HOUSE BILL NO. 180 "An Act relating to the possession, manufacture, use, display, or delivery of controlled substances while children are present." Co-Chair Therriault provided members with a proposed committee substitute, work draft 1-LS0188\K, dated 2/3/00 (copy on file). Representative J. Davies MOVED to ADOPT the proposed committee substitute, work draft 1-LS0188\K, dated 2/3/00. There being NO OBJECTION, it was so ordered. Mr. Tibbles noted the committee substitute addresses concerns that were expressed, at the Committee's 2/01/00 hearing, that there were inconsistencies between provisions that apply to parents and those that apply to an adult. Standards of proof and the level of difficulty to prove were not uniform. There was also some duplication. Sections 1, 2 and 3 were deleted. These applied to parents with a minor. Verbs such as allowing, aiding, and inducing have been picked up and moved into the provisions that now apply to all adults. The new standard is set at the higher standard of "knowing", which applied to parents. The penalty of a class A misdemeanor was retained. Co-Chair Mulder asked how difficult a standard is "knowing". ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES SECTION, CRIMINAL DIVISION, DEPARTMENT OF LAW explained that "knowing" is the standard culpable mental state that is presumed on a criminal statute that doesn't have a culpable mental state. Co-Chair Mulder concluded that there is a distinction between the implication of knowing. Ignorance of the law can't be claimed because there is an implication that they law should be known. Ms. Carpeneti observed that culpable mental states apply to what you do and what you intend. "Knowing" is being aware of facts surrounding what is happening and knowing that the result is likely of the behavior. Representative Grussendorf referred to page 1, line 11. Ms. Carpeneti clarified that the statute refers to emancipated youths. Representative J. Davies referred to the use of "unlawful" on page 2, line 1. He questioned if this is an additional burden. Ms. Carpeneti gave examples of "knowing". She clarified that it would have to be proved that an individual knowingly takes a minor where an unlawful possession occurs. Representative J. Davies questioned if a person could plead that they did not know it was against the law. Co-Chair Therriault concluded that the second use of "unlawful" was not necessary. Representative J. Davies MOVED to Delete "unlawful" on page 2, line 1. Co-Chair Mulder noted that it is not the intention to allow another point for defense. Ms. Carpeneti agreed with the deletion. There being NO OBJECTION, "unlawful" was deleted on page 2,line 1. Vice Chair Bunde asked for more information regarding the indeterminate fiscal note from the Department of Corrections. CANDACE BROWER, LEGISLATIVE LIASON, DEPARTMENT OF CORRECTIONS provided information on the fiscal note. She emphasized that it is difficult to quantify the ultimate outcome in regards to incarceration. The department suspects that there will be a fiscal cost. Vice Chair Bunde questioned if the legislation would be considered an aggravator in sentencing. Ms. Carpeneti explained that it would be a new offence. The legislation includes possession, manufacture, use, display, or delivery. There were four - six of these cases prosecuted in Anchorage in the last year. Co-Chair Mulder questioned how wide a net the legislation would cast. Ms. Carpeneti responded that the legislation may be broadened by the addition of "possession." Ms. Carpeneti explained that a person would have to have knowledge that something is happening. Co-Chair Therriault concluded that if an individual encounters a situation, with a minor, where there are controlled substances and immediately removed the minor from the situation that they would have an allowable defense. Ms. Carpeneti observed that if the person were unaware of the activity before they entered that they would not have a culpable state of mind. They would not have encouraged a child to enter into a situation where an illegal activity is occurring. "Allowing" applies some sort of knowledge, as does to "aid, encourage or induce" a person. She emphasized that the intent is not to prosecute a person who innocently walks into a party where an illegal activity is occurring. Representative J. Davies observed that "immediate physical presence" is the operative phrase. He asked the significance of "immediate physical presence". Ms. Carpeneti interpreted that the phase "immediate physical presence" to imply that there is no barrier between the child and the activity. The activity could take place on a lawn or park bench. Immediate physical presence has been interpreted in case law to allow a visible connection. It is not defined in statute. Co-Chair Therriault questioned if a judge would instruct a jury on the meaning of the phase. Ms. Carpeneti noted that it would depend on the case, but that a prosecutor may want the jury to be instructed. Vice Chair Bunde questioned the application of the law if the initiative to legalize marijuana were enacted. Ms. Carpeneti noted that prosecution could still occur under federal law, but that the state would probably not prosecute under this statute if it were not illegal under state law. BLAIR MCCUNE, PUBLIC DEFENDER'S OFFICE pointed out that there are a lot of controlled substances in drug stores. He expressed concern that the removal of "unlawful" could broaden the legislation to a level where it could apply to a situation such as a drug store. Co-Chair Therriault pointed out that "unlawful" was not removed from its first reference in the sentence. REPRESENTATIVE JOHN COWDERY, SPONSOR spoke in support of the legislation. He acknowledged that the law already exists in a broad sense, but emphasized that his intent is to keep the law as tight as possible. Co-Chair Therriault felt that the committee substitute struck a balance and helped clarify the legislation. He concluded that the net is still cast broadly. Representative Foster MOVED to report CSHB 180 (FIN) out of Committee with the accompanying fiscal note. Representative G. Davis OBJECTED. He noted that every additional crime adds expenses to the Department of Corrections, Alaska Court System and Department of Law, at the same time that their budgets are being reduced. Representative Grussendorf expressed concern that the legislation goes too far. A roll call vote was taken on the motion. IN FAVOR: Austerman, Bunde, Davies, Foster, Grussendorf, Phillips, Therriault, Mulder OPPOSED: Davis, Moses The MOTION PASSED (8-2). CSHB 180 (FIN) was REPORTED out of Committee with a "do not pass" recommendation and a new fiscal impact note by the Department of Administration, a new zero fiscal note by the Alaska Court System, and two new indeterminate fiscal notes, one by the Department of Corrections and one by the Department of Law.