Legislature(2013 - 2014)BELTZ 105 (TSBldg)
02/21/2014 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB110 | |
| SB66 | |
| SJR21 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 66 | TELECONFERENCED | |
| *+ | SB 136 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 110 | ||
| = | SJR 21 | ||
SB 66-IMITATION CONTROLLED SUBSTANCE
1:37:27 PM
CHAIR COGHILL announced the consideration of SB 66. "An Act
relating to imitation controlled substances; and providing for
an effective date." This was the first hearing
1:37:49 PM
SENATOR DENNIS EGAN, Alaska State Legislature, sponsor of SB 66,
introduced the legislation paraphrasing the following sponsor
statement: [Original punctuation provided.]
Senate Bill 66 makes it easier for law enforcement to
crack down on drug dealers by making illegal any
substance represented as a controlled substance. Drug
dealers often rip off customers by selling them salt or
sheet rock dust as meth, for example. When a drug dealer
rips off a law enforcement officer during a sting
operation, the officer can't make a charge because the
substance doesn't 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(3) lists chemicals a
substance must contain in order to be illegal. Senate
Bill 66 changes the definition of an imitation
controlled substance to more generally make illegal
any substance made to look like an already illegal
drug. By omitting specific chemicals from the
definition, the change makes illegal a substance "that
is not a controlled substance and that, by dosage unit
appearance (including color, shape, size, and
markings) and by representations, would lead a
reasonable person to believe that the substance is a
controlled substance."
Senate Bill 66 will change our imitation controlled
substance law to enable law enforcement officers to
more effectively charge drug dealers in the State of
Alaska.
1:40:11 PM
CHAIR COGHILL asked if removing all the specific references to
controlled substances runs the risk that some of the more
harmful drugs may no longer be illegal.
SENATOR EGAN replied the problem is that the law is too
specific; the formulas can be changed just enough so they're no
longer on the list of controlled substances and the police can't
file a charge.
1:41:23 PM
ALEDA BUS, Staff, Senator Dennis Egan, added that things like
ephedrine are still covered in a list of certain chemicals.
CHAIR COGHILL asked if violation of this law is a class C
felony.
SENATOR EGAN acknowledged that concern was expressed about the
severity of the penalty, and there was a committee substitute
(CS) that reduces that penalty.
1:43:27 PM
LEE PHELPS, Drug Enforcement Officer, Juneau Police Department,
Juneau, Alaska, stated that the imitation controlled substance
law isn't used very often, but it would help if the definition
wasn't so specific. He explained that in the past 2.5 years he's
been part of more than 100 controlled buys and only three times
was he sold anything that was not an imitation controlled
substance. In some cases it was salt as methamphetamine or
cooked down tootsie rolls as heroin, but because the crime lab
didn't find any of the listed chemicals like ephedrine or
pseudoephedrine there wasn't a crime. If the definition was
changed to be any substance that is purported to be a controlled
substance, a controlled buy of a pinch of salt for $120 would
fit under the imitation controlled substance law.
CHAIR COGHILL asked if intent would have to be proved if it was
either an actual controlled substance or a representation.
OFFICER PHELPS said yes and the law also takes into account any
statements that the person makes and the way the substance is
packaged.
1:45:27 PM
SENATOR DYSON asked at what point the illegal sale might be
prosecuted as fraud.
OFFICER PHELPS answered that in the instances when JPD was
unable to charge under the imitation controlled substance law,
they have charge the person with theft. That's a misdemeanor.
SENATOR DYSON observed that theft must include getting something
of worth under false pretenses.
OFFICER PHELPS agreed and noted that it would be a class A
misdemeanor if the sale was over $50.
SENATOR DYSON asked if the defense has ever brought up the
concept of mens rea [criminal intent].
OFFICER PHELPS said he didn't know.
SENATOR DYSON asked what heroin, good cocaine, and black
oxycodone currently sell for in Juneau.
OFFICER PHELPS replied the street price for heroin is $100 for
1/10 gram; for methamphetamine it's $120 for 3/10 gram; for
cocaine it's $100 to $120 a gram; and for oxycodone it depends
on the strength of the pill.
SENATOR DYSON asked if people in Juneau smoke and shoot
Oxycodone.
OFFICER PHELPS answered yes.
1:50:38 PM
CHAIR COGHILL asked Ms. Wollenberg for an explanation of
charging under the imitation controlled substance law if AS
11.73.020 is repealed.
TRACEY WOLLENBERG, Attorney, Public Defender Agency, Department
of Administration (DOA), explained that AS 11.73.020, deals only
with the possession of those individual chemicals with the
intent to manufacture an imitation controlled substance. While
that provision would be repealed, AS 11.73.010 would still
prohibit manufacturing, delivering, or possessing the actual
imitation controlled substance. That would be a class C felony.
Responding to a further question, Ms. Wollenberg said that by
removing the individually listed chemical substances it broadens
the definition of imitation controlled substance. The definition
may also be vaguer because it will be subject to appearance and
representations of the person as opposed to being tied to
specific chemicals.
1:53:52 PM
SENATOR DYSON asked what her concerns would be to protect the
defendant's rights if he/she was accused of misrepresenting
sheetrock powder and selling it in baggies.
MS. WOLLENBERG replied one concern would be with the level of
offense. She questioned whether it makes sense to charge someone
who manufactures or delivers sheetrock at the same class C
felony level as someone who possesses an actual controlled
substance such as marijuana or cocaine. A defense attorney might
also focus on what the representations were and if it was
reasonable to think that the substance was marketed as a
controlled substance. She opined that because the bill is a
little broad, it could capture some things unintentionally and
not grab the next substance that comes along.
1:56:17 PM
SENATOR DYSON said he can picture a defendant claiming he never
intended to sell a drug, but rather to defraud the person of
their money.
MS. WOLLENBERG agreed there is a question of what mens rea
applies to the statute. For manufacture or delivery there would
typically be a knowing mens rea, she said, and then the question
is whether there is mens rea with regards to an imitation
controlled substance or if it goes more to motive.
CHAIR COGHILL commented that a person can be charged with a
misdemeanor for selling marijuana and a felony for selling
oregano under this scenario.
MS. BUS stated that Legislative Legal looked at that and drafted
an amendment to reduce the class of crime in that circumstance.
CHAIR COGHILL said the committee would consider that amendment
at a subsequent hearing. He then asked Lieutenant Dial if he had
any comments.
1:59:29 PM
RODNEY DIAL, Lieutenant, Alaska State Troopers, Department of
Public Safety (DPS), Ketchikan, Alaska, reported that the
department has no concerns with SB 66, but he wanted to point
out that this legislation would not affect the crime of delivery
of an imitation controlled substance to a minor under AS
11.73.030, which is a class B felony. He also pointed out that
theft in the third degree, which is a class A misdemeanor, is
anything more than $50 and less than $500. Theft in the fourth
degree is anything less than $50 and that's a class B
misdemeanor.
LIEUTENANT DIAL reported that public safety drug investigators
routinely encounter substances that are portrayed as controlled
substances, but they aren't listed in statute so an individual
can't be charged. For example, sweetheart candy is purported to
be OxyContin and melted brown sugar is purported to be heroin.
The individual couldn't be charged in these cases.
SENATOR DYSON said he assumes in these situations that
prosecutors have been reluctant to move forward with a case of
fraud.
LIEUTENANT DIAL confirmed that was correct.
CHAIR COGHILL announced he would hold SB 66 in committee for
further consideration.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB66 Letter of Support - Peace Officers.pdf |
SJUD 2/21/2014 1:30:00 PM |
SB 66 |
| SB 66 Sponsor Statement.pdf |
SJUD 2/21/2014 1:30:00 PM |
SB 66 |
| SB66 Legal Services Memo.pdf |
SJUD 2/21/2014 1:30:00 PM |
SB 66 |
| SJR 21 AJC. BYLAWS.pdf |
SJUD 2/21/2014 1:30:00 PM |
SJR 21 |
| SJR 21 - Judicial Selection Map.pdf |
SJUD 2/21/2014 1:30:00 PM |
SJR 21 |
| Letter of Support - CBJ.PDF |
SJUD 2/21/2014 1:30:00 PM |
SB 66 |
| Letter of Support - Kathleen Miller.pdf |
SJUD 2/21/2014 1:30:00 PM |
SJR 21 |
| TESTIMONY OF DAVID JENSEN.pdf |
SJUD 2/21/2014 1:30:00 PM |
SJR 21 |
| SJR 21 - AFN Letter.pdf |
SJUD 2/21/2014 1:30:00 PM |
SJR 21 |