Legislature(2005 - 2006)BUTROVICH 205
03/23/2005 08:30 AM JUDICIARY
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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.