Legislature(2005 - 2006)BUTROVICH 205

02/25/2005 01:30 PM HEALTH, EDUCATION & SOCIAL SERVICES


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01:41:54 PM Start
01:43:37 PM SB70
02:15:34 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= SB 70 CRIMES INVOLVING CONTROLLED SUBSTANCES TELECONFERENCED
Moved CSSB 70(HES) Out of Committee
          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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