SENATE BILL NO. 66 "An Act relating to imitation controlled substances; and providing for an effective date." 10:23:55 AM SENATOR DENNIS EGAN, stated that the legislation made it easier for law enforcement to crack down on drug dealers by making illegal any substance represented by a controlled substance. Currently a drug dealer could sell a felony drugs during a sting operation, the officer could not make a charge, because the substance did not 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 listed chemicals, a substance must contain, in order for it to be illegal. He stated that SB 66 changed the definition of an imitation controlled substance to more generally make illegal that was made to look like an already illegal drug. He stated that the most recent version of the bill reduced the penalties for crimes under the statute. ALIDA BUS, STAFF, SENATOR DENNIS EGAN, stated that she had nothing to add to the testimony. 10:26:16 AM LIEUTENANT KRIS SELL, POLICE OFFICER, JUNEAU POLICE DEPARTMENT, testified that the legislation was a request from the Juneau Police Department. She stated that the legislation was as written because of the police experience in field operations in purchasing narcotics. She found that there were some instances where drug dealers would sell "sham narcotics" such as salt, sheet rock dust, or other unidentified substances. She shared that there were some states that identified the sale sham narcotics as a drug charge. She examined Alaska's law, and noticed that there were limitations by the list of very specific chemical compounds that could be charged as selling imitation controlled substances. Those chemicals were mostly precursors or "cut" that was used for controlled substances. She stressed that many of those chemicals were expensive, and sometimes more difficult to find than an average household products, so many drug dealers did not use those chemicals when selling the sham drugs. She shared that sometimes she had been required to make sham drugs when there was a controlled delivery, because the police operation did not want to run the risk of losing a large amount of controlled substances. She stated that she could make a very realistic version of the drug, meth, with flour and a heavy coating of hair spray. She announced that many known drug dealers were getting a pass on selling the fake drugs to the customer, but the customer did not have the option to complain to law enforcement, they would just use a new dealer. Senator Dunleavy wondered if the legislation was age- specific. Lieutenant Sell replied that the draft version of the committee substitute was age-specific. Senator Dunleavy surmised that anyone over 19 could be convicted of selling drugs. Lieutenant Sell responded that the committee substitute from the Judiciary Committee did not have an age requirement. 10:33:38 AM AT EASE 10:34:28 AM RECONVENED Senator Dunleavy wondered if the age was contingent on prosecution, because there was an age specified in statute. Lieutenant Sell replied that age was referenced, but was a higher penalty to expose a younger person to the substances. Senator Dunleavy wondered if the crime was different, if a person buying the substance was only one year younger than the person selling the substance Lieutenant Sell deferred to the Department of Law (DOL). Co-Chair Meyer queried how the substances were deemed authentic controlled substances or an imitation. Lieutenant Sell replied that there were presumptive field tests conducted, before the substance was sent to the crime lab. Co-Chair Meyer wondered how often people were prosecuted under the existing statute. Lieutenant Sell replied that, in her experience, no one had been prosecuted under the existing statute. Senator Dunleavy wondered how big of an issue this is in Juneau. Lieutenant Sell replied that there were several instances per year. Senator Dunleavy wondered if the Alaska Civil Liberties Union (ACLU) had expressed an opinion on the bill. Lieutenant Sell replied that she did not know if the ACLU had expressed an opinion the bill. Senator Dunleavy asked what would happen to a child that sells an imitation drug to a friend in middle school or elementary school. Lieutenant Sell replied that there would be an examination of whether the child understands the implications of their actions. She shared that there were some cases of children in middle school that brought marijuana to school, but had not seen the imitation controlled substances in schools yet. Senator Olson felt that the legislation may be a focus on "thought policing." He felt that there may be a person that would not necessarily be guilty, but be more innocent than presumed. Lieutenant replied that the intent of the bill is for known drug dealers who sometimes sold sham substances. She stressed that there was not an intent to determine the thought, rather than the tried and true test of the reasonable person. The two-prong approach would be the appearance of the drug and a representation. Senator Olson felt that there could be an issue of objectivity of the officer over a person who was obviously not guilty. 10:42:45 AM TRACEY WOLLENBERG, PUBLIC DEFENDER, DEPARTMENT OF ADMINISTRATION, ANCHORAGE (via teleconference), testified in response to some concerns from some committee members. She felt that the bill may capture conduct that was not intended to capture, especially pertaining to individuals who have an intent to deceive someone into thinking that the substance was an imitation controlled substance. The memo from legislative services (copy on file) discussed a hypothetical situation from the Morrow Case: When someone, without any intent to deceive, gives caffeine diet pills to someone indicating that the pills were as effective for weight loss as any prescription medicine. In the 1985 Court of Appeals case, Morrow versus State, both parties agreed that the statute would cover that hypothetical situation, even though it may not be the hypothetical situation that the drafters of the bill were intending to capture. She stressed that the hypothetical situation was repeated from the legislative memo. She stressed that the statute was written to capture situations where the recipient might reasonably believe that the substances was a controlled substance, but the distributor had no intent for the recipient to believe that it was a controlled substance. One way to correct the over-breadth problem would be to write an intent to deceive requirement or a requirement that the person intentionally misrepresented that the substance was a controlled substance. She felt this addition would narrow the statute to conform to the concern of law enforcement. Senator Olson assumed that Ms. Wollenberg was not supportive of the legislation. Ms. Wollenberg replied that she has concerns with the bill as written. Vice-Chair Fairclough wondered if Ms. Wollenberg had been referencing a memo from Legal Services from February 6, 2014. Ms. Wollenberg replied in the affirmative. Vice-Chair Fairclough looked at page 1, paragraph 2, speaking to the grounds of vagueness and over breadth of the state statute. She wondered if Ms. Wollenberg was speaking to that paragraph. Ms. Wollenberg explained that the Morrow versus State case was the only case on the subject, and discussed the hypothetical situation in paragraph 3. She share that there was a challenge to the statute on vagueness and over breadth. That was resolved in the case by saying that the scope of the statute did not need fixing, because the facts of the case showed a clear misrepresentation. 10:48:12 AM Vice-Chair Fairclough looked at page 2 and the substantive due process and equal protection. She stated that the bill would eliminate the requirement that the imitation controlled substance contain a pharmaceutical active substance. A felony sentence might be challenged under the circumstances as sufficiently unfair, arbitrary, or disproportionate to the offence to constitute a violation to a right to due process. Ms. Wollenberg responded that under current statute, manufacturer delivery of an imitation controlled substance was a Class C felony. A the time that the legal memo was written those penalties had not yet been addressed, so there was some concern that the penalties for selling or manufacturing an imitation controlled substances were, in some cases, more severe than the corresponding penalties for distributing actual controlled substances like marijuana. Co-Chair Meyer CLOSED public testimony. 10:51:25 AM ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES SECTION-JUNEAU, CRIMINAL DIVISION, DEPARTMENT OF LAW, responded to a question from Senator Dunleavy regarding children. She stated that juveniles who would committing the conduct would not be committing crimes, rather they were possibly committing delinquent acts. She looked at the age differential, and stated that the three-year age difference was a common provision in law. She stressed that it was against the law for an adult to sell imitation substances under current law. She replied to a question from Senator Olson about thought policing. When a person is prosecuted for a crime, the state was the thought police, because culpable mental state must be determined. Co-Chair Meyer wondered if there were concerns regarding whether legitimate substances could be made illegal under the legislation. Ms. Carpeneti responded that the bill made non-controlled substances illegal. She stressed that current law made it a crime to take a substance that was not a controlled substance by misrepresentation. Co-Chair Meyer queried Ms. Carpeneti's view of the legislation. Ms. Carpeneti responded that it made sense to reduce the penalties for the crimes to make the penalties for the conduct similar to drunk driving. She understood the concern of law enforcement, but stressed that DOL did not have any specific concerns with the bill. Co-Chair Meyer wondered if the legislation would make it a more serious crime than actual possession of a real controlled substance. Ms. Carpeneti responded that it was the intent of reducing the penalties, so they were not more serious than bad conduct with connection with controlled substances. Co-Chair Meyer asked if there were any cases that were prosecuted under the current statute. Ms. Carpeneti stated that there were one or two convictions per year. Senator Olson asked how many prosecutions were successful. Ms. Carpeneti responded that there were some that were referred to DOL, and accept prosecutions at a similar level. She shared that, depending on evidence, a theft charge may be implemented because it was part of the conduct through the sale of the sham drug. 10:56:35 AM AT EASE 10:57:47 AM RECONVENED Co-Chair Meyer wondered if there was not an anticipation for more cases, if the fiscal note could be changed to zero. Ms. Carpeneti explained that the fiscal note was indeterminate, because the effect of removing the substances was unknown. Co-Chair Meyer asked for Ms. Carpeneti to comment on Ms. Wollenberg's testimony. Ms. Carpeneti replied that she did not share the same concerns with Ms. Wollenberg regarding "culpable mental state." The Morrow case specifically provided that the statute should read, to avoid the vagueness and over breadth problem, that it was an intentional misrepresentation. Vice-Chair Fairclough remarked that Ms. Wollenberg suggested adding legislation that had stronger "intent to deceive" language. Ms. Carpeneti felt that the law as interpreted was adequate. Senator Egan shared that the legislation would not affect many people in the state, but fixed a loophole in current statute. Vice-Chair Fairclough MOVED to REPORT CSSB 66(JUD) out of committee with individual recommendations and the accompanying fiscal notes. There being NO OBJECTION, it was so ordered. CSSB 66(JUD) was REPORTED out of committee with a "do pass" recommendation and with previously published zero fiscal notes: FN1(ADM) and FN2(ADM); previously published indeterminate note: FN3(LAW); and new zero fiscal note from the Department of Corrections. 11:02:42 AM AT EASE 11:07:01 AM RECONVENED