Number 6 August 22, 1972

Number 6 August 22, 1972 Honorable William J. Bicknell, M.D. Commissioner of Public Health 600 Washington Street Boston, Massachusetts 02111 Dear Commissioner Bicknell: You have requested my opinion whether the Department of Public Health is required to test every marihuana sample submitted to it by law enforcement officials to determine the percentage of tetrahydrocan- nabinol which it contains. General Laws, c. Ill, § 12 provides: "It [the Department of Public Health] shall make, free of charge, a chemical analysis of any narcotic drug, or any prep- aration containing the same, or any salt or compound thereof, and of any poison, drug, medicine or chemical, when submit- ^ Rule 3(3) of the Civil Service Rule^ provides that a list of all offices or positions designated as official service and any amendments or additions thereto, "shall be on file in the office of the Division of Civil Service, which list shall be open to reasonable inspection by the public . . ." P.D. 12 51 ted to it by police authorities or by such incorporated charita- ble organizations in the commonwealth, as the department shall approve for this purpose: provided, that it is satisfied that the analysis is to be used for the enforcement of law." General Laws, c. 94C (the controlled Substances Act). § 1 defines marihuana as follows: "[A]ll parts of the plant Cannabis sativa L., whether grow- ing or not: the seeds thereof: and resin extracted from any part of the plant: and every compound, manufacture, salt, de- rivative, mixture or preparation of the plant, its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt derivative, mixture or preparation of the mature stalks, except the resin extracted therefrom, fiber, oil or cake of the sterilized seed of the plant which is incapable of germination." Section 1 also defines tetrahydrocannabinol as follows: "[TJetrahydrocannabinol or preparations containing tet- rahydrocannabinol excluding marihuana except when it has been established that the concentration of delta-9 tetrahy- drocannabinol in said marihuana exceeds two and one half per cent." Thus, in order to determine whether a particular controlled substance is to be regarded as marihuana or tetrahydrocannabinol, it must be "es- tablished that the concentration of delta-9 tetrahydrocannabinol in said marihuana exceeds two and one half per cent." It is my understanding that a quantitative chemical analysis is necessary to establish the correct concentration level. Therefore, in direct response to your questions, it is my opinion that the Department of Public Health must test every marihuana sample submitted to it by law enforcement officials if said officials expressly re- quest such a test and the Department "is satisfied that the analysis is to be used for the enforcement of law." G. L. c. 11 1, § 12. In reaching that determination, the Department may require a statement of facts suffi- cient to establish the purpose of the test. ,, ^ , Very truly yours, ROBERT H. QUINN Attorney General Number? August 23, 1972 Mr. Martin P. Davis, Chairman Advisory Board of Pardons Leverett Saltonstall Building 100 Cambridge Street Boston, Massachusetts 02202 Dear Mr. Davis: You have requested an opinion whether a prisoner serving a sentence containing a minimum sentence, for a crime committed while on parole, 52 P.D. 12 may be paroled when he has served two-thirds of such minimum. For the reasons stated hereinafter, I answer your question in the affirmative. Your question involves an interpretation of G. L. c. 127, § 133, clause (c). Section 133 provides: "Parole permits may be granted by the parole board to prisoners subject to its jurisdiction at such time as the board in each case may determine; provided (a) that no prisoner, convicted for a violation of section thirteen, thirteen B, four- teen, fifteen, fifteen A, fifteen B, sixteen, seventeen, eight- een, eighteen A, nineteen, twenty, twenty-one, twenty-two, twenty-two A, twenty-three, twenty-four, twenty-four B, twenty-five, or twenty-six of chapter two hundred and sixty- five, or section seventeen, thirty-five, or thirty-five A of chapter two hundred and seventy-two, or for an attempt to commit any crime referred to in said sections, and held under a sentence containing a minimum sentence shall receive a parole permit until he shall have served two thirds of such minimum sentence, but in any event not less than two years or if he has two or more sentences to be served otherwise than concurrently, two thirds of the aggregate of the minimum terms of such several sentences, but in any event not less than two years for each such sentence; provided, further, however, that upon the written recommendation of the superintendent or the director of the prison camp, and the commissioner of correction, and, with the consent and ap- proval of a majority of the full parole board, such a prisoner shall become eligible for parole consideration, and, with like consent and approval, may be given a parole permit before such time, but in any event not sooner than such a parole permit may be granted to other prisoners under clause (b) of this section; (h) that no other prisoner held under a sentence containing a minimum sentence shall receive a parole permit until he shall have served one third of such minimum sen- tence, but in any event not less than one year, or, if he has two or more sentences to be served otherwise than concur- rently, one third of the aggregate of the minimum terms of such several sentences, but in any event not less than one year for each such sentence; (c) that no prisoner held under a sentence containing a minimum sentence for a crime commit- ted while on parole shall receive a parole permit until he shall have served two thirds of such minimum sentence, or, if he has two or more sentences to be served otherwise than con- currently for offenses committed while on parole, two thirds of the aggregate of the minimum terms of such several sen- tences, but in any event not less than two years for each such sentence. Notwithstanding clauses (a), (/?) and (c) of this sec- tion, deductions shall be allowed for blood donations as pro- vided in section one hundred and twenty-nine A, and deduc- P.D. 12 53 tions shall be allowed for time confined in a prison camp as provided in section one hundred and twenty-nine C, said de- ductions to reduce the term of imprisonment by computing said additional deductions and subtracting the same from the minimum term of sentence for release on parole as authorized by this section, or for reducing the term of imprisonment by deduction from the maximum term for which he may be held under his sentence or sentences." The section sets forth the eligibility and requisites for parole permits granted by the Parole Board. Clause (a) appertains to parole require- ments following conviction of one or several violent or morally rep- rehensible crimes. More narrowly, it applies where a convicted person is held under a sentence for such crimes and the sentence provides for a minimum sentence. The provisions of clause (b) relate to non-violent and non-lascivious criminal offenses. Clause (c) focuses on parole eligi- bility for a person convicted of a crime while on parole. As with clause (a), clauses (b) and (c) apply only to those instances where the sentences contain mandatory minimums. Clauses (a), (b) and (c) each distinguish, for parole purposes, between detention under single and concurrent sentences on the one hand and multiple sentences on the other. Clauses (a) and (b) expressly provide that a prisoner may not be paroled prior to confinement under single or concurrent sentences for two years and one year respectively, despite the fact that he may have satisfied the two-thirds minimum requirement of clause (a) or its one-third counterpart in clause (b). Clause (c) con- tains no such qualification on its two-thirds minimum requirement for single or concurrent sentences. Such omission in clause (c) appears pur- poseful. Clauses (a), (b) and (c) each contain minimum requirements for parole under multiple sentences. In turn, each provides absolute yearly minimums [two years for each sentence in clause (a), one year for each sentence in clause (b) and two years for each sentence in clause (c) ] for parole eligibility, which absolute minimums take precedence over the more general two-thirds aggregate [clause (a) ], one-third aggregate [clause (b) ] and two-thirds aggregate [clause (c) ]. In providing for such absolute yearly minimums for multiple sentences, all three clauses emp- loy the same language and grammatical construction. in clause (a), the yearly minimum figure is two years for both single or concurrent sentences on the one hand and multiple sentences on the other. Clause (b) employs a one-year yearly minimum figure. However, both clauses (a) and (b) contain separate identical yearly minimum fig- ures immediately following the references to the language concerning single, concurrent and multiple sentences. Clause (c) contains only a single yearly minimum figure and this is annexed to the multiple sen- tence language. Consequently, to postulate that in clause (c) the yearly minimum fig- ure which directly follows the multiple sentence provision modifies mul- 54 P.D. 12 tiple as well as single and concurrent sentences is to characterize the separate yearly minimum figure for single and concurrent sentences in Clause (a) and (b) as mere surplusage. If the General Court had in- tended the yearly minimum figure which follows the multiple sentence language in all three clauses to apply to all three categories of sentences, it would have been unnecessary to insert a separate yearly minimum fig- ure immediately following the single and concurrent sentence language in clauses (a) and (b). In my view, had the General Court intended the yearly minimum fig- ure of clause (c) to apply to single and concurrent sentences referred to in that clause, it would either have inserted a separate but identical fig- ure to modify such sentences as was done in clauses (a) and (b) or it would have altered the language and structure of the modifying phrase containing the yearly figure which immediately follows its provisions on multiple sentences. As indicated supra, clauses (a), (b) and (c) contain identical language and grammatical construction following their multiple sentence language, and it has been established that in clause (a) and (b) the yearly minimum figure contained in that phrase directly modifies multiple sentences only. It must be assumed that by employing the iden- tical phrase in clause (c), the General Court only intended that the yearly figure contained therein modify multiple sentences. Thus, it is my opinion that a prisoner serving a sentence or several sentences concurrently containing a minimum sentence, for a crime committed while on parole, may be paroled when he has served two- thirds of such minimum, even if such portion is less than two years. Very truly yours, ROBERT H. QUINN Attorney General Numbers August 31, 1972 Honorable Daniel P. McGillicuddy Commissioner of Commerce and Development Leverett Saltonstall Building 100 Cambridge Street Boston, Massachusetts 02202 Dear Commissioner McGillicuddy: You have requested my opinion whether operation of a glass con- tainer manufacturing plant by The Foster-Forbes Glass Company, an Indiana corporation, in Milford, Massachusetts would be prohibited by the provisions of G. L. c. 136, § 5, or whether the operation falls within the exception contained in section 6 of that chapter. For the reasons stated hereinafter, I conclude that such operation would fall within the exception of section 6. It is the representation of Foster-Forbes that a glass container factory requires continuous operation, twenty-four hours a day, seven days a P.D. 12 55 week, with the exception of three holidays, including Christmas. The facts show that a glass furnace contains an average of three hundred fifty tons of molten glass which is kept at a temperature of 2,750 degrees farenheit. fired by what is called a regenerative system. These furnaces remain at such a temperature for their entire life, which approximates five to eight years. Glass is drawn from these furnaces at the ratio of about half the tonnage capacity daily throughout the life of the furnace except for the three holidays mentioned. Shutdowns are extremely costly, because of the high start-up expense, diminish the life of the fur- nace, and may even cause complete loss of the furnace. Frequent shut- downs would place such a glass container factory at a severe economic disadvantage vis-a-vis similar operations elsewhere. While I would ordinarily decline to express an opinion as to the appli- cation of a criminal statute to a private corporation, it is clear that you, as Commissioner, have supervision and control over a department which has as one of its principal purposes "[pjromoting, developing and expanding the economy, the commerce, [and] the industry ... of the commonwealth . . ."' G. L. c. 23A, § 2. Your department has been ac- tive in the negotiations which have led Foster-Forbes to consider the Commonwealth as a site for its plant, and continued activity on the part of the department is dependent upon the answer to the question you pose. I therefore proceed to answer it on that basis. An analysis of the applicable statutes provides the short answer to your question. General Laws, c. 136, § 5 provides: "Whoever on Sunday keeps open his shop, warehouse, factory or other place of business, or sells foodstuffs, goods, wares, merchandise or real estate, or does any manner of labor, business or work, except works of necessity and char- ity, shall be punished by a fine of not less than twenty dollars nor more than one hundred dollars for a first offense, and a fine of not less than fifty dollars nor more than two hundred dollars for each subsequent offense, and each unlawful act or sale shall constitute a separate offense." General Laws, c. 136, § 6 provides, in pertinent part: "Section five shall not prohibit the following: ***** (6) . . . [MJanufacturing processes which for technical reasons require continuous operation. . . ." Based on the facts recited supra, it is my opinion that a glass con- tainer factory is a manufacturing process "which for technical reasons require[s] continuous operation." I conclude, therefore, that the opera- tion of such a plant falls within the exception of G. L. c. 136, § 6(6). Very truly yours, ROBERT H. QUINN Attorney General 56 P.D. 12