CSHB 387(JUD): "An Act relating to scheduled substances; relating to the Controlled Substances Advisory Committee; authorizing the attorney general to schedule substances by emergency regulation or repeal an emergency regulation that scheduled a substance; relating to detaining a person for up to 48 hours for the prosecuting authority to demonstrate that release of the person would not reasonably ensure the appearance of the person or will pose a danger to the victim, other persons, or the community if the person has a criminal conviction or charge outside the state; relating to conditions of release for a person who is represented by an attorney or has a criminal conviction or charge outside the state; relating to factors the court is required to consider when determining the conditions of release before trial; amending the authority of pretrial services officers to make a warrantless arrest or request the court to issue a warrant for arrest; providing that pretrial services, probation, and parole officers may perform duties relating to pretrial services, probation, and parole; amending Rule 41, Alaska Rules of Criminal Procedure; and providing for an effective date."
00 CS FOR HOUSE BILL NO. 387(JUD) 01 "An Act relating to scheduled substances; relating to the Controlled Substances 02 Advisory Committee; authorizing the attorney general to schedule substances by 03 emergency regulation or repeal an emergency regulation that scheduled a substance; 04 relating to detaining a person for up to 48 hours for the prosecuting authority to 05 demonstrate that release of the person would not reasonably ensure the appearance of 06 the person or will pose a danger to the victim, other persons, or the community if the 07 person has a criminal conviction or charge outside the state; relating to conditions of 08 release for a person who is represented by an attorney or has a criminal conviction or 09 charge outside the state; relating to factors the court is required to consider when 10 determining the conditions of release before trial; amending the authority of pretrial 11 services officers to make a warrantless arrest or request the court to issue a warrant for 12 arrest; providing that pretrial services, probation, and parole officers may perform
01 duties relating to pretrial services, probation, and parole; amending Rule 41, Alaska 02 Rules of Criminal Procedure; and providing for an effective date." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. The uncodified law of the State of Alaska is amended by adding a new section 05 to read: 06 LEGISLATIVE INTENT. It is the intent of the legislature that, if a person's criminal 07 convictions or charges outside the state are included in a pretrial risk assessment conducted 08 under AS 33.07, the result of that assessment will control the release decision and the section 09 of this bill allowing a defendant to be detained for 48 hours and directing presumptive release 10 on a person's own recognizance or on an unsecured bond when the person has a criminal 11 conviction or charge outside the state will no longer apply. 12 * Sec. 2. AS 11.71.100(c) is amended to read: 13 (c) The president of the Board of Pharmacy or the president's designee 14 [ATTORNEY GENERAL] is the chair [CHAIRMAN] of the committee. 15 * Sec. 3. AS 11.71.100(d) is amended to read: 16 (d) The committee meets at the call of the chair of the committee 17 [ATTORNEY GENERAL]. 18 * Sec. 4. AS 11.71.110 is amended to read: 19 Sec. 11.71.110. Duties of committee. The committee shall 20 (1) advise the governor of the need to add, delete, or reschedule 21 substances in the schedules in AS 11.71.140 - 11.71.190; 22 (2) recommend regulations for adoption by the Board of Pharmacy to 23 prevent excessive prescription of controlled substances and the diversion of 24 prescription drugs into illicit channels; 25 (3) evaluate the effectiveness of programs in the state providing 26 treatment and counseling for persons who abuse controlled substances; 27 (4) recommend programs to the Alaska Court System to be instituted 28 as alternatives to the prosecution or imprisonment of offenders who have no prior 29 criminal record involving controlled substance offenses and who are charged with 30 crimes involving controlled substances;
01 (5) review and evaluate enforcement policies and practices of the 02 Department of Public Safety and the Department of Law with regard to crimes 03 involving controlled substances, and recommend modifications of those policies and 04 practices consistent with the committee's assessment of the probable danger of 05 particular controlled substances; [AND] 06 (6) review budget requests and recommend amounts for appropriations 07 to the governor and the legislature for departments and agencies responsible for 08 (A) enforcing criminal laws pertaining to controlled 09 substances; 10 (B) providing treatment and counseling of persons who abuse 11 controlled substances; and 12 (C) regulating the legitimate handling of controlled substances; 13 and 14 (7) advise the attorney general of the need to schedule substances 15 by emergency regulation. 16 * Sec. 5. AS 11.71 is amended by adding a new section to read: 17 Sec. 11.71.125. Emergency substance scheduling. (a) The attorney general 18 may, by regulation, schedule a substance under this chapter regardless of whether the 19 substance is substantially similar to a controlled substance listed in AS 11.71.140 - 20 11.71.180, if the attorney general finds that scheduling the substance on an emergency 21 basis is necessary to avoid an immediate hazard to public safety. 22 (b) In determining whether to schedule a substance on an emergency basis, or 23 repeal an emergency regulation that scheduled a substance, the attorney general shall 24 (1) assess the degree of danger or probable danger of the substance by 25 considering 26 (A) the actual or probable abuse of the substance including the 27 (i) history and current pattern of abuse; 28 (ii) scope, duration, and significance of abuse of the 29 substance; and 30 (iii) degree of actual or possible detriment that may 31 result from abuse of the substance; and
01 (B) the risk to public health; 02 (2) consider whether the substance has been scheduled on a temporary 03 basis under federal law and may consider clandestine importation, manufacture, or 04 distribution of the substance; 05 (3) consult with the Controlled Substances Advisory Committee 06 established under AS 11.71.100; and 07 (4) consult with the chief medical officer in the Department of Health 08 and Social Services. 09 (c) The attorney general may schedule a substance by emergency regulation 10 under this section only if the substance is currently listed on a federal controlled 11 substance schedule. 12 (d) The attorney general shall clearly indicate in an emergency regulation that 13 schedules a substance the appropriate schedule under this chapter that applies to the 14 substance. 15 (e) The attorney general shall post a notice on the Alaska Online Public Notice 16 System (AS 44.62.175) 30 days before the effective date of an emergency regulation 17 that schedules a substance. The notice must include 18 (1) a summary of the attorney general's findings under (b) of this 19 section; and 20 (2) the finding required for an emergency regulation under 21 AS 44.62.250(b). 22 (f) The attorney general may not adopt an emergency regulation under this 23 section that schedules an alcoholic beverage as defined in AS 04.21.080, marijuana as 24 defined in AS 17.38.900, or tobacco. 25 (g) An emergency regulation adopted under this section is subject to the 26 requirements in AS 44.62.260(c). 27 * Sec. 6. AS 11.71.900(4) is amended to read: 28 (4) "controlled substance" means a drug, substance, or immediate 29 precursor included in the schedules set out in AS 11.71.140 - 11.71.190 or included 30 in those schedules by an emergency regulation adopted under AS 11.71.125; 31 * Sec. 7. AS 11.71.900 is amended by adding a new paragraph to read:
01 (31) "substance" means a drug, controlled substance, or immediate 02 precursor included in the schedules set out in AS 11.71.140 - 11.71.190 or in an 03 emergency regulation adopted under AS 11.71.125, AS 44.62.250, and 44.62.260. 04 * Sec. 8. AS 12.30.006(b) is amended to read: 05 (b) At the first appearance before a judicial officer, a person may be detained 06 up to 48 hours for the prosecuting authority to demonstrate that release of the person 07 under AS 12.30.011 would not reasonably ensure the appearance of the person or will 08 pose a danger to the victim, other persons, or the community, if the person has [BEEN 09 CHARGED WITH THE FOLLOWING CRIMES:] 10 (1) been charged with 11 (A) an unclassified, class A, or class B felony; 12 (B) [(2)] a class C felony 13 (i) [(A)] under AS 11.41, AS 11.56.730, AS 28.35.030, 14 or 28.35.032; 15 (ii) [(B)] that is a sex offense; [IN THIS 16 SUBPARAGRAPH, "SEX OFFENSE" HAS THE MEANING GIVEN 17 IN AS 12.63.100]; or 18 (iii) [(C)] that is a crime involving domestic violence; in 19 this sub-subparagraph [SUBPARAGRAPH], "crime involving 20 domestic violence" has the meaning given in AS 18.66.990; or 21 (C) [(3)] a class C felony, other than a class C felony listed in 22 (B) [(2)] of this paragraph [SUBSECTION], and the person has been assessed 23 as moderate to high risk under AS 12.30.011(c)(2); or 24 (2) a criminal conviction or charge outside the state that 25 (A) is a felony, a crime against a person, or a sex crime; and 26 (B) has not been used in determining the person's risk level 27 in the pretrial risk assessment under AS 33.07. 28 * Sec. 9. AS 12.30.011(a) is amended to read: 29 (a) Except as otherwise provided in this chapter, a [A] judicial officer may 30 order that a person charged with an offense, in addition to other conditions imposed 31 under this section, be released
01 (1) on the person's own recognizance; 02 (2) upon execution of an unsecured appearance bond; or 03 (3) upon execution of an unsecured performance bond. 04 * Sec. 10. AS 12.30.011(b) is amended to read: 05 (b) A person charged with a misdemeanor that does not include an offense 06 under AS 11.41, AS 11.56.730, 11.56.757, AS 28.35.030, or 28.35.032, a sex offense 07 as defined in AS 12.63.100, or a crime involving domestic violence as defined in 08 AS 18.66.990 and who is assessed by a pretrial services officer as 09 (1) low to moderate risk shall, except as provided in (m) of this 10 section, be released on the person's own recognizance or upon execution of an 11 unsecured appearance bond or unsecured performance bond; or 12 (2) high risk shall be released on the person's own recognizance or 13 upon execution of an unsecured appearance bond or unsecured performance bond 14 unless the judicial officer finds on the record that there is clear and convincing 15 evidence that no nonmonetary conditions of release in combination with the release of 16 the person on the person's own recognizance or upon execution of an unsecured bond 17 can reasonably ensure the appearance of the person in court and the safety of the 18 victim, other persons, and the community. 19 * Sec. 11. AS 12.30.011(c) is amended to read: 20 (c) A person charged with a class C felony that does not include an offense 21 under AS 11.41, AS 11.56.730, AS 28.35.030, or 28.35.032, a sex offense as defined 22 in AS 12.63.100, or a crime involving domestic violence as defined in AS 18.66.990 23 and who is assessed by a pretrial services officer as 24 (1) low risk shall, except as provided in (m) of this section, be 25 released on the person's own recognizance or upon execution of an unsecured 26 appearance bond or unsecured performance bond; or 27 (2) moderate to high risk shall be released on the person's own 28 recognizance or upon execution of an unsecured appearance bond or unsecured 29 performance bond unless the judicial officer finds on the record that there is clear and 30 convincing evidence that no nonmonetary conditions of release in combination with 31 the release of the person on the person's own recognizance or upon execution of an
01 unsecured bond can reasonably ensure the appearance of the person in court and the 02 safety of the victim, other persons, and the community. 03 * Sec. 12. AS 12.30.011(g) is amended to read: 04 (g) A person released under this chapter [SECTION] shall be released on the 05 condition that the person 06 (1) obey all court orders; 07 (2) obey all laws; 08 (3) make all court appearances; 09 (4) maintain contact with the person's pretrial services officer, if one is 10 appointed by the court, and follow the pretrial services officer's instructions; 11 (5) maintain contact with the person's attorney if the person is 12 represented by an attorney; 13 (6) notify the person's attorney or, if the person is not represented by 14 an attorney, the pretrial services officer or the court within 24 hours after a change in 15 the person's residence. 16 * Sec. 13. AS 12.30.011(i) is amended to read: 17 (i) In determining the conditions of release under this chapter, the court shall 18 consider the following: 19 (1) the nature and circumstances of the offense charged; 20 (2) the weight of the evidence against the person; 21 (3) the nature and extent of the person's family ties and relationships; 22 (4) the person's employment status and history; 23 (5) the length and character of the person's past and present residence; 24 (6) the person's record of convictions, including convictions outside 25 the state; 26 (7) the person's record of appearance at court proceedings; 27 (8) assets available to the person to meet monetary conditions of 28 release; 29 (9) the person's reputation, character, and mental condition; 30 (10) the effect of the offense on the victim, any threats made to the 31 victim, and the danger that the person poses to the victim;
01 (11) the conditions of release recommended by the pretrial services 02 officer; 03 (12) the person's pretrial risk assessment score; and 04 (13) any other facts that are relevant to the person's appearance or the 05 person's danger to the victim, other persons, or the community. 06 * Sec. 14. AS 12.30.011 is amended by adding a new subsection to read: 07 (m) A person charged with an offense who would otherwise be released under 08 AS 12.30.011(b)(1) or (c)(1) and who has a criminal conviction or charge outside the 09 state that is a felony, a crime against a person, or a sex crime and that has not been 10 used in determining the person's risk level in the pretrial risk assessment under 11 AS 33.07 shall be released on the person's own recognizance or upon execution of an 12 unsecured appearance bond or unsecured performance bond unless the judicial officer 13 finds on the record that there is clear and convincing evidence that no nonmonetary 14 conditions of release, in combination with the release of the person on the person's 15 own recognizance or upon execution of an unsecured bond, can reasonably ensure the 16 appearance of the person in court and the safety of the victim, other persons, and the 17 community. 18 * Sec. 15. AS 33.07.030(g) is amended by to read: 19 (g) A pretrial services officer may 20 (1) recommend pretrial diversion to the court and parties before 21 adjudication in accordance with the guidelines established by the commissioner under 22 AS 33.07.020(6); 23 (2) [ARREST, WITHOUT A WARRANT, A DEFENDANT WHO 24 HAS BEEN RELEASED WHILE AWAITING TRIAL] if the officer has probable 25 cause to believe the defendant has committed an offense under AS 11.56.730 or 26 11.56.757 or has violated the defendant's release conditions, file a complaint with the 27 court and 28 (A) arrest, with or without a warrant, a defendant who has 29 been released while awaiting trial; or 30 (B) request the court to issue warrants related to any 31 violation of the defendant's release conditions;
01 (3) refer interested defendants for substance abuse screening, 02 assessment, and treatment on a voluntary basis and assist any defendant whose offense 03 or criminal history identified a dependency on, abuse of, or addiction to alcohol or 04 controlled substances with accessing and obtaining appropriate treatment in the 05 community to address those needs; 06 (4) recommend that a defendant charged with an offense involving the 07 use of alcohol or controlled substances comply with a program established under 08 AS 47.38.020; and 09 (5) coordinate with community-based organizations and tribal courts 10 and councils to develop and expand pretrial diversion options. 11 * Sec. 16. AS 33.16.190 is amended to read: 12 Sec. 33.16.190. Authority of parole, pretrial services, and probation 13 officers. An officer appointed by the commissioner under AS 33.05.020(a), AS 33.07, 14 or under this chapter, may discharge duties under AS 33.05, AS 33.07, or this chapter. 15 * Sec. 17. AS 44.23.020 is amended by adding a new subsection to read: 16 (j) The attorney general may by regulation schedule a substance on an 17 emergency basis as provided in AS 11.71.125 and AS 44.62 (Administrative 18 Procedure Act). 19 * Sec. 18. AS 44.62.175(a) is amended to read: 20 (a) The lieutenant governor shall develop and supervise the Alaska Online 21 Public Notice System, to be maintained on the state's site on the Internet. The 22 lieutenant governor shall prescribe the form of notices posted on the system by state 23 agencies. The Alaska Online Public Notice System must include 24 (1) notices of proposed actions given under AS 44.62.190(a); 25 (2) notices of state agency meetings required under AS 44.62.310(e), 26 even if the meeting has been held; 27 (3) notices of solicitations to bid issued under AS 36.30.130; 28 (4) notices of state agency requests for proposals issued under 29 AS 18.55.255, 18.55.320; AS 36.30.210; AS 37.05.316; AS 38.05.120; and 30 AS 43.40.010; 31 (5) executive orders and administrative orders issued by the governor;
01 (6) written delegations of authority made by the governor or the head 02 of a principal department under AS 44.17.010; 03 (7) the text or a summary of the text of a regulation or order of repeal 04 of a regulation for which notice is given under AS 11.71.125 or AS 44.62.190(a), 05 including an emergency regulation or repeal regardless of whether it has taken effect; 06 (8) notices required by AS 44.62.245(b) regarding an amended version 07 of a document or other material incorporated by reference in a regulation; 08 (9) a summary of the text of recently issued published opinions of the 09 attorney general; 10 (10) a list of vacancies on boards, commissions, and other bodies 11 whose members are appointed by the governor; 12 (11) in accordance with AS 39.52.240(h), advisory opinions of the 13 attorney general; [AND] 14 (12) notices required by AS 26.30.010(d) and (e) regarding 15 applications for military facility zones; and 16 (13) notices of substances scheduled by an emergency regulation 17 under AS 11.71.125. 18 * Sec. 19. AS 44.62.200(a) is amended to read: 19 (a) The notice of proposed adoption, amendment, or repeal of a regulation 20 must include 21 (1) a statement of the time, place, and nature of proceedings for 22 adoption, amendment, or repeal of the regulation; 23 (2) reference to the authority under which the regulation is proposed 24 and a reference to the particular code section or other provisions of law that are being 25 implemented, interpreted, or made specific; 26 (3) an informative summary of the proposed subject of agency action; 27 (4) other matters prescribed by a statute applicable to the specific 28 agency or to the specific regulation or class of regulations; 29 (5) a summary of the fiscal information required to be prepared under 30 AS 44.62.195; and 31 (6) for a regulation under AS 11.71.125, a summary of the attorney
01 general's compliance with the requirements of AS 11.71.125(b). 02 * Sec. 20. AS 44.62.250 is amended to read: 03 Sec. 44.62.250. Emergency regulations. Except for a regulation adopted 04 under AS 11.71.125, a [A] regulation or order of repeal may be adopted as an 05 emergency regulation or order of repeal if a state agency makes a written finding, 06 including a statement of the facts that constitute the emergency, that the adoption of 07 the regulation or order of repeal is necessary for the immediate preservation of the 08 public peace, health, safety, or general welfare. The requirements of AS 44.62.040(c), 09 44.62.060, and 44.62.190 - 44.62.215 do not apply to the initial adoption of 10 emergency regulations; however, upon adoption of an emergency regulation, the 11 adopting agency shall immediately submit a copy of it to the lieutenant governor for 12 filing and for publication in the Alaska Administrative Register, and, within five days 13 after filing by the lieutenant governor, the agency shall give notice of the adoption in 14 accordance with AS 44.62.190(a). Failure to give the required notice by the end of the 15 10th day automatically repeals the regulation. 16 * Sec. 21. AS 44.62.250 is amended by adding a new subsection to read: 17 (b) A regulation or order of repeal may be adopted as an emergency regulation 18 under AS 11.71.125 if the attorney general makes a written finding that the 19 requirements of AS 11.71.125 are met. The requirements of AS 44.62.190 - 44.62.215 20 do not apply to the adoption or order of repeal by the attorney general of a regulation 21 to schedule a substance by emergency regulation under AS 11.71.125. 22 * Sec. 22. AS 44.62.260 is amended to read: 23 Sec. 44.62.260. Limitation on effective period of emergency regulations. (a) 24 Except as provided in (c) of this section, a [A] regulation adopted as an emergency 25 regulation does not remain in effect more than 120 days unless the adopting agency 26 complies with AS 44.62.040(c), 44.62.060, and 44.62.190 - 44.62.215 either before 27 submitting the regulation to the lieutenant governor or during the 120-day period. 28 (b) Except as provided in (c) of this section, before [BEFORE] the 29 expiration of the 120-day period, the agency shall transmit to the lieutenant governor 30 for filing a certification that AS 44.62.040(c), 44.62.060, and 44.62.190 - 44.62.215 31 were complied with before submitting the regulation to the lieutenant governor, or that
01 the agency complied with those sections within the 120-day period. Failure to so 02 certify repeals the emergency regulation; it may not be renewed or refiled as an 03 emergency regulation. 04 * Sec. 23. AS 44.62.260 is amended by adding a new subsection to read: 05 (c) A substance scheduled by the attorney general by emergency regulation 06 under AS 11.71.125 will remain on the schedule under the emergency regulation for a 07 period not to exceed 1,095 days unless the legislature schedules the substance by law 08 or annuls the regulation by law. 09 * Sec. 24. AS 44.62.270 is amended to read: 10 Sec. 44.62.270. State policy. It is the state policy that emergencies are held to 11 a minimum and are rarely found to exist. Nothing in this section limits the attorney 12 general from scheduling a substance by emergency regulation under 13 AS 11.71.125. 14 * Sec. 25. The uncodified law of the State of Alaska is amended by adding a new section to 15 read: 16 INDIRECT COURT RULE AMENDMENT. AS 12.30.011 (a) - (c), (g), and (i), as 17 amended by secs. 9 - 13 of this Act, and AS 12.30.011(m), enacted by sec. 14 of this Act, 18 have the effect of changing Rule 41, Alaska Rules of Criminal Procedure, by changing the 19 conditions of release for certain defendants. 20 * Sec. 26. The uncodified law of the State of Alaska is amended by adding a new section to 21 read: 22 APPLICABILITY. AS 12.30.006(b), as amended by sec. 8 of this Act, AS 12.30.011 23 (a) - (c), (g), and (i), as amended by secs. 9 - 13 of this Act, and AS 12.30. 011(m), enacted by 24 sec. 14 of this Act, apply to offenses committed on or after the effective date of secs. 8 and 9 - 25 14 of this Act. 26 * Sec. 27. The uncodified law of the State of Alaska is amended by adding a new section to 27 read: 28 CONDITIONAL EFFECT. Sections 9 - 14 of this Act take effect only if sec. 25 of 29 this Act receives the two-thirds majority vote of each house required by art. IV, sec. 15, 30 Constitution of the State of Alaska. 31 * Sec. 28. If secs. 9 - 14 of this Act take effect under sec. 27 of this Act, they take effect
01 immediately under AS 01.10.070(c). 02 * Sec. 29. Sections 1, 8, 15, 16, and 25 - 27 of this Act take effect immediately under 03 AS 01.10.070(c).