Legislature(2015 - 2016)CAPITOL 120
04/07/2015 01:30 PM House JUDICIARY
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SB 30-MARIJUANA REG;CONT. SUBST;CRIMES;DEFENSES 2:13:50 PM CHAIR LEDOUX announced that the final order of business would be Senate CS FOR SENATE BILL NO. 30(FIN), "An Act relating to controlled substances; relating to marijuana; relating to crimes and offenses related to marijuana and the use of marijuana; relating to open marijuana containers; relating to established villages and local options; relating to delinquent minors; making conforming amendments; and providing for an effective date." CHAIR LEDOUX stated that public testimony remained open from the last meeting. 2:15:01 PM MEGAN WEBB, Assistant Public Defender, Appellate Unit, Public Defender Agency, Department of Administration, [said she was available for questions.] REPRESENTATIVE GRUENBERG asked whether the Public Defender Agency has any problems or comments on the bill. MS. WEBB responded that the agency itself does not take a position on whether the committee should proceed with Version Q or Version T, as it is a policy decision for the committee. She said she echoes statements from Cynthia Franklin during the 4/6/15 committee meeting in terms of the importance of clarity for both the public and law enforcement in focusing all of the marijuana provisions in one area to reflect the manner Title 4 has treated alcohol. She suggested that the primary focus is ensuring that not only what is passed is consistent with the initiative, but also provides the most clarity. 2:16:26 PM REPRESENTATIVE GRUENBERG surmised that it should be consistent with the initiative and also consistent with the alcohol provisions. MS. WEBB replied "Yes," in terms of pulling marijuana out of the controlled substance and bringing it into its own regulatory scheme, such as that proposed by Ms. Franklin and discussed in previous testimony. REPRESENTATIVE GRUENBERG gathered that she supports marijuana not being in AS 11.17, which is the Senate Judiciary Standing Committee theory rather than the Senate Finance Committee theory. MS. WEBB reiterated that it is a policy consideration for the committee as to whether it wants to keep marijuana as a controlled substance or not. She opined that for clarity sake the scheme suggested by the Senate Judiciary Standing Committee certainly would mimic the regulatory scheme created in Title 4, but she is aware there were policy considerations in Senate Finance Committee as to why they wanted to keep it in the controlled substance under Title 11. REPRESENTATIVE GRUENBERG questioned whether there were any provisions of either version that she liked, did not like, or recommends the committee avoid. 2:18:37 PM MS. WEBB referred the committee to Version Q, page 19, which addresses proposed bail conditions if someone is charged with misconduct involving marijuana. CHAIR LEDOUX questioned whether she was talking about the CS which would basically be the Senate Judiciary Standing Committee version. MS. WEBB answered in the affirmative. 2:19:21 PM MS. WEBB pointed to [Version Q, Sec. 27, AS 12.30.016(g)(3)]], page 19, lines 14-15 and lines 27-28, which read: (g) In a prosecution charging a violation of AS 18.38.200 or 17.38.210, a judicial officer may order the person to ... (3) provide a sample for a urinalysis or blood test when requested by a law enforcement officer; 2:19:54 PM MS. WEBB explained that both the U.S. Supreme Court and the Alaska Appellate Courts have determined that an individual has a right to privacy with respect to blood tests and urinalysis. She noted that absent exigent circumstances would normally require a law enforcement officer to obtain a search warrant before they could require an individual to provide a blood or urine test. She explained that this provision would allow an officer, without a search warrant or probable cause, to simply ask someone who was released on bail to provide such a sample. She expressed concern that it would violate the person's constitutional protections under both the federal and state constitutions. CHAIR LEDOUX questioned whether currently a judge can require, as a condition of bail, that a person provide the urinalysis. MS. WEBB advised that it is not happening now and that this provision was added for bail conditions for marijuana. She noted it is a condition that appears in probation under the statutory provision for probation terms, but probation having occurred after conviction and during sentencing allows for a different constitutional analysis. Here, she explained, because it is only a bail condition, at that point the person is presumed not guilty of the charge and, therefore, has a fuller constitutional protection in place. She noted that the provision does not currently exist in the general bail provisions and thus is not something that could currently happen. 2:22:29 PM REPRESENTATIVE GRUENBERG requested a written report supporting her position that this may be unconstitutional which provides her suggested changes, together with points and authorities, but not a legal research paper. MS. WEBB said she would pass that request on to Quinlan Steiner, Director, Public Defender Agency, and with his approval will forward a report. 2:23:42 PM REPRESENTATIVE GRUENBERG asked if there is another area she would like to point out. MS. WEBB responded that Tracey Wollenberg, Deputy Public Defender of the Appellate Division, who in in the past has pointed out that with respect to the misconduct involving marijuana in the third degree that the committee might consider other exceptions on Version Q, page 32 ... 2:24:35 PM REPRESENTATIVE CLAMAN interjected that he had a follow-up question and asked the committee to turn to [Sec. 27], AS 12.30.016(g), page [19, lines 21-26], which read: (2) submit to a search without a warrant of the person, the person's personal property, the person's residence, or any vehicle or other property over which the person has control, for the presence of marijuana, marijuana products, or marijuana accessories by a peace officer who has reasonable suspicion that the person is violating the terms of the person's release by possessing marijuana, marijuana products, or marijuana accessories; REPRESENTATIVE CLAMAN questioned that if the committee is trying to treat alcohol and marijuana the same, why would marijuana be treated differently for bail purposes than the state is currently treating alcohol. MS. WEBB answered that given the constitutional protection, particularly with blood tests, the U.S. Supreme Court and the Alaska Supreme Court has recognized what an invasion that is and that there is a potential constitutional claim that could be made with respect to the provision as it appears currently under AS 12.30.016(b)(4). In that regard, she explained, the same constitutional issue that exists under the new proposal would, under the prior ... 2:27:15 PM CHAIR LEDOUX asked how long AS 12.30.016(b) has been in existence, and how many constitutional challenges have there been since it was enacted. MS. WEBB responded that she does not know how long AS 12.20.016(b) has been in existence, but does know the number of appeals that arise with respect to bail conditions are fairly rare. She explained the reason being, in part, due to the way appeals come up as often times it does not make it to the appellate review level due to the nature of the proceedings. 2:27:51 PM MS. WEBB referred to Version Q, Sec. 52, AS 17.38.220(b)], page 32, lines 27-31, which read: (b) A person under 21 years of age does not violate (a)(2) of this section if the person enters and remains on premises registered under this chapter at the request of a peace officer, if the peace officer accompanies, supervises, or otherwise observes the person's entry or remaining on premises, and the purpose for the entry or remaining on premises is to assist in the enforcement of this section. MS. WEBB stated there is currently an exception under misconduct in the third degree for a person under 21 years of age to enter a licensed marijuana premises if it is at the request of a peace officer. She advised that the committee may consider extending that, particularly for individuals who are employed not by the marijuana establishment but by some other business, who are required to be on the premises for a short duration in the course and scope of their employment. For example, she noted, someone working for UPS or FedEx dropping off packages who through their natural business requirements would need to be on premises. She noted that under the proposed version that individual, if under 21, would be violating the law. She suggested adding an additional exception for someone who is simply engaging in the course of another legitimate business who is required to be on premises. REPRESENTATIVE GRUENBERG asked that Ms. Webb prepare language for the committee. 2:30:42 PM CHAIR LEDOUX asked what the [alcohol statutes] say when a UPS employee enters a bar and is under 21 years of age. MS. WEBB advised that she is not familiar with Title 4 provisions and does not know the answer. 2:31:18 PM REPRESENTATIVE GRUENBERG asked whether there is anything else the committee should consider. MS. WEBB offered that those are their primary concerns, and that Ms. Wollenberg is available tomorrow and the rest of the week should the committee like to hear additional testimony. 2:32:07 PM REPRESENTATIVE GRUENBERG asked that in the event her agency or [the Office of Special Prosecutions & Appeals] has any other suggestions, to please contact Chair LeDoux's office. [Conversation from the audience between Staci Schroeder, Department of Law, or Nancy Meade, Alaska Court System, and Chair LeDoux regarding answering whether identical language is required that involves someone going into a bar under 21 years of age, and what the law is with UPS employees.] CHAIR LEDOUX opened public testimony. 2:33:03 PM PETER MLYNARIK, Chief of Police, City of Soldotna, said he is testifying on behalf of the Alaska Association of Chiefs of Police. He advised it supports Version T, the categorization of marijuana as a controlled substance, and the felony provisions. He noted that without felony provisions and only misdemeanors, there is nothing to stop the black market or people from growing as many plants as they desire. He offered that he agrees the sky is not falling, although Alaska is not at a level where commercially grown marijuana is at any big degree other than the black market. In speaking with Colorado law enforcement he understands that they are basically flooded with marijuana and it is hard to keep up with the different issues related to that substance. He related that Colorado law enforcement recommends making regulations tighter to begin with and then loosening them up later because it is harder to go the other direction. He remarked that the big issue is that marijuana is regulated like alcohol, yet Alaska still has tremendous problems with alcohol abuse and its correlation with crimes. 2:36:24 PM CHAIR LEDOUX advised that she understands his position with respect to the felonies and black market, and while she does not necessarily agree with him she understands where he is coming from. She expressed that she does not understand why, from a law enforcement point of view, Chief Mlynarik would think that keeping marijuana as a controlled substance would be better than the Senate Judiciary Standing Committee version. CHIEF MLYNARIK responded that it is important to keep marijuana under the controlled substance because if marijuana is released and there are problems down the road, it would be harder to put marijuana back into that category. He opined there is a lot of unknown about marijuana, including concentrates. He highlighted a report from The Rocky Mountain High Intensity Drug Trafficking Area, and stated Alaska can only look to the states where marijuana is legal and review their issues. 2:38:09 PM JASON HARDER advised that Copper Center is an area in an unorganized borough that will be opted out with no recourse to opt back in. He questioned how that provision can be in the bill without ending up in court since they are citizens of the State of Alaska. He offered that Glennallen, Copper Center, and Tok are not cities and do not have boundaries, and have never had a local election as there is no way to do that. He stated he was under the impression that Copper Center was opting in within the initiative. He offered that Senator Lyman Hoffman submitted the subject amendment, and Mr. Harder understands his worries regarding the villages not having police and troopers, but they have time to opt out before the commercial industry starts. He said that the Glennallen area has troopers and does not have the problems villages have with alcohol, and noted that alcohol is a problem everywhere in the state. He related that [alcohol and marijuana] need to be separated even though the state will try to regulate them somewhat the same. He explained that if Copper Center is opted out but eventually has a mechanism to opt in, it would put them behind the rest of the state as far as making money and competing in the commercial industry. He highlighted that rural Alaska is losing jobs due to the economy and that marijuana will provide a lot of jobs which it desperately needs. He pointed out that the House Judiciary Standing Committee appears to have the desire to implement the initiative in a manner that will not end up in court and cost the state money. 2:40:57 PM REPRESENTATIVE GRUENBERG said he is concerned about the issues Mr. Harder raised and the problems of how this will operate in unorganized borough. He asked if anyone was available that could answer his questions. 2:41:25 PM CHAIR LEDOUX advised that she was not sure there is today but someone could be available at a future time. REPRESENTATIVE GRUENBERG requested the committee staff ascertain that prior to the above testimony, that Mr. Harder and anyone else involved be notified. 2:42:04 PM ROSS MULLINS, said he 100 percent endorses [Mr. Harder's testimony] regarding unorganized boroughs. He referred to a tradition of roadhouses and other types of establishments on the road system in Alaska and stated that these types of enterprises, who do serve liquor, would be unable to serve marijuana due to automatically being opted out. He said it presents legal issues that would not be conducive to obtaining a good result. He then stated he would comment on the control board issue dealt with during the 4/6/15, HB 42 hearing with regard to a federal position on that board ... CHAIR LEDOUX interjected that the testimony today is regarding CSSB 30, and that the Marijuana Control Board bill will be before the committee again. 2:43:49 PM MR. MULLINS referred to CSSB 30 with regard to right of privacy and taking blood or urine and described the actions as invasive procedures that would require some type of warrant or court authorization so that a law enforcement officer could not "stab" anyone in the arm or force a urine test. He opined it is different from a blow test an officer can request from a DUI suspect in that there is a right to refusal, which can present a certain type of guilty inference from the refusal. The fact that law enforcement would be invading a person's body would be conditions for a lawsuit. Additionally, he related, with marijuana, as opposed to alcohol, there are metabolites that linger for up to 30 days in a person's body even though they may not have any psychoactive effects, and it could put the person in a tenuous situation legally. He commented that he would like marijuana removed from the controlled substance category. He opined that the intent of the initiative is to legalize it although it is a de facto removal from controlled substance to a misdemeanor category. 2:46:17 PM CHAIR LEDOUX requested that Mr. Mullins start wrapping up as public testimony is limited to five minutes per person due to the number of people waiting to testify. 2:46:20 PM MR. MULLLINS offered that the main emphasis for him is the unorganized borough and hopes the issue is resolved. He stated that if Cordova is in an unorganized borough there would be a lot of push back from the area. He said he favors the Senate Judiciary Standing Committee version and that Senator Hoffman's concerns regarding "opt in/opt out, wet/dry" could be treated like alcohol where a village has an option to opt out. 2:48:06 PM LIEF ABEL stated he supports almost all aspects of the Senate Judiciary Standing Committee's version of SB 30 in removing marijuana from controlled substances as it is the right thing to do. He offered that through personal experience and research that marijuana should not be classified as a schedule one narcotic which is in line with the intent of the initiative. He related that he appreciates that the Senate Judiciary Standing Committee took the initiative and put it into law in a manner that mirrors alcohol. He further related that it is an infringement into the privacy of the people of the state to tell them how they are going to extract their medicine at home and how hash oil is extracted as it should be left alone and not be determined in SB 30. 2:50:41 PM DEBRA KIRK said she is a member of the school board and addressed the findings found in [Version T], page 2, lines 24- 25, which read: (2) several hundred adults and children are admitted into treatment each year in Alaska for marijuana use, with nearly 46 percent being children under 20 years of age; MS. KIRK pointed out that the implications for Alaska's education system are huge and that Alaska must raise the bar for education. She offered that a lot of education funding is tied to being able to teach kids at a higher level than they've been required to learn previously. She opined that with the legalization of marijuana the number of children using it will go up. She referred to [Version T, Sec. 2], page 3, lines 15- 16, which read: (7) about 40 percent of the adults arrested in this state who commit violent offenses have marijuana in their system at the time of arrest. 2:52:34 PM MS. KIRK stated that crimes will go up because if 40 percent of adults are arrested with marijuana in their system there is a tangential cause and effect. In that regard, she noted, money is spent that Alaska can't put into education, health and social services, or anything else because Alaska is force to deal with the complications of a legalized substance. She offered that keeping it as a controlled substance would increase the perception among children that there is a risk to using this drug. She related that her biggest focus is what the kids are thinking while watching what adults are doing and noted that Alaska desperately needs to educate its children to not use the substance as it affects their IQ. With regard to the issue of blood tests, she pointed out that the legislature is charged with protecting the rest of Alaskans who did not vote for legalization of marijuana. She expressed that they need protection and to know when driving their kids to soccer games that the roadways are safe. She expressed that the people who want the substance legalized should be willing to submit to a blood test and be honest and allow their blood and urine taken if driving. She said she is turning the tables and asking where is her protection of freedom and would definitely like to see something along those lines. She remarked that she does not advocate for someone under the age of 21 being allowed in a marijuana establishment. She referred to hash oil and marijuana products and stated that individuals should be allowed to read the THC content on the package as the state requires with alcohol. 2:55:57 PM MIKE COONS referred to the question regarding [people under the age of 21 allowed to enter a marijuana establishment] such as a UPS driver. He related that a marijuana establishment is the same as a UPS driver going into a bar to drop off a package, he drops off a package, does not consuming any alcohol, and leaves. As far as the two versions are concerned, the bills are letting a genie out of a bottle that should never have been let out and stated that he voted against the initiative. He noted that to determine anything over an ounce is illegal as a misdemeanor, how will the state get marijuana violations back to a felony if serious problems arise. He recommended keeping it as [Version T] and advised that he is a retired paramedic and has seen what happens in automobile accidents. If someone is drinking and driving they can still get a blood alcohol test. He opined that a needle in someone's arm to get a little bit blood is a less invasive procedure than a 2,000-3,000 pound vehicle crashing into his wife because they are stoned out of their mind on marijuana. He pointed out that every person he asked "would you still go along with strengthening laws for drinking, smoking, and driving" said they drive better stoned. He expressed that is not acceptable and if someone hits him that has been drinking and driving, "the cops better get him before I do." 2:59:23 PM BRUCE SCHULTE, Coalition for Responsible Cannabis Legislation, mentioned that he forwarded a letter to the House Judiciary Standing Committee today and that he would speak to the two versions. Although, he noted, he may have misidentified them in his letter as Version F and Version T. He referred to the Senate Judiciary Standing Committee version and the Senate Finance Committee version and pointed out that the "first" version was a joint effort between the Senate Judiciary Standing Committee and House Judiciary Standing Committee which, he described, was a productive effort that led to very solid legislation. The fundamental difference is that [Version T] continues to treat marijuana as a controlled substance wherein alcohol is not. He said it criminalizes the products and substances rather than the behavior surrounding them. He explained that the intent of the initiative was to legalize marijuana and if the committee continues to keep it as a controlled substance that is contrary to the initiative. That being said, he offered, that he understands the members of the Senate Finance Committee have good reasons for some of the things they were trying to achieve, such as sideboards to establish appropriate sanctions for conduct outside of the realm of a normal regulated business. He opined that it is not necessary to keep marijuana as a controlled substance to achieve that. It has become an ingrained cultural imperative that marijuana is in the controlled substance yet there has been no evidence to suggest it ever should have been there in the first place. A witness testified that marijuana should be in the controlled substance just in case and did not offer any specifics as to where it really needed to be. He suggested that possibly it would be appropriate to go back and look at that earlier version, consider what activities were not addressed adequately to determine whether that bill could be developed further to achieve results. He said that version of the bill was a very good effort and got everyone where they needed to be. 3:02:40 PM CHAIR LEDOUX announced CSSB 30 will be held in committee. 3:02:49 PM