Legislature(2013 - 2014)BELTZ 105 (TSBldg)
04/04/2014 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB284 | |
| HB369 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 184 | TELECONFERENCED | |
| += | HB 366 | TELECONFERENCED | |
| += | HB 284 | TELECONFERENCED | |
| += | HB 369 | TELECONFERENCED | |
HB 369-DRUG OVERDOSE: IMMUNITY FROM PROSECUTION
2:12:59 PM
CHAIR COGHILL announced the consideration of HB 369. "An Act
relating to restrictions on the criminal prosecution for certain
offenses for a person who seeks medical assistance for a person
experiencing a drug overdose." He noted the proposed committee
substitute (CS). [CSHB 369(JUD) was before the committee.]
MORGAN HOPSON, Staff, Representative Lance Pruitt, sponsor of HB
369, deferred to the sponsor, who was online, to introduce the
legislation.
SENATOR MCGUIRE extended congratulations to Representative
Pruitt for the "Top 40 Under 40" award he received today.
2:14:16 PM
REPRESENTATIVE LANCE PRUITT, Alaska State Legislature, Juneau,
Alaska, sponsor of HB 369, introduced the legislation speaking
to the following sponsor statement:
Alaska suffers from some of the highest rates of drug
overdose in the nation, and these figures are rising
at an alarming rate. The window to save an individual
experiencing a life-threatening drug overdose is
narrow, and response time is critical. Many
individuals, as well as their friends and family, will
hesitate or choose not to contact emergency medical
services for fear of criminal repercussions relating
to the controlled substance. HB 369 grants limited
immunity to individuals who contact emergency medical
services and stay with the person experiencing a life-
threatening overdose until emergency personal arrive
and make contact. The proposed legislation also
requires that the caller comply with responding
emergency medical personnel or public safety officers
to provide any necessary information.
The individual experiencing the overdose is already
granted limited personal immunity to criminal charges
when they are submitted for medical attention. For
many in this condition, this also serves as an
important point of contact for the referral to an
agency that can help with their substance abuse.
Unfortunately, most individuals experiencing a life-
threatening overdose are unable to contact emergency
services for themselves, and are at the mercy of the
discretion of other persons present.
Alaskans are working hard to fight the epidemic of
abuse of controlled substances, including illegal and
prescription drugs. The purpose of providing
assistance, regulation and legal ramifications for
misuse of pharmaceuticals or use of illegal drugs is
to protect our society and those who currently suffer
from substance abuse addictions. The passage of this
bill can reduce the number of overdose deaths by
granting this limited immunity to a person who seeks
in good faith emergency medical services for another
individual experiencing a life-threatening drug
overdose.
CHAIR COGHILL asked Ms. Hopson if she had anything to add.
MS. HOPSON described the change that was made to the original
language in the bill. In Section 1, the words "immunity from
prosecution" were replaced with "restriction on prosecution."
This was done to avoid transactional immunity, which could
potentially make it more difficult to prosecute other offenses
related to the incident outside of the possession offenses
outlined in the bill. Someone would not be relieved of charges
of reckless endangerment or assault or intent to distribute or
manufacture, for example. She noted that she brought a blank
committee substitute (CS) and could speak to that change at the
chair's discretion.
CHAIR COGHILL asked for an explanation of the criminal statutes
referenced in Section 1, Sec. 11.71.311(a).
MS. HOPSON said they're all possession offenses. She deferred
further explanation to Kathleen Strasbaugh.
2:22:25 PM
KATHLEEN STRASBAUGH Attorney, Legislative Legal Services,
Legislative Affairs Agency, Juneau, Alaska, reviewed the list of
offenses that a person may not be prosecuted for under the
provision set forth in HB 369.
AS 11.71.030(a)(3) is misconduct involving a controlled
substance in the third degree. Subsection (a)(3) addresses
possession of any amount of schedule IA or IIA controlled
substance near a school grounds, youth center, or on a school
bus.
AS 11.71.040(a)(3) and (4) is misconduct involving a controlled
substance in the fourth degree. Subsection (a)(3) governs
possession of any amount of schedule IA controlled substance or
a IIA controlled substance listed in the schedule. It also
governs possession of 25 or more tablets, ampules, or syrettes
containing a schedule IIA or IVA controlled substance and one or
more preparations, compounds, mixtures, or substances of an
aggregate weight of schedule IIIA or IVA controlled substances.
Subsection (a)(4) is possession of a schedule IIIA, IVA, VA, or
VIA controlled substance near a school grounds, youth center, or
on a school bus.
AS 11.71.050(a)(2) is misconduct involving a controlled
substance in the fifth degree? Subsection (a)(2) is a possession
offense affecting smaller amounts of most of the substances in
misconduct involving a controlled substance in the fourth
degree.
As 11.71.060(a)(1) or (2) is misconduct involving a controlled
substance in the sixth degree. Subsection (a)(1) involves use or
display of any amount of a schedule VIA controlled substance
(marijuana product). Subsection (a)(2) involves possession of
one or more preparations, compounds, mixtures, or substances of
smaller amounts of a schedule VIA controlled substance
(marijuana) and schedule IIIA controlled substances that have
been sprayed on tobacco, an herb, or another organic material.
SENATOR WIELECHOWSKI expressed interest in any statistics
showing how many people this potentially would have applied to
in the last five years.
MS. HOPSON said she didn't have exact statistics, but in the
last five years the Alaska Bureau of Vital Statistics reports
the annual fatalities from drug overdoses range between 100 and
130 per year. A University of Washington study found that before
similar legislation was implemented just 50 percent of user
groups said they would report drug overdose incidents. After the
implementation, 88 percent said they would report.
2:27:21 PM
SENATOR WIELECHOWSKI cited the NCSL website that mentions that
"Connecticut and other states limit immunity by specifying that
good-faith reporting does not include seeking help during the
course of the execution of an arrest or search warrant." He
asked if the sponsor had given that sort of situation any
consideration.
MS. HOPSON acknowledged that hadn't been discussed and deferred
further comment to Ms. Carpeneti.
CHAIR COGHILL asked if there had been any discussion of what
constitutes "good faith."
MS. HOPSON explained that the good faith implies that the person
would stay with the person who had overdosed until law
enforcement arrives and then they cooperate by providing
identification. She offered her belief that this provision would
be of little help to someone who tried to use it when officers
were about to exercise a search warrant.
CHAIR COGHILL offered his understanding that a person who
reports an overdose still has some responsibility for unrelated
criminal conduct.
MS. HOPSON said yes. It would be a different scenario if, for
example, a responding office entered the premise and discovered
an amount of the drug that suggested the person had an intent to
distribute.
SENATOR WIELECHOWSKI asked if there had been any discussion
about whether or not the bill might act to suppress evidence in
other criminal charges that arose as a result of the emergency
response.
MS. HOPSON restated that the phrase "immunity from prosecution"
was changed to "restriction on prosecution" to avoid the
possibility of transactional immunity, which could potentially
limit prosecution of other charges related to the incident
outside of the possession offenses outlined in the bill.
2:31:25 PM
SENATOR WIELECHOWSKI asked about applying this to alcohol
overconsumption.
MS. HOPSON said the sponsor's intent is to maintain the narrow
scope in order to get it through the process this session.
CHAIR COGHILL said he wouldn't want to give a false impression
that the bill provides broad immunity from prosecution for
misuse of an illegal substance.
MS. HOPSON affirmed that it applies exclusively to possession
for personal use in the circumstance of reporting an overdose.
CHAIR COGHILL asked Ms. Strasbaugh to comment on potentially
amending the applicability section to apply only on or after the
effective date.
MS. STRASBAUGH said it's a policy choice for the legislature,
but the idea was that it would apply to cases in process.
Because there is a difference of opinion about whether or not
the simple use of the word "before" creates significant
problems, the wording could be changed so that there is a
specific reference to cases in process at the time the bill
becomes effective, she said.
CHAIR COGHILL asked if the definition of "drug overdose" on page
2, lines 10-13, was unique to this section of the code.
MS. HOPSON deferred the question.
2:35:50 PM
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Legal Services Section, Department of Law (DOL), Juneau, Alaska,
stated that DOL strongly recommends removing the term "before"
in the applicability section on page 2, line 16.
CHAIR COGHILL said his intention was that the bill would apply
prospectively. He then asked if "good faith" was a known
standard.
MS. CARPENETI answered yes. She continued to explain that when
the bill was heard in the other body, DOL suggested an
affirmative defense but the policy decision was not to do that,
so the burden is on the prosecution to disprove good faith by
proof beyond a reasonable doubt. If someone calls 911 just as
law enforcement knocks on the door to conduct a search, DOL
presumably would have to disprove that the call was in good
faith.
CHAIR COGHILL asked how that would differ if it were an
affirmative defense.
MS. CARPENETI explained that in an affirmative defense the
burden of proof on the prosecution is by a preponderance of the
evidence. She offered her belief that the rationale for the
decision to stay with reasonable doubt was the desire to save
lives now and argue the legal questions later.
CHAIR COGHILL asked if the bill was narrowly crafted to apply
only to possession.
MS. CARPENETI agreed and noted it doesn't say personal
possession. It would be a different question if the quantity was
sufficient to indicate intent to distribute.
SENATOR WIELECHOWSKI asked if only the caller gets relief from
prosecution or all people who might have stayed on scene.
MS. CARPENETI replied it only says the person who places the
call for help, but law enforcement has said that they rarely
arrest anybody when they're called for an overdose because
they're focused on helping the person who has overdosed.
SENATOR WIELECHOWSKI asked if she knew how many people this
potentially could have saved in the past five years.
MS. CARPENETI said she didn't have that information.
CHAIR COGHILL asked Mr. Hahn if he could answer.
2:39:29 PM
RANDY HAHN, Alaska State Troopers, Department of Public Safety
(DPS), Wasilla, Alaska, said he didn't have an answer and wasn't
sure if that specific data was even in the system.
CHAIR COGHILL asked if law enforcement responding to an overdose
would probably tend to the person who had overdosed rather than
charging everyone present.
TROOPER HAHN replied the first priority is to save the victim,
so it would be highly unlikely to have any arrests at that
particular time. If it looked like there was a potential
distribution center, it would be addressed in a later
investigation.
SENATOR WIELECHOWSKI asked Ms. Carpeneti if it was a concern
that the bill doesn't exclude seeking help during the course of
the execution of an arrest or search warrant.
MS. CARPENETI said she wasn't concerned now, but DOL may
consider that if they find they're unable to disprove good
faith.
SENATOR WIELECHOWSKI asked if DOL feels strongly that this
should be an affirmative defense.
MS. CARPENETI said Department of Law previously suggested it be
structured as an affirmative defense, but the sponsor didn't
support it.
CHAIR COGHILL stated his intention to adopt a CS to remove the
retroactivity.
SENATOR WIELECHOWSKI asked if it creates any sort of
constitutional issues that there would be people sitting in jail
or on probation or parole who were convicted under circumstances
that no longer apply.
MS. CARPENETI said it creates serious practical problems to
include "before" in the applicability, because it doesn't say
how far back.
SENATOR WIELECHOWSKI asked, assuming the term "before" is
removed, how it would affect a case that was in process.
MS. CARPENETI said Department of Law always takes the position
that it is very important for the legislature to clarify when to
start applying a new law, but it's preferably on or after the
effective date. She noted that was no effective date but there
was no reason it couldn't be effective immediately.
SENATOR WIELECHOWSKI said he doesn't like the idea of punishing
people for something that is no longer a crime. That's what
happens without the word "before" in the applicability section.
MS. CARPENETI posited that judges, prosecutors, and defense
lawyers would take that into account when arguing sentencing.
SENATOR WIELECHOWSKI expressed concern about the potential
consequences for a second or third offense and again about
having people sit in jail for an offense that is no longer a
crime.
MS. CARPENETI offered her belief that there is enough discretion
in the system to address unfairness under those circumstances.
2:47:49 PM
SENATOR WIELECHOWSKI questioned how judges would approach
presumptive sentencing when one of the offenses is no longer a
crime.
MS. CARPENETI said she assumes the judge would take into account
the circumstances of the prior offenses and the law at the time.
SENATOR WIELECHOWSKI asked if judges would have the discretion
to do that under the current sentencing laws.
MS. CARPENETI replied judges have discretion within the
sentencing range.
SENATOR WIELECHOWSKI observed that it's rare that a crime is
removed from the books.
MS. CARPENETI clarified that it's still a crime to possess the
controlled substances.
SENATOR WIELECHOWSKI agreed, although there could be people who
have been punished in the past and wouldn't be punished for the
same offense now.
MS. CARPENETI said the problem is that it's very difficult to
establish those facts retrospectively. Somebody could say they
were convicted of possession and that they did dial 911, but
nobody would know if they acted in good faith and stayed with
the person.
CHAIR COGHILL asked for a motion to adopt the CS.
2:49:50 PM
SENATOR MCGUIRE moved to adopt the work draft Senate CS for CS
for HB 369, labeled 28-LS1515\P, as the working document.
CHAIR COGHILL found no objection and Version P was adopted. He
asked if the definition of "drug overdose" on page 2, lines 10-
13 was new.
MS. CARPENETI replied it's not a definition that's part of Title
11. She deferred further explanation to Ms. Strasbaugh.
MS. STRASBAUGH said the term is used in just one other place in
statute as a mitigating factor for felony sentencing.
CHAIR COGHILL asked if a life threatening emergency might become
more difficult to prove under this drug overdose law.
MS. STRASBAUGH replied it would probably depend on whether the
responders thought there was a danger when they arrived.
CHAIR COGHILL opined that it hinges on "reasonably believed."
MS. STRASBAUGH said unconsciousness and difficulty breathing are
hallmarks that could alarm an individual enough to call the EMTs
and the EMTs could realistically indicate if called upon to do
so.
SENATOR WIELECHOWSKI asked if a person who was arrested and
prosecuted under AS 11.71.030(a)(3) might raise it as a defense
that he was having a drug overdose.
MS. CARPENETI said in order to raise a defense the defendant has
to introduce some reliable evidence. The burden is then on the
prosecution to disprove that beyond a reasonable doubt.
SENATOR WIELECHOWSKI said he initially questioned whether this
would create an extremely high burden for prosecutors, but it
sounds as though it won't be a large problem.
MS. CARPENETI said she hopes not but the Department of Law
reserves the right to come back and ask for a change if it
proves to be an onerous burden.
SENATOR WIELECHOWSKI said his one concern relates to the search
warrant, but he didn't want to hold the bill if DOL doesn't see
it a concern.
MS. CARPENETI said she didn't want to be dismissive of the
potential problem because people will try to take advantage of
this defense once it's available.
CHAIR COGHILL questioned whether paragraph (2) on page 2, ought
to explicitly mention good faith.
SENATOR WIELECHOWSKI said that's where the problem lies.
CHAIR COGHILL stated that he would hold HB 369 in committee for
further consideration.