Legislature(1993 - 1994)

03/11/1994 01:35 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
 SENATOR TAYLOR introduced SB 332 (WEIGHT OF LIVE MARIJUANA PLANTS)            
 sponsored by the Senate Judiciary Committee, and invited LT.                  
 CHARLES MALLOTT, Commander for the Ketchikan Police Department, to            
 testify by teleconference.                                                    
                                                                               
 LT. MALLOTT began by pointing out that presently their police                 
 department has been addressing the current mandate that involved              
 processing a large growing operation of 200 marijuana plants, and             
 this has entailed many personnel hours harvesting, hanging, drying,           
 and then plucking the buds and leaves from the stems.  He explained           
 the two hundred mature marijuana plant growing operation took the             
 narcotics enforcement team approximately 32 officer hours to                  
 process.  He thought it was a real waste of resources that could be           
 better allocated time wise.                                                   
                                                                               
 Number 103                                                                    
                                                                               
 LT. MALLOTT described the growing operation of 200 marijuana plants           
 as a large growing operation complete with an irrigation system,              
 lighting equipment, utility records, potting soil, plants, and                
 fertilizer.  He explained all of these items were photographed, but           
 the processing just wasn't practical.                                         
                                                                               
 LT. MALLOTT hoped there could be a number of plants that would be             
 the determination as to a felony cutoff or a misdemeanor cutoff.              
 He discussed having to deal with specific weights, and he quoted              
 the current law dealing with the finished product.  He thought it             
 would be a big help for small agencies if that could be changed in            
 SB 332 so the plants could be cut off at the stem and weighed at              
 the time of harvest.  He argued that even thought not all of the              
 plant was smoked, the plant is still an illicit plant.                        
                                                                               
 SENATOR TAYLOR invited former representative, CHERI DAVIS to                  
 testify from Ketchikan.                                                       
                                                                               
 MS. DAVIS testified in support of SB 332 explained how she thought            
 it would save money in law enforcement.  In talking to persons on             
 the street in Ketchikan, she commented they thought the process was           
 crazy.  She urged that the legislation be passed quickly to free up           
 the police for more important duties.                                         
                                                                               
 Number 142                                                                    
                                                                               
 LYNDA ADAMS also testified from Ketchikan on behalf of Alaskans for           
 a Drug Free Youth, and she indicated support for the bill from the            
 Governor's Advisory Board on Alcoholism and Drug Abuse, as well as            
 the Ketchikan Mayor's Task Force on Substance Abuse.  She thought             
 the current process was a handicap for law enforcement.                       
                                                                               
                                                                               
 From Ketchikan, SENATOR TAYLOR moved on to Homer, Alaska to hear              
 first from SALLIE DODD-BUTTERS.                                               
                                                                               
 MS. DODD-BUTTER claimed the police were spying on people in their             
 back yards.  In regards to the 4 oz rule, she suggested the police            
 dry and weigh one plant, and use a formula to decide how much is              
 lost in the stems and "things," to decide the amount.  She declared           
 the whole process was fascist and ridiculous.  She also thought               
 cigarettes and alcohol use should be pursued rather increasing                
 marijuana seizures.  She claimed to have been a marijuana smoker              
 since 1966, has had a successful life, and deeply resents this                
 intrusion on her civil liberties.                                             
                                                                               
 Number 208                                                                    
                                                                               
 Next to testify from Homer was JULIE CESARINI, who spoke in                   
 opposition to SB 332, and reviewed her knowledge of the hemp plant,           
 including the importation of hemp cloth from China.  She demanded             
 to know what scientific evidence was being used to calculate the              
 amount of mind altering qualities in the stalk.  She thought the              
 troopers should be freed to pursue people who are committing                  
 vicious and anti-social crimes.  She urged the committee to read              
 the information on hemp, which she claimed was a most healthy                 
 plant.                                                                        
                                                                               
 SENATOR TAYLOR explained the legislation only defines the manner in           
 which the plant of marijuana would be weighed, and he asked if she            
 knew a better way to weigh the plant.                                         
                                                                               
 MS. CESARINI explained the weight was arbitrary, and should only be           
 the weight of the buds, excluding the seed, leaves, stalks, and               
 roots.  She said the buds were the mind altering portion of the               
 plant.                                                                        
                                                                               
 Number 252                                                                    
                                                                               
 SENATOR LITTLE asked if the buds were the portion being weighed.              
                                                                               
 SENATOR TAYLOR called on MARGOT KNUTH with the Criminal Division              
 from the Department of Law to answer some of the questions.                   
                                                                               
 MS. KNUTH explained the Department of Law supports the provision in           
 the bill that will allow the entire marijuana plant to be weighed,            
 including the stalk.  She quoted the definition as set out in                 
 present statute is the seeds, leaves, buds, and flowers, but not              
 the stalk.  Adding the stalk, she said would allow the prosecution            
 to reach the one pound level sooner.                                          
                                                                               
 MS. KNUTH addressed the new language at the time of harvest or                
 seizure and presented a practical problem of having the plants rot            
 if not dried, and secondly, it is the State's burden of proof in              
 criminal cases beyond a reasonable doubt.  She said the weight of             
 the plant needs to be the same at the time the case goes to the               
 jury as has been charged, and she gave an example.                            
                                                                               
 MS. KNUTH reiterated the Department's support for SB 332 -                    
 especially Section 2, but she suggested the phrase on page 1, lines           
 9 and 10, [WHEN REDUCED TO ITS COMMONLY USED FORM] be reinstated.             
                                                                               
 Number 298                                                                    
                                                                               
 SENATOR DONLEY questioned the amount of time saved since most of              
 the time seemed to be in the drying out process.                              
                                                                               
 MS. KNUTH said it would still have to be dried, but with the weight           
 it would be more for the product.                                             
                                                                               
 SENATOR DONLEY protested it would never get passed a judge, and MS.           
 KNUTH thought the matter could be addressed by changing the                   
 language to include "dried" weight.                                           
                                                                               
 SENATOR JACKO asked about the stalks not having THC, and SENATOR              
 DONLEY confirmed there was nothing in the stalk that is mind                  
 altering, but the whole stalk is illegal.                                     
                                                                               
 SENATOR DONLEY agreed there was a compelling reason behind the                
 bill, because there is a considerable waste of resources for law              
 enforcement officers to be processing this illegal substance.  He             
 also agreed there had to be a preservation of the evidence, but he            
 was concerned there would be nothing done but increasing the                  
 penalty for smaller amounts of the drug.                                      
                                                                               
 MS. KNUTH was hoping there would be a difference between processing           
 and simply drying it, so it remains unspoiled evidence.  She said             
 the prosecution had no interest in processed marijuana, but they do           
 need the marijuana to be a stable amount.                                     
                                                                               
 SENATOR TAYLOR expressed concern for the officer who initiate the             
 process, and talked in terms of fishing violations where just                 
 samples were saved.  Illegal fish are sold and the fish ticket is             
 preserved for evidence.  He questioned whether truck loads of                 
 marijuana would be saved, rather than just samples and the                    
 photographs.                                                                  
                                                                               
 Number 350                                                                    
                                                                               
 SENATOR DONLEY, a lawyer, declared he could beat that scenario in             
 court, and asked about the fish.  There ensued a discussion between           
 SENATOR DONLEY and SENATOR TAYLOR about fishing violations,                   
 penalties, higher standards, evidentiary process, and the lack of             
 logic in the different violations.                                            
                                                                               
 SENATOR TAYLOR asked MS. KNUTH about processing a large growing               
 operation, and she suggested Public Safety could provide more                 
 information on these facts.  She described her position as a                  
 prosecutor and the manner in which she presented marijuana as                 
 evidence.                                                                     
                                                                               
 SENATOR DONLEY clarified the difference from existing law is that             
 the stocks would be included in the dried product, and he asked               
 what the difference would be in the aggregate weight.  He wanted to           
 know how many people would be moved into a felony category, and he            
 also wanted to know the status of the initiative thrown out by the            
 superior court.  He asked MS. KNUTH if her division had appealed              
 the decision.                                                                 
                                                                               
 MS. KNUTH said her division had not, but she thought it was a                 
 district court from Southeast Alaska, possibly Ketchikan, that                
 curtailed it in that area.  She explained there was a supreme court           
 decision that if the court did not appeal an adverse decision, the            
 prior law would prevail.  MS. KNUTH quoted a supreme court opinion            
 that says it doesn't have binding effect in another judicial                  
 district.                                                                     
                                                                               
 SENATOR DONLEY didn't think it was binding completely, but there              
 was room to maneuver, and asked if the decision was published.                
                                                                               
 Number 398                                                                    
                                                                               
 MS. KNUTH explained, at this point, the department has no statewide           
 ruling that says the amendment was unconstitutional, but she                  
 thought the superior litigation was still ongoing, where the                  
 amendment was attacked by a right-to-privacy group.  She said it              
 was stalled out on the plaintiff's burden of proof, and they                  
 continued to discuss the constitutionality of the suit.                       
                                                                               
 SENATOR DONLEY thought the initiative was still good, but he was              
 unclear as to whether it made all possession of marijuana a felony.           
 MS. KNUTH said it became a misdemeanor offense that could be                  
 prosecuted to possess, even your own home, but it would require               
 law enforcement officers to have a reason to be there. If the                 
 officers enter on a search warrant for some other offense and find            
 marijuana, prosecution could be initiated.  There was a discussion            
 of quantity cutoffs for marijuana.  She said one pound was the                
 felony cutoff.                                                                
                                                                               
 SENATOR DONLEY indicated that was a beginning point for a                     
 discussion on the impact of prosecutions by including the stalks,             
 and he opined there would be more people prosecuted on felony                 
 crimes as opposed to misdemeanors.  He claimed there would also be            
 an impact on the fiscal note with the increase in felony crimes,              
 and he asked the committee if that was what they really wanted.               
                                                                               
 SENATOR DONLEY also asked if the committee was actually addressing            
 a procedural and a time problem.  SENATOR TAYLOR thought the focus            
 was in solving the actual practical problem of handling this                  
 contraband subsistence in the manner in which it would have to be             
 stored, collected, and saved.                                                 
                                                                               
 SENATOR TAYLOR turned to LT. MALLOTT in Ketchikan to respond to               
 some of the practical concerns.                                               
                                                                               
 LT. MALLOTT explained the actual harvesting of cutting off the                
 plant at the base and hanging it up in a room to dry, is not as               
 time consuming as the physical process of taking each marijuana bud           
 off the plant and storing various parts independently.  He claimed            
 the major time consuming process is the grooming, and he explained            
 it took 32 officer hours grooming the 200 plants seized in a recent           
 raid.                                                                         
                                                                               
 LT. MALLOTT explained if they could weigh the entire dried plant it           
 would be less time consuming, and he objected to having to deal               
 with the time consuming procedures mandated by law.                           
                                                                               
 Number 452                                                                    
                                                                               
 SENATOR DONLEY indicated a great deal of sympathy for the plight of           
 LT. MALLOTT and thought the process was ridiculous.  However, he              
 noted the relevant factor to the amount of an illicit substance,              
 and gave the analogy of how large a theft is involved in a crime.             
 He thought the punishment should fit the crime and be done in a               
 rational manner.  He expressed concern the change in the bill would           
 change the level of punishment which would bring about fiscal and             
 social impacts.  He again asked the committee members what they               
 were trying to do.                                                            
                                                                               
 LT. MALLOTT explained in his eighteen years experience, extremely             
 few cases were involved at or near the one pound level, so he                 
 thought it would effect a small number of cases.  His concern was             
 the growing operation of 50 or 75 plants, where there is obviously            
 more than a pound, and he thought it was a waste of resources to              
 continue to process all those plants.                                         
                                                                               
 SENATOR DONLEY agreed it was a waste of resources but could be                
 fixed without the increase in penalty for possession to do that,              
 and he led a discussion of rational ratio adjustment in a felony v.           
 a misdemeanor.                                                                
                                                                               
 LT. MALLOTT did not see the bill as increasing penalties so much as           
 trying to make it simpler for law enforcement to obtain a usable              
 weight in a large growing operation.                                          
                                                                               
 SENATOR TAYLOR reviewed the interchange with SENATOR DONLEY on the            
 points of the legislation dealing with the inclusion of the stalks            
 in the grooming of the marijuana, making a major impact on breaking           
 through the borderline of felony v. misdemeanor.  SENATOR TAYLOR              
 quoted SENATOR DONLEY'S idea for a formula to allow for the stalks            
 to be of a certain percentage of the groomed weight.  SENATOR                 
 DONLEY agreed with his assessment of the problem.                             
                                                                               
 Number 508                                                                    
                                                                               
 MS. KNUTH questioned MR. MALLOTT if someone had dried weight that             
 included the stalk making it over a pound, would that still be a              
 quantity that could be arguably "personal use."  Or would it be a             
 commercial quantity when the amount is over a pound including the             
 stalk.                                                                        
                                                                               
 MR. MALLOTT was not aware of anyone has been in possession of more            
 than a pound of groomed and processed marijuana for their personal            
 use.  He described various times at which a marijuana plant could             
 be harvested, and he gave an example of finding 1000 starter                  
 plants, two inches high, but which might not contain a pound of               
 useable product.  He expressed appreciation at the struggles by the           
 legislators to address his problem, and he restated his dilemma as            
 continuously discussed.                                                       
                                                                               
 SENATOR DONLEY suggested using the standard of so many pounds of              
 total weight or so many plants, saying he would be suspicious of              
 anyone with 100 plants.                                                       
                                                                               
 SENATOR TAYLOR talked about MS. KNUTH'S amendment to insert "dried"           
 on page 1, line 8, before the word "weight."  MS. KNUTH suggested             
 placing a period after the word "attachments" on line 9 on page 1.            
 SENATOR LITTLE clarified the weight at seizure would not be the               
 dried weight.                                                                 
                                                                               
 SENATOR DONLEY clarified the use of "dried weight" in the sentence,           
 line 8, page 1.  He said he was also interested in the using the              
 number of plants as an issue, and there was some discussion of this           
 among the committee members.                                                  
                                                                               
 Number 550                                                                    
                                                                               
 SENATOR DONLEY gave some examples for getting a search warrant for            
 probable cause for large scale marijuana crops, along with some               
 concerns that 200 small plants might not fit the definition.                  
                                                                               
 MS. KNUTH explained AS 11.71.040 is misconduct involving a                    
 controlled substance in the fourth degree, which is a class C                 
 felony, and she explained how a subsection (g) could be added to              
 describe the number of plants, which would be the cutoff level.               
                                                                               
 SENATOR TAYLOR asked MS. KNUTH if she thought it had to be a dried            
 product, and she quote some statutory authority consistent with the           
 need from an evidentiary stand point.                                         
                                                                               
 After some discussion, SENATOR DONLEY proposed some provisions for            
 total numbers of plants, along with some adjustment in total weight           
 as a felony, taking into consideration the stalks.                            
                                                                               
                                                                               
 SENATOR TAYLOR asked MS. KNUTH to work with the committee and his             
 aide, KEVIN, to amend the bill for a future hearing.  SENATOR                 
 DONLEY admitted to having some constitutional qualms about the                
 lower levels within a person's home and the privacy clause of the             
 constitution.  He thought there was a compelling state interest in            
 regulating the substance, which goes beyond the constitutional                
 right to privacy.                                                             
                                                                               
 SENATOR TAYLOR expressed concern that persons may have in their               
 homes a substance which we cannot purchase, transport, receive by             
 gift, or sale and can only appear on his dining room table by                 
 immaculate reception.                                                         
                                                                               
 SENATOR TAYLOR thanked all who worked on the legislation, asked for           
 additional ideas, and promised copies of a proposed committee                 
 substitute to the LIO in Ketchikan.                                           

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