04/11/2019 03:30 PM Senate STATE AFFAIRS

        SB  32-CRIMES; SENTENCING;MENT. ILLNESS;EVIDENCE                                                                    
                                                                                                                                
4:32:50 PM                                                                                                                    
CHAIR   SHOWER  reconvened   the   meeting   and  announced   the                                                               
consideration of SENATE BILL NO.  32 "An Act relating to criminal                                                               
law and  procedure; relating  to controlled  substances; relating                                                               
to  probation; relating  to sentencing;  relating  to reports  of                                                               
involuntary  commitment;   amending  Rule  6,  Alaska   Rules  of                                                               
Criminal Procedure; and providing for an effective date."                                                                       
                                                                                                                                
CHAIR SHOWER noted  that the committee last heard  the bill April                                                               
9 and  that James  Stinson, Director  of Public  Advocacy, Robert                                                               
Henderson from  the Department  of Law,  and several  people from                                                               
the  Department  of  Public  Safety   were  available  to  answer                                                               
questions.                                                                                                                      
                                                                                                                                
4:33:53 PM                                                                                                                    
SENATOR KAWASAKI  said part of the  bill deals with DNA  swabs at                                                               
the time of arrest. He asked for the thoughts behind that.                                                                      
                                                                                                                                
4:34:23 PM                                                                                                                    
KATHY  MONFREDA,  Director,  Statewide  Services,  Department  of                                                               
Public Safety  (DPS), Anchorage,  Alaska, said the  law requiring                                                               
the collection of  DNA at the time of arrest  was passed in 2007.                                                               
It was  a lobbying effort by  Karen Foster, the mother  of Bonnie                                                               
Craig.  She   was  passionate  about  it.   Senator  Wielechowski                                                               
introduced the amendment to a bill.  The power behind it was that                                                               
had the law  been in effect the murder could  have been solved 12                                                               
years earlier.                                                                                                                  
                                                                                                                                
SENATOR KAWASAKI noted  that this is a person's first  time to be                                                               
arrested  for  any  sort  of  crime.  Now  the  penalty  for  not                                                               
providing  DNA  at  the  time  of   arrest  will  be  a  class  A                                                               
misdemeanor. He asked if there had been a penalty before.                                                                       
                                                                                                                                
MS. MONFREDA  replied it currently  is not  a crime to  refuse to                                                               
submit a  DNA sample at  the time of arrest.  It is only  a crime                                                               
for refusal on felony arrests.                                                                                                  
                                                                                                                                
SENATOR KAWASAKI asked what happens to  the DNA taken at the time                                                               
of arrest, where it  is stored, if it is analyzed  at the time of                                                               
arrest, and what happens to it if the person isn't arraigned.                                                                   
                                                                                                                                
MS. MONFREDA said current law is  that if the person is not found                                                               
guilty, the person  can request a court order to  have the sample                                                               
destroyed. The  samples are  analyzed and  entered into  a system                                                               
called  CODIS run  by the  FBI. It  is in  an encrypted,  private                                                               
network. Once the  person gets a court order, the  crime lab gets                                                               
a copy and  then destroys the sample,  documents the destruction,                                                               
and  notifies the  court and  the defendant's  attorney that  the                                                               
sample has been destroyed.                                                                                                      
                                                                                                                                
4:38:02 PM                                                                                                                    
SENATOR KAWASAKI asked if people  arrested for disorderly conduct                                                               
would need to  submit to a buccal swab that  would be uploaded to                                                               
CODIS automatically.                                                                                                            
                                                                                                                                
MICHAEL  DUXBURY,  Deputy   Commissioner,  Department  of  Public                                                               
Safety  (DPS),  Anchorage,  Alaska,  said no.  That  would  be  a                                                               
misdemeanor which does  not require a buccal sample  to be taken.                                                               
The requirement applies to serious felonies.                                                                                    
                                                                                                                                
SENATOR KAWASAKI asked if it had to be a crime against a person.                                                                
                                                                                                                                
MR. DUXBURY deferred to the Department of Law.                                                                                  
                                                                                                                                
4:39:16 PM                                                                                                                    
ROBERT  HENDERSON, Deputy  Attorney  General, Criminal  Division,                                                               
Department  of Law,  Anchorage, Alaska,  said disorderly  conduct                                                               
would not be a qualifying  offense under AS 44.41.035(b). This is                                                               
applicable to  AS 11.41 crimes  against a person  offenses, Title                                                               
11 felonies, and Title 28 DUI felonies.                                                                                         
                                                                                                                                
CHAIR SHOWER  asked what proof  there is  that the data  has been                                                               
truly destroyed and can never be retrieved or used again.                                                                       
                                                                                                                                
MS.  MONFREDA  said  her  understanding   is  that  the  data  is                                                               
destroyed. It is removed from CODIS and is not accessible.                                                                      
                                                                                                                                
CHAIR  SHOWER said  that is  a good  answer for  the record.  The                                                               
reality is that it is probably out there somewhere.                                                                             
                                                                                                                                
4:41:35 PM                                                                                                                    
SENATOR  REINBOLD   said  she  likes  that   there  are  bookends                                                               
regarding collecting the DNA sample.  She asked for clarification                                                               
about the point at which a DNA sample is required.                                                                              
                                                                                                                                
MR.   HENDERSON  replied   that   the  types   of  offenses   and                                                               
circumstances under  which a  DNA sample  is required  is spelled                                                               
out in AS 44.41.035(b). First it  is a person convicted of crimes                                                               
against a  person or  a felony under  AS l1, AS  28.35, or  a law                                                               
with elements  similar to  crimes against a  person or  a felony;                                                               
(2) would  be a minor  adjudicated of  a delinquent if  the minor                                                               
was 16  years of  age or  older and committed  a crime  against a                                                               
person  or  a  felony;  (3)  is a  voluntary  donor;  (4)  is  an                                                               
anonymous  DNA  donor used  for  forensic  validation; (5)  is  a                                                               
person  required  to   register  as  a  sex   offender  or  child                                                               
kidnapper; and (6) is what SB  32 talks about - a person arrested                                                               
for a  crime against a person  under Title 11.41, a  felony under                                                               
Title 11 or a felony under AS 28.35.                                                                                            
                                                                                                                                
SENATOR  REINBOLD asked  if someone  convicted of  vehicle theft,                                                               
burglary,  or purse  snatching would  have to  give a  DNA sample                                                               
under current law.                                                                                                              
                                                                                                                                
MR. HENDERSON  said it  depends on the  type of  offense. Someone                                                               
convicted of felony-level  theft would be required to  give a DNA                                                               
sample upon conviction  whereas a purse snatching  depends on the                                                               
ultimate charge  and conviction. A  theft against a  person under                                                               
theft in the second degree is a C felony and would be covered.                                                                  
                                                                                                                                
SENATOR  REINBOLD  said you  keeps  saying  "at conviction."  She                                                               
generally supports  the concept  of getting  more DNA  samples to                                                               
help  reduce wrongful  convictions, help  get to  a verdict  more                                                               
quickly, and  help reduce pretrial  delays, as long as  there are                                                               
parameters. She asked what the parameters are for SB 32.                                                                        
                                                                                                                                
4:45:48 PM                                                                                                                    
MR. HENDERSON  said the three  big categories for which  DNA will                                                               
be collected are  any felony arrest or crime against  a person or                                                               
felony DUI. It  is a powerful and effective  law enforcement tool                                                               
as Ms.  Monfreda described  in her  initial testimony.  There are                                                               
several  safeguards  or sideboards  on  the  information that  is                                                               
collected.  He  has  talked  about  a  couple  of  them.  Another                                                               
safeguard is that federal law imposes  a $250,000 fine or up to a                                                               
year in  jail for any  unauthorized disclosure of  information in                                                               
CODIS.                                                                                                                          
                                                                                                                                
SENATOR  REINBOLD   asked  if  there  is   any  correlation  with                                                               
fingerprints and  DNA. She asked  if they are allowed  to collect                                                               
fingerprints or would  that be part of a warrant.  She asked if a                                                               
swab is  taken under SB  32 and someone  is not convicted,  can a                                                               
person use the court rule to  get the fingerprints and DNA sample                                                               
destroyed.                                                                                                                      
                                                                                                                                
MR.  HENDERSON answered  that if  a  person is  not convicted  or                                                               
charges are  not filed,  that person can  have the  DNA destroyed                                                               
and not  put into CODIS.  If the person is  ultimately acquitted,                                                               
the  same  process would  apply.  He  asked  her to  restate  the                                                               
question about fingerprinting.                                                                                                  
                                                                                                                                
SENATOR REINBOLD  asked if  fingerprints can  be taken  at arrest                                                               
and is there is correlation between fingerprints and DNA.                                                                       
                                                                                                                                
MR. HENDERSON  said the  constitution allows  the police  to take                                                               
certain  routine   administrative  steps  during   processing  or                                                               
booking. That  includes getting biographical information  such as                                                               
name  and date  of birth,  photographing, and  fingerprinting and                                                               
for one of the qualifying offenses, taking the buccal swab.                                                                     
                                                                                                                                
CHAIR SHOWER  said he'd  like to hear  about the  safeguards from                                                               
the Department  of Public  Safety in an  e-mail that  spells them                                                               
out clearly  so that the  committee and then Judiciary  will know                                                               
exactly  what those  bookends are.  He  also asked  if any  other                                                               
states have  had this kind  of provision  and if there  have been                                                               
any constitutional issues or legal  challenges. He asked for that                                                               
information to be provided in written format.                                                                                   
                                                                                                                                
CHAIR  SHOWER  asked  Mr.  Steiner to  comment  from  the  public                                                               
defender  side  about  the  proposals  in  SB  32  regarding  DNA                                                               
collection, use, and destruction.                                                                                               
                                                                                                                                
4:50:33 PM                                                                                                                    
QUINLAN STEINER, Public Defender,  Public Defender Agency, Alaska                                                               
Department of  Administration, Anchorage, Alaska, said  the issue                                                               
is that  the crime occurs at  arrest. The bill could  elevate the                                                               
situation  significantly  because  it covers  all  11.41  crimes,                                                               
which  includes  misdemeanor  assaults  in the  lowest  level  of                                                               
crimes against  a person. He did  not know how that  would relate                                                               
to  the dismissal  of charges.  Someone could  be convicted  of a                                                               
crime  of failing  to  provide.  Charges may  not  even be  filed                                                               
against  the  original,  low-level  fear assault  that  could  be                                                               
stemming  from just  an argument.  A disorderly  conduct may  not                                                               
apply, but arguments can develop  into fear assaults because of a                                                               
raised fist  in a  bar. It  often doesn't  go anywhere,  but that                                                               
could result in the conviction  of somebody for failing to supply                                                               
the  sample.  Then that  person  has  to affirmatively  seek  its                                                               
destruction.  That doesn't  happen automatically.  It is  a whole                                                               
other  process that  the  person  may not  be  in  a position  to                                                               
pursue. This  elevates things to  a level that the  committee may                                                               
not want.                                                                                                                       
                                                                                                                                
CHAIR  SHOWER  asked Mr.  Henderson  to  comment or  counter  Mr.                                                               
Steiner's view. He  asked if the evidence would  be admissible if                                                               
a  sample  was  taken  after  arrest  and  that  person  was  not                                                               
convicted  but the  DNA  provided  a hit  on  another crime.  The                                                               
committee  is concerned  about using  data appropriately,  making                                                               
sure it is protected constitutionally,  and not violating rights,                                                               
he said.                                                                                                                        
                                                                                                                                
MR. HENDERSON said an argument  can lead to a misdemeanor assault                                                               
in the fourth degree, but it has  to be more than an argument. It                                                               
has  to  have  recklessly  placed someone  in  fear  of  physical                                                               
injury. There has  to be an affirmative step, which  is how it is                                                               
distinguished  from disorderly  conduct,  which is  not an  11.40                                                               
crime.                                                                                                                          
                                                                                                                                
MR. HENDERSON  said that  if DNA  is taken in  good faith  by law                                                               
enforcement  and results  in that  person becoming  a suspect  in                                                               
another crime,  the DNA match  is unlikely to be  suppressed. The                                                               
statute talks about that scenario.                                                                                              
                                                                                                                                
MR.  HENDERSON said  the person  has to  affirmatively refuse  to                                                               
provide, so it  does create a new crime, but  in his professional                                                               
judgement, it  would encourage  people to  submit their  DNA. The                                                               
person is required by law to  submit their DNA and being reminded                                                               
of  that  will encourage  the  person  to  comply with  the  pre-                                                               
existing state of the law. Right now the incentive is missing.                                                                  
                                                                                                                                
CHAIR  SHOWER expressed  concern that  it  could be  part of  the                                                               
lowest level of  crime. He wondered how big a  hammer they wanted                                                               
to wield,  depending on the level  of the crime. He  is trying to                                                               
find  a balance.  He addressed  Ms.  Monfreda to  make sure  that                                                               
somebody  would get  back to  him with  the information  he asked                                                               
for. He said the committee also  may not have gotten an answer to                                                               
Senator  Reinbold's question  about  what happens  if someone  is                                                               
arrested versus convicted.                                                                                                      
                                                                                                                                
MR. STEINER  pointed out that a  person is entitled to  talk to a                                                               
lawyer before refusing  to submit to a breathalyzer  sample for a                                                               
DUI.  If this  passes, it  would certainly  raise that  prospect.                                                               
That can be a substantial time  process. Someone has the right to                                                               
engage a  lawyer right  there on the  spot before  refusing. That                                                               
DUI scenario may extend to this process as well.                                                                                
                                                                                                                                
CHAIR  SHOWER  said that  is  in  line  with his  question  about                                                               
whether other states have enacted  something similar and if there                                                               
have been constitutional or legal challenges.                                                                                   
                                                                                                                                
4:56:57 PM                                                                                                                    
MR. HENDERSON said  that Alaska is not unique. All  50 states use                                                               
CODIS, the  Combined DNA Index  System maintained by the  FBI. As                                                               
of  2018, 31  states  have DNA  collection laws  at  the time  of                                                               
arrest.  Most   states  define  what  is   a  qualifying  offense                                                               
differently. There have  been legal challenges. The  ones he read                                                               
this morning about legal challenges  for misdemeanor arrests as a                                                               
qualifying  offense have  not been  successful. The  U.S. Supreme                                                               
Court has  definitively held that  it is  not a violation  of the                                                               
Fourth Amendment  to collect  someone's DNA  upon arrest  if they                                                               
are charged with a serious  offense. The question becomes what is                                                               
the  definition of  "serious  offense." That  is  what the  lower                                                               
courts  are  struggling  with  now.   Other  states  have  upheld                                                               
misdemeanor violent offenses as qualifying offenses.                                                                            
                                                                                                                                
CHAIR SHOWER  asked Ms.  Monfreda if she  had gotten  his request                                                               
about  providing  written  information   about  the  bookends  or                                                               
guardrails  in SB  32 regarding  privacy  protections related  to                                                               
providing DNA.                                                                                                                  
                                                                                                                                
MS. MONFREDA said  she would coordinate with the  lab DNA experts                                                               
to provide the safeguard steps in writing.                                                                                      
                                                                                                                                
SENATOR KAWASAKI asked for someone  from the Department of Law to                                                               
contact  him to  discuss his  concerns about  the language  about                                                               
terroristic   threatening.  He   had  some   questions  for   law                                                               
enforcement regarding  the Title 47  process and the  request for                                                               
the  Department of  Public Safety  to  receive all  records of  a                                                               
person adjudicated of a mental  illness or incompetence issued on                                                               
or after October  1, 1981. Legislative Legal  Services said there                                                               
might  be due  process  issues for  people  who committed  crimes                                                               
prior  to 2014  under the  Brady handgun  bill. That  says it  is                                                               
illegal to  dispose of  or sell  a firearm  or ammunition  to any                                                               
individual  adjudicated  of  a  mental defect  or  who  has  been                                                               
committed to a mental institution.                                                                                              
                                                                                                                                
CHAIR  SHOWER  asked  Mr.  Henderson if  he  could  provide  that                                                               
information to the committee in writing.                                                                                        
                                                                                                                                
MR. HENDERSON said yes.                                                                                                         
                                                                                                                                
CHAIR SHOWER  asked Ms.  Monfreda to  provide the  information as                                                               
well.                                                                                                                           
                                                                                                                                
MS. MONFREDA agreed.                                                                                                            
                                                                                                                                
CHAIR SHOWER  asked Mr.  Steiner to share  anything he  needed to                                                               
with the committee.                                                                                                             
                                                                                                                                
MR. STEINER said certainly.                                                                                                     
                                                                                                                                
5:01:48 PM                                                                                                                    
SENATOR REINBOLD  said this is  a powerful tool and  the bookends                                                               
are  really  important. There  are  provisions  to have  the  DNA                                                               
destroyed  for  wrongful  or non-convictions  or  dropped  cases.                                                               
There  is a  $250,000 fine  for  misuse of  the information.  She                                                               
asked Mr.  Steiner and  Mr. Henderson if  this could  help ensure                                                               
that wrongful convictions do not take  place. She asked for a yes                                                               
or no answer.                                                                                                                   
                                                                                                                                
MR. HENDERSON  replied the short answer  is yes. There may  be an                                                               
example in another state that he will look for.                                                                                 
                                                                                                                                
MR.  STEINER  said  there  may  have been  instances  and  it  is                                                               
certainly a  theoretical possibility.  He doesn't have  an answer                                                               
for a closed case, for example, but it's theoretically possible.                                                                
                                                                                                                                
SENATOR REINBOLD  clarified that she  meant that this could  be a                                                               
powerful tool  for the  defendant to make  sure the  wrong people                                                               
are ending up in jail. To her,  this is just as good an amendment                                                               
for wrongful convictions. It could help either side.                                                                            
                                                                                                                                
MR.  STEINER replied  that  would  depend on  whether  a new  DNA                                                               
sample could  tie in to  closed cases.  He doesn't know  if those                                                               
cases stay in the system once they have been closed.                                                                            
                                                                                                                                
SENATOR REINBOLD said she thought he was confusing issues.                                                                      
                                                                                                                                
MR. STEINER said he was not confused about the issue.                                                                           
                                                                                                                                
SENATOR REINBOLD said  she was not talking about  closed cases at                                                               
all.                                                                                                                            
                                                                                                                                
MR. STEINER  said with  a false conviction,  the case  is closed.                                                               
The case is closed with conviction.                                                                                             
                                                                                                                                
SENATOR REINBOLD  said she is  talking about  preventing wrongful                                                               
convictions.  She  asked  Ms. Monfreda  for  information  on  the                                                               
offenses in 2018.                                                                                                               
                                                                                                                                
CHAIR SHOWER said  powerful tools are important, and  they can be                                                               
used for  good and  bad. That  is the balance  the bill  needs to                                                               
strike.                                                                                                                         
                                                                                                                                
CHAIR SHOWER held SB 32 in committee.