Legislature(2011 - 2012)CAPITOL 120
02/11/2011 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB80 | |
| HB7 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 7 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 127 | TELECONFERENCED | |
| += | HB 80 | TELECONFERENCED | |
HB 7 - SYNTHETIC CANNABINOIDS AS SCHEDULE IIA
1:39:05 PM
CHAIR GATTO announced that the final order of business would be
HOUSE BILL NO. 7, "An Act classifying certain synthetic
cannabinoids as schedule IIA controlled substances; and
providing for an effective date." [Included in members packets
was a proposed committee substitute (CS) for HB 7, Version 27-
LS0044\E, Luckhaupt, 2/9/11.]
1:39:32 PM
KENDRA KLOSTER, Staff, Representative Cathy Munoz, Alaska State
Legislature, on behalf of Representative Munoz, one of HB 7's
joint prime sponsors, referring to a proposed committee
substitute (CS) - Version E - in members packets and noting that
she's spoken with the Department of Law (DOL) and Legislative
Legal and Research Services, relayed that Version E is proposing
to add the synthetic cannabinoids named therein to the list of
schedule IIIA controlled substances. This approach was taken
because there are other synthetic materials/compounds that mimic
the effects of tetrahydrocannabinol (THC), as well as THC
itself, already in schedule IIIA, and so it made sense to add
those listed in HB 7 as well, since they, too, can mimic some of
the effects of THC.
1:41:11 PM
REPRESENTATIVE THOMPSON moved to adopt the proposed CS for HB 7,
Version 27-LS0044\E, Luckhaupt, 2/9/11, as the working document.
There being no objection, Version E was before the committee.
MS. KLOSTER, in response to a question, relayed that in Alaska,
the list of schedule IA controlled substances includes those
substances [that are found to have the highest degree of danger
or probable danger to a person or the public], such as opium,
methadone, and heroin, to name a few; the list of schedule IIA
controlled substances includes those substances [that are found
to have a degree of danger or probable danger to a person or the
public which is less than substances listed in schedule IA],
such as cocaine and various hallucinogens, to name a few; and
the list of schedule IIIA controlled substances includes
substances such as barbiturates and hashish, to name a few.
Again, Version E is proposing to add the synthetic cannabinoids
listed therein, commonly referred to as "K2" or "Spice," to the
list of schedule IIIA controlled substances.
1:43:10 PM
MS. KLOSTER, in response to another question, concurred that the
penalty associated with schedule IIIA controlled substances
varies depending on the amount [and other circumstances]. For
example, if a person possesses less than [25 tablets, ampules,
or syrettes containing a schedule IIIA controlled substance, or
possesses one or more preparations, compounds, mixtures, or
substances of an aggregate weight of less than three grams
containing] a schedule IIIA controlled substance, the penalty
would be a class A misdemeanor; possessing greater amounts would
result in a felony, as would [manufacturing or] delivering any
amount, [or possessing any amount with the intent to manufacture
or deliver, or possessing any amount] within certain distances
of locations that children frequent, or delivering any amount to
children [under a certain age].
MS. KLOSTER, in response to further questions, clarified that
marijuana itself is listed as a schedule VIA controlled
substance, whereas in contrast, the synthetic cannabinoids
listed in the bill are considered to be more dangerous, causing
far more severe reactions such as hallucinations and death; that
both the U.S. Drug Enforcement Administration (DEA) - which has
temporarily banned [five of the compounds listed in HB 7] - and
the majority of the other states that have enacted legislation
to ban synthetic cannabinoids have included them in their
schedule I controlled substances' lists, which are similar to
Alaska's schedule IIA controlled substances' list; that
Version E would result in the same penalties as those provided
for other schedule IIIA controlled substances; that the prices
of the synthetic cannabinoids listed in the bill vary, ranging
from $30 to $500, depending on the type and amount; that the
synthetic cannabinoids listed in the bill are available both
over the Internet and in some local stores; and that the
Anchorage assembly has voted to ban such substances.
CHAIR GATTO indicated his belief that HB 7 would not be
affecting "normal" commerce.
1:48:04 PM
QUINLAN STEINER, Director, Central Office, Public Defender
Agency (PDA), Department of Administration (DOA), acknowledged
the change proposed by Version E; cautioned that even as
schedule IIIA controlled substances, delivery of one of the
synthetic cannabinoids listed in the bill [to someone under 19
years of age who is at least three years younger than the person
delivering it] would result in that person being charged with an
unclassified felony for the crime of misconduct involving a
controlled substance in the first degree; and indicated that
when scheduling controlled substances, establishing a good
public record can promote parity and fairness of outcome and
process when such cases are prosecuted. In response to
questions, he stressed the importance of scheduling controlled
substances appropriately and of creating a public record that
includes factual documentation, rather than just anecdotal
testimony, regarding a particular substance's effects. In terms
of scheduling, treating a particular substance more harshly than
other substances with more severe effects creates a credibility
problem within the criminal justice system. In terms of at
least putting a stop to the sale of these synthetic cannabinoids
by local stores, adding them to any schedule would serve that
purpose, he concluded.
1:54:00 PM
DENNIS A. WHEELER, Municipal Attorney, Department of Law,
Municipality of Anchorage (MOA), said that the MOA supports HB 7
and the senate companion bill - SB 17 - but at this time doesn't
necessarily support adding the synthetic cannabinoids named in
the bill to the lower, schedule IIIA controlled substances'
list, as Version E proposes, because their effects are far more
serious than those of other schedule IIIA controlled substances;
rather, the effects of the synthetic cannabinoids listed in the
bill are more in line with those of the controlled substances
currently found in schedule IIA.
1:55:43 PM
JENNIFER MESSICK, Assistant Municipal Prosecutor, Criminal
Division, Department of Law, Municipality of Anchorage (MOA),
explained that about 100 synthetic cannabinoids have been
developed, though not all have psychoactive properties, and only
about 7 of them are being referred to as "K2" or "Spice." In
its pure form, a synthetic cannabinoid is a white powder - just
like cocaine - that is then dissolved, usually in acetone, and
then sprayed onto some other substance, generally some green
leafy substance so as to be marketed as synthetic [marijuana].
The [researchers] who developed these synthetic cannabinoids
were trying to come up with a compound that contained all of the
medicinally-desirable effects of THC but none of the bad
effects. They found, however, that in addition to affecting the
body, synthetic cannabinoids bind to the receptors in the brain
with up to 800 times the potency of THC, and so abandoned their
work - after getting as far as testing the compounds on animals
- and published their findings.
MS. MESSICK suggested that because synthetic cannabinoids have a
lot of similarities with lysergic acid diethylamide (LSD),
phencyclidine (PCP), and methamphetamine - all schedule IIA
controlled substances and all also manmade - those listed in the
bill should also be classified as schedule IIA controlled
substances. Also, the manufacturing processes of synthetic
cannabinoids are very inconsistent, thereby leading to a very
unpredictable range of symptoms. Although marijuana has some
legitimate medical use, the synthetic cannabinoids [listed in
the bill] - as well as LSD, PCP, and methamphetamine - have no
legitimate use and are considered to be "unknown cyclics,"
meaning they affect users differently and very unpredictably.
For example, some people may just have hallucinations, while
others may become violent, and it's very common for users to
dissociate from pain; also, some people may just become really
relaxed, or they may lose consciousness, or they may go into
convulsions. There is no way to predict how a user is going to
be affected, even from one dose to the next. All such cyclic
drugs pose an incredible danger to law enforcement officers,
emergency medical responders, and anyone attempting to deal with
those who are under the influence of such drugs.
2:00:32 PM
MS. MESSICK noted that in contrast, marijuana and hashish - all
naturally-occurring - affect users in similar, predictable ways;
users can become tired, lazy, hungry, euphoric, relaxed, happy,
funny, but they won't actually "overdose." However, that's not
the case with the synthetic cannabinoids listed in the bill - or
LSD, PCP, or methamphetamine, for that matter; an overdose of
synthetic cannabinoids can result in a loss of consciousness and
even death. Furthermore, the [federal poison control center]
reports that the symptoms of synthetic cannabinoids are much
more like those of methamphetamine and PCP than those of
marijuana; symptoms include very rapid heart rate - tachycardia
- elevated blood pressure, dilated pupils, delusions,
hallucinations, and [seemingly] super-human strength, which
raises safety concerns. Law enforcement agencies - both
nationwide and locally - report that the symptoms of synthetic
cannabinoids are more similar to those of LSD and PCP, but
acknowledge that they can also resemble the symptoms of
methamphetamine.
MS. MESSICK relayed that the MOA could provide the committee
with documentation from the Anchorage Police Department (APD),
the Anchorage Fire Department and their medics and EMS
personnel, school resource officers, parents, and other law
enforcement agencies across the nation; furthermore, in what she
referred to as a "wet" laboratory, tests were conducted on
subjects who'd been dosed with very, very small amounts of
synthetic cannabinoids, and she could provide that
[documentation] as well. She, too, remarked that the DEA has
temporarily banned possession of [five of the compounds listed
in HB 7] and is considering adding them to the federal list of
schedule I controlled substances. Symptoms of synthetic
cannabinoids that raise safety concerns, particularly when
someone attempts to drive under the influence of these
compounds, include what's sometimes referred to as a "hundred-
yard stare" [wherein the person becomes dissociated; synesthesia
- a mixing of the senses; dilated pupils; disorientation;
incoherency; poor physical and mental coordination; memory loss;
flashbacks; [seemingly] super-human strength; combative/violent
behavior; delusions; over excitement; convulsions; [and death].
Again, those are not the symptoms that [typically] result from
marijuana use.
2:04:06 PM
MS. MESSICK indicated that potential problems with the bill are
related to the fact that there are about 100 synthetic
cannabinoids but [the DEA and various agencies conducting
research on this issue] have only identified 7 of them, and so
manufacturers, in anticipation of legislation such as HB 7, [are
already] packaging analog compounds, which would affect the body
similarly but their chemical structure would be slightly
different and thus might not be covered by the bill as currently
written. Furthermore, manufacturers could start using some of
the alternate recipes that were discarded by the initial
researchers. Noting that the list of schedule IIA controlled
substances already contains language addressing analog compounds
of PCP, she recommended inserting similar language pertaining to
synthetic cannabinoids into the bill. On the issue of what
other states are doing with regard to synthetic cannabinoids,
she relayed that some states are treating synthetic cannabinoids
just like marijuana, though in those states marijuana itself is
treated differently than it is in Alaska, more along the lines
of how Alaska treats its schedule IIA or schedule IIIA
controlled substances; that some states are treating synthetic
cannabinoids as warranting felony charges just like PCP and LSD;
and that some states have listed synthetic cannabinoids in a
schedule equivalent to Alaska's schedule IIIA.
REPRESENTATIVE KELLER questioned why the bill only lists 10
synthetic cannabinoids, expressing concern that as currently
written, the bill might not accomplish its intended goal.
MS. MESSICK said she doesn't know why the bill lists 10
synthetic cannabinoids, ventured that perhaps some of them
aren't as psychoactive as the others, and opined that having the
bill be as comprehensive as possible would be the best approach.
In response to other questions, she reiterated that it's the
MOA's preference for the synthetic cannabinoids listed in the
bill to be added to schedule IIA rather than to schedule IIIA,
because they share more of the characteristics of the other
drugs already listed as schedule IIA controlled substances;
offered her belief that a homologue, [which is referred to and
defined in Version E,] is not the same as an analog; and
reiterated her recommendation that the bill include a reference
to analogs.
2:11:06 PM
GERALD LUCKHAUPT, Assistant Revisor, Legislative Legal Counsel,
Legislative Legal and Research Services, Legislative Affairs
Agency (LAA), speaking as the drafter if HB 7, indicated that
the term "analog" isn't used in Alaska's controlled substances'
schedules to mean similar substances, and that no state has thus
far been successful at doing so. The bill instead uses the
terms "salts" - which are what's left after hydrogen atoms have
been removed from particular compounds - and "isomers" - which
mirror particular compounds; under Alaska law, those terms are
considered to mean the same drug since, for the most part, they
have the same effect. The courts have already found those terms
to be more proper, and the federal government has used those
terms with success. He then pointed out that the synthetic
cannabinoids listed in the bill aren't marijuana and aren't
anything like it. In Alaska, the definition of marijuana does
not include its active ingredient - THC - nor is THC included as
part of the definition of marijuana under the federal schedules.
MR. LUCKHAUPT relayed that the Alaska Supreme Court, in Ravin v.
State, determined that THC should be considered a separate drug
because it is so much more powerful - at least 100 times more
powerful - than marijuana itself, and that a person would have
to use approximately 40,000 normal doses of marijuana - or
perhaps as many as 400 normal doses of THC - at one time in
order to cause death. In contrast, it only takes about 30
normal doses of cocaine used at one time to cause death. He
ventured that one rationale for proposing to add the synthetic
cannabinoids referred to in the bill to the list of schedule
IIIA controlled substances is that that's where all the other
THC compounds - other than marijuana itself - are listed; the
naturally-occurring compounds currently listed in schedule IIIA
are hashish, hashish oil, and THC, and the synthetic compounds
are parahexyl, dronabinol, and nabilone, which are all very
similar to the synthetic cannabinoids listed in the bill. He
then recounted his understanding of which types of drugs are
currently listed in which of Alaska's schedules, and which types
of drugs are listed in some of the federal schedules, and of how
the federal schedules vary considerably from Alaska's schedules,
particularly with regard to marijuana itself.
2:20:58 PM
MR. LUCKHAUPT relayed that some states which include marijuana
in their schedules of most dangerous drugs address the fact that
marijuana isn't as dangerous by providing an exception for it in
their sentencing statutes such that crimes involving marijuana
are sentenced at a lower level than crimes involving the other
drugs in those schedules. He characterized this as a more
complicated approach for dealing with marijuana than that taken
by Alaska, which, partially in response to the Ravin decision,
simply created a specific, separate schedule for marijuana and
thus specific sentencing. In terms of deciding which schedule
should contain the synthetic cannabinoids listed in the bill, he
concurred with the PDA that the legislature should provide
supporting documentation for its decision, particularly given
that normally Alaska doesn't schedule a particular drug until
after the federal government has done so. The federal
government has only just started the scheduling process with
regard to the synthetic cannabinoids listed in the bill, and
then only for 5 of them, though it had already scheduled 1 of
the others listed in the bill several years ago. He indicated
that he and the sponsor chose the 10 synthetic cannabinoids
listed in the bill based on which synthetic cannabinoids other
states have addressed, with Missouri having addressed all 10 of
them.
MR. LUCKHAUPT, in response to questions, acknowledged that
although Alaska's scheduling and treatment of marijuana is
inconsistent with federal law, several other states also differ
from the federal government with regard to how they schedule and
treat marijuana, and indicated that use of the terms "salts" and
"isomer" is necessary to address compounds that have a slightly
different chemical structure from those currently listed in the
bill.
2:27:10 PM
MS. MESSICK, upon being asked to comment, pointed out that
[counter to what Mr. Luckhaupt had indicated,] the term "analog"
is used in existing AS 11.71.150(b)(17) - part of the list of
schedule IIA controlled substances - and relayed that some
merchants are already selling synthetic cannabinoids that aren't
those the DEA [has temporarily banned] and those merchants are
providing their customers with documentation to that effect. On
the issue of which schedule to add the synthetic cannabinoids
listed in the bill to, she pointed out that the synthetic
cannabinoids currently listed as schedule IIIA controlled
substances have all been tested [on humans] and subsequently
approved for human consumption, whereas [those listed in the
bill] have not been tested on humans, and so no one has any idea
what effects those compounds will have on the human body.
CHAIR GATTO questioned whether it would suffice to simply list
as many [synthetic cannabinoids] as can be found and then add
the phrase, "or similar drugs with similar effects".
MS. MESSICK said it seems that such a phrase would probably be a
bit too broad and thus draw legitimate constitutional
objections. She characterized the synthetic cannabinoids listed
in the bill as being different from a lot of other drugs because
they target a segment of society that might not normally
experiment with drugs. What makes the listed compounds
attractive to such people is a combination of three things:
these compounds haven't yet been criminalized; synthetic
materials are oftentimes viewed as being an improvement over
naturally-occurring materials; and the herbal substances that
these compounds are being sprayed on are oftentimes viewed as
being benign. In other words, the message being sent as a
result of these three factors is that synthetic cannabinoids are
better than marijuana but not as harmful and the government
doesn't care about them. Classifying the listed compounds as
schedule IIA controlled substances - appropriately, she opined -
would instead send a very clear message to Alaskans that these
compounds are very, very dangerous.
REPRESENTATIVE GRUENBERG also noted that the term "analog" is
currently being used in AS 11.71.150(b)(17).
MR. LUCKHAUPT clarified that AS 11.71.150(b)(17) lists four
specific drugs - four specific analogs of PCP; that there has
never been a successful prosecution of any [analogs] other than
those specifically listed; and that these four analogs are
specified in Alaska statute as a result of their first having
been scheduled by the federal government.
2:34:07 PM
WALLACE H. TETLOW, Attorney at Law, Vice President, Board of
Directors, Alaska Association of Criminal Defense Lawyers
(AKACDL), indicated that the AKACDL has concerns about adding
the synthetic cannabinoids named in the bill to the list of
schedule IIA controlled substances and thereby making possession
of synthetic cannabinoids a class C felony, particularly given
that the majority of those who use synthetic cannabinoids are
[generally youths] ages 14-27, and given that in contrast,
possession of real marijuana or actual THC might only be a
class B misdemeanor or a class A misdemeanor, respectively. He
offered his understanding that supporting documentation seems to
indicate that the effects of the synthetic cannabinoids listed
in the bill are similar to those of THC, and that there doesn't
seem to be any information suggesting that the listed synthetic
cannabinoids ought to be treated more harshly than the real
thing, particularly given the serious impacts of being charged
and convicted of a felony at a young age.
REPRESENTATIVE HOLMES explained that Version E of HB 7 is
instead proposing to add the synthetic cannabinoids named in the
bill to the list of schedule IIIA controlled substances.
MR. TETLOW, in response to a question, indicated that although
that would be acceptable, the AKACDL's preference would be for
the synthetic cannabinoids listed in the bill to be added to the
same schedule that includes marijuana - schedule VIA - noting
that some states have already chosen to treat synthetic
cannabinoids the same way they treat marijuana, states such as
Alabama, Kentucky, Louisiana, and Mississippi.
2:41:33 PM
TONY NEWMAN, Social Services Program Officer, Division of
Juvenile Justice (DJJ), Department of Health & Social Services
(DHSS), said that although the DJJ's counterparts in law
enforcement have been picking up minors [who are under the
influence or who are in possession] of the synthetic
cannabinoids listed in the bill, the DJJ hasn't received any
referrals, and so doesn't yet know what kind of impact on its
workload enactment of HB 7 is going to have. The DJJ would be
managing such youth in the same manner that it manages youth
picked up for other controlled substance crimes, however, and
this could involve a range of activities, anything from
referring the youth to substance abuse treatment, to petitioning
the court for a delinquency adjudication, which is different
than a conviction in the adult justice system and therefore
won't have the same impact. In conclusion, he indicated that
the DHSS/DJJ has no position on HB 7.
2:43:28 PM
ROBERT THOMPSON, Sergeant, Fairbanks Police Department (FPD),
City of Fairbanks, expressed support for HB 7, and relayed that
there have been cases in which law enforcement was unable to
prosecute someone to the fullest extent of the law simply
because the synthetic cannabinoids listed in the bill were not
yet illegal. In one such case, the driver responsible for a
motor vehicle accident admitted to smoking "Spice" and to it
being a contributing factor in the accident, but law enforcement
only charged the driver with reckless driving, rather than with
driving under the influence (DUI), though witnesses stated that
the driver was actually passed out when the accident occurred,
and the responding officer described the driver as experiencing
seizures and disorientation. As long as such compounds aren't
listed as controlled substances, law enforcement can anticipate
more such instances occurring. In conclusion, he opined that
the synthetic cannabinoids listed in the bill pose a significant
public safety hazard - particularly when used by someone
driving, given that they can cause seizures, unresponsiveness,
disorientation, hallucinations, and psychotic episodes - and
asked that HB 7 be moved through the process in a timely
fashion.
CHAIR GATTO, after ascertaining that no one else wished to
testify, closed public testimony on HB 7.
REPRESENTATIVE HOLMES indicated favor with Version E's proposal
to add the synthetic cannabinoids named in the bill to Alaska's
list of schedule IIIA controlled substances.
2:49:07 PM
MR. LUCKHAUPT, in response to questions, explained that
Version E is proposing to add inclusionary language pertaining
to salts and isomers to AS 11.71.160(f) in order to address
compounds that have a slightly different chemical structure from
those specifically named in the bill; that similar inclusionary
language is already used in AS 11.71.150(b) and in the federal
schedules; that the odd spacing associated with the last
compound the bill is proposing to add is merely a function of
formatting; and that the findings outlined in AS 11.71.120(c)
were intended to serve as guidelines for a proposed Controlled
Substances Advisory Committee to use when determining the proper
scheduling of a particular substance, though that proposed
committee was never actually formed. The synthetic cannabinoids
listed in the bill are [forms of] THC, and the committee has
heard testimony regarding their effects and that those effects
are similar to those of the other compounds currently listed in
Schedule IIIA; this should be sufficient, he ventured, to
justify adding these synthetic cannabinoids to the list of
schedule IIIA controlled substances, though it's always good to
provide as much legislative history as possible with these types
of bills because it could prove helpful to the courts later on.
In response to another question, Mr. Luckhaupt indicated a
belief that the administration has been remiss in complying with
AS 11.71.120(b), which says, "If a substance is added as a
controlled substance under federal law, the governor shall
introduce legislation in accordance with the federal law."
REPRESENTATIVE GRUENBERG asked whether, if HB 7 becomes law,
merchants currently selling synthetic cannabinoids could validly
claim unlawful taking and thereby receive compensation.
MR. LUCKHAUPT opined that they could not.
2:58:03 PM
RODNEY DIAL, Lieutenant, Deputy Commander, A Detachment,
Division of Alaska State Troopers, Department of Public Safety
(DPS), in response to questions, indicated that neither the
bill's immediate effective date nor the Scientific Crime
Detection Laboratory's ("Crime Lab") current state of readiness
or lack thereof would negatively impact the DPS.
REPRESENTATIVE KELLER referred to the DPS's fiscal note,
expressed a concern regarding its proposal to add a new position
to the Crime Lab, and surmised that the House Finance Committee
would be considering that particular issue further.
REPRESENTATIVE THOMPSON, referring to a USA Today article
included in members' packets, said he doesn't believe that the
legislature has enough information yet to add the synthetic
compound being labeled as "bath salts" but being used as a drug
to Alaska's controlled substances schedules.
REPRESENTATIVE GRUENBERG questioned whether the title of the
bill should be broadened in order to allow for the inclusion of
such a compound at some point.
CHAIR GATTO expressed a preference for moving HB 7 as is, and
suggested that such a compound would be better addressed via a
separate bill.
3:02:09 PM
REPRESENTATIVE THOMPSON moved to report the proposed CS for
HB 7, Version 27-LS0044\E, Luckhaupt, 2/9/11, out of committee
with individual recommendations and the accompanying fiscal
notes. There being no objection, CSHB 7(JUD) was reported from
the House Judiciary Standing Committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB7 Supporting Documents-Report Leg Research 02-08-11.pdf |
HJUD 2/11/2011 1:00:00 PM |
HB 7 |
| HB7 Supporting Documents-Anchorage Spice PowerPoint 02-08-11.ppt |
HJUD 2/11/2011 1:00:00 PM |
HB 7 |
| HB7 Supporting Documents-Letter Mayor Sullivan 02-08-11.pdf |
HJUD 2/11/2011 1:00:00 PM |
HB 7 |
| HB7 Supporting Documents-Press Release DEA 11-24-10.pdf |
HJUD 2/11/2011 1:00:00 PM |
HB 7 |
| HB7 Draft CS Version E 02-09-11.pdf |
HJUD 2/11/2011 1:00:00 PM |
HB 7 |
| HB80 Fiscal Note-LAW-CRIM-02-09-11.pdf |
HJUD 2/11/2011 1:00:00 PM |
HB 80 |