HB 180 - DRUGS WHERE MINORS ARE PRESENT CHAIRMAN KOTT announced the next order of business is HB 180, "An Act relating to the possession, manufacture, use, display, or delivery of controlled substances while children are present." Number 0477 REPRESENTATIVE JOHN COWDERY, Alaska State Legislature, came before the committee as sponsor of HB 180. The bill is under the premise that second-hand smoking is dangerous to a person's health; therefore, what does cocaine do to children in their presence? The intent of the bill is to charge a person with child abuse who smokes cocaine or uses a controlled substance in front of an underage child. The intent of the bill is to also charge a person with child abuse who is caught drinking and driving with an underage child and convicted. Number 0545 PETER TORKELSON, Researcher for Representative John Cowdery, Alaska State Legislature, came before the committee to explain the bill further. He explained HB 375, from last year, opened up this very section and set out a new provision. This bill deletes the language from AS 11.51.110 - "Endangering the welfare of a child in the second degree" - and uses that intent and moves it up to AS 11.51.100 - "Endangering the welfare of a child in the first degree." It also expands the sphere of beyond just a dwelling or vehicle. Representative Cowdery is concerned about a campsite or an enclosed yard for example. As a result, the bill reads, "the immediate physical presence of." He noted that the dwelling and vehicle parameters are still maintained. MR. TORKELSON further stated that the bill has two standards. One for younger children, which is harsher, and one for older children. In addition, AS 11.51.130 brings in possession. In other words, maybe it can't be shown that drugs are being manufactured or used in a particular place, but they are there. Number 0678 REPRESENTATIVE MURKOWSKI asked Mr. Torkelson to clarify the age breakdown in the bill. MR. TORKELSON replied the current law only recognizes the endangerment of children around drugs under the age of 10, which is a small group of people. It doesn't hurt a child the age of 11? he asked. At that age, a child is still impressionable. The bill raises the bar to under the age of 16 with a stiffer penalty. The bill also raises the bar to under the age of 18 with a less stiff penalty because at that point a child is less vulnerable. Number 0753 REPRESENTATIVE MURKOWSKI questioned the language removed in Section 2(a). MR. TORKELSON noted that the language was removed because it became redundant once the bar was raised. REPRESENTATIVE GREEN noted in Section 1 the language "display" is used, while in Section 3 the language "delivery" is used. He asked Mr. Torkelson whether there is a reason for the difference. MR. TORKELSON replied the language "display" is from the existing controlled substance laws. He's not sure why the word "delivery" was used instead of "display" in Section 3, however. He noted that the standard of proof in (A) is knowing the possession was occurring, while in (B) it is over actions - manufacture, use and delivery. A reasonable person should be able to recognize when those types of activities are occurring in that person's presence, which is a lower standard of reckless disregard. CHAIRMAN KOTT noted that the difference in verbiage still needs to be clarified. Number 0921 REPRESENTATIVE COWDERY informed the committee that Mr. Del Smith [Deputy Commissioner, Department of Public Safety] thought it was a good idea. He also noted that the attorneys in the Department of Law felt that the penalties would be too hard to prosecute. It was his decision to leave that hardness in the bill because a prosecution is difficult even for easy cases. He is hoping that the penalities would be just enough to get a person's attention. Number 0990 MR. TORKELSON said it is not clear just by looking at the bill to determine the penalty provisions. He explained in AS 11.51.100 the penalty is a class C felony, and in AS 11.51.130 the penalty is a class A misdemeanor. Number 1040 REPRESENTATIVE MURKOWSKI asked Representative Cowdery whether he has considered how this would play into the new laws relating to the medical use of marijuana. REPRESENTATIVE COWDERY replied he hasn't thought about it. Number 1066 MR. TORKELSON noted that there are a couple of pending pieces of legislation that are working in-concert with the medical use of marijuana initiative. Number 1088 CHAIRMAN KOTT asked Mr. Gerald Luckhaupt from the Legislative Affairs Agency whether the medical use of marijuana would be lawful; therefore it wouldn't fall within the parameters of the bill, if it can be determined what is and isn't lawful. Number 1094 GERALD LUCKHAUPT, Attorney, Legislative Legal Counsel, Legislative Legal and Research Services, Legislative Affairs Agency, came before the committee to answer questions. He replied the bill says knowing that a controlled substance is unlawful. The initiative provides immunity for a person using medical marijuana from any criminal charge, prosecution, or civil sanction. Therefore, it would also provide immunity for the criminal act in the bill, if it could even be argued that it was criminal. It would provide immunity even if the word "unlawful" was not in the bill. Number 1155 REPRESENTATIVE MURKOWSKI said, provided that a person has registered. MR. LUCKHAUPT replied no. The initiative doesn't require a person to register. REPRESENTATIVE MURKOWSKI said she understands that. She explained that she attended a House Health, Education and Social Services Standing Committee meeting where former-Representative Finkelstein - sponsor of the initiative - indicated that in order for a person to have immunity that person had to be registered. Number 1201 MR. LUCKHAUPT said is it pretty clear that the initiative provides immunity for every criminal action for a person who doesn't register. If a person registers, then there is a list of restrictions. He cited a person can't smoke in public, a person can't use it anywhere where that person could be seen in public, and a person can't use it in a way that endangers another person. Those restrictions only apply to people who have registered. There are no restrictions for a person who does not register. He stated that former-Representative Finkelstein was probably incorrect on that point. Number 1262 REPRESENTATIVE GREEN asked Mr. Luckhaupt to explain why the word "display" is used in one section and the word "delivery" is used in another section. Number 1292 MR. LUCKHAUPT replied "use" and "display" were both used in the 1992 initiative to recriminalize marijuana in regards to misconduct involving a controlled substance in the sixth degree. Those terms were not defined in statute, so he had to work them into the bill. The use or display of marijuana is a violation of that statute. He indicated that he probably left out the word "display" from the other section unintentionally. He noted that "delivery" was not included in the other section because he tried to pick out what is being done in sections from current law. It seems, however, that delivery should be included in the manufacturing section along with use, manufacture, or display. Number 1473 ANNE D. CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law, came before the committee to testify. She said it's hard for her to take a position on this bill, especially the first section. The statute - "Endangering the welfare of a child in the first degree" - is unusual because it provides separate penalties for the various ways to violate the law. She cited deserting a child in a dangerous situation, leaving a child with a sex offender, and leaving a child with a child abuser and the child suffers harm as the three ways to violate the statute. The violation for the first two is a class C felony. The violation for the third one depends on the harm suffered to the child - either a class B felony or all the way down to a class A misdemeanor. She mentioned that the sponsor needs to think about how serious this conduct is, at which time, she can give the committee a better idea of the department's position on the bill. She further noted that the conduct covered in Section 1, of the bill, is awfully broad. She's not certain that allowing a child to be in the presence of a person smoking a "joint" should be treated as a felony. Perhaps, it should be a class A misdemeanor. She also mentioned she is concerned about the use of the word "display." It's not very clear, and she's not sure why it should be repeated in this bill. In terms of contributing to the delinquency of a minor, she suggested making it one section and taking out possession. As the bill is written now, it would be illegal to have a "joint" in a person's pocket when around a child. It's fine to have manufacture, use, or delivery under this section, but possession should be removed. Number 1744 REPRESENTATIVE CROFT asked Ms. Carpeneti what the penalty is for using a controlled substance in front of a child. MS. CARPENETI replied it depends on the person's culpable mental state, which is another problem with the bill. It's not clear what conduct comes under each penalty. She thinks, if a person is using a controlled substance in front of a child it falls under endangering the welfare of a child in the first degree. She assumes that the sponsor intended it to be a felony, but there is a class A misdemeanor in that section too. She noted, if a person is holding a child and using drugs unlawfully, it falls under the language, "immediate physical presence." REPRESENTATIVE CROFT asked Ms. Carpeneti what the is penalty for that. MS. CARPENETI replied there is no penalty for that in the bill, which is a problem that needs to be fixed. It might also come under contributing to the delinquency of a minor which is a class A misdemeanor. In that case, the culpable mental state is reckless disregard. REPRESENTATIVE CROFT asked Ms. Carpeneti whether the short answer to his question is that the penalty comes under AS 11.51.130. MS. CARPENETI replied yes. Number 1981 REPRESENTATIVE COWDERY suggested visiting the Anchorage Police Department and riding with a patrol officer on the weekend. That is where this bill started to develop with him. He said, "It's an eye opener." Number 2064 MR. TORKELSON referred to AS 11.51.100 and noted that endangering the welfare of a child in the first degree is a class C felony under (a)(1) or (2). He was advised that a class C felony is the base penalty applied in AS 11.51.100. Number 2138 REPRESENTATIVE CROFT said it seems the more analogous section is a class A misdemeanor and not a class C felony. A class C felony seems to be more than a one level jump. He thinks it is not categorized at all in AS 11.51.100 and it would be an error to categorize it as a class C felony. There appears to be a graduated penalty depending on the violation. He cited it's a "B" if the child dies, a "C" if there's sexual contact or serious physical injury, and an "A" if there's any physical injury at all. Number 2260 REPRESENTATIVE JAMES asked how the existing statute for children in need of aid would tie into this kind of an accusation. The statute is specific in terms of when a child can or cannot be removed from a home. Number 2332 MS. CARPENETI replied, according to her impression, it seems that a person smoking dope in front of a child would be on the low end of priority for the Department of Health and Social Services. It really is a civil division chore. She's doesn't have a good answer. Number 2416 MR. LUCKHAUPT noted that it would have some affect in the foster care area. The amendments that have been made over the last few years to foster care have included offenses against the families under AS 11.51. The problem is there are different offenses listed for the revocation of a license, for denying someone a license, and for the placement of a child. The Senate has a bill to try... TAPE 99-39, SIDE A Number 0001 MR. LUCKHAUPT continued. Right now, the authority to create a license is not in statute because of the changes that have been made over the last few years. It's a real mess. He reiterated this would affect the foster care area because there are specific provisions that include references to offenses against the family in terms of disqualifying a person from being a foster parent. He's not sure whether that would or wouldn't remain in the new draft of the Senate bill. The problem exists in other sections of the title as well. He's trying to solve this one, then he will look at the other sections. Number 0117 REPRESENTATIVE JAMES said the whole issue of children is very troublesome to her. It seems that the legislature wants to make everything perfect for them when it can't. In the process, families are being destroyed. She has had 19 different foster children of her own and has been exposed to the net result of the state getting involved. She is opposed to drug exposure to children, but noted that tobacco and alcohol are lawful "drugs." Number 0257 MR. LUCKHAUPT stated, in response to Representative Croft's question earlier, an earlier version of the bill corresponded to leaving a child someplace and risking injury to that child. Number 0352 REPRESENTATIVE CROFT asked Mr. Luckhaupt whether it would be a class B misdemeanor under Section 1 (a)(4) of the bill. There is a sequence of penalties going down as the physical harm goes down until there is a base level at which point a person has to prove any harm. MR. LUCKHAUPT replied no. If a person violates Section 1 (a)(4), of the bill, it would be a class C felony in all cases. It doesn't depend on whether or not a child suffers any injury. That is also how it works for (a)(1) and (2) - intentionally deserting a child and leaving a child with another person who has been convicted of various things in the past. It's only (a)(3) that depends upon the injury suffered by a child. It was the intent of the sponsor to place (a)(4) in the class C felony range with (a)(1) and (2), but that is not how the bill is written now. Number 0429 REPRESENTATIVE CROFT noted that it's a class A misdemeanor, if a child is left with another person under (a)(3) and that person has previously mistreated or has had sexual contact with another child and causes injury to the child - as long as it's not serious physical injury. But, if somebody smokes a "joint" around a child, it would be a class C felony. MR. LUCKHAUPT replied yes that would be the penalty under (a)(4). REPRESENTATIVE CROFT noted that the person doesn't even have to smoke, but display or have... MR. LUCKHAUPT replied that's correct. It is conduct that probably can't be prosecuted, if it's done in a person's home because Raven is still in law and controlling. Raven allows for the use and display of marijuana in a person's own home as long as the quantities are for personal use. He noted that, even though there is a law against it, the Department of Law has not prosecuted anybody successfully yet under misconduct of controlled substances in the sixth degree. The cases that came after Raven allowed the state to outlaw personal use and possession by minors. He noted that, even though this might be a protected activity under the privacy clause, it isn't something that is protected in front of children. He further noted that, even though it was classified as a violation under last year's child abuse bill, the sponsor feels strongly that it should be penalized somewhat above that. It seemed like a reasonable place to put that as a starting point, since there are only class C felonies in AS 11.51.100 now for conduct that is not based upon harm caused to a child. Number 0644 CHAIRMAN KOTT indicated that the bill would be held over for further consideration.