SB 66-IMITATION CONTROLLED SUBSTANCE  1:37:27 PM CHAIR COGHILL announced the consideration of SB 66. "An Act relating to imitation controlled substances; and providing for an effective date." This was the first hearing 1:37:49 PM SENATOR DENNIS EGAN, Alaska State Legislature, sponsor of SB 66, introduced the legislation paraphrasing the following sponsor statement: [Original punctuation provided.] Senate Bill 66 makes it easier for law enforcement to crack down on drug dealers by making illegal any substance represented as a controlled substance. Drug dealers often rip off customers by selling them salt or sheet rock dust as meth, for example. When a drug dealer rips off a law enforcement officer during a sting operation, the officer can't make a charge because the substance doesn't contain a specific ingredient on the list of imitation controlled substances in statute. The current definition of imitation controlled substances in AS 11.73.099(3) lists chemicals a substance must contain in order to be illegal. Senate Bill 66 changes the definition of an imitation controlled substance to more generally make illegal any substance made to look like an already illegal drug. By omitting specific chemicals from the definition, the change makes illegal a substance "that is not a controlled substance and that, by dosage unit appearance (including color, shape, size, and markings) and by representations, would lead a reasonable person to believe that the substance is a controlled substance." Senate Bill 66 will change our imitation controlled substance law to enable law enforcement officers to more effectively charge drug dealers in the State of Alaska. 1:40:11 PM CHAIR COGHILL asked if removing all the specific references to controlled substances runs the risk that some of the more harmful drugs may no longer be illegal. SENATOR EGAN replied the problem is that the law is too specific; the formulas can be changed just enough so they're no longer on the list of controlled substances and the police can't file a charge. 1:41:23 PM ALEDA BUS, Staff, Senator Dennis Egan, added that things like ephedrine are still covered in a list of certain chemicals. CHAIR COGHILL asked if violation of this law is a class C felony. SENATOR EGAN acknowledged that concern was expressed about the severity of the penalty, and there was a committee substitute (CS) that reduces that penalty. 1:43:27 PM LEE PHELPS, Drug Enforcement Officer, Juneau Police Department, Juneau, Alaska, stated that the imitation controlled substance law isn't used very often, but it would help if the definition wasn't so specific. He explained that in the past 2.5 years he's been part of more than 100 controlled buys and only three times was he sold anything that was not an imitation controlled substance. In some cases it was salt as methamphetamine or cooked down tootsie rolls as heroin, but because the crime lab didn't find any of the listed chemicals like ephedrine or pseudoephedrine there wasn't a crime. If the definition was changed to be any substance that is purported to be a controlled substance, a controlled buy of a pinch of salt for $120 would fit under the imitation controlled substance law. CHAIR COGHILL asked if intent would have to be proved if it was either an actual controlled substance or a representation. OFFICER PHELPS said yes and the law also takes into account any statements that the person makes and the way the substance is packaged. 1:45:27 PM SENATOR DYSON asked at what point the illegal sale might be prosecuted as fraud. OFFICER PHELPS answered that in the instances when JPD was unable to charge under the imitation controlled substance law, they have charge the person with theft. That's a misdemeanor. SENATOR DYSON observed that theft must include getting something of worth under false pretenses. OFFICER PHELPS agreed and noted that it would be a class A misdemeanor if the sale was over $50. SENATOR DYSON asked if the defense has ever brought up the concept of mens rea [criminal intent]. OFFICER PHELPS said he didn't know. SENATOR DYSON asked what heroin, good cocaine, and black oxycodone currently sell for in Juneau. OFFICER PHELPS replied the street price for heroin is $100 for 1/10 gram; for methamphetamine it's $120 for 3/10 gram; for cocaine it's $100 to $120 a gram; and for oxycodone it depends on the strength of the pill. SENATOR DYSON asked if people in Juneau smoke and shoot Oxycodone. OFFICER PHELPS answered yes. 1:50:38 PM CHAIR COGHILL asked Ms. Wollenberg for an explanation of charging under the imitation controlled substance law if AS 11.73.020 is repealed. TRACEY WOLLENBERG, Attorney, Public Defender Agency, Department of Administration (DOA), explained that AS 11.73.020, deals only with the possession of those individual chemicals with the intent to manufacture an imitation controlled substance. While that provision would be repealed, AS 11.73.010 would still prohibit manufacturing, delivering, or possessing the actual imitation controlled substance. That would be a class C felony. Responding to a further question, Ms. Wollenberg said that by removing the individually listed chemical substances it broadens the definition of imitation controlled substance. The definition may also be vaguer because it will be subject to appearance and representations of the person as opposed to being tied to specific chemicals. 1:53:52 PM SENATOR DYSON asked what her concerns would be to protect the defendant's rights if he/she was accused of misrepresenting sheetrock powder and selling it in baggies. MS. WOLLENBERG replied one concern would be with the level of offense. She questioned whether it makes sense to charge someone who manufactures or delivers sheetrock at the same class C felony level as someone who possesses an actual controlled substance such as marijuana or cocaine. A defense attorney might also focus on what the representations were and if it was reasonable to think that the substance was marketed as a controlled substance. She opined that because the bill is a little broad, it could capture some things unintentionally and not grab the next substance that comes along. 1:56:17 PM SENATOR DYSON said he can picture a defendant claiming he never intended to sell a drug, but rather to defraud the person of their money. MS. WOLLENBERG agreed there is a question of what mens rea applies to the statute. For manufacture or delivery there would typically be a knowing mens rea, she said, and then the question is whether there is mens rea with regards to an imitation controlled substance or if it goes more to motive. CHAIR COGHILL commented that a person can be charged with a misdemeanor for selling marijuana and a felony for selling oregano under this scenario. MS. BUS stated that Legislative Legal looked at that and drafted an amendment to reduce the class of crime in that circumstance. CHAIR COGHILL said the committee would consider that amendment at a subsequent hearing. He then asked Lieutenant Dial if he had any comments. 1:59:29 PM RODNEY DIAL, Lieutenant, Alaska State Troopers, Department of Public Safety (DPS), Ketchikan, Alaska, reported that the department has no concerns with SB 66, but he wanted to point out that this legislation would not affect the crime of delivery of an imitation controlled substance to a minor under AS 11.73.030, which is a class B felony. He also pointed out that theft in the third degree, which is a class A misdemeanor, is anything more than $50 and less than $500. Theft in the fourth degree is anything less than $50 and that's a class B misdemeanor. LIEUTENANT DIAL reported that public safety drug investigators routinely encounter substances that are portrayed as controlled substances, but they aren't listed in statute so an individual can't be charged. For example, sweetheart candy is purported to be OxyContin and melted brown sugar is purported to be heroin. The individual couldn't be charged in these cases. SENATOR DYSON said he assumes in these situations that prosecutors have been reluctant to move forward with a case of fraud. LIEUTENANT DIAL confirmed that was correct. CHAIR COGHILL announced he would hold SB 66 in committee for further consideration.