02/09/2005 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB81 | |
| HB99 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 81 | TELECONFERENCED | |
| *+ | HB 99 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 9, 2005
1:31 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative John Coghill
Representative Nancy Dahlstrom
Representative Pete Kott
Representative Max Gruenberg
MEMBERS ABSENT
Representative Les Gara
COMMITTEE CALENDAR
HOUSE BILL NO. 81
"An Act establishing an administrative fine and procedure for
construction contractors in certain circumstances; increasing
the amount of a civil penalty for persons acting in the capacity
of contractors or home inspectors; modifying the elements of a
crime involving contractor registration and residential
contractors; and exempting the administrative hearings for
imposing an administrative fine on construction contractors from
the hearings conducted by the office of administrative hearings
in the Department of Administration."
- MOVED CSHB 81(L&C) OUT OF COMMITTEE
HOUSE BILL NO. 99
"An Act relating to controlled substances regarding the crimes
of manslaughter, endangering the welfare of a child, and
misconduct involving a controlled substance; and providing for
an effective date."
- MOVED CSHB 99(JUD) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 81
SHORT TITLE: CONTRACTOR LICENSE ENFORCEMENT
SPONSOR(S): REPRESENTATIVE(S) ANDERSON
01/19/05 (H) READ THE FIRST TIME - REFERRALS
01/19/05 (H) L&C, JUD, FIN
01/21/05 (H) L&C AT 3:15 PM CAPITOL 17
01/21/05 (H) Heard & Held
01/21/05 (H) MINUTE(L&C)
01/26/05 (H) L&C AT 3:15 PM CAPITOL 17
01/26/05 (H) Moved CSHB 81(L&C) Out of Committee
01/26/05 (H) MINUTE(L&C)
02/02/05 (H) L&C RPT CS(L&C) NT 5DP 1NR
02/02/05 (H) DP: LYNN, KOTT, LEDOUX, GUTTENBERG,
ANDERSON;
02/02/05 (H) NR: ROKEBERG
02/09/05 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 99
SHORT TITLE: CRIMES INVOLVING CONTROLLED SUBSTANCES
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
01/21/05 (H) READ THE FIRST TIME - REFERRALS
01/21/05 (H) JUD, FIN
02/09/05 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
JON BITTNER, Staff
to Representative Tom Anderson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 81 on behalf of the sponsor,
Representative Anderson.
AL NAGEL, Supervisor
Mechanical Inspection
Division of Standards & Safety
Department of Labor & Workforce Development (DLWD)
Anchorage, Alaska
POSITION STATEMENT: Responded to a question during discussion
of HB 81.
JEFF DeSMET, President
Southeast Alaska Building Industry Association (SABIA)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 81.
JOHN BITNEY, Lobbyist
for Alaska State Home Builders Association (ASHBA)
Palmer, Alaska
POSITION STATEMENT: During discussion of HB 81, provided
comments on behalf of the ASHBA and responded to questions.
DAVE DILLARD, President
Alaska State Home Builders Association (ASHBA)
Fairbanks, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
81.
CATHY BALDWIN-JOHNSON, M.D.
Wasilla, Alaska
POSITION STATEMENT: During discussion of HB 99, provided
comments regarding the harm and dangers that befall children as
a result of their exposure to methamphetamine and its
manufacture, and said she is in favor of anything that will help
keep children safe.
ED BRYANT, Detective
Anchorage Police Department (APD)
Municipality of Anchorage (MOA)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 99, and provided
comments regarding the harm and dangers that befall children, as
well as adults, as a result of their exposure to methamphetamine
and its manufacture.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Presented HB 99 on behalf of the
administration and responded to questions.
AUDIE HALLOWAY, Deputy Chief
Anchorage Police Department (APD)
Municipality of Anchorage (MOA)
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
99.
JAMES STEELE, Children Services Manager
Southcentral Region
Child Protective Services
Office of Children's Services (OCS)
Department of Health and Social Services (DHSS);
Deputy Chief
Central "Mat-Su" [Matanuska-Susitna] Fire Department
Matanuska-Susitna Borough
Palmer, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
99 and relayed that he is interested in seeing the bill move
forward.
TIMOTHY D. BIRT, Sergeant
Southeast Alaska Narcotics Enforcement Team (SEANET)
Alaska State Troopers
Department of Public Safety (DPS)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 99.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:31:32 PM. Representatives
McGuire, Anderson, Coghill, and Dahlstrom were present at the
call to order. Representatives Kott and Gruenberg arrived as
the meeting was in progress.
HB 81 - CONTRACTOR LICENSE ENFORCEMENT
1:32:11 PM
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 81, "An Act establishing an administrative
fine and procedure for construction contractors in certain
circumstances; increasing the amount of a civil penalty for
persons acting in the capacity of contractors or home
inspectors; modifying the elements of a crime involving
contractor registration and residential contractors; and
exempting the administrative hearings for imposing an
administrative fine on construction contractors from the
hearings conducted by the office of administrative hearings in
the Department of Administration." [Before the committee was
CSHB 81(L&C).]
1:32:22 PM
JON BITTNER, Staff to Representative Tom Anderson, Alaska State
Legislature, sponsor, said on behalf of Representative Anderson
that HB 81 changes the way the state deals with unregistered
contractors. Currently, Alaska exempts individuals from getting
a contractor's license if they're working on a job that costs
less than $5,000 in materials and labor. This has resulted in
about 1,600 unregistered handymen operating in Alaska today,
representing about 23 percent of the "contractor market." This
exemption category is by far the largest category of any
contractor category, he noted. Under current statutes, the
Department of Labor & Workforce Development (DLWD) and the
Department of Commerce, Community, & Economic Development
(DCCED) handle violations of work performed by unlicensed
contractors by issuing citations, which are left to the
Department of Law (DOL) to prosecute; enforcement of these
citations, he remarked, is extremely difficult.
MR. BITTNER explained that HB 81 will allow the DLWD and the
DCCED to issue civil fines for violations - $1,000 for the first
violation, and $1,500 for subsequent violations - and the fines
can be appealed to an administrative officer. The benefit of
this proposed system, he posited, is that it allows the DLWD and
the DCCED to quickly and effectively prosecute violators in way
that is currently unavailable. In conclusion he mentioned that
the violations "in this section" won't be applied to communities
of less than 1,000 people not connected by road or rail to
Anchorage or Fairbanks - roughly 232 communities.
1:34:13 PM
REPRESENTATIVE DAHLSTROM, referring to those 232 communities,
asked whether the DOL has raised any concerns regarding equal
protection.
MR. BITTNER offered his understanding that the DOL has seen the
bill and has not raised any such concerns.
CHAIR McGUIRE noted that the language in question can be found
on page 2, in subsection (e) of Section 2. She asked what the
rationale was for such an exemption.
MR. BITTNER suggested that industry representatives might be
better able to address that question.
1:35:38 PM
AL NAGEL, Supervisor, Mechanical Inspection, Division of
Standards & Safety, Department of Labor & Workforce Development
(DLWD), relayed that he did not know the rationale for that
language.
1:37:41 PM
JEFF DeSMET, President, Southeast Alaska Building Industry
Association (SABIA), testified in support of HB 81. Referring
to an e-mail he sent to Chair McGuire, he paraphrased as
follows:
As a member of the construction industry in Alaska for
30 years, I urge you, Madame Chairman and your
committee, to support HB 81. As you are aware, there
are problems with unlicensed contractors building
homes in Alaska. These people continue to ignore the
current statutes and thumb their noses at licensed
professional builders and remodelers. Your support of
HB 81 would go along way to protect Alaskan consumers
from illegal contractors and help [the DLWD and the
Division of] Occupational Licensing enforcement
officers pressure these individuals into current
statute compliance. As a member of the board of
directors for the Alaska State Home Builders
[Association] as well, representing over 250 licensed
general contractors, we strongly would urge your
consideration of HB 81.
1:39:44 PM
JOHN BITNEY, Lobbyist for Alaska State Home Builders Association
(ASHBA), relayed that HB 81 is the product of an industry work
group. One of the issues raised in putting the bill together
pertained to the ability of those living in rural Alaska to
obtain a licensed contractor, and although HB 81 doesn't change
current standards for licensure, it does attempt to recognize
that it is difficult to hire licensed contractors in very small
communities due to economies of scale. For example, there might
no be enough work in a community to make it worthwhile for a
carpenter to go get registered [with the state]. He pointed
out, however, that subsection (e) of Section 2 merely provides
an exemption from the civil penalties proposed in the bill;
violations of AS 08.18 in such communities would still be
subject to citation.
REPRESENTATIVE KOTT mentioned that he'd heard the bill in the
House Labor and Commerce Standing Committee.
1:42:27 PM
DAVE DILLARD, President, Alaska State Home Builders Association
(ASHBA), relayed that the ASHBA, via HB 81, is looking for ways
to protect the consumer. He noted that [licensed] contractors
must satisfy bonding, insurance, and continuing education
requirements, and that there is a growing concern regarding
persons acting as contractors without having satisfied those
requirements. The ASHBA recognizes that there is a great need
for the handyman, but wants to make sure that the people who are
doing small jobs are staying within the handyman category;
therefore, if a job goes over $2,500, the ASHBA wants to make
sure that the person doing that job is qualified.
MR. DILLARD remarked that the other part of the equation is that
people want to build their own homes, and the ASHBA feels that
that should be possible. However, there are a lot of people who
say they are building a home for themselves but are really just
building a house for the purpose of selling it within a year.
Therefore the bill proposes a requirement that a person has to
wait two years before selling a home he/she has built. The goal
of the bill, he indicated, is to afford people protection
against unlicensed contractors.
1:45:36 PM
CHAIR McGUIRE surmised that the bill is intended to address
situations wherein people are representing themselves as
qualified to build/repair homes but are doing so without the
proper knowledge, insurance, and bonding and are thus leaving
consumers without recourse for jobs done poorly.
MR. DILLARD concurred.
REPRESENTATIVE ANDERSON said he wants those who've satisfied
bonding, insurance, and continuing education requirements to be
on an equal playing field with those [who haven't]. He
mentioned that there is also the issue of safety when homes are
being built or repaired by unqualified contractors, as well as
the fear that the work of licensed contractors will be devalued.
Referring to the aforementioned two-year requirement, located on
page 5, he explained that this language is intended to preclude
someone from claiming that he/she is building a home for living
in, in order to get around licensing requirements, when really
he/she is building the house with the intention of selling it
right away. He noted that this two-year requirement can be
waived on a case-by-case basis if the person can demonstrate
that waiting two years will cause an undue hardship.
1:48:34 PM
REPRESENTATIVE COGHILL referred to page 4, lines 15-25, and
expressed concern that he might run afoul of that stipulation
when he gets paid more than $5,000 for labor and materials on
jobs he is doing for friends.
CHAIR McGUIRE pointed out that that language is part of current
statute.
REPRESENTATIVE KOTT mentioned that the legislature changed that
amount from $10,000 to $5,000 just last year.
REPRESENTATIVE COGHILL indicated that although he doesn't want
to run afoul of the law, he also doesn't want to have to give
away his labor when helping out a friend.
REPRESENTATIVE KOTT pointed out that this language is intended
to ensure that handymen aren't holding themselves out as
qualified to do jobs so big that they ought to be done by
licensed contractors rather than handymen.
REPRESENTATIVE COGHILL mentioned that he's done jobs over the
stipulated amount several times for friends and as a church
volunteer without thinking that he needed to be a licensed
contractor.
CHAIR McGUIRE suggested to Representative Coghill that he
consider proposing an amendment addressing the issue of
volunteer work.
REPRESENTATIVE COGHILL indicated that he's done such jobs for
money, although not as his primary vocation, but hasn't gone out
and solicited such work.
1:55:37 PM
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on HB 81.
REPRESENTATIVE KOTT opined that with the changes made in the
House Labor and Commerce Standing Committee, the bill is a good
piece of legislation.
CHAIR McGUIRE suggested that the committee request a legal
opinion regarding any potential equal protection issues being
raised because of [subsection (e) of Section 2].
REPRESENTATIVE ANDERSON indicated that he would be willing to
work with Representative Coghill regarding his concerns, and
expressed a desire to move the bill along quickly because the
construction season will be starting soon.
REPRESENTATIVE KOTT surmised that there may not be any equal
protection issues raised, since the proposed civil penalties are
not mandatory.
1:57:39 PM
REPRESENTATIVE ANDERSON moved to report CSHB 81(L&C) out of
committee with individual recommendations and the accompanying
zero fiscal notes. There being no objection, CSHB 81(L&C) was
reported from the House Judiciary Standing Committee.
HB 99 - CRIMES INVOLVING CONTROLLED SUBSTANCES
1:57:58 PM
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 99, "An Act relating to controlled substances
regarding the crimes of manslaughter, endangering the welfare of
a child, and misconduct involving a controlled substance; and
providing for an effective date."
1:58:13 PM
CATHY BALDWIN-JOHNSON, M.D., relayed that she is a family
physician in Wasilla, works for Providence Matanuska Health
Care, and is the volunteer medical director for The Children's
Place, a children's advocacy center in the "valley." She said
that her interest in and concerns about methamphetamine are
related to the impact it has on children. The number of
methamphetamine laboratories ("labs") is rapidly increasing in
Alaska, especially in the Matanuska-Susitna ("Mat-Su") valley.
When people manufacture methamphetamine in their homes, there
are many hazards and risks with the parent chemicals that are
being used, with the manufacturing process itself, and with the
final drug product; additionally, it is very common that
children are in these homes.
DR. BALDWIN-JOHNSON said that it is known that substance abuse
either causes or exacerbates at least 7-10 case of child abuse
and neglect [yearly] and, with methamphetamine in particular,
there are significant [risks] for children, including injuries
from the chemicals used in manufacturing and from the needles
which surrounding adults use to inject themselves, and the
diversion of resources because parents are spending all of their
time, energy, and money on methamphetamine and the manufacture
of methamphetamine instead of on buying food and clothing, and
otherwise providing for their children's needs. There are
problems with attachment to their children if the parents are
spending all their time indulging in substance abuse, there are
environmental dangers, and children are exposed to criminal
behavior and to a lot of strange people coming in and out of the
home to buy methamphetamine.
DR. BALDWIN-JOHNSON said that methamphetamine use is associated
with escalated levels of violence, with pornography, and with
sexual aggression, none of which constitute a healthy
environment for children. Some specific risks to children
include organ damage - studies in other state have shown that
these children suffer from kidney, liver, spleen, and brain
damage, the latter of which sometimes results in permanent
aggressive behavior - and the inability of their parents to be
good parents because they also suffer from brain damage. When a
parent use methamphetamine during pregnancy, it presents a
significant risk to the unborn child, including death, birth
defects, and irreversible brain damage; the latter effect is
measurable once the child hits grade school.
DR. BALDWIN-JOHNSON said that a 2003 youth risk behavior survey
showed that 6 percent of Alaskan high school students admitted
to using methamphetamine at least once. High school is a time
when adolescent brains are undergoing a lot of change and
growth, so it's a really vulnerable time for these children to
get hooked on methamphetamine. Nationally, somewhere between
30-50 percent of home methamphetamine labs have children living
in them, and in the Mat-Su valley, the unofficial count, from
"our drug team there," is significantly higher, perhaps closer
to 75 percent. A really frightening statistic from the Lower 48
shows that 80 percent of children taken out of an active
methamphetamine lab will test positive for methamphetamine if a
urine drug screen is performed within two hours. This is not
because two-year-olds, for example, are using methamphetamine;
instead, it's because methamphetamine is in their environment:
it's on the floors where they crawl, it's on the food that they
eat, it's in the refrigerator right next to beverage containers
from which they drink, it's in the air that they breath.
2:03:01 PM
DR. BALDWIN-JOHNSON pointed out that in addition to the
aforementioned exposure risks, children are also at risk from
fires and explosions because such are common in methamphetamine
labs due to the dangers involved in the manufacturing process.
Also, children are often neglected and abused by their parents
and the various people who are coming in and out of their homes.
Children are more vulnerable to the environmental hazards of
methamphetamine because, in relation to body weight, they have
more skin surface, they breath more air, they eat more food, and
they drink more water than adults; also, children's organ
systems are immature and thus more easily damaged by exposure to
methamphetamine and the parent chemicals used in its
manufacture. She noted that a national organization has looked
at model state drug laws and has found that with regard to
methamphetamine and the children exposed to it, Alaska has
lenient drug laws compared to other western states. In
conclusion, she said she is absolutely in favor of anything that
will help keep children safe from what she surmised to be an
increasing problem in Alaska - [methamphetamine use and
manufacture].
2:04:20 PM
REPRESENTATIVE COGHILL asked Dr. Baldwin-Johnson whether HB 99
is significantly different from laws in other states, and
whether she has any further recommendations for proposed
changes.
DR. BALDWIN-JOHNSON replied that she would like to see
significantly stiffer penalties for people that manufacturer
methamphetamine around children, and would like to see such
behavior classified as a type of child abuse and have it be
escalated to a higher level of child endangerment offense. She
offered her understanding that the bill provides for a class C
felony if one is convicted of manufacturing methamphetamine in a
building inhabited by children.
REPRESENTATIVE COGHILL referred to the portion of the bill which
provides that a person could be charged with manslaughter if
someone dies as a result of the person manufacturing or
delivering a controlled substance in violation of AS 11.71.
DR. BALDWIN-JOHNSON opined that Alaska law needs something
[similar] for children who are actually in homes where
methamphetamine is being manufactured, not just for those that
die.
REPRESENTATIVE COGHILL mentioned that he is seeking input on
these issues for a bill he is working on.
2:06:16 PM
ED BRYANT, Detective, Anchorage Police Department (APD),
Municipality of Anchorage (MOA), relayed that he has been
assigned to the drug unit for about nine years, and so has seen
the rise in methamphetamine production. He said he would echo
Dr. Baldwin-Johnson's comments regarding the damage to children
caused by exposure to methamphetamine and its manufacture. As
currently proposed, the bill is certainly needed for the
protection of children and the general public. He offered the
following example:
[On] January 19 [2005], we took down a methamphetamine
lab in Anchorage in a multiunit apartment building.
Even being outside the building there was evidence of
the methamphetamine production because the acid gases
that were produced in the lab came out of the vent and
actually discolored and damaged the exterior of home.
The inside of the home was a light yellow color, all
of the walls were [a] light yellow color, except in
the very corners where the iodine and other chemical
fumes wouldn't settle because of the dead air space in
the very corners. Inside this home was an eighteen-
month-old child.
MR. BRYANT noted that currently, if someone is [19 years of age
or older], AS 11.71.010 provides that it is an unclassified
felony for delivering a schedule IA or schedule IIA controlled
substance to a person, under the age of 19, who is three or more
years younger. The bill, however, addresses circumstances
involving people - namely children inside these labs - who don't
have the option of refraining from exposure to these substances.
Why, he asked, would the penalty for manufacturing or attempting
to manufacture methamphetamine in a residence where there are
children be any less severe than that provided for in AS
11.71.010.
MR. BRYANT noted that there has been a lot of research on the
dangers of manufacturing methamphetamine, including a study done
by the National Jewish Medical and Research Center in Colorado
in which methamphetamine "cooks" were carried out in very
controlled circumstances in 16 different locations, including
residences, to find out what the residual amounts were of both
the controlled substances and the accompanying toxic substances
used in their production. That study showed conclusively that
methamphetamine and iodine residue can be found throughout the
house in which methamphetamine is manufactured, and that the
other accompanying toxic chemicals, which are very volatile, can
generally be found in the location where the processing occurs;
thus children in such locations are being exposed to
methamphetamine.
MR. BRYANT noted that one of the reasons for methamphetamine's
prevalent use is that it makes people feel really, really good.
This is because it causes the transmitters for two very
important brain chemicals - dopamine and serotonin - to fire all
at once, resulting in an extreme amount of euphoria.
Unfortunately, it also results in the destruction of both the
transmitters and receptors of these chemicals in the brain; this
is part of the brain damage spoken of earlier. Those two
chemicals are what allow people to experience everyday pleasures
and regulate moods; they are essentially what keep humans within
the bounds of societal norms with regard to non-aggressive
behavior and being able to cope with and solve different
problems. The people who use methamphetamine or are subjected
to it, as in the case of children living where methamphetamine
is being manufactured, will suffer this brain damage.
MR. BRYANT, in conclusion, relayed that he is very much in
support of HB 99, and is very passionate about this issue
because he has seen the effects of methamphetamine use and
exposure.
2:12:00 PM
REPRESENTATIVE GRUENBERG referred to Section 5, paragraph (5),
and asked why the language stipulates, "methamphetamine in an
organic solution".
MR. BRYANT said that such a solution is a product of the
reaction and results from the next to the last step in
manufacturing; he noted that the phrase used in the bill is
inclusive.
REPRESENTATIVE GRUENBERG mentioned that AS 11.81.900(b)(22)
defines "dwelling" as, "dwelling" means a building that is
designed for use or is used as a person's permanent or temporary
home or place of lodging". He asked whether the language
currently located on page 3, lines 3-4, which says in part,
"with reckless disregard that the building is a dwelling for one
or more children", should be changed to say the building is a
"current dwelling".
CHAIR McGUIRE pointed out that the language says, "is a
dwelling", and suggested that that phrase will be interpreted to
mean, "current dwelling." She acknowledged, however, that if
there are concerns regarding this issue, the language could be
changed to say, "is currently a dwelling".
2:17:09 PM
REPRESENTATIVE ANDERSON - noting that lines 22-26 of page 2
address the issue of apartment complexes and other buildings
consisting of separate units - indicated that if one apartment
in an apartment complex is being used as a methamphetamine lab,
even though there may not be children residing in that
particular apartment, the hazardous effects and risks are
present for everyone living in the rest of the building. He
also indicated that he is in favor of strict penalties
regardless of whether the building or a unit in the building is
currently being used as a dwelling for children.
MR. BRYANT concurred, and offered an example of an explosion
occurring in methamphetamine lab located in one unit of a six-
unit apartment complex - the explosion was so severe that it
resulted in the building being blown off of its foundation. So
there is not only a risk from the toxins that can be found in a
methamphetamine lab, there is also a risk from explosion and
fire. For this reason, he remarked, he supports the bill's
current definition of "building," which is located on page 2,
lines 22-26.
REPRESENTATIVE ANDERSON agreed, characterizing that definition
as important, and noting that it also addresses office buildings
and other buildings that might rent separate units.
MR. BRYANT mentioned that smaller daycare centers are sometimes
located in strip malls, where it would not be uncommon for
someone to try to conceal a methamphetamine lab. Although
discussion thus far has been limited to methamphetamine labs, he
remarked, there are other types of labs that are just as
dangerous if not more so.
2:22:37 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL),
relayed that HB 99 does three things. The bill provides for a
charge of manslaughter for manufacturing or delivering a
controlled substance in violation of Alaska's drug laws if a
person dies as a result of ingesting that controlled substance;
this provision stipulates that that death does not require an
additional culpable mental state as an element of the offense -
the culpable mental state is the drug violation itself. She
noted that other states have similar laws, either specifically
in statute or in "decisional law based on felony murder statutes
or laws."
MS. CARPENETI noted that currently, AS 11.51.130 makes the crime
of allowing a child under the age of 18 to be present during
illegal drug activities a class A misdemeanor, and relayed that
the bill contains a child endangerment provision that makes it a
class C felony for endangering the welfare of a child in the
first degree by knowingly manufacturing or attempting to
manufacture methamphetamine with reckless disregard that the
building is a dwelling of one or more children under the age of
18. With regard to the provision pertaining to methamphetamine
in an organic solution, she pointed out that the only reason for
possessing such a solution is for the purpose of periodically
extracting and distributing methamphetamine. Possession of
methamphetamine is a class C felony, manufacture of
methamphetamine is a class A felony, and possession of a
precursor of methamphetamine with intent to manufacture
methamphetamine is also a class A felony.
2:25:32 PM
MS. CARPENETI - with regard to the language in the bill that
says, "with reckless disregard that the building is a dwelling
for one or more children" - offered her belief that "is a
dwelling" is sufficient to address Representative Gruenberg's
concern, but acknowledged that they could consider saying
"currently used as a dwelling".
REPRESENTATIVE GRUENBERG said he totally agrees with the bill
but want to ensure that the section being discussed won't be
used too broadly.
CHAIR McGUIRE relayed that committee staff has suggested a
possible fix: on page 3, line 3, after "is", delete "a
dwelling", and insert "used as a person's permanent or temporary
home or place of lodging". This additional language is
currently used in AS 11.81.900(b)(22).
REPRESENTATIVE GRUENBERG expressed a willingness to offer that
suggested change as a conceptual amendment.
2:27:43 PM
MS. CARPENETI, in response to a question, relayed that although
the term "building" is currently defined in statute for the
whole of Title 11, that definition excludes units in an
apartment building, and since the DOL clearly wanted to have the
bill apply to such units, it proposed the change, located on
page 2, lines 22-26, to the definition of "building" as it would
be used in the bill.
2:28:15 PM
REPRESENTATIVE GRUENBERG noted that portions of proposed AS
11.71.020(a) use the phrase, "intent to manufacture", but
proposed AS 11.71.020(a)(5) uses the phrase, "intent to extract"
He asked Ms. Carpeneti to comment.
MS. CARPENETI explained that the word "extract" was used because
methamphetamine in an organic solution is methamphetamine, and
so couldn't be called a precursor or treated like one in
statutory language. In response to a further question, she
noted that it can be difficult to prove whether someone intends
to extract methamphetamine from the organic solution.
REPRESENTATIVE GRUENBERG asked whether they would be able to say
that certain types of evidence shall be prima facie evidence of
intent.
MS. CARPENETI said the DOL tries to be cautious [of such
language], since it does have the burden of proving every
element of an offense beyond a reasonable doubt.
2:31:09 PM
REPRESENTATIVE KOTT offered an example of one person selling a
drug to another person who in turn sells it to someone who then
dies from ingesting that drug. He asked who could be charged in
such a situation.
MS. CARPENETI indicated that both the person initially selling
the drug and the person acting as the middleman in that
transaction could be charged, though proof that their actions
contributed to the death must first be established.
2:32:14 PM
REPRESENTATIVE KOTT asked what the current law is regarding
selling a drug to someone who then goes out and kills another
person.
MS. CARPENETI relayed that the 2004 Alaska Court of Appeals
case, Whitesides v. State engendered HB 99. In that case, a
person sold heroin to someone who ended up dying from an
overdose. The trial court found that the aggravating factor of
somebody being physically harmed as a result of the crime should
apply and thus the presumptive sentence should be increased.
The Alaska Court of Appeals disagreed, however, because of the
causation argument, since the person who ingested the drug made
the choice to ingest that drug himself. House Bill 99 is
intended to avoid that causation argument by saying the drugs
themselves caused the death. She mentioned that she didn't know
whether there is something in current law that addresses
Representative Kott's last example, because although there are
felony murder charges for drug offenses, such wouldn't apply in
instances where a death is caused because of the ingestion of a
drug.
2:35:06 PM
REPRESENTATIVE GRUENBERG referred to a hypothetical example
regarding marijuana sale and use. If someone dies as a result
of using the marijuana, could the original grower be found
guilty of manslaughter?
MS. CARPENETI said, "If we could prove that, yes." That is the
risk one takes when one manufactures or grows illegal drugs.
REPRESENTATIVE GRUENBERG asked why wouldn't the same argument
apply to persons/entities that manufacture alcohol.
CHAIR McGUIRE suggested that that line of inquiry was getting
off topic.
2:36:12 PM
AUDIE HALLOWAY, Deputy Chief, Anchorage Police Department (APD),
Municipality of Anchorage (MOA), relayed that an average of nine
persons per year clearly die from drug overdoses, but several
other deaths occur under similar circumstances but don't get
added to the aforementioned category because of the way the APD
collects its data; for example, the drug use might result in
liver failure, or the person might die while receiving hospital
care. He offered the following:
There's a lot of people in Alaska, and I know
particularly in Anchorage, that do die because of
drugs that are provided by other people, because of
the inexact science of the way that they provide the
drugs - they don't have any type of way to make sure
that the drugs are safe nor do they care if the drugs
are safe. I could remember two or three instances,
when I ran the drug unit, where we had heroin come
into town that was extremely potent, and we had two or
three people die from [the] use of that; we had
marijuana that was soaked in some kind of chemical
that caused two young teenagers to end up in the
hospital; we had a death, just last year, from a
teenager that took some "thb" that was provided by an
older person, and she died right within minutes of
taking it, basically, and they didn't do anything to
get her any help. So this kind of situation does
exist out there and, at this point, a lot of times we
can't do anything about it because of the fact that
the person intentionally took it themselves.
2:39:32 PM
JAMES STEELE, Children Services Manager, Southcentral Region,
Child Protective Services, Office of Children's Services (OCS),
Department of Health and Social Services (DHSS); Deputy Chief,
Central "Mat-Su" [Matanuska-Susitna] Fire Department, Matanuska-
Susitna Borough, relayed that he is interested in seeing the
bill move forward. He concurred with previous testimony
regarding the risks and hazards associated with the manufacture
of methamphetamine, and reminded the committee that those who
are manufacturing these substances are not scientists and
therefore the probability of mishap is very high.
MR. STEELE offered the following:
Two years ago the "Mat-Su Drug [Enforcement] Team"
seized around 30 [methamphetamine] labs. Last year
the numbers had increased to more that 50
[methamphetamine] labs. The Mat-Su field office for
[the OCS is] now receiving approximately 40 calls ...
monthly that involve methamphetamine in some aspect.
During last year, we had 10 situations in which we had
to remove the children and take custody of them. Out
of those 10, 8 of them involved active labs.
MR. STEELE opined that children are at a much higher risk in
such surroundings because of their natural inclinations to
explore and put things in their mouths, and because the entire
living environment is contaminated.
2:42:26 PM
TIMOTHY D. BIRT, Sergeant, Southeast Alaska Narcotics
Enforcement Team (SEANET), Alaska State Troopers, Department of
Public Safety (DPS), relayed that the DPS supports HB 99. The
inherent dangers of methamphetamine labs create great dangers,
not only to persons living and in and near such labs, but also
to those who are merely passing by. With regard to mobile labs,
such as those in the trunks of vehicles, he pointed out that
they create an extreme hazard for any children who are
transported in such vehicles. In conclusion, he relayed that in
his experience, those who manufacture methamphetamine have
little regard for the health and safety of either themselves or
others.
2:44:39 PM
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on HB 99.
CHAIR McGUIRE made a motion to adopt [Conceptual] Amendment 1,
which read [original punctuation provided]:
Page 3, line 3:
After "is"
Delete "a dwelling"
Insert "used as a permanent or temporary home or place
of lodging"
CHAIR McGUIRE asked whether there were any objections to
[Conceptual] Amendment 1. There being none, [Conceptual]
Amendment 1 was adopted.
2:45:08 PM
REPRESENTATIVE KOTT again raised the issue of causing damage or
committing murder while under the influence of a controlled
substance; he opined that [the state] should be able to
prosecute the original seller by establishing a nexus between
that person and the person who did the damage or committed a
murder while under the influence of the controlled substance.
If there is not already a mechanism in place to address such
situations, he remarked, then he wants [the legislature] to
consider putting something in place that will.
REPRESENTATIVE GRUENBERG, referring to page 1, line 11, relayed
that Ms. Carpeneti has told him that that provision of the bill
would not be triggered in situations in which somebody knowingly
possesses a controlled substance. So, for example, if a person
possesses such a substance and someone steals it and then
overdoses on it, the possessor could not be found guilty of
manslaughter as proposed by the bill. He said he is anxious to
ensure that before a person is convicted of manslaughter, that
that person have some legal and moral culpability. He mentioned
that he is still troubled that manufacturers and distributors of
alcohol "are not thrown, logically, down the same road as these
people," and is somewhat troubled that the bill might apply to a
person who's only crime is to sell [a controlled substance] to
someone who then turns around and sells it to others.
2:48:15 PM
REPRESENTATIVE KOTT moved to report HB 99, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 99(JUD) was
reported from the House Judiciary Standing Committee.
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:49 p.m.
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