House Committee on Judiciary (05/02/2013)

Final
STAFF SUMMARY OF MEETING

HOUSE COMMITTEE ON JUDICIARY

Date:	05/02/2013	ATTENDANCE

Time:	01:41 PM to 03:17 PM	Buckner	X
		Court	X
Place:	HCR 0112	Gardner	X
		Lawrence	X
This Meeting was called to order by		McLachlan	X
	Representative Kagan	Murray	*
		Pettersen	X
This Report was prepared by		Salazar	*
	Jessika Shipley	Wright	X
		Lee	X
		Kagan	X
		X = Present, E = Excused, A = Absent, * = Present after roll call

Bills Addressed:		Action Taken:
SB13-250 HB13-1325		Amended, Referred to Appropriations Amended, Referred to Appropriations

01:41 PM -- Senate Bill 13-250

Representative Levy, sponsor, presented Senate Bill 13-250. This reengrossed bill, recommended by the Colorado Commission on Criminal and Juvenile Justice (CCJJ), makes a number of changes to current law concerning the sentencing of individuals convicted of drug-related offenses. In particular, it:

creates new felony and misdemeanor drug sentencing grids, as shown in Table 1;

assigns each existing drug crime a new drug penalty based on the new sentencing grids;

adds all drug felonies to the habitual sentencing schemes;

establishes a sentencing option for offenders convicted of certain drug felonies that allows the court to vacate the felony conviction and enter a misdemeanor conviction in its place if the offender successfully completes a community-based sentence (probation or community corrections);

requires the court to exhaust alternative sentencing options for certain level 4 drug felony offenses prior to sentencing an offender to prison;

requires the court to hold a resentencing hearing or make written findings for any level 4 drug felony offender who is terminated from a community corrections program;

allows the court to impose residential drug treatment as a probation condition for drug misdemeanors;

allows defendants convicted of misdemeanor drug offenses to be sentenced to intensive supervision probation if appropriate; and

prohibits a plea agreement involving a drug offense from requiring a waiver of the defendant's right to petition for sealing of his or her criminal conviction records.

Table 1. New Misdemeanor and Felony Drug Sentencing Scheme Under SB13-250
Drug Misdemeanors (DM)
Level	Minimum Sentence	Maximum Sentence
DM1	6 months imprisonment, $500 fine, or both	18 months imprisonment, $5,000 fine, or both
DM2	$50 fine	12 months imprisonment, $750 fine, or both
Drug Felonies (DF)
Level	Presumptive Range	Mandatory Parole Period
DF1	8 to 32 years imprisonment, $5,000 to $1 million fine, or both	3 years
DF2	4 to 8 years imprisonment, $3,000 to $750,000 fine, or both	2 years
DF3	2 to 4 years imprisonment, $2,000 to $500,000 fine, or both	1 year
DF4	6 months to 1 year imprisonment, $1,000 to $100,000 fine, or both	1 year
Level	Aggravated Range	Mandatory Parole Period
DF2	8 to 16 years imprisonment, $3,000 to $750,000 fine, or both	2 years
DF3	4 to 6 years imprisonment, $2,000 to $500,000 fine, or both	1 year
DF4	1 to 2 years imprisonment, $1,000 to $100,000 fine, or both	1 year

Under current law, if a person violates the terms of a deferred judgment and sentence (DJS), the court is required to enter the guilty plea and impose the original sentence. If the DJS is related to a drug offense, this bill allows but does not require the court to continue the DJS and impose new requirements intended to help the person complete it successfully.

The Division of Criminal Justice (DCJ) in the Department of Public Safety is required to collect data between October 1, 2013, and September 30, 2016, and generate a report on the impact of the bill by December 31, 2016. Data that are to be collected must include the following:

the total number and nature of the charges filed by jurisdiction;

the total number of drug cases diverted from prosecution prior to filing through referral to law enforcement or district attorney diversion programs

all demographic and relevant background information about the defendants; and

the nature of the charges by statutory citation and specific outcome data.

The bill requires the General Assembly to appropriate $3.5 million from the General Fund savings associated with the bill to the Correctional Treatment Cash Fund in FY 2014-15.

Finally, the bill authorizes the Colorado District Attorneys' Council (CDAC) to receive, manage, and expend state funds, subject to appropriation by the General Assembly, on behalf of the district attorneys who are members of the CDAC.

Representative Levy distributed a fact sheet about the bill and prepared amendments L.006 and L.007 (Attachments A, B, and C, respectively).

13HseJud0502AttachA.pdf

13HseJud0502AttachB.pdf

13HseJud0502AttachC.pdf

01:49 PM -- Peg Ackerman, representing the County Sheriffs of Colorado, testified in support of the bill. Ms. Ackerman read a written statement from Arapahoe County Sheriff Grayson Robinson, who was the chair of the drug policy working group of the CCJJ.

01:51 PM -- Tom Raynes, representing the CDAC, testified in support of the bill. Mr. Raynes thanked the sponsors and the CCJJ for their hard work. He discussed the work accomplished by the drug policy working group in its attempt to create a new drug grid that is focused on treatment for lower-level offenders and significant periods of incarceration for more serious offenders. He spoke about the changes to drug sentencing made by the bill.

01:56 PM -- Maureen Cain, representing the Colorado Criminal Defense Bar, testified in support of the bill. Ms. Cain explained why the new drug sentencing grid will be superior to the current system. She discussed the research and various models studied by the working group. She spoke about previous legislative efforts that direct General Fund savings to treatment for drug offenders. She expressed her opinion that the data collection required by the bill is key to improving outcomes for offenders and protecting the public.

02:00 PM -- Christie Donner, representing the Colorado Criminal Justice Reform Coalition, testified in support of the bill. Ms. Donner expressed admiration for the tenor of the discussions of the working group. She indicated that those discussions were very honest and collaborative. She spoke about the need to align supervision of drug offenders around risk and need rather than drawing a bright line between misdemeanors and felonies.

02:04 PM -- Matt Durkin, representing the Department of Law, testified in support of the bill. Mr. Durkin spoke about his experience as a prosecutor.

02:06 PM

Mr. Raynes responded to questions from the committee about the work of the CCJJ.

02:09 PM -- Jessika Shipley, representing Legislative Council Staff, responded to questions from the committee about the fiscal note.

02:10 PM

The committee discussed creating an opportunity for the members of the General Assembly to be educated about the CCJJ. Ms. Cain talked about the fiscal impact of the bill.


BILL:	SB13-250
TIME:	02:14:48 PM
MOVED:	Kagan
MOTION:	Adopt amendment L.006 (Attachment B). The motion passed without objection.
SECONDED:	Court
		VOTE
	Buckner
	Court
	Gardner
	Lawrence
	McLachlan
	Murray
	Pettersen
	Salazar
	Wright
	Lee
	Kagan

YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection


BILL:	SB13-250
TIME:	02:15:35 PM
MOVED:	Salazar
MOTION:	Adopt amendment L.007 (Attachment C). The motion passed without objection.
SECONDED:	Court
		VOTE
	Buckner
	Court
	Gardner
	Lawrence
	McLachlan
	Murray
	Pettersen
	Salazar
	Wright
	Lee
	Kagan

YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection


BILL:	SB13-250
TIME:	02:24:08 PM
MOVED:	Kagan
MOTION:	Refer Senate Bill 13-250, as amended, to the Committee on Appropriations. The motion passed on a vote of 11-0.
SECONDED:	Court
		VOTE
	Buckner	Yes
	Court	Yes
	Gardner	Yes
	Lawrence	Yes
	McLachlan	Yes
	Murray	Yes
	Pettersen	Yes
	Salazar	Yes
	Wright	Yes
	Lee	Yes
	Kagan	Yes

Final YES: 11 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: PASS

02:25 PM -- House Bill 13-1325

The committee took a brief recess.

02:28 PM

The committee returned to order. Representatives Fields and Waller, co-sponsors, presented House Bill 13-1325. Current law specifies that in any prosecution for driving under the influence (DUI), driving while ability impaired (DWAI), vehicular homicide, or vehicular assault, if a driver's blood alcohol content (BAC) was 0.08 or greater at the time of the offense or within a reasonable time thereafter, this fact gives rise to a permissible inference that the defendant was under the influence of alcohol. This bill states that if a driver's blood contains five nanograms or more of delta 9-tetrahydrocannabinol (THC) per milliliter in whole blood (5 ng/mL) at the time of the offense or within a reasonable time thereafter, this fact gives rise to a permissible inference that the defendant was under the influence of one or more drugs. THC is the primary psychoactive component of marijuana. DUI and DWAI are misdemeanors. Vehicular homicide is a class 3 felony if the driver was under the influence of alcohol, drugs, or both. Vehicular assault is a class 4 felony if the driver was under the influence of alcohol, drugs, or both.

In a trial for DUI or DWAI, a defendant's valid medical marijuana registry identification card may not be used as part of the prosecution's case in chief. In addition, in a traffic stop, the driver's possession of a valid medical marijuana registry identification card must not, in the absence of other contributing factors, constitute probable cause for a peace officer to require the analysis of the driver's blood.

The bill also clarifies state law to match current practice by stating that in cases of vehicular homicide or vehicular assault, if a driver's BAC was 0.08 or greater at the time of the offense or within a reasonable time thereafter, this fact gives rise to a permissible inference that the defendant was under the influence of alcohol, rather than stating that it is presumed that the defendant was under the influence of alcohol. Finally, the bill repeals the law specifying that it is a misdemeanor for a habitual user of any controlled substance to drive a motor vehicle or low-power scooter. Other references to charges of "habitual user" are also repealed.

Permissible inference. A permissible inference allows a judge to instruct a jury that if it finds that a defendant's whole blood contained at least 5 ng/mL of THC while driving or shortly thereafter, then the jury may conclude that the defendant was driving under the influence. A permissible inference does not require a jury to conclude that a defendant was driving under the influence when a THC concentration level is met. In addition, the jury may consider all of the evidence in the case to evaluate whether the prosecution has proved the offense beyond a reasonable doubt.

The following individuals testified about the bill, although the sign-in sheet was not available as part of the record:

02:33 PM -- Tom Raynes, representing the Colorado District Attorneys' Council, testified in support of the bill. Mr. Raynes explained why the bill needs to be passed. He talked about public safety and the science behind impairment testing. He responded to questions from the committee about peer-reviewed research studies. He responded to questions from the committee.

02:43 PM

The committee discussed the fact that the bill has been considered three times during the present legislative session.

02:44 PM -- Matt Durkin, representing the Department of Law, testified in support of the bill. Mr. Durkin spoke about the difference between a permissible inference and a per se limit. He discussed the science of impairment testing and the number of deaths attributable to driving under the influence of marijuana. He responded to questions from the committee about the mortality statistics he provided.

02:52 PM -- Sergeant Bobby Juchem, representing the Colorado State Patrol, testified in support of the bill. Sgt. Juchem explained police procedure in a traffic stop involving suspected impaired driving.

02:54 PM -- Peg Ackerman, representing the County Sheriffs of Colorado, testified in support of the bill.

02:56 PM -- Teri Robnett, representing medical marijuana patients, testified in opposition to the bill. Ms. Robnett explained how the bill would negatively impact medical marijuana patients. She asked the committee to carve out an exception for patients. She responded to questions from the committee.

03:02 PM -- Belita Nelson, representing herself, testified in opposition to the bill. Ms. Nelson spoke about her experience as a medical marijuana patient and asked for an exception to be carved out for medical marijuana patients.

03:06 PM -- Ronn Nixon, representing himself, testified in opposition to the bill. Mr. Nixon expressed his opinion that current law sufficiently addresses the problem of driving under the influence. He listed his objections to the bill.


BILL:	HB13-1325
TIME:	03:10:10 PM
MOVED:	Court
MOTION:	Adopt amendment L.001 (Attachment D). The motion passed without objection. 13HseJud0502AttachD.pdf
SECONDED:	Lawrence
		VOTE
	Buckner
	Court
	Gardner
	Lawrence
	McLachlan
	Murray
	Pettersen
	Salazar
	Wright
	Lee
	Kagan

YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection


BILL:	HB13-1325
TIME:	03:15:16 PM
MOVED:	Court
MOTION:	Refer House Bill 13-1325, as amended, to the Committee on Appropriations. The motion passed on a vote of 11-0.
SECONDED:	Pettersen
		VOTE
	Buckner	Yes
	Court	Yes
	Gardner	Yes
	Lawrence	Yes
	McLachlan	Yes
	Murray	Yes
	Pettersen	Yes
	Salazar	Yes
	Wright	Yes
	Lee	Yes
	Kagan	Yes

Final YES: 11 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: PASS

03:17 PM

The committee adjourned.