Legislature(2005 - 2006)BUTROVICH 205

03/23/2005 08:30 AM JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ SB 126 AQUATIC FARMING TELECONFERENCED
Moved SB 126 Out of Committee
*+ SB 129 WRONGFUL FILING OF LIS PENDENS TELECONFERENCED
Moved CSSB 129(JUD) Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
= SB 70 CRIMES INVOLVING CONTROLLED SUBSTANCES
Moved CSSB 70(JUD) Out of Committee
          SB 70-CRIMES INVOLVING CONTROLLED SUBSTANCES                                                                      
                                                                                                                                
8:38:36 AM                                                                                                                    
DEAN GUANELI, criminal division, Department of Law (DOL)                                                                        
proposed Amendment 1 to address the definition of the word                                                                      
"ingestion".                                                                                                                    
                                                                                                                                
8:39:42 AM                                                                                                                    
                                                                                                                                
                       A m e n d m e n t                                                                                    
                                                                                                                              
Senate Judiciary Committee                        March 23, 2005                                                                
                                                                                                                                
Amendment to CSSB 70(HES)                                                                                                       
                                                                                                                                
Page 1, line 13:                                                                                                                
                                                                                                                                
Delete "ingestion of"                                                                                                       
                                                                                                                                
Insert in its place "ingesting"                                                                                             
                                                                                                                                
Page 2, line 1:  After the period following the word "state"                                                                
add:                                                                                                                            
                                                                                                                                
"As used in this paragraph, "ingesting" means voluntarily or                                                                
                                                                                                                                
involuntarily taking a substance into the body in any manner. "                                                             
                                                                                                                                
                                                                                                                                
8:40:33 AM                                                                                                                    
SENATOR GENE THERRIAULT joined the committee.                                                                                   
                                                                                                                                
8:41:54 AM                                                                                                                    
SENATOR THERRIAULT  moved to  adopt Amendment  1. There  being no                                                               
objection, the motion carried.                                                                                                  
                                                                                                                                
CHAIR SEEKINS asked Mr. Guaneli to define affirmative defense.                                                                  
                                                                                                                                
MR. GUANELI explained the  difference between affirmative defense                                                               
and regular defense:                                                                                                            
     A regular defense  is one that the  state as prosecutor                                                                    
     has  to   disprove  beyond   a  reasonable   doubt.  An                                                                    
     affirmative  defense   is  one  that   the  Legislature                                                                    
     generally  felt  the   information  to  establish  that                                                                    
     defense  ordinarily  is  something that  the  defendant                                                                    
     has. The  state may  not have information  to establish                                                                    
     that defense  and it's unfair  to put the state  to the                                                                    
     burden  of proving  or disproving  beyond a  reasonable                                                                    
     doubt. An  affirmative defense is  one that  the burden                                                                    
     is  on  the  defendant  to  come  forward,  not  beyond                                                                    
     reasonable doubt,  but to establish  that defense  by a                                                                    
     preponderance of the evidence.                                                                                             
                                                                                                                                
8:44:15 AM                                                                                                                    
CHAIR SEEKINS asked  Mr. Guaneli if an  affirmative defense makes                                                               
a person guilty until proven innocent.                                                                                          
                                                                                                                                
MR.  GUANELI  responded the  state  always  bears the  burden  of                                                               
proving  the   essential  elements   of  the  offense   beyond  a                                                               
reasonable doubt.                                                                                                               
                                                                                                                                
CHAIR  SEEKINS  commented  that   statutes  are  trending  toward                                                               
putting  the burden  of proof  on  someone else  rather than  the                                                               
state.                                                                                                                          
                                                                                                                                
MR. GUANELI  agreed and  said affirmative  defense should  not be                                                               
routinely enacted  in statutes.  He added  in any  case involving                                                               
drugs where someone dies; the  burden of proof will be impossible                                                               
for the state to meet.                                                                                                          
                                                                                                                                
8:47:56 AM                                                                                                                    
SENATOR  HOLLIS FRENCH  agreed  with Mr.  Guaneli  and added  the                                                               
state should not  have to prove beyond a reasonable  doubt in the                                                               
case of a drug manufacturer causing death to a person.                                                                          
                                                                                                                                
CHAIR SEEKINS interjected the discussion was important.                                                                         
                                                                                                                                
8:49:26 AM                                                                                                                    
SENATOR THERRIAULT  moved to adopt  Amendment 2 on behalf  of the                                                               
Department of Law.                                                                                                              
                                                                                                                                
                       A m e n d m e n t                                                                                    
                                                                                                                                
Senate Judiciary Committee                        March 23, 2005                                                                
                                             Page 1 of 2                                                                        
Amendment to CSSB 70(HES)                                                                                                       
                                                                                                                                
Page 2, line 10, through page 3, line 13:                                                                                       
Delete sections 3, 4 and 5 entirely, and replace with                                                                           
                                                                                                                                
   *Sec. 3.   AS 12.55.125(c), as  amended by section CCS  SB 56,                                                             
is amended to read:                                                                                                             
                                                                                                                                
     (c) Except as provided in (i) of this section, a defendant                                                                 
convicted of  a class  A felony  may be  sentenced to  a definite                                                               
term of  imprisonment of  not more  than 20  years, and  shall be                                                               
sentenced  to a  definite term  within the  following presumptive                                                               
ranges,  subject to  adjustment  as provided  in  AS 12.55.155  -                                                               
12.55.175:                                                                                                                      
          (1) if the offense is a first felony conviction and                                                                   
does  not   involve  circumstances  described  in   (2)  of  this                                                               
subsection, five to eight years;                                                                                                
          (2) if the offense is a first felony conviction                                                                       
               (A) and the defendant possessed a firearm, used a                                                            
          dangerous instrument, or caused serious physical                                                                      
          injury or death during the commission of the offense,                                                                 
          or knowingly directed the conduct constituting the                                                                    
          offense at a uniformed or otherwise clearly identified                                                                
          peace officer, fire fighter, correctional employee,                                                                   
          emergency medical technician, paramedic, ambulance                                                                    
          attendant, or other emergency responder who was                                                                       
          engaged in the performance of official duties at the                                                                  
          time of the offense, seven to 11 years;                                                                               
               (B)  and the conviction is for manufacturing                                                                 
          related to methamphetamine under AS                                                                               
          11.171.020(a)(2)(A) or (B),  seven to 11 years, if                                                                
                    (i) the manufacturing occurred in a building                                                            
               with reckless disregard that the building was                                                                
               used as a permanent or temporary home or place of                                                            
               lodging for one or more children under 18 or the                                                             
               building was a place frequented by children; or                                                              
                    (ii) in the course of manufacturing or in                                                               
               preparation for manufacturing the defendant                                                                  
               obtained the assistance of one or more children                                                              
               under 18 or one or more children were present;                                                               
          (3) if the offense is a second felony conviction, 10                                                                  
          to 14 years;                                                                                                          
          (4) if the offense is a third felony conviction and                                                                   
          the defendant is not subject to sentencing under (l)                                                                  
          of this section, 15 to 20 years.                                                                                      
                                                                                                                                
                                                                                                                                
  *Sec. 4.  AS 12.55.125(d), as  amended by section CCS SB 56, is                                                             
amended to read:                                                                                                                
                                                                                                                                
     (d) Except as provided in (i) of this section, a defendant                                                                 
convicted of  a class  B felony  may be  sentenced to  a definite                                                               
term of  imprisonment of  not more  than 10  years, and  shall be                                                               
sentenced  to a  definite term  within the  following presumptive                                                               
ranges,  subject to  adjustment  as provided  in  AS 12.55.155  -                                                               
12.55.175:                                                                                                                      
          (1) if the offense is a first felony conviction and                                                                   
does  not   involve  circumstances  described  in   (2)  of  this                                                               
subsection, one to three years;  a defendant sentenced under this                                                               
paragraph may,  if the court  finds it appropriate, be  granted a                                                               
suspended  imposition of  sentence under  AS 12.55.085  if, as  a                                                               
condition  of  probation under  AS  12.55.086,  the defendant  is                                                               
required  to serve  an  active term  of  imprisonment within  the                                                               
range specified in this paragraph,  unless the court finds that a                                                               
factor in mitigation under AS 12.55.155 applies;                                                                                
          (2) if the offense is a first felony conviction,                                                                      
               (A) the defendant violated AS 11.41.130, and the                                                             
                  victim was a child under 16 years of age, two                                                                 
                  to four years;                                                                                                
               (B)  two to four years if the conviction is for                                                              
          an attempt, solicitation or conspiracy to manufacture                                                             
          related to methamphetamine under AS 11.31 and AS                                                                  
          11.171.020(a)(2)(A) or (B), and                                                                                   
                    (i) the attempted manufacturing occurred, or                                                            
               the solicited or conspired offense was to have                                                               
               occurred, in a building with reckless disregard                                                              
               that the building was used as a permanent or                                                                 
               temporary home or place of lodging for one or                                                                
               more children under 18 or the building was a                                                                 
               place frequented by children; or                                                                             
                    (ii) in the course of an attempt to                                                                     
               manufacture the defendant obtained the assistance                                                            
               of one or more children under 18 or one or more                                                              
               children were present;                                                                                       
           (3) if the offense is a second felony conviction,                                                                    
          four to seven years;                                                                                                  
          (4) if the offense is a third felony conviction, six                                                                  
          to ten years.                                                                                                         
                                                                                                                                
                                                                                                                                
   *Sec. 5.  AS 12.55.185 is amended to add a new definition, to                                                              
read:                                                                                                                           
(18) "building," in  addition to its usual  meaning, includes any                                                               
propelled   vehicle   or    structure   adopted   for   overnight                                                               
accommodation  of persons  or for  carrying on  business; when  a                                                               
building consists  of separate units, including  apartment units,                                                               
offices, or rented  rooms, each unit is considered a  part of the                                                               
same building.                                                                                                                  
                                                                                                                                
SENATOR FRENCH objected for the purpose of discussion.                                                                          
                                                                                                                                
MR. GUANELI  explained the provisions  in the current  version of                                                               
SB  70.  Sections 3,4,  and  5  were  a  result of  Alaska  State                                                               
Troopers  experiences  with mobile  methamphetamine  laboratories                                                               
(meth labs). The main concern  is the close proximity of children                                                               
to mobile meth  labs. Convicting a person of  two separate crimes                                                               
for  the same  conduct  introduces the  concept  of merger  where                                                               
courts will take  two convictions and merge them  for the purpose                                                               
of sentencing.                                                                                                                  
                                                                                                                                
SENATOR  FRENCH clarified  the separate  crime is  when a  person                                                               
manufactures in a building knowing that children are near.                                                                      
                                                                                                                                
8:53:44 AM                                                                                                                    
MR.  GUANELI  referred  to  a sentencing  chart  and  offered  an                                                               
explanation  of  the  adjusted   sentences.  There  would  be  an                                                               
additional  penalty   for  manufacturing   methamphetamines  near                                                               
children.                                                                                                                       
                                                                                                                                
8:56:45 AM                                                                                                                    
MR. GUANELI  advised the committee  that manufacturers  have been                                                               
known  to  use children  to  assist  them  in the  production  of                                                               
methamphetamines.                                                                                                               
                                                                                                                                
8:58:09 AM                                                                                                                    
SENATOR  THERRIAULT asked  Mr.  Guaneli if  SB  70 addresses  the                                                               
situation where  the manufacturer's  friend brings  children into                                                               
the house.                                                                                                                      
                                                                                                                                
MR.  GUANELI said  the intent  of  SB 70  addresses an  overnight                                                               
situation. There was no thought as to children visiting.                                                                        
                                                                                                                                
8:59:45 AM                                                                                                                    
SENATOR THERRIAULT  asked whether the committee  could modify the                                                               
language.                                                                                                                       
                                                                                                                                
CHAIR SEEKINS agreed.                                                                                                           
                                                                                                                                
SENATOR FRENCH  said children do  not spend the night  in daycare                                                               
centers.                                                                                                                        
                                                                                                                                
CHAIR   SEEKINS  suggested   including   the  words   "frequently                                                               
present".                                                                                                                       
                                                                                                                                
9:00:58 AM                                                                                                                    
MR  GUANELI  admitted  he  is  not  bothered  by  the  notion  of                                                               
"frequently present"  as language. He suggested  it was ambiguous                                                               
and if necessary, a jury could decide.                                                                                          
                                                                                                                                
CHAIR SEEKINS  asked how long it  takes to cause harm  to a child                                                               
in the presence of the manufacturing of methamphetamines.                                                                       
                                                                                                                                
MR. GUANELI deferred the question to Sergeant Tim Birt.                                                                         
                                                                                                                                
9:02:38 AM                                                                                                                    
SERGEANT TIMOTHY BIRT, detective,  Alaska State Troopers, advised                                                               
there  are  no  studies  to   indicate  a  specific  time  frame.                                                               
Variables include  the size of  the operation, how  the chemicals                                                               
are stored,  stages of  operation, and  location. Meth  lab fumes                                                               
are extremely toxic.                                                                                                            
                                                                                                                                
9:05:02 AM                                                                                                                    
SENATOR  THERRIAULT commented  there  is an  explosive nature  as                                                               
well.                                                                                                                           
                                                                                                                                
SENATOR  FRENCH  suggested  adding  language  regarding  children                                                               
frequenting the area.                                                                                                           
                                                                                                                                
SENATOR GRETCHEN GUESS  asked if SB 70  included children present                                                               
during manufacturing.                                                                                                           
                                                                                                                                
9:07:38 AM                                                                                                                    
MR.  GUANELI  suggested under  Section  3,  subparagraph (B)  sub                                                               
subparagraph (i)  after 18, add  the phrase "place  frequented by                                                               
children",   and   under   Section  3,   subparagraph   (B)   sub                                                               
subparagraph (ii)  after 18,  add "or one  or more  children were                                                               
present".                                                                                                                       
                                                                                                                                
SENATOR FRENCH asked  Mr. Guaneli if SB 70  covers using children                                                               
to purchase ingredients.                                                                                                        
                                                                                                                                
9:10:08 AM                                                                                                                    
MR. GUANELI advised  the intent of the language  was broad enough                                                               
to include that scenario.                                                                                                       
                                                                                                                                
9:12:13 AM                                                                                                                    
SENATOR THERRIAULT  moved the  conceptual amendment  to Amendment                                                               
2. Hearing no objections, it was so ordered.                                                                                    
                                                                                                                                
9:13:14 AM                                                                                                                    
MR. GUANELI  informed the  committee SB  70 contained  a separate                                                               
sentencing   provision   to  address   attempted   manufacturing,                                                               
solicitation to manufacturing and conspiracy to manufacture.                                                                    
                                                                                                                                
9:14:27 AM                                                                                                                    
SENATOR  GUESS asked  Mr. Guaneli  whether there  were any  other                                                               
places in the  Alaska statutes where they  discuss using children                                                               
in the manufacturing or preparing of elicit drugs.                                                                              
                                                                                                                                
9:15:41 AM                                                                                                                    
MR. GUANELI responded  this is the only place  where children are                                                               
reflected because it is the current problem.                                                                                    
                                                                                                                                
9:17:18 AM                                                                                                                    
SENATOR  GUESS asked  how the  DOL would  handle a  case where  a                                                               
person under 18 was forced to deliver illicit drugs.                                                                            
                                                                                                                                
SENATOR  FRENCH offered  it would  be  a defense  of coercion  or                                                               
duress.                                                                                                                         
                                                                                                                                
MR. GUANELI agreed with Senator  French. When an act is committed                                                               
under duress, the law takes  that into account. However, there is                                                               
a  certain level  of responsibility  even children  have to  bear                                                               
when they are involved in selling drugs.                                                                                        
                                                                                                                                
SENATOR GUESS  commented the  legislation would  protect children                                                               
if they  are being used to  manufacture illegal drugs but  not if                                                               
they are being used to deliver the drugs.                                                                                       
                                                                                                                                
9:19:32 AM                                                                                                                    
MR.  GUANELI responded  if  a child  is  knowingly and  willingly                                                               
participating in the manufacturing  of a controlled substance, it                                                               
is  a  prosecutable   offense.  SB  70  provides   a  measure  of                                                               
protection  for  children  but depending  on  their  culpability,                                                               
there could be consequences.                                                                                                    
                                                                                                                                
CHAIR  SEEKINS asked  Mr. Guaneli  if he  could conceive  someone                                                               
prosecuting an eight year old for involvement in illegal drugs.                                                                 
                                                                                                                                
MR.  GUANELI answered  it would  be  dealt with  in the  juvenile                                                               
justice system.  The law  doesn't feel children  that age  have a                                                               
culpable mental thought process.                                                                                                
                                                                                                                                
9:21:59 AM                                                                                                                    
CHAIR  SEEKINS asked  Sergeant  Birt if  he  has seen  situations                                                               
where little  children have knowingly  and willingly  assisted in                                                               
the manufacturing and selling of illicit drugs.                                                                                 
                                                                                                                                
SGT. BIRT answered no.                                                                                                          
                                                                                                                                
CHAIR SEEKINS asked  Sgt. Birt if he has seen  the same situation                                                               
with teenagers.                                                                                                                 
                                                                                                                                
SGT. BIRT answered yes.                                                                                                         
                                                                                                                                
CHAIR SEEKINS  remarked his constituents were  concerned with the                                                               
ease at which drug manufacturers meet bail.                                                                                     
                                                                                                                                
9:24:13 AM                                                                                                                    
MR.  GUANELI  replied  judges  take  into  account  a  number  of                                                               
circumstances including  previous offenses and flight  risks when                                                               
setting bail. The Legislature can  set guidelines and help judges                                                               
consider other requirements.                                                                                                    
                                                                                                                                
9:26:57 AM                                                                                                                    
SENATOR  FRENCH asked  Mr. Guaneli  about a  controlled substance                                                               
schedule bill that the Legislature passed 5 years ago.                                                                          
                                                                                                                                
MR. GUANELI said the DOL  would like to impose tougher sentencing                                                               
when methamphetamines are involved.                                                                                             
                                                                                                                                
CHAIR   SEEKINS  commented   some  states   allow  no   bail  for                                                               
methamphetamine offenses. If it  does not create a constitutional                                                               
problem,  he would  support  an  amendment to  SB  70 that  would                                                               
require an extremely high cash bail.                                                                                            
                                                                                                                                
9:28:19 AM                                                                                                                    
SENATOR FRENCH offered a judge  would balance the strength of the                                                               
case. In a  strong case the judge  could set the bail  high. In a                                                               
weak case the suspect could walk.                                                                                               
                                                                                                                                
9:29:46 AM                                                                                                                    
CHAIR SEEKINS  asked Mr. Guaneli if  he had any objection  to the                                                               
Legislature instituting a high cash bail for the second offense.                                                                
                                                                                                                                
MR. GUANELI replied he sees merit in the suggestion.                                                                            
                                                                                                                                
CHAIR SEEKINS  announced the chair  would entertain  a conceptual                                                               
motion to  add for  a second  arrest a  minimum of  $250,000 cash                                                               
bail.                                                                                                                           
                                                                                                                                
SENATOR HUGGINS  moved to adopt  the second  conceptual amendment                                                               
to Amendment 2. There being no objection, the motion carried.                                                                   
                                                                                                                                
9:32:01 AM                                                                                                                    
MR. GUANELI commented  some people could meet the  high cash bail                                                               
and  he would  like the  court  to be  able to  impose the  other                                                               
restrictions that accompany the offense.                                                                                        
                                                                                                                                
CHAIR SEEKINS answered  it was not the intent  of the Legislature                                                               
to impair the courts ability to impose other restrictions.                                                                      
                                                                                                                                
9:33:27 AM                                                                                                                    
MR.  DUNCAN  SHACKELFOLD,  head   football  coach,  Chugiak  High                                                               
School,  testified in  support  of SB  70.  He expressed  concern                                                               
about the easy access youths have to steroids.                                                                                  
                                                                                                                                
9:40:14 AM                                                                                                                    
CHAIR SEEKINS asked Mr. Guaneli  if the list of anabolic steroids                                                               
on Page 4 is limiting.                                                                                                          
                                                                                                                                
MR. GUANELI replied  the courts have always said  a list includes                                                               
but is not  limited to. A list always helps  due to pharmacologic                                                               
language.  Legally it  is  not necessary  to  add the  additional                                                               
language, "includes but is not limited to."                                                                                     
                                                                                                                                
9:42:10 AM                                                                                                                    
SENATOR FRENCH  proposed an  amendment on Page  4; line  21 after                                                               
the  word   "includes"  insert  "but   is  not  limited   to  the                                                               
following." Hearing no objections, Amendment 3 was adopted.                                                                     
                                                                                                                                
9:42:59 AM                                                                                                                    
MS. BARBARA  BRINK, director, Alaska Public  Defenders, commented                                                               
on the first section of SB 70.  She took issue with the phrase on                                                               
Page 1; line 14:                                                                                                                
       "...the death is a result that does not require a                                                                        
     culpable mental state."                                                                                                    
She suggested SB  70 would seek to punish people  who do not have                                                               
mental culpability. She said:                                                                                                   
     The   people   did    not   intentionally,   knowingly,                                                                    
     recklessly, or negligently cause  death. This is a huge                                                                    
     difference  from the  vast majority  of crimes  that we                                                                    
     punish. Usually  a crime has  to have three  things: An                                                                    
     act  that is  illegal,  a result,  and  a mental  state                                                                    
     about that result. In  this instance we're dramatically                                                                    
     changing what  we usually  do and  who we  usually hold                                                                    
     responsible. A  person may have  had reason  to believe                                                                    
     that  any  death  would  occur.   It  was  clearly  not                                                                    
     intended or  expected and may  not have even  been able                                                                    
     to foresee  such an outcome. Oftentimes  they've merely                                                                    
     shared  a  small  amount  of   a  substance  that  they                                                                    
     themselves believed  is used without any  harm and just                                                                    
     for a social purpose.                                                                                                      
She  said the  Alaska  Supreme Court  has  looked unfavorably  on                                                               
punishing people who don't have a criminal mind.                                                                                
                                                                                                                                
9:45:17 AM                                                                                                                    
MS.  BRINK asserted  to change  a  homicide offense  to a  strict                                                               
liability offense  may not pass  constitutional muster  under the                                                               
Alaska  Supreme  Court.  In  the  United  States,  tobacco  kills                                                               
approximately    450,000   people    annually.   Alcohol    kills                                                               
approximately 80,000 people and  cocaine, heroin and aspirin each                                                               
kill about 2,000 people a  year. Holding somebody accountable for                                                               
a  death somewhere  down the  drug line  does not  prove to  be a                                                               
societal  benefit. New  Jersey has  imposed strict  liability for                                                               
drug deaths based on the fact  that 50 percent of all crimes were                                                               
drug related.  It is a  lucrative, organized crime issue  in that                                                               
state.  The  Legislature attempted  to  use  strict liability  to                                                               
attack the  drug trade and  hold kingpins responsible.  However a                                                               
study ten years  after showed that most people  who were arrested                                                               
for strict  liability deaths were  minors with no  priors, family                                                               
member, or small time users.                                                                                                    
                                                                                                                                
9:48:09 AM                                                                                                                    
MS. BRINK  said SB 70 will  not address a huge  problem in Alaska                                                               
and it may not be constitutional.                                                                                               
                                                                                                                                
9:49:16 AM                                                                                                                    
MS.  BRINK added  there is  no proof  that jail  is effective  in                                                               
helping  people overcome  drug addictions.  She said  therapeutic                                                               
courts  are a  valuable alternative  to putting  non-violent drug                                                               
offenders into treatment.                                                                                                       
                                                                                                                                
9:50:22 AM                                                                                                                    
CHAIR SEEKINS closed public testimony.                                                                                          
                                                                                                                                
SENATOR  THERRIAULT  moved  CSSB   70(JUD)  from  committee  with                                                               
individual recommendations and accompanying fiscal notes.                                                                       

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