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AS 17.12.150 defines "depressant, hallucinogenic, or stimulant drug" to include all parts of the plant Cannabis Sativa L.
2 In his briefs before this court, Ravin also attempts to raise the issue of cruel and unusual punishment in the application of AS 17.12.010 to possession of marijuana for personal use. Because this issue was not raised below or in the petition for review to this court, we decline to consider the issue in this proceeding. See Appellate Rule 24(c). Cf. Moran v. Holman, 501 P.2d 769, 770 n. 1 (Alaska 1972).
3 501 P.2d at 171. See State v. Wylie, 516 P.2d 142 (Alaska 1973); State v. Van Dort, 502 P.2d 453 (Alaska 1972); Gray v. State, 525 P.2d 524, 527 (Alaska 1974); Gilbert v. State, 526 P.2d 1131, 1133 (Alaska 1974); State v. Adams, 522 P.2d 1125 (Alaska 1974).
5 McLaughlin v. Florida, 379 U.S. 184, 196, 85 S.Ct. 283, 290, 13 L.Ed.2d 222, 231 (1964), quoted in the concurrence of Mr. Justice Goldberg in Griswold v. Connecticut, 381 U.S. 479, 497, 85 S.Ct. 1678, 14 L.Ed.2d 510, 523 (1965).
6 See Concerned Citizens v. Kenai Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974); Mobil Oil Corp. v. Local Boundary Comm'n, 518 P.2d 92, 101 (Alaska 1974); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923).
15 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973). See also United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973); United States v. 12 200-Ft. Reels, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973).
16 In a companion case, United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973), the Supreme Court observed that the Stanley right to possess obscene material in the home is limited to the home and does not create a right to transport, receive, or distribute the matter. The Supreme Court further said that it is not true that a zone of constitutionally protected privacy follows such materials when they are moved outside the home. See United States v. 12 200-Ft. Reels, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973).
23 For a discussion of the origins and scope of a similar constitutional guarantee of privacy, in the Hawaii Constitution, Art. I, § 5, see State v. Kantner, 53 Haw. 327, 493 P.2d 306 (1972), particularly n. 4 in the dissent of Justice Levinson at p. 314. This court has, in the area of searches and seizures, attempted to define the right of privacy. See, e.g., Erickson v. State, 507 P.2d 508 (Alaska 1973); Mattern v. State, 500 P.2d 228 (Alaska 1972); Davis v. State, 499 P.2d 1025 (Alaska 1972); Ellison v. State, 383 P.2d 716 (Alaska 1963); Rubey v. City of Fairbanks, 456 P.2d 470 (Alaska 1969); Sleziak v. State, 454 P.2d 252 (Alaska 1969).
25 Id. If the State were required, for instance, to carry the extremely heavy burden of showing a compelling state interest before it could regulate the purity of foodstuffs and medicines, the result would be a practical inability to protect the public from health threats which consumers could neither know about nor protect themselves against.
33 The privacy argument has been rejected in several other cases. Miller v. State, 458 S.W.2d 680 (Tex.Crim.App. 1970); In re Klor, 64 Cal.2d 816, 51 Cal.Rptr. 903, 415 P.2d 791 (1966); People v. Aguiar, 257 Cal.App.2d 597, 65 Cal.Rptr. 171 (1968); United States v. Drotar, 416 F.2d 914 (5th Cir. 1969), vacated on other grounds, 402 U.S. 939, 91 S.Ct. 1628, 29 L.Ed.2d 107 (1971); Borras v. State, 229 So.2d 244 (Fla. 1969); Raines v. State, 225 So.2d 330 (Fla. 1969). See Scott v. United States, 129 U.S.App.D.C. 396, 395 F.2d 619 (1968).
42 State v. Spietz, 531 P.2d 521 (Alaska 1975); Ferguson v. State, 488 P.2d 1032 (Alaska 1971). See cases cited supra at n. 21. The home receives special attention in other areas of Alaska's laws, e.g., the homestead exemption in relation to execution sales, AS 09.35.090; the justifiable homicide defense pertaining to the prevention of a felony in the home, AS 11.15.100; and the distinction between burglary in a dwelling house and burglary in other structures, AS 11.20.080-.100.
43 Among the works we have examined in addition to the testimony below are the following: Marihuana: A Signal of Misunderstanding, The First Report of the National Commission on Marihuana and Drug Abuse (March 1972); Drug Use in America: Problem in Perspective, the Second Report of the National Commission on Marihuana and Drug Abuse (March 1973); Drug Use in Anchorage, Alaska, 223 J.Am.Med.Ass'n 657 (1971); G. Nahas, Marihuana: Deceptive Weed (1973); Nahas et al, Inhibition of Cellular Mediated Immunity in Marihuana Smokers, 183 Science 419 (1974); L. Grinspoon, Marihuana Reconsidered (1971); Hearings before the U.S. Senate Subcommittee on Internal Security, May 1974; Nahas & Greenwood, The First Report of the National Commission on Marihuana (1972); Signal of Misunderstanding or Exercise in Ambiguity, draft of article to be published in Bulletin of N.Y. Academy of Medicine; Marihuana and Health: Fourth Annual Report to the U.S. Congress from the Secretary of Health, Education, and Welfare (1974); Silverstein & Tessin, Normal Skin Test Responses in Chronic Marihuana Users, 186 Science 740 (1974); Marihuana: The Grass May No Longer Be Greener, 185 Science 683 (1974); Marihuana (II): Does it Damage the Brain?, 185 Science 775 (1974); Depression of Plasma Testosterone Levels After Chronic Intensive Marihuana Use, 290 N.Engl.J.Med. 872 (1974); Plasma Testosterone Levels Before, During and After Chronic Marihuana Smoking, 291 N.Engl.J.Med. 1051 (1974); Marijuana Survey-State of Oregon, Drug Abuse Council (1974).
44 It is not the function of this court to reassess the scientific evidence in the manner of a legislature. See U.S. v. Thorne, 325 A.2d 764 (D.C.App. 1974), where an attack on the constitutionality of the District of Columbia marijuana statutes was made. There the court said:
Similarly the Supreme Judicial Court of Massachusetts in Commonwealth v. Leis, 243 N.E.2d 898, 901-02 (1969), said:
Justice Kirk, in his concurring opinion in Leis, also explains the question of legislative judgment and the range of judicial cognizance.
49 See Stenchever, Statement before the Senate Subcommittee on Internal Security, May 16, 1974. The National Institute on Drug Abuse, in Marihuana and Health, Fourth Report to the United States Congress from the Secretary of Health, Education, and Welfare, states in part:
Id. at 6.
50 Depression of Plasma Testosterone Levels After Chronic Intensive Marihuana Use, 290 N.Engl.J.Med. 872 (1974). But cf. Plasma Testosterone Levels Before, During and After Chronic Marihuana Smoking, 291 N.Engl.J.Med. 1051 (1974).
51 Marihuana: A Signal of Misunderstanding, the First Report of the National Commission on Marihuana and Drug Abuse (March 1972), 63. See also Marihuana and Health, Fourth Report to the United States Congress from the Secretary of Health, Education and Welfare (1974), which reads at 12:
54 "While tolerance to the effects of marihuana has not been generally observed among American users, there is increasingly convincing evidence that tolerance (i.e., larger dosages required to produce the same effects found with lower dosages) does develop under conditions of heavy, regular use. Given the relatively low doses and infrequent use typical of present patterns of use in the United States it is not surprising that tolerance has not usually been observed. . . . While the amounts involved were usually large and atypical of current use patterns, the probability of a withdrawal syndrome in at least some American heavy users must be considered." Marihuana and Health, Fourth Report to the United State Congress from the Secretary of Health, Education, and Welfare (1974) at 10, 75-81.
59 E.g., American Motorcycle Ass'n v. Davids, 11 Mich.App. 351, 158 N.W.2d 72 (1968); People v. Fries, 42 Ill.2d 446, 250 N.E.2d 149 (1969). See Everhardt v. New Orleans, 208 So.2d 423 (La.App. 1968), rev'd, 217 So.2d 400 (1969); People v. Carmichael, 53 Misc.2d 584, 279 N.Y.S.2d 272 (1967), rev'd, 56 Misc.2d 388, 288 N.Y.S.2d 931 (1968).
61 Similarly, in State v. Kastner, 53 Haw. 327, 493 P.2d 306 (1972), which involved the constitutionality of Hawaii's marijuana statue, Justice Abe noted his belief that the statute went beyond the police power of the state because of the lack of evidence that use of marijuana harms anyone other than the user. There is, he wrote, under the Hawaii Constitution a fundamental right of liberty to make a fool of oneself so long as one's act does not endanger others.
64 We recognize that more potent forms of cannabis than marijuana are commonly used in other countries and are available on a limited scale here. However, studies of use patterns here do not indicate any great likelihood of a significant shift in use here to the more potent substances. If such a shift were to occur, then marijuana use could be characterized as a serious health problem.
67 Evidence that marijuana has a detrimental effect
on driving performance, especially as the dose increases, continues to mount. It has
been found to increase both braking and starting times, to adversely affect attention and
concentration abilities, and to detract from performance on a divided attention task, all
of which are presumable involved in driving. A recent Canadian study of driving
ability while marijuana-intoxicated examined drivers' performance under both driving
course and actual traffic conditions. A significant decline in performance as
measured by several criteria was found in most drivers tested. Based on the
accumulated evidence, it seems clear that driving while under the influence of marijuana
is ill-advised. Marihuana and Health, Fourth Report to the U.S. Congress from the
Secretary of Health, Education, and Welfare 10-11 (1974).
68 Current Alaska law enacted since the trial of this
case prohibits driving under the influence of an hallucinogenic drug. AS 28.35.030.
Alaska law also specifically prohibits operation of a boat while under the
influence of marijuana. AS 05.25.060.
69 We do not intent to imply that the right of privacy in the home does not apply to children. See Breese v. Smith, 501 P.2d 159, 167 (Alaska 1972). We note that distinct government interests with reference to children may justify legislation that could not properly be applied to adults.
70 Statistics indicate that few arrests for simple possession occur in the home except when other crimes are simultaneously being investigated. The trend in general law enforcement seems to be toward minimal effort against simple users of marijuana, and concentration of efforts against dealers and users of more dangerous substances. Moreover, statistics indicate that most arrests for possession of marijuana in Alaska result in dismissals before trial.
71 See U.S. v. Maiden, 355 F.Supp. 743 (D.Conn. 1973); U.S. v. Kiffer, 477 F.2d 349 (2nd Cir. 1973). In attacking a complex problem, the state need not choose between attacking every aspect of that problem or not attacking that problem at all. Dandridge v. Williams, 397 U.S. 471, 80 S.Ct. 1153, 25 L.Ed.2d 491 (1970); McDonald v. Board of Election Commissioners, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969).
72 E.g., People v. McCabe, 49 Ill.2d 338, 275 N.E.2d 407 (1971); Attwood v. State, 509 S.W.2d 342 (Tex.Crim.App. 1974); see People v. Sinclair, 387 Mich. 91, 194 N.W.2d 878 (1972); cf. State v. Zornes, 475 P.2d 109 (Wash. 1970).
73 E.g., Bettis v. United States, 408 F.2d 563 (9th Cir. 1969); Commonwealth v. Leis, 243 N.E.2d 898 (Mass. 1969); Miller v. Texas, 458 S.W.2d 680 (Tex.Crim.App. 1970); Raines v. State, 225 So.2d 330 (Fla. 1969); People v. McKenzie, 169 Colo. 521, 458 P.2d 232 (1969); People v. Stark, 157 Colo. 59, 400 P.2d 923 (1965). See State v. Kantner, 53 Haw. 327, 493 P.2d 306 (1972).
9 Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973); United States v. 12 200-Ft. Reels, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973).
15 Where a fundamental right has required use of the compelling state interest test, only one law has been found valid by the Supreme Court, Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944), but no state law has passed muster. Dunn v. Blumstein, 405 U.S. 330, 363-64, 92 S.Ct. 995, 31 L.Ed.2d 274, 296-97 (1972) (Burger, C.J., dissenting). See 48 N.Y.U.L.Rev. 670 at 702. See also Gilbert v. State, 526 P.2d 1131 (Alaska 1974).
16 Of course, in any event where Federal Constitutional rights are involved, we must at least apply the minimum standards prescribed by the United States Supreme Court. Baker v. City of Fairbanks, 471 P.2d 386, 401-02 (Alaska 1970).
1 The right to privacy which received protection in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), has nothing to do with the locus of the home and, for the most part, is concerned with matters occurring outside the home.
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Marihuana, A Signal of Misunderstanding - The Report of the US National Commission on Marihuana and Drug Abuse
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