Legislature(2013 - 2014)SENATE FINANCE 532
04/01/2014 09:00 AM Senate FINANCE
| Audio | Topic |
|---|---|
| Start | |
| SB28 | |
| SB66 | |
| SB178 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 28 | TELECONFERENCED | |
| + | SB 66 | TELECONFERENCED | |
| + | SB 178 | TELECONFERENCED | |
| + | HB 305 | TELECONFERENCED | |
| + | HB 297 | TELECONFERENCED | |
| + | TELECONFERENCED |
SENATE BILL NO. 66
"An Act relating to imitation controlled substances;
and providing for an effective date."
10:23:55 AM
SENATOR DENNIS EGAN, stated that the legislation made it
easier for law enforcement to crack down on drug dealers by
making illegal any substance represented by a controlled
substance. Currently a drug dealer could sell a felony
drugs during a sting operation, the officer could not make
a charge, because the substance did not contain a specific
ingredient on the list of imitation controlled substances
in statute. The current definition of imitation controlled
substances in AS 11.73.099 listed chemicals, a substance
must contain, in order for it to be illegal. He stated that
SB 66 changed the definition of an imitation controlled
substance to more generally make illegal that was made to
look like an already illegal drug. He stated that the most
recent version of the bill reduced the penalties for crimes
under the statute.
ALIDA BUS, STAFF, SENATOR DENNIS EGAN, stated that she had
nothing to add to the testimony.
10:26:16 AM
LIEUTENANT KRIS SELL, POLICE OFFICER, JUNEAU POLICE
DEPARTMENT, testified that the legislation was a request
from the Juneau Police Department. She stated that the
legislation was as written because of the police experience
in field operations in purchasing narcotics. She found that
there were some instances where drug dealers would sell
"sham narcotics" such as salt, sheet rock dust, or other
unidentified substances. She shared that there were some
states that identified the sale sham narcotics as a drug
charge. She examined Alaska's law, and noticed that there
were limitations by the list of very specific chemical
compounds that could be charged as selling imitation
controlled substances. Those chemicals were mostly
precursors or "cut" that was used for controlled
substances. She stressed that many of those chemicals were
expensive, and sometimes more difficult to find than an
average household products, so many drug dealers did not
use those chemicals when selling the sham drugs. She shared
that sometimes she had been required to make sham drugs
when there was a controlled delivery, because the police
operation did not want to run the risk of losing a large
amount of controlled substances. She stated that she could
make a very realistic version of the drug, meth, with flour
and a heavy coating of hair spray. She announced that many
known drug dealers were getting a pass on selling the fake
drugs to the customer, but the customer did not have the
option to complain to law enforcement, they would just use
a new dealer.
Senator Dunleavy wondered if the legislation was age-
specific. Lieutenant Sell replied that the draft version of
the committee substitute was age-specific.
Senator Dunleavy surmised that anyone over 19 could be
convicted of selling drugs. Lieutenant Sell responded that
the committee substitute from the Judiciary Committee did
not have an age requirement.
10:33:38 AM
AT EASE
10:34:28 AM
RECONVENED
Senator Dunleavy wondered if the age was contingent on
prosecution, because there was an age specified in statute.
Lieutenant Sell replied that age was referenced, but was a
higher penalty to expose a younger person to the
substances.
Senator Dunleavy wondered if the crime was different, if a
person buying the substance was only one year younger than
the person selling the substance Lieutenant Sell deferred
to the Department of Law (DOL).
Co-Chair Meyer queried how the substances were deemed
authentic controlled substances or an imitation. Lieutenant
Sell replied that there were presumptive field tests
conducted, before the substance was sent to the crime lab.
Co-Chair Meyer wondered how often people were prosecuted
under the existing statute. Lieutenant Sell replied that,
in her experience, no one had been prosecuted under the
existing statute.
Senator Dunleavy wondered how big of an issue this is in
Juneau. Lieutenant Sell replied that there were several
instances per year.
Senator Dunleavy wondered if the Alaska Civil Liberties
Union (ACLU) had expressed an opinion on the bill.
Lieutenant Sell replied that she did not know if the ACLU
had expressed an opinion the bill.
Senator Dunleavy asked what would happen to a child that
sells an imitation drug to a friend in middle school or
elementary school. Lieutenant Sell replied that there would
be an examination of whether the child understands the
implications of their actions. She shared that there were
some cases of children in middle school that brought
marijuana to school, but had not seen the imitation
controlled substances in schools yet.
Senator Olson felt that the legislation may be a focus on
"thought policing." He felt that there may be a person that
would not necessarily be guilty, but be more innocent than
presumed. Lieutenant replied that the intent of the bill is
for known drug dealers who sometimes sold sham substances.
She stressed that there was not an intent to determine the
thought, rather than the tried and true test of the
reasonable person. The two-prong approach would be the
appearance of the drug and a representation.
Senator Olson felt that there could be an issue of
objectivity of the officer over a person who was obviously
not guilty.
10:42:45 AM
TRACEY WOLLENBERG, PUBLIC DEFENDER, DEPARTMENT OF
ADMINISTRATION, ANCHORAGE (via teleconference), testified
in response to some concerns from some committee members.
She felt that the bill may capture conduct that was not
intended to capture, especially pertaining to individuals
who have an intent to deceive someone into thinking that
the substance was an imitation controlled substance. The
memo from legislative services (copy on file) discussed a
hypothetical situation from the Morrow Case: When someone,
without any intent to deceive, gives caffeine diet pills to
someone indicating that the pills were as effective for
weight loss as any prescription medicine. In the 1985 Court
of Appeals case, Morrow versus State, both parties agreed
that the statute would cover that hypothetical situation,
even though it may not be the hypothetical situation that
the drafters of the bill were intending to capture. She
stressed that the hypothetical situation was repeated from
the legislative memo. She stressed that the statute was
written to capture situations where the recipient might
reasonably believe that the substances was a controlled
substance, but the distributor had no intent for the
recipient to believe that it was a controlled substance.
One way to correct the over-breadth problem would be to
write an intent to deceive requirement or a requirement
that the person intentionally misrepresented that the
substance was a controlled substance. She felt this
addition would narrow the statute to conform to the concern
of law enforcement.
Senator Olson assumed that Ms. Wollenberg was not
supportive of the legislation. Ms. Wollenberg replied that
she has concerns with the bill as written.
Vice-Chair Fairclough wondered if Ms. Wollenberg had been
referencing a memo from Legal Services from February 6,
2014. Ms. Wollenberg replied in the affirmative.
Vice-Chair Fairclough looked at page 1, paragraph 2,
speaking to the grounds of vagueness and over breadth of
the state statute. She wondered if Ms. Wollenberg was
speaking to that paragraph. Ms. Wollenberg explained that
the Morrow versus State case was the only case on the
subject, and discussed the hypothetical situation in
paragraph 3. She share that there was a challenge to the
statute on vagueness and over breadth. That was resolved in
the case by saying that the scope of the statute did not
need fixing, because the facts of the case showed a clear
misrepresentation.
10:48:12 AM
Vice-Chair Fairclough looked at page 2 and the substantive
due process and equal protection. She stated that the bill
would eliminate the requirement that the imitation
controlled substance contain a pharmaceutical active
substance. A felony sentence might be challenged under the
circumstances as sufficiently unfair, arbitrary, or
disproportionate to the offence to constitute a violation
to a right to due process. Ms. Wollenberg responded that
under current statute, manufacturer delivery of an
imitation controlled substance was a Class C felony. A the
time that the legal memo was written those penalties had
not yet been addressed, so there was some concern that the
penalties for selling or manufacturing an imitation
controlled substances were, in some cases, more severe than
the corresponding penalties for distributing actual
controlled substances like marijuana.
Co-Chair Meyer CLOSED public testimony.
10:51:25 AM
ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES
SECTION-JUNEAU, CRIMINAL DIVISION, DEPARTMENT OF LAW,
responded to a question from Senator Dunleavy regarding
children. She stated that juveniles who would committing
the conduct would not be committing crimes, rather they
were possibly committing delinquent acts. She looked at the
age differential, and stated that the three-year age
difference was a common provision in law. She stressed that
it was against the law for an adult to sell imitation
substances under current law. She replied to a question
from Senator Olson about thought policing. When a person is
prosecuted for a crime, the state was the thought police,
because culpable mental state must be determined.
Co-Chair Meyer wondered if there were concerns regarding
whether legitimate substances could be made illegal under
the legislation. Ms. Carpeneti responded that the bill made
non-controlled substances illegal. She stressed that
current law made it a crime to take a substance that was
not a controlled substance by misrepresentation.
Co-Chair Meyer queried Ms. Carpeneti's view of the
legislation. Ms. Carpeneti responded that it made sense to
reduce the penalties for the crimes to make the penalties
for the conduct similar to drunk driving. She understood
the concern of law enforcement, but stressed that DOL did
not have any specific concerns with the bill.
Co-Chair Meyer wondered if the legislation would make it a
more serious crime than actual possession of a real
controlled substance. Ms. Carpeneti responded that it was
the intent of reducing the penalties, so they were not more
serious than bad conduct with connection with controlled
substances.
Co-Chair Meyer asked if there were any cases that were
prosecuted under the current statute. Ms. Carpeneti stated
that there were one or two convictions per year.
Senator Olson asked how many prosecutions were successful.
Ms. Carpeneti responded that there were some that were
referred to DOL, and accept prosecutions at a similar
level. She shared that, depending on evidence, a theft
charge may be implemented because it was part of the
conduct through the sale of the sham drug.
10:56:35 AM
AT EASE
10:57:47 AM
RECONVENED
Co-Chair Meyer wondered if there was not an anticipation
for more cases, if the fiscal note could be changed to
zero. Ms. Carpeneti explained that the fiscal note was
indeterminate, because the effect of removing the
substances was unknown.
Co-Chair Meyer asked for Ms. Carpeneti to comment on Ms.
Wollenberg's testimony. Ms. Carpeneti replied that she did
not share the same concerns with Ms. Wollenberg regarding
"culpable mental state." The Morrow case specifically
provided that the statute should read, to avoid the
vagueness and over breadth problem, that it was an
intentional misrepresentation.
Vice-Chair Fairclough remarked that Ms. Wollenberg
suggested adding legislation that had stronger "intent to
deceive" language. Ms. Carpeneti felt that the law as
interpreted was adequate.
Senator Egan shared that the legislation would not affect
many people in the state, but fixed a loophole in current
statute.
Vice-Chair Fairclough MOVED to REPORT CSSB 66(JUD) out of
committee with individual recommendations and the
accompanying fiscal notes. There being NO OBJECTION, it was
so ordered.
CSSB 66(JUD) was REPORTED out of committee with a "do pass"
recommendation and with previously published zero fiscal
notes: FN1(ADM) and FN2(ADM); previously published
indeterminate note: FN3(LAW); and new zero fiscal note from
the Department of Corrections.
11:02:42 AM
AT EASE
11:07:01 AM
RECONVENED