Legislature(2005 - 2006)BUTROVICH 205
02/25/2005 01:30 PM Senate HEALTH, EDUCATION & SOCIAL SERVICES
| Audio | Topic |
|---|---|
| Start | |
| SB70 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | SB 70 | TELECONFERENCED | |
SB 70-CRIMES INVOLVING CONTROLLED SUBSTANCES
CHAIR DYSON announced SB 70 to be up for consideration.
CHAIR DYSON commented the bill had been postponed for the
consideration of Amendment 1 that adds anabolic steroids to the
list of controlled substances.
1:43:37 PM
CRYSTAL SMITH, aide to Senator French, said only Alaska and
Vermont do not list anabolic steroids as a controlled substance.
Anabolic steroids are illegal under federal law, but are
considered a minor concern by customs agents who typically turn
steroid traffickers over to state officials. Since anabolic
steroids are not contraband under state law, Alaskan officials
do not proceed against them.
CHAIR DYSON asked whether the administration had objections to
Amendment 1.
DEAN GUANELI, Department of Law, said the administration had no
objections. The list of steroids in the amendment is essentially
the same as the federal list of banned steroids. Amendment 1
would classify anabolic steroids as a 5A controlled substance
thereby making possession or distribution of a moderate to large
amount a felony and possession of a small amount a misdemeanor.
SENATOR ELTON asked whether problems might arise from listing
anabolic steroids given the possibility that new versions of the
drug might be developed and would not listed.
MR. GUANELI responded the bill addresses designer drugs, but
noted there are parameters to the precision with which such
legislation could be written. If the language is too broad, it
is difficult to enforce and if it is too narrow, chemists can
design around it.
SENATOR ELTON moved Amendment 1.
A M E N D M E N T 1
OFFERED IN THE SENATE BY SENATOR FRENCH
TO: SB 70
Page 1, line 2, following "substance;":
Insert "relating to listing certain anabolic steroids as
controlled substances;"
Page 3, following line 28:
Insert a new bill section to read:
"* Sec. 6. AS 11.71.180 is amended by adding a new
subsection to read:
(f) Schedule VA includes, unless specifically
excepted or unless listed in another schedule, any
material, compound, mixture, or preparation that contains
any quantity of the following substances, including their
salts, esters, isomers, and salts of esters and isomers if
those salts, esters, or isomers promote muscle growth,
whenever the existence of these salts, esters, and isomers
is possible within the specific chemical designation:
anabolic steroids. In this subsection, "anabolic steroids"
means any drug or hormonal substance that is chemically and
pharmacologically related to testosterone (other than
estrogens, progestins, and corticosteroids) and that
promotes muscle growth; "anabolic steroids" does not
include an anabolic steroid that is expressly intended for
administration through implants to cattle or other nonhuman
species and that has been approved by the United States
Secretary of Health and Human Services for that
administration, unless a person prescribes, dispenses, or
distributes that type of anabolic steroid for human use;
"anabolic steroids" includes the following:
(1) boldenone;
(2) chlorotestosterone (4-chlorotestosterone);
(3) clostebol;
(4) dehydrochlormethyltestosterone;
(5) dihydrotestosterone (4-dihydrotestosterone);
(6) drostanolone;
(7) ethylestrenol;
(8) fluoxymesterone;
(9) formebulone (formebolone);
(10) mesterolone;
(11) methandienone;
(12) methandranone;
(13) methandriol;
(14) methandrostenolone;
(15) methenolone;
(16) methyltestosterone;
(17) mibolerone;
(18) nandrolone;
(19) norethandrolone;
(20) oxandrolone;
(21) oxymesterone;
(22) oxymetholone;
(23) stanolone;
(24) stanozolol;
(25) testolactone;
(26) testosterone;
(27) trenbolone."
Renumber the following bill sections accordingly.
Page 3, line 31:
Delete "The changes made in secs. 1 - 5 of this Act apply"
Insert "This Act applies"
CHAIR DYSON objected for the purpose of discussion.
CHAIR ELTON asked whether the term 'Schedule 5A' would tie the
state list to the federal list.
DEAN GUANELI responded the "A" in "5A" represents Alaska, which
distinguishes Alaska's list from the federal list. The federal
list designates anabolic steroids as Schedule 3 drugs so the
penalties are a little higher. The administration feels a
Schedule 5 designation is appropriate for the state's penalty
structure.
CHAIR DYSON asked whether Senator Elton's concern would be
addressed if line 19 were changed to read "anabolic steroids
including but not limited to the following:"
MR. GUANELI responded it is the administration's view that the
phrase "includes but not limited to" amounts to the same thing
legally.
1:50:00 PM
SENATOR GREEN asked whether there would be need to reference the
state list to the federal list so that the state wouldn't have
to change its list if the federal list were to change.
MR. GUANELI responded the DOL's view of the safest approach is
to adopt a specific list and if new compounds are developed then
adopt them under Alaska law.
CHAIR DYSON removed his objection. There were no further
objections and Amendment 1 was adopted.
CHAIR DYSON asked Mr. Guaneli to explain conceptual Amendment 2.
MR. GUANELI said the amendment addresses the circumstance in
which stolen methamphetamine causes an overdose death by
creating an affirmative defense. An affirmative defense is a
defense that the defendant has to prove. It is difficult for the
state to prove a series of negatives and if the defendant can
prove that methamphetamine was used for personal consumption,
the state would not charge the defendant with manslaughter.
SENATOR ELTON noted the amendment creates an exception for
people that manufacture a controlled substance and he questioned
whether they are deserving of an affirmative defense.
CHAIR DYSON asked whether there was objection to Amendment 2.
1:54:41 PM
SENATOR GREEN asked whether there is a provision for other
potential dangers that involve a third party.
MR. GUANELI responded he knew there are some in weapons
statutes, but he would have to look for other examples.
1:56:21 PM
CHAIR DYSON said there have been attempts to bring charges
against people for recklessly making loaded firearms available
to children and for making car keys available to inebriates.
Case law seems to dictate that one must exercise precaution with
dangerous instruments and weapons.
MR. GUANELI said that is certainly the case with civil law but
added that there is nothing in criminal law that makes such
handling of firearms a crime. There is a theoretical possibility
of applying the notion of reckless endangerment to such cases,
but there has yet to be any attempt to pursue it.
He could imagine a case, such as that of a crack house; in which
taking elaborate measures to safeguard drugs would not satisfy
the criteria for an affirmative defense. It would seem
reasonable to prosecute such a case since the precautions taken
by the operators indicate that they expected theft to occur. He
thought the case raised by the chair involved someone who made
drugs for personal consumption with a reasonable expectation
that they would not fall into the hands of others.
1:59:19 PM
SENTOR ELTON asked whether methamphetamine manufacturers
typically make methamphetamine for personal or commercial use.
MR. GUANELI responded more and more people are making
methamphetamine for personal use. Typically such people use some
of the product and then sell the rest to fund additional
production. Users do not usually take any precautions to prevent
theft.
2:03:27 PM
CHAIR DYSON asked whether there was any sustained objection to
Amendment 2.
SENATOR ELTON stated concern with the bill but did not object.
CHAIR DYSON noted the America Civil Liberties Union (ACLU)
expressed concern that SB 70 blurs the line between negligent
homicide and manslaughter in a new way. There being no further
objections, Amendment 2 was adopted.
CHAIR DYSON introduced conceptual Amendment 3 and asked Mr.
Guaneli to describe it.
MR. GUANELI said under current law it is a mid-level felony
assault to recklessly cause serious physical injury to another
person. It is a class B felony, one level below the charge of
manslaughter. Serious physical injury is defined as a protracted
impairment of a physical condition and this definition fits many
kinds of effects associated with the manufacture and abuse of
controlled substances.
MR. GUANELI proposed adding a new subsection to the second-
degree assault statute patterned after the manslaughter
provision. It would read something to the effect of:
Knowingly manufactures or delivers a controlled
substance in violation of AS.11.71 and a person
suffers serious physical injury as a direct result of
ingestion of the controlled substance; the serious
physical injury is a result that does not require a
culpable mental state.
He said the affirmative defense amendment that was adopted to
apply to the manslaughter provision would also apply to the
assault provision.
2:07:44 PM
SENATOR ELTON said it seems that the affirmative defense
provision of the bill addresses stolen methamphetamine that was
originally manufactured for personal use, not cases in which
children had been injured by methamphetamine reagents and
byproducts.
MR. GUANELI said the amendment was drafted to create a
comparable assault statute addressing injury caused by the
ingestion of controlled substances, not exposure to reagents and
byproducts in the environment. Exposure cases are a different
matter, which are addressed elsewhere in the Governor's bill.
SENATOR ELTON said the assault provision presupposes a before
and after comparison which may not always be easy to make.
MR. GAUNELI acknowledged it may not always be easy, especially
in cases involving addicts with preexisting symptoms, but he
noted that there would be cases where the provision could be
applied clearly.
SENATOR GREEN noted there seemed to be a difference between
cases involving injuries sustained before the age of consent and
those sustained after.
2:11:21 PM
SENATOR ELTON noted cases of drug-induced injury involve many
different levels of causation and culpability and asked if
someone who walked into traffic under the influence of a drug
could be charged under the provision.
MR. GUANELI responded they would not be charged since the
language refers to a "direct result of ingestion".
CHAIR DYSON moved to adopt conceptual Amendment 3 as previously
described.
SENATOR ELTON objected to the motion and suggested the bill be
recommended to the Senate Judiciary Standing Committee, which
would be in a better position to consider the amendment.
2:13:43 PM
CHAIR DYSON acknowledged Senator Elton's concern and withdrew
the Amendment 3.
CHAIR DYSON moved to pass CSSB 70(HES) from committee with
individual recommendations. There being no objection, it was so
ordered. There being no further business to come before the
committee, he adjourned the meeting at 2:15:34 PM.
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