Legislature(2005 - 2006)BUTROVICH 205
04/20/2005 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB74 | |
| SB125 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 125 | TELECONFERENCED | |
| + | HB 136 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 74 | ||
SB 74-CRIMES INVOLVING MARIJUANA/OTHER DRUGS
The following is a near-verbatim transcript of SB 74 heard on
April 20, 2005 in the Senate Judiciary Standing Committee.
8:41:18 AM
MR. DEAN GUANELI, chief assistant attorney general, Department
of Law (DOL), testified in support of SB 74:
SB 74 has had hearings in Senate Health and Social Services
Committee (SHES) and in the House Judiciary Committee (SJUD).
Much of the testimony has been similar in the three committees
from both proponents and opponents of SB 74, and a lot of the
same materials have been submitted to all three committees. At
this point in time I'm ready to respond to any questions
regarding previous testimony and to discuss any details of SB
74. I do have some revised findings that the committee may wish
to consider in SB 74. The findings as originally drafted were
drafted many months ago without the input of the testimony and
evidence that has been presented at the hearings and some of the
wording that was used provoked some comments that were not
intended by our office. These revised findings will lay to rest
some of the concerns and provide a better record for the court
to consider what the judgment the Legislature made of some of
the evidence that has been presented both pro and con.
I think in this case it is important to include findings for
clarification to the court as to the intent of the Legislature.
The court is going to give deference to what the Legislature did
and if all the court has before it is a mound of evidence it
would have to sort through it all and come to some conclusion
regarding what it believes the Legislature found. With specific
findings I think the Legislature aids the court in focusing on
what the Legislature found was most important about the
evidence. Essentially what the findings do is focus on the
increased potency of marijuana, the increasing use among young
people and Alaska Natives, which I think is a concern for
everybody, and testimony by the division of behavioral health
about the relationship between marijuana use and alcohol
addiction and how difficult it is to treat alcoholism when you
have marijuana so freely in the state. So I think those are the
kinds of things we have focused on in the findings along with
some other evidence.
8:44:40 AM
MR. GUANELI:
That is a brief background of where the DOL is on SB 74.
CHAIR SEEKINS:
In this case I think it is important to attach some findings to
accentuate those things we think are most important about the
reason we are passing SB 74 and our intent.
8:46:01 AM
BILL PARKER, spokesman, Alaskans for Marijuana Regulation and
Control presented his list of witnesses.
8:46:28 AM
DEBBIE SOULE testified in opposition of SB 74:
I am married with three grown children and I own my own
business. I am a constructive and active woman. Seven years ago
my husband and I had a near fatal car accident. I broke
everything from my neck down and then I lost my right leg. I am
now in a wheelchair twice a day. The doctors had me on nine
different medications, none of which worked. I was slowly being
killed by all the medication they gave me. All of this after
they insisted on keeping me alive.
Now I have a life of tremendous pain and tremendous loss. I
heard from a doctor I might get some relief from some of the
phantom pain and seizure by using marijuana. I was skeptical and
thought about it for over two years before I tried it. To my
great surprise I found it worked better than any medication the
doctors prescribed. I also found it didn't leave me doped up and
unable to function like all of the other medications they had
prescribed. Some of the side effects of medications they
prescribed are unbelievable. They are suicide, kidney failure,
liver problems, stomach and bowel problems, and psychological
issues.
The problem I have found is that although Alaska supposedly has
a medical marijuana law, the State of Alaska has made it
impossible to find doctors who will sign the paperwork. When I
was ready to try marijuana to relieve my pain, I had to buy it
illegally. I felt like a criminal. Alaska's medical marijuana
law simply does not work. Even if I could find a doctor to sign
my forms, what good does it do if there is no legal way to get
it?
The law allows a person to grow up to six plants, but it is not
practical to most patients. Unless you fix the medical marijuana
law in Alaska, patients will have to buy it illegally. That's
why keeping the protection, under the Ravin decision, is so
important. If SB 74 passes, the situation for people who use
medical marijuana will go from bad to worse. At least now if I
get arrested, I would have some protection in the eyes of the
court. I understand we want to keep marijuana out of hands of
children, everybody does. You have to admit when marijuana
possession was made illegal in 1990, teenagers went on smoking
it anyway because they can get it easier than I can. SB 74 won't
make it any tougher for teenagers but it will make it tougher
for people in wheelchairs to get the one medication that helps
the most.
I find it odd that our good Senators and Representatives don't
have anything better to do with their time than outlaw my
medication. The doctors are willing to give me any medication;
morphine, Valium, Oxycontin, to help keep me comfortable, who
will turn me into a drug addict and kill me, but they won't sign
for medical marijuana. I feel I will now live longer and be
healthier and in a loss less pain because I have chosen to smoke
marijuana.
8:52:12 AM
SENATOR CHARLIE HUGGINS:
THC is the effect that you're looking for. Someone told me that
was available to take orally. Is that true?
MS. SOULE:
That's true, but it doesn't work the same. I've tried it. This
is the only thing that has helped the seizures in my leg, and
the pain. Sometimes it is so bad that I can't put my prosthesis
on and walk. This marijuana is the only thing that has stopped
that. To this day, I'm still astounded because I never believed
it would help me. The doctors told me they were just going to
keep me comfortable until I die.
SENATOR HUGGINS:
Assuming we can get a pharmaceutical company to produce THC that
would provide you relief, would you think that a good
alternative?
MS. SOULE:
I wish they would do that. I would support it. There are so many
patients like me that need help but have to get it illegally. I
met a man from Tok who is 72 years old, who owns a large company
and he's doing the same thing I'm doing because we cannot find
doctors. You can call the state and they will tell you there are
250 people on the medical marijuana lists but they will not give
you the name of a doctor.
8:55:08 AM
MICHAEL MACLEOD-BALL, Executive director, ACLU:
We believe it is near impossible for the Judiciary Committee to
reach full understanding of the issues involved with the
abbreviated hearings that you've had. We object for the record
in that sense. You've acknowledged you have received many
studies and reports. It's a lot of information that has been
submitted to you and we believe it is next to impossible to
reach a full understanding of the meaning of all of that
material with just a series of six or seven three-minute
presentations by people who oppose SB 74. We believe the weight
of the evidence, if fully understood by the committee would
clearly show the justifications for SB 74 are not accurate.
8:56:49 AM
MR. MACLEOD-BALL:
The focus is on privacy rights guaranteed under the Alaska
Constitution. The first issue to consider is what the privacy
rights do. Is there a basis of taking away a portion of that
right? A lot of the testimony that you have heard by the
proponents deals with commercial cultivation, selling and
distributing, providing it to kids, driving while under the
influence. Almost all of the testimony deals with one or more of
these issues. None of those are within the privacy rights. There
is no restriction on your ability to regulate in that area. The
possession of small amounts for personal use in the home for use
in a way that does not adversely impact others, that is within
the privacy right. Testimonies by proponents of SB 74 have
acknowledged that this is not the problem. If someone has a
single marijuana cigarette in their home, they would now be
subjected to imprisonment up to 10 years. If someone has a
single marijuana seed in an ashtray in their home, they would
now be subjected to imprisonment up to 90 days. There is a
regiment of punishment in this bill that has not been shown to
work.
8:59:01 AM
MR. MACLEOD-BALL:
The Ravin decision in the 1970s was more about privacy than
marijuana. It acknowledged in that decision that there is some
risk to the use of marijuana but specifically said that risk
does not justify regulation of small amounts for use in the
home. It also acknowledged in that decision that kids might be
present in the home in which marijuana is also present. It said
that even so that was an insufficient threat to public safety to
justify regulation. So we would ask you to consider the
reasoning of the Ravin decision rather than simply look on the
Ravin decision as one that legalized marijuana. We believe it is
very important that the findings should match the facts. I'm
please to see that Mr. Guaneli has offered revised findings. I
would have liked to have had the opportunity to look at those
ahead of time so that I could comment on those and to see if
they are any better than the existing findings, which have been
acknowledged as an overstatement of the asserted justifications
for the bill. I would hope the committee might give us the
opportunity to review the findings and comment on them.
I would like to point out a number of the overstatements that
have been made by the proponents of the bill because the
findings are based on the underlying studies and facts that have
been presented to you. It's important for you to realize that
the oral comments and some of the written comments are
misleading. Some of the scientific experts have already
testified against this bill. There were assertions about usage
by children. The state has referred to a 1990 study to claim
that 22 percent of kids of marijuana users use marijuana
themselves, yet only 5 percent of kids of non-users use
marijuana. There are problems with that assertion. First, only 4
pages of the study were submitted to the committee for review.
The study was much longer and had much more detail than the four
pages that were submitted. If you look at the full study, you
will see that the study itself says you cannot draw general
conclusions from the statistics reported because the sample size
was too small. The state didn't tell you that. There are also
methodology and reporting problems. Kids of non-users are less
likely than kids of users to acknowledge that they themselves
have used. That throws off the figures by quite a bit.
9:01:44 AM
MR. MACLEOD-BALL:
Usage rates reported in that study confirm there has been no
increase in usage rates since the Ravin decision. Also the
testimony ignored the actual recommendations of that report. The
recommendations generally in that report were to focus on
prevention and treatment, not on criminalization. It's important
for this committee to realize that simply listening to the oral
testimony does not give you a full flavor of what the actual
studies that have been submitted to this group represent. There
is another important assertion that was made by the proponents
of the bill. They stated that 15 percent of rape suspects had
marijuana in their system. If you look at the study from which
that fact was drawn, you will see that study focused more on the
presence of alcohol in the system of rape suspects than the
presence of marijuana. That same study showed that 70 percent of
those rape suspects had alcohol in their systems. They deemed
that 15 percent of suspects who had marijuana had such a trivial
amount that they did not study it further. They did not drill
down to get more information. However with the alcohol, they
drilled down to try to determine what was driving that.
The study itself implied that the use of marijuana and
aggression was not one to be studied further; rather the focus
should be on the presence of alcohol. It's important for the
committee to come to a full understanding of what all these
studies that have been submitted to you show. We are also
concerned that there may be a predisposition on this bill that
has been reflected in some of the previous hearings. For example
in the Senate Health and Social Services Committee hearing,
there was a single administration official who spoke against the
bill and she was chastised for doing so. However there have been
a number of administration officials who have spoken in favor of
the bill yet they have been praised for doing so. It seems to me
there is a chilling effect on the proponents of the bill who may
be within the administration. And for these reasons, we believe
that even if the findings are left in the bill in their original
form the court will choose to go beyond those findings to see
what the actual studies and reports say.
9:04:31 AM
MR. MACLEOD-BALL:
There are a lot of cases in both the US and Alaska courts that
show that when a fundamental right is involved the courts will
not simple defer to the Legislature in their findings. In most
legislation of course, they will. There is great deference given
to the Legislature in legislative findings in looking at the
purpose of a particular state action. But that is not the case
when a fundamental right is involved and the privacy right is
involved in this case. There is one case in particular, which is
referenced in my written testimony Justice Clarence Thomas who
has said that regardless of what information is relied upon by
the Legislature, the Legislature cannot turn black into white
and cannot turn slavery into freedom simply by saying it is so.
The great weight of the good scientific evidence here shows that
marijuana has some risks but not great risks. Certainly no more
so than were present in 1975 when the Ravin decision came down.
The Ravin decision stands that the privacy right is paramount
unless there is a compelling interest. Those factors are not
present in this case.
9:06:02 AM
MR. MACLEOD-BALL:
I mentioned before about the 1990 study that the state relied on
to assert that kids are more affected now. If you look at that
full study it says kids who do poorly in school, kids who are
emotionally distressed, kids who are abused, are more likely to
abuse drugs. A program that does not address these factors will
be bound to fail in trying to lessen drug abuse, yet that is the
focus of this bill. This bill will not focus on those factors;
it will simply criminalize minor possession. Granted the focus
should be on education and on prevention and on the science. A
wealth of which has been submitted to the committee for your
consideration. We believe that if you really focus on all of the
scientific evidence, you will not simply criminalize minor
possession of small amounts in the home, rather you will alter
the penalties, you will drastically modify the findings, and
hopefully you will defeat this bill.
9:07:17 AM
CHAIR SEEKINS:
For the record, regardless of anyone's perception of our
inability to understand the issue, we each will do the best that
we can and we'll operate within the full scope of our
constitutional authority.
MR. PARKER:
We have assembled what we think are the best experts in the
country on the subject to respond to the findings. Now today the
DOL offers all new findings, replacing the entire second section
of the bill. I've done a quick contrasting comparison here but
it's hard to do because they are in different forms. I certainly
wish the experts would have had a chance to look at the findings
the DOL proposes to you to pass it into law before they comment.
Because I'm not an expert and because I've just seen it, I don't
think this bill is ready to go with these findings
uninvestigated at this point. We haven't gotten to the penalty
section yet, which turns misdemeanors into felonies. Perhaps the
best thing I can say to you now is thank you for your patience.
I would like very much to spend a little time with this proposed
amendment.
9:09:02 AM
CHAIR SEEKINS:
We have received a great deal of information. (Chair Seekins ran
down the list of books and studies given to the committee by
different entities.)
9:11:53 AM
Senator Gene Therriault joined the committee.
SENATOR HUGGINS:
Mr. Parker, one of my concerns, I as much as anybody sitting
before you today, feels strongly about privacy and individual
rights. I'm very sensitive to that point. One of the rules in
our family is that to the extent we can when kids are hanging
out with kids we try to be as protective as possible of who
those kids are. Out of these households where parents are using,
kids are exposed to marijuana and it comes the potential
exportation of the mentality on the school grounds and my wife
and I can't control because it's forced association, in the
classroom. Give me your thoughts about what parents are supposed
to do.
MR. PARKER:
You mean, Senator, that the courts findings...
SENATOR HUGGINS:
I'm not interested in the courts. I'm interested in the
sociological dilemma of parents in the community, and what kids
are seeing and experiencing and the mentality and how you answer
that proposition. Because I don't know the answer but I've been
asked that and I'm faced with it myself as a parent.
9:13:48 AM
MR. PARKER: I think I know what you mean, Senator, let me make
sure I got the question right. You mean that the courts
finding...
SENATOR HUGGINS:
I'll say it one more time; I'm not worried about the courts. I'm
talking about kids that come from an environment where marijuana
is used in the house and the potential exportation of use or the
mentality of use going to, in this case, the school site.
MR. PARKER:
So in other words did all this produce a mentality that makes
drugs in the schools more prevalent? Is that...?
SENATOR HUGGINS:
Yes, that's good enough for government work.
MR. PARKER:
No Senator it doesn't. The answer lies in the other direction.
The way to keep children from drugs is to control and regulate
it. If we continue to outlaw it, even against the courts
constitutional findings, we will find what we have found for the
last 15 years, that there is just more marijuana than before.
The troopers' testimony is it is not stopping. We must take a
different tack if we're trying to do something about drugs in
the schools. Ratcheting up the penalties, especially on young
people, making them felons, is not the solution. It is exactly
wrong. It is the reason we have problems with drugs in the
school today, because of our approach to prohibiting it instead
of regulating it.
9:15:25 AM
SENATOR HUGGINS:
One of the things military leaders are faced with is the young
men and women have a federal law they have to abide by and they
come to Alaska and we immerse them in our state where we have a
conflicting state law. My son will be in the military in a
couple years and he will be a leader and he will have to abide
by that federal law. When you are the leader of young people who
are doing the country's business in Alaska that creates a tough
environment. Your thoughts?
MR. PARKER:
My thoughts are that adults in Alaska make choices about alcohol
and tobacco and prescription drugs, all sorts of things. Alaska
adults make choices about marijuana too. The federal law, all
those things must be taken into consideration by each individual
but adults in Alaska enjoy that right to choose under the
constitution.
9:17:02 AM
SENATOR THERRIAULT:
The issue of whether regulation would take care of the problem,
we regulate tobacco products but yet tobacco products used by
underage smokers is still a problem.
MR. PARKER:
It is but it's down and the children tell us it is now easier to
get marijuana than tobacco because of that. One is regulated and
one is not.
CHAIR SEEKINS:
Are you advocating that we logically extend this argument that
anything that's illegal will cut down the use of it by making it
legal and regulating it?
MR. PARKER:
I'm trying to confine my comments to marijuana and this bill.
CHAIR SEEKINS:
But wouldn't that logically extend to cocaine, heroin, and any
other drug? You're saying the way to cut down the use is to make
it legal and regulate it.
MR. PARKER
I don't' mean to imply or infer that. I just know this; when it
comes to marijuana, we have had a long 30-year experiment in
this state about decriminalizing it, re-criminalizing it, now
felon-izing it. And I think the answer is becoming clear we are
moving in the wrong direction if we are trying to eradicate it.
The people who tell us they are spending their careers trying to
solve it and it is still booming, millions of dollars a year. I
believe the answer is in a different direction. We regulate
alcohol and tobacco, and I think we should regulate marijuana.
CHAIR SEEKINS:
Why do you think people like Mr. Guaneli want to keep it
illegal?
MR. PARKER
Mr. Guaneli would be the best one to answer that, Senator.
CHAIR SEEKINS:
I'm asking you why do you think that. If you want to avoid that
question, go ahead. Why do you think that?
9:18:54 AM
MR. PARKER:
Why do I think...
SENATOR FRENCH:
I know it's your question and it's your committee, but that just
seems like...
CHAIR SEEKINS:
This is my committee. I want to know why is it that there is an
attitude against it? I'm not saying just Mr. Guaneli, but why do
people want to keep something that is so harmless illegal?
What's the reason?
MR. PARKER:
Well the assistant attorney general is a long time public
servant. It's the Governor's bill. I believe he is doing his
job. I assume he also believes it but I don't know that makes...
CHAIR SEEKINS
It appears to me that there are at least two universes of
people. People who say, "Oh it's harmless just go ahead and
regulate it" and other people are saying, "It's not harmless and
it should be illegal to use it and to sell it and buy it and
grow it and all the rest of the stuff that goes along with it."
I'm just trying to figure out, it is because what I've gotten so
far is it's a matter of enlightenment. Those people who truly
understand the scientific background will come over to one side.
Is that what it is? That's what I heard in the testimony.
MR. PARKER:
I don't think one side is enlightened over the other. There was
a poll done during the campaign last year that says 45 percent
of the Alaska population dug in on either side. They are not
swayed by arguments or advertisements in either way. Other side
thinks marijuana is evil and should be eradicated from the land,
the other side thinks it is here to stay and we should do
something about regulating it. In the middle are 10 percent of
the voters. When it came to medical marijuana they voted yes -
56 percent. When they came to legal marijuana they voted no. The
poll seems to be true. This testimony, these books, these papers
by the experts, is meant to present our side of the argument.
9:21:35 AM
MR. PARKER:
You are in a terrible position to try and decide which side
you're on and whose experts you listen to and who in your
district you listen to. It is a substantial minority - 45
percent and not legalizing it is one thing, making them felons
is quite another.
CHAIR SEEKINS:
It is interesting because in this very committee we have bills
on methamphetamines and on marijuana. And in this very
committee, if I take this logical extension, if we regulate and
make methamphetamines legal, the problem will be reduced. I have
a hard time making that logical extension so I have a hard time
making the direct application.
MR. PARKER:
For the record, I am not advocating the legalization of
methamphetamines; I'm just here to testify on SB 74. Thank you.
CHAIR SEEKINS:
Thank you very much for your patience and for answering my
questions.
9:22:56 AM
CHAIR SEEKINS:
We have before us revised findings. I think we'll give the
members a chance to take a look at that before we propose it as
an amendment. We've completed the public testimony.
SENATOR FRENCH:
Mr. Guaneli, what is the number of arrests each year for
marijuana, any charge, the number of convictions, and the number
of cases disposed of at the highest charge?
MR. GUANELI:
That is track-able and I can provide you with much of that
information later today. I have been collecting some of it
helping the DOC prepare fiscal notes and so I have some of that
information in my office.
9:24:42 AM
SENATOR FRENCH referred to a chart that Mr. Guaneli spoke of
earlier.
Do you agree with the analysis that giving a marijuana cigarette
to someone under 21 would be a B felony under SB 74.
MR. GUANELI:
That is correct. Distributing marijuana to anyone under 21 would
be a B felony offense. Under current law you have to be under 19
for it to be a B felony offense and there has to be three years
of age difference between them. This proposal seeks to amend
that.
SENATOR FRENCH:
Right now the way the law is if an 18-year-old person gives a
marijuana cigarette to an 18 year old, what crime is committed?
MR. GUANELI:
Delivering one marijuana cigarette at this point would be a
class B misdemeanor. That's a hold over from the early 1980s
period. I think that's a weakness in the current law.
SENATOR FRENCH:
Under this bill 18 year old to 18 year old would be a class B
felony?
MR. GUANELI:
That's correct.
9:26:30 AM
CHAIR SEEKINS:
Mr. Guaneli, you've heard in testimony earlier, those people who
work in the administration who agree with the premise of SB 74
receive accolades and those who don't receive some kind of
chilling behavior or disapproval. Are you aware of anything like
that?
MR. GUANELI:
I think the testimony you heard related to a hearing in Senate
Health and Social Service at which Barbara Brink, director of
the public defender agency, testified in opposition to the bill
and Senator Wilken took some exception to her doing so in her
official capacity rather than a private capacity. I think that
is what the testimony relates to. I think that Senator Wilken
has his reasons for expressing that view and that is the only
thing I've heard in all of these proceedings.
CHAIR SEEKINS:
Have you had any pressure from farther up the chain on what your
position on this bill should be?
MR. GUANELI:
I know the Governor and the attorney general support this bill
and would like to see it become law. I have been involved in
dealing with marijuana issues for many years. I have been
involved in some of the litigation. I wrote the state's petition
to the Supreme Court trying to get the Supreme Court to review
the Noy Opinion, which came out from the court of appeals. I
have done a lot of literature research myself. It doesn't take
any pressure to get me to be on this side of the issue.
9:28:36 AM
CHAIR SEEKINS:
Would you believe that legalizing and regulating marijuana would
cut back use by young people?
MR. GUANELI:
I'm not certain I know the answer to that but I think Mr.
Parker's opinion that marijuana should be regulated is an
interesting concession because essentially what the right to
privacy argument in the Ravin decision says is, the state didn't
have a sufficient interest in regulating and criminalizing
marijuana. In essence what the court was saying and what all the
people who talk about right to privacy and the state doesn't
have a sufficient interest is, that it's none of the
Legislature's business to deal with marijuana in the home. I
think that the evidence that has been presented shows that it
is. Parental use and parental approval of marijuana makes it
more accessible to kids. I think the Legislature has a strong
interest. What Mr. Parker said was, the Legislature ought to
regulate it. I think if the Legislature has the power to
regulate it, then I think that is a concession that there is a
state interest in the Legislature to take another policy choice
and that is to criminalize it and to punish it. Frankly I think
that makes our point. I think there is sufficient evidence in
the record that the Legislature has a strong interest in dealing
with marijuana in the way it chooses. I don't see any other
state in the country regulating it. Alaska is the only place
where recreational use is legal.
9:30:51 AM
SENATOR THERRIAULT:
You indicated you have been tracking the number of cases that
would be swept in to the Department of Corrections (DOC). I just
looked at the fiscal notes and we don't have the DOC fiscal
note. I'm curious to know what that is.
MR. GUANELI:
I'm aware of that and we just had a discussion in the Governor's
office bout getting the DOC fiscal note and that is in the
works. I have a meeting with Portia Parker later today to go
over the statistics and analyze that. My initial reaction from
looking at the statistics is, it's not going to be a significant
change.
SENATOR HUGGINS:
I previously asked Mr. Parker about the legal dilemma between
the federal law and the state law. From your perspective, what
does this do legally for you in your profession?
MR. GUANELI:
In other words that marijuana is illegal at the federal level. I
think it's confusing to the public. They see on the one hand it
is federally illegal and in fact a Schedule one controlled
substance. Frankly when I talk to people, they ask about the
federal law. As a practical matter, the federal authorities
don't get involved in marijuana at the ounce level. They have
certain criteria and I think it was somewhere in the several
pounds before they would get involved. If there is a large
marijuana growing operation they will get involved but they have
left it to the state. I think that is probably appropriate. We
all bristle when the feds get too involved. In this case I wish
they were a little more involved. I think this bill corrects
that.
9:34:32 AM
SENATOR FRENCH:
I worked eight years on the slope and I was subjected to random
drug testing and I wasn't subjected to any dilemma whatsoever. I
knew if I used drugs, I'd lose my job so I just didn't.
SENATOR HUGGINS:
My point is that last week they lived in Florida and this week
they live in Alaska and they hear that marijuana is legal here
and they use marijuana with a random drug test in a zero
environment, they are out of here.
9:35:30 AM
SENATOR GUESS:
As an example, can you tell me someone who uses marijuana for
personal use right now in the home, if SB 74 passes and becomes
law, what will change in that person's situation?
MR. GUANELI:
I have never heard it expressed by any law enforcement agency
that they would do anything different in terms of marijuana
investigations of personal use in the home. There are a lot of
other offenses out there to be investigated without concerning
the police on marijuana use in the home. On the other hand, if
the police are in the home legitimately, and there is marijuana
there, they certainly won't hesitate to take it and ask the
district attorney to file additional charges. But the focus of
their efforts has been for a long time, marijuana growing, and
trying to stem the supply. The problem is the recent decisions
by the court of appeals, first in the Noy case and then in the
Crocker case, have limited the police ability to get search
warrants to deal with marijuana growing. That is what ought to
change. The marijuana growers ought to be the most concerned
about SB 74. They are the ones whose lives will be disrupted
because SB 74 will allow the police to get search warrants to
investigate those cases.
SENATOR GUESS:
So if that changes then the price goes up.
MR. GUANELI:
That is usually what happens when supply goes down if demand is
also not reduced. We are hoping that by sending a strong message
out that demand will be reduced as well. I hope the price goes
up.
9:38:17 AM
SENATOR GUESS:
Is that also the case with knock and talks? That law enforcement
believes that there won't be any increase?
MR. GUANELI:
The police technique of knock and talk is simply knock on the
door and see if the people will admit it. Often times, they do.
Usually that activity is geared at getting information about
marijuana growing and not simply to go after personal using.
They use that to get information about where marijuana is coming
from and about who actually is growing it. I don't anticipate a
huge increase.
SENATOR GUESS:
If the focus is on growing and the supply side, explain to me
why the bill focuses on the possession side and the one pound
and the four ounces? Why that is the policy call?
MR. GUANELI
The bill definitely does draw different lines in terms of what
amount of possession triggers either misdemeanor penalties or
felony penalties. Currently it takes over a pound of marijuana
in possession to be a felony. SB 74 would propose to reduce that
to four ounces. Captain Herrington testified that four ounces is
a lot of marijuana. You're talking about $1,000-1,500 in value
and something that makes perhaps in excess of 400 marijuana
cigarettes. Because the THC potency decreases over time the
person either has to use an awful lot to use it up or they have
to sell it. If you've got a quarter pound, that is a lot of
marijuana and that is something the law ought to discourage.
When you discourage possession of the larger amounts, you
discourage growing. To the extent you reduce that supply by
increasing the penalties for possession of certain amounts
allowing the troopers to go in and start investigating marijuana
growing, you reduce its availability generally, and you reduce
its accessibility to kids and you reduce its accessibility to
rural Alaska villages.
9:41:49 AM
SENATOR FRENCH:
Why not focus on that because it seems like you are on solid
ground. Marijuana is more expensive and marijuana is more
potent; the idea of lowering the four ounces. The amount you
need to make a felony might be a rational call. That is just one
portion of this chart and there are five others. One makes it a
B felony for one 19 year old to hand a marijuana cigarette to
another 19 year old. Part of it makes it a crime to have any
even if you're not using it, while you're in a car. Part of it
makes it a crime to possess any amount in the home. If you are
aimed at drug growing and drug production, that splits the
troublesome argument away and leaves us all in total agreement.
MR. GUANELI:
The specific proposal to make it a B felony for young people to
give other young people small amounts of marijuana is a
reflection of the new reality about marijuana. Because it's
potent, it's often sold on a cigarette-by-cigarette basis,
particularly in rural Alaska. Because it is so expensive on a
per-ounce basis, kids can only afford one or two cigarettes at a
time so you have a situation where that has become the normal
vehicle for selling, is a cigarette at a time. I think that this
is trying to get at that new reflection of reality. We've got
smaller and smaller amounts being the normal vehicle for
marijuana being sold and second we've got it going to kids. That
was a reflection of that. Is that the most important part of
this bill? No. But we tried to reflect the current reality of
the way marijuana is being used and the patterns of usage and
tried to deal with that.
9:44:25 AM
SENATOR FRENCH:
I know this bill is leaving committee fairly soon. I would
appreciate having the opportunity to review the findings and
prepare an amendment. That is my request.
CHAIR SEEKINS:
I'm trying to figure out what motivates everybody. What do you
think motivates the side that does not want this to pass?
MR. GUANELI:
I think that there are probably a variety of motivations. I'd
like to think the ACLU motivation is simply a matter of trying
to preserve its perception of constitutional rights regardless
of the context. For other people, Debbie Soule and Jim Welch, I
think that some of those people have concerns about medical
marijuana. As I testified in my very first appearance here, this
bill does not make any change to the medical marijuana laws. I
think there is a whole other segment that simply likes to use
marijuana. It's another recreational way to become high and
intoxicated. I think they don't see that it goes beyond the four
walls of their house, or they like to think that it doesn't and
I like to think that it does.
9:46:57 AM
SENATOR GUESS:
In response to some of the testimony we have heard on medical
marijuana, it might be that our current law isn't doing what we
intended it to do. Have you all looked at the issue that was
raised today?
MR. GUANELI:
This bill does not change medical marijuana laws in any way. Ms.
Soule's testimony today was "the State of Alaska has made it
impossible for doctors to prescribe marijuana", actually the law
makes it very clear that doctors don't have to prescribe it,
it's just a recommendation and as long as they talk to the
patient about it and the pros and cons, that's enough. She also
said, "I know I can grow up to six plants but it isn't
practical", six plants can be a lot. The law says only three of
them can be mature plants. Captain Herrington said they had a
recent marijuana growing operation where they had five big
plants and that was a commercial operation. So I think the
Legislature has done a very good job saying they can have a
rotating crop. That makes sense, and in addition, they said, it
doesn't have to be the patient himself who grows those, the
statute says you can have a care-giver who does the growing for
you, and because there was concern at the time of what happens
if the care-giver is on vacation or sick, there is a concept in
the Alaska medical marijuana law for an alternate care-giver.
You really have three people who can grow the marijuana. The
Legislature at the time thought that was an acceptable way of
allowing medical marijuana to be provided. Ever since that time,
since Ravin, selling marijuana has been illegal so none of that
has ever changed. My feeling is the medical marijuana law is set
up in a way to make it as convenient as possible for patients to
be able to grow it or find someone to grow it for them without
making it so broad that it runs the risk of circumventing the
law. Senator Dyson's comments of taking that up in a separate
bill, maybe that is the right approach.
9:50:10 AM
SENATOR GUESS:
She was incorrect that she needs a prescription to not be
arrested?
MR. GUANELI:
That's correct. A prescription is not required. That was
specifically put in the law because there was concern at the
time the federal government was talking about if doctors
actually prescribed illegal marijuana that they might take some
action against their licenses.
CHAIR SEEKINS:
Other questions? We will have time for members to take a look at
the proposed findings and other information. We will give
adequate notice to all the parties. SB 74 will be carried over
for a future date.
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