Legislature(2015 - 2016)BUTROVICH 205
01/26/2015 01:00 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB30 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 30 | TELECONFERENCED | |
SB 30-MARIJUANA REG;CONT. SUBST;CRIMES;DEFENSES
1:03:57 PM
CHAIR MCGUIRE announced the consideration of SB 30. "An Act
relating to controlled substances; relating to marijuana;
relating to driving motor vehicles when there is an open
marijuana container; and providing for an effective date." [The
hearing contains discussion of the companion bill, HB 79.] She
reviewed the agenda and asked the members to hold their
questions about whether the bill should provide an affirmative
defense, a defense, or make the conduct legal until after Amy
Saltzman and Jordan Shilling had an opportunity to give an
overview of the bill.
1:07:23 PM
AMY SALTZMAN, Aide to the Senate Judiciary Committee and Staff
to Senator Lesil McGuire, introduced SB 30 reading the following
sponsor statement excerpt into the record.
Senate Bill 30 revises Alaska's criminal statutes to
ensure public safety of our communities following the
passage of the PSUM initiative to legalize and
regulate marijuana.
Senate Bill 30 provides clear rules for the public and
peace officers: It criminalizes giving marijuana to a
person under 21, manufacturing "butane hash" and minor
consumption. The bill also synchronizes the multiple
definitions of marijuana in statute, along with
defining "marijuana concentrate."
1:08:43 PM
JORDAN SHILLING, Staff, Senator John Coghill, reviewed a
sectional analysis of Sections 1-4 of SB 30.
Section 1:
Pages 1-3: Lines 5-20
Amends the misconduct involving a controlled substance in the
fourth degree statute to conform to the ballot initiative that
legalizes substances weighing one ounce or less, under certain
circumstances. Delivering more than 1 ounce of marijuana is a
class C felony.
Section 2:
Pages 3-4: Lines 21-26
Clarifies weights to conform to the initiative, criminalizes
furnishing marijuana to a person under 21 years of age, and
criminalizes the manufacturing of marijuana using a solvent-
based extraction method, other than glycerin. Misconduct
involving a controlled substance in the fifth degree is a class
A misdemeanor.
Section 3:
Pages 4-5: Lines 27-9
Amends misconduct involving a controlled substance in the sixth
degree to prohibit a person under 18 years of age from consuming
or possessing an ounce or less of marijuana. This is a class B
misdemeanor.
Section 4:
Pages 5-6: Lines 10-31 and 1-4
Creates a new misconduct involving a controlled substance in the
seventh degree by establishing a violation for consuming
marijuana in a public place. [The definition for "public place"
is found in AS 11.81.900(b)(53).] Under paragraph (2), it is a
violation for a person under 21 years of age but at least 18
years of age to consume or possess one ounce or less of
marijuana.
It is a class A misdemeanor for an agent or employee of the
licensee to, with criminal negligence, permit persons under 21
years of age to do several actions on a licensed marijuana
premise.
1:12:37 PM
REPRESENTATIVE GRUENBERG asked what the penalty is for an
employee of a licensee to allow the criminal conduct mentioned
on page 5, lines 22-23.
MR. SHILLING surmised it would fall under the misconduct
involving a controlled substance in the sixth degree statute. He
deferred further response to Legislative Legal.
REPRESENTATIVE GRUENBERG requested a written response to the
question.
CHAIR LEDOUX read the language on page 6, lines 16-17 and asked
how anyone could conceive that someone would manufacture an
ounce or less.
MR. SHILLING deferred the question to the drafter.
1:14:48 PM
HILARY MARTIN, Attorney, Legislative Legal Services, Legislative
Affairs Agency, explained that the initiative allows a person to
possess up to one ounce of marijuana. Section 5 provides a
defense when the charge is the manufacture of up to an ounce of
marijuana or up to six marijuana plants.
CHAIR LEDOUX described the defense language as confusing and
questioned how it would be possible to have a business if
manufacturing is limited to one ounce.
MS. MARTIN responded that part of the issue is that
"manufacture" includes growing marijuana.
CHAIR MCGUIRE summarized the defense for an individual under
Section 5 then asked Ms. Martin where the bill talks about the
manufacture of more than one ounce.
MS. MARTIN directed attention to page 7, line 20. Anyone who is
licensed under AS 17.38, and is acting in compliance with that
license, has a defense under AS 11.71.040-11.71.060. That is
misconduct in the fourth, fifth, and sixth degrees.
CHAIR MCGUIRE remarked that one of the challenges will be to
understand where the individual is protected and where the
license holder will be protected.
MS. MARTIN referenced Representative Gruenberg's earlier
question and advised that it would be a class A misdemeanor for
a violation under Sec. 11.71.067(a).
REPRESENTATIVE GRUENBERG asked if it's the same standard for the
employee as it is for the owner of the establishment. The mens
rea is "with criminal negligence," which is something in between
"recklessness" or "negligence."
MS. MARTIN agreed that "criminal negligence" is a lower standard
than "reckless."
CHAIR MCGUIRE asked Ms. Martin to read the mental state for
criminal negligence.
1:21:26 PM
MS. MARTIN paraphrased the following definition for criminal
negligence under AS 11.81.900(a)(4):
(4) a person acts with "criminal negligence" with
respect to a result or to a circumstance described by
a provision of law defining an offense when the person
fails to perceive a substantial and unjustifiable risk
that the result will occur or that the circumstance
exists; the risk must be of such a nature and degree
that the failure to perceive it constitutes a gross
deviation from the standard of care that a reasonable
person would observe in the situation.
REPRESENTATIVE GRUENBERG asked if the same standard applies to
both the owner of the establishment and the employee, even if
the owner isn't present.
MS. MARTIN answered yes.
REPRESENTATIVE GRUENBERG observed that the same criminal
negligence standard is used throughout Title 4 for people who
serve alcohol to people who are under 21 years of age.
MS. MARTIN reported that Title 4 was the model for SB 30.
1:22:57 PM
SENATOR WIELECHOWSKI highlighted that the bill gives the police
the ability to arrest people for carrying an ounce or less of
marijuana. Once they're arrested, they will have to post a bond
and potentially go through a jury trial while they assert that
it is an affirmative defense to possess marijuana. He stressed
that this is despite the fact that the Supreme Court of Alaska
ruled that the people of Alaska have a constitutional right to
possess a certain amount of marijuana and the people of Alaska
voted to allow possession of one ounce or less of marijuana.
MS. MARTIN agreed that the characterization was technically
correct. She added that the Supreme Court of Alaska under Ravin
v. State allowed the possession of a small amount of marijuana
for adults in their home, but there is technically nothing to
stop a police officer from arresting a person for possessing
that amount.
She reiterated that the bill establishes a defense to the charge
of misconduct involving a controlled substance if the person is
acting within the bounds set out by the initiative.
CHAIR MCGUIRE asked Ms. Martin to explain why she chose to draft
the bill as a defense.
1:26:12 PM
MS. MARTIN stated that the initiative made marijuana legal in
some situations, but left it illegal in most cases. She tried to
solve some of the inconsistencies by creating a defense to the
prosecution if the individual is acting in a way that is
consistent with the initiative. The defense uses the language
from the initiative about one ounce or less, six plants, and the
property lawfully in possession.
She further explained that the misconduct involving a controlled
substance statutes currently contain some affirmative defenses.
Medical marijuana, for example, is an affirmative defense.
CHAIR LEDOUX voiced concerns and questioned why the bill
couldn't treat marijuana the same way as the alcohol laws.
MS. MARTIN replied this is just one approach; it could be
changed.
1:29:46 PM
CHAIR LEDOUX opined that marijuana could be controlled
differently than the way the bill suggests.
MS. MARTIN restated that this is an initial approach; it could
be done differently.
CHAIR MCGUIRE thanked Ms. Martin for her efforts.
1:31:13 PM
SENATOR COGHILL asked if she agrees that it would be a
significantly different approach to mirror the alcohol statutes
and would probably require much of Title 4 to be rewritten.
MS. MARTIN replied a number of choices would need to be made
because there are differences with alcohol. "It's not simply
going to be straight marrying what crimes exist in Title 4."
SENATOR COGHILL expressed support for the current approach
because the federal government still classifies marijuana as a
controlled substance and illegal in many circumstances.
MS. MARTIN warned that regardless of state law, marijuana is
still a controlled substance under federal law.
1:33:46 PM
CHAIR MCGUIRE recognized that Representative Colver was present.
REPRESENTATIVE CLAMAN referenced Section 13 and asked the logic
behind basically repealing everything the voters favored in the
initiative.
MS. MARTIN replied those sections are incorporated into the
defense. AS 17.38.020 is the personal use provision.
SENATOR COGHILL suggested that Ms. Martin clarify that repealing
doesn't remove the statute; rather it adds accountability
measures for misdemeanor.
MS. MARTIN agreed that the repealed sections are either included
in the defense or in the bill. For example, AS 17.38.040 is
public consumption, and in the bill it's in Sec.11.71,
misconduct in the seventh degree. AS 17.38.020 and AS 17.38.030
have to do with personal use and cultivation, and that language
is incorporated into the defense.
REPRESENTATIVE CLAMAN commented that the discussion is whether
to support the voters' intent regarding AS 17.38.020 and AS
17.38.030 or this proposal that repeals those sections but
provides a defense during prosecution.
MS. MARTIN replied that's one way to describe the defense, but
she couldn't speak to prosecutions.
1:36:43 PM
CHAIR MCGUIRE asked if she had thought about how criminalization
interacts with the Ravin Act. That was a [1975] Alaska Supreme
Court ruling that said that up to four ounces of marijuana is
allowed for personal use in the privacy of your home. Because
the initiative says one ounce and Ravin says four ounces, her
assumption is that this committee will have to consider what
happens with two, three, and four ounces.
MS. MARTIN acknowledged that she didn't have a good answer as to
how the initiative and Ravin work together. The possession
limits are different and the age limitations are arguably
different, so it's an open question.
1:39:15 PM
CHAIR MCGUIRE said it's more complicated than simply making
marijuana legal. If it's not structured as a defense, it will be
necessary to make certain things illegal that previously were
nebulous.
REPRESENTATIVE GRUENBERG asked the definition of "defense" and
if Alaska law differentiates between a defense and an
affirmative defense.
1:40:33 PM
MS. MARTIN replied both are defined in AS 11.81.900. In an
affirmative defense, the burden is on the defendant to establish
the defense by a preponderance of the evidence. In a defense,
evidence is admitted and the state has the burden of disproving
the defense beyond a reasonable doubt.
REPRESENTATIVE GRUENBERG pointed out that the initiative intent
was that the prosecution must provide proof of the issue beyond
a reasonable doubt. He asked for the legal underpinning for
changing that to a defense.
MS. MARTIN agreed that the initiative says it's not an offense
under law. She added that AS 11.81 defines "offense" as "conduct
for which a sentence of imprisonment or fine is authorized."
REPRESENTATIVE GRUENBERG said he understands the definition but
the bill uses it in defining a crime as opposed to allocating
the burden of proof. He asked if she agrees that they are used
in different ways.
MS. MARTIN replied she did not know, but she would probably
argue that it means offense in the sense of a crime.
1:44:11 PM
SENATOR COSTELLO stressed the importance of following the intent
of the initiative. She asked Ms. Martin if she consulted other
states when she chose to draft the bill as a defense. She then
asked about the possibility of considering a different approach.
MS. MARTIN replied she did not consult other states; she used
the medical marijuana model, which created an affirmative
defense. She restated that it is the committee's prerogative to
request another draft.
REPRESENTATIVE MILLETT expressed reservations about modeling the
legislation on the medical marijuana statutes; they are largely
untested because the user group is so small. She questioned
whether this could lead to a sizeable increase in litigation.
MS. MARTIN agreed the number of people affected by the medical
marijuana statutes is likely smaller. She added that this draft
is the current approach to try to resolve the conflicts between
the initiative and the misconduct involving a controlled
substance statutes. She declined to predict what future
litigation might come up.
CHAIR MCGUIRE told Ms. Martin that she would have an opportunity
to draft the bill so it is not a defense.
1:47:45 PM
SENATOR MICCICHE stated, "I hasn't spoken to anyone on this
committee that is not in full agreement that we are going to
meet the intent of the initiative in its entirety."
CHAIR MCGUIRE agreed.
CHAIR LEDOUX asked if there is any data on the number of people
that are using medical marijuana.
MS. MARTIN replied the number of people who have registered for
medical marijuana is a known number but she does not have that
data.
CHAIR MCGUIRE recalled that the number of registered medical
marijuana users is about 6,000, but the question is whether
people are registering. She asked Mr. Schulte to address the
questions about medical marijuana.
1:49:53 PM
BRUCE SCHULTE, Spokesman, Coalition for Responsible Cannabis
Legislation, offered his understanding that there are about
2,000 medical marijuana card holders in the state and 2-3 times
that number who have not registered.
CHAIR MCGUIRE asked what the deterrents might be to registering
to use medical marijuana.
MR. SCHULTE replied one reason is the fear that registering
could bring unwanted scrutiny from law enforcement. Another
expressed concern is that holding a medical marijuana card could
preclude a person from owning guns.
REPRESENTATIVE CLAMAN asked Mr. Schulte to comment on the
anecdotal reports that few people have registered for a medical
marijuana card because there is nobody licensed in the state to
sell medical marijuana.
MR. SCHULTE confirmed that he has heard that argument.
1:53:52 PM
SENATOR WIELECHOWSKI asked if Section 1 violates the
constitution, because the Supreme Court of Alaska ruled that
people have a right to possess up to four ounces of marijuana.
MS. MARTIN replied Section 1 does not deal with straight
possession, but she agrees that Ravin is an outstanding issue.
REPRESENTATIVE GRUENBERG asked for supplemental information on
the medical marijuana program, including the inability to buy
medical marijuana and the idea of adding to the list of
qualifying diseases in the current regulations. He noted that
Arizona expanded its medical marijuana regulations to include
post-traumatic stress disorder (PTSD).
CHAIR MCGUIRE offered to share an article discussing the
American Pediatrics Council coming forward about decriminalizing
marijuana at the federal level. The discussion centered on how
certain forms of cannabis can be life altering for children who
have epilepsy and autism.
She opined that the legislature has failed the public in fully
implementing medical marijuana, because the affirmative defense
was not the intent.
SENATOR COGHILL commented that drafting the bill as a defense
drives a narrow line that works with the controlled substance
laws, but it will still be necessary to work with those laws
outside the initiative to ensure consistent application.
MS. MARTIN agreed.
CHAIR MCGUIRE agreed that creating a defense was the simplest
approach. The other is more specific and will require the
committee to think about things such as quantities over one
ounce and how that comports with Ravin and use by people under
age 21 for medicinal purposes.
MS. MARTIN agreed.
REPRESENTATIVE MILLETT opined that the initiative was flawed
because it did not take the Ravin decision into consideration.
MS. MARTIN agreed there is an unresolved conflict. Ravin allows
adults to possess up to four ounces of marijuana for personal
use and the initiative says people 21 years and older may
possess up to one ounce.
2:01:40 PM
SENATOR WIELECHOWSKI reviewed Section 3 that makes possession of
marijuana by someone under age 18 a class B misdemeanor and
Section 4 that makes possession of marijuana by someone 18-20
years of age a class A misdemeanor. He asked what the comparable
penalties are for alcohol for someone in those age groups.
MR. SHILLING offered his understanding that the first two
instances of a minor consuming alcohol are violations with
community work service and the third is a class B misdemeanor.
CHAIR LEDOUX offered her belief that the initiative is not
inconsistent with Ravin, but it does not go as far as Ravin with
respect to possession amounts.
MS. MARTIN responded that Ravin says an adult can possess up to
four ounces for personal use in their home and the initiative
says, notwithstanding any other law, a person over age 21 may
possess one ounce of marijuana. The question of how to address
Ravin is still open under the current structure, she said.
CHAIR MCGUIRE suggested that Tracey Wollenberg with the Public
Defender Agency and Rick Svobodny with the Department of Law
offer a perspective about how Ravin conflicts or does not
conflict with the current draft of the bill.
SENATOR MICCICHE commented that the reality under Ravin v. State
is that the "weed fairy" had to magically deliver up to four
ounces of marijuana to your home. He suggested that it is
possible to meet the intent of the initiative, which is one
ounce, for transportation and then storing up to four ounces in
the home. He maintained that this would meet the intent of both
without conflict.
CHAIR MCGUIRE invited Ms. Wollenberg to give her opinion on the
current version of the bill and the conflicts with Ravin.
2:06:13 PM
TRACY WOLLENBERG, Deputy Public Defender, Appellate Division,
Public Defender Agency (PDA), stated that the agency shares some
of the concerns voiced by committee members. Retaining the
criminal offenses in AS 11.71 and creating a defense is
inconsistent with the language and express purposes of the
initiative and undermines voter intent.
She said Sec. 17.38.010 states that the use of marijuana shall
be legal for persons age 21 and older and that one of the
purposes is to allow law enforcement to focus on violent and
property crimes. Sec. 17.38.020 sets out what acts shall not be
a criminal or civil offense and that those lawful acts shall not
be a basis for seizure. She stated that creating the defense
contravenes both of the provisions in Sec. 17.38.020 and the
intent set out in Sec. 17.38.010 that certain types of marijuana
related conduct be legal.
MS. WOLLENBERG addressed Representative Gruenberg's question
about the difference between an affirmative defense and a
defense. She explained that an affirmative defense places the
burden of production and persuasion on the defendant. In a
defense the defendant has the burden of production but does not
have the burden of persuasion.
The current draft places the burden on the defendant to produce
evidence in order to put the defense in play. A defendant who
does not put on any evidence will be convicted even though his
or her conduct was completely legal. Another potential result is
that different judges could make different decisions about
whether a defendant has presented sufficient evidence to put the
defense in play.
MS. WOLLENBERG stated that the another ramification of setting
this up as a defense is that it would give police the ability to
arrest for otherwise lawful conduct. This undermines the intent
to allow law enforcement to focus on violent and property crimes
as set out in Sec. 17.38.010. It could result in inconsistent
enforcement and officers might use the possession, or
manufacture of marijuana as justification for further searches
when there is no basis for doing so. This could result in
discriminatory enforcement. This undermines the provision in
Sec. 17.38.020 that the acts that are intended to be legal shall
not be the basis for seizure. She noted that the phrase "shall
not be the basis for seizure" is not replicated in SB 30.
MS. WOLLENBERG suggested that a potential easy fix is to leave
AS 17.38 intact and add it as an exception in Section 1. This
preserves voter intent and makes it clear that law enforcement
needs to look at AS 17.38 to determine whether or not somebody
has committed a criminal offense. She said this does not account
for Ravin, but she does not believe that Ravin is inconsistent
with the initiative.
MS. WOLLENBERG summarized that the major point is that creating
a defense is not implementing voter intent and it places a
burden on the defendant once arrested to put evidence in play to
prove that their conduct was legal. She stressed that this would
vastly increase the use of resources by the court, prosecution
and public defender.
2:17:37 PM
SENATOR MICCICHE highlighted that another challenge with framing
the legislation as a defense is that once a charging document is
made, the person's name will be on CourtView forever. "That will
affect them in the future for employment and other issues, so
it's a challenge going this way."
CHAIR MCGUIRE agreed.
REPRESENTATIVE GRUENBERG asked Ms. Wollenberg if she would put
her testimony in writing, including a citation to the authority
as to whether the term "defense" complies with the language of
the initiative.
MS. WOLLENBERG replied she would do so if Quinlan Steiner
approves.
REPRESENTATIVE GRUENBERG asked if the fact that the initiative
refers to an offense and the bill changes that to a defense
might render the legislation unconstitutional.
MS. WOLLENBERG said she believes it would be subject to
constitutional challenge under art XI, sec. 6 of The Alaska
Constitution.
REPRESENTATIVE GRUENBERG requested that she include that in the
memo.
2:21:57 PM
SENATOR WIELECHOWSKI asked if Sections 3 and 4 are good policy
as opposed to the way alcohol offenses are treated for a similar
age group. They make possession of marijuana a class A or class
B misdemeanor if the person is under 21 years of age but at
least 18 years of age.
MS. WOLLENBERG said she'd need to consult the alcohol statutes
before giving an answer, but she believes that it's worthwhile
to ensure that the legislature is consistence in terms of the
level of offense it ascribes to people under 21 years of age.
She added that Sections 3 and 4 appear somewhat backwards.
Essentially, it is a violation to use or display marijuana in a
public place, but it's a misdemeanor to use or display it in a
nonpublic place. She questioned whether that was the intent or
an oversight.
CHAIR MCGUIRE requested her opinion on that in the broader memo
and that Mr. Steiner coauthor the memo.
CHAIR LEDOUX asked if the current statutes are inconsistent with
Ravin.
MS. WOLLENBERG replied the current statutes prohibit the
possession of marijuana, whereas Ravin protects possession of up
to four ounces of marijuana in the home.
CHAIR MCGUIRE suggested she reference that point in the memo and
her opinion on the three definitions of marijuana currently in
statute.
2:27:02 PM
SENATOR MICCICHE suggested it would be helpful for the public if
the committee would, at some point, discuss the level of
offenses and related penalties.
CHAIR MCGUIRE agreed. She recognized the Department of Law and
asked all testifiers to submit written comments for the
committees to consider.
2:29:22 PM
RICHARD SVOBODNY, Deputy Attorney General, Criminal Division,
Department of Law, introduced himself and Kaci Schroeder. He
relayed that Ms. Schroeder would be the legislative liaison and
the voice for DOL on this topic, but he had a few thoughts to
offer at the outset.
He highlighted that this is a complicated drafting issue because
the initiative does not use Angelo Saxon law which starts with
the presumption that everything is legal unless it is made
illegal by legislation. Rather, it uses the Napoleonic Code that
assumes that everything is illegal unless the government makes
it legal. Another difficulty is that the initiative deals with
criminal laws while the bill generally tries to deal with both
criminal laws and establishing regulations for an industry,
presupposing some things some things that may or may not be done
with regulation.
MR. SVOBODNY reminded the members that medical marijuana passed
as an initiative in about 1998 and the structure in statute is
what the legislature created after that initiative.
REPRESENTATIVE CLAMAN commented that it is perhaps a further
complication that the voter initiative basically tries to roll
back what the legislature did when it made marijuana possession
illegal.
MR. SVOBODNY responded that Ravin was decided in 1975 and the
drug statutes were passed in 1982; throughout this time certain
provisions have dealt with marijuana. Providing more background,
he reminded the members that the Ravin decision said that an
undefined amount of marijuana was allowed in the home for
personal use. The legislature shortly thereafter picked four
ounces as the amount that was indicative of non-personal use in
the home. The Alaska court of appeals decision in Noy v. State
said it was reasonable for the legislature to say that four
ounces was not indicative of personal use in your home.
CHAIR MCGUIRE asked how the effort to recriminalize marijuana in
2006 during the Murkowski administration factors in.
MR. SVOBODNY explained that Ravin said the decision was based on
the likelihood of abuse when the concentration of the active
ingredient, THC, in marijuana was about 18 percent. The court
said this could be revisited. In 2006 the legislature received
information that marijuana had THC concentrations of 27 percent
and decided it should be illegal. The ACLU sued the State of
Alaska saying that the 2006 legislative changes should be stayed
and those cases should not be prosecuted. The trial court
agreed. The case went to the Alaska Supreme Court and they
dodged the issue saying there was no case in controversy.
REPRESENTATIVE CLAMAN recalled that in the early 1990s Alaska
voters introduced an initiative and voted to criminalize the
possession of marijuana in any location. It left open the
question of Ravin, but did away with the up to four ounce home
possession in statute.
2:41:50 PM
CHAIR LEDOUX asked if there have been any charges for possession
of small amounts of marijuana since the Alaska Supreme Court
dodged the issue and if not, why not.
MR. SVOBODNY replied the idea that the police go out and
investigate cases involving small amounts of marijuana is
incorrect. But they will charge someone if they find a small
amount of marijuana in the course of another investigation such
as minor consuming and traffic accidents. Just as the police
aren't going out and looking for those cases, the prosecution
has no written policy on dealing with marijuana cases that come
forward. It's a poor use of state resources to prosecute those
cases, he said.
REPRESENTATIVE KELLER asked if there has been a case where the
legislature tries to define a law before a license was
established.
MR. SVOBODNY said he knows of none, but that is a concern
2:45:40 PM
KACI SCHROEDER, Assistant Attorney General, Criminal Division,
Department of Law, began her comments by reviewing the defense
section of SB 30. She said that as currently written the defense
would apply to the misconduct involving a controlled substance
in the fourth degree statute. Under that statute, it is a felony
to possess any amount of marijuana on school grounds, near a
youth center, or on a school bus. She questioned whether that
was the intent. She further noted the disparate treatment
between persons under 21 years of age and those older than 21.
The younger group would be charged with a felony because the
defense doesn't apply to people under age 21, but people older
than 21 would be fine.
She said the defense also applies to manufacturing charges for
individuals and marijuana establishments and both could
potentially be charged with manufacturing. Manufacturing a VIA
controlled substance through the use of a solvent-based
extraction is specifically prohibited and is covered by a
defense for both individuals for marijuana establishments. She
asked if that was the intent.
MS. SCHROEDER reviewed the repeal section and cautioned that
repealing AS 17.38.070 may have both regulatory and criminal
consequences. She also questioned whether hash is marijuana. The
bill reduces it to a schedule VIA controlled substance and
distinguishes it from marijuana, but the definition of marijuana
potentially could include it and it could also be included as a
concentrate. She described the reading as circular. "You have to
read the definition then you have to read the definition of
concentrates and you have to look at schedule VIA."
She also asked for clarification of the intent of Section 11
because the current drafting would be difficult to prosecute. It
defines an open marijuana container but then it says "and there
is evidence that marijuana has been consumed in the motor
vehicle."
CHAIR MCGUIRE asked Ms. Schroder to put her comments in writing.
REPRESENTATIVE GRUENBERG suggested Ms. Schroeder also contact
committee members individually after she submitted her written
comments.
SENATOR MICCICHE observed that motorhomes fall into the
categories of both a home and a motor vehicle and he would
suggest that members give some thought to whether marijuana will
be treated like alcohol in that context.
REPRESENTATIVE CLAMAN said Ms. Schroeder raised a question about
hash and hash oil and he didn't see any reference to either in
the initiative. He asked if she sees that as a significant
difference.
MS. SCHROEDER confirmed there is no specific mention of hash in
the initiative and the definition for marijuana is the same in
both the initiative and the bill. Under current statute, hash is
specifically excluded from the definition of marijuana, and it's
a schedule IIIA drug. The bill reduces hash to a schedule VIA
drug, the same as marijuana, and identifies it as a separate
substance. However, it could be argued that it is a marijuana
concentrate, which is found in the definition of marijuana.
REPRESENTATIVE CLAMAN asked for examples of schedule IIIA drugs.
MS. SCHROEDER replied synthetic marijuana would fall in that
group.
CHAIR MCGUIRE offered to share the information her office has
gathered about the pertinent things in Title 11 and the
penalties associated with the different misdemeanors and
felonies.
2:56:35 PM
SENATOR COGHILL commented on the difficulty associated with
describing different substances. "When I looked at the
derivatives and the manufacture of these compounds, it really
doesn't tell us what those are."
CHAIR MCGUIRE agreed and added that "butane hash" is
specifically set aside because it a dangerous method of
manufacturing.
2:58:44 PM
CHAIR LEDOUX questioned making the use of synthetic marijuana a
prosecutable offense if "real" marijuana is legal.
CHAIR MCGUIRE said she looks forward to hearing about the
chemicals in the manufacturing process at the next hearing.
She thanked the participants.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 30 - Sectional Analysis.pdf |
SJUD 1/26/2015 1:00:00 PM |
SB 30 |
| SB 30 - Sponsor Statement.pdf |
SJUD 1/26/2015 1:00:00 PM |
SB 30 |