HOUSE BILL REPORT

ESSB 5070

BYSenate Committee on Judiciary (originally sponsored by Senators Talmadge, Halsan, Newhouse, Fleming, Moore, Stratton, Kreidler, Bender, Lee, Deccio, Gaspard, Rasmussen and Saling)

Changing provisions relating to alcohol and drug abuse.

House Committe on Judiciary

Majority Report:  Do pass with amendment.  (12)

      Signed by Representatives Armstrong, Chair; Crane, Vice Chair; Appelwick, Brough, Hargrove, Heavey, Lewis, Moyer, Padden, Patrick, Schmidt and Scott.

Minority Report:  Do not pass.  (4)

      Signed by Representatives Locke, Niemi, Wang and Wineberry.

House Staff:Bill Perry (786-7123)

AS REPORTED BY COMMITTEE ON JUDICIARY MARCH 31, 1987

BACKGROUND:

ONE-PARTY CONSENT

Under a federal statute, states may authorize the recording of conversations.  The federal statute sets minimum standards for the restriction of this authorization.  States may be more, but not less restrictive than the federal law in restricting recordings.  Washington has adopted a privacy law pursuant to the federal statute.

Both state and federal laws begin with a general prohibition against recording any conversation without the approval of all parties concerned.  Each law then makes various exceptions.  Washington law differs significantly from the federal law with respect to one of these exceptions, the so-called one-party consent exception.  Under federal law,  any one party to a conversation may record it.  In the same one-party consent situation under state law, the recording can be made only under certain conditions.

Under state law, a one-party consent conversation may be recorded by the police if a district court judge has given prior authorization based on probable cause to believe that the conversation involves a felony.  In addition one-party consent telephone conversations may be recorded by any consenting party and without judicial authorization, if the conversation is part of a series of repeated or anonymous calls or if it involves certain emergencies, a threat or unlawful demand, or a hostage situation.

State law requires that an "inventory" be provided to a person who has been the subject of a one-party consent judicially authorized recording.  The inventory describes the circumstances of the recording and must be given to the person within thirty days of the recording unless the agency making the recording shows good cause why the inventory should be postponed or dispensed with.

With some differences, both state and federal law also allow recordings to be made of conversations when no party to the conversation has consented.  Under state law such recordings require application for authorization by a prosecutor or attorney general and prior approval by a superior court judge based on reasonable grounds to believe the conversation involves arson, riot, or a threat to life or national security.

State statute and case law restricts the courtroom use of recordings made without the consent of all parties to a conversation.  Any recording made in violation of the one-party consent law is inadmissible in court.  Recordings where no party consented are inadmissible even if an ex parte authorization was obtained.  The recordings may not be used even for the limited purpose of impeachment, and a participant in a conversation who knew of its recording may not testify as to the conversation itself if the recording is inadmissible.

CRIMINAL SANCTIONS

Under the Sentencing Reform Act of 1981, criminal sentences for felony convictions generally include a presumptive sentence of some prison or jail time.  In order to deviate from a presumptive sentence, a judge must demonstrate exceptional mitigating or aggravating circumstances. For certain first time offenders, however, alternatives to prison or jail are provided on other than an exceptional basis.  A defendant may qualify for first time offender status only if he or she has no prior felony convictions and is not being charged with a sex offense or a violent offense.

Under the state's liquor law, it is generally illegal to give liquor to a person under the age of twenty-one.  Exceptions exist for medicinal purposes, religious services and parental permission.

Under the state's drug laws, penalties for selling narcotic drugs are doubled if the buyer is a minor and the seller is an adult and at least three years older than the buyer.

KEG REGISTRATION

Beer retailers currently pay an annual license fee of from one hundred and fifty dollars to three hundred dollars.  These fees and others contribute to the liquor revolving fund which is used for a number of research, scientific, educational and social programs.

Kegs of beer may be sold in accordance with liquor laws regarding licensing of sellers and age restrictions on buyers, but there is no requirement that kegs be registered.

TREATMENT

Group medical insurance plans are required to provide coverage for the treatment of alcoholism.

SUMMARY:

BILL AS AMENDED:

PART I:  ONE PARTY CONSENT

Several changes are made in the state's privacy law.  With respect to one-party consent situations, conversations dealing with drug offenses may be recorded without prior judicial authorization under certain circumstances.  If police have a reasonable suspicion that a conversation will occur relating to a drug offense, and a party to the conversation has consented to its recording, and the law enforcement agency's director or his or her designee has approved the recording, and the conversation is conducted in a face-to-face manner, then the recording may be made without judicial authorization.

Within six judicial days following an approval by an agency, the approval and any recording made pursuant to it must be reviewed by a judge.  The judge is to determine whether the approval was made in accordance with law, including whether a reasonable suspicion as to the nature of the conversation did exist.  If the judge determines that a recording was not properly made, the recording is to be sealed, and the prosecutor notified that a possible violation of the privacy law has occurred.  If the judge determines the recording was properly made, the recording is to be turned over to the prosecutor for evaluation of its usefulness in a drug offense prosecution.  If the prosecutor finds the recording not to be of such use, the recording is to be sealed and may not be opened except by court order.  After three years a sealed recording is to be destroyed. Within thirty days after a recording is made, parties to the conversation must be given an inventory of particulars regarding the recording unless good cause is shown why the inventory should be postponed or dispensed with.

The exception to the requirement for and pre or post-judicial authorization for one-party consent recordings is expanded as well.  All conversations, not just telephone conversations, may be so recorded if they are part of a series of anonymous or repeated conversations, or relate to certain emergencies, threats, unlawful demands or hostage holding.

Changes are also made with respect to the admissibility of evidence.  Any recorded conversation may be used by a party who did not consent to the recording for the purpose of impeaching a witness. Any party to a conversation may testify as to the conversation if he or she does so without the aid of an inadmissible recording.

The judiciary committees of the House of Representatives and the Senate are to study the privacy act.  The Washington State Patrol is to report to the legislature on the use of the newly allowed method of recording drug related conversations.

The provisions of the act relating to one-party consent drug conversations and to the admissibility of evidence expire on June 30, 1989.

PART II: CRIMINAL SANCTIONS

Offenders convicted of selling, delivering or manufacturing narcotic drugs are not eligible for first time offender status under the sentencing reform act.

It is made a class B felony to provide a person with a controlled substance that results in the user's death.

Minor's who are allowed by their parents to drink alcohol may do so only in their parents' presence, and may not do so in a tavern or cocktail lounge regardless of parental permission.  Any alcohol consumed by a minor in connection with religious services must be minimal.

It is made a class C felony:  (1) To involve a minor in an unlawful drug transaction;  (2) Knowingly to rent or lease a building for the purpose of manufacturing or selling illegal drugs; (3) Knowingly to allow a building used for illegal drug activity to be fortified to prevent law enforcement entry; and (4) To use for illegal drug activity a building which has been specifically designed to suppress law enforcement entry.

The drug laws are change to remove the requirement that an adult seller be at least three years older than a minor buyer before a doubling of the criminal penalties for the offense occurs.

PART III:  KEG REGISTRATION

Annual license fees for beer retailers are raised by fifty dollars.  The additional revenue is to be used for substance abuse programs in kindergarten through third grade.

Requirements are imposed for the identification and registration of beer kegs.  Purchasers of kegs are required to:  (1) Produce identification; (2) Sign for the receipt of the keg; (3) Sign that they will not allow anyone under twenty-one to drink from the keg; (4) Indicate where the keg will be used; and (5) Post the sworn statement with the keg.

The Liquor Control Board is required to develop rules for the identification of kegs.  It is made a misdemeanor to sell unidentified kegs.

A civil penalty of five hundred dollars may be imposed for a first time failure to comply with the keg registration requirements of the act.  An intentional violation of the registration requirements is also a misdemeanor.

The state preempts the entire field of keg registration. Local ordinances may contain only the same or lesser restrictions and penalties as are provided by the state law.

PART IV: TREATMENT

Beginning January 1, 1988, group medical insurance plans must provide coverage for the treatment of all chemical dependencies, not just alcoholism.

AMENDED BILL COMPARED TO ENGROSSED SUBSTITUTE:  With respect to the exception for one-party consent drug conversation recordings, the amendment makes several changes.  First, authorization must be based on a reasonable suspicion, which is subject to judicial review, rather than on authorization by a law enforcement officer which is to be reviewed only for procedural compliance.  Second, the amendment limits the exception to face-to-face conversations, rather than any conversation.  Third, review must be within six, rather than ten, judicial days after a recording.  Fourth, the review may be by a judge from a court at any level, not just from a district court.  Fifth, all authorizations, not just those that result in a recording, must be reviewed by a judge.  Sixth, the inventory provisions are added.

The amendment removes a provision relating to the warrantless arrest of a minor for possession or consumption of alcohol.

The amendment removes a provision relating to the abatement of nuisances.

The amendment removes a requirement that a beer keg be kept only at an address identified in the registration, and instead requires that the contents of the keg may be consumed only at that address.

The amendment removes a doubling-of-penalty provision for the sale of drugs by an adult to a minor on school grounds, and replaces it with a doubling-of-penalty provision for any sale by an adult to a minor regardless of the age differential between the adult and the minor, and regardless of where the sale occurs.

Fiscal Note:      Attached.

Effective Date:The provisions creating a drug awareness program in kindergarten through third grade take effect July 1, 1987, and provisions relating to drug dependency medical insurance coverage take effect January 1, 1988.

House Committee ‑ Testified For:    Norm Maleng, King County Prosecutor; John Johnston, Okanogan Co. Sheriff; Greg Canova, Attorney General's Office; Jim DeShane, Seattle Police Department; Phil Hoffman (in part), Squire Park Community Council.

House Committee - Testified Against:      James Carr; John Junker; Bill Johnston, Criminal Law Section, Washington State Bar Association; Phil Hoffman (in part), Squire Park Community Council.

House Committee - Testimony For:    The bill will help insure the reliability of evidence obtained in drug cases.  It will increase law enforcement officers' safety.  The current law is too cumbersome to react to the needs of drug investigations.  The federal law and most other states' laws already allow more recording than this bill will allow.  There are sufficient safeguards in the bill to protect citizens' privacy.  Removing drug dealers from first time offender status under the sentencing reform act comports with the original assumptions of the act, and will treat these serious crimes more appropriately.

House Committee - Testimony Against:      There has been no evidence presented that Washington's law hampers drug investigations.  In fact, Washington's conviction rate in these cases is better than the rate in some states that allow more recordings.  The current law allows for telephone authorization and is more than adequate to accommodate the needs of drug investigations.  Alternatives to recording exist to enhance officer safety.  Post-recording review is an illusory protection of privacy.  Washington ought to be proud and protective of its long tradition of insuring citizen privacy.  Removing drug offenders from first-time offender status will have a substantial fiscal impact and will exacerbate the problem of prison overcrowding.