Legislature(2015 - 2016)CAPITOL 120
04/07/2015 01:30 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB154 | |
| HB106 | |
| SB30 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 154 | TELECONFERENCED | |
| += | HB 106 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 147 | TELECONFERENCED | |
| += | SB 30 | TELECONFERENCED | |
SB 30-MARIJUANA REG;CONT. SUBST;CRIMES;DEFENSES
2:13:50 PM
CHAIR LEDOUX announced that the final order of business would be
Senate CS FOR SENATE BILL NO. 30(FIN), "An Act relating to
controlled substances; relating to marijuana; relating to crimes
and offenses related to marijuana and the use of marijuana;
relating to open marijuana containers; relating to established
villages and local options; relating to delinquent minors;
making conforming amendments; and providing for an effective
date."
CHAIR LEDOUX stated that public testimony remained open from the
last meeting.
2:15:01 PM
MEGAN WEBB, Assistant Public Defender, Appellate Unit, Public
Defender Agency, Department of Administration, [said she was
available for questions.]
REPRESENTATIVE GRUENBERG asked whether the Public Defender
Agency has any problems or comments on the bill.
MS. WEBB responded that the agency itself does not take a
position on whether the committee should proceed with Version Q
or Version T, as it is a policy decision for the committee. She
said she echoes statements from Cynthia Franklin during the
4/6/15 committee meeting in terms of the importance of clarity
for both the public and law enforcement in focusing all of the
marijuana provisions in one area to reflect the manner Title 4
has treated alcohol. She suggested that the primary focus is
ensuring that not only what is passed is consistent with the
initiative, but also provides the most clarity.
2:16:26 PM
REPRESENTATIVE GRUENBERG surmised that it should be consistent
with the initiative and also consistent with the alcohol
provisions.
MS. WEBB replied "Yes," in terms of pulling marijuana out of the
controlled substance and bringing it into its own regulatory
scheme, such as that proposed by Ms. Franklin and discussed in
previous testimony.
REPRESENTATIVE GRUENBERG gathered that she supports marijuana
not being in AS 11.17, which is the Senate Judiciary Standing
Committee theory rather than the Senate Finance Committee
theory.
MS. WEBB reiterated that it is a policy consideration for the
committee as to whether it wants to keep marijuana as a
controlled substance or not. She opined that for clarity sake
the scheme suggested by the Senate Judiciary Standing Committee
certainly would mimic the regulatory scheme created in Title 4,
but she is aware there were policy considerations in Senate
Finance Committee as to why they wanted to keep it in the
controlled substance under Title 11.
REPRESENTATIVE GRUENBERG questioned whether there were any
provisions of either version that she liked, did not like, or
recommends the committee avoid.
2:18:37 PM
MS. WEBB referred the committee to Version Q, page 19, which
addresses proposed bail conditions if someone is charged with
misconduct involving marijuana.
CHAIR LEDOUX questioned whether she was talking about the CS
which would basically be the Senate Judiciary Standing Committee
version.
MS. WEBB answered in the affirmative.
2:19:21 PM
MS. WEBB pointed to [Version Q, Sec. 27, AS 12.30.016(g)(3)]],
page 19, lines 14-15 and lines 27-28, which read:
(g) In a prosecution charging a violation of AS
18.38.200 or 17.38.210, a judicial officer may order
the person to ...
(3) provide a sample for a urinalysis or
blood test when requested by a law
enforcement officer;
2:19:54 PM
MS. WEBB explained that both the U.S. Supreme Court and the
Alaska Appellate Courts have determined that an individual has a
right to privacy with respect to blood tests and urinalysis.
She noted that absent exigent circumstances would normally
require a law enforcement officer to obtain a search warrant
before they could require an individual to provide a blood or
urine test. She explained that this provision would allow an
officer, without a search warrant or probable cause, to simply
ask someone who was released on bail to provide such a sample.
She expressed concern that it would violate the person's
constitutional protections under both the federal and state
constitutions.
CHAIR LEDOUX questioned whether currently a judge can require,
as a condition of bail, that a person provide the urinalysis.
MS. WEBB advised that it is not happening now and that this
provision was added for bail conditions for marijuana. She
noted it is a condition that appears in probation under the
statutory provision for probation terms, but probation having
occurred after conviction and during sentencing allows for a
different constitutional analysis. Here, she explained, because
it is only a bail condition, at that point the person is
presumed not guilty of the charge and, therefore, has a fuller
constitutional protection in place. She noted that the
provision does not currently exist in the general bail
provisions and thus is not something that could currently
happen.
2:22:29 PM
REPRESENTATIVE GRUENBERG requested a written report supporting
her position that this may be unconstitutional which provides
her suggested changes, together with points and authorities, but
not a legal research paper.
MS. WEBB said she would pass that request on to Quinlan Steiner,
Director, Public Defender Agency, and with his approval will
forward a report.
2:23:42 PM
REPRESENTATIVE GRUENBERG asked if there is another area she
would like to point out.
MS. WEBB responded that Tracey Wollenberg, Deputy Public
Defender of the Appellate Division, who in in the past has
pointed out that with respect to the misconduct involving
marijuana in the third degree that the committee might consider
other exceptions on Version Q, page 32 ...
2:24:35 PM
REPRESENTATIVE CLAMAN interjected that he had a follow-up
question and asked the committee to turn to [Sec. 27], AS
12.30.016(g), page [19, lines 21-26], which read:
(2) submit to a search without a warrant of the
person, the person's personal property, the person's
residence, or any vehicle or other property over which
the person has control, for the presence of marijuana,
marijuana products, or marijuana accessories by a
peace officer who has reasonable suspicion that the
person is violating the terms of the person's release
by possessing marijuana, marijuana products, or
marijuana accessories;
REPRESENTATIVE CLAMAN questioned that if the committee is trying
to treat alcohol and marijuana the same, why would marijuana be
treated differently for bail purposes than the state is
currently treating alcohol.
MS. WEBB answered that given the constitutional protection,
particularly with blood tests, the U.S. Supreme Court and the
Alaska Supreme Court has recognized what an invasion that is and
that there is a potential constitutional claim that could be
made with respect to the provision as it appears currently under
AS 12.30.016(b)(4). In that regard, she explained, the same
constitutional issue that exists under the new proposal would,
under the prior ...
2:27:15 PM
CHAIR LEDOUX asked how long AS 12.30.016(b) has been in
existence, and how many constitutional challenges have there
been since it was enacted.
MS. WEBB responded that she does not know how long AS
12.20.016(b) has been in existence, but does know the number of
appeals that arise with respect to bail conditions are fairly
rare. She explained the reason being, in part, due to the way
appeals come up as often times it does not make it to the
appellate review level due to the nature of the proceedings.
2:27:51 PM
MS. WEBB referred to Version Q, Sec. 52, AS 17.38.220(b)], page
32, lines 27-31, which read:
(b) A person under 21 years of age does not
violate (a)(2) of this section if the person enters
and remains on premises registered under this chapter
at the request of a peace officer, if the peace
officer accompanies, supervises, or otherwise observes
the person's entry or remaining on premises, and the
purpose for the entry or remaining on premises is to
assist in the enforcement of this section.
MS. WEBB stated there is currently an exception under misconduct
in the third degree for a person under 21 years of age to enter
a licensed marijuana premises if it is at the request of a peace
officer. She advised that the committee may consider extending
that, particularly for individuals who are employed not by the
marijuana establishment but by some other business, who are
required to be on the premises for a short duration in the
course and scope of their employment. For example, she noted,
someone working for UPS or FedEx dropping off packages who
through their natural business requirements would need to be on
premises. She noted that under the proposed version that
individual, if under 21, would be violating the law. She
suggested adding an additional exception for someone who is
simply engaging in the course of another legitimate business who
is required to be on premises.
REPRESENTATIVE GRUENBERG asked that Ms. Webb prepare language
for the committee.
2:30:42 PM
CHAIR LEDOUX asked what the [alcohol statutes] say when a UPS
employee enters a bar and is under 21 years of age.
MS. WEBB advised that she is not familiar with Title 4
provisions and does not know the answer.
2:31:18 PM
REPRESENTATIVE GRUENBERG asked whether there is anything else
the committee should consider.
MS. WEBB offered that those are their primary concerns, and that
Ms. Wollenberg is available tomorrow and the rest of the week
should the committee like to hear additional testimony.
2:32:07 PM
REPRESENTATIVE GRUENBERG asked that in the event her agency or
[the Office of Special Prosecutions & Appeals] has any other
suggestions, to please contact Chair LeDoux's office.
[Conversation from the audience between Staci Schroeder,
Department of Law, or Nancy Meade, Alaska Court System, and
Chair LeDoux regarding answering whether identical language is
required that involves someone going into a bar under 21 years
of age, and what the law is with UPS employees.]
CHAIR LEDOUX opened public testimony.
2:33:03 PM
PETER MLYNARIK, Chief of Police, City of Soldotna, said he is
testifying on behalf of the Alaska Association of Chiefs of
Police. He advised it supports Version T, the categorization of
marijuana as a controlled substance, and the felony provisions.
He noted that without felony provisions and only misdemeanors,
there is nothing to stop the black market or people from growing
as many plants as they desire. He offered that he agrees the
sky is not falling, although Alaska is not at a level where
commercially grown marijuana is at any big degree other than the
black market. In speaking with Colorado law enforcement he
understands that they are basically flooded with marijuana and
it is hard to keep up with the different issues related to that
substance. He related that Colorado law enforcement recommends
making regulations tighter to begin with and then loosening them
up later because it is harder to go the other direction. He
remarked that the big issue is that marijuana is regulated like
alcohol, yet Alaska still has tremendous problems with alcohol
abuse and its correlation with crimes.
2:36:24 PM
CHAIR LEDOUX advised that she understands his position with
respect to the felonies and black market, and while she does not
necessarily agree with him she understands where he is coming
from. She expressed that she does not understand why, from a
law enforcement point of view, Chief Mlynarik would think that
keeping marijuana as a controlled substance would be better than
the Senate Judiciary Standing Committee version.
CHIEF MLYNARIK responded that it is important to keep marijuana
under the controlled substance because if marijuana is released
and there are problems down the road, it would be harder to put
marijuana back into that category. He opined there is a lot of
unknown about marijuana, including concentrates. He highlighted
a report from The Rocky Mountain High Intensity Drug Trafficking
Area, and stated Alaska can only look to the states where
marijuana is legal and review their issues.
2:38:09 PM
JASON HARDER advised that Copper Center is an area in an
unorganized borough that will be opted out with no recourse to
opt back in. He questioned how that provision can be in the
bill without ending up in court since they are citizens of the
State of Alaska. He offered that Glennallen, Copper Center, and
Tok are not cities and do not have boundaries, and have never
had a local election as there is no way to do that. He stated
he was under the impression that Copper Center was opting in
within the initiative. He offered that Senator Lyman Hoffman
submitted the subject amendment, and Mr. Harder understands his
worries regarding the villages not having police and troopers,
but they have time to opt out before the commercial industry
starts. He said that the Glennallen area has troopers and does
not have the problems villages have with alcohol, and noted that
alcohol is a problem everywhere in the state. He related that
[alcohol and marijuana] need to be separated even though the
state will try to regulate them somewhat the same. He explained
that if Copper Center is opted out but eventually has a
mechanism to opt in, it would put them behind the rest of the
state as far as making money and competing in the commercial
industry. He highlighted that rural Alaska is losing jobs due
to the economy and that marijuana will provide a lot of jobs
which it desperately needs. He pointed out that the House
Judiciary Standing Committee appears to have the desire to
implement the initiative in a manner that will not end up in
court and cost the state money.
2:40:57 PM
REPRESENTATIVE GRUENBERG said he is concerned about the issues
Mr. Harder raised and the problems of how this will operate in
unorganized borough. He asked if anyone was available that
could answer his questions.
2:41:25 PM
CHAIR LEDOUX advised that she was not sure there is today but
someone could be available at a future time.
REPRESENTATIVE GRUENBERG requested the committee staff ascertain
that prior to the above testimony, that Mr. Harder and anyone
else involved be notified.
2:42:04 PM
ROSS MULLINS, said he 100 percent endorses [Mr. Harder's
testimony] regarding unorganized boroughs. He referred to a
tradition of roadhouses and other types of establishments on the
road system in Alaska and stated that these types of
enterprises, who do serve liquor, would be unable to serve
marijuana due to automatically being opted out. He said it
presents legal issues that would not be conducive to obtaining a
good result. He then stated he would comment on the control
board issue dealt with during the 4/6/15, HB 42 hearing with
regard to a federal position on that board ...
CHAIR LEDOUX interjected that the testimony today is regarding
CSSB 30, and that the Marijuana Control Board bill will be
before the committee again.
2:43:49 PM
MR. MULLINS referred to CSSB 30 with regard to right of privacy
and taking blood or urine and described the actions as invasive
procedures that would require some type of warrant or court
authorization so that a law enforcement officer could not "stab"
anyone in the arm or force a urine test. He opined it is
different from a blow test an officer can request from a DUI
suspect in that there is a right to refusal, which can present a
certain type of guilty inference from the refusal. The fact
that law enforcement would be invading a person's body would be
conditions for a lawsuit. Additionally, he related, with
marijuana, as opposed to alcohol, there are metabolites that
linger for up to 30 days in a person's body even though they may
not have any psychoactive effects, and it could put the person
in a tenuous situation legally. He commented that he would like
marijuana removed from the controlled substance category. He
opined that the intent of the initiative is to legalize it
although it is a de facto removal from controlled substance to a
misdemeanor category.
2:46:17 PM
CHAIR LEDOUX requested that Mr. Mullins start wrapping up as
public testimony is limited to five minutes per person due to
the number of people waiting to testify.
2:46:20 PM
MR. MULLLINS offered that the main emphasis for him is the
unorganized borough and hopes the issue is resolved. He stated
that if Cordova is in an unorganized borough there would be a
lot of push back from the area. He said he favors the Senate
Judiciary Standing Committee version and that Senator Hoffman's
concerns regarding "opt in/opt out, wet/dry" could be treated
like alcohol where a village has an option to opt out.
2:48:06 PM
LIEF ABEL stated he supports almost all aspects of the Senate
Judiciary Standing Committee's version of SB 30 in removing
marijuana from controlled substances as it is the right thing to
do. He offered that through personal experience and research
that marijuana should not be classified as a schedule one
narcotic which is in line with the intent of the initiative. He
related that he appreciates that the Senate Judiciary Standing
Committee took the initiative and put it into law in a manner
that mirrors alcohol. He further related that it is an
infringement into the privacy of the people of the state to tell
them how they are going to extract their medicine at home and
how hash oil is extracted as it should be left alone and not be
determined in SB 30.
2:50:41 PM
DEBRA KIRK said she is a member of the school board and
addressed the findings found in [Version T], page 2, lines 24-
25, which read:
(2) several hundred adults and children are
admitted into treatment each year in Alaska for
marijuana use, with nearly 46 percent being children
under 20 years of age;
MS. KIRK pointed out that the implications for Alaska's
education system are huge and that Alaska must raise the bar for
education. She offered that a lot of education funding is tied
to being able to teach kids at a higher level than they've been
required to learn previously. She opined that with the
legalization of marijuana the number of children using it will
go up. She referred to [Version T, Sec. 2], page 3, lines 15-
16, which read:
(7) about 40 percent of the adults arrested in
this state who commit violent offenses have marijuana
in their system at the time of arrest.
2:52:34 PM
MS. KIRK stated that crimes will go up because if 40 percent of
adults are arrested with marijuana in their system there is a
tangential cause and effect. In that regard, she noted, money
is spent that Alaska can't put into education, health and social
services, or anything else because Alaska is force to deal with
the complications of a legalized substance. She offered that
keeping it as a controlled substance would increase the
perception among children that there is a risk to using this
drug. She related that her biggest focus is what the kids are
thinking while watching what adults are doing and noted that
Alaska desperately needs to educate its children to not use the
substance as it affects their IQ. With regard to the issue of
blood tests, she pointed out that the legislature is charged
with protecting the rest of Alaskans who did not vote for
legalization of marijuana. She expressed that they need
protection and to know when driving their kids to soccer games
that the roadways are safe. She expressed that the people who
want the substance legalized should be willing to submit to a
blood test and be honest and allow their blood and urine taken
if driving. She said she is turning the tables and asking where
is her protection of freedom and would definitely like to see
something along those lines. She remarked that she does not
advocate for someone under the age of 21 being allowed in a
marijuana establishment. She referred to hash oil and marijuana
products and stated that individuals should be allowed to read
the THC content on the package as the state requires with
alcohol.
2:55:57 PM
MIKE COONS referred to the question regarding [people under the
age of 21 allowed to enter a marijuana establishment] such as a
UPS driver. He related that a marijuana establishment is the
same as a UPS driver going into a bar to drop off a package, he
drops off a package, does not consuming any alcohol, and leaves.
As far as the two versions are concerned, the bills are letting
a genie out of a bottle that should never have been let out and
stated that he voted against the initiative. He noted that to
determine anything over an ounce is illegal as a misdemeanor,
how will the state get marijuana violations back to a felony if
serious problems arise. He recommended keeping it as [Version
T] and advised that he is a retired paramedic and has seen what
happens in automobile accidents. If someone is drinking and
driving they can still get a blood alcohol test. He opined that
a needle in someone's arm to get a little bit blood is a less
invasive procedure than a 2,000-3,000 pound vehicle crashing
into his wife because they are stoned out of their mind on
marijuana. He pointed out that every person he asked "would you
still go along with strengthening laws for drinking, smoking,
and driving" said they drive better stoned. He expressed that
is not acceptable and if someone hits him that has been drinking
and driving, "the cops better get him before I do."
2:59:23 PM
BRUCE SCHULTE, Coalition for Responsible Cannabis Legislation,
mentioned that he forwarded a letter to the House Judiciary
Standing Committee today and that he would speak to the two
versions. Although, he noted, he may have misidentified them in
his letter as Version F and Version T. He referred to the
Senate Judiciary Standing Committee version and the Senate
Finance Committee version and pointed out that the "first"
version was a joint effort between the Senate Judiciary Standing
Committee and House Judiciary Standing Committee which, he
described, was a productive effort that led to very solid
legislation. The fundamental difference is that [Version T]
continues to treat marijuana as a controlled substance wherein
alcohol is not. He said it criminalizes the products and
substances rather than the behavior surrounding them. He
explained that the intent of the initiative was to legalize
marijuana and if the committee continues to keep it as a
controlled substance that is contrary to the initiative. That
being said, he offered, that he understands the members of the
Senate Finance Committee have good reasons for some of the
things they were trying to achieve, such as sideboards to
establish appropriate sanctions for conduct outside of the realm
of a normal regulated business. He opined that it is not
necessary to keep marijuana as a controlled substance to achieve
that. It has become an ingrained cultural imperative that
marijuana is in the controlled substance yet there has been no
evidence to suggest it ever should have been there in the first
place. A witness testified that marijuana should be in the
controlled substance just in case and did not offer any
specifics as to where it really needed to be. He suggested that
possibly it would be appropriate to go back and look at that
earlier version, consider what activities were not addressed
adequately to determine whether that bill could be developed
further to achieve results. He said that version of the bill
was a very good effort and got everyone where they needed to be.
3:02:40 PM
CHAIR LEDOUX announced CSSB 30 will be held in committee.
3:02:49 PM