Legislature(2011 - 2012)HOUSE FINANCE 519
02/24/2011 01:30 PM House FINANCE
| Audio | Topic |
|---|---|
| Start | |
| HB7 | |
| HB19 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 7 | TELECONFERENCED | |
| += | HB 19 | TELECONFERENCED | |
HOUSE FINANCE COMMITTEE
February 24, 2011
1:39 p.m.
1:39:56 PM
CALL TO ORDER
Co-Chair Stoltze called the House Finance Committee meeting
to order at 1:39 p.m.
MEMBERS PRESENT
Representative Bill Stoltze, Co-Chair
Representative Bill Thomas Jr., Co-Chair
Representative Anna Fairclough, Vice-Chair
Representative Mia Costello
Representative Mike Doogan
Representative Les Gara
Representative David Guttenberg
Representative Reggie Joule
Representative Mark Neuman
Representative Tammie Wilson
MEMBERS ABSENT
Representative Bryce Edgmon
ALSO PRESENT
James Armstrong, Staff, Co-Chair Bill Stoltze; Leslie
Houston, Director, Division of Administrative Services,
Department of Corrections; Sue Stancliff, Legislative
Liaison, Department of Public Safety; Jerry Luckhaupt,
Assistant Reviser of Statutes, Legislative Legal Services;
Anne Carpeneti, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law; Kendra
Kloster, Staff, Representative Cathy Munoz, Sponsor;
Representative Bob Lynn, Sponsor; Thomas Reiker, Staff,
Representative Bob Lynn.
PRESENT VIA TELECONFERENCE
Orin Dym, Forensic Laboratory Manager, Alaska Crime Lab,
Department of Public Safety; Lt. Rodney Dial, Alaska State
Troopers, Department of Public Safety; Shelly Mellot,
Manager, Anchorage Division of Motor Vehicles, Department
of Administration.
SUMMARY
HB 7 SYNTHETIC CANNABINOIDS AS SCHEDULE IIA
CS HB 7(JUD) was REPORTED out of committee with a
"do pass" recommendation and with attached new
indeterminate fiscal note by the Department of
Corrections, new zero impact note by the
Department of Law, and new zero impact note by
the House Finance Committee for the Department of
Public Safety.
HB 19 SPECIAL REQUEST LICENSE PLATES
HB 19 was REPORTED out of committee with a "do
pass" recommendation and with attached previously
published zero impact fiscal note: FN1, ADM.
HOUSE BILL NO. 7
"An Act classifying certain synthetic cannabinoids as
schedule IIA controlled substances; and providing for
an effective date."
1:41:11 PM
JAMES ARMSTRONG, STAFF, CO-CHAIR BILL STOLTZE, explained
that the fiscal notes adopted out of the House Judiciary
Committee had not been updated. He stated that the three
fiscal notes from the Departments of Corrections, Public
Safety, and Law were in order. He noted that there could be
future supplemental or incremental requests for some that
were indeterminate.
Co-Chair Stoltze believed there could be consequences and
costs when something was made illegal. He noted there were
still questions about the accuracy of the fiscal notes.
Vice-chair Fairclough requested more information about the
Department of Corrections (DOC) fiscal note. She wanted a
quantifiable range of potential costs, and wondered whether
other fiscal notes coming from the department would be
indeterminates.
LESLIE HOUSTON, DIRECTOR, DIVISION OF ADMINISTRATIVE
SERVICES, DEPARTMENT OF CORRECTIONS, responded that there
would not be across-the-board indeterminate fiscal notes
from DOC. She detailed that there had to be a certain type
of data based on past convictions in order to quantify
incarceration costs. There was no data available; DOC
usually looked to the Department of Law (DOL) for a base to
draw from. Since there were no numbers, DOC made the fiscal
note indeterminate, knowing that one conviction would
indicate an impact.
1:44:55 PM
Vice-chair Fairclough asked whether DOC could provide
numbers based on the current population in jail because of
drug convictions. Ms. Houston replied that DOC did not look
at all the drug convictions, but were trying to consider
drug convictions in the same class as the schedule on the
legislation and anything that could be considered a
parallel. There was no correlation for the particular
schedule III cannabinoid.
Co-Chair Stoltze queried the population incarcerated solely
for drug convictions, not convictions connected with other
charges such as armed robbery. He did not think there were
many people incarcerated for drug possession alone. Ms.
Houston responded that someone could be arrested for felony
drunk driving with possession.
Co-Chair Stoltze wanted the numbers for drug possession
alone. Ms. Houston replied that the data could be obtained.
She noted that there was had been a delay in releasing the
2010 offender profile, which would break the numbers down;
she told the committee the profile would be released within
in the next month.
Vice-chair Fairclough wanted the department's best guess at
the cost or possible range of costs for the legislation.
Once it was known how many drug offenders the state had
incarcerated, she thought the next question would relate to
the average length of incarceration for the drug offenders,
which could provide some numbers. She queried the average
length of incarceration. Ms. Houston offered to look at the
data more broadly; the department had considered the
information more specifically.
Representative Joule wondered whether there was a mechanism
to reference a particular offense back to a particular
piece of legislation so that specific costs of the
legislation could be determined. He pointed out that an
indeterminate note put the detail of the costs off for
awhile, but he noted that he often did not see the
reference back to the original fiscal note.
1:48:32 PM
Ms. Houston responded that once there was a conviction and
someone was sentenced, the department did have a way to
measure the costs. The data would be put into a fiscal note
at that time. She provided the example of SB 222 (the
sexual assault and domestic violence initiative that
addressed unregistered sex offenders); DOC had come back in
the current year with the specific data resulting from
convictions since July because of the legislation.
Representative Guttenberg referred to a discussion with the
commissioner of DOC, whom he had asked for the number of
people in corrections institutions who were there solely
because of marijuana possession or trafficking. He pointed
out that he had not gotten the numbers.
Co-Chair Stoltze added that he had asked for the
information repeatedly and had not received it either. Ms.
Houston agreed that the question had been asked.
Co-Chair Stoltze strongly stated concerns about questions
that had not been answered by the department. He had
concerns about what was not being said. He stated that he
would ask repeatedly. Ms. Houston answered that she
understood.
Representative Wilson asked how the cities of Fairbanks and
Anchorage would handle the costs of testing.
SUE STANCLIFF, LEGISLATIVE LIAISON, DEPARTMENT OF PUBLIC
SAFETY, replied that the state crime lab did the testing
for all the cities. The crime lab's responsibility was
state-wide; the cost was not charged back to the cities.
Co-Chair Stoltze surmised that the fiscal impact of the
local ordinance was not brought before the committee in the
legislature.
1:51:46 PM
Representative Doogan thought only one case related to the
legislation had gone through the crime lab to date, and
that there was no prediction about how many cases there
would be once the substance was made illegal. He thought it
was fair to guess that there would be fewer people using
the substance rather than more once it was illegal. He
wanted to know why the department thought there should be a
new and separate employee position created to enforce the
specific law. Ms. Stancliff responded that the crime lab
would receive the substance to be analyzed before the issue
went to DOC or DOL. She stressed that the key to synthetic
drugs was analysis to determine what they were and what
they were not. The commissioner had told her that it was
important to have adequate staffing at the lab. Currently
there was only enough resource to adequately maintain
current levels of response. She noted that additional
positions were included in the 10-year plan for the new
crime lab, but the new lab would not open for another year
and a half. House Bill 7 would take effect immediately,
which the department anticipated would impact the crime lab
while the substance was still on the street.
ORIN DYM, FORENSIC LABORATORY MANAGER, ALASKA CRIME LAB,
DEPARTMENT OF PUBLIC SAFETY (via teleconference), added
that the crime lab had not seen any of the material, since
it was currently but not illegal. Once the substance became
controlled, scientific analysis was the only way to
determine if any suspect plant material had the drug
present. He stated that there were no field tests for the
substance and no officer recognition protocol, which there
was with marijuana. He expected that any suspect plant
material would come to the crime lab first to determine the
presence of the drug.
Representative Doogan wanted to make sure that DOC was able
to produce evidence in future years that the request for
the position was necessary. He stated that he would deny
the increment as there was no evidence to support the idea
that it would be necessary. He was willing to make a "leap
of faith" if necessary, but he wanted evidence in the
future.
Vice-chair Fairclough stated that she was contemplating
asking for a zero fiscal note. She asked whether there
would be training for law enforcement officers to
prioritizing testing. Ms. Stancliff replied that there
would be training for the Alaska State Troopers; she
believed the training would also be shared with municipal
officers.
Vice-chair Fairclough queried the criteria established so
that officers would know when to request testing.
LT. RODNEY DIAL, ALASKA STATE TROOPERS, DEPARTMENT OF
PUBLIC SAFETY (via teleconference), responded that any new
regulation or law was immediately followed by a training
bulletin and then in-service training. Officers were
trained at the academy to forward any substance that they
suspected was illegal to the crime lab for actual analysis;
the practice would be continued for the new substance.
1:59:48 PM
Vice-chair Fairclough explained that she was familiar with
the processing and costs of the rape kit, but not with the
process of drug analysis. She asked whether everything
brought forward was tested or whether the officers set
priorities concerning what should be analyzed. Lt. Dial
responded that the issue would be decided on a case-by-case
basis. He opined that procedures would be developed in
consultation with DOL if there were ways to recognize the
substance without analyzing it and the offense was low-
level. However, for something more serious, such as injury
resulting in death because an individual was under the
influence, the substance would be sent to the crime lab.
The substance would be sent outside the state if the state
crime lab did not have the ability to analyze it.
Vice-chair Fairclough queried the physical attributes of
the substance and how it might be identified. Lt. Dial
responded that the substance could be sprayed onto anything
that could be smoked and onto some things that were not
smoked, such as potpourri. He said there was no way for
officers in the field to make a visual determination or to
identify the substance through smell.
Co-Chair Stoltze referred to television shows in which
people readily admitted what substance they were using and
wondered whether the troopers had similar experience. Lt.
Dial replied that the statement could be true for a
substance like marijuana. He did not have experience with
the particular substance in the bill. He noted that there
were field-test kits for most substances that could be used
to confirm the identity of a suspected substance. However,
the substance being discussed came in many varieties and
there were no known test kits. The issue would be
developing the best evidence possible in the field to try
and support what an officer thought the substance was; if
that could not be done, the substance would have to be sent
to the crime lab.
Representative Costello stated concerns about spending
money to test victims affected by the substance instead of
spending money to educate possible users. She believed
young people were being exposed to the new drug and needed
information about the risks. She suggested talking to the
Department of Health and Social Services about including
questions on the Youth Behavior Risk Survey to find out
more about how widespread the use was. She asked whether
the volume of work at the lab correlated to the crime rate.
Mr. Dym thought the connection between the two was
difficult to make; there had been a 15 percent increase in
business the prior fiscal year over the previous fiscal
year, which was greater than the increase in the crime
rate. He believed that the crime laboratory had become more
efficient as backlogs had decreased, but there were then
more submissions.
2:05:39 PM
Representative Costello did not understand the logic behind
the fiscal note. Mr. Dym replied that the crime lab had had
1,250 cases of potential controlled substances submitted in
the last calendar year. The 1,250 cases comprised 2,700
items; 2,400 of the items were substances that were illegal
(such as 375 items of cocaine, 325 items of
methamphetamine, and so on).
Mr. Dym continued that the department had heard testimony
that the substance being discussed was popular with people
who wanted to circumvent employment drug-testing. There was
currently no mechanism for employment screening detection
of the drug and it had become popular with people who
wanted to alter their sense of reality without losing their
jobs. The role of the crime lab connected to suspect plant
material was to determine whether or not the drug was
present so that a decision could be made about how the case
moved forward in the justice system.
Representative Costello believed that the drug could have
unanticipated effects that were very severe. She wondered
whether people would use it instead of marijuana. She
questioned whether marijuana was a gateway drug to the drug
being discussed. She thought more information about the use
and effects of the drug was needed before attaching a
fiscal note.
Co-Chair Stoltze noted the presence of Jim Duncan in the
committee room.
Representative Guttenberg admitted that he had originally
been cynical about the legislation, and that his feelings
about it had gone back and forth. He wanted to know whether
an officer sent marijuana to the crime lab to be tested
each time it was found. He thought the employment testing
aspect was problematic. Lt. Dial responded that most pot
encountered in the field was not sent to the crime lab, as
law enforcement was able to conduct a field test and
forward charges. He noted that there was the ability to
send the substance off to get a higher-level verification
of the substance if the district attorney's office felt
that was important.
Lt. Dial opined that the department would start an
education program with officers if the legislation passed.
He anticipated that the substance would most likely be
encountered in the motoring public; people would be driving
with obvious signs of impairment and officers would try to
find out the cause. He stated that the substance concerned
him because it was far more potent than average marijuana,
currently easy to access, legal, and would make it possible
for a person to pass a drug test.
2:12:27 PM
Lt. Dial continued that it would be imperative for officers
in the field to have the ability to confirm what the
substances were in cases where they might not be able to
detect them otherwise. In addition, they would need to be
able to build a case in order to make prosecutions,
hopefully without sending the substance to the lab. He
thought the most important cases would be potential
felonies.
Representative Gara asked whether the first possession of
marijuana was a crime or a violation. Lt. Dial responded
that the first incident of possession was generally a
crime.
Representative Gara saw no proof that a full-time person
would be needed to analyze the substance. He wondered
whether overtime could be used during the first year, or if
there were other ways to get the work done. Mr. Dym
responded that currently, 68 percent of the crime lab's
cases were turned around in a reasonable amount of time; he
noted that there was always a lot of drug work to be done.
He acknowledged that there was a question as to how much
additional work would come in with the passage of the
legislation. He assured the committee that the additional
position would not result in "idle hands" at the lab, but a
faster turn-around time in drug cases in general. In
addition, with the particular substance, he anticipated
increased court time; 20 percent of cases that the crime
lab worked resulted in subpoenas. Court time tended to run
anywhere from one to three days depending on where the
analysis was sent. He pointed out that in addition to
analysis time, there could be a lot of additional court
time spent explaining the drug to a jury, such as what
positional isomers were and why the substance was actually
controlled. The other function that would be needed was
law-enforcement training to provide screening tools for
officers in the field. He opined that it would be possible
to keep an additional position very busy.
2:16:19 PM
Representative Gara voiced concerns that HB 7 would be
charged for the cost of doing other work in the lab. He
thought the budget request should come in separately.
Representative Joule asked whether the substance levels of
THC were traceable in the way they were traceable in
marijuana use, in terms of employment testing. Lt. Dial
replied in the affirmative. He explained that since there
was no current urinalysis test for the substance, the drug
had become a problem for the military and for other states
in the year since it had been introduced. He did not know
whether a test had been developed or whether there was a
special place to send a sample to; the usual places did not
have the ability to detect the substance.
Representative Joule asked whether the substance would
conceal the effects of the marijuana when it was applied to
a joint. Lt. Dial did not believe it would, and that the
THC from the marijuana would show up on the urinalysis.
Representative Joule thought the things tested would not be
other controlled substances as much as everyday substances
like cigarettes or candy. Lt. Dial responded that their
experience had been that the synthetic drug was being
applied to legal substances, such as potpourri; he expected
that practice to continue.
Representative Joule wondered how to measure the kinds of
things the labs would be testing for in a fiscal note.
2:20:02 PM
Vice-chair Fairclough asked whether the product had to be
smoked to create the chemical reaction, or whether it could
go on something like a candy bar. Lt. Dial did not know,
since he did not have a lot of experience with the
substance.
Vice-chair Fairclough asked for more information about the
field test used to check for marijuana. Lt. Dial answered
that an officer might identify impairment in the field and
then attempt to determine whether the impairment was caused
by something that could be a violation of law, such as
driving a motor vehicle with possession of a firearm. An
officer would attempt to determine whether the impairment
was caused by introduction of an illegal substance, or
whether the issue was medical, or something else. He stated
that there were field tests for most illegal substances;
for substances that have been consumed but not found in the
vehicle, the officer could do a standard field sobriety
test. There were tests for alcohol. There were drug-
recognition experts in the department who did a series of
tests to determine drug impairment, such as dilated pupils.
Ultimately, if enough probable cause can be developed, an
officer can seek a search warrant for blood or urine and
send that off for analysis.
Vice-chair Fairclough thought there were at least two
different types of tools to test for the substance either
in the bloodstream or the urine. She still had concerns
about the fiscal note. She wondered whether there could be
a scenario in which a motor vehicle would have to be stored
through the length of a trial because it possibly contained
evidence.
2:23:59 PM
Representative Wilson questioned whether different items
would be looked for in a car, or whether there would be a
blood or urine test. Lt. Dial responded that if impairment
were detected, the investigation would be worked from that
point. He thought investigations could be lengthy if the
substance could be sprayed on an item and the result was as
serious as a death from a motor vehicle accident. Based on
prior investigative practices, in a serious crime, the time
would be taken to determine what the person was impaired
by. Evidence would be taken, and if the evidence did not
provide the information, a search warrant would be sought
to obtain blood and urine samples.
Representative Wilson asked whether the substance stayed on
a product for a long time. She was more comfortable with
testing the impaired person rather than all the items in
their car. Lt. Dial agreed. He noted that there were times
when a drug dog was used to speed the process of
identifying possible substances, because physically testing
all the surfaces of a car for residue from other substances
was not practical. He thought there would be a learning
curve for the department; training would be needed as well
as policy to develop the best way to test for the
substance.
Co-Chair Stoltze recalled testimony that the crime lab
tested all the work the municipalities sent. He speculated
about the amount of sworn officers and thought 40 or 50
percent of the work would be done in the municipality of
Anchorage in an urban environment. He wondered whether the
testing would be needed whether or not the bill passed. Lt.
Dial responded that if the substance was not made illegal
and an officer had reason to believe someone was impaired,
they would still work the case in the same way.
Co-Chair Stoltze clarified that he was talking about the
department accepting work from the municipality of
Anchorage, which had passed an ordinance about the
substance. He asked whether the department would get the
work whether or not the bill passed. Lt. Dial believed that
the substance would be referred to the crime lab since the
municipality had made the substance illegal.
2:28:28 PM
Representative Gara asked whether there was any way a
fiscal note could be used that was not the cost of a full-
time employee. He also wanted to know whether the Anchorage
ordinance had been around long enough to get a sense of the
work load. Mr. Dym replied that staff at the crime lab was
not eligible for overtime, so using overtime would not be
an option. He stated that there was a real lack of
experienced drug chemists in Alaska, let alone any who were
interested in part-time work, so a part-time position would
not be an option.
Mr. Dym clarified that the crime lab viewed their mission
as conducting analysis related to state statute, not to
municipal ordinance; the lab was not currently analyzing
substances controlled by municipal statute. The lab would
perform the analysis for the municipality if the substance
were to be controlled at the state level under a state
statute.
Representative Gara had been under the assumption that the
crime lab processed municipal crime. He asked whether the
state crime lab would analyze the substance that was
illegal because of municipal law. Mr. Dym replied that the
crime lab did analysis for all state law enforcement,
including all municipal law enforcement for those materials
that were controlled or illegal per state law. In the
instance where a municipality passed an ordinance that was
not covered by state statute, the crime lab would not do
the work.
Representative Gara pointed out that the municipality must
have some experience. He queried the work load done by the
crime lab for the municipality to get a sense of the work
load for the fiscal note. Mr. Dym replied that discussion
with the municipal prosecutor's office had revealed that
the municipality was not currently pursuing possession
charges under the municipality, so there was no data.
However, the municipality was pursuing DUI-related charges,
which were not sent to the crime laboratory.
2:32:36 PM
Representative Gara MOVED Amendment 1 (27-LS0044\T.1,
Luckhaupt, 2/23/11):
Page 1, line 1, following "substances":
Insert "and relating to penalties for possession
of those substances"
Page 1, following line 3:
Insert new bill sections to read:
"* Section 1. AS 11.71.040(a) is amended to read:
(a) Except as authorized in AS 17.30, a
person commits the crime of misconduct involving
a controlled substance in the fourth degree if
the person
(1) manufactures or delivers any
amount of a schedule IVA or VA controlled
substance or possesses any amount of a schedule
IVA or VA controlled substance with intent to
manufacture or deliver;
(2) manufactures or delivers, or
possesses with the intent to manufacture or
deliver, one or more preparations, compounds,
mixtures, or substances of an aggregate weight of
one ounce or more containing a schedule VIA
controlled substance;
(3) possesses
(A) any amount of a schedule IA
or IIA controlled substance;
(B) 25 or more tablets, ampules,
or syrettes containing a schedule IIIA or
IVA controlled substance;
(C) one or more preparations,
compounds, mixtures, or substances of an
aggregate weight of
(i) three grams or more
containing a schedule IIIA or IVA
controlled substance except a
controlled substance in a form listed
in (ii) of this subparagraph;
(ii) six grams or more
containing a schedule IIIA controlled
substance listed in AS 11.71.160(f)(7)
- (16) that has been sprayed on or
otherwise applied to tobacco, an herb,
or another organic material;
(D) 50 or more tablets, ampules,
or syrettes containing a schedule VA
controlled substance;
(E) one or more preparations,
compounds, mixtures, or substances of an
aggregate weight of six grams or more
containing a schedule VA controlled
substance;
(F) one or more preparations,
compounds, mixtures, or substances of an
aggregate weight of four ounces or more
containing a schedule VIA controlled
substance; or
(G) 25 or more plants of the
genus cannabis;
(4) possesses a schedule IIIA, IVA,
VA, or VIA controlled substance
(A) with reckless disregard that
the possession occurs
(i) on or within 500 feet of
school grounds; or
(ii) at or within 500 feet
of a recreation or youth center; or
(B) on a school bus;
(5) knowingly keeps or maintains any
store, shop, warehouse, dwelling, building,
vehicle, boat, aircraft, or other structure or
place that is used for keeping or distributing
controlled substances in violation of a felony
offense under this chapter or AS 17.30;
(6) makes, delivers, or possesses a
punch, die, plate, stone, or other thing that
prints, imprints, or reproduces a trademark,
trade name, or other identifying mark, imprint,
or device of another or any likeness of any of
these upon a drug, drug container, or labeling so
as to render the drug a counterfeit substance;
(7) knowingly uses in the course of
the manufacture or distribution of a controlled
substance a registration number that is
fictitious, revoked, suspended, or issued to
another person;
(8) knowingly furnishes false or
fraudulent information in or omits material
information from any application, report, record,
or other document required to be kept or filed
under AS 17.30;
(9) obtains possession of a controlled
substance by misrepresentation, fraud, forgery,
deception, or subterfuge; or
(10) affixes a false or forged label
to a package or other container containing any
controlled substance.
* Sec. 2. AS 11.71.050(a) is amended to read:
(a) Except as authorized in AS 17.30, a
person commits the crime of misconduct involving
a controlled substance in the fifth degree if the
person
(1) manufactures or delivers, or
possesses with the intent to manufacture or
deliver, one or more preparations, compounds,
mixtures, or substances of an aggregate weight of
less than one ounce containing a schedule VIA
controlled substance;
(2) possesses
(A) less than 25 tablets,
ampules, or syrettes containing a schedule
IIIA or IVA controlled substance;
(B) one or more preparations,
compounds, mixtures, or substances of an
aggregate weight of less than
(i) three grams containing a
schedule IIIA or IVA controlled
substance except a controlled substance
in a form listed in (ii) of this
subparagraph;
(ii) six grams or more
containing a schedule IIIA controlled
substance listed in AS 11.71.160(f)(7)
- (16) that has been sprayed on or
otherwise applied to tobacco, an herb,
or another organic material;
(C) less than 50 tablets,
ampules, or syrettes containing a schedule
VA controlled substance;
(D) one or more preparations,
compounds, mixtures, or substances of an
aggregate weight of less than six grams
containing a schedule VA controlled
substance; or
(E) one or more preparations,
compounds, mixtures, or substances of an
aggregate weight of one ounce or more
containing a schedule VIA controlled
substance; or
(3) fails to make, keep, or furnish
any record, notification, order form, statement,
invoice, or information required under AS 17.30."
Page 1, line 4:
Delete "Section 1"
Insert "Sec. 3"
Renumber the following bill section accordingly.
Co-Chair Stoltze OBJECTED.
Representative Gara explained Amendment 1. He thought the
drug was serious enough that dealers should be treated as
felons; he stressed that that part of the bill would be
unchanged by the amendment. People who used the drug were
sometimes doing so unwittingly and sometimes simply trying
to mimic the use of pot. He wanted to find a way to allow
people who used the drug for the first time in a relatively
small amount for personal use to be treated as a
misdemeanor and not a felon. The original bill would
stipulate that possession of three grams of the substance
was a felony. Amendment 1 would change the amount to six
grams. He recalled that three grams was something like nine
cigarettes worth of the substance; the amendment would
double the amount for a felony charge.
Representative Gara believed that felony charges should be
reserved for the worst crimes. He thought dealing was a bad
crime and that possession of a lesser amount should not fit
into the category of worst crimes. He noted there was a
question left open by the way the amendment was drafted as
to whether the substance was covered in pill form. He had
thought the substance had to be smoked, which was reflected
in the amendment.
JERRY LUCKHAUPT, ASSISTANT REVISER OF STATUTES, LEGISLATIVE
LEGAL SERVICES, reported that in most cases the ultimate
user would use the substance by smoking it. The products
identified as "K2" or "Spice" that could be bought in many
communities in the state were made by taking synthetic THC
(probably in a solid form from overseas) and making a
solution which was then sprayed onto an organic material,
either tobacco, herbs, or potpourri. The individual packet
of the organic material that had been laced with the
synthetic THC could then be made into a cigarette or smoked
in a pipe to get the euphoric effect. The substance could
also be bought in a purer form in a solution or solid
directly from manufacturers, such as Cayman Chemical. He
said the pure form would have more effect than spraying the
substance on other material. However, three grams in the
pure form would have a greater effect than three grams of
organic material with the substance laced into it. He had
been charged by Representative Gara to not make the later a
felony.
Mr. Luckhaupt continued that he had come up with a method
to distinguish between possession in a pure form and
possession of the substance on other material. Possession
of the substance in a pure form would remain a felony with
the amendment; in most cases the possessor would not be
using the substance in the pure form as it could kill them.
End users would be using the laced organic material. There
was no way of removing the controlled substance from the
organic material to weigh it separately, so the law
considered the total weight of the material. The organic
material was weighed and the amount doubled. A person could
theoretically possess up to six grams of a material that
had been laced with the substance and be charged with a
misdemeanor.
2:39:26 PM
Mr. Luckhaupt emphasized that he wanted to distinguish
using the substance in a pure form, which was much more
dangerous than when it was added to other material.
Representative Costello queried the sentencing options for
Class B and Class C felonies and how the amendment would
affect the sentencing options for a judge in a case
involving the substance.
ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES
SECTION, CRIMINAL DIVISION, DEPARTMENT OF LAW, believed
that the amendment would mean that a person could possess
six grams of the material and still be prosecuted for a
Class A misdemeanor. It would take more than six grams of
the substance on vegetable material or possession of three
grams and above in the pure form for possession to be a
Class C felony. The maximum term for a Class C felony was
five years imprisonment; for a Class A misdemeanor the
maximum term was one year imprisonment.
Representative Costello queried the minimum sentence for
Class B and Class C felonies. Ms. Carpeneti responded that
for the first conviction of a Class C felony, the
sentencing range was from zero to two years; for the first
conviction of a Class B felony, the range was one to three
years.
Mr. Luckhaupt added that basically zero to two years meant
there was no presumptive term for a first Class C felony
conviction; a person would get a term less than what a
second felony conviction would be or than the person
convicted of a Class B felony. The range for a Class B
felony was one to three years, so the person convicted of a
Class C felony should usually get something less than one
year. For a Class A misdemeanor, a person could get up to
one year; there was no minimum term.
2:43:49 PM
Vice-chair Fairclough asked whether district attorneys had
the opportunity to negotiate charges down. For example, she
wondered whether a district attorney could take a Class B
felony and negotiate it to a Class A misdemeanor or
something lower than the Class B felony under a possession
charge. Ms. Carpeneti responded that Alaskan district
attorneys had the authority to negotiate plea agreements.
Generally, that was done through charges, and would have to
be a reasonable interpretation of the facts. The charges
could be reduced if the facts and circumstances justified
that. A district attorney could not get a conviction for a
Class B felony and call it a Class C felony; they would
have to look at other charges and determine what was
reasonable under the circumstances.
Vice-chair Fairclough surmised that a district attorney had
the discretion to charge a person with terms that were like
a Class A misdemeanor if they believed that the case was
not severe enough or the evidence presented was not severe
enough to warrant a Class B felony,. Ms. Carpeneti
responded that they had the authority to do that.
Vice-chair Fairclough asked whether district attorneys had
the authority to charge at a higher level. Ms. Carpeneti
responded that district attorneys brought charges that they
believed they could prove beyond a reasonable doubt to a
jury of peers of the individual being charged. She called
that an ethical obligation; a district attorney could not
charge a higher offense than the facts justified, or than
the person felt he or she could prove beyond a reasonable
doubt.
Vice-chair Fairclough believed that the law left public
safety officers and the court system with the ability and
flexibility to appropriately charge and punish each
individual. She opined that lowering the threshold for the
punishment would affect that flexibility.
Vice-chair Fairclough spoke in opposition to the amendment.
She argued that a product that was not distilled but of the
same weight could be very harmful to a person. She was not
familiar with packages of cigarettes being passed by youth;
she thought nine joints or cigarettes were a lot and to
double the amount to 18 seemed unreasonable. She did not
want youth or workers to think they could have six grams of
the substance and think that was okay. She emphasized that
the issue was a safety issue for people on the roads. She
pointed out that the bill matched federal law and the way
that they were proposing to hold users as well as dealers
accountable. She stated that she supported the original
bill and opposed the amendment.
2:48:10 PM
Representative Guttenberg spoke in support of the
amendment. He stated that the amendment addressed concerns
he had about the bill. He pointed to the words "any
quantity" in the original bill (page 1, line 7). He
reminded the committee that Alaskan citizens had the right
to possess minimal amounts of marijuana, although they
could not grow it or buy it. He was concerned that someone
could go down the street to acquire a substance and then
find out inadvertently that "any quality" was a felony. He
believed the amendment addressed the difference between
someone possessing in order to sell and someone
inadvertently possessing something that would make them a
felon. He emphasized that he did not support the ability of
any person to drive inebriated, drunk, stoned, or high;
there would still be reckless endangerment charges. He
thought it was appropriate to make the charge a felony for
someone who had enough to know they were selling it.
Representative Wilson spoke against the amendment. She
stated that she was not a chemist and would not be able to
distinguish between the different amounts outlined in the
amendment. She did not want to make the same decision for
citizens. She respected what the amendment was trying to
do, but believed a strong stand should be taken against the
substance, as it was dangerous no matter how much a person
possessed.
Co-Chair Thomas spoke in opposition to the amendment. He
wanted the drug to be cut off completely in the state. He
did not want to show leniency related to possession of the
drug in any amount.
Representative Gara acknowledged the difficulty of figuring
out what the exact crime level should be. He noted that
felonies cost the state more, because the jail term was
longer. He believed the state needed to rank what sort of
punishment it wanted to impose on people based on the crime
that was committed.
Representative Gara pointed out that the amendment left two
things the same in the bill. First, the pill form was the
same. Second, possession of the non-smokable substance was
still a felony for three grams. In the amendment, a person
could have six grams of smokable material with the sprayed-
on substance before the charge was a felony.
Representative Gara argued that people were not educated by
the state making a crime s Class A or Class B felony or
misdemeanor; people were educated differently. For example,
people could be educated through the Department of Health
of Human Services, through public service announcements, or
having a public official like the governor draw attention
to the issue. He stressed that people in the middle of
committing a crime did not take the time consider whether
the action would be a Class A or a Class B felony. He had a
hard time thinking of people who would be low-level users
of a substance they think is like pot as felons. He noted
that the sentence would continually go up for repeat
offenders.
Representative Gara argued that any level of engagement
with the substance would still be a crime. People would not
research the law books to determine what their sentence
would be. He believed the substance would be cleared from
the street because it would be a felony to sell it. He
believed the dealers would go back to selling other
substances.
2:54:11 PM
Vice-chair Fairclough stressed that workers were using the
drug because they could not be screened for it at work. She
was especially concerned about commercial drivers using the
substance. She thought sometimes a "good swift kick" was
more appropriate than a lighter punishment. She believed
the issue was a safety one.
Representative Gara pointed out that a person who killed
another while driving under the influence of the substance
would be charged with negligent homicide, manslaughter, or
murder. He thought the distinction proposed in the
amendment would not apply in those circumstances.
Co-Chair Stoltze queried the position of the sponsor and
the administration on the amendment.
KENDRA KLOSTER, STAFF, REPRESENTATIVE CATHY MUNOZ, SPONSOR,
stated that the sponsor liked the original bill. She
understood Representative Gara's concerns, which had been
discussed at length in the House Judiciary Committee; that
was why the charge had been dropped to a Schedule III. She
noted that the substance was sold in three-gram packets, so
it would be a misdemeanor to possess one.
Ms. Carpeneti stated that the department was neutral on the
legislation.
Representative Joule clarified that the unamended bill
allowed three grams and the amendment would make the amount
six grams.
2:59:02 PM
Co-Chair Stoltze MAINTAINED his OBJECTION.
A roll call vote was taken on the motion.
IN FAVOR: Gara, Guttenberg
OPPOSED: Wilson, Costello, Doogan, Fairclough, Joule,
Thomas, Stoltze
Representatives Neuman and Edgmon were absent from the
vote.
The MOTION FAILED (2/7).
Co-Chair Stoltze questioned the need to change the fiscal
notes.
Vice-chair Fairclough MOVED to zero out the fiscal note for
FY 12 through 17.
Co-Chair Stoltze OBJECTED to comment. He stated that there
would be other discussions.
Co-Chair Stoltze WITHDREW his OBJECTION.
Representative Gara pointed out that regarding the fiscal
note, the department could have a supplemental request the
following year if actual experience caused a substantial
amount of extra work. However, based on evidence currently
available, he agreed with zeroing out the fiscal note.
Vice-chair Fairclough MOVED to report CSHB 7(JUD) out of
committee with individual recommendations and the
accompanying fiscal notes. There being NO OBJECTION, it was
so ordered.
CS HB 7(JUD) was REPORTED out of committee with a "do pass"
recommendation and with attached new indeterminate fiscal
note by the Department of Corrections, new zero impact note
by the Department of Law, and new zero impact note by the
House Finance Committee for the Department of Public
Safety.
3:01:37 PM
AT EASE
3:04:45 PM
RECONVENED
HOUSE BILL NO. 19
"An Act relating to special request registration
plates; and providing for an effective date."
[3:05:36]
REPRESENTATIVE BOB LYNN, SPONSOR, reported that during a
visit to Indiana he had seen "In God We Trust" license
plates and thought they would be good to have in Alaska. He
added that 250,000 of the plates had been issued in
Indiana. He detailed that the special license plate would
be available only upon request and would reflect the
patriotism and cultural heritage of other citizens around
the country. He described the procedure for issuing the
license plates. A driver would be required to request a
national motto plate and pay a $30 fee. He listed other
states that had the special license plate, including
Kentucky, Virginia, and South Carolina.
Co-Chair Stoltze asked whether there had been opposition to
the item. Representative Lynn responded that there had not
been.
Representative Costello queried the design of the license
plate.
THOMAS REIKER, STAFF, REPRESENTATIVE BOB LYNN, replied that
the issue had come up in the House State Affairs Committee.
The Division of Motor Vehicles (DMV) would work with the
sponsor regarding the design; he believed they would
generate a design based on the existing plates in other
states.
Representative Doogan did not want to have future requests
for license plates by groups with a "different central
figure in the pantheon." He asked for assurance that the
state would not be asked for another license plate saying
we trust in anybody else, such as Thor. Representative Lynn
responded that anyone in the legislature could sponsor any
bill they wanted, but he trusted the State Affairs
Committee to not allow such a proposal to get far.
Representative Doogan was not concerned about other members
of the legislature; people could file law suits on
practically anything.
3:10:32 PM
Representative Doogan queried the experience of other
states with the "In God We Trust" motto on license plates
in terms of legal problems. Representative Lynn responded
that the American Civil Liberties Union (ACLU) in Indiana
had raised questions, but the questions were not about the
motto. The questions were related to the fact that Indiana
was going to issue the plate without an additional fee. He
believed that went no place; Indiana did not charge an
additional fee for the license plate. However, HB 19
required a fee of $30 like other specialty license plates
and was revenue neutral.
Mr. Reiker added that the controlling case from the U.S.
Supreme Court was Lynch v. Donnelly; the ruling listed
several different practices that the federal government
undertook that could be construed as religious. One of the
practices was printing "In God We Trust" on coins. He
quoted the majority opinion: "Those practices, including
printing 'In God We Trust' on coins, are not understood as
conveying government approval of particular religious
beliefs." He summed that "In God We Trust" had always been
interpreted by the court to be more an expression of the
national motto than an expression of religious belief. He
did not think the measure would open the state up to other
religions claiming equal protection.
Representative Gara stated that he did not oppose the bill,
and that he was a "big fan of God." However, he was
concerned that there would be more license-plate bills. He
pointed to another that had already been filed. He thought
a person who wanted to convey something political or
religious on their car could get a bumper sticker. He
believed people should be able to say whatever they wanted
on their car, house, or T-shirt. He did not see a
compelling need for the legislation, although he was not
opposed to it.
Representative Wilson pointed out that one benefit to the
state would be the revenue generated for the general fund.
Co-Chair Stoltze noted that the revenue generated would not
go to a charity or specific program. He asked whether the
revenue would cover the costs of producing the plates.
Representative Lynn responded in the affirmative and
reiterated that specialty license plates were designed to
be revenue neutral.
SHELLY MELLOT, MANAGER, ANCHORAGE DIVISION OF MOTOR
VEHICLES, DEPARTMENT OF ADMINISTRATION (via teleconference)
testified that the bill would authorize the creation of a
new plate for anyone wanting to purchase an "In God We
Trust" license plate. She stressed that the plate was not
for raising funds and would not require the creation of a
special fund for appropriation by the legislature. The cost
for establishing the plate would be minimal; therefore, the
DMV had attached a zero fiscal note. The cost of the plate
to the applicant would be $30 under the bill, in addition
to the registration fee and any tax established by local
governments. The cost of each plate to the state would be
about $10; the remaining fees collected would go into the
general fund.
3:15:49 PM
Ms. Mellot continued that typically the DMV worked with the
impacted entities on the design of the plate; in this case
the DMV would work with the sponsors of the legislation on
the initial design. The DMV would then work with law
enforcement personnel to ensure that officers could easily
identify the plate numbers for their purposes. Finally, she
reported that the design would go before the commissioner
of the Department of Administration for final approval
before moving into production.
Co-Chair Stoltze queried the position of the
administration. Ms. Mellot responded that the division was
neutral.
Co-Chair Stoltze requested details about the possible
revenue that could result to the state from the measure.
Ms. Mellot offered to get the information.
Representative Doogan stated that he supported the bill.
However, he pointed out that it was easy to support a bill
that says "In God We Trust," since the phrase was the
national motto. He stated for the record that it would be
much more difficult for him to support other bills that had
more "political baggage" than HB 19. He emphasized that he
did not want to take committee time to debate about the
issue.
Co-Chair Stoltze stated that HB 19 was before the committee
because it was ecumenical and fairly uncontroversial.
Vice-chair Fairclough MOVED to report HB 19 out of
committee with individual recommendations and the
accompanying fiscal note. There being NO OBJECTION, it was
so ordered.
HB 19 was REPORTED out of committee with a "do pass"
recommendation and with attached previously published zero
impact fiscal note: FN1, ADM.
3:20:05 PM
Co-Chair Thomas reviewed the schedule for the following
week.
ADJOURNMENT
The meeting was adjourned at 3:22 PM.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB7NEWFN(JUD)-DPS-02-22-11.pdf |
HFIN 2/24/2011 1:30:00 PM |
HB 7 |
| HB7(JUD)NEWFN-DOC02-23-11.pdf |
HFIN 2/24/2011 1:30:00 PM |
HB 7 |
| HB7 DPS HFIN NEW ZERO FN.pdf |
HFIN 2/24/2011 1:30:00 PM |
HB 7 |
| HB7 Gara Amendment Failed.pdf |
HFIN 2/24/2011 1:30:00 PM |
HB 7 |