RichmondLiberty.org

file GA08-01-30
General Assembly, Wednesday January 30th, 2008

[This report is being sent out Thursday morning, rather than Wednesday afternoon. Feel free to invent some plausible excuse, other than "He's just lazy." Sorry, people. -- Roy]

Two important committee meetings today, at effectively the same time.
2:00 p.m. Senate Courts - All the bills from yesterday's subcommittee, AND ALSO SB88, expungement of marijuana convictions.

1/2 hr. after House adjourns - House Courts Criminal Sub. - DRUG BILLS nonresident pharmacies, drug-caused death, Waiver of Constitutional rights, indecent exposure, castle doctrine, sex offenders

As I type, Lennice Werth is at the Senate hearing, while I'm on the House side. We'll try to coordinate with each other.

House subcommittee finally gets a quorum and begins just about 2 pm, with 33 bills on the docket. ALl the bills that have a fiscal impact (will cost the State money over the next five years) should be done today. Bills of interest below are in numerical order.

HB491, Amundson: Indecent exposure; penalty.
There was another try at rewriting this bill, so that it could cover outrageous behavior even in one's own home but still not reach into normal conduct. This was a nearly complete rewrite of the current law. Point raised that we have decades of experience, and case law, invested in deciding exactly what is meant by the words in the current statute, and if we rewrite now then that process will have to start all over again, so a rewrite had better be really good. After another hour of discussion, they gave it up as a bad job.

Bill was tabled, presumably dead but it could be taken up again if anyone gets a bright idea.

HB710, Janis: Self defense and defense of others; person occupying dwelling may justify when unlawful entry.

Provides that any person who lawfully occupies a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when the other person has unlawfully entered the dwelling, has committed an overt act toward the occupant or another person in the dwelling, and the occupant reasonably believes he or another person in the dwelling is in imminent danger of bodily harm. The bill also provides that a person who uses justifiable force against an intruder shall be immune from civil liability for injuries or death of the other person.

This is another try at the "Castle doctrine" (As in, "a man's home is his castle.") Would have liked to stay for it, but since it has no fiscal impact we aren't even sure that it will be heard tonight.

I left for the Senate committee, but Philip Van Cleave from VCDL and courts expert Hal Macklin were there and covering the issue. (For those who would like to receive VCDL's e-newsletter, see:
http://www.vcdl.org/.

[Thursday morning, Philip informs me that this bill was indeed passed out of subcommittee to the full Committee for approval.]

HB1147, Phillips: Controlled substances; nonresident pharmacies reporting and approval requirements.

Controlled substances; nonresident pharmacies; penalties. Adds new penalties and increases existing penalties related to controlled substances including: (i) a medical practitioner wrongly prescribing or dispensing a Schedule I or II drug shall be imprisoned for not less than five nor more than 40 years and fined not more than $500,000, and upon a second or subsequent conviction, may be sentenced to imprisonment for life and be fined not more than $500,000, and for Schedule III through V drugs, shall be guilty of a Class 5 felony; (ii) a pharmacist violating any provision of the Drug Control Act shall be guilty of a Class 5 felony for the first offense, and a Class 4 felony for a second or subsequent offense; and (iii) any person wrongfully obtaining a drug through fraud, forgery, misrepresentation, etc., shall be guilty of a Class 5 felony for the first offense and a Class 4 felony for a second or subsequent offense, rather than the current Class 6 felony for all such offenses. Also adds new reporting and approval requirements for nonresident pharmacies doing business over the internet and via electronic mail.

This bill attempts to stop what is alleged to be a major problem of Virginians buying pharmaceutical drugs for the purpose of abuse from out-of-state pharmacies. We heard tales of crowds of people waitin in downtown parking lots to meet the UPS truck, getting their drugs, and the local police being powerless to stop them. (In spite of my requests, none of the proponents of the bill explained why law enforcement didn't just arrest these people for obtaining drugs through fraud, which is already a felony. Certaily that's done routinely with cocaine and marijuana, with autorities working closely with FedEx and UPS and Post Office to set up controlled deliveries of contraband.) One of the provisions raises the penalty for a second offense of obtaining drugs through invalid prescriptions from the present Class 6 felony (up to five years) to a Class 5 felony (up to ten years).

The bill had been held up pending word from the AG's office on the constitutionality of what is essentially a scheme to regulate interstate commerce, which is reserved for the Federal government. We were told here that the AG has given his OK.

A representative from a large mail-order pharmacy explained how the requirement for a Virginia-based resident pharmacist would cost his company large sums; the cost of hiring fifty new pharmacists to satisfy similar legislation across the country would substantially raise the prices they must charge consumers.

Robert Bushnell, representing the Commonwealth's Attorneys Association, quite responsibly suggests that the prohibition of pharmacists filling fraudulent prescriptions should say that the pharmacist must have known that the 'scrip is bad. This sparked many questions about how one can tell real 'scrips from phoney ones, during the course of which we learned that the Feds are in the process of implementing a requirement that all 'scrips be written on special tamper-proof paper. [I predict that when this process becomes final, which is supposed to be "within months", there will be a great number of problems as many doctors will not have gotten the word, and valid prescriptions are rejected.]

I spoke, questioning any real need for bill since we have existing laws against frauulent prescriptions, and opposing increased penalties for repeat offenders.

The bill was passed by for the moment, to allow it to be reworked yet again. An hour or two later, the new version is ready.

It's much better than the previous versions, and most importantly no longer has the doubled penalty for using bad 'scrips.

Recommended for reporting to the full House.

HB1156, Phillips: Drug distribution; penalties if results in death or serious bodily injury.

Penalties for drug distribution resulting in death or serious bodily injury. Imposes mandatory minimum punishments of from one to ten years for drug manufacturing or distribution and requires that sentences be served consecutively.

This finally comes up, only an hour and a half into the meeting.
The bill makes it a specific crime, with increased penalties including mandatory minimum sentences, when illlegal drugs cause serious injury or death. This is another substitute version, and now covers only cases where the illegal drugs cause death, and has no provision for 'man-mins' (these typically must be served over and above any other sentences, and are not subject to probation, parole, or reduction of any time.

I spoke against the bill, saying that we already have a law on the books making anyone who commts a felony (such as distribution of drugs) guilty of felony manslaughter if a death results from that act. I also made a pitch for personal responsibility, asking why I should be held responsible if I sell someone something which he then uses stupidly in such a way as to kill himself. If I sell you an aluminum ladder, and you use it to climb up and mess with the power lines and kill yourself, that is your fault, not mine. Likewise, if I sell you sleeping pills, and you then drink alcohol and use a triple dose of the pills to kill yourself, that is your fault. Freedom requires responsibility; each person must be responsible for his own choices and actions.

There's much discussion, including descriptions of several cases where people had died following inappropriate use of illegal drugs, and the difficulties of proving that those deaths had in fact been caused by, not merely followed, the drugs.

Finally, on a motion from a most unlikely member, the bill was PBIed. Barring unexpected action by the full Committee, it is dead.

HB1366, Cline: Probation; waiver of fourth amendment rights as condition.

Probation; waiver of Fourth Amendment rights as condition of probation. Provides that among the conditions the court may impose upon a probationer is that the person, vehicle or home of the defendant shall be subject to search without a warrant during the period of his probation when the search derives from a violation of other conditions imposed upon the defendant by the court or arises out of a suspicion that the defendant is engaged in conduct the same as that or substantially similar to that for which he was convicted, provided that such condition may be imposed only upon a defendant convicted of a felony violation under Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2 (controlled substance violations) or a violent felony as defined in § 17.1-805.

Had to leave for the Senate committee before this came up. More later.

-----------------------------

At the Senate Courts of Justice Committee meeting, there had been action on a number of items, but a snag in the marijuana-expungement bill. Most actions reflected subcommittee decisions.

SB3, indecent exposure, was PBIed.

SB88, Lucas, would have set up a procedure for expungement of criminal records for people who have had charges of marijuana possession dismissed under the conditional-discharge statute. We had an amendment prepared to expand that provision to people who had actually been convicted of possession in the past.

Suddenly, there was a "fiscal impact statement" associated with the bill. The analysis claimed that the bill would require hiring a new State employee at $90,000 per year, and setting up servers and databases, for a cost of $100,000 for the first year, and maintaining that database at a cost of $2,500 per year. This analysis is subject to challenge on several grounds, and although we're working on it, nothing could be done Wednesday because the necessary people had already gone home when we discovered the new data.

The bill was not heard by the Committee.

SB175, prohibiting registered sex offenders from being near recreation centers, was passed by for the day.

SB270, Indecent exposure, was folded into SB3, which was PBIed.

SB382, selling guns to illegal aliens, had a substitute version reported to the full Senate.

SB397, Edwards, Electronic log for cold medicine, was stricken from the docket at the request of the patron.

SB405, Puckett, Out-of-state pharmacists, had a substitute version reported from Committee and re-referred to Senate Finance Committee. This is the Senate version of HB1147, written up above. Eventually, the two bills will have to be reconciled.

SB556, Obenshain, requires jail time for disregarding right-of-way and killing someone. A substitute version was reported from the Committee, and that version should be on the Web later today.

SB590, Howell, Sex Offenders Registry, had a substitute version reported and sent to the Finance Committee. Substitute version should be on the Web later today.

SB678, Puckett, authorizes a Drug Court for Tazewell County. Reported, re-referred to Finance.

Lennice and I both left before six pm, while Committee was still sitting.

------------------------------------------------------

Next significant meetings are:

8:30 a.m. Senate Education and Health; Senate Room B, General Assembly Building
-- Public smoking, HPV vaccinations

House and Senate meet at noon.

5:00 p.m. House Militia, Police and Public Safety - Subcommittee #1, Firearms; 7th Floor West Conference Room, General Assembly Building
-- Numerous firearms bills, including prohibitions for libraries and day-care centers

-------------------------------------------------------

DETAILS:
To see the summary, text, status, estimated cost, votes, or other details on any bill, go to:
http://leg1.state.va.us/. Click on:
“Bills & Resolutions – status of individual bills and related information”.
At the text-entry block, enter the bill and type just as I have it listed above. (Use “SB921”, not “S.B. 921”, for example.)

--------------------------------------------------------------

REMINDER:
http://leg1.state.va.us/ and http://legis.state.va.us/
These are the two websites where you can access nearly anything you want to know about practically anything related to the General Assembly. Use them!