Legislature(2011 - 2012)BELTZ 105 (TSBldg)

02/25/2011 01:30 PM Senate JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= SB 11 HATE CRIMES TELECONFERENCED
Moved SB 11 Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= SB 17 SYNTHETIC CANNABINOIDS TELECONFERENCED
Heard & Held
+= SB 39 U.S. PRESIDENTIAL ELECTION COMPACT TELECONFERENCED
Moved SB 39 Out of Committee
                 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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