered  if  the  legislation  was  age-                                                                    
specific. Lieutenant Sell replied  that the draft version of                                                                    
the committee substitute was age-specific.                                                                                      
                                                                                                                                
Senator  Dunleavy  surmised that  anyone  over  19 could  be                                                                    
convicted of  selling drugs. Lieutenant Sell  responded that                                                                    
the committee  substitute from  the Judiciary  Committee did                                                                    
not have an age requirement.                                                                                                    
                                                                                                                                
10:33:38 AM                                                                                                                   
AT EASE                                                                                                                         
                                                                                                                                
10:34:28 AM                                                                                                                   
RECONVENED                                                                                                                      
                                                                                                                                
Senator  Dunleavy  wondered if  the  age  was contingent  on                                                                    
prosecution, because there was  an age specified in statute.                                                                    
Lieutenant Sell replied  that age was referenced,  but was a                                                                    
higher   penalty  to   expose  a   younger  person   to  the                                                                    
substances.                                                                                                                     
                                                                                                                                
Senator Dunleavy wondered  if the crime was  different, if a                                                                    
person buying the  substance was only one  year younger than                                                                    
the person  selling the  substance Lieutenant  Sell deferred                                                                    
to the Department of Law (DOL).                                                                                                 
                                                                                                                                
Co-Chair  Meyer  queried  how  the  substances  were  deemed                                                                    
authentic controlled substances  or an imitation. Lieutenant                                                                    
Sell  replied  that  there   were  presumptive  field  tests                                                                    
conducted, before the substance was sent to the crime lab.                                                                      
                                                                                                                                
Co-Chair  Meyer wondered  how often  people were  prosecuted                                                                    
under the  existing statute.  Lieutenant Sell  replied that,                                                                    
in  her experience,  no one  had been  prosecuted under  the                                                                    
existing statute.                                                                                                               
                                                                                                                                
Senator Dunleavy  wondered how  big of an  issue this  is in                                                                    
Juneau.  Lieutenant Sell  replied  that  there were  several                                                                    
instances per year.                                                                                                             
                                                                                                                                
Senator  Dunleavy wondered  if  the  Alaska Civil  Liberties                                                                    
Union  (ACLU)   had  expressed  an  opinion   on  the  bill.                                                                    
Lieutenant Sell  replied that she  did not know if  the ACLU                                                                    
had expressed an opinion the bill.                                                                                              
                                                                                                                                
Senator Dunleavy  asked what  would happen  to a  child that                                                                    
sells  an imitation  drug to  a friend  in middle  school or                                                                    
elementary school. Lieutenant Sell  replied that there would                                                                    
be  an  examination of  whether  the  child understands  the                                                                    
implications of  their actions. She  shared that  there were                                                                    
some  cases  of  children  in  middle  school  that  brought                                                                    
marijuana  to  school,  but  had   not  seen  the  imitation                                                                    
controlled substances in schools yet.                                                                                           
                                                                                                                                
Senator Olson  felt that the  legislation may be a  focus on                                                                    
"thought policing." He felt that  there may be a person that                                                                    
would not necessarily  be guilty, but be  more innocent than                                                                    
presumed. Lieutenant replied that the  intent of the bill is                                                                    
for known  drug dealers who sometimes  sold sham substances.                                                                    
She stressed that  there was not an intent  to determine the                                                                    
thought,  rather  than  the  tried  and  true  test  of  the                                                                    
reasonable  person.  The  two-prong approach  would  be  the                                                                    
appearance of the drug and a representation.                                                                                    
                                                                                                                                
Senator  Olson  felt  that  there   could  be  an  issue  of                                                                    
objectivity of the  officer over a person  who was obviously                                                                    
not guilty.                                                                                                                     
                                                                                                                                
10:42:45 AM                                                                                                                   
                                                                                                                                
TRACEY   WOLLENBERG,   PUBLIC    DEFENDER,   DEPARTMENT   OF                                                                    
ADMINISTRATION,  ANCHORAGE  (via teleconference),  testified                                                                    
in response  to some  concerns from some  committee members.                                                                    
She  felt that  the bill  may capture  conduct that  was not                                                                    
intended  to capture,  especially pertaining  to individuals                                                                    
who have  an intent  to deceive  someone into  thinking that                                                                    
the  substance was  an imitation  controlled substance.  The                                                                    
memo from  legislative services (copy  on file)  discussed a                                                                    
hypothetical situation  from the Morrow Case:  When someone,                                                                    
without any intent to deceive,  gives caffeine diet pills to                                                                    
someone  indicating that  the pills  were  as effective  for                                                                    
weight loss as any prescription  medicine. In the 1985 Court                                                                    
of Appeals  case, Morrow versus  State, both  parties agreed                                                                    
that the  statute would  cover that  hypothetical situation,                                                                    
even though  it may not  be the hypothetical  situation that                                                                    
the  drafters of  the bill  were intending  to capture.  She                                                                    
stressed that  the hypothetical situation was  repeated from                                                                    
the  legislative memo.  She stressed  that  the statute  was                                                                    
written  to capture  situations  where  the recipient  might                                                                    
reasonably  believe that  the  substances  was a  controlled                                                                    
substance,  but  the  distributor  had  no  intent  for  the                                                                    
recipient  to believe  that it  was a  controlled substance.                                                                    
One  way to  correct the  over-breadth problem  would be  to                                                                    
write  an intent  to deceive  requirement  or a  requirement                                                                    
that  the  person   intentionally  misrepresented  that  the                                                                    
substance  was   a  controlled  substance.  She   felt  this                                                                    
addition would narrow the statute  to conform to the concern                                                                    
of law enforcement.                                                                                                             
                                                                                                                                
Senator   Olson  assumed   that  Ms.   Wollenberg  was   not                                                                    
supportive of  the legislation. Ms. Wollenberg  replied that                                                                    
she has concerns with the bill as written.                                                                                      
                                                                                                                                
Vice-Chair Fairclough  wondered if  Ms. Wollenberg  had been                                                                    
referencing  a memo  from Legal  Services  from February  6,                                                                    
2014. Ms. Wollenberg replied in the affirmative.                                                                                
                                                                                                                                
Vice-Chair  Fairclough  looked  at   page  1,  paragraph  2,                                                                    
speaking to  the grounds  of vagueness  and over  breadth of                                                                    
the  state  statute.  She wondered  if  Ms.  Wollenberg  was                                                                    
speaking to  that paragraph.  Ms. Wollenberg  explained that                                                                    
the  Morrow versus  State  case  was the  only  case on  the                                                                    
subject,  and   discussed  the  hypothetical   situation  in                                                                    
paragraph 3.  She share  that there was  a challenge  to the                                                                    
statute on vagueness and over  breadth. That was resolved in                                                                    
the case  by saying that  the scope  of the statute  did not                                                                    
need fixing,  because the facts  of the case showed  a clear                                                                    
misrepresentation.                                                                                                              
                                                                                                                                
10:48:12 AM                                                                                                                   
                                                                                                                                
Vice-Chair Fairclough  looked at page 2  and the substantive                                                                    
due process and  equal protection. She stated  that the bill                                                                    
would   eliminate  the   requirement   that  the   imitation                                                                    
controlled   substance  contain   a  pharmaceutical   active                                                                    
substance. A  felony sentence might be  challenged under the                                                                    
circumstances   as   sufficiently  unfair,   arbitrary,   or                                                                    
disproportionate to  the offence  to constitute  a violation                                                                    
to a  right to  due process.  Ms. Wollenberg  responded that                                                                    
under   current  statute,   manufacturer   delivery  of   an                                                                    
imitation controlled substance  was a Class C  felony. A the                                                                    
time that  the legal  memo was  written those  penalties had                                                                    
not yet been  addressed, so there was some  concern that the                                                                    
penalties   for  selling   or  manufacturing   an  imitation                                                                    
controlled substances were, in  some cases, more severe than                                                                    
the   corresponding   penalties  for   distributing   actual                                                                    
controlled substances like marijuana.                                                                                           
                                                                                                                                
Co-Chair Meyer CLOSED public testimony.                                                                                         
                                                                                                                                
10:51:25 AM                                                                                                                   
                                                                                                                                
ANNE CARPENETI,  ASSISTANT ATTORNEY GENERAL,  LEGAL SERVICES                                                                    
SECTION-JUNEAU,  CRIMINAL   DIVISION,  DEPARTMENT   OF  LAW,                                                                    
responded  to a  question  from  Senator Dunleavy  regarding                                                                    
children.  She stated  that juveniles  who would  committing                                                                    
the  conduct would  not be  committing  crimes, rather  they                                                                    
were possibly committing delinquent  acts. She looked at the                                                                    
age  differential,  and  stated   that  the  three-year  age                                                                    
difference was a common provision  in law. She stressed that                                                                    
it  was against  the  law  for an  adult  to sell  imitation                                                                    
substances  under current  law.  She replied  to a  question                                                                    
from Senator Olson about thought  policing. When a person is                                                                    
prosecuted for  a crime, the  state was the  thought police,                                                                    
because culpable mental state must be determined.                                                                               
                                                                                                                                
Co-Chair  Meyer wondered  if there  were concerns  regarding                                                                    
whether legitimate  substances could  be made  illegal under                                                                    
the legislation. Ms. Carpeneti  responded that the bill made                                                                    
non-controlled   substances  illegal.   She  stressed   that                                                                    
current law  made it a  crime to  take a substance  that was                                                                    
not a controlled substance by misrepresentation.                                                                                
                                                                                                                                
Co-Chair  Meyer   queried  Ms.   Carpeneti's  view   of  the                                                                    
legislation. Ms.  Carpeneti responded that it  made sense to                                                                    
reduce the  penalties for the  crimes to make  the penalties                                                                    
for  the conduct  similar to  drunk driving.  She understood                                                                    
the concern  of law enforcement,  but stressed that  DOL did                                                                    
not have any specific concerns with the bill.                                                                                   
                                                                                                                                
Co-Chair Meyer wondered  if the legislation would  make it a                                                                    
more  serious  crime  than  actual   possession  of  a  real                                                                    
controlled substance.  Ms. Carpeneti  responded that  it was                                                                    
the intent of reducing the  penalties, so they were not more                                                                    
serious  than bad  conduct with  connection with  controlled                                                                    
substances.                                                                                                                     
                                                                                                                                
Co-Chair  Meyer asked  if  there were  any  cases that  were                                                                    
prosecuted under  the current statute. Ms.  Carpeneti stated                                                                    
that there were one or two convictions per year.                                                                                
                                                                                                                                
Senator Olson  asked how many prosecutions  were successful.                                                                    
Ms.  Carpeneti  responded that  there  were  some that  were                                                                    
referred  to  DOL,  and accept  prosecutions  at  a  similar                                                                    
level.  She  shared that,  depending  on  evidence, a  theft                                                                    
charge  may  be  implemented  because it  was  part  of  the                                                                    
conduct through the sale of the sham drug.                                                                                      
                                                                                                                                
10:56:35 AM                                                                                                                   
AT EASE                                                                                                                         
                                                                                                                                
10:57:47 AM                                                                                                                   
RECONVENED                                                                                                                      
                                                                                                                                
Co-Chair  Meyer wondered  if there  was not  an anticipation                                                                    
for  more cases,  if the  fiscal  note could  be changed  to                                                                    
zero.  Ms.  Carpeneti explained  that  the  fiscal note  was                                                                    
indeterminate,   because   the   effect  of   removing   the                                                                    
substances was unknown.                                                                                                         
                                                                                                                                
Co-Chair Meyer  asked for  Ms. Carpeneti  to comment  on Ms.                                                                    
Wollenberg's testimony.  Ms. Carpeneti replied that  she did                                                                    
not share  the same  concerns with Ms.  Wollenberg regarding                                                                    
"culpable  mental  state."   The  Morrow  case  specifically                                                                    
provided  that  the  statute  should   read,  to  avoid  the                                                                    
vagueness  and   over  breadth  problem,  that   it  was  an                                                                    
intentional misrepresentation.                                                                                                  
                                                                                                                                
Vice-Chair   Fairclough   remarked   that   Ms.   Wollenberg                                                                    
suggested adding  legislation that  had stronger  "intent to                                                                    
deceive"  language.  Ms.  Carpeneti  felt that  the  law  as                                                                    
interpreted was adequate.                                                                                                       
                                                                                                                                
Senator Egan  shared that the  legislation would  not affect                                                                    
many people  in the state,  but fixed a loophole  in current                                                                    
statute.                                                                                                                        
                                                                                                                                
Vice-Chair Fairclough MOVED  to REPORT CSSB 66(JUD)   out of                                                                    
committee   with   individual    recommendations   and   the                                                                    
accompanying fiscal notes. There  being NO OBJECTION, it was                                                                    
so ordered.                                                                                                                     
                                                                                                                                
CSSB 66(JUD) was REPORTED out  of committee with a "do pass"                                                                    
recommendation  and with  previously  published zero  fiscal                                                                    
notes:   FN1(ADM)   and   FN2(ADM);   previously   published                                                                    
indeterminate note: FN3(LAW); and  new zero fiscal note from                                                                    
the Department of Corrections.                                                                                                  
                                                                                                                                
11:02:42 AM                                                                                                                   
AT EASE                                                                                                                         
                                                                                                                                
11:07:01 AM                                                                                                                   
RECONVENED                                                                                                                      
                                                                                                                                

Document Name Date/Time Subjects
CSSB28(RES) Briefing Paper.pdf SFIN 4/1/2014 9:00:00 AM
SB 28
CSSB28(RES) Forest Map.pdf SFIN 4/1/2014 9:00:00 AM
SB 28
CSSB28(RES) Sectional Analysis.pdf SFIN 4/1/2014 9:00:00 AM
SB 28
CSSB28(RES) Summary of Changes.pdf SFIN 4/1/2014 9:00:00 AM
SB 28
SB 28 Opposition Letters.pdf SFIN 4/1/2014 9:00:00 AM
SB 28
SB 28 Support Letters.pdf SFIN 4/1/2014 9:00:00 AM
SB 28
SB028CS(RES)-DNR-DOF-3-24-14.pdf SFIN 4/1/2014 9:00:00 AM
SB 28
SB28 Public Testimony - Phelps.msg SFIN 4/1/2014 9:00:00 AM
SB 28
CSSB 178 Letter of Intent.docx SFIN 4/1/2014 9:00:00 AM
SB 178
Dept. of Revenue Research.pdf SFIN 4/1/2014 9:00:00 AM
HB 305
HB 305 letter to Sen Kelly - Mar 28 2014.pdf SFIN 4/1/2014 9:00:00 AM
HB 305
HB 305 Ver P letter of support Senator Kelly RockTenn 3 28 14.pdf SFIN 4/1/2014 9:00:00 AM
HB 305
HB305 APA metals theft Res.pdf SFIN 4/1/2014 9:00:00 AM
HB 305
HB305 KellyAPAsupport.pdf SFIN 4/1/2014 9:00:00 AM
HB 305
HB305 support - APA.pdf SFIN 4/1/2014 9:00:00 AM
HB 305
Junk Car Statute.pdf SFIN 4/1/2014 9:00:00 AM
HB 305
Leg Research-Junk Dealers.pdf SFIN 4/1/2014 9:00:00 AM
HB 305
Scale Pictures TINTZJ.pdf SFIN 4/1/2014 9:00:00 AM
HB 305
Scale Ticket TINTZJ.pdf SFIN 4/1/2014 9:00:00 AM
HB 305
Scrap Metal Laws State by State.pdf SFIN 4/1/2014 9:00:00 AM
HB 305
Scrap Metal Media.pdf SFIN 4/1/2014 9:00:00 AM
HB 305
Sectional-CSHB 305 (FIN).pdf SFIN 4/1/2014 9:00:00 AM
HB 305
Sponsor Statement-CSHB 305 (FIN).pdf SFIN 4/1/2014 9:00:00 AM
HB 305
SB066CS(JUD)-DOC-OC-03-28-14.pdf SFIN 4/1/2014 9:00:00 AM
SB 66
CSSB 66 Sectional Analysis.pdf SFIN 4/1/2014 9:00:00 AM
SB 66
CSSB66 Explanation of Changes.pdf SFIN 4/1/2014 9:00:00 AM
SB 66
SB 66 Sponsor Statement.pdf SFIN 4/1/2014 9:00:00 AM
SB 66
SB66 Answers to Committee Questions.pdf SFIN 4/1/2014 9:00:00 AM
SB 66
SB66 Legal Services Memo.pdf SFIN 4/1/2014 9:00:00 AM
SB 66
SB66 Letter of Support - Chiefs of Police.pdf SFIN 4/1/2014 9:00:00 AM
SB 66
SB66 Letter of Support - City & Borough of Juneau.PDF SFIN 4/1/2014 9:00:00 AM
SB 66
SB66 Letter of Support - Peace Officers.pdf SFIN 4/1/2014 9:00:00 AM
SB 66
CSHB 297(FIN) Summary of Changes from Version A to Version N - Copy.pdf SFIN 4/1/2014 9:00:00 AM
HB 297
CSHB 297(FIN) AHFC Fact Sheet - Copy.pdf SFIN 4/1/2014 9:00:00 AM
HB 297
CSHB 297(FIN) Sponsor Statement - Copy.pdf SFIN 4/1/2014 9:00:00 AM
HB 297
SB 28 Senate State Forest.pdf SFIN 4/1/2014 9:00:00 AM
SB 28
CSSB 178 North Slope Map 2.pdf SFIN 4/1/2014 9:00:00 AM
SB 178
CSSB 178 North Slope Map.pdf SFIN 4/1/2014 9:00:00 AM
SB 178
CSSB28(RES) Forest Map.pdf SFIN 4/1/2014 9:00:00 AM
SB 28