Legislature(2015 - 2016)BUTROVICH 205
02/13/2015 01:30 PM Senate JUDICIARY
Note: the audio ![]()
and video ![]()
recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.
| Audio | Topic |
|---|---|
| Start | |
| SB35 | |
| SB30 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 30 | TELECONFERENCED | |
| = | SB 35 | ||
SB 30-MARIJUANA REG;CONT. SUBST;CRIMES;DEFENSES
1:37:07 PM
CHAIR MCGUIRE reconvened the meeting and announced the
consideration of SB 30. [CSSB 30, labeled 29-LS0231\I, was
before the committee.]
1:37:35 PM
JAY BUTLER, Chief Medical Officer, Division of Public Health,
Department of Health and Social Services (DHSS), briefed the
members on medical marijuana. He explained that probably the
most common use by physicians is to treat neuropathic pain. It
is also used for persistent muscle spasms in diseases such as
multiple sclerosis (MS) and surveys suggest that 10-15 percent
of MS patients use medical marijuana for relief. Other studies
have provided evidence that medical marijuana reduces pain from
peripheral and post-traumatic neuropathy as well as HIV induced
neuropathy. Marijuana is also used to treat nausea from
chemotherapy, AIDS cachexia, glaucoma, Tourette syndrome, and
certain seizure disorders. FDA approved products that are
derived from Tetrahydrocannabinol (THC) include Dronabinol and
Nabilone. An oral spray that contains both THC and CannaBiDial,
which has been approved in the UK and a few EU countries, is on
the FDA fast-track list.
1:40:05 PM
CHAIR MCGUIRE offered her understanding that some of these
derivatives do not have hallucinogenic effects.
DR BUTLER replied the derivatives do not, but the oral spray
contains THC so it would have the same effect as THC.
CHAIR MCGUIRE asked him to differentiate the effects when he
describes different products.
DR BUTLER informed the committee that there are two types of
cannabinol receptors in the body. CB 1 receptors, which are
primarily in the central nervous system and peripheral nerves,
are most often associated with the psychogenic effects. The CB 2
receptors are in certain nerves and some immune cells.
He advised that the actual use of medical marijuana requires a
physician statement that the patient has one of the qualifying
medical conditions listed in AS 17.37, but not the specific
condition. The statute requires the patient to be under the care
of a physician in a "bonafide physician/patient relationship"
and it has provisions to accommodate caregivers.
The physician statement is submitted to the Bureau of Vital
Statistics within the Department of Health and Social Services
which maintains the medical marijuana registry and issues
certificates. The applicant must pay a $25 fee and submit a copy
of his/her driver's license and state ID card. The same type of
identification is required for any caregiver who is covered
under the certificate. The certification must be renewed every
year. Minors under age 18 may be listed on the registry but a
parental statement is required.
DR. BUTLER reported that 831 Alaskans are currently in the
medical marijuana registry, including 6 minors. The medical
marijuana statutes do not address how to obtain the marijuana
and there are no dispensaries in the state. Anecdotal evidence
indicates it is not difficult to obtain.
1:46:41 PM
SENATOR WIELECHOWSKI asked if a person has to reach a level of
intoxication to achieve relief for a medical condition.
DR. BUTLER replied intoxication is dependent on the individual
and their susceptibility and experience with the use of
marijuana products.
SENATOR COGHILL asked how many cards have been issued to people
under age 21.
DR. BUTLER replied he didn't have the number for 18, 19, and 20
year olds, but there are 6 certificates for patients under age
18.
SENATOR COGHILL advocated requiring parental consent to
administer medical marijuana to someone under age 21.
SENATOR WIELECHOWSKI asked if there is research on the impacts
of secondhand smoke from marijuana and the impacts on a fetus
from the use of marijuana.
DR. BUTLER replied exhaled marijuana smoke does contain
compounds recognized to be harmful, but the data are inadequate
to quantify the risk. With regard to the second question, he
confirmed that THC crosses the placenta and is excreted in
breast milk. He noted that the most recent pregnancy risk
assessment monitoring system (PRAM) survey in Alaska suggests
that about 7 percent of pregnant women report having smoked
marijuana during pregnancy. Some data suggests that smaller size
babies may be associated with marijuana exposure, but it's not
clear because a large proportion of marijuana smokers also smoke
tobacco.
1:51:19 PM
SENATOR WIELECHOWSKI asked if there is data on how long it would
take to be under the influence from secondhand smoke.
DR. BUTLER replied the concept of a secondhand high is not well
supported in the medical literature.
SENATOR COSTELLO asked if there is talk within DHSS of adding a
question about the use of marijuana to the Behavioral Risk
Factor Survey.
DR. BUTLER replied that question is on the Youth Risk Behavior
Survey and he believes it is on the Behavioral Risk Factor
Surveillance System. He noted that more high school students
report having smoked marijuana in the past 30 days than tobacco.
SENATOR MICCICHE questioned the need for a medical marijuana
separate statute once marijuana is regulated like alcohol.
DR. BUTLER opined that it will probably take several years to
know if there will be a continuing need for a registry once
people can get medical marijuana over the counter. But it may be
useful to have a registry for people under age 21 who need
medical marijuana and for those who are hesitant to use it
without some documentation of the need.
SENATOR MICCICHE asked if other states cover medical marijuana
in an insurance plan.
DR. BUTLER offered to follow up, but he suspects the answer is
no.
1:56:41 PM
TRACEY WOLLENBERG, Deputy Public Defender, Appellate Division,
Alaska Public Defender Agency, described version I as more
consistent with the voter intent in Ballot Measure 2, but noted
that some inconsistencies persist.
She focused on Section 50 to highlight inconsistencies with Sec.
17.38.020 of the initiative, which the bill repeals. She argued
that defining marijuana in terms of aggregate weight is
inconsistent with the initiative, which defines it in terms of
the number of plants, not the weight. The definition in the
initiative gives clear guidance to the public that they can't
possess more than six plants, but they may not know or be able
to control the aggregate weight. Allowing the marijuana grown
from those plants on the premises where the plants were grown is
consistent with the idea of making marijuana a legal substance
that is treated like alcohol.
2:01:05 PM
SENATOR COGHILL questioned whether the language on page 29, line
15, was consistent with the initiative or if it needed to be
rewritten.
MS. WOLLENBERG replied that language is consistent with the
initiative, but she would suggest adding language about a
certain amount of usable marijuana and eliminating the aggregate
weight provision. She cautioned that ascribing some weight apart
from the plants will be tricky because the initiative allows
possession of all the marijuana produced from six plants.
SENATOR COGHILL said the goal was to maintain consistency
between the initiative and the law defined by the court in
Ravin.
MS. WOLLENBERG suggested it might be worthwhile to find out if a
range of weights can be ascribed to a plant in order to
determine whether four ounces is a realistic limit. She noted
that the court of appeals in Alaska has determined that four
ounces in one's home is presumed constitutional under Ravin.
SENATOR MICCICHE asked about the significance of flowering
versus non-flowering plants.
MS. WOLLENBERG offered her understanding that flowering plants
are ready for harvest.
CHAIR MCGUIRE asked Ms. Yeung if she would answer the question.
2:05:26 PM
RACHELLE YEUNG, Legislative Analyst, Marijuana Policy Project,
agreed with the explanation.
SENATOR MICCICHE asked Ms. Yeung to discuss weight variation of
marijuana plants.
MS. YEUNG advised that there can be a wide variation in the
weight of marijuana plants so it would be difficult to ascribe a
standard weight. Some may be the size of a small house plant
while others may be taller than a person. She concurred with Ms.
Wollenberg's assessment that having an aggregate weight
provision would be more confusing to the user than restricting
the number of plants.
2:06:45 PM
SENATOR WIELECHOWSKI asked if she agrees that someone could
commit a seriously punishable felony simply because he/she is a
very good gardener.
MS. YEUNG replied that is why Ballot Measure 2 allows adults who
grow marijuana to possess all the product that is grown from
their plants.
SENATOR WIELECHOWSKI asked about the distinction between
possessing one ounce and four ounces.
MS. YEUNG explained that the distinction is that a person can
possess and use the marijuana from the plants he/she has grown
on their premises. The one ounce designation is for possession
outside that venue.
SENATOR COGHILL suggested deleting the aggregate weight
provision and returning to the initiative language regarding
number of plants.
SENATOR MICCICHE expressed concern with allowing four ounces. He
maintained that it cannot be assumed that the voters who
supported the initiative would also support possession of four
ounces of marijuana. He agreed with returning to one ounce.
MS. WOLLENBERG suggested one way to comport with voter intent is
to reinsert Sec. 17.38.020 from the initiative and exempt
anything made legal in that section from criminal penalties and
remove the aggregate weight provision in Sec. 17.38.260.
She pointed out that similar problems to those she described in
Sec. 17.38.200(a)(1) appear in Sec 17.38.200(a)(2), but (a)(2)
addresses manufacture and delivery. She noted that the delivery
provision in Sec. 17.38.210 is also inconsistent, but it is more
consistent than the higher offense in Sec. 17.38.200. She
reminded the members that the initiative allows a person to
possess marijuana with the intent to deliver, as long as they do
not deliver more than one ounce to a person.
SENATOR MICCICHE questioned the inconsistency between the
delivery provision in the initiative and the current laws
regulating alcohol. The initiative allows delivery to a home
whereas the point of sale for alcohol cannot be in a home.
MS. WOLLENBERG deferred to Ms. Yeung.
MS. YEUNG said it appears that the language in the initiative is
broad enough to allow delivery services but she couldn't say
that with certainty. She offered to do follow up research.
SENATOR WIELECHOWSKI pointed out another inconsistency between
alcohol regulation and the proposed regulation of marijuana. A
person can buy as much alcohol as he/she likes from a package
store whereas marijuana is limited to one ounce.
SENATOR COGHILL said it seems that .020 allows an adult to be in
the delivery business without a license, but he/she could only
carry up to one ounce or six plants at a time.
2:17:01 PM
MS. YEUNG clarified that it would have to be without
remuneration.
SENATOR COGHILL mused that a person might charge for the
delivery service but not the marijuana.
MS. YEUNG described that as a sneaky circumvention that law
enforcement would see through. She noted that those cases have
not been upheld in Colorado.
SENATOR MICCICHE asked her to spend more time evaluating that
point because he didn't believe that commercial delivery was the
intent of the initiative.
MS. YEUNG agreed.
MS. WOLLENBERG continued to comment on the bill. In Sec.
17.38.220, she recommended specifying the specific dollar amount
of the fine. As currently written, the reference to AS 12.55
will bring in the gamut of penalties specified in that statute
and potentially import a penalty disproportionate to the
conduct. If it denotes criminality, the person might be entitled
to counsel and the other rights attendant to a criminal case.
She then warned that Sec. 17.38.230 may be subject to a
challenge under Ravin to the extent that it criminalizes use by
an adult who is over 18 in his/her own home.
She said she understands that Sec. 17.38.270 will be removed,
but she wanted to note that is problematic because of the
disproportionate penalty that it imposes and the fact that
treatment can only be done under the tutelage of the Department
of Corrections (DOC). Sec. 17.38.290 may also impose a
disproportionate penalty because a person could potentially be
subject to forfeiture of their car for committing a violation.
MS. WOLLENBERG said that confidentiality of certain marijuana-
related conduct by those under age 18 came up during the
previous hearing and she would encourage the committee to make
those records confidential. She also suggested that the concern
that there is no exception for the use of medical marijuana
could be addressed by building an exception into the bail and
probation conditions in Section 26. A judge could then exempt
someone to provide medical marijuana for somebody who is on
probation or parole if they have a medical marijuana
certificate.
2:22:53 PM
SENATOR COGHILL asked if the conduct would still be a violation
and remain under juvenile jurisdiction but it would be
confidential.
MS. WOLLENBERG said no; AS 47.12.030 on page 80 specifically
exempts from juvenile jurisdiction most of the minor offenses
that were discussed on Wednesday. She opined that the committee
could keep marijuana-related violations by minors in juvenile
court and that would get the juvenile probation officers
involved and potentially invoke the right to counsel. The
committee could also write a statute to keep the records of the
violations confidential for minors adjudicated in adult court.
SENATOR WIELECHOWSKI asked if she has concerns about the
definition of public place and concerns about allowing the
police to order a blood and urine test.
MS. WOLLENBERG said she does have concern about the provision on
page 69 that allows the police to require a minor to submit to a
blood or urine test to determine the marijuana content in those
body fluids. Adults are treated differently because a search
warrant would be required. With regard to the definition, she
suggested looking at whether the definition of "public place" in
Title 11 could be amended to allow marijuana use in a place of
business that's a private function or party.
2:29:28 PM
CYNTHIA FRANKLIN, Director, Alcoholic Beverage Control Board,
Department of Commerce, Community and Economic Development
(DCCED), opened her comments on the bill focusing on Section 128
(page 74) relating to primacy. She read the definition of "local
government" in Sec. 17.38.900(4) and suggested that it be
amended to parallel the provision in Title 4 that allows a
village to create a perimeter and have an established village
for purposes of alcohol local option. That would allow the local
governing bodies that are able to hold alcohol elections to also
hold marijuana elections. Under the current definition, that
ability is limited to a municipality or home rule city. She
advocated for tracking the change to include established
villages through to other sections to avoid creating loopholes
in primacy.
SENATOR MICCICHE asked how the local option provision in Title 4
was created initially.
MS. FRANKLIN explained that Title 4 provides local options for
municipalities and a separate section of local options for
established villages. It provides guidance for creating a
perimeter and becoming an established village for the purpose of
holding local option elections. By contrast, AS 17.38.110
provides that a local government, which is defined as a
municipality, may choose a local option through an ordinance.
She again advocated for allowing established villages to hold
local option elections for marijuana.
SENATOR COGHILL said he had an amendment to address that point,
but he wasn't prepared to offer it yet.
MS. FRANKLIN said the next area of concern relates Sec.
17.38.200 and Sec. 17.38.220. She cautioned to make a clear
differentiation between illegal commercial activities versus
going outside the bounds of personal use so that someone can't
claim that the lower level of offense applies to their conduct.
MS. FRANKLIN told the committee that the provisions in SB 30 for
minor possessing or consuming marijuana come close to what the
Title 4 stakeholder workgroup worked towards for an appropriate
penalty for minors consuming alcohol. The recommendation was to
strip AS 04.16.050 of the current requirements, which moves
habitual conduct from a violation to a crime, back into the
violation category with a mandatory court appearance. The fine
would be $500 for any minor consuming, but the minor would
receive information on how to reduce the fine markedly by
proactively seeking treatment or education relating to alcohol.
SENATOR COGHILL asked if the workgroup discussed
confidentiality.
MS. FRANKLIN replied it was a major concern, but a problem with
full confidentiality on minor offenses is that it would require
a magistrate to hold an individual closed hearing for each
matter. The workgroup came up with a compromise procedure to
have the minor's name appear in CourtView while the case is open
and then disappear once the case is closed.
2:47:44 PM
SENATOR WIELECHOWSKI asked if that procedure would entitle the
minor to a public defender or if the court would issue an arrest
warrant if he/she didn't show up for court.
MS. FRANKLIN explained that the minor offense rules apply to
conduct that is designated with a fine that is not to exceed
$500. Arrest warrants for failure to appear are specifically
prohibited, but the court would enter a default judgment and it
would become a criminally delinquent fine that is collectible
from the PFD. The workgroup realized that was one way to bring
the matter to the attention of the parents.
SENATOR WIELECHOWSKI asked 1) if the minors qualify for a public
defender, 2) the number of cases, 3) how many are likely to go
to trial, and 4) if more resources would be needed.
MS. FRANKLIN explained that as a general rule no defense or
prosecution time is spent on minor offenses. The magistrate
makes a decision and imposes a fine. She noted that some of the
fines in Sec. 17.38 don't align with the minor offense procedure
rules.
2:55:06 PM
SENATOR WIELECHOWSKI asked if this will result in police
officers spending a lot of time sitting in court in order to
prosecute kids.
MS. FRANKLIN said she can't predict how many offenses will be
written up and how many individuals will ask for a trial. She
suspects there will be an initial spike but that it will drop
quickly thereafter.
SENATOR MICCICHE thanked Ms. Franklin for her work on Title 4
and told the committee that a primary reason he is sponsoring
the rewrite is to get more reasonable minor consuming
regulations. He asked how to dovetail the likely outcome of the
Title 4 rewrite with SB 30 that isn't existing law.
MS. FRANKLIN said she appreciates that SB 30 addresses the
conduct in the form of a violation without a lot of the
requirements that result in unintended consequences. She
suggested looking carefully at the rehabilitation section for
ways to proactively encourage rehabilitation and have a clear
intention about what happens if the youth doesn't adhere to an
imposed requirement in the treatment plan. The Title 4 rewrite
does away with the "get treatment or else" rubric and instead
offers a carrot to significantly reduce a $500 fine.
SENATOR MICCICHE told the members he'd share the proposed
language for AS 04.16.050.
SENATOR COGHILL advocated requiring parental consent or
participation for medical marijuana. He asked if that isn't what
happens in a licensed establishment when a young person is
accompanied by a parent.
MS. FRANKLIN said that's correct. She explained the different
types of licenses where minors can go on a licensed premises and
acknowledged that smoking marijuana doesn't accompany a meal the
way a glass of wine or a beer might. She noted that both
recreational marijuana states have avoided having places to
publicly consume marijuana. She said that might be addressed in
year two.
MS. FRANKLIN turned to medical marijuana noting that she
provided copies of the document that was approved by the ABC
Board yesterday entitled Preliminary Consideration of
Implementation of 17.38. She opined that Alaska is fortunate it
is starting from scratch because having the overlay of medical
marijuana dispensaries on the recreational market has caused
problems in Colorado. One is a gray market where people are
cultivating large quantities of marijuana in the name of being
patient caretakers. She stressed that the caretaker provision in
AS 17.37 has not been abused and she would prefer it not be
changed. She cautioned that creating a special category would
potentially result in more applications like it did in Colorado.
3:11:29 PM
SENATOR COSTELLO asked for a list of the membership of the Title
4 stakeholder workgroup.
MS. FRANKLIN agreed to provide the information.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 30 - Sectional Analysis.pdf |
SJUD 2/13/2015 1:30:00 PM |
SB 30 |
| CS SB30.pdf |
SJUD 2/13/2015 1:30:00 PM |
SB 30 |
| SB30 Suppporting Documents ACB Presentation.pdf |
SJUD 2/13/2015 1:30:00 PM |
SB 30 |
| SB30 testimony 12Feb- Hinterberger-Yeung.pdf |
SJUD 2/13/2015 1:30:00 PM |
SB 30 |
| SB 30- Supporting Document CRCL Overview and Recommendations Jan 28 2015.pdf |
SJUD 2/13/2015 1:30:00 PM |
SB 30 |
| SB 30- Supporting Document CRCL Feb 10 2015.pdf |
SJUD 2/13/2015 1:30:00 PM |
SB 30 |
| SB 30- Supporting Document Ballot Measure 2.pdf |
SJUD 2/13/2015 1:30:00 PM |
SB 30 |