Legislature(1993 - 1994)
03/11/1994 01:35 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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.