HB 323: "An Act relating to the crimes of assault in the fourth degree and of resisting or interfering with arrest; relating to the determination of time of a conviction; relating to offenses concerning controlled substances; relating to issuance of search warrants; relating to persons found incompetent to stand trial concerning criminal conduct; relating to probation and to restitution for fish and game violations; relating to aggravating factors at sentencing; relating to criminal extradition authority of the governor; removing the statutory bar to prosecution of certain crimes; amending Rule 37(b), Alaska Rules of Criminal Procedure, relating to execution of warrants; and providing for an effective date."
00 HOUSE BILL NO. 323 01 "An Act relating to the crimes of assault in the fourth degree and of resisting or 02 interfering with arrest; relating to the determination of time of a conviction; relating to 03 offenses concerning controlled substances; relating to issuance of search warrants; 04 relating to persons found incompetent to stand trial concerning criminal conduct; 05 relating to probation and to restitution for fish and game violations; relating to 06 aggravating factors at sentencing; relating to criminal extradition authority of the 07 governor; removing the statutory bar to prosecution of certain crimes; amending Rule 08 37(b), Alaska Rules of Criminal Procedure, relating to execution of warrants; and 09 providing for an effective date." 10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 11 * Section 1. AS 11.41.230(b) is amended to read: 12 (b) Except as provided in (c) of this section, assault [ASSAULT] in the
01 fourth degree is a class A misdemeanor. 02 * Sec. 2. AS 11.41.230 is amended by adding new subsections to read: 03 (c) Assault in the fourth degree is a class C felony if the person 04 (1) is convicted under (a)(1) or (2) of this section; and 05 (2) has been previously convicted of a crime in violation of 06 AS 11.41.100 - 11.41.289 or a similar law in another jurisdiction two or more times 07 within the 10 years preceding the date of the present offense. 08 (d) For purposes of this section, the court shall consider the date of a 09 previous conviction as occurring on the date that sentence is imposed for the 10 previous offense. 11 * Sec. 3. AS 11.46.295 is amended to read: 12 Sec. 11.46.295. Prior convictions. For purposes of considering prior 13 convictions in prosecuting a crime of theft under AS 11.46.130(a)(6) or 14 11.46.140(a)(3), or in prosecuting the crime of concealment of merchandise under 15 AS 11.46.220(c), a conviction for an offense under another law or ordinance with 16 similar elements is a conviction of an offense having elements similar to those of an 17 offense defined as such under Alaska law at the time the offense was committed. 18 The court shall consider the date of a prior conviction as occurring on the date 19 that sentence is imposed for the prior offense. 20 * Sec. 4. AS 11.56.700(a) is amended to read: 21 (a) A person commits the crime of resisting or interfering with arrest if, 22 knowing that a peace officer is making an arrest, with the intent of preventing the 23 officer from making the arrest, the person resists personal arrest or interferes with the 24 arrest of another by 25 (1) force; 26 (2) committing any degree of criminal mischief; [OR] 27 (3) any means that creates a substantial risk of physical injury to any 28 person; or 29 (4) disobeying an order of a peace officer. 30 * Sec. 5. AS 11.71.170(b) is amended by adding new paragraphs to read: 31 (30) carisprodol;
01 (31) zolpidem. 02 * Sec. 6. AS 12.35.010(a) is amended to read: 03 (a) A judicial officer may issue a search warrant upon a showing of probable 04 cause, supported by oath or affirmation, and particularly describing the place to be 05 searched and the thing to be seized. The court may issue a search warrant for a 06 place or property located either in the state or outside the state. 07 * Sec. 7. AS 12.35.015(a) is amended to read: 08 (a) A judicial officer may issue a search warrant upon the sworn oral 09 testimony of a person communicated by telephone or other appropriate means, or 10 sworn affidavit transmitted by facsimile machine [, IF THE JUDICIAL OFFICER 11 FINDS THAT THERE IS PROBABLE CAUSE TO BELIEVE THAT 12 (1) THE PRESENTATION OF THE APPLICANT'S AFFIDAVIT 13 OR TESTIMONY PERSONALLY BEFORE THE JUDICIAL OFFICER WOULD 14 RESULT IN A DELAY IN OBTAINING OR EXECUTING A SEARCH 15 WARRANT; AND 16 (2) THE DELAY MIGHT RESULT IN LOSS OR DESTRUCTION 17 OF THE EVIDENCE SUBJECT TO SEIZURE OR MIGHT INTERFERE WITH 18 AN ONGOING INVESTIGATION]. 19 * Sec. 8. AS 12.47.110(a) is amended to read: 20 (a) When the trial court determines by a preponderance of the evidence, in 21 accordance with AS 12.47.100, that a defendant is so incompetent that the defendant 22 is unable to understand the proceedings against the defendant or to assist in the 23 defendant's own defense, the court shall order the proceedings stayed, except as 24 provided in (d) of this section, and shall [MAY] commit the defendant to the custody 25 of the commissioner of health and social services or the commissioner's authorized 26 representative for further evaluation and treatment until the defendant is mentally 27 competent to stand trial, or until the pending charges against the defendant are 28 disposed of according to law, but in no event longer than 90 days. 29 * Sec. 9. AS 12.47.110(b) is amended to read 30 (b) On or before the expiration of the initial 90-day period of commitment 31 the court shall conduct a hearing to determine whether or not the defendant remains
01 incompetent. If the court finds by a preponderance of the evidence that the defendant 02 remains incompetent, the court may recommit the defendant for a second period of 03 90 days. The court shall determine at the expiration of the second 90-day period 04 whether the defendant has become competent. If at the expiration of the second 90- 05 day period the court determines that the defendant continues to be incompetent to 06 stand trial, the charges against the defendant shall be dismissed without prejudice 07 and continued commitment of the defendant shall be governed by the provisions 08 relating to civil commitments under AS 47.30.700 - 47.30.915 unless the defendant 09 is charged with a crime involving force against a person and the court finds that the 10 defendant presents a substantial danger of physical injury to other persons and that 11 there is a substantial probability that the defendant will regain competency within a 12 reasonable period of time, in which case the court may extend the period of 13 commitment for an additional six months. If the defendant remains incompetent at 14 the expiration of the additional six-month period, the charges shall be dismissed 15 without prejudice and [EITHER] civil commitment proceedings shall be instituted 16 [OR THE COURT SHALL ORDER THE RELEASE OF THE DEFENDANT]. If 17 the defendant remains incompetent for five years after the charges have been 18 dismissed under this subsection, the defendant may not be charged again for an 19 offense arising out of the facts alleged in the original charges, except if the original 20 charge is a class A felony or unclassified felony. 21 * Sec. 10. AS 12.47.110 is amended by adding a new subsection to read: 22 (e) A defendant found to be incompetent to proceed under this section is 23 rebuttably presumed to be mentally ill and to present a likelihood of serious harm to 24 self or others in proceedings under AS 47.30.700 - 47.30.815. In evaluating whether 25 a defendant is likely to cause serious harm, the court may consider as recent behavior 26 the conduct with which the defendant was originally charged. 27 * Sec. 11. AS 12.55.090(a) is amended to read: 28 (a) Probation may be granted whether the offense [CRIME] is punishable by 29 fine or imprisonment or both. If an offense [A CRIME] is punishable by both fine 30 and imprisonment, the court may impose a fine and place the defendant on probation 31 as to imprisonment. Probation may be limited to one or more counts or indictments,
01 but, in the absence of express limitation, shall extend to the entire sentence and 02 judgment. 03 * Sec. 12. AS 12.55.135(c) is amended to read: 04 (c) A defendant convicted of assault in the fourth degree that is a 05 misdemeanor and a crime involving domestic violence committed in violation of 06 the provisions of an order issued or filed under AS 12.30.027 or AS 18.66.100 - 07 18.66.180 and not subject to sentencing under (g) of this section shall be sentenced 08 to a minimum term of imprisonment of 20 days. 09 * Sec. 13. AS 12.55.135(d) is amended to read: 10 (d) A defendant convicted of assault in the fourth degree that is a 11 misdemeanor or harassment in the first degree who knowingly directed the conduct 12 constituting the offense at 13 (1) a uniformed or otherwise clearly identified peace officer, fire 14 fighter, correctional employee, emergency medical technician, paramedic, 15 ambulance attendant, or other emergency responder or medical professional who was 16 engaged in the performance of official duties at the time of the assault or harassment 17 shall be sentenced to a minimum term of imprisonment of 18 (A) 60 days if the defendant violated AS 11.41.230(a)(1) or 19 (2) or AS 11.61.118; 20 (B) 30 days if the defendant violated AS 11.41.230(a)(3); 21 (2) a person who was on school grounds during school hours or 22 during a school function or a school-sponsored event, on a school bus, at a school- 23 sponsored event, or in the administrative offices of a school district, if students are 24 educated at that office, shall be sentenced to a minimum term of imprisonment of 60 25 days if the defendant violated AS 11.41.230(a)(1) or (2); in this paragraph, 26 (A) "school bus" has the meaning given in AS 11.71.900; 27 (B) "school district" has the meaning given in AS 47.07.063; 28 (C) "school grounds" has the meaning given in AS 11.71.900. 29 * Sec. 14. AS 12.55.135(g) is amended to read: 30 (g) A defendant convicted of assault in the fourth degree that is a 31 misdemeanor and a crime involving domestic violence shall be sentenced to a
01 minimum term of imprisonment of 02 (1) 30 days if the defendant has been previously convicted of a crime 03 against a person or a crime involving domestic violence; 04 (2) 60 days if the defendant has been previously convicted two or 05 more times of a crime against a person or a crime involving domestic violence, or a 06 combination of those crimes. 07 * Sec. 15. AS 12.55.155(c)(8) is amended to read: 08 (8) the defendant's prior criminal history includes conduct involving 09 aggravated or repeated instances of assaultive behavior; in this paragraph, 10 "aggravated assaultive behavior" means assault that is a felony under AS 11.41, 11 or a similar provision in another jurisdiction; 12 * Sec. 16. AS 12.55.155(f) is amended to read: 13 (f) If the state seeks to establish a factor in aggravation at sentencing 14 (1) under (c)(7), (8), (12), (15), (18)(B), (19), (20), (21), or (31) of 15 this section, or if the defendant seeks to establish a factor in mitigation at sentencing, 16 written notice must be served on the opposing party and filed with the court not later 17 than 10 days before the date set for imposition of sentence; the factors in aggravation 18 listed in this paragraph and factors in mitigation must be established by clear and 19 convincing evidence before the court sitting without a jury; all findings must be set 20 out with specificity; 21 (2) other than one listed in (1) of this subsection, the factor shall be 22 presented to a trial jury under procedures set by the court, unless the defendant 23 waives trail by jury, stipulates to the existence of the factor, or consents to have the 24 factor proven under procedures set out in (1) of this subsection; a factor in 25 aggravation presented to a jury is established if proved beyond a reasonable doubt; 26 written notice of the intent to establish a factor in aggravation must be served on the 27 defendant and filed with the court 28 (A) 20 days before trial, or at another time specified by the 29 court; 30 (B) within 48 hours, or at a time specified by the court, if the 31 court instructs the jury about the option to return a verdict for a lesser
01 included offense; or 02 (C) five days before entering a plea that results in a finding of 03 guilt, or at another time specified by the court. 04 * Sec. 17. AS 12.70.280(2) is amended to read: 05 (2) "governor" includes 06 (A) a person performing the functions of governor by 07 authority of the law of this state; and 08 (B) a person on the governor's staff appointed by the 09 governor to act on behalf of the governor in performing extradition 10 duties under this chapter; the appointment shall be in writing and filed 11 with the lieutenant governor; 12 * Sec. 18. AS 16.05.925(b) is amended to read: 13 (b) In addition to a penalty imposed under (a) of this section or any other 14 penalty for violation of this title or a regulation adopted under this title, a person 15 who is convicted of unlawfully taking an animal listed in this subsection may be 16 ordered by the court to pay restitution to the state in the amount set out in this 17 subsection for each animal unlawfully taken: 18 (1) Bear, black........................................................................$ 600 19 (2) Bear, brown or grizzly.......................................................1,300 20 (3) Bison..................................................................................1,300 21 (4) Caribou.................................................................................850 22 (5) Deer......................................................................................400 23 (6) Elk.........................................................................................800 24 (7) Goat......................................................................................800 25 (8) Moose................................................................................1,000 26 (9) Musk oxen.........................................................................3,000 27 (10) Sheep...............................................................................1,100 28 (11) Wolf....................................................................................500 29 (12) Wolverine..........................................................................500. 30 * Sec. 19. AS 47.30.780 is amended to read: 31 Sec. 47.30.780. Early discharge. Except as provided in (b) of this section,
01 the [THE] professional person in charge shall at any time discharge a respondent on 02 the ground that the respondent is no longer gravely disabled or likely to cause serious 03 harm as a result of mental illness. A certificate to this effect shall be sent to the court 04 which shall enter an order officially terminating the involuntary commitment. 05 * Sec. 20. AS 47.30.780 is amended to add a new subsection to read: 06 (b) The professional person in charge shall give the prosecuting authority 10 07 days notice before discharging a respondent who was committed after having been 08 found incompetent to proceed under AS 12.47.110. 09 * Sec. 21. AS 11.71.310, AS 12.20.010, and AS 12.35.015(f) are repealed. 10 * Sec. 22. The uncodified law of the State of Alaska is amended by adding a new section 11 to read: 12 DIRECT COURT RULE AMENDMENT. Rule 37(b), Alaska Rules of 13 Criminal Procedure, is amended to read: 14 (b) Execution and Return with Inventory. The warrant shall be executed 15 and returned within a reasonable time [10 DAYS] after its date as determined by 16 the court based on the circumstances of the investigation. Upon [HOWEVER, 17 UPON] sworn application made before the expiration of the initial [10 DAY] period 18 or any subsequent extension, the court may for good cause extend the execution 19 period for a reasonable time [NOT TO EXCEED 10 DAYS]. Good cause includes 20 protecting the confidentiality of an ongoing investigation and protecting a 21 person working with law enforcement authorities on an investigation. The 22 officer taking property under the warrant 23 (1) shall give to the person from whom or from whose premises the 24 property was taken a copy of the warrant, a copy of the supporting affidavits, and 25 receipt for the property taken, or 26 (2) shall leave the copies and the receipt at the place from which the 27 property was taken. 28 The return shall be made promptly and shall be accompanied by a written 29 inventory of any property taken as a result of the search pursuant to or in conjunction 30 with the warrant. The inventory shall be made in the presence of the applicant for 31 the warrant and the person from whose possession or premises the property was
01 taken, if they are present, or in the presence of at least one credible person other than 02 the applicant for the warrant or the person from whose possession or premises the 03 property was taken, and shall be signed by the officer under the penalty of perjury 04 pursuant to AS 09.63.020 or sworn to in front of a magistrate or judge, or a notary 05 public. The magistrate or judge or the court to which the return is made shall upon 06 request deliver a copy of the inventory to the person from whom or from whose 07 premises the property was taken and to the applicant for the warrant. 08 * Sec. 23. The uncodified law of the State of Alaska is amended by adding a new section 09 to read: 10 APPLICABILITY. (a) Sections 1, 2, 4, 5, 11 - 16, 18, and 21 of this Act apply to an 11 offense occurring on or after the effective date of this Act. 12 (b) Section 3 of this Act applies to an offense occurring before, on, or after the 13 effective date of this Act. 14 (c) Sections 6, 7, and 22 of this Act apply to search warrants applied for on or after 15 the effective date of this Act, regardless of whether the offense occurred before, on, or after 16 the effective date of this Act. 17 (d) Sections 8 - 10, 19, and 20 of this Act apply to procedures occurring after the 18 effective date of this Act, regardless of whether the offense occurred before, on, or after the 19 effective date of this Act. 20 (e) Section 17 of this Act applies to applications for criminal extradictions submitted 21 on or after the effective date of this Act, regardless of whether the offense occurred before, 22 on, or after the effective date of this Act. 23 * Sec. 24. This Act takes effect July 1, 2008.