Legislature(2005 - 2006)BUTROVICH 205
03/23/2005 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB70 | |
| SB129 | |
| SB126 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 126 | TELECONFERENCED | |
| *+ | SB 129 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 70 | ||
SB 70-CRIMES INVOLVING CONTROLLED SUBSTANCES
8:38:36 AM
DEAN GUANELI, criminal division, Department of Law (DOL)
proposed Amendment 1 to address the definition of the word
"ingestion".
8:39:42 AM
A m e n d m e n t
Senate Judiciary Committee March 23, 2005
Amendment to CSSB 70(HES)
Page 1, line 13:
Delete "ingestion of"
Insert in its place "ingesting"
Page 2, line 1: After the period following the word "state"
add:
"As used in this paragraph, "ingesting" means voluntarily or
involuntarily taking a substance into the body in any manner. "
8:40:33 AM
SENATOR GENE THERRIAULT joined the committee.
8:41:54 AM
SENATOR THERRIAULT moved to adopt Amendment 1. There being no
objection, the motion carried.
CHAIR SEEKINS asked Mr. Guaneli to define affirmative defense.
MR. GUANELI explained the difference between affirmative defense
and regular defense:
A regular defense is one that the state as prosecutor
has to disprove beyond a reasonable doubt. An
affirmative defense is one that the Legislature
generally felt the information to establish that
defense ordinarily is something that the defendant
has. The state may not have information to establish
that defense and it's unfair to put the state to the
burden of proving or disproving beyond a reasonable
doubt. An affirmative defense is one that the burden
is on the defendant to come forward, not beyond
reasonable doubt, but to establish that defense by a
preponderance of the evidence.
8:44:15 AM
CHAIR SEEKINS asked Mr. Guaneli if an affirmative defense makes
a person guilty until proven innocent.
MR. GUANELI responded the state always bears the burden of
proving the essential elements of the offense beyond a
reasonable doubt.
CHAIR SEEKINS commented that statutes are trending toward
putting the burden of proof on someone else rather than the
state.
MR. GUANELI agreed and said affirmative defense should not be
routinely enacted in statutes. He added in any case involving
drugs where someone dies; the burden of proof will be impossible
for the state to meet.
8:47:56 AM
SENATOR HOLLIS FRENCH agreed with Mr. Guaneli and added the
state should not have to prove beyond a reasonable doubt in the
case of a drug manufacturer causing death to a person.
CHAIR SEEKINS interjected the discussion was important.
8:49:26 AM
SENATOR THERRIAULT moved to adopt Amendment 2 on behalf of the
Department of Law.
A m e n d m e n t
Senate Judiciary Committee March 23, 2005
Page 1 of 2
Amendment to CSSB 70(HES)
Page 2, line 10, through page 3, line 13:
Delete sections 3, 4 and 5 entirely, and replace with
*Sec. 3. AS 12.55.125(c), as amended by section CCS SB 56,
is amended to read:
(c) Except as provided in (i) of this section, a defendant
convicted of a class A felony may be sentenced to a definite
term of imprisonment of not more than 20 years, and shall be
sentenced to a definite term within the following presumptive
ranges, subject to adjustment as provided in AS 12.55.155 -
12.55.175:
(1) if the offense is a first felony conviction and
does not involve circumstances described in (2) of this
subsection, five to eight years;
(2) if the offense is a first felony conviction
(A) and the defendant possessed a firearm, used a
dangerous instrument, or caused serious physical
injury or death during the commission of the offense,
or knowingly directed the conduct constituting the
offense at a uniformed or otherwise clearly identified
peace officer, fire fighter, correctional employee,
emergency medical technician, paramedic, ambulance
attendant, or other emergency responder who was
engaged in the performance of official duties at the
time of the offense, seven to 11 years;
(B) and the conviction is for manufacturing
related to methamphetamine under AS
11.171.020(a)(2)(A) or (B), seven to 11 years, if
(i) the manufacturing occurred in a building
with reckless disregard that the building was
used as a permanent or temporary home or place of
lodging for one or more children under 18 or the
building was a place frequented by children; or
(ii) in the course of manufacturing or in
preparation for manufacturing the defendant
obtained the assistance of one or more children
under 18 or one or more children were present;
(3) if the offense is a second felony conviction, 10
to 14 years;
(4) if the offense is a third felony conviction and
the defendant is not subject to sentencing under (l)
of this section, 15 to 20 years.
*Sec. 4. AS 12.55.125(d), as amended by section CCS SB 56, is
amended to read:
(d) Except as provided in (i) of this section, a defendant
convicted of a class B felony may be sentenced to a definite
term of imprisonment of not more than 10 years, and shall be
sentenced to a definite term within the following presumptive
ranges, subject to adjustment as provided in AS 12.55.155 -
12.55.175:
(1) if the offense is a first felony conviction and
does not involve circumstances described in (2) of this
subsection, one to three years; a defendant sentenced under this
paragraph may, if the court finds it appropriate, be granted a
suspended imposition of sentence under AS 12.55.085 if, as a
condition of probation under AS 12.55.086, the defendant is
required to serve an active term of imprisonment within the
range specified in this paragraph, unless the court finds that a
factor in mitigation under AS 12.55.155 applies;
(2) if the offense is a first felony conviction,
(A) the defendant violated AS 11.41.130, and the
victim was a child under 16 years of age, two
to four years;
(B) two to four years if the conviction is for
an attempt, solicitation or conspiracy to manufacture
related to methamphetamine under AS 11.31 and AS
11.171.020(a)(2)(A) or (B), and
(i) the attempted manufacturing occurred, or
the solicited or conspired offense was to have
occurred, in a building with reckless disregard
that the building was used as a permanent or
temporary home or place of lodging for one or
more children under 18 or the building was a
place frequented by children; or
(ii) in the course of an attempt to
manufacture the defendant obtained the assistance
of one or more children under 18 or one or more
children were present;
(3) if the offense is a second felony conviction,
four to seven years;
(4) if the offense is a third felony conviction, six
to ten years.
*Sec. 5. AS 12.55.185 is amended to add a new definition, to
read:
(18) "building," in addition to its usual meaning, includes any
propelled vehicle or structure adopted for overnight
accommodation of persons or for carrying on business; when a
building consists of separate units, including apartment units,
offices, or rented rooms, each unit is considered a part of the
same building.
SENATOR FRENCH objected for the purpose of discussion.
MR. GUANELI explained the provisions in the current version of
SB 70. Sections 3,4, and 5 were a result of Alaska State
Troopers experiences with mobile methamphetamine laboratories
(meth labs). The main concern is the close proximity of children
to mobile meth labs. Convicting a person of two separate crimes
for the same conduct introduces the concept of merger where
courts will take two convictions and merge them for the purpose
of sentencing.
SENATOR FRENCH clarified the separate crime is when a person
manufactures in a building knowing that children are near.
8:53:44 AM
MR. GUANELI referred to a sentencing chart and offered an
explanation of the adjusted sentences. There would be an
additional penalty for manufacturing methamphetamines near
children.
8:56:45 AM
MR. GUANELI advised the committee that manufacturers have been
known to use children to assist them in the production of
methamphetamines.
8:58:09 AM
SENATOR THERRIAULT asked Mr. Guaneli if SB 70 addresses the
situation where the manufacturer's friend brings children into
the house.
MR. GUANELI said the intent of SB 70 addresses an overnight
situation. There was no thought as to children visiting.
8:59:45 AM
SENATOR THERRIAULT asked whether the committee could modify the
language.
CHAIR SEEKINS agreed.
SENATOR FRENCH said children do not spend the night in daycare
centers.
CHAIR SEEKINS suggested including the words "frequently
present".
9:00:58 AM
MR GUANELI admitted he is not bothered by the notion of
"frequently present" as language. He suggested it was ambiguous
and if necessary, a jury could decide.
CHAIR SEEKINS asked how long it takes to cause harm to a child
in the presence of the manufacturing of methamphetamines.
MR. GUANELI deferred the question to Sergeant Tim Birt.
9:02:38 AM
SERGEANT TIMOTHY BIRT, detective, Alaska State Troopers, advised
there are no studies to indicate a specific time frame.
Variables include the size of the operation, how the chemicals
are stored, stages of operation, and location. Meth lab fumes
are extremely toxic.
9:05:02 AM
SENATOR THERRIAULT commented there is an explosive nature as
well.
SENATOR FRENCH suggested adding language regarding children
frequenting the area.
SENATOR GRETCHEN GUESS asked if SB 70 included children present
during manufacturing.
9:07:38 AM
MR. GUANELI suggested under Section 3, subparagraph (B) sub
subparagraph (i) after 18, add the phrase "place frequented by
children", and under Section 3, subparagraph (B) sub
subparagraph (ii) after 18, add "or one or more children were
present".
SENATOR FRENCH asked Mr. Guaneli if SB 70 covers using children
to purchase ingredients.
9:10:08 AM
MR. GUANELI advised the intent of the language was broad enough
to include that scenario.
9:12:13 AM
SENATOR THERRIAULT moved the conceptual amendment to Amendment
2. Hearing no objections, it was so ordered.
9:13:14 AM
MR. GUANELI informed the committee SB 70 contained a separate
sentencing provision to address attempted manufacturing,
solicitation to manufacturing and conspiracy to manufacture.
9:14:27 AM
SENATOR GUESS asked Mr. Guaneli whether there were any other
places in the Alaska statutes where they discuss using children
in the manufacturing or preparing of elicit drugs.
9:15:41 AM
MR. GUANELI responded this is the only place where children are
reflected because it is the current problem.
9:17:18 AM
SENATOR GUESS asked how the DOL would handle a case where a
person under 18 was forced to deliver illicit drugs.
SENATOR FRENCH offered it would be a defense of coercion or
duress.
MR. GUANELI agreed with Senator French. When an act is committed
under duress, the law takes that into account. However, there is
a certain level of responsibility even children have to bear
when they are involved in selling drugs.
SENATOR GUESS commented the legislation would protect children
if they are being used to manufacture illegal drugs but not if
they are being used to deliver the drugs.
9:19:32 AM
MR. GUANELI responded if a child is knowingly and willingly
participating in the manufacturing of a controlled substance, it
is a prosecutable offense. SB 70 provides a measure of
protection for children but depending on their culpability,
there could be consequences.
CHAIR SEEKINS asked Mr. Guaneli if he could conceive someone
prosecuting an eight year old for involvement in illegal drugs.
MR. GUANELI answered it would be dealt with in the juvenile
justice system. The law doesn't feel children that age have a
culpable mental thought process.
9:21:59 AM
CHAIR SEEKINS asked Sergeant Birt if he has seen situations
where little children have knowingly and willingly assisted in
the manufacturing and selling of illicit drugs.
SGT. BIRT answered no.
CHAIR SEEKINS asked Sgt. Birt if he has seen the same situation
with teenagers.
SGT. BIRT answered yes.
CHAIR SEEKINS remarked his constituents were concerned with the
ease at which drug manufacturers meet bail.
9:24:13 AM
MR. GUANELI replied judges take into account a number of
circumstances including previous offenses and flight risks when
setting bail. The Legislature can set guidelines and help judges
consider other requirements.
9:26:57 AM
SENATOR FRENCH asked Mr. Guaneli about a controlled substance
schedule bill that the Legislature passed 5 years ago.
MR. GUANELI said the DOL would like to impose tougher sentencing
when methamphetamines are involved.
CHAIR SEEKINS commented some states allow no bail for
methamphetamine offenses. If it does not create a constitutional
problem, he would support an amendment to SB 70 that would
require an extremely high cash bail.
9:28:19 AM
SENATOR FRENCH offered a judge would balance the strength of the
case. In a strong case the judge could set the bail high. In a
weak case the suspect could walk.
9:29:46 AM
CHAIR SEEKINS asked Mr. Guaneli if he had any objection to the
Legislature instituting a high cash bail for the second offense.
MR. GUANELI replied he sees merit in the suggestion.
CHAIR SEEKINS announced the chair would entertain a conceptual
motion to add for a second arrest a minimum of $250,000 cash
bail.
SENATOR HUGGINS moved to adopt the second conceptual amendment
to Amendment 2. There being no objection, the motion carried.
9:32:01 AM
MR. GUANELI commented some people could meet the high cash bail
and he would like the court to be able to impose the other
restrictions that accompany the offense.
CHAIR SEEKINS answered it was not the intent of the Legislature
to impair the courts ability to impose other restrictions.
9:33:27 AM
MR. DUNCAN SHACKELFOLD, head football coach, Chugiak High
School, testified in support of SB 70. He expressed concern
about the easy access youths have to steroids.
9:40:14 AM
CHAIR SEEKINS asked Mr. Guaneli if the list of anabolic steroids
on Page 4 is limiting.
MR. GUANELI replied the courts have always said a list includes
but is not limited to. A list always helps due to pharmacologic
language. Legally it is not necessary to add the additional
language, "includes but is not limited to."
9:42:10 AM
SENATOR FRENCH proposed an amendment on Page 4; line 21 after
the word "includes" insert "but is not limited to the
following." Hearing no objections, Amendment 3 was adopted.
9:42:59 AM
MS. BARBARA BRINK, director, Alaska Public Defenders, commented
on the first section of SB 70. She took issue with the phrase on
Page 1; line 14:
"...the death is a result that does not require a
culpable mental state."
She suggested SB 70 would seek to punish people who do not have
mental culpability. She said:
The people did not intentionally, knowingly,
recklessly, or negligently cause death. This is a huge
difference from the vast majority of crimes that we
punish. Usually a crime has to have three things: An
act that is illegal, a result, and a mental state
about that result. In this instance we're dramatically
changing what we usually do and who we usually hold
responsible. A person may have had reason to believe
that any death would occur. It was clearly not
intended or expected and may not have even been able
to foresee such an outcome. Oftentimes they've merely
shared a small amount of a substance that they
themselves believed is used without any harm and just
for a social purpose.
She said the Alaska Supreme Court has looked unfavorably on
punishing people who don't have a criminal mind.
9:45:17 AM
MS. BRINK asserted to change a homicide offense to a strict
liability offense may not pass constitutional muster under the
Alaska Supreme Court. In the United States, tobacco kills
approximately 450,000 people annually. Alcohol kills
approximately 80,000 people and cocaine, heroin and aspirin each
kill about 2,000 people a year. Holding somebody accountable for
a death somewhere down the drug line does not prove to be a
societal benefit. New Jersey has imposed strict liability for
drug deaths based on the fact that 50 percent of all crimes were
drug related. It is a lucrative, organized crime issue in that
state. The Legislature attempted to use strict liability to
attack the drug trade and hold kingpins responsible. However a
study ten years after showed that most people who were arrested
for strict liability deaths were minors with no priors, family
member, or small time users.
9:48:09 AM
MS. BRINK said SB 70 will not address a huge problem in Alaska
and it may not be constitutional.
9:49:16 AM
MS. BRINK added there is no proof that jail is effective in
helping people overcome drug addictions. She said therapeutic
courts are a valuable alternative to putting non-violent drug
offenders into treatment.
9:50:22 AM
CHAIR SEEKINS closed public testimony.
SENATOR THERRIAULT moved CSSB 70(JUD) from committee with
individual recommendations and accompanying fiscal notes.
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