Legislature(2017 - 2018)GRUENBERG 120
02/06/2018 01:00 PM House MILITARY & VETERANS' AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB262 | |
| HB307 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 262 | TELECONFERENCED | |
| += | HB 307 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 307-MILITARY JUSTICE & MILITIA CIVIL RELIEF
2:00:05 PM
CHAIR TUCK announced that the final order of business would be
HOUSE BILL NO. 307, "An Act requiring a person who commits
certain offenses under the code of military justice to register
as a sex offender or child kidnapper; relating to the
Servicemembers Civil Relief Act; relating to contracts made by a
member of the organized militia; relating to nonjudicial
punishment of members of the organized militia; relating to
offenses subject to court-martial proceedings; and providing for
an effective date."
2:00:56 PM
The committee took an at-ease from 2:00 p.m. to 2:02 p.m.
2:02:03 PM
CHAIR TUCK listed the witnesses available for questions. He
advised that two amendments were before the committee. One was
related to discussion that took place during the last meeting,
regarding the idea of including all service members, whether or
not they are a member of the organized militia, so that the
standard is the same for all military personnel. The second
amendment follows the alcohol and drug policies throughout Title
26 statutes.
2:03:14 PM
REPRESENTATIVE LEDOUX moved to adopt Amendment 1, labeled 30-
LS1099\A.1, Glover, 2/5/18, which read as follows:
Page 10, line 15, following "prisoner":
Insert "or unlawfully uses a drug with a
prisoner"
Page 12, line 3, following "alcohol":
Insert "or a drug"
Page 12, line 9, following "drunk":
Insert "or under the influence of a controlled
substance"
Page 12, line 9, following "direct.":
Insert "In this subsection, "controlled
substance" has the meaning given in AS 26.05.870."
Page 12, line 13, following "alcohol":
Insert "or a drug"
2:03:45 PM
The committee took an at-ease from 2:03 p.m. to 2:05 p.m.
2:05:12 PM
REPRESENTATIVE REINBOLD objected to the adoption of Amendment 1
for purposes of discussion, and for a friendly amendment.
2:05:25 PM
CHAIR TUCK explained that Amendment 1 attempts to keep the
language consistent with the language "we had earlier" that was
pointed out on HB 307 because some areas dealt with drugs and
other areas dealt with alcohol.
2:05:53 PM
LIEUTENANT COLONEL CHRISTOPHER WEAVER, Office of the Adjutant
General, Alaska National Guard, advised that he was driving, and
asked that Chair Tuck explain Amendment 1.
CHAIR TUCK advised that during the last hearing, the discussion
began at Sec. 16, [AS 26.05.785(b), page 10, lines 14-15], which
read as follows:
(b) A member of the militia who unlawfully drinks
an alcoholic beverage with a prisoner may be punished
by up to one year of confinement ...
CHAIR TUCK explained that the committee wanted the language to
refer not to simply drinking but "unlawfully uses a drug with a
prisoner."
2:07:04 PM
CHAIR TUCK referred to [Sec. 21. AS 26.05.860, page 12, line 3],
and advised that the amendment brings in the drug component to
all alcohol references.
CHAIR TUCK referred to [Sec. 21. AS 26.05.860, page 12, lines 1-
7], which read as follows:
Drunkennes and other incapacitating offenses
[DRUNK ON DUTY]. A member of the militia, other than
a sentinel or lookout, who (1) is found under the
influence of alcohol while on duty, or (2) as a result
of indulgence in any alcoholic beverage or drug, is
unable to properly perform the member's duty may be
punished up to one year of confinement ...
CHAIR TUCK explained that the amendment takes page 12, line 3
and adds the word "drug," thereby the language would read as
follows:
... who (1) is found under the influence of alcohol or
a drug while on duty, or (2).
2:08:02 PM
CHAIR TUCK referred to [Sec. 22, AS 26.05.865(b)], page 12,
lines 9-10, and explained that the language would read as
follows:
(b) A member of the militia who, while a
prisoner, is drunk or under the influence of a
controlled substance shall be punished as a court-
martial may direct.
CHAIR TUCK again referred to [Sec. 22, AS 26.05.865(b)], page
12, lines 9-10, and explained that the language would read as
follows:
(b) A member of the militia who, while a
prisoner, is drunk or under the influence of a
controlled substance shall be punished as a court-
martial may direct. In this subsection, "controlled
substance" has the meaning given in AS 26.05.870.
2:08:29 PM
CHAIR TUCK referred to [Sec. 23. AS 26.05.865] page 12, lines
12-13, and explained that the language would read as follows:
A sentinel or lookout who is found under the
influence of alcohol or a drug or sleeping on the
sentinel's or lookout's post ...
CHAIR TUCK offered that intent of Amendment 1 is to list alcohol
and any illegal drugs as well.
2:08:42 PM
REPRESENTATIVE SADDLER referred to [Sec. 22, AS 26.05.865(b)],
page 12, line 10, and the addition of the following language
[after the word "direct."] In this subsection, "controlled
substance" has the meaning given in AS 26.05.870. He offered
concern where the amendment adds in "illegally uses drugs" and
"drugs," and requested clarity as to whether these terms are
according to state or federal law, whether there is a definition
for a drug, whether a drug necessarily is an illegal drug, and
so forth.
LIEUTENANT COLONEL CHRISTOPHER WEAVER responded that in the
performance of a service member's duties, it does not matter
whether the drug is legal or illegal. He offered that in other
portions of the Alaska Code of Military Justice (ACMJ), it is
illegal just as a matter of being in the military, so it would
have to be an illegal drug.
2:09:21 PM
REPRESENTATIVE SADDLER asked that he repeat his answer and asked
whether it is necessary to define drugs as legal, illegal, or a
controlled substance, and whether there is one way to list this
consistently throughout the bill or whether it is necessary to
have the distinct verbiage in each individual case.
REPRESENTATIVE SADDLER clarified that he would feel more
comfortable if he saw consistent nomenclature for every
reference to alcohol, drug, legal, illegal, and controlled
substance because different words may have different technical
definitions.
2:11:46 PM
CAPTAIN BLAKE CIRCLE, Alaska National Guard, explained that "on
a number of these," the reason it does not matter whether the
language is "legal drug" or "illegal drug," is because the issue
is the resulting incapacitation. For example, Nyquil or some
other drug can cause incapacitation to where the service member
could not perform their duties. He said that is the problem
some of these sections address, and the reason some of the
language is "drug" and not "illegal drug," is because the goal
is to address instances where a soldier may take what is
determined a legal drug, but it causes incapacitation such that
they could not perform their duties, he reiterated.
2:12:52 PM
REPRESENTATIVE SADDLER commented that that information answered
his question, except the underlying question still remains. He
asked whether language could be used consistently throughout the
bill, for example, "a drug or an illegal drug such that it
results in incapacitation."
CAPTAIN CIRCLE apologized that Amendment 1 was not in front of
him.
2:13:34 PM
REPRESENTATIVE REINBOLD noted that she had those same concerns
and had "quite an in-depth conversation with Leg Legal." She
suggested a friendly conceptual amendment wherein on lines 2, 5,
15, delete the words "a drug" and insert "an illicit substance
or a controlled substance."
REPRESENTATIVE SPOHNHOLZ commented that that changes the
meaning.
2:14:19 PM
REPRESENTATIVE LEDOUX noted that she was looking at Amendment 1
and HB 307 as written, and on page 12, line 3-4, the language
read as follows:
or (2) as a result of indulgence in any alcoholic
beverage or drug, ...
REPRESENTATIVE LEDOUX asked whether that would include a service
member who had taken a prescription drug or a non-prescription
drug with no criminal intent. She stressed that, if someone
falls asleep on duty that is one thing, but if they had simply
taken Sudafed or something similar, and were aware they could
fall asleep, but they were not asleep, she does not want to see
someone prosecuted for taking cold medication unless they were
"over-taking it or something" just for fun. Her concern, she
expressed, is how that reads in the statute as "we now have it,
even before the amendment."
CHAIR TUCK asked Deputy Commissioner Robert Doehl to explain why
"drug" is written in this provision, and whether it includes all
drugs, legal and illegal, prescribed and non-prescribed drugs.
2:16:24 PM
DEPUTY COMMISSIONER ROBERT DOEHL, Office of the
Commissioner/Adjutant General, Department of Military &
Veterans' Affairs (DMVA), answered that the concern from the
department is regarding any substance that renders an individual
unable to safety operate an aircraft or machine gun or other
lethal instrumentality. In the case of drugs such as Sudafed,
he noted that a warning is placed on the box, and even for an
over-the-counter drug, it may render a person incapacitated.
There are avenues within the military for the service member to
advise that they are sick and are taking a medication that
instructs a person not to operate heavy machinery, he offered.
In the event a service member is not fit for duty, the solution
is not to ignore the warnings on the label, it is to report to
their supervisor that they are medically unable to perform their
duties at that time. He advised that it is called, "duties not
involving flight" (DNIF) for pilots. Virtually anyone in the
military who is required medication for a medical purpose can
report to their supervisor that they are unable to perform their
duty due to a medication and it is not actionable.
2:17:53 PM
REPRESENTATIVE LEDOUX argued that this [legislation] does not
solely cover pilots and people using other heavy equipment. For
example, this would mean that if someone took a Sudafed and was
feeling a little sleepy, they could be prosecuted for a crime.
She stated that that is not necessarily where "we or you" may
want to go.
MR. DOEHL answered that if he drives when he is drowsy, and a
warning label advised that "this may make you drowsy," he should
be prosecuted in that case. As to the equipment they use in the
operating parameters, there is a heightened standard of
responsibility, which is why they are given that "free out" if
they medically are unable to perform a duty, they report it, and
"they don't have to."
REPRESENTATIVE LEDOUX commented, "If a person is driving, but if
the person was simply attending a committee meeting ..."
2:19:31 PM
REPRESENTATIVE SPOHNHOLZ interjected and referred Representative
LeDoux to page 12, lines 3-4, which read as follows:
or (2) as a result of indulgence in any alcoholic
beverage or drug, is unable to properly perform the
member's duty ...
REPRESENTATIVE SPOHNHOLZ explained that the service member would
not be prosecuted for taking Sudafed and being a little drowsy,
the person would be prosecuted for taking an inappropriate level
of Sudafed thereby rendering the person incapable of performing
their duties, and not taking advantage of the procedure of which
allows the person to not work.
MR. DOEHL responded that "in our case," properly perform the
duties would be the test, and whether an improper amount of
substance was taken. In the event he was unable to properly
testify at this committee hearing because he was asleep in the
corner of the room and he was in the military, he would be
improperly performing his duties. At that point, he explained,
his actions would be actionable because the government had
trusted him with the responsibility and he was derelict in his
duties.
2:20:47 PM
REPRESENTATIVE LEDOUX commented that during her tenure with the
legislature, she has seen numbers of people nod off during a
committee meeting and while it is not a great idea to nod off in
a committee meeting, on the floor, or in caucus, she is not sure
that should rise to the level of being put in jail.
CHAIR TUCK interjected that the original language in AS
26.05.860, is just "drunk on duty." Amendment 1 adds any other
type of incapacitating offenses, and the military is held to a
higher standard when it comes to the safety, security, and
protection required of the military members to protect our
nation.
2:22:06 PM
REPRESENTATIVE PARISH referred to HB 307, [Sec. 21. AS
26.05.860], page 12, line 3-4, which read as follows:
or (2) as a result of indulgence in any alcoholic
beverage or drug, is unable to properly perform the
member's duty ...
REPRESENTATIVE PARISH referred to the word "indulgence" and
asked how to interpret that word in this context.
MR. DOEHL deferred to Webster's Dictionary for defining
indulgence and offered his belief that a person voluntarily
partakes of a substance as an option to make them feel better.
2:23:01 PM
REPRESENTATIVE PARISH then referred to [HB 307, Sec. 21. AS
26.05.860, page 12, lines 1-7], and he paraphrased and commented
as follows:
A member of the militia, other than a sentinel or
lookout, who (1) is found under the influence of
alcohol. And then the amendment adds language "or a
drug" while on duty, or. And then it refers to the
condition of being unable to adequately perform one's
duty.
REPRESENTATIVE PARISH commented that under a strict reading of
the above, the committee should be wary that were a person to
take a Tylenol and people were aware the person had taken a
Tylenol while on duty, he would be under its influence even if
it did not result in any loss of capacity on the person's part.
In order to get at the spirit of this legislation, it may be
more useful to say, "under the influence of alcohol or a
controlled substance." He advised that the language regarding
indulgence in any alcoholic beverage or drug and the person
being unable to perform their duty is the correct language
because in the event someone takes "a whole bunch" of Nyquil,
they may be unable to properly perform their duty.
2:25:28 PM
REPRESENTATIVE SPOHNHOLZ offered appreciation for Representative
Parish's comment regarding [HB 307, Sec. 21. AS 26.05.860, page
12, line 3] where the phrase "or a drug" is being inserted, and
to instead insert "a controlled substance" is an interesting
possibility. She then referred to a possible drafting error
located on Amendment 1, page 1, line 10, which read: "Page 12,
line 9" and suggested it should read "line 10," and it should
possibly be considered a friendly amendment.
2:27:01 PM
REPRESENTATIVE RAUSCHER commented that if a person were to take
a drug because they have a cold and they wanted to be able to
better perform their duties, Webster's Dictionary defines
"indulgence" as satisfaction, gratification, and fulfillment.
In the event a person takes the drug to actually fulfill his/her
duty and "not for those reasons, say you get hit by a car while
you are on this sentinel duty, and you didn't do anything
wrong," but the person will go to the hospital for a blood test
which will reveal "you have this in your system." A case could
be made that the person "did not jump out of the way, or
whatever, it really wasn't hampering you doing your duty unless
they really wanted to push that." He offered that the
suggestion from Representative Parish would be a better
clarification, although a person could partake of too much
Sudafed and be impaired.
2:28:58 PM
MR. DOEHL advised that the department's position remains "any
substance that ... or mind-altering substance is troublesome for
the duties service members are doing or may be called upon to
do." The illicit or controlled language is of some concern to
the extent that synthetic drugs are coming out faster than they
can be regulated with the same deleterious effects and
impairment. There is a voluntary decision of indulgence,
wherein an individual decides to take the drug, it wasn't
slipped into their drink, and they made the decision that even
though drugs were in their system, they still attempted to
perform their military duties. For the person crossing the
street and was not jaywalking, they would still be performing
their duties and it would not be actionable under this section.
However, if they stumbled out into the street it would be a
different scenario. He said the department supports the
amendment and believes the emphasis should be on the mind-
altering or "just a substance there with -- as proposed in the
amendment." The department recognizes there may be some
consistency issues in the amendment to work through, and it
believes that "illicit" is an issue and also "even a lawfully
prescribed drug, if an individual is impaired by it and there
are warnings they could be impaired by it, they should not be
doing those duties." The committee discussed Sudafed, but if he
was prescribed Vicodin and was trying to perform "something"
with all of the warning on that drug, it would be a very
different scenario.
CHAIR TUCK added that if something were to happen where a
soldier was unable to properly perform their duty as a result of
"taking these things," is what this is all about. It is not
about whether they took the drug, but rather that an accident
happened as a result of them ingesting the substance.
2:31:58 PM
REPRESENTATIVE SPOHNHOLZ moved to adopt Conceptual Amendment 1
to Amendment 1 on page 1, line 10, to delete "9" after the word
line, and insert "10." There being no objection, Conceptual
Amendment 1 to Amendment 1 was adopted.
2:32:24 PM
REPRESENTATIVE SADDLER moved to adopt Conceptual Amendment 2 to
Amendment 1, that any reference to "consumption of drugs or
indulgence in drugs" to substitute language along the lines of
"or as a result of consumption of any substance, a member is
unable to properly perform the member's duty."
CHAIR TUCK objected. He pointed out that the reason "drug" was
included in some of these situations is that the department does
not want the person to be under any influence, no matter if they
were able to perform their duties, or not perform their duties.
He said that he does not want to make it that every time there
is a drug reference, the committee is conditionalizing the
reference. He commented that the committee needs to take these
one by one because there is a reason there is one form of
language versus the other form of language.
CHAIR TUCK referred to Sec. 16, [AS 26.05.785(b), page 10, lines
14-15], which read as follows:
(b) A member of the militia who unlawfully drinks
an alcoholic beverage with a prisoner may be punished
by up to one year of confinement ...
CHAIR TUCK explained that Amendment 1 would add "or unlawfully
uses a drug with a prisoner" after the words "alcoholic
beverage." He commented that the use of drug is specific, it is
unlawfully, but there may be conditions where a service member
can lawfully "use it."
2:35:54 PM
CAPTAIN CIRCLE responded that adding "or unlawfully uses a drug
with a prisoner" is correct as there may be instances where a
member of the militia may be able to lawfully use a drug in that
situation. He explained that qualifier would address those
instances.
CHAIR TUCK asked whether the committee had problems or
suggestions for lines 1-2 of Amendment 1.
2:37:07 PM
REPRESENTATIVE PARISH referred to the language that a service
member can be punished for up to one year for the unlawful use
of a drug with a prisoner, and he asked whether that is in
addition to other penalties which may be prescribed by law.
MR. DOEHL answered that due to double jeopardy issues, this
would be either a criminal prosecution militarily or in civilian
court, it is not that one or the other would prosecute in that
case. This particular language arises here because when a
prisoner is in a custodial relationship, all drugs they are
taking must be approved through a certain medical process, not
simply illicit drugs.
2:38:21 PM
REPRESENTATIVE PARISH asked at which entity's discretion it
would be prosecuted: under a court martial or in civilian
court.
MR. DOEHL noted that Representative LeDoux is the author of the
original House Bill 126, Code of Military Justice Appeals
[passed in the Twenty-Ninth Alaska State Legislature]. He
advised that civilian courts have the first right of refusal.
2:38:53 PM
REPRESENTATIVE REINBOLD commented that she has a problem with
the word "drug" as it too broad and she has a problem with
"prisoner," and asked, "can't this be individually as well, or
does it have to be with the prisoner?" She said, "I did do a
friendly conceptual amendment on line 2, 5, and 15, to delete 'a
drug' and put in an 'illicit or controlled substance' like 20
minutes ago." She said she is convinced her friendly amendments
are important, because "'a drug' is too broad."
CHAIR TUCK advised Representative Reinbold said that he heard
her bring up a suggestion, but he did not hear a formal
movement.
MR. DOEHL advised Representative Reinbold that the department
thanks her for drawing attention to this important issue a week
ago in order to have this dialogue. In terms of the discussion
of "uses with a prisoner," he explained that that is a separate
type of offense rather than performing a duty impaired. This is
with regard to any unlawful use of a drug with a prisoner
regardless of whether a service member is impaired. At that
point, it is actionable on its face because it is undermining
good order and discipline. That sort of relationship between a
prisoner and the person in charge of keeping the prisoner a
prisoner is unacceptable, which is why it is a separate
provision than those in terms of the duty issues. He related
that he understands the concern about how to define drug or
define the illicit or controlled substance, and the concern of
the department is that there are substances that can be used for
mild-altering purposes that may not be on a schedule as a banned
or controlled substance.
[The motion to adopt Conceptual Amendment 2 to Amendment 1 was
treated as withdrawn.]
REPRESENTATIVE REINBOLD commented that to her an illicit drug is
an illicit drug and possibly the committee needs a technical
definition, it is a mind-altering substance.
2:41:20 PM
REPRESENTATIVE REINBOLD moved to adopt Conceptual Amendment 3 to
Amendment 1, and referred to Amendment 1, lines 2, 5, 15, "in
the very left column," to delete the phrase "a drug" and insert
"with an illicit or controlled substance."
REPRESENTATIVE SPOHNHOLZ objected.
CHAIR TUCK restated Representative Reinbold's Conceptual
Amendment 3 to Amendment 1, and advised that on Amendment 1,
page 1, lines 2, 5, 15, any reference to the word "drug" is
replaced with the phrase "illicit substance or controlled
substance."
2:42:34 PM
REPRESENTATIVE SPOHNHOLZ requested the specific legal definition
of the term "illicit," and asked whether the committee could
simply use the dictionary or ask Legislative Legal and Research
Services.
MR. DOEHL responded that he googled the term "illicit" and noted
that it means, "forbidden by law, rules, or regulation," and he
related that he does not have the Alaska Statues in front of him
to determine whether "illicit" is more specifically defined.
CHAIR TUCK surmised that within Conceptual Amendment 3, there is
"illicit substance or controlled substance" that pretty much
covers all drugs.
MR. DOEHL responded that "controlled" would be those drugs that
are controlled, such as the scheduled narcotics; and "illicit"
is forbidden by law, rules, or regulation. Sudafed is not
forbidden by law, rules, or regulation on its face, but use of
it in "a duty-impairing way" would be.
CHAIR TUCK asked Representative Reinbold whether her intention
is to exclude drugs such as Sudafed.
REPRESENTATIVE REINBOLD advised that her intention is to not
make it so broad that it includes everything, and she needs to
see the definition.
2:44:42 PM
The committee took an at-ease from 2:44 p.m. to 2:47 p.m.
2:47:42 PM
CHAIR TUCK advised that before the committee is Conceptual
Amendment 3 to Amendment 1, and there may be other issues to
fix.
2:47:58 PM
REPRESENTATIVE SPOHNHOLZ removed her objection to the motion to
adopt Conceptual Amendment 3 to Amendment 1.
2:48:10 PM
REPRESENTATIVE REINBOLD withdrew her motion to adopt Conceptual
Amendment 3 to Amendment 1 to address the concerns of the
committee.
CHAIR TUCK announced his intent that the committee members
review Amendment 1 [as amended], in order to speak to all of the
problems they perceive, and any other additional language in
going through Amendment 1 that may be in the original bill, with
the intent to properly draft Amendment 1.
2:48:37 PM
REPRESENTATIVE LEDOUX referred to [Sec. 21. AS 26.05.860, page
12, lines 1-7], which read as follows:
Drunkennes and other incapacitating offenses
[DRUNK ON DUTY]. A member of the militia, other than
a sentinel or lookout, who (1) is found under the
influence of alcohol while on duty, or (2) as a result
of indulgence in any alcoholic beverage or drug, is
unable to properly perform the member's duty may be
punished up to one year of confinement ...
REPRESENTATIVE LEDOUX commented that the whole problem is that
under (1), it is kind of strict liability as to whether a person
is under the influence of something; whereas, under (2) the
person must be impaired. She said that she agrees with the
department that if someone is impaired, even if it is Sudafed,
they should not be on duty. Except, she pointed out, if it is
strict liability, it makes sense to say, "alcohol, or probably
not illicit, but I mean something that gets the idea that its an
illegal substance that you want strict liability for if you are
on duty." She added that another glitch to throw into this
discussion is how the committee prefers to deal with marijuana,
which is illegal under federal law and legal under state law and
this is something the committee does need to consider.
MR. DOEHL referred to HB 307, page 12, Sec. 26.05.860, and
pointed out that it connotates two different ways someone other
than a sentinel could be in violation. One is for influence of
alcohol, and he opined that a drug in that case would mirror the
illicit or controlled substance as Representative Reinbold
offered. For instance, if someone has a random urinalysis while
on duty, there is a list of those controlled substances that are
not allowed. The department's intent for the random urinalysis
example is that there is a defined list of substances they
cannot take, and that "or" is "or this other condition" which is
where whatever substance had been taken, impaired the person's
ability to perform their duties. Therefore, it would be apropos
in that case if the committee does not want to use "drug" to
perhaps use "mind-altering substance or impairing substance" or
something to that effect to capture something broader than
simply the controlled drugs.
2:51:38 PM
CHAIR TUCK referred Representative Reinbold to HB 307, page 12,
line 4, which read as follows:
... any alcoholic beverage or drug
CHAIR TUCK explained that that means "illegal or not," and asked
whether she agrees with leaving "drug" in that line, or would
she like to replace it with a different terminology.
REPRESENTATIVE REINBOLD answered that her recommendation is
"illicit or controlled substance," because "drug" is broad and
that is her concern.
CHAIR TUCK explained that he was not referring to Amendment 1,
he was referring to page 12, line 4, of the bill. Amendment 1
was attempting to add "alcohol or drug" in line 3, and he opined
that it does need to be spelled out because the discussion is
not about illegal drugs, the discussion is about illicit or
controlled substances. He advised that Representative
Reinbold's Conceptual Amendment 3 to Amendment 1 made sense
"right there." He clarified that when looking at line 4 whether
after "beverage or drug" would encompass those drugs that are
legally over the counter and can be taken but happens to impair
a person's ability to perform their duties. He asked whether
"that is good enough terminology to encompass all of that for
you."
REPRESENTATIVE REINBOLD responded that she has to put a bit more
thought into the question because that was part of her
amendment.
2:53:25 PM
CHAIR TUCK asked Representative Saddler the same question
because there were concerns about where "drug" was used in "some
of this stuff."
REPRESENTATIVE SADDLER responded that the committee had not
begun the process of going down each paired line of Amendment 1
to determine whether the application of the operative words to
each individual circumstance is appropriate. He opined that the
committee had generally agreed to the first pair on lines 1-2,
and then the committee was subsumed by the proposal for an
omnibus amendment to change "drug". He commented that he does
not feel comfortable doing this until speaking with the
Legislative Legal and Research Services drafter, so he would
recuse himself from the discussion.
CHAIR TUCK clarified that this is not part of the amendment,
this is simply [page 12], line 4, "as we were looking at this,
and clarifying what we meant with line 3, adding 'drug' in there
but now, maybe changing that to 'illicit or controlled
substance.'"
REPRESENTATIVE SADDLER commented that if drug is conditioned by
"is unable to properly perform member's duty, you can call it
anything you want to if that is the test and that is the
standard." He said he would support "illicit" or "drug" because
either word conditioned by "is unable to properly perform the
member's duty" makes either acceptable.
CHAIR TUCK reiterated that it is the chair's wish for the
committee to set Amendment 1 [as amended] aside, and each member
will work on it to get it right, and currently the committee is
going through everything generally.
2:54:56 PM
REPRESENTATIVE PARISH opined that the adjustments contemplated
on page 12, line 3-4, are sensible. Although, he commented, the
committee may want to look at page 12, lines 12-13, and he
paraphrased as follows: "A sentinel or lookout who is found
under the influence of alcohol or sleeping on the sentinel's or
lookout's post" in the same light as Sec. 26.05.860 [page 12,
lines 9-10] and capture the nuance of, "or a controlled
substance or other drug which would tend to impair them in the
performance of their duties." He suggested trying to tie
together the two critical clauses brought to the committee's
attention by Mr. Doehl, and pointed to the problem of people
using illicit substances and also those using perfect legal
substances which could tend to impair them in the performance of
their duties without the knowledge of their medical officer, he
said. Generally, he advised, a medical officer would give them
a "not fit for duty" chit and let them tend to their health.
Under extreme conditions, such as during a natural disaster, he
opined that the courts would tend to take that into account if
someone sprained an ankle and wanted to take an Advil and
continue working.
2:56:52 PM
REPRESENTATIVE REINBOLD commented that someone could have a
reaction to a drug that impaired their ability, and she was
unsure whether that was included in the legislation which is why
she is sensitive to the "illegal or illicit" part of this and
"drug" is too broad. She referred to "Sec. 26.05.870, Wrongful
use of possession," and said she was glad "that is down here
lower on line 12, which is important."
2:58:08 PM
CHAIR TUCK advised that Amendment 1, as amended, and HB 307
would be held over. [The committee treated Representative
Saddler's Conceptual Amendment 2 to Amendment 1 as held over.]
2:58:24 PM
REPRESENTATIVE RAUSCHER asked whether a section deals with
someone giving a prisoner drugs.
CHAIR TUCK answered that it would be the section the committee
previously discussed regarding someone guarding a prisoner ...
REPRESENTATIVE RAUSCHER interrupted and said that giving a
prisoner drugs and not doing drugs with a prisoner is not
addressed here.
MR. DOEHL explained that "doing drugs with the prisoner" and
giving drugs to a prisoner is addressed in HB 307 in terms of
standing orders.
REPRESENTATIVE RAUSCHER asked why there is a need for this
paragraph if there is a paragraph covering a person while on
duty "a couple of paragraphs later." He reiterated his question
and asked why the need for this paragraph if a person cannot
give the drug to a prisoner in another section, and then the
earlier paragraph stating, "you can't do drugs while you are on
duty."
MR. DOEHL answered that the short answer is that it is a
different count of a higher count due to the negative effects on
good order and discipline.
CHAIR TUCK added that it is a higher violation under that
circumstance.
[HB 307 was held over.]