Legislature(2011 - 2012)BELTZ 105 (TSBldg)
02/25/2011 01:30 PM Senate JUDICIARY
Audio | Topic |
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Start | |
SB17 | |
SB11 | |
SB39 | |
Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
+= | SB 11 | TELECONFERENCED | |
+ | TELECONFERENCED | ||
+= | SB 17 | TELECONFERENCED | |
+= | SB 39 | TELECONFERENCED | |
SB 17-SYNTHETIC CANNABINOIDS 1:31:47 PM CHAIR FRENCH announced the consideration of SB 17 and asked for a motion to adopt the work draft committee substitute (CS). SENATOR WIELECHOWSKI moved to adopt the work draft committee substitute to SB 17, labeled 27-LS0121\D, as the working document. There being no objection, version D was before the committee. 1:32:24 PM CHRISTINE MARASEGAN, staff to Senator Meyer, said SB 17 classifies synthetic cannabinoids and the CS moves these substances from schedule IIA, which is in AS 11.71.150, to schedule IIIA, which is in AS 11.71.260. She noted the letters of support including the Alaska Peace Officers Association, Women Police Alaska, Alaska Association of Chiefs of Police, Municipality of Anchorage, Alaska Mental Health Board, Alaska Advisory Board on Alcoholism and Drug Abuse, and Fairbanks Police. CHAIR FRENCH asked what general affect the proposed change in classification would have on possession of cannabinoids. 1:33:06 PM SENATOR COGHILL joined the committee. MS. MARASEGAN explained that possession of cannabinoids under schedule IIA would be a class C felony although there would probably be room for presumptive sentencing. Possession of a schedule IIIA controlled substance, which the current CS proposes, would be a class A misdemeanor. That penalty is a maximum one year in prison and a $10,000 fine. SENATOR COGHILL asked when this product would have to be taken off the retail shelf after the bill is implemented. CHAIR FRENCH offered an opinion and asked Ms. Carpeneti for a definitive answer. SENATOR COGHILL expressed concern about giving retailers sufficient notice to change their behavior. 1:36:45 PM ANNE CARPENETI, Assistant Attorney General, Criminal Division, Department of Law (DOL), said the current CS has an immediate effective date, which would be the day after the governor signs the bill. SENATOR COGHILL expressed concern about the public policy of making retailers liable the moment the bill is signed into law. 1:37:31 PM JENNIFER MESSICK, Traffic Safety Resource Prosecutor, Municipality of Anchorage (MOA), stated that the MOA supports classifying synthetic cannabinoids as schedule IIA drugs for five reasons. 1) Schedule IIA has cyclic drugs and Spice is a cyclic. Its effects are similar to PCP and LSD and users oftentimes experience different symptoms. She provided examples of erratic to psychotic behavior and two examples that resulted in death. This is compared to marijuana and hash, which affects users in very similar and predictable ways. "Generally people are tired, lazy, hungry, and maybe euphoric or relaxed," she stated. 2) The U.S. Poison Control Center says that the symptoms of Spice are more similar to methamphetamine and PCPs than to marijuana. 1:43:51 PM At ease due to teleconference difficulties. 1:45:59 PM CHAIR FRENCH reconvened the meeting and called for committee questions. SENATOR PASKVAN asked if her department had any peer-review studies that address synthetic cannabinoids. MS. MESSICK said no because there have been no scientific studies on human subjects. In the mid '90s pharmaceutical companies were in competition to develop a synthetic cannabinoid that had just the medicinally desirable qualities of marijuana. The compounds that are commonly found in K2 and Spice were discarded as unsuitable for human testing because of the way they affected rats and pigeons during testing. The scientists nonetheless published their results and "basement scientists" began using these discarded formulas. While these compounds are marketed as incense, they are really only intended to get the user high. 1:48:41 PM SENATOR PASKVAN asked her to cite her sources. MS. MESSICK said John W. Huffman, the researcher who developed most of these compounds, has been quoted in a number of published articles warning potential users. He has stated that these compounds were never intended for human consumption and that using them is tantamount to playing Russian roulette She informed the committee that the Municipality of Anchorage became aware of these compounds in April 2010 and in retrospect they were seeing evidence of drivers that were probably impaired by these compounds for 18 months prior to that. Blood tests from Spice impaired drivers detect nothing. Since that time the municipality has amassed an extensive depth of knowledge on these compounds, and she has traveled to other states to conduct training on these compounds for law enforcement, the military, and counter-drug intelligence officials. SENATOR PASKVAN asked if she had source documents from Dr. Huffman that tell where these synthetic cannabinoids came from and that they were not intended for human consumption. MS. MESSICK replied she could provide that information. CHAIR FRENCH noted that testimony last week indicated that the Anchorage municipal assembly decided to make possession of K2 essentially a traffic ticket. He asked if K2 is still commercially available in Anchorage. MS. MESSICK answered yes, the compounds found in both Spice and K2 are still available on the black market and in tobacco and head shops. The MOA enacted the ordinance because it doesn't have the authority to make possession a felony. They took this step because high school students were using these compounds and experiencing alarming reactions. She opined that one thing that makes this drug so dangerous is that it's marketed to look like marijuana. This makes it attractive and it appears to be safe. Furthermore, the government hasn't criminalized possession and use and that sends the message that it's not a big deal. If the municipality had had the authority to make it a felony, it would have done so, she said. 1:56:26 PM CHAIR FRENCH asked her to clarify whether the penalty for possession of K2 within the MOA is a misdemeanor that can send a person to jail for six months or a traffic ticket that carries a fine. MS. MESSICK replied it can be either. Two subsections of the municipal penal code address distributors and those are mandatory misdemeanor violations. Two subsequent subsections address low level possession and the officer has the option of citing a misdemeanor or using the civil fine. She opined that the city took this route because it doesn't have the authority to prosecute juveniles for misdemeanor offenses that aren't traffic oriented. CHAIR FRENCH said he has difficulty believing that head shops still sell K2 if it's a misdemeanor in the municipal code. MS. MESSICK replied the manufacturers anticipated criminalization and they've substituted analog compounds; the affect is the same but the chemical structure is slightly different. CHAIR FRENCH asked if this is backed up by research or supposition. MS. MESSICK replied law enforcement doesn't have a test for these substances but analog compounds are advertized on the Internet so the police know they're being used. 1:59:56 PM SENATOR WIELECHOWSKI asked if Anchorage is seeing problems with other drugs like heroin, meth, crack or cocaine. MS. MESSICK said yes; heroin is popular in Anchorage and methamphetamine is in evidence. SENATOR WIELECHOWSKI asked why she thinks that outlawing synthetic cannabinoids will solve the problem when drugs that are already illegal continue to be a problem. MS. MESSICK replied the legislation would provide a framework for future action and without it, law enforcement is helpless. Furthermore, a schedule II classification would send the clear message that these substances are dangerous. This is how the government protects citizens, she said. SENATOR WIELECHOWSKI asked how many people are in jail in Anchorage for drug-related offenses. MS. MESSICK said she had no idea. SENATOR WIELECHOWSKI asked how many people have been found to have used synthetic cannabinoids. MS. MESSICK estimated that since April 2010 there have been several hundred bad incidents reported by APD, the fire department, and school officials. The most common users of this very dangerous drug are age 14-17. 2:05:21 PM SENATOR WIELECHOWSKI asked if the police could get a search warrant to search a house if they pull someone over and have reason to believe that they're under the influence of synthetic cannabinoids. MS. MESSICK replied that wouldn't be appropriate, but if an officer reasonably believes that a person is impaired, he or she could get a search warrant for the person's blood. One lab in the U.S. can detect synthetic cannabinoids in blood and several others can detect it in urine. She offered to provide information showing that this drug is a problem in all 50 states. 2:08:06 PM SENATOR PASKVAN asked if it would be a good starting point to criminalize the manufacture and distribution. This would target the top of the pyramid rather than the bottom. MS. MESSICK said yes, but kids would still have ready access over the Internet. CHAIR FRENCH said at this point he's interested in hearing from a chemist/lawyer who can tell him how broad he can craft the language to capture as many substances as possible and still give fair warning to the people who are manufacturing and distributing. At the same time he wants to work on the issues that make it possible for the big fish to move on while the dumb kid who has a little in his pocket goes to jail or has his future ruined. SENATOR PASKVAN noted that she used the term "future action" and asked if she anticipates the need for future legislative action. MS. MESSICK addressed Senator French's comments and emphasized that possession should be illegal but she would agree that crafting a law that is sufficiently broad to include new analogs is problematic. 2:13:27 PM SENATOR PASKVAN said if she didn't intend that "future action" meant future legislative action then he would withdraw the question. SENATOR WIELECHOWSKI stated support for taking a more comprehensive look at this issue and suggested that targeting the manufacturers was better policy than throwing teens in jail for possessing this substance. 2:15:49 PM CHAIR FRENCH asked the drafter to comment on how broadly the definition could be cast to warn people that what they're doing is illegal and encompass future mutations, without running afoul of the constitution. 2:16:22 PM JERRY LUCKHAUPT, Assistant Revisor of Statutes, Legislative Legal Services, Legislative Affairs Agency, said he attempted to draft the bill as broadly as he thought possible. The bill lists the substances that other states have made illegal and it includes language about salts, isomers, and salts of isomers to cover the normal ways to make an analog. He noted that states that have tried to address analogs describing them as "similar" compounds have been largely unsuccessful because that doesn't give proper notice. The federal government passed the Federal Analog Act about 30 years ago, but after a federal court in Colorado found it unconstitutional, there were no further prosecutions. At most, it's used as a negotiation point on another matter. 2:20:14 PM CHAIR FRENCH asked if the federal government had taken action on the substances addressed in the bill. MR. LUCKHAUPT replied the federal government is in the process of listing five of the substances and HU-210 is already listed under federal law. Five other substances will be listed after the requisite studies are finished. 2:21:01 PM CHAIR FRENCH asked Mr. Dym if the state crime lab could test for these substances if they were made illegal. ORIN DYM, Forensic Laboratory Manager, Statewide Crime Laboratory, Department of Public Safety (DPS), stated that the lab would need to purchase standards to make the comparison, but the instrumentation and expertise is on hand so they could provide the service in the near future. CHAIR FRENCH surmised that the Anchorage Police Department had not asked for testing based on the municipal ordinance. MR. DYM responded that they informed the APD that the lab would prepare to conduct the tests if this were to become state law. SENATOR PASKVAN asked what the additional costs would be. MR. DYM replied the chemicals would cost about $10,500 and they are asking for an additional position to do the testing. 2:23:53 PM SENATOR WIELECHOWSKI asked for clarification on the municipal and federal laws. MR. LUCKHAUPT explained that there is a federal law in place for at least one of these substances and hopefully five others will be listed in the next few months. SENATOR WIELECHOWSKI asked if a 17-year-old who was in possession could theoretically be prosecuted under the municipal law, the state law, and the federal law. MR. LUCKHAUPT opined that a person could receive a civil citation under municipal law and be prosecuted under both state and federal laws. SENATOR WIELECHOWSKI commented that a new prison will be needed every five or ten years if laws like this are passed. CHAIR FRENCH asked Mr. Luckhaupt to reiterate whether or not this language is broad enough to capture new compounds, but narrow enough to be constitutional. MR. LUCKHAUPT opined that the language is sufficiently broad enough without becoming unconstitutional. He informed the committee that, in a similar circumstance, it didn't work in the '80s when efforts were made to criminalize ecstasy and drugs that were similar, because the laws didn't provide the constitutionally required notice. Unfortunately, when a new designer drug is created, it has to be addressed individually and added to the schedules. 2:27:13 PM CHAIR FRENCH said he's disheartened so far by the experience in the municipality because his assumption was that if it was illegal it would disappear from the retail shelves and people would stop seeking it out. MR. LUCKHAUPT said once the federal government makes these substances illegal, importation will slow. 2:29:11 PM SENATOR COGHILL said the immediate effective date caught his attention and he questions whether the legislative hearings are sufficient notice. MR. LUCKHAUPT opined that the head shops will be aware of what's occurring between the time this passes and the governor signs it into law. He added that he doubts there would be a problem with a prosecution occurring under that circumstance. SENATOR COGHILL said his other point is that it would probably be easier to prosecute sellers than buyers. MR. LUCKHAUPT said that while testing the end-user is the issue right now, he's sure that employers are looking for ways to include this in a urinalysis. Testimony in other committees indicates that several companies already do this. 2:33:01 PM ZACHORY ALEXANDER PEASE, representing himself, stated that in his opinion this is the most volatile, disgusting drug since the introduction of Oxycontin. He was tricked into smoking it and the experience was not good. "As a young person I think that we need to get this off the streets as soon as possible," he said. CHAIR FRENCH asked if any committee member needed additional information in order to make a decision about the bill. SENATOR WIELECHOWSKI said he'd like DOL to supply information about the number of people in jail in Alaska for possession of drugs and what this costs. CHAIR FRENCH announced he would hold SB 17 awaiting the information.
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