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494 Alaska 537 PACIFIC REPORTER, 2d SERIES

Irwin RAVIN, Petitioner,
v.
STATE of Alaska, Respondent.
No. 2135.

Supreme Court of Alaska.
May 27, 1975.
As Amended May 28, 1975.

    Proceeding was instituted on defendant's motion to dismiss charge of violation of statute proscribing possession of marijuana.  The District Court, Third Judicial District, Anchorage, Dorothy P. Tyner, J., denied motion to dismiss and the superior court affirmed and petition for review from the superior courts affirmance was granted.  The Supreme Court, Rabinowitz, C. J., held that need for control of drivers under influence of marijuana and existing doubts as to safety of marijuana demonstrate a sufficient justification for statutory proscription of possession of marijuana, and thus an individual's right to possess or ingest marijuana while driving is subject to statute proscribing possession of marijuana; and that no adequate justification exists for State's intrusion into citizen's right of privacy by its prohibition of possession of marijuana by an adult for personal consumption in home, and thus possession of marijuana by adults at home for personal use is constitutionally protected.

    Remanded for further proceedings.

    Boochever and Connor, JJ., filed specially concurring opinions.

1. Criminal Law 1030(2)
    Issue of cruel and unusual punishment in application of statute proscribing possession of marijuana to possession of marijuana for personal use was not considered by Supreme Court, since issue was not raised below or in petition for review to Supreme Court, Rules of Appellate Procedure, rule 24(c) ; AS 17.12.010, 17.12.150.

2. Constitutional Law 82
    Once a fundamental right under State Constitution has been shown to be involved and it has been further shown that this constitutionally protected right has been impaired by governmental action, government must come forward and meet its substantial burden of establishing that abridgment in question was justified by a compelling governmental interest.

3. Constitutional Law 82
    When governmental action interferes with an individual's freedom to an area which is not characterized as fundamental, a less stringent test is ordinarily applied and in such cases, court's task is to determine whether legislative enactment has a reasonable relationship to a legitimate government purpose, and under this "rational basis" test state need only demonstrate existence of facts which can serve as a rational basis for belief that measure would properly serve public interest.

4. Constitutional Law 82
    If governmental restrictions interfere with individual's right to privacy, court will require that relationship between means and ends be not merely reasonable but close and substantial.

5. Constitutional Law 82
    Federal right to privacy arises only in connection with other fundamental rights, such as the grouping of rights which involve the home, and even in connection with penumbra of home-related rights, right of privacy in sense of immunity from prosecution is absolute only when private activity will not endanger or harm the general public.  Const. art. 1, 22; U.S.C.A. Const. Amends. 1, 3-5, 14.

6. Constitutional Law 82
    Drugs and Narcotics 41
    Right to privacy amendment to Alaska Constitution cannot be read so as to make the possession or ingestion of marijuana itself a fundamental right.  Const. art. 1, 22.

7. Constitutional Law 82
    Privacy amendment to Alaska Constitution was intended to give recognition and protection to the home.  Const. art. 1, 22.

8. Constitutional Law 82
    Privacy in the home is a fundamental right.   Const. art. 1, 22; U.S.C.A.Const. Amend. 4.

9. Constitutional Law 82
    Right of privacy in the home must yield when it interferes in a serious manner with the health, safety, rights and privileges of others or with the public welfare.  Const. art. 1, 22; U.S.C.A.Const. Amend. 4.

10. Constitutional Law 82
    No one has an absolute right to do things in the privacy of his own home which will affect himself or others adversely.  Const. art. 1, 22; U.S.C.A. Const. Amend. 4.

11. Constitutional Law 82
    Right of privacy in home is limited in that possession of substances is guaranteed only for purely private, noncommercial use in home.   Const. art. 1, 22; U.S.C.A. Const. Amend. 4.

12. Constitutional Law 70.1(10)
    In determining validity of legislative proscription of possession of marijuana, it is not function of court to reassess scientific evidence in the manner of a legislature.

13. Constitutional Law 82
    State cannot impose its own notions of morality, propriety, or fashion on individuals when the public has no legitimate interest in the affairs of those individuals.

14. Constitutional Law 82
    The right of an individual to do as he pleases is not absolute and it can be made to yield when it begins to infringe on the rights and welfare of others.

15. Constitutional Law 81
    Authority of state to control activities of its citizens is not limited to activities which have a present and immediate impact on public health or welfare.

16. Constitutional Law 82
    State is under no obligation to allow otherwise "private" activity which will result in numbers of people becoming public charges or otherwise burdening the public welfare.

17. Health and Environment 20
    Statutes designed to protect the public health will receive a liberal construction.

18. Health and Environment 20
    There is a presumption in favor of public health measures.

19. Health and Environment 20
    When there is substantial doubt as to safety of a given substance or situation of public health, controls intended to obviate the danger will usually be upheld.

20. Automobiles 332
    Need for control of drivers under influence of marijuana and existing doubts as to safety of marijuana demonstrate a sufficient justification for statutory proscription of possession of marijuana; and thus an individual's right to possess or ingest marijuana while driving is subject to statute proscribing possession of marijuana.  AS 05.25.060, 17.12.010, 17.12.150, 28.35.030; Const. art. 1, 22; U.S.C.A.Const. Amends. 1, 14.

21. Drugs and Narcotics 43
    No adequate justification exists for State's intrusion into citizen's right of privacy by its prohibition of possession of marijuana by an adult for personal consumption in home, and thus possession of marijuana by adults at home for personal use is constitutionally protected.  AS 17.12.010, 17.12.l50; Const art. 1, 22; U.S.C.A. Const. Amends. 1, 4, 14.

22. Constitutional Law 82
    Privacy of individual's home cannot be breached absent a persuasive showing of a close and substantial relationship of the intrusion to a legitimate governmental interest.

23. Drugs and Narcotics 62, 68
    Neither federal nor Alaska Constitution affords protection for the buying or selling of marijuana,  nor absolute protection for its use or possession in public.  AS 17.12.010, 17.12.150; Const. art. 1, 22; U.S.C.A. Const. Amends. 1, 4, 14.

24. Drugs and Narcotics 66
    Possession at home of amounts of marijuana indicative of intent to sell rather than possession for personal use is unprotected.   AS 17.12.010, 17.12.150; Const. art. 1, 22, U.S.C.A. Const. Amends. 1, 4, 14.

25. Constitutional Law 250.1(2)
    Drugs and Narcotics 43
    Statute proscribing possession of marijuana is not violative of equal protection on ground that other commonly used recreational drugs, such as alcohol and tobacco, are not proscribed, even though they may inflict more damage on user than does marijuana.  AS 17.12.010, 17.12.150;
Const. art. 1, 22; U.S.C.A. Const. Amend. 1, 14.

26. Health and Environment 20
    It is not irrational for legislature to regulate those public health areas where it can do so, when other areas exist where controls are less feasible.

27. Drugs and Narcotics 43
    Fact that marijuana may be the least harmful of drugs covered by statute proscribing possession is not alone sufficient to make classification of marijuana with other drugs covered irrational.  AS 17.10.010 et seq., 17.12.010, 17.12.150(3); U.S.C.A. Const. Amends. 1, 14.

28. Constitutional Law 70.3(12)
    Wisdom of statute proscribing possession of marijuana was for legislature, rather than judiciary.  AS 17.10.010 et seq., 17.12.010, 17.12.l50(3).

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