HB 369-DRUG OVERDOSE: IMMUNITY FROM PROSECUTION  2:12:59 PM CHAIR COGHILL announced the consideration of HB 369. "An Act relating to restrictions on the criminal prosecution for certain offenses for a person who seeks medical assistance for a person experiencing a drug overdose." He noted the proposed committee substitute (CS). [CSHB 369(JUD) was before the committee.] MORGAN HOPSON, Staff, Representative Lance Pruitt, sponsor of HB 369, deferred to the sponsor, who was online, to introduce the legislation. SENATOR MCGUIRE extended congratulations to Representative Pruitt for the "Top 40 Under 40" award he received today. 2:14:16 PM REPRESENTATIVE LANCE PRUITT, Alaska State Legislature, Juneau, Alaska, sponsor of HB 369, introduced the legislation speaking to the following sponsor statement: Alaska suffers from some of the highest rates of drug overdose in the nation, and these figures are rising at an alarming rate. The window to save an individual experiencing a life-threatening drug overdose is narrow, and response time is critical. Many individuals, as well as their friends and family, will hesitate or choose not to contact emergency medical services for fear of criminal repercussions relating to the controlled substance. HB 369 grants limited immunity to individuals who contact emergency medical services and stay with the person experiencing a life- threatening overdose until emergency personal arrive and make contact. The proposed legislation also requires that the caller comply with responding emergency medical personnel or public safety officers to provide any necessary information. The individual experiencing the overdose is already granted limited personal immunity to criminal charges when they are submitted for medical attention. For many in this condition, this also serves as an important point of contact for the referral to an agency that can help with their substance abuse. Unfortunately, most individuals experiencing a life- threatening overdose are unable to contact emergency services for themselves, and are at the mercy of the discretion of other persons present. Alaskans are working hard to fight the epidemic of abuse of controlled substances, including illegal and prescription drugs. The purpose of providing assistance, regulation and legal ramifications for misuse of pharmaceuticals or use of illegal drugs is to protect our society and those who currently suffer from substance abuse addictions. The passage of this bill can reduce the number of overdose deaths by granting this limited immunity to a person who seeks in good faith emergency medical services for another individual experiencing a life-threatening drug overdose. CHAIR COGHILL asked Ms. Hopson if she had anything to add. MS. HOPSON described the change that was made to the original language in the bill. In Section 1, the words "immunity from prosecution" were replaced with "restriction on prosecution." This was done to avoid transactional immunity, which could potentially make it more difficult to prosecute other offenses related to the incident outside of the possession offenses outlined in the bill. Someone would not be relieved of charges of reckless endangerment or assault or intent to distribute or manufacture, for example. She noted that she brought a blank committee substitute (CS) and could speak to that change at the chair's discretion. CHAIR COGHILL asked for an explanation of the criminal statutes referenced in Section 1, Sec. 11.71.311(a). MS. HOPSON said they're all possession offenses. She deferred further explanation to Kathleen Strasbaugh. 2:22:25 PM KATHLEEN STRASBAUGH Attorney, Legislative Legal Services, Legislative Affairs Agency, Juneau, Alaska, reviewed the list of offenses that a person may not be prosecuted for under the provision set forth in HB 369. AS 11.71.030(a)(3) is misconduct involving a controlled substance in the third degree. Subsection (a)(3) addresses possession of any amount of schedule IA or IIA controlled substance near a school grounds, youth center, or on a school bus. AS 11.71.040(a)(3) and (4) is misconduct involving a controlled substance in the fourth degree. Subsection (a)(3) governs possession of any amount of schedule IA controlled substance or a IIA controlled substance listed in the schedule. It also governs possession of 25 or more tablets, ampules, or syrettes containing a schedule IIA or IVA controlled substance and one or more preparations, compounds, mixtures, or substances of an aggregate weight of schedule IIIA or IVA controlled substances. Subsection (a)(4) is possession of a schedule IIIA, IVA, VA, or VIA controlled substance near a school grounds, youth center, or on a school bus. AS 11.71.050(a)(2) is misconduct involving a controlled substance in the fifth degree? Subsection (a)(2) is a possession offense affecting smaller amounts of most of the substances in misconduct involving a controlled substance in the fourth degree. As 11.71.060(a)(1) or (2) is misconduct involving a controlled substance in the sixth degree. Subsection (a)(1) involves use or display of any amount of a schedule VIA controlled substance (marijuana product). Subsection (a)(2) involves possession of one or more preparations, compounds, mixtures, or substances of smaller amounts of a schedule VIA controlled substance (marijuana) and schedule IIIA controlled substances that have been sprayed on tobacco, an herb, or another organic material. SENATOR WIELECHOWSKI expressed interest in any statistics showing how many people this potentially would have applied to in the last five years. MS. HOPSON said she didn't have exact statistics, but in the last five years the Alaska Bureau of Vital Statistics reports the annual fatalities from drug overdoses range between 100 and 130 per year. A University of Washington study found that before similar legislation was implemented just 50 percent of user groups said they would report drug overdose incidents. After the implementation, 88 percent said they would report. 2:27:21 PM SENATOR WIELECHOWSKI cited the NCSL website that mentions that "Connecticut and other states limit immunity by specifying that good-faith reporting does not include seeking help during the course of the execution of an arrest or search warrant." He asked if the sponsor had given that sort of situation any consideration. MS. HOPSON acknowledged that hadn't been discussed and deferred further comment to Ms. Carpeneti. CHAIR COGHILL asked if there had been any discussion of what constitutes "good faith." MS. HOPSON explained that the good faith implies that the person would stay with the person who had overdosed until law enforcement arrives and then they cooperate by providing identification. She offered her belief that this provision would be of little help to someone who tried to use it when officers were about to exercise a search warrant. CHAIR COGHILL offered his understanding that a person who reports an overdose still has some responsibility for unrelated criminal conduct. MS. HOPSON said yes. It would be a different scenario if, for example, a responding office entered the premise and discovered an amount of the drug that suggested the person had an intent to distribute. SENATOR WIELECHOWSKI asked if there had been any discussion about whether or not the bill might act to suppress evidence in other criminal charges that arose as a result of the emergency response. MS. HOPSON restated that the phrase "immunity from prosecution" was changed to "restriction on prosecution" to avoid the possibility of transactional immunity, which could potentially limit prosecution of other charges related to the incident outside of the possession offenses outlined in the bill. 2:31:25 PM SENATOR WIELECHOWSKI asked about applying this to alcohol overconsumption. MS. HOPSON said the sponsor's intent is to maintain the narrow scope in order to get it through the process this session. CHAIR COGHILL said he wouldn't want to give a false impression that the bill provides broad immunity from prosecution for misuse of an illegal substance. MS. HOPSON affirmed that it applies exclusively to possession for personal use in the circumstance of reporting an overdose. CHAIR COGHILL asked Ms. Strasbaugh to comment on potentially amending the applicability section to apply only on or after the effective date. MS. STRASBAUGH said it's a policy choice for the legislature, but the idea was that it would apply to cases in process. Because there is a difference of opinion about whether or not the simple use of the word "before" creates significant problems, the wording could be changed so that there is a specific reference to cases in process at the time the bill becomes effective, she said. CHAIR COGHILL asked if the definition of "drug overdose" on page 2, lines 10-13, was unique to this section of the code. MS. HOPSON deferred the question. 2:35:50 PM ANNE CARPENETI, Assistant Attorney General, Criminal Division, Legal Services Section, Department of Law (DOL), Juneau, Alaska, stated that DOL strongly recommends removing the term "before" in the applicability section on page 2, line 16. CHAIR COGHILL said his intention was that the bill would apply prospectively. He then asked if "good faith" was a known standard. MS. CARPENETI answered yes. She continued to explain that when the bill was heard in the other body, DOL suggested an affirmative defense but the policy decision was not to do that, so the burden is on the prosecution to disprove good faith by proof beyond a reasonable doubt. If someone calls 911 just as law enforcement knocks on the door to conduct a search, DOL presumably would have to disprove that the call was in good faith. CHAIR COGHILL asked how that would differ if it were an affirmative defense. MS. CARPENETI explained that in an affirmative defense the burden of proof on the prosecution is by a preponderance of the evidence. She offered her belief that the rationale for the decision to stay with reasonable doubt was the desire to save lives now and argue the legal questions later. CHAIR COGHILL asked if the bill was narrowly crafted to apply only to possession. MS. CARPENETI agreed and noted it doesn't say personal possession. It would be a different question if the quantity was sufficient to indicate intent to distribute. SENATOR WIELECHOWSKI asked if only the caller gets relief from prosecution or all people who might have stayed on scene. MS. CARPENETI replied it only says the person who places the call for help, but law enforcement has said that they rarely arrest anybody when they're called for an overdose because they're focused on helping the person who has overdosed. SENATOR WIELECHOWSKI asked if she knew how many people this potentially could have saved in the past five years. MS. CARPENETI said she didn't have that information. CHAIR COGHILL asked Mr. Hahn if he could answer. 2:39:29 PM RANDY HAHN, Alaska State Troopers, Department of Public Safety (DPS), Wasilla, Alaska, said he didn't have an answer and wasn't sure if that specific data was even in the system. CHAIR COGHILL asked if law enforcement responding to an overdose would probably tend to the person who had overdosed rather than charging everyone present. TROOPER HAHN replied the first priority is to save the victim, so it would be highly unlikely to have any arrests at that particular time. If it looked like there was a potential distribution center, it would be addressed in a later investigation. SENATOR WIELECHOWSKI asked Ms. Carpeneti if it was a concern that the bill doesn't exclude seeking help during the course of the execution of an arrest or search warrant. MS. CARPENETI said she wasn't concerned now, but DOL may consider that if they find they're unable to disprove good faith. SENATOR WIELECHOWSKI asked if DOL feels strongly that this should be an affirmative defense. MS. CARPENETI said Department of Law previously suggested it be structured as an affirmative defense, but the sponsor didn't support it. CHAIR COGHILL stated his intention to adopt a CS to remove the retroactivity. SENATOR WIELECHOWSKI asked if it creates any sort of constitutional issues that there would be people sitting in jail or on probation or parole who were convicted under circumstances that no longer apply. MS. CARPENETI said it creates serious practical problems to include "before" in the applicability, because it doesn't say how far back. SENATOR WIELECHOWSKI asked, assuming the term "before" is removed, how it would affect a case that was in process. MS. CARPENETI said Department of Law always takes the position that it is very important for the legislature to clarify when to start applying a new law, but it's preferably on or after the effective date. She noted that was no effective date but there was no reason it couldn't be effective immediately. SENATOR WIELECHOWSKI said he doesn't like the idea of punishing people for something that is no longer a crime. That's what happens without the word "before" in the applicability section. MS. CARPENETI posited that judges, prosecutors, and defense lawyers would take that into account when arguing sentencing. SENATOR WIELECHOWSKI expressed concern about the potential consequences for a second or third offense and again about having people sit in jail for an offense that is no longer a crime. MS. CARPENETI offered her belief that there is enough discretion in the system to address unfairness under those circumstances. 2:47:49 PM SENATOR WIELECHOWSKI questioned how judges would approach presumptive sentencing when one of the offenses is no longer a crime. MS. CARPENETI said she assumes the judge would take into account the circumstances of the prior offenses and the law at the time. SENATOR WIELECHOWSKI asked if judges would have the discretion to do that under the current sentencing laws. MS. CARPENETI replied judges have discretion within the sentencing range. SENATOR WIELECHOWSKI observed that it's rare that a crime is removed from the books. MS. CARPENETI clarified that it's still a crime to possess the controlled substances. SENATOR WIELECHOWSKI agreed, although there could be people who have been punished in the past and wouldn't be punished for the same offense now. MS. CARPENETI said the problem is that it's very difficult to establish those facts retrospectively. Somebody could say they were convicted of possession and that they did dial 911, but nobody would know if they acted in good faith and stayed with the person. CHAIR COGHILL asked for a motion to adopt the CS. 2:49:50 PM SENATOR MCGUIRE moved to adopt the work draft Senate CS for CS for HB 369, labeled 28-LS1515\P, as the working document. CHAIR COGHILL found no objection and Version P was adopted. He asked if the definition of "drug overdose" on page 2, lines 10- 13 was new. MS. CARPENETI replied it's not a definition that's part of Title 11. She deferred further explanation to Ms. Strasbaugh. MS. STRASBAUGH said the term is used in just one other place in statute as a mitigating factor for felony sentencing. CHAIR COGHILL asked if a life threatening emergency might become more difficult to prove under this drug overdose law. MS. STRASBAUGH replied it would probably depend on whether the responders thought there was a danger when they arrived. CHAIR COGHILL opined that it hinges on "reasonably believed." MS. STRASBAUGH said unconsciousness and difficulty breathing are hallmarks that could alarm an individual enough to call the EMTs and the EMTs could realistically indicate if called upon to do so. SENATOR WIELECHOWSKI asked if a person who was arrested and prosecuted under AS 11.71.030(a)(3) might raise it as a defense that he was having a drug overdose. MS. CARPENETI said in order to raise a defense the defendant has to introduce some reliable evidence. The burden is then on the prosecution to disprove that beyond a reasonable doubt. SENATOR WIELECHOWSKI said he initially questioned whether this would create an extremely high burden for prosecutors, but it sounds as though it won't be a large problem. MS. CARPENETI said she hopes not but the Department of Law reserves the right to come back and ask for a change if it proves to be an onerous burden. SENATOR WIELECHOWSKI said his one concern relates to the search warrant, but he didn't want to hold the bill if DOL doesn't see it a concern. MS. CARPENETI said she didn't want to be dismissive of the potential problem because people will try to take advantage of this defense once it's available. CHAIR COGHILL questioned whether paragraph (2) on page 2, ought to explicitly mention good faith. SENATOR WIELECHOWSKI said that's where the problem lies. CHAIR COGHILL stated that he would hold HB 369 in committee for further consideration.