Legislature(2015 - 2016)BUTROVICH 205

01/26/2015 01:00 PM House JUDICIARY

Download Mp3. <- Right click and save file as

Audio Topic
01:02:54 PM Start
01:03:57 PM SB30
03:00:03 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Joint with Senate JUD
Heard & Held
        SB  30-MARIJUANA REG;CONT. SUBST;CRIMES;DEFENSES                                                                    
1:03:57 PM                                                                                                                    
CHAIR  MCGUIRE announced  the  consideration of  SB  30. "An  Act                                                               
relating  to   controlled  substances;  relating   to  marijuana;                                                               
relating  to  driving  motor  vehicles  when  there  is  an  open                                                               
marijuana container;  and providing for an  effective date." [The                                                               
hearing contains  discussion of the  companion bill, HB  79.] She                                                               
reviewed  the  agenda  and  asked   the  members  to  hold  their                                                               
questions about  whether the bill  should provide  an affirmative                                                               
defense, a  defense, or  make the conduct  legal until  after Amy                                                               
Saltzman  and  Jordan Shilling  had  an  opportunity to  give  an                                                               
overview of the bill.                                                                                                           
1:07:23 PM                                                                                                                    
AMY SALTZMAN,  Aide to the  Senate Judiciary Committee  and Staff                                                               
to Senator Lesil McGuire, introduced  SB 30 reading the following                                                               
sponsor statement excerpt into the record.                                                                                      
      Senate Bill 30 revises Alaska's criminal statutes to                                                                      
     ensure public safety of our communities following the                                                                      
         passage of the PSUM initiative to legalize and                                                                         
     regulate marijuana.                                                                                                        
     Senate Bill 30 provides clear  rules for the public and                                                                    
     peace officers:  It criminalizes giving marijuana  to a                                                                    
     person under 21, manufacturing  "butane hash" and minor                                                                    
     consumption.  The bill  also synchronizes  the multiple                                                                    
     definitions  of   marijuana  in  statute,   along  with                                                                    
     defining "marijuana concentrate."                                                                                          
1:08:43 PM                                                                                                                    
JORDAN  SHILLING,   Staff,  Senator  John  Coghill,   reviewed  a                                                               
sectional analysis of Sections 1-4 of SB 30.                                                                                    
Section 1:                                                                                                                    
Pages 1-3: Lines 5-20                                                                                                           
Amends the misconduct involving a controlled substance in the                                                                   
fourth degree statute to conform to the ballot initiative that                                                                  
legalizes substances weighing one ounce or less, under certain                                                                  
circumstances. Delivering more than 1 ounce of marijuana is a                                                                   
class C felony.                                                                                                                 
Section 2:                                                                                                                    
Pages 3-4: Lines 21-26                                                                                                          
Clarifies  weights to  conform  to  the initiative,  criminalizes                                                               
furnishing  marijuana to  a person  under  21 years  of age,  and                                                               
criminalizes  the manufacturing  of  marijuana  using a  solvent-                                                               
based   extraction  method,   other  than   glycerin.  Misconduct                                                               
involving a controlled  substance in the fifth degree  is a class                                                               
A misdemeanor.                                                                                                                  
Section 3:                                                                                                                    
Pages 4-5: Lines 27-9                                                                                                           
Amends misconduct involving a controlled substance in the sixth                                                                 
degree to prohibit a person under 18 years of age from consuming                                                                
or possessing an ounce or less of marijuana. This is a class B                                                                  
Section 4:                                                                                                                    
Pages 5-6: Lines 10-31 and 1-4                                                                                                  
Creates a new misconduct involving  a controlled substance in the                                                               
seventh  degree   by  establishing  a  violation   for  consuming                                                               
marijuana in a  public place. [The definition  for "public place"                                                               
is found  in AS 11.81.900(b)(53).]  Under paragraph (2), it  is a                                                               
violation for  a person  under 21  years of age  but at  least 18                                                               
years  of  age  to  consume  or possess  one  ounce  or  less  of                                                               
It  is a  class A  misdemeanor for  an agent  or employee  of the                                                               
licensee to,  with criminal negligence,  permit persons  under 21                                                               
years  of age  to  do  several actions  on  a licensed  marijuana                                                               
1:12:37 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG  asked  what  the  penalty  is  for  an                                                               
employee of  a licensee to  allow the criminal  conduct mentioned                                                               
on page 5, lines 22-23.                                                                                                         
MR.  SHILLING  surmised  it  would   fall  under  the  misconduct                                                               
involving a controlled substance in  the sixth degree statute. He                                                               
deferred further response to Legislative Legal.                                                                                 
REPRESENTATIVE  GRUENBERG requested  a  written  response to  the                                                               
CHAIR LEDOUX read  the language on page 6, lines  16-17 and asked                                                               
how  anyone  could conceive  that  someone  would manufacture  an                                                               
ounce or less.                                                                                                                  
MR. SHILLING deferred the question to the drafter.                                                                              
1:14:48 PM                                                                                                                    
HILARY MARTIN, Attorney,  Legislative Legal Services, Legislative                                                               
Affairs Agency, explained that the  initiative allows a person to                                                               
possess  up to  one  ounce  of marijuana.  Section  5 provides  a                                                               
defense when the  charge is the manufacture of up  to an ounce of                                                               
marijuana or up to six marijuana plants.                                                                                        
CHAIR  LEDOUX described  the defense  language  as confusing  and                                                               
questioned  how  it would  be  possible  to  have a  business  if                                                               
manufacturing is limited to one ounce.                                                                                          
MS.   MARTIN  responded   that  part   of  the   issue  is   that                                                               
"manufacture" includes growing marijuana.                                                                                       
CHAIR  MCGUIRE summarized  the defense  for  an individual  under                                                               
Section 5  then asked Ms. Martin  where the bill talks  about the                                                               
manufacture of more than one ounce.                                                                                             
MS. MARTIN directed  attention to page 7, line 20.  Anyone who is                                                               
licensed under  AS 17.38, and  is acting in compliance  with that                                                               
license,  has a  defense  under AS  11.71.040-11.71.060. That  is                                                               
misconduct in the fourth, fifth, and sixth degrees.                                                                             
CHAIR  MCGUIRE remarked  that one  of the  challenges will  be to                                                               
understand  where  the  individual  is protected  and  where  the                                                               
license holder will be protected.                                                                                               
MS.   MARTIN   referenced  Representative   Gruenberg's   earlier                                                               
question and advised  that it would be a class  A misdemeanor for                                                               
a violation under Sec. 11.71.067(a).                                                                                            
REPRESENTATIVE GRUENBERG asked if it's  the same standard for the                                                               
employee as  it is for the  owner of the establishment.  The mens                                                               
rea is "with criminal negligence,"  which is something in between                                                               
"recklessness" or "negligence."                                                                                                 
MS. MARTIN agreed that "criminal  negligence" is a lower standard                                                               
than "reckless."                                                                                                                
CHAIR  MCGUIRE asked  Ms. Martin  to  read the  mental state  for                                                               
criminal negligence.                                                                                                            
1:21:26 PM                                                                                                                    
MS.  MARTIN paraphrased  the  following  definition for  criminal                                                               
negligence under AS 11.81.900(a)(4):                                                                                            
     (4)  a  person  acts with  "criminal  negligence"  with                                                                    
     respect to a  result or to a  circumstance described by                                                                    
     a provision of law defining  an offense when the person                                                                    
     fails to perceive a  substantial and unjustifiable risk                                                                    
     that  the result  will occur  or that  the circumstance                                                                    
     exists; the  risk must be  of such a nature  and degree                                                                    
     that  the failure  to perceive  it constitutes  a gross                                                                    
     deviation from  the standard of care  that a reasonable                                                                    
     person would observe in the situation.                                                                                     
REPRESENTATIVE GRUENBERG  asked if  the same standard  applies to                                                               
both the  owner of  the establishment and  the employee,  even if                                                               
the owner isn't present.                                                                                                        
MS. MARTIN answered yes.                                                                                                        
REPRESENTATIVE   GRUENBERG  observed   that  the   same  criminal                                                               
negligence standard  is used  throughout Title  4 for  people who                                                               
serve alcohol to people who are under 21 years of age.                                                                          
MS. MARTIN reported that Title 4 was the model for SB 30.                                                                       
1:22:57 PM                                                                                                                    
SENATOR WIELECHOWSKI  highlighted that the bill  gives the police                                                               
the ability  to arrest people  for carrying  an ounce or  less of                                                               
marijuana. Once they're  arrested, they will have to  post a bond                                                               
and potentially  go through a  jury trial while they  assert that                                                               
it is  an affirmative defense  to possess marijuana.  He stressed                                                               
that this  is despite the fact  that the Supreme Court  of Alaska                                                               
ruled that  the people of  Alaska have a constitutional  right to                                                               
possess a  certain amount of  marijuana and the people  of Alaska                                                               
voted to allow possession of one ounce or less of marijuana.                                                                    
MS.  MARTIN  agreed  that the  characterization  was  technically                                                               
correct. She added  that the Supreme Court of  Alaska under Ravin                                                             
v. State  allowed the possession  of a small amount  of marijuana                                                             
for adults  in their  home, but there  is technically  nothing to                                                               
stop  a police  officer from  arresting a  person for  possessing                                                               
that amount.                                                                                                                    
She reiterated that the bill  establishes a defense to the charge                                                               
of misconduct involving  a controlled substance if  the person is                                                               
acting within the bounds set out by the initiative.                                                                             
CHAIR MCGUIRE asked Ms. Martin to  explain why she chose to draft                                                               
the bill as a defense.                                                                                                          
1:26:12 PM                                                                                                                    
MS. MARTIN  stated that  the initiative  made marijuana  legal in                                                               
some situations, but left it illegal  in most cases. She tried to                                                               
solve some  of the inconsistencies  by creating a defense  to the                                                               
prosecution  if  the  individual  is  acting in  a  way  that  is                                                               
consistent  with the  initiative. The  defense uses  the language                                                               
from the initiative about one ounce  or less, six plants, and the                                                               
property lawfully in possession.                                                                                                
She further explained that the  misconduct involving a controlled                                                               
substance statutes  currently contain some  affirmative defenses.                                                               
Medical marijuana, for example, is an affirmative defense.                                                                      
CHAIR  LEDOUX  voiced  concerns   and  questioned  why  the  bill                                                               
couldn't treat marijuana the same way as the alcohol laws.                                                                      
MS.  MARTIN  replied this  is  just  one  approach; it  could  be                                                               
1:29:46 PM                                                                                                                    
CHAIR   LEDOUX  opined   that  marijuana   could  be   controlled                                                               
differently than the way the bill suggests.                                                                                     
MS. MARTIN  restated that this  is an initial approach;  it could                                                               
be done differently.                                                                                                            
CHAIR MCGUIRE thanked Ms. Martin for her efforts.                                                                               
1:31:13 PM                                                                                                                    
SENATOR  COGHILL  asked  if  she   agrees  that  it  would  be  a                                                               
significantly different  approach to mirror the  alcohol statutes                                                               
and would probably require much of Title 4 to be rewritten.                                                                     
MS. MARTIN  replied a  number of  choices would  need to  be made                                                               
because  there are  differences  with alcohol.  "It's not  simply                                                               
going to be straight marrying what crimes exist in Title 4."                                                                    
SENATOR  COGHILL  expressed  support  for  the  current  approach                                                               
because the  federal government still  classifies marijuana  as a                                                               
controlled substance and illegal in many circumstances.                                                                         
MS.  MARTIN warned  that regardless  of state  law, marijuana  is                                                               
still a controlled substance under federal law.                                                                                 
1:33:46 PM                                                                                                                    
CHAIR MCGUIRE recognized that Representative Colver was present.                                                                
REPRESENTATIVE CLAMAN  referenced Section 13 and  asked the logic                                                               
behind basically  repealing everything the voters  favored in the                                                               
MS.  MARTIN  replied those  sections  are  incorporated into  the                                                               
defense. AS 17.38.020 is the personal use provision.                                                                            
SENATOR COGHILL suggested that Ms.  Martin clarify that repealing                                                               
doesn't  remove  the  statute;   rather  it  adds  accountability                                                               
measures for misdemeanor.                                                                                                       
MS. MARTIN agreed that the  repealed sections are either included                                                               
in  the defense  or in  the bill.  For example,  AS 17.38.040  is                                                               
public  consumption,   and  in   the  bill  it's   in  Sec.11.71,                                                               
misconduct in the  seventh degree. AS 17.38.020  and AS 17.38.030                                                               
have to do  with personal use and cultivation,  and that language                                                               
is incorporated into the defense.                                                                                               
REPRESENTATIVE CLAMAN  commented that  the discussion  is whether                                                               
to  support the  voters'  intent regarding  AS  17.38.020 and  AS                                                               
17.38.030  or  this  proposal that  repeals  those  sections  but                                                               
provides a defense during prosecution.                                                                                          
MS. MARTIN  replied that's one  way to describe the  defense, but                                                               
she couldn't speak to prosecutions.                                                                                             
1:36:43 PM                                                                                                                    
CHAIR MCGUIRE asked if she  had thought about how criminalization                                                               
interacts with  the Ravin Act.  That was a [1975]  Alaska Supreme                                                               
Court ruling  that said that  up to  four ounces of  marijuana is                                                               
allowed for  personal use  in the privacy  of your  home. Because                                                               
the initiative  says one  ounce and Ravin  says four  ounces, her                                                               
assumption  is that  this committee  will have  to consider  what                                                               
happens with two, three, and four ounces.                                                                                       
MS. MARTIN acknowledged that she didn't  have a good answer as to                                                               
how  the  initiative  and Ravin  work  together.  The  possession                                                               
limits  are  different  and  the  age  limitations  are  arguably                                                               
different, so it's an open question.                                                                                            
1:39:15 PM                                                                                                                    
CHAIR  MCGUIRE  said it's  more  complicated  than simply  making                                                               
marijuana legal. If it's not structured  as a defense, it will be                                                               
necessary  to make  certain things  illegal that  previously were                                                               
REPRESENTATIVE GRUENBERG  asked the  definition of  "defense" and                                                               
if   Alaska  law   differentiates  between   a  defense   and  an                                                               
affirmative defense.                                                                                                            
1:40:33 PM                                                                                                                    
MS.  MARTIN replied  both  are  defined in  AS  11.81.900. In  an                                                               
affirmative defense, the burden is  on the defendant to establish                                                               
the defense  by a  preponderance of the  evidence. In  a defense,                                                               
evidence is admitted  and the state has the  burden of disproving                                                               
the defense beyond a reasonable doubt.                                                                                          
REPRESENTATIVE GRUENBERG  pointed out that the  initiative intent                                                               
was that the  prosecution must provide proof of  the issue beyond                                                               
a  reasonable doubt.  He  asked for  the  legal underpinning  for                                                               
changing that to a defense.                                                                                                     
MS. MARTIN  agreed that the  initiative says it's not  an offense                                                               
under law. She added that  AS 11.81 defines "offense" as "conduct                                                               
for which a sentence of imprisonment or fine is authorized."                                                                    
REPRESENTATIVE GRUENBERG  said he understands the  definition but                                                               
the bill  uses it in  defining a  crime as opposed  to allocating                                                               
the burden  of proof. He asked  if she agrees that  they are used                                                               
in different ways.                                                                                                              
MS.  MARTIN replied  she did  not  know, but  she would  probably                                                               
argue that it means offense in the sense of a crime.                                                                            
1:44:11 PM                                                                                                                    
SENATOR COSTELLO stressed the importance  of following the intent                                                               
of the  initiative. She asked  Ms. Martin if she  consulted other                                                               
states when  she chose to draft  the bill as a  defense. She then                                                               
asked about the possibility of considering a different approach.                                                                
MS. MARTIN  replied she  did not consult  other states;  she used                                                               
the  medical  marijuana  model,   which  created  an  affirmative                                                               
defense. She restated  that it is the  committee's prerogative to                                                               
request another draft.                                                                                                          
REPRESENTATIVE MILLETT expressed  reservations about modeling the                                                               
legislation on  the medical marijuana statutes;  they are largely                                                               
untested  because the  user  group is  so  small. She  questioned                                                               
whether this could lead to a sizeable increase in litigation.                                                                   
MS. MARTIN  agreed the number  of people affected by  the medical                                                               
marijuana statutes is  likely smaller. She added  that this draft                                                               
is the current  approach to try to resolve  the conflicts between                                                               
the  initiative   and  the  misconduct  involving   a  controlled                                                               
substance  statutes.   She  declined   to  predict   what  future                                                               
litigation might come up.                                                                                                       
CHAIR MCGUIRE told Ms. Martin  that she would have an opportunity                                                               
to draft the bill so it is not a defense.                                                                                       
1:47:45 PM                                                                                                                    
SENATOR  MICCICHE stated,  "I  hasn't spoken  to  anyone on  this                                                               
committee that  is not  in full  agreement that  we are  going to                                                               
meet the intent of the initiative in its entirety."                                                                             
CHAIR MCGUIRE agreed.                                                                                                           
CHAIR LEDOUX asked  if there is any data on  the number of people                                                               
that are using medical marijuana.                                                                                               
MS. MARTIN replied  the number of people who  have registered for                                                               
medical marijuana  is a known number  but she does not  have that                                                               
CHAIR  MCGUIRE recalled  that the  number  of registered  medical                                                               
marijuana  users is  about  6,000, but  the  question is  whether                                                               
people  are registering.  She asked  Mr. Schulte  to address  the                                                               
questions about medical marijuana.                                                                                              
1:49:53 PM                                                                                                                    
BRUCE  SCHULTE,  Spokesman,  Coalition for  Responsible  Cannabis                                                               
Legislation,  offered  his  understanding that  there  are  about                                                               
2,000 medical marijuana  card holders in the state  and 2-3 times                                                               
that number who have not registered.                                                                                            
CHAIR MCGUIRE asked  what the deterrents might  be to registering                                                               
to use medical marijuana.                                                                                                       
MR.  SCHULTE replied  one  reason is  the  fear that  registering                                                               
could  bring  unwanted  scrutiny from  law  enforcement.  Another                                                               
expressed concern is that holding  a medical marijuana card could                                                               
preclude a person from owning guns.                                                                                             
REPRESENTATIVE  CLAMAN  asked  Mr.  Schulte  to  comment  on  the                                                               
anecdotal reports that  few people have registered  for a medical                                                               
marijuana card because  there is nobody licensed in  the state to                                                               
sell medical marijuana.                                                                                                         
MR. SCHULTE confirmed that he has heard that argument.                                                                          
1:53:52 PM                                                                                                                    
SENATOR   WIELECHOWSKI   asked   if  Section   1   violates   the                                                               
constitution,  because the  Supreme  Court of  Alaska ruled  that                                                               
people have a right to possess up to four ounces of marijuana.                                                                  
MS.  MARTIN  replied  Section  1  does  not  deal  with  straight                                                               
possession, but she agrees that Ravin is an outstanding issue.                                                                  
REPRESENTATIVE  GRUENBERG asked  for supplemental  information on                                                               
the  medical marijuana  program, including  the inability  to buy                                                               
medical  marijuana  and  the  idea  of  adding  to  the  list  of                                                               
qualifying  diseases in  the current  regulations. He  noted that                                                               
Arizona  expanded its  medical marijuana  regulations to  include                                                               
post-traumatic stress disorder (PTSD).                                                                                          
CHAIR  MCGUIRE  offered  to  share   an  article  discussing  the                                                               
American Pediatrics Council  coming forward about decriminalizing                                                               
marijuana at  the federal level.  The discussion centered  on how                                                               
certain forms of  cannabis can be life altering  for children who                                                               
have epilepsy and autism.                                                                                                       
She opined  that the legislature  has failed the public  in fully                                                               
implementing medical  marijuana, because the  affirmative defense                                                               
was not the intent.                                                                                                             
SENATOR COGHILL  commented that  drafting the  bill as  a defense                                                               
drives a  narrow line  that works  with the  controlled substance                                                               
laws, but  it will  still be  necessary to  work with  those laws                                                               
outside the initiative to ensure consistent application.                                                                        
MS. MARTIN agreed.                                                                                                              
CHAIR MCGUIRE  agreed that  creating a  defense was  the simplest                                                               
approach.  The  other  is  more specific  and  will  require  the                                                               
committee  to think  about  things such  as  quantities over  one                                                               
ounce and  how that comports with  Ravin and use by  people under                                                               
age 21 for medicinal purposes.                                                                                                  
MS. MARTIN agreed.                                                                                                              
REPRESENTATIVE  MILLETT opined  that  the  initiative was  flawed                                                               
because it did not take the Ravin decision into consideration.                                                                  
MS. MARTIN agreed  there is an unresolved  conflict. Ravin allows                                                               
adults to  possess up  to four ounces  of marijuana  for personal                                                               
use  and  the initiative  says  people  21  years and  older  may                                                               
possess up to one ounce.                                                                                                        
2:01:40 PM                                                                                                                    
SENATOR WIELECHOWSKI reviewed Section  3 that makes possession of                                                               
marijuana  by someone  under age  18  a class  B misdemeanor  and                                                               
Section 4  that makes  possession of  marijuana by  someone 18-20                                                               
years of age a class A  misdemeanor. He asked what the comparable                                                               
penalties are for alcohol for someone in those age groups.                                                                      
MR.  SHILLING  offered  his  understanding  that  the  first  two                                                               
instances  of  a  minor consuming  alcohol  are  violations  with                                                               
community work service and the third is a class B misdemeanor.                                                                  
CHAIR  LEDOUX  offered her  belief  that  the initiative  is  not                                                               
inconsistent with Ravin, but it does  not go as far as Ravin with                                                               
respect to possession amounts.                                                                                                  
MS. MARTIN responded  that Ravin says an adult can  possess up to                                                               
four ounces  for personal  use in their  home and  the initiative                                                               
says, notwithstanding  any other  law, a person  over age  21 may                                                               
possess one  ounce of marijuana.  The question of how  to address                                                               
Ravin is still open under the current structure, she said.                                                                      
CHAIR MCGUIRE  suggested that Tracey  Wollenberg with  the Public                                                               
Defender  Agency and  Rick Svobodny  with the  Department of  Law                                                               
offer  a  perspective  about  how Ravin  conflicts  or  does  not                                                               
conflict with the current draft of the bill.                                                                                    
SENATOR MICCICHE commented that the  reality under Ravin v. State                                                             
is that  the "weed  fairy" had  to magically  deliver up  to four                                                               
ounces  of  marijuana to  your  home.  He  suggested that  it  is                                                               
possible  to meet  the intent  of  the initiative,  which is  one                                                               
ounce, for transportation  and then storing up to  four ounces in                                                               
the home. He  maintained that this would meet the  intent of both                                                               
without conflict.                                                                                                               
CHAIR MCGUIRE invited  Ms. Wollenberg to give her  opinion on the                                                               
current version of the bill and the conflicts with Ravin.                                                                       
2:06:13 PM                                                                                                                    
TRACY  WOLLENBERG, Deputy  Public  Defender, Appellate  Division,                                                               
Public Defender Agency (PDA), stated  that the agency shares some                                                               
of  the  concerns  voiced by  committee  members.  Retaining  the                                                               
criminal  offenses  in  AS  11.71   and  creating  a  defense  is                                                               
inconsistent  with  the  language  and express  purposes  of  the                                                               
initiative and undermines voter intent.                                                                                         
She said  Sec. 17.38.010 states  that the use of  marijuana shall                                                               
be  legal for  persons  age 21  and  older and  that  one of  the                                                               
purposes  is to  allow law  enforcement to  focus on  violent and                                                               
property crimes. Sec.  17.38.020 sets out what acts  shall not be                                                               
a criminal or civil offense and  that those lawful acts shall not                                                               
be  a basis  for seizure.  She stated  that creating  the defense                                                               
contravenes  both of  the provisions  in Sec.  17.38.020 and  the                                                               
intent set out in Sec.  17.38.010 that certain types of marijuana                                                               
related conduct be legal.                                                                                                       
MS.  WOLLENBERG  addressed  Representative  Gruenberg's  question                                                               
about  the  difference  between  an  affirmative  defense  and  a                                                               
defense.  She explained  that an  affirmative defense  places the                                                               
burden  of  production and  persuasion  on  the defendant.  In  a                                                               
defense the defendant  has the burden of production  but does not                                                               
have the burden of persuasion.                                                                                                  
The current draft  places the burden on the  defendant to produce                                                               
evidence in  order to put  the defense  in play. A  defendant who                                                               
does not  put on any evidence  will be convicted even  though his                                                               
or her conduct was completely  legal. Another potential result is                                                               
that  different  judges  could  make  different  decisions  about                                                               
whether a defendant has presented  sufficient evidence to put the                                                               
defense in play.                                                                                                                
MS. WOLLENBERG  stated that the  another ramification  of setting                                                               
this up as a defense is that  it would give police the ability to                                                               
arrest for  otherwise lawful conduct. This  undermines the intent                                                               
to allow law enforcement to  focus on violent and property crimes                                                               
as set  out in  Sec. 17.38.010. It  could result  in inconsistent                                                               
enforcement   and  officers   might   use   the  possession,   or                                                               
manufacture of  marijuana as  justification for  further searches                                                               
when  there is  no  basis  for doing  so.  This  could result  in                                                               
discriminatory  enforcement.  This  undermines the  provision  in                                                               
Sec. 17.38.020 that the acts that  are intended to be legal shall                                                               
not be  the basis for seizure.  She noted that the  phrase "shall                                                               
not be the basis for seizure" is not replicated in SB 30.                                                                       
MS. WOLLENBERG  suggested that a  potential easy fix is  to leave                                                               
AS 17.38  intact and add  it as an  exception in Section  1. This                                                               
preserves voter  intent and makes  it clear that  law enforcement                                                               
needs to  look at AS 17.38  to determine whether or  not somebody                                                               
has committed a criminal offense.  She said this does not account                                                               
for Ravin,  but she does  not believe that Ravin  is inconsistent                                                               
with the initiative.                                                                                                            
MS. WOLLENBERG summarized  that the major point  is that creating                                                               
a  defense is  not  implementing  voter intent  and  it places  a                                                               
burden on the defendant once arrested  to put evidence in play to                                                               
prove that their conduct was  legal. She stressed that this would                                                               
vastly increase  the use of  resources by the  court, prosecution                                                               
and public defender.                                                                                                            
2:17:37 PM                                                                                                                    
SENATOR MICCICHE highlighted that  another challenge with framing                                                               
the legislation as a defense is  that once a charging document is                                                               
made, the person's name will  be on CourtView forever. "That will                                                               
affect them  in the  future for employment  and other  issues, so                                                               
it's a challenge going this way."                                                                                               
CHAIR MCGUIRE agreed.                                                                                                           
REPRESENTATIVE GRUENBERG  asked Ms.  Wollenberg if she  would put                                                               
her testimony in  writing, including a citation  to the authority                                                               
as to  whether the term  "defense" complies with the  language of                                                               
the initiative.                                                                                                                 
MS.  WOLLENBERG  replied  she  would do  so  if  Quinlan  Steiner                                                               
REPRESENTATIVE GRUENBERG  asked if  the fact that  the initiative                                                               
refers  to an  offense and  the bill  changes that  to a  defense                                                               
might render the legislation unconstitutional.                                                                                  
MS.  WOLLENBERG  said  she  believes   it  would  be  subject  to                                                               
constitutional  challenge under  art  XI, sec.  6  of The  Alaska                                                               
REPRESENTATIVE GRUENBERG  requested that she include  that in the                                                               
2:21:57 PM                                                                                                                    
SENATOR WIELECHOWSKI  asked if Sections  3 and 4 are  good policy                                                               
as opposed to the way alcohol  offenses are treated for a similar                                                               
age group. They  make possession of marijuana a class  A or class                                                               
B  misdemeanor if  the person  is under  21 years  of age  but at                                                               
least 18 years of age.                                                                                                          
MS. WOLLENBERG  said she'd need  to consult the  alcohol statutes                                                               
before giving  an answer, but  she believes that  it's worthwhile                                                               
to ensure  that the  legislature is consistence  in terms  of the                                                               
level of offense it ascribes to people under 21 years of age.                                                                   
She  added  that Sections  3  and  4 appear  somewhat  backwards.                                                               
Essentially, it is  a violation to use or display  marijuana in a                                                               
public place,  but it's a misdemeanor  to use or display  it in a                                                               
nonpublic place.  She questioned whether  that was the  intent or                                                               
an oversight.                                                                                                                   
CHAIR MCGUIRE requested  her opinion on that in  the broader memo                                                               
and that Mr. Steiner coauthor the memo.                                                                                         
CHAIR LEDOUX asked if the  current statutes are inconsistent with                                                               
MS.  WOLLENBERG   replied  the  current  statutes   prohibit  the                                                               
possession of marijuana, whereas  Ravin protects possession of up                                                               
to four ounces of marijuana in the home.                                                                                        
CHAIR MCGUIRE suggested she reference  that point in the memo and                                                               
her opinion  on the three  definitions of marijuana  currently in                                                               
2:27:02 PM                                                                                                                    
SENATOR MICCICHE suggested it would  be helpful for the public if                                                               
the  committee  would,  at  some  point,  discuss  the  level  of                                                               
offenses and related penalties.                                                                                                 
CHAIR MCGUIRE  agreed. She recognized  the Department of  Law and                                                               
asked  all   testifiers  to  submit  written   comments  for  the                                                               
committees to consider.                                                                                                         
2:29:22 PM                                                                                                                    
RICHARD  SVOBODNY, Deputy  Attorney  General, Criminal  Division,                                                               
Department  of Law,  introduced  himself and  Kaci Schroeder.  He                                                               
relayed that Ms.  Schroeder would be the  legislative liaison and                                                               
the voice  for DOL on  this topic, but he  had a few  thoughts to                                                               
offer at the outset.                                                                                                            
He highlighted that this is  a complicated drafting issue because                                                               
the initiative  does not use  Angelo Saxon law which  starts with                                                               
the  presumption  that everything  is  legal  unless it  is  made                                                               
illegal by legislation. Rather, it  uses the Napoleonic Code that                                                               
assumes that  everything is illegal  unless the  government makes                                                               
it legal.  Another difficulty is  that the initiative  deals with                                                               
criminal laws  while the bill  generally tries to deal  with both                                                               
criminal  laws  and  establishing regulations  for  an  industry,                                                               
presupposing some things some things that  may or may not be done                                                               
with regulation.                                                                                                                
MR. SVOBODNY  reminded the members that  medical marijuana passed                                                               
as an  initiative in about 1998  and the structure in  statute is                                                               
what the legislature created after that initiative.                                                                             
REPRESENTATIVE  CLAMAN commented  that  it is  perhaps a  further                                                               
complication that  the voter initiative  basically tries  to roll                                                               
back what the  legislature did when it  made marijuana possession                                                               
MR. SVOBODNY  responded that  Ravin was decided  in 1975  and the                                                               
drug statutes were  passed in 1982; throughout  this time certain                                                               
provisions have dealt with  marijuana. Providing more background,                                                               
he  reminded the  members that  the Ravin  decision said  that an                                                               
undefined  amount  of  marijuana  was allowed  in  the  home  for                                                               
personal  use. The  legislature  shortly  thereafter picked  four                                                               
ounces as the  amount that was indicative of  non-personal use in                                                               
the home.  The Alaska court of  appeals decision in Noy  v. State                                                             
said  it was  reasonable for  the  legislature to  say that  four                                                               
ounces was not indicative of personal use in your home.                                                                         
CHAIR MCGUIRE asked how the  effort to recriminalize marijuana in                                                               
2006 during the Murkowski administration factors in.                                                                            
MR. SVOBODNY explained that Ravin  said the decision was based on                                                               
the  likelihood of  abuse when  the concentration  of the  active                                                               
ingredient, THC,  in marijuana  was about  18 percent.  The court                                                               
said this  could be revisited.  In 2006 the  legislature received                                                               
information that  marijuana had THC concentrations  of 27 percent                                                               
and decided  it should  be illegal.  The ACLU  sued the  State of                                                               
Alaska saying that the 2006  legislative changes should be stayed                                                               
and  those  cases  should  not be  prosecuted.  The  trial  court                                                               
agreed.  The case  went  to  the Alaska  Supreme  Court and  they                                                               
dodged the issue saying there was no case in controversy.                                                                       
REPRESENTATIVE  CLAMAN recalled  that in  the early  1990s Alaska                                                               
voters  introduced an  initiative  and voted  to criminalize  the                                                               
possession  of  marijuana  in  any location.  It  left  open  the                                                               
question of  Ravin, but did away  with the up to  four ounce home                                                               
possession in statute.                                                                                                          
2:41:50 PM                                                                                                                    
CHAIR LEDOUX asked if there  have been any charges for possession                                                               
of  small amounts  of marijuana  since the  Alaska Supreme  Court                                                               
dodged the issue and if not, why not.                                                                                           
MR.  SVOBODNY  replied  the  idea  that the  police  go  out  and                                                               
investigate  cases  involving  small   amounts  of  marijuana  is                                                               
incorrect.  But they  will charge  someone if  they find  a small                                                               
amount of marijuana  in the course of  another investigation such                                                               
as  minor consuming  and traffic  accidents. Just  as the  police                                                               
aren't going  out and  looking for  those cases,  the prosecution                                                               
has no written  policy on dealing with marijuana  cases that come                                                               
forward. It's  a poor use  of state resources to  prosecute those                                                               
cases, he said.                                                                                                                 
REPRESENTATIVE KELLER  asked if there  has been a case  where the                                                               
legislature  tries  to   define  a  law  before   a  license  was                                                               
MR. SVOBODNY said he knows of none, but that is a concern                                                                       
2:45:40 PM                                                                                                                    
KACI  SCHROEDER, Assistant  Attorney General,  Criminal Division,                                                               
Department of  Law, began her  comments by reviewing  the defense                                                               
section of SB 30. She said  that as currently written the defense                                                               
would apply  to the misconduct  involving a  controlled substance                                                               
in the fourth degree statute. Under  that statute, it is a felony                                                               
to  possess any  amount of  marijuana on  school grounds,  near a                                                               
youth center,  or on  a school bus.  She questioned  whether that                                                               
was  the  intent.  She  further  noted  the  disparate  treatment                                                               
between persons  under 21 years of  age and those older  than 21.                                                               
The  younger group  would be  charged with  a felony  because the                                                               
defense doesn't  apply to people  under age 21, but  people older                                                               
than 21 would be fine.                                                                                                          
She said  the defense also  applies to manufacturing  charges for                                                               
individuals   and  marijuana   establishments   and  both   could                                                               
potentially be  charged with  manufacturing. Manufacturing  a VIA                                                               
controlled  substance   through  the   use  of   a  solvent-based                                                               
extraction  is  specifically  prohibited  and  is  covered  by  a                                                               
defense for  both individuals  for marijuana  establishments. She                                                               
asked if that was the intent.                                                                                                   
MS.  SCHROEDER reviewed  the repeal  section  and cautioned  that                                                               
repealing  AS 17.38.070  may have  both  regulatory and  criminal                                                               
consequences. She also questioned  whether hash is marijuana. The                                                               
bill  reduces  it to  a  schedule  VIA controlled  substance  and                                                               
distinguishes it from marijuana,  but the definition of marijuana                                                               
potentially could include  it and it could also be  included as a                                                               
concentrate. She described the reading  as circular. "You have to                                                               
read  the definition  then you  have  to read  the definition  of                                                               
concentrates and you have to look at schedule VIA."                                                                             
She  also asked  for clarification  of the  intent of  Section 11                                                               
because the current drafting would  be difficult to prosecute. It                                                               
defines an open  marijuana container but then it  says "and there                                                               
is  evidence  that  marijuana  has been  consumed  in  the  motor                                                               
CHAIR MCGUIRE asked Ms. Schroder to put her comments in writing.                                                                
REPRESENTATIVE  GRUENBERG suggested  Ms.  Schroeder also  contact                                                               
committee members  individually after  she submitted  her written                                                               
SENATOR  MICCICHE   observed  that   motorhomes  fall   into  the                                                               
categories  of both  a  home and  a motor  vehicle  and he  would                                                               
suggest that members give some  thought to whether marijuana will                                                               
be treated like alcohol in that context.                                                                                        
REPRESENTATIVE CLAMAN said Ms. Schroeder  raised a question about                                                               
hash and  hash oil and he  didn't see any reference  to either in                                                               
the  initiative. He  asked  if  she sees  that  as a  significant                                                               
MS. SCHROEDER confirmed  there is no specific mention  of hash in                                                               
the initiative  and the definition  for marijuana is the  same in                                                               
both the initiative and the  bill. Under current statute, hash is                                                               
specifically excluded from the definition  of marijuana, and it's                                                               
a schedule  IIIA drug. The  bill reduces  hash to a  schedule VIA                                                               
drug,  the same  as marijuana,  and identifies  it as  a separate                                                               
substance. However,  it could  be argued that  it is  a marijuana                                                               
concentrate, which is found in the definition of marijuana.                                                                     
REPRESENTATIVE CLAMAN asked for examples of schedule IIIA drugs.                                                                
MS.  SCHROEDER replied  synthetic  marijuana would  fall in  that                                                               
CHAIR MCGUIRE  offered to  share the  information her  office has                                                               
gathered  about  the  pertinent  things   in  Title  11  and  the                                                               
penalties   associated  with   the  different   misdemeanors  and                                                               
2:56:35 PM                                                                                                                    
SENATOR  COGHILL  commented  on the  difficulty  associated  with                                                               
describing   different  substances.   "When  I   looked  at   the                                                               
derivatives  and the  manufacture of  these compounds,  it really                                                               
doesn't tell us what those are."                                                                                                
CHAIR   MCGUIRE  agreed   and   added  that   "butane  hash"   is                                                               
specifically  set   aside  because  it  a   dangerous  method  of                                                               
2:58:44 PM                                                                                                                    
CHAIR LEDOUX questioned  making the use of  synthetic marijuana a                                                               
prosecutable offense if "real" marijuana is legal.                                                                              
CHAIR  MCGUIRE  said  she  looks forward  to  hearing  about  the                                                               
chemicals in the manufacturing process at the next hearing.                                                                     
She thanked the participants.                                                                                                   

Document Name Date/Time Subjects