04/04/2014 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB284 | |
| HB369 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 184 | TELECONFERENCED | |
| += | HB 366 | TELECONFERENCED | |
| += | HB 284 | TELECONFERENCED | |
| += | HB 369 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 4, 2014
1:33 p.m.
MEMBERS PRESENT
Senator John Coghill, Chair
Senator Lesil McGuire, Vice Chair
Senator Fred Dyson
Senator Donald Olson
Senator Bill Wielechowski
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 284
"An Act relating to an interstate compact on a balanced federal
budget."
- HEARD & HELD
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 369(JUD)
"An Act relating to restrictions on the criminal prosecution for
certain offenses for a person who seeks medical assistance for a
person experiencing a drug overdose."
- HEARD & HELD
SENATE BILL NO. 184
"An Act relating to the exemption from jury service for certain
teachers."
- BILL HEARING CANCELED
CS FOR HOUSE BILL NO. 366(JUD)
"An Act relating to reporting an involuntary mental health
commitment to the National Instant Criminal Background Check
System; relating to the sealing of records of mental health
proceedings; and relating to relief from a disability resulting
from an involuntary commitment or an adjudication of mental
illness or mental incompetence."
- BILL HEARING CANCELED
PREVIOUS COMMITTEE ACTION
BILL: HB 284
SHORT TITLE: COMPACT FOR A BALANCED BUDGET
SPONSOR(s): REPRESENTATIVE(s) KELLER
01/29/14 (H) READ THE FIRST TIME - REFERRALS
01/29/14 (H) STA, JUD
02/13/14 (H) STA AT 8:00 AM CAPITOL 106
02/13/14 (H) Moved Out of Committee
02/13/14 (H) MINUTE(STA)
02/14/14 (H) STA RPT 6DP 1NR
02/14/14 (H) DP: MILLETT, GATTIS, KELLER, ISAACSON,
HUGHES, LYNN
02/14/14 (H) NR: KREISS-TOMKINS
02/21/14 (H) JUD AT 1:00 PM CAPITOL 120
02/21/14 (H) Heard & Held
02/21/14 (H) MINUTE(JUD)
02/28/14 (H) JUD AT 1:00 PM CAPITOL 120
02/28/14 (H) Heard & Held
02/28/14 (H) MINUTE(JUD)
03/03/14 (H) JUD AT 1:00 PM CAPITOL 120
03/03/14 (H) Moved Out of Committee
03/03/14 (H) MINUTE(JUD)
03/05/14 (H) JUD RPT 3DP 1DNP 3NR
03/05/14 (H) DP: MILLETT, LYNN, KELLER
03/05/14 (H) DNP: GRUENBERG
03/05/14 (H) NR: LEDOUX, PRUITT, FOSTER
03/19/14 (H) TRANSMITTED TO (S)
03/19/14 (H) VERSION: HB 284
03/21/14 (S) READ THE FIRST TIME - REFERRALS
03/21/14 (S) JUD
03/27/14 (S) STA AT 9:00 AM BUTROVICH 205
03/27/14 (S) <Bill Hearing Canceled>
03/31/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/31/14 (S) Heard & Held
03/31/14 (S) MINUTE(JUD)
04/04/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: HB 369
SHORT TITLE: DRUG OVERDOSE: IMMUNITY FROM PROSECUTION
SPONSOR(s): REPRESENTATIVE(s) PRUITT
02/26/14 (H) READ THE FIRST TIME - REFERRALS
02/26/14 (H) JUD
03/17/14 (H) JUD AT 1:00 PM CAPITOL 120
03/17/14 (H) Heard & Held
03/17/14 (H) MINUTE(JUD)
03/21/14 (H) JUD AT 1:00 PM CAPITOL 120
03/21/14 (H) Moved CSHB 369(JUD) Out of Committee
03/21/14 (H) MINUTE(JUD)
03/24/14 (H) JUD RPT CS(JUD) NT 5DP 1AM
03/24/14 (H) DP: MILLETT, PRUITT, FOSTER, GRUENBERG,
LYNN
03/24/14 (H) AM: LEDOUX
03/28/14 (H) TRANSMITTED TO (S)
03/28/14 (H) VERSION: CSHB 369(JUD)
03/28/14 (S) READ THE FIRST TIME - REFERRALS
03/28/14 (S) JUD
04/02/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/02/14 (S) -- MEETING CANCELED --
04/04/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
WITNESS REGISTER
ERNEST PRAX, Staff
Representative Wes Keller
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 284
CHIP DEMOSS, Chair and CEO
Compact for America
Houston, Texas
POSITION STATEMENT: Testified in support of HB 284.
NICK DRANIAS, Director
Policy Development and Constitutional Government
Goldwater Institute
Phoenix, Arizona
POSITION STATEMENT: Testified in support of HB 284.
MORGAN HOPSON, Staff
Representative Lance Pruitt
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided information related to HB 369 on
behalf of the sponsor.
REPRESENTATIVE LANCE PRUITT
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 369.
KATHLEEN STRASBAUGH Attorney
Legislative Legal Services
Legislative Affairs Agency
Juneau, Alaska
POSITION STATEMENT: Provided information on HB 369, speaking as
drafter.
ANNE CARPENETI, Assistant Attorney General
Criminal Division
Legal Services Section
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Commented on HB 369.
RANDY HAHN, Alaska State Troopers
Department of Public Safety (DPS)
Wasilla, Alaska
POSITION STATEMENT: Provided information on HB 369.
ACTION NARRATIVE
1:33:09 PM
CHAIR JOHN COGHILL called the Senate Judiciary Standing
Committee meeting to order at 1:33 p.m. Present at the call to
order were Senators Wielechowski, Olson, Dyson, and Chair
Coghill.
HB 284-COMPACT FOR A BALANCED BUDGET
1:33:50 PM
CHAIR COGHILL announced the consideration of HB 284. "An Act
relating to an interstate compact on a balanced federal budget."
This was the second hearing.
1:34:03 PM
ERNEST PRAX, Staff, Representative Wes Keller, Alaska State
Legislature, Juneau, Alaska, sponsor of HB 284, reported that
Chip DeMoss and Nick Dranias were available to respond to
questions that were raised during the previous hearing.
1:34:47 PM
CHIP DEMOSS, Chair and CEO, Compact for America, Houston, Texas,
advised that in response to requests during the last hearing, he
sent details from the McLaughlin polling. He also sent
information from an economic study that was performed by two
economists who serve on the Compact for America Advisory
Council. It gets to the crux of the matter of prioritization of
expenditures at the federal level.
CHAIR COGHILL summarized his understanding of the requirements
of the compact. The governor is the lead from each state and
states are contractually bound unless three-fourths agree to a
change.
MR. DEMOSS agreed that signatory states are bound once the 38th
state joins. It is anticipated that Congress will have approved
the congressional resolution by then and the convention would be
scheduled about 45 days after the 38th state joins. The
convention is limited to 24 hours, so everything would be
complete in less than two months.
CHAIR COGHILL asked if the convention addresses the language
that is sent to Congress.
MR. DEMOSS clarified that when a state joins the compact, it is
pre-ratifying the language of the Balanced Budget Amendment
(BBA). Congress presumably will pass a congressional resolution
in the near future agreeing to send the BBA, if it's prepared by
the convention, back to the state legislatures for ratification.
Because the state legislatures have already provided the pre-
ratification in the compact, there is no need for any further
legislative action by any member state.
CHAIR COGHILL asked for an explanation of the 45 days.
MR. DEMOSS explained that the convention will be held in Dallas,
Texas 45 days after the 38th state joins the compact. This is
assuming that Congress will already have agreed to call the
convention in accordance with the compact.
1:38:44 PM
SENATOR DYSON offered his understanding of the explanation that
it wouldn't be necessary for each state to ratify the language
in the compact after the convention.
MR. DEMOSS agreed.
SENATOR DYSON observed that that implies that every state's call
for a convention has to be identical in defining the issue that
will be worked on during the convention.
MR. DEMOSS agreed; the application is in Article 5 on page 9,
lines 9-18. The actual resolution prospectively ratifying the
BBA, if it is passed at the convention and if it is referred to
the state legislatures for ratification by Congress, is in
Article 9 on page 14, lines 17-25.
1:41:55 PM
SENATOR MCGUIRE joined the committee.
CHAIR COGHILL summarized his understanding of the process.
NICK DRANIAS, Director of Policy Development and Constitutional
Government, Goldwater Institute, Phoenix, Arizona, said the
congressional resolution would be a counterpart to the compact
and as currently drafted it would be an omnibus resolution with
two parts. The first would be the call of the convention and the
second would be the selection of legislative ratification. The
goal is to pass the singular resolution thereby locking in
Congress's commitment to the selection of legislative
ratification.
CHAIR COGHILL asked if states are bound once [the 38th] state
signs the compact.
MR. DRANIAS affirmed that entrenchment occurs once 38 states
join the compact. That coincides with the effective date of the
application for the convention. The intent is to ensure that
none of the signing states back out of the process before the
convention can meet and vote the proposed amendment up or down.
CHAIR COGHILL asked if the cost per delegate is borne by each
state.
MR. DRANIAS said yes, but it's optional as to whether the state
funds the compact commission as it is currently drafted. The
only costs anticipated for delegates are the reimbursement of
travel expenses.
1:44:56 PM
SENATOR WIELECHOWSKI asked if this applies during times of war.
MR. DRANIAS answered yes, although the amendment allows two
forms of flexibility in the debt limit. First, the ($21
trillion) debt limit can be thought of as a revolving line of
credit. If the government were able to pay down some of that
debt, it would free up some of that revolving line of credit for
use in emergency situations. The second form of flexibility is
the ability to lift the debt limit if a majority of state
legislatures approve.
He pointed out that the federal government only borrows 40-45
percent of every dollar it spends so it has 55-60 percent of
each tax dollar in cash flow. He calculated that military
spending accounts for less than 20 percent of the overall
budget, so the federal government could double or triple its
current military expenditures without having to borrow.
SENATOR WIELECHOWSKI questioned how continuing to allow $21
trillion in debt could be construed as seeking a balanced
federal budget.
MR. DRANIAS replied it's ironic, but the only way to restrict
the ratio of spending to taxes, in a way that can't be gamed, is
to allow some degree of borrowing flexibility to handle cash
flow volatility. A number of states discovered that having a
balanced budget requirement in their constitutions also provides
for a limited amount of debt capacity. He cited Arizona and New
Mexico. The problem was that the states tied the definition of
"balanced" to budget projections rather than to cash flow.
He acknowledged that the revolving line of credit more
reasonably should be $1-2 trillion, but the federal government
has accumulated $21 trillion in debt. Fortunately, over time the
economic impact of that borrowing capacity will shrink relative
to the economy, he said.
SENATOR WIELECHOWSKI asked if he foresees that federal funds
flowing to Alaska would decrease if this amendment were to pass.
He noted that currently that is more than $15,000 per Alaskan.
MR. DRANIAS replied it's difficult to predict how the federal
government will allocate the more limited funds it has
discretion to allocate.
SENATOR WIELECHOWSKI wondered if it wouldn't be better to have
someone other than the governor to serve as the delegate.
MR. DRANIAS responded that it would not threaten the compact for
a state to change the default selection from the governor to up
to three delegates that the legislature selects, but his opinion
is that the better policy is to have the governor as the sole
delegate.
SENATOR WIELECHOWSKI asked, if the goal is to reduce the
national debt, why it shouldn't take two-thirds of the states to
increase the debt limit rather than a simple majority.
MR. DRANIAS replied he would like the number to be nine-tenths,
but if the bar is set too high it won't happen at all. He opined
that this isn't perfect, but it's a vast improvement over the
status quo.
2:00:34 PM
SENATOR WIELECHOWSKI observed that the bill gives the president
sweeping authority over the budget process. He asked if the bill
basically rewrites Articles 1 and 2 of the U.S. Constitution,
which explicitly places all legislative power in Congress.
MR. DRANIAS answered no; that reference is to the impoundment
regulation in the amendment. Impoundment is the executive
ability to delay or reprioritize spending to match cash to
bills. The president currently has impoundment power and the
amendment simply regulates it saying that the president must
impound spending once it gets within 98 percent of the debt
limit. Given current borrowing rates, that means that three to
six months before reaching a debt limit the president would have
to start designating what would be delayed or reprioritized when
the debt limit is reached. This would result in more
transparency because the president would have to show what he
intended to impound and then Congress would have 30 days to pass
a concurrent resolution to override the impoundments. This
forces more responsible use of the impoundment power and
enhances the power of Congress to check and balance any abuse in
the process.
2:04:20 PM
SENATOR DYSON observed that most state legislatures meet for
just a few months and some meet every other year, which would
work against states acting with dispatch to accomplish this.
MR. DRANIAS said he strongly suspects that states will enjoy
exercising their new powers over the federal debt limit, and
will amend their laws and policies if necessary.
SENATOR DYSON said it appears that there are three or four
national organizations working with legislatures on an Article V
convention and one or two working against it. The sense of his
colleagues is that the effort is twofold: to satisfy each group
that is working on the language, and then add Alaska's name to
the queue of states calling for an Article V convention. He
assumes that as the number of signatory states approaches 38,
other states will work quickly to adjust the precise language to
achieve the required consistency. He asked Mr. Dranias to
comment.
MR. DRANIAS responded that because the compact does not become
entrenched until 38 states join, there is plenty of opportunity
for adjustment along the way.
SENATOR DYSON asked him to comment on the groups that are
working on variations of this issue and how that should be
viewed.
MR. DRANIAS said there are three major groups on the center
right and at least one major group on the center left. The basic
commonality is to dissolve fear of using the Article V amendment
power.
SENATOR WIELECHOWSKI expressed concern that this creates a
commission that appears to have no sunset clause and the state
could be funding it with little oversight.
MR. DRANIAS pointed to the termination clause in the last
provision of the compact. It says the compact is self-
terminating seven years after the first state enacts the
compact. The funding provision is subject to state law so there
is currently no funding obligation in the language. The
commission is controlled by the first three states that enact
the compact and those representatives will decide how the
commission behaves.
2:12:24 PM
CHAIR COGHILL announced he would hold HB 284 for further
consideration.
HB 369-DRUG OVERDOSE: IMMUNITY FROM PROSECUTION
2:12:59 PM
CHAIR COGHILL announced the consideration of HB 369. "An Act
relating to restrictions on the criminal prosecution for certain
offenses for a person who seeks medical assistance for a person
experiencing a drug overdose." He noted the proposed committee
substitute (CS). [CSHB 369(JUD) was before the committee.]
MORGAN HOPSON, Staff, Representative Lance Pruitt, sponsor of HB
369, deferred to the sponsor, who was online, to introduce the
legislation.
SENATOR MCGUIRE extended congratulations to Representative
Pruitt for the "Top 40 Under 40" award he received today.
2:14:16 PM
REPRESENTATIVE LANCE PRUITT, Alaska State Legislature, Juneau,
Alaska, sponsor of HB 369, introduced the legislation speaking
to the following sponsor statement:
Alaska suffers from some of the highest rates of drug
overdose in the nation, and these figures are rising
at an alarming rate. The window to save an individual
experiencing a life-threatening drug overdose is
narrow, and response time is critical. Many
individuals, as well as their friends and family, will
hesitate or choose not to contact emergency medical
services for fear of criminal repercussions relating
to the controlled substance. HB 369 grants limited
immunity to individuals who contact emergency medical
services and stay with the person experiencing a life-
threatening overdose until emergency personal arrive
and make contact. The proposed legislation also
requires that the caller comply with responding
emergency medical personnel or public safety officers
to provide any necessary information.
The individual experiencing the overdose is already
granted limited personal immunity to criminal charges
when they are submitted for medical attention. For
many in this condition, this also serves as an
important point of contact for the referral to an
agency that can help with their substance abuse.
Unfortunately, most individuals experiencing a life-
threatening overdose are unable to contact emergency
services for themselves, and are at the mercy of the
discretion of other persons present.
Alaskans are working hard to fight the epidemic of
abuse of controlled substances, including illegal and
prescription drugs. The purpose of providing
assistance, regulation and legal ramifications for
misuse of pharmaceuticals or use of illegal drugs is
to protect our society and those who currently suffer
from substance abuse addictions. The passage of this
bill can reduce the number of overdose deaths by
granting this limited immunity to a person who seeks
in good faith emergency medical services for another
individual experiencing a life-threatening drug
overdose.
CHAIR COGHILL asked Ms. Hopson if she had anything to add.
MS. HOPSON described the change that was made to the original
language in the bill. In Section 1, the words "immunity from
prosecution" were replaced with "restriction on prosecution."
This was done to avoid transactional immunity, which could
potentially make it more difficult to prosecute other offenses
related to the incident outside of the possession offenses
outlined in the bill. Someone would not be relieved of charges
of reckless endangerment or assault or intent to distribute or
manufacture, for example. She noted that she brought a blank
committee substitute (CS) and could speak to that change at the
chair's discretion.
CHAIR COGHILL asked for an explanation of the criminal statutes
referenced in Section 1, Sec. 11.71.311(a).
MS. HOPSON said they're all possession offenses. She deferred
further explanation to Kathleen Strasbaugh.
2:22:25 PM
KATHLEEN STRASBAUGH Attorney, Legislative Legal Services,
Legislative Affairs Agency, Juneau, Alaska, reviewed the list of
offenses that a person may not be prosecuted for under the
provision set forth in HB 369.
AS 11.71.030(a)(3) is misconduct involving a controlled
substance in the third degree. Subsection (a)(3) addresses
possession of any amount of schedule IA or IIA controlled
substance near a school grounds, youth center, or on a school
bus.
AS 11.71.040(a)(3) and (4) is misconduct involving a controlled
substance in the fourth degree. Subsection (a)(3) governs
possession of any amount of schedule IA controlled substance or
a IIA controlled substance listed in the schedule. It also
governs possession of 25 or more tablets, ampules, or syrettes
containing a schedule IIA or IVA controlled substance and one or
more preparations, compounds, mixtures, or substances of an
aggregate weight of schedule IIIA or IVA controlled substances.
Subsection (a)(4) is possession of a schedule IIIA, IVA, VA, or
VIA controlled substance near a school grounds, youth center, or
on a school bus.
AS 11.71.050(a)(2) is misconduct involving a controlled
substance in the fifth degree? Subsection (a)(2) is a possession
offense affecting smaller amounts of most of the substances in
misconduct involving a controlled substance in the fourth
degree.
As 11.71.060(a)(1) or (2) is misconduct involving a controlled
substance in the sixth degree. Subsection (a)(1) involves use or
display of any amount of a schedule VIA controlled substance
(marijuana product). Subsection (a)(2) involves possession of
one or more preparations, compounds, mixtures, or substances of
smaller amounts of a schedule VIA controlled substance
(marijuana) and schedule IIIA controlled substances that have
been sprayed on tobacco, an herb, or another organic material.
SENATOR WIELECHOWSKI expressed interest in any statistics
showing how many people this potentially would have applied to
in the last five years.
MS. HOPSON said she didn't have exact statistics, but in the
last five years the Alaska Bureau of Vital Statistics reports
the annual fatalities from drug overdoses range between 100 and
130 per year. A University of Washington study found that before
similar legislation was implemented just 50 percent of user
groups said they would report drug overdose incidents. After the
implementation, 88 percent said they would report.
2:27:21 PM
SENATOR WIELECHOWSKI cited the NCSL website that mentions that
"Connecticut and other states limit immunity by specifying that
good-faith reporting does not include seeking help during the
course of the execution of an arrest or search warrant." He
asked if the sponsor had given that sort of situation any
consideration.
MS. HOPSON acknowledged that hadn't been discussed and deferred
further comment to Ms. Carpeneti.
CHAIR COGHILL asked if there had been any discussion of what
constitutes "good faith."
MS. HOPSON explained that the good faith implies that the person
would stay with the person who had overdosed until law
enforcement arrives and then they cooperate by providing
identification. She offered her belief that this provision would
be of little help to someone who tried to use it when officers
were about to exercise a search warrant.
CHAIR COGHILL offered his understanding that a person who
reports an overdose still has some responsibility for unrelated
criminal conduct.
MS. HOPSON said yes. It would be a different scenario if, for
example, a responding office entered the premise and discovered
an amount of the drug that suggested the person had an intent to
distribute.
SENATOR WIELECHOWSKI asked if there had been any discussion
about whether or not the bill might act to suppress evidence in
other criminal charges that arose as a result of the emergency
response.
MS. HOPSON restated that the phrase "immunity from prosecution"
was changed to "restriction on prosecution" to avoid the
possibility of transactional immunity, which could potentially
limit prosecution of other charges related to the incident
outside of the possession offenses outlined in the bill.
2:31:25 PM
SENATOR WIELECHOWSKI asked about applying this to alcohol
overconsumption.
MS. HOPSON said the sponsor's intent is to maintain the narrow
scope in order to get it through the process this session.
CHAIR COGHILL said he wouldn't want to give a false impression
that the bill provides broad immunity from prosecution for
misuse of an illegal substance.
MS. HOPSON affirmed that it applies exclusively to possession
for personal use in the circumstance of reporting an overdose.
CHAIR COGHILL asked Ms. Strasbaugh to comment on potentially
amending the applicability section to apply only on or after the
effective date.
MS. STRASBAUGH said it's a policy choice for the legislature,
but the idea was that it would apply to cases in process.
Because there is a difference of opinion about whether or not
the simple use of the word "before" creates significant
problems, the wording could be changed so that there is a
specific reference to cases in process at the time the bill
becomes effective, she said.
CHAIR COGHILL asked if the definition of "drug overdose" on page
2, lines 10-13, was unique to this section of the code.
MS. HOPSON deferred the question.
2:35:50 PM
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Legal Services Section, Department of Law (DOL), Juneau, Alaska,
stated that DOL strongly recommends removing the term "before"
in the applicability section on page 2, line 16.
CHAIR COGHILL said his intention was that the bill would apply
prospectively. He then asked if "good faith" was a known
standard.
MS. CARPENETI answered yes. She continued to explain that when
the bill was heard in the other body, DOL suggested an
affirmative defense but the policy decision was not to do that,
so the burden is on the prosecution to disprove good faith by
proof beyond a reasonable doubt. If someone calls 911 just as
law enforcement knocks on the door to conduct a search, DOL
presumably would have to disprove that the call was in good
faith.
CHAIR COGHILL asked how that would differ if it were an
affirmative defense.
MS. CARPENETI explained that in an affirmative defense the
burden of proof on the prosecution is by a preponderance of the
evidence. She offered her belief that the rationale for the
decision to stay with reasonable doubt was the desire to save
lives now and argue the legal questions later.
CHAIR COGHILL asked if the bill was narrowly crafted to apply
only to possession.
MS. CARPENETI agreed and noted it doesn't say personal
possession. It would be a different question if the quantity was
sufficient to indicate intent to distribute.
SENATOR WIELECHOWSKI asked if only the caller gets relief from
prosecution or all people who might have stayed on scene.
MS. CARPENETI replied it only says the person who places the
call for help, but law enforcement has said that they rarely
arrest anybody when they're called for an overdose because
they're focused on helping the person who has overdosed.
SENATOR WIELECHOWSKI asked if she knew how many people this
potentially could have saved in the past five years.
MS. CARPENETI said she didn't have that information.
CHAIR COGHILL asked Mr. Hahn if he could answer.
2:39:29 PM
RANDY HAHN, Alaska State Troopers, Department of Public Safety
(DPS), Wasilla, Alaska, said he didn't have an answer and wasn't
sure if that specific data was even in the system.
CHAIR COGHILL asked if law enforcement responding to an overdose
would probably tend to the person who had overdosed rather than
charging everyone present.
TROOPER HAHN replied the first priority is to save the victim,
so it would be highly unlikely to have any arrests at that
particular time. If it looked like there was a potential
distribution center, it would be addressed in a later
investigation.
SENATOR WIELECHOWSKI asked Ms. Carpeneti if it was a concern
that the bill doesn't exclude seeking help during the course of
the execution of an arrest or search warrant.
MS. CARPENETI said she wasn't concerned now, but DOL may
consider that if they find they're unable to disprove good
faith.
SENATOR WIELECHOWSKI asked if DOL feels strongly that this
should be an affirmative defense.
MS. CARPENETI said Department of Law previously suggested it be
structured as an affirmative defense, but the sponsor didn't
support it.
CHAIR COGHILL stated his intention to adopt a CS to remove the
retroactivity.
SENATOR WIELECHOWSKI asked if it creates any sort of
constitutional issues that there would be people sitting in jail
or on probation or parole who were convicted under circumstances
that no longer apply.
MS. CARPENETI said it creates serious practical problems to
include "before" in the applicability, because it doesn't say
how far back.
SENATOR WIELECHOWSKI asked, assuming the term "before" is
removed, how it would affect a case that was in process.
MS. CARPENETI said Department of Law always takes the position
that it is very important for the legislature to clarify when to
start applying a new law, but it's preferably on or after the
effective date. She noted that was no effective date but there
was no reason it couldn't be effective immediately.
SENATOR WIELECHOWSKI said he doesn't like the idea of punishing
people for something that is no longer a crime. That's what
happens without the word "before" in the applicability section.
MS. CARPENETI posited that judges, prosecutors, and defense
lawyers would take that into account when arguing sentencing.
SENATOR WIELECHOWSKI expressed concern about the potential
consequences for a second or third offense and again about
having people sit in jail for an offense that is no longer a
crime.
MS. CARPENETI offered her belief that there is enough discretion
in the system to address unfairness under those circumstances.
2:47:49 PM
SENATOR WIELECHOWSKI questioned how judges would approach
presumptive sentencing when one of the offenses is no longer a
crime.
MS. CARPENETI said she assumes the judge would take into account
the circumstances of the prior offenses and the law at the time.
SENATOR WIELECHOWSKI asked if judges would have the discretion
to do that under the current sentencing laws.
MS. CARPENETI replied judges have discretion within the
sentencing range.
SENATOR WIELECHOWSKI observed that it's rare that a crime is
removed from the books.
MS. CARPENETI clarified that it's still a crime to possess the
controlled substances.
SENATOR WIELECHOWSKI agreed, although there could be people who
have been punished in the past and wouldn't be punished for the
same offense now.
MS. CARPENETI said the problem is that it's very difficult to
establish those facts retrospectively. Somebody could say they
were convicted of possession and that they did dial 911, but
nobody would know if they acted in good faith and stayed with
the person.
CHAIR COGHILL asked for a motion to adopt the CS.
2:49:50 PM
SENATOR MCGUIRE moved to adopt the work draft Senate CS for CS
for HB 369, labeled 28-LS1515\P, as the working document.
CHAIR COGHILL found no objection and Version P was adopted. He
asked if the definition of "drug overdose" on page 2, lines 10-
13 was new.
MS. CARPENETI replied it's not a definition that's part of Title
11. She deferred further explanation to Ms. Strasbaugh.
MS. STRASBAUGH said the term is used in just one other place in
statute as a mitigating factor for felony sentencing.
CHAIR COGHILL asked if a life threatening emergency might become
more difficult to prove under this drug overdose law.
MS. STRASBAUGH replied it would probably depend on whether the
responders thought there was a danger when they arrived.
CHAIR COGHILL opined that it hinges on "reasonably believed."
MS. STRASBAUGH said unconsciousness and difficulty breathing are
hallmarks that could alarm an individual enough to call the EMTs
and the EMTs could realistically indicate if called upon to do
so.
SENATOR WIELECHOWSKI asked if a person who was arrested and
prosecuted under AS 11.71.030(a)(3) might raise it as a defense
that he was having a drug overdose.
MS. CARPENETI said in order to raise a defense the defendant has
to introduce some reliable evidence. The burden is then on the
prosecution to disprove that beyond a reasonable doubt.
SENATOR WIELECHOWSKI said he initially questioned whether this
would create an extremely high burden for prosecutors, but it
sounds as though it won't be a large problem.
MS. CARPENETI said she hopes not but the Department of Law
reserves the right to come back and ask for a change if it
proves to be an onerous burden.
SENATOR WIELECHOWSKI said his one concern relates to the search
warrant, but he didn't want to hold the bill if DOL doesn't see
it a concern.
MS. CARPENETI said she didn't want to be dismissive of the
potential problem because people will try to take advantage of
this defense once it's available.
CHAIR COGHILL questioned whether paragraph (2) on page 2, ought
to explicitly mention good faith.
SENATOR WIELECHOWSKI said that's where the problem lies.
CHAIR COGHILL stated that he would hold HB 369 in committee for
further consideration.
2:59:21 PM
There being no further business to come before the committee,
Chair Coghill adjourned the Senate Judiciary Standing Committee
meeting at 2:59 p.m.