Legislature(2003 - 2004)
03/24/2004 08:10 AM Senate JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 170-CRIMINAL LAW/SENTENCING/PROBATION/PAROLE
CHAIR SEEKINS announced the committee would take up SB 170.
MS. SUSAN PARKES, Deputy Attorney General, Criminal Division
Department of Law (DOL), informed members that DOL provided some
proposed amendments to the committee.
CHAIR SEEKINS numbered the amendments and asked members if they
want to address them as a package.
SENATOR THERRIAULT moved Amendment 1, which reads as follows. He
asked for an explanation from DOL.
A M E N D M E N T 1
TO: CSSB 170(JUD) (23-GS1024\H)
Page 10, lines 29-31, and Page 11, lines 1-4:
Delete all material and insert the following:
"(4) the force applied was the result of using a
dangerous instrument that the person claiming the defense
of justification possessed while
(A) acting alone or with others to further a
felony criminal objective of the person or
one or more other persons; or
(B) participating in a felony transaction or
purported transaction, or in immediate
flight from a felony transaction or
purported transaction in violation of AS
11.71.
TAPE 04-25, SIDE B
MS. PARKES explained that Amendment 1 makes changes to the self-
defense provision to address concerns raised by testifiers and
committee members about the broadness of the original provision.
The amendment adds to that provision by saying a self-defense
claim does not apply if the force applied was the result of
using a dangerous instrument by the person claiming the self-
defense. It also adds a gang activity provision and a provision
dealing with drug-transactions that are felonious conduct. That
was added to address concerns about minor or misdemeanor
conduct.
SENATOR FRENCH asked Ms. Parkes why DOL chose the phrase
"dangerous instrument" over "firearm" in defining who cannot
claim self-defense. He noted he was asking because the committee
was trying to address gang shootings, in which both parties are
carrying guns and both parties claim self-defense. He continued,
"I understand dangerous instrument is a knife, a club, or what
else but sometimes a dangerous instrument can be a pair of hands
if you use them the wrong way and so maybe you can just talk
about why it's dangerous instrument and not firearm."
MS. PARKES replied that the broader term was used because there
are situations where other instruments are used. She explained:
Really, the change was to acknowledge that the person
is coming to the transaction, the incident,
anticipating violence and, although guns are the
primary problem, people come to a transaction
anticipating violence and come armed with any variety
of things and that was really what we were trying to
address. If you're going to say someone can't use
self-defense, we wanted it to be in a situation where
they were coming anticipating violence and that may be
with a gun or a knife and so it was more broadly
defined. The other reason is, although they may come
with a knife, the person they're meeting, or the other
people they're involved with may have guns and, again,
it's just trying to address the situation where people
are coming anticipating violence.
SENATOR OGAN commented that most people who carry weapons for
self-defense for legitimate purposes do so because they
anticipate violence. He asked if this amendment means the person
was acting alone or with others to further felony criminal
objectives and therefore, the person would not only have to
anticipate violence, the person would have to have a culpable
mental state to commit a felony.
MS. PARKES said that is correct.
CHAIR SEEKINS suggested adding to the end of (B), "in which the
individual was a participant."
MS. PARKES felt that the word "participating" at the beginning
of (B) was adequate.
SENATOR OGAN asked for the definition of a felony transaction
and whether the person has to be convicted of that felony or
could just be a bystander. He questioned how that would play out
in a scenario in which a person unwittingly goes to a party and
somebody else next to him transacts a drug deal and suddenly
guns appear.
MS. PARKES acknowledged that is a very real scenario that could
arise. She told members:
No, someone who just happened to be at the wrong place
at the wrong time, this would not apply to them and
that's why they have to be acting alone or with others
to further the felony criminal objective. You have to
have that criminal objective as your mental state or
subsection (B) - we want it clear that it's a person
participating in the transaction, not the bystander
who gets caught up in it. How this would work is if
someone were given a self-defense instruction by the
court, which with our other provision would mean they
raised some plausible evidence that it wasn't a drug
transaction or they weren't a participant, then the
state would have the burden of proving beyond a
reasonable doubt to get a conviction that they were
part of this criminal objective or they were part of
this felony drug transaction. So the burden would be
on the state to prove that.
SENATOR FRENCH returned to the issue of "dangerous instrument"
and said his concern is that term can mean a pair of hands or a
boot. He noted the word "firearm" is probably the narrowest
definition, and suggested using the term "deadly weapon," which
includes knives, clubs, and guns. He asked if that term would
satisfy DOL's need to be able to go after people who come to a
situation heavily armed but would exclude the person who is
forced to defend himself with his hands or feet against a person
who is armed with a knife or gun.
MS. PARKES said it would address DOL's concerns. She noted, "The
intent isn't to be able to say well, you come armed with your
hands so suddenly you're at risk and then you decide to choke
someone and use them as a dangerous instrument - that was not
our intent because as you pointed out, anyone comes armed with
their hands and feet and so substituting deadly weapon...."
CHAIR SEEKINS interrupted and commented that in relation to
subsection (B), if, in the process of fleeing, he ran over
someone with his car and killed that person, his car would be
considered a dangerous instrument but not necessarily a deadly
weapon.
SENATOR OGAN argued that might not be directly related and was
not self-defense.
SENATOR FRENCH thought he would not be able to claim self-
defense.
CHAIR SEEKINS thought he would if the person was pointing a gun
at him.
SENATOR OGAN felt that would be self-defense.
CHAIR SEEKINS questioned how that would apply if he intended to
buy drugs from that person.
SENATOR FRENCH thought the bill, as written, would preclude him
from claiming self-defense but the proposed amendment would
allow him to.
CHAIR SEEKINS questioned whether a car would be considered a
deadly weapon or a dangerous instrument and said he wants that
included.
MS. PARKES clarified if the committee members want to include
that kind of a scenario, they would not want to change the
amendment to read dangerous instrument instead of deadly weapon.
She then commented that bricks and pipes are not always covered
under deadly weapons but would be covered under dangerous
instrument.
CHAIR SEEKINS said his next question is about using a baseball
bat as a club. He indicated that his objective is to say if you
were there, and while committing a felony kill someone, it will
be very difficult to claim self-defense. He added, "I'm just
trying not to say, well it's okay to run somebody over if you've
got a gun pointed at you and you're in the middle of a - but it
wouldn't be okay to shoot them...."
SENATOR ELLIS asked Ms. Parkes to elaborate on the term
"purported transaction" and who decides what that is.
MS. PARKES explained that section is meant to address a
situation in which one person thinks he is going to a drug
transaction while the other party intends to rob that person
rather than sell him drugs. She said many violent outbreaks
occur because of a "rip-off."
SENATOR ELLIS asked if other states handle those situations by
using "purported transaction" in their statutes.
MS. PARKES was not sure but noted that Mr. Guaneli and others in
DOL prepared that language.
SENATOR ELLIS expressed concern that "purported transaction" is
a subjective term and he questioned how that would be determined
within the workings of a case.
MS. PARKES replied, "I think, given its common sense meaning,
people are coming there anticipating a felony drug transaction,
a purported transaction, is what we intended with the language."
SENATOR OGAN expressed concern that a normally rational person
would not pull a knife on a person with a gun. Or, in the
example of the car, if the person in the car has no weapon but
hits the person with a gun with the car, his attitude is "more
power to him, at least he had the common sense to not bring a
gun to a drug transaction and possibly endanger other people.
But under that scenario, I hope he does run the guy over and
kills him too. That's one less person the state has to...."
CHAIR SEEKINS said he somewhat agrees but both parties may have
had guns. He said generally speaking, people who intend to
commit felony transactions know there's a risk involved. He
stated, "I agree sometimes the best thing would be for these
people to be put away for a long time on both sides of the
issue. If one of them is dead, one of them is put away for a
long time when they were committing felonies, we've probably
served a better public purpose than if one of them gets off."
SENATOR FRENCH said he preferred to err on the side of caution
so moved to amend Amendment 1 by replacing "dangerous
instrument" with "deadly weapon". He then read the definition of
"deadly weapon" under AS 11.81.900: Firearm, or anything
designed for and capable of causing death or serious physical
injury, including a knife, axe, club, metal knuckles, or an
explosive. He felt that change will keep the focus on the gang
issue and leave out folks who have to use their hands to get
themselves out of a bad situation.
CHAIR SEEKINS objected.
SENATOR OGAN told members he agreed with Senator French on this
issue.
A roll call vote was taken. The motion carried with SENATORS
OGAN, FRENCH and ELLIS voting yea, and SENATORS THERRIAULT and
SEEKINS voting nay. Therefore, Amendment 1 was amended.
There being no further discussion about Amendment 1 amended, a
roll call vote was taken. The motion to adopt Amendment 1 as
amended carried with Senators Therriault, Ellis, French, Ogan
and Seekins in favor.
SENATOR THERRIAULT moved to adopt Amendment 2 (which reads as
follows), and asked for an explanation from department staff.
A M E N D M E N T 2
OFFERED IN THE SENATE
TO: CSSB 170(JUD)(23-GS1024\H)
Page 18, lines 5-31, and Page 19, lines 1-17:
Delete all material and insert:
"Sec. 32. AS 47.12.310(c) is amended to read:
A state or municipal law enforcement agency
(1) shall disclose information regarding a case that
is needed by the person or agency charged with
making a preliminary investigation for the
information of the court under this chapter;
(2) may disclose to the public information regarding
a criminal offense in which a minor is a suspect,
victim, or witness if the minor is not identified
by the disclosure;
(3) may disclose to school officials information
regarding a case as may be necessary to protect
the safety of school students and staff or to
enable the school to provide appropriate
counseling and supportive services to meet the
needs of a minor about whom information is
disclosed.
(4) Or a state or municipal agency or employee may
disclose to the public information regarding a
case as may be necessary to protect the safety of
the public; and
(5) May disclose to a victim or to the victim's
insurance company information, including copies
of reports, as necessary for civil litigation or
insurance claims pursued by or against the
victim."
MS. PARKES told members that DOL made a proposal that would allow a
state agency or employee, upon the request of a member of the public,
to provide information about a juvenile adjudication for a sex
offense as necessary to protect the safety of a child or a vulnerable
adult. Amendment 2 comes after consultation with the Department of
Health and Social Services (DHSS) Juvenile Justice Division. Division
staff were concerned that as drafted, the disclosure would be
mandatory, and that members of the public could misuse the
information. The division wanted more discretion to set policy about
disclosure. Amendment 2 makes disclosure discretionary by saying a
state or municipal agency or employee may disclose to the public
information regarding a case as may be necessary to protect the
safety of the public. It allows the division to set up in regulation
how it will disclose information. She indicated that the situation
that prompted this proposal was one in which social workers were
visiting homes where juvenile sex offenders were babysitting or given
access to vulnerable adults and children. The social workers could
not provide that information to the public.
SENATOR FRENCH said the bill was written specific to adjudication for
a sexual offense but that is not referenced in Amendment 2. He asked,
"I take it there's some other piece of law somewhere that sucks that
information into 'a case'?"
MS. PARKES replied, "If you look at the statute as it's currently
written, this adds a provision. They talk about providing information
about a case to law enforcement [indisc.] so it's a phrase they
already use in interpreting how to release information. It does
broaden it from just adjudication to being able to talk about cases,
say where a juvenile is currently charged but hasn't yet been
adjudicated. We actually think it gives the agency more flexibility
to provide information to protect the public."
SENATOR FRENCH asked if Amendment 2 will incorporate social workers
into the broader group above the law enforcement community.
MS. PARKES said that is correct; the intent is to allow social
workers and other state employees that may have that information and
are interacting with the public [to disclose that information].
SENATOR FRENCH asked what guidelines will constrain their discretion.
MS. PARKES repeated that DHSS specifically requested flexibility to
allow agencies to set those policies.
SENATOR OGAN questioned how Amendment 2 amends existing statute by
deleting material.
MS. PARKES explained that Amendment 2 deletes lines from the bill,
not the statute.
SENATOR OGAN asked if AS 47.12.310(b) will remain the same but a
sentence will be added to .310(c).
MS. PARKES said that is correct.
CHAIR SEEKINS questioned how an agency would prevent the disclosed
information from being posted on telephone poles.
MS. PARKES indicated that nothing in Amendment 2 could prevent that
from happening; the agencies themselves want to establish that kind
of protection through policy and regulations. She repeated that is
the agencies' concern and is why they did not want disclosure to be
mandatory. She believes the agencies have ideas on how to accomplish
that goal.
CHAIR SEEKINS asked, "What if they don't?"
MS. PARKES said the person requesting the information could
disseminate it and she is not aware of any criminal prohibition or
statute that could be used to go after them.
CHAIR SEEKINS questioned what would happen if there were no
regulations or policy against it.
MS. PARKES indicated that Amendment 2 was requested by DHSS and
deferred to the department for an answer.
CHAIR SEEKINS pointed out he is not unnecessarily trying to
protect the minor and allow inappropriate contact but his
concern is that there is the possibility that a juvenile with a
relatively minor offense could be the victim of a witch-hunt.
SENATOR FRENCH noted that under current law, a state or
municipal law enforcement agency has the discretion to disclose
information to school officials if necessary to protect the
safety of school officials, staff, [and students]. He noted the
difficulty of finding a balance between protecting the public
from a potential juvenile predator and protecting the juvenile's
ability to be rehabilitated for a mistake made early in life.
CHAIR SEEKINS agreed; and added there is a difference between a
predator and someone who may have broken the law at a young age.
He questioned, "If we're being very careful about the details
into which we - how we pour something into the sieve, why aren't
we being careful about the details of how we do it?"
SENATOR FRENCH suggested hearing from a DHSS staff person.
SENATOR OGAN expressed concern that Amendment 2 broadens the
scope of who can disclose in the name of public safety,
regardless of the seriousness of the crime. He said he would be
more comfortable with that provision if it specified a certain
level of crime, such as a felony assault against a person.
CHAIR SEEKINS asked Mr. Guaneli to testify.
MR. DEAN GUANELI, Assistant Attorney with the Criminal Division
of the Department of Law, suggested adding an effective date
section to the bill that says this provision does not take
effect until DHSS adopts regulations to implement the change in
law enacted by that section.
SENATOR OGAN asked if the provision deals with any level of
crime so that an employee could arbitrarily decide whether that
person is a threat to the public.
MR. GUANELI replied:
I think that - this information is confidential and I
think that what the statute says is 'as may be
necessary to protect the public.' I think that's the
thing that really ought to be addressed in a
regulation - the level of the threat that is involved,
how the agency goes about weighing that level of
threat. And I think that's something that really the
public process leading to those regulations would
address. I'm not certain that it's something that we
can completely anticipate right here in this forum.
SENATOR OGAN asked, since particular crimes are not specified in
the provision, [choosing which crimes to disclose] will be left
to the discretion of the employee.
MR. GUANELI thought that was correct.
MS. PARKES responded that the proposed bill addresses the fact
that right now any sexual abuse of a minor perpetuated by a
juvenile is a misdemeanor. DOL is proposing to make penetration
a felony while contact would remain a misdemeanor. She said that
is why she has concerns about trying to distinguish between a
felony and misdemeanor [in regard to this provision].
SENATOR OGAN said he would feel more comfortable if Amendment 2
contained some parameters on what crimes can be disclosed
because, right now, it will allow any state employee to
arbitrarily disclose anything about anybody. He maintained that
if Amendment 2 passes without parameters, DHSS should look to
the committee record to determine the committee's intent.
SENATOR FRENCH noted the first line of Section 32 in version H
says, "A state or municipal agency or employee..." while the
first line of Amendment 2(c)(4) reads, "A state or municipal
agency or employee..." and questioned whether that distinction
was made consciously.
MR. GUANELI thought the addition of the word "or employee" was
intended to mean that a particular employee could disclose the
information so that disclosure would not require some sort of an
agency proclamation.
SENATOR FRENCH interjected, "It seems like, the way it's
written, the whole statute is about an agency. I don't know how
it works now - if APD releases information, does it come from a
person, a sergeant, or does it come from the agency? And it may
ease some of Senator Ogan's concerns to know that this is more
of an agency decision, that is, it's been passed up through a
little procedure and it isn't one, you know, social worker kind
of on a personal mission to release information."
MS. PARKES responded that DOL would not oppose deleting "or
employee" to clarify that it is to be a policy decision of the
agency.
CHAIR SEEKINS agreed and said he does not have faith that the
regulatory process will always carry out the intent of the
legislature.
SENATOR OGAN moved to amend Amendment 2(c)(4) to read, "A state
or municipal agency or authorized employee..." so that the
agency has identified an authorized who will provide the
disclosures. He continued, "...so the agency identifies, okay,
for these disclosures you go to this desk and that person
understands what the policy of the agency is so you don't have
these - any - say a social worker who doesn't like the
particular family or whatever and that gives me more comfort
that they're carrying out the policy of the agency, rather than
just any employee arbitrarily."
CHAIR SEEKINS announced that without objection, Amendment 2 was
amended.
SENATOR OGAN asked that DHSS draft regulations that specify the
types of crimes that will be disclosed, those being violent
crimes against person crimes.
CHAIR SEEKINS asked Ms. Parkes if DOL would draft a conceptual
amendment to address DOL's suggestion that an effective date
clause be added to the bill so that Amendment 2 does not take
effect until regulations have been adopted.
MS. PARKES agreed.
CHAIR SEEKINS requested a roll call vote. The motion to adopt
Amendment 2 as amended carried with Senators Ellis, French, Ogan
and Seekins in favor.
SENATOR OGAN moved to adopt Amendment 3, which reads as follows.
A M E N D M E N T 3
OFFERED IN THE SENATE
TO: CSSB 170(JUD) (WORK DRAFT 23-GS1024\H)
Page 11, following line 29:
Insert the following:
"(3) 'higher level felony' means an unclassified
or a class A felony;
(4) 'lower-level felony' means a class B or
a class C felony."
Page 12, lines 23 and 24:
Following "applies:":
Delete all material and insert the following:
"a higher-level felony, a lower-level felony, or a
misdemeanor."
CHAIR SEEKINS objected for the purpose of discussion.
MS. PARKES told members that Amendment 3 deals with the immunity
proposal, as was discussed at prior hearings. She explained:
We proposed a procedure where a witness who is
claiming immunity goes into a hearing with a judge.
They're appointed an attorney and in a private hearing
that's closed without a prosecutor present a judge
hears a proffer of testimony as to why the person has
a Fifth Amendment privilege. If a judge finds that
there's a Fifth Amendment privilege, the way the bill
is currently drafted, the only information that the
judge gives to the prosecution about the Fifth
Amendment privilege is what level of crime the
person's Fifth Amendment applies to. In the bill as
it's currently written, the prosecution is told if
it's an unclassified or A felony, it would be a C.
There were some concerns raised at the prior hearing
that that might be too specific of information - that
it might be able to point the state in the direction
of who the worst player in a group is. And, to address
that concern yet still give the state some information
that would allow them to responsibly exercise their
power to give immunity or not, we're proposing that
instead of being told specifically the level of
offense, the state be told that it's a higher level
felony, meaning an A or an unclassified, a lower level
felony, meaning a B or a C, or a misdemeanor. That's
the only change.
SENATOR FRENCH noted that he has concerns about that section but
none about Amendment 3.
CHAIR SEEKINS announced that with no objection to Amendment 3,
it was adopted.
SENATOR FRENCH moved to adopt Amendment 4, which reads as
follows.
A M E N D M E N T 4
OFFERED IN THE SENATE
TO: CSSB 170(JUD) (WORK DRAFT 3/8/2004)
Delete Page 15, line 31 to page 16, lines 1-3
Insert in its place:
(S) In a prosecution under (a) of this section, a
person may introduce evidence of having consumed
alcohol before operating or driving the motor vehicle,
aircraft or watercraft, to rebut or explain the
results of a chemical test, but it is not a defense
that the chemical test did not measure the blood
alcohol at the time of the operating or driving.
Add a new section and renumber other sections accordingly:
*Sec. ___. AS 28.35.030(a is amended to read:
(a) A person commits the crime of driving while under
the influence of an alcoholic beverage, inhalant, or
controlled substance if the person operates or drives
a motor vehicle or operates an aircraft or a
watercraft
(1) while under the influence of an alcoholic
beverage, intoxicating liquor, inhalant, or any
controlled substance;
(2) If [WHEN], as determined by a chemical test
taken within four hours after the alleged offense
was committed, there is 0.08 percent or more by
weight of alcohol in the person's blood or 80
milligrams or more of alcohol per 100 milliliters
of blood, or if [WHEN] there is 0.08 grams or
more of alcohol per 210 liters of the person's
breath; or
(3) While the person is under the combined
influence of an alcoholic beverage, an
intoxicating liquor, an inhalant, or [AND] a
controlled substance.
MS. PARKES explained that Amendment 4 addresses the "big
gulp defense" proposal discussed at prior hearings. The
current law says if a person is given an intoximeter test
within 4 hours of driving and is .08 or above, that person
is legally intoxicated. However, the courts have allowed
people to argue that they "took a big gulp" right before
driving and although the intoximeter was accurate at the
time taken, the person's blood alcohol level was lower than
that. DOL does not believe the intent of the legislation
was to get into the middle of a battle of experts so
Amendment 4 would do away with that defense and overturn a
case called "Conrad," issued by the Court of Appeals. DOL
found, during discussion at prior hearings, that it drafted
the proposal so broadly that it would exclude people from
introducing legitimate evidence. Therefore, it has revised
the proposal [Amendment 4] so that it would specifically
say that a person may introduce evidence to rebut or
explain the results of a chemical test but that it is not a
defense that the chemical test did not measure the blood
alcohol at the time of the operating or driving. That will
allow people to attack the accuracy of the intoximeter but
[not the timing] of the test if driving. She explained in
the Conrad case, the [court] looked at the "when" language
of the statute. DOL is proposing to substitute "if" for
"when".
TAPE 04-26, SIDE A
CHAIR SEEKINS announced that with no objection to Amendment
4, it was adopted. He opened the meeting for public
testimony.
MS. BARBARA BRINK, Alaska Public Defender Agency, told members
her concerns about the amendments echo the committee members'
concerns. She has trouble determining that people give up their
right of self-defense because they are engaged in unlawful
conduct. She fears this policy decision somewhat promotes
vigilantism. She said the scale is imbalanced when people
involved in low-level criminal activities cannot claim that
right. She said she appreciates the change to "deadly weapon"
made to that amendment.
Regarding disclosure of information [in Amendment 2], she felt
it is critical to amend it to say that nothing in this section
allows the disclosure of public information unless and until the
regulations are drafted and policy is set by DHSS.
MS. BRINK'S final concern was that she does not believe anything
can be done to make the immunity provision constitutional. She
believes the Alaska Supreme Court has said quite clearly in the
Gonzales case that the State of Alaska's standard is higher than
the federal standard and that people may not be prosecuted for
anything regarding the subject matter of their testimony if
given immunity. She added, "I think that informing the
prosecutor what level of felony or what level of offense is
involved does become a link in the chain. I guess the person who
has a valid Fifth Amendment right [sic] will render this section
of the bill unconstitutional."
MS. SIDNEY BILLINGSLEA, representing the Alaska Trial Lawyers,
made the following four points.
· The statement made that minors convicted of sex offenses
are convicted only of misdemeanors is incorrect because
minors under the age of 18 who cannot be waived under Title
47 can be convicted of class B and C felonies.
· Regarding Section 13, murder in the second degree, where
the committee is considering excluding co-committers of
crimes for felonies, including attempted felonies, a
potential unintended consequence is the inclusion of people
who are committing crimes. She explained that most
burglaries in Alaska happen between the hours of 2:00 p.m.
and 6:00 p.m., which are the hours after school and before
parents arrive home. Most perpetrators of residential
burglaries are young males between the ages of 15 and 20.
She cautioned that if two teenagers, who are fairly decent
people but are committing a stupid, juvenile act, break
into a home of a friend and startle the homeowner who
shoots one of them, the other teenager can be prosecuted as
an adult for murder in the second degree.
· Regarding the self-defense section, she pointed out that
all Alaskans are citizens who are presumed innocent, have
equal protection to the laws, and have the right to life,
liberty, and the pursuit of happiness. To presume to take
away some of those fundamental rights from a class of
citizens who are purported to be involved in a crime is not
a good way to conduct business in Alaska.
· Regarding the immunity section, she believes if the state
has investigated a case sufficiently to decide who to
charge and who should be a witness, the state must have
data on those individuals to decide whether the witnesses
are important or not. At the point the witness needs to be
given immunity to help convict the worse offender, the
state needs to make that decision and provide the witness
with immunity. The goal of the state would be the greater
good of punishing the greater perpetrator. To find out what
type of felony the witness may or may not have been
involved in would provide the state with an investigative
instrument that she does not trust the state with because
the state could decide not to grant immunity.
There being no questions of Ms. Billingslea, CHAIR SEEKINS
called the next testifier.
MS. ALLISON MENDEL, representing the Alaska Trial Lawyers and
herself, asked to speak to Section 19, which relates to jury
instructions about self-defense. She informed members that she
primarily does appellate criminal law in the federal courts.
She views the bill's biggest weakness as the fact that it is
based upon an attempt to reverse the results of particular
appellate cases that the prosecutors did not like. She
cautioned that it is very difficult to draft a bill that fixes
the result of a specific case without having many unintended
consequences, Section 19 being a good example. She stated:
First of all, appellate cases - criminal cases are
always the defendant appealing because a prosecutor
can't appeal a jury verdict so it doesn't even come
to your attention until the defendant has won an
appellate case. Then the question is why did the
defendant win and what can we do about it so it
doesn't happen again. But, if you're going to avoid
the expert appellate decision, what you have to do
is provide clear guidance to the trial judge in
terms that everyone understands and won't lead to a
lot more appellate cases. I think Section 19 clearly
doesn't do that. It talks about the judge, prior to
agreeing to give a jury instruction, finding - quote
unquote - plausible evidence to warrant a jury
instruction on self-defense. Plausible evidence is
not a term of art as far as I know, or anyone I've
talked to. We don't know what plausible evidence is
and therefore any case after this bill, there'd be a
question on appeal whether the evidence was
plausible or not.
Ms. Parkes in her presenting this bill to the House
committee, I wasn't around when she explained this
to the Senate committee, says that this adopts the
federal standards. It doesn't. There is nothing
about plausible evidence in the federal standards.
The federal standard talks about whether a
reasonable jury could find self-defense so the
federal system just works differently. This does not
adopt federal standards; it adopts a standard that
no one knows what it is and no one can understand.
It also inexplicably, I think, expresses distrust of
the jury in determining whether there's a self-
defense claim at all. I don't understand why this
committee would want to have the judge run
interference for the jury and say well, I don't want
the jury to think about this self-defense claim. I
want the judge to decide if it's a good one or not
and that seems to me to run against the values of
the State of Alaska and our laws in general - let
the facts go to the jury, let the jury decide. I
don't see a harm in letting the jury decide the
self-defense claim. If it's completely implausible,
why would the jury find it as self-defense? I don't
know of any cases that illustrate how the jury finds
self-defense on the basis of no evidence. I think
that this section is unnecessary and I think it does
more damage than repair to the law. Thank you.
MS. CARMEN CLARK, testifying on her own behalf, directed her
testimony toward the "big gulp defense" amendment. She
informed members she practices as a criminal defense attorney
primarily involving DUI cases and listed a long resume
including jobs as the chief prosecutor for the Municipality of
Anchorage and the National Highway Traffic Safety
Administration Alaska DWI attorney for four years. She
explained in the Conrad case, the prosecutor argued that it
didn't matter whether or not the driver was over the limit
when driving, as long as the driver was over the limit within
four hours after the arrest. She indicated that DOL is asking
the legislature to change the DWI so that it will not matter
what the driver's legal limit is while driving.
MS. CLARK pointed out the Conrad case was unusual. In the
normal DWI case, the driver is arrested and is asked to submit
to a breath test approximately one hour after the arrest. The
State of Alaska crime lab documentation and notebooks for
instructing state troopers and police officers say that
alcohol is eliminated at .02 per hour. That means the only way
one could argue he or she was below .08 at the time of driving
would be if the breath test registered at or below .10 at the
time tested. She maintained that in her experience, three
years ago, the average blood alcohol concentration of someone
arrested for DWI in Alaska was .18, which is why it is
unlikely that a case similar to the Conrad case will come up
often. She pointed out:
But when it does come up, it's the difference
between one drink, or a man who weighs 180 pounds
could get to .08 - if you're talking four to five
drinks and that includes with food. So what the
Department of Law is asking you to do is not
eliminate the requirement for experts because
experts do not show up in most DWI cases - most DWI
cases don't even go to trial. What they're asking
you to do is at that very fine line between the
amount of alcohol we believe is illegal to drink and
drive and that very fine amount when you're suddenly
over - and for most people at .08 they don't even
show any signs [indisc.] - man, you really shouldn't
drive, give me your keys. So, I'm asking you to
leave it the way it is. There [are] going to be very
few cases where the breath test concentration is
tested within the usual hour after arrest. It's
going to be so low that a person might actually be
able to say that they weren't over the legal limit
when they were driving. And that even gets more
reduced because at the time of arrest, the officer
usually goes through a series of questions, asking
the person when they stopped driving. Almost nobody
has alcohol in the car, which is really the only way
to do this defense if you're going to be able to do
it very successfully.
So, they're asking you to change the definition of
DWI so that it doesn't matter whether or not you are
intoxicated or impaired at the time of driving so
long as somehow within the subsequent four hours you
were intoxicated or had a legally impaired breath
alcohol concentration. So I'm asking you to reject
that.
And then I had a very quick comment. With regard to
the purported drug crime, I think you all should
table that whole thing. Send it off and ask them to
redraft it. I sat through hours and hours of
testimony and hours and hours of questions and it
doesn't appear that anybody here knows - we
understand what the purpose is but nobody
understands if it's drafted very well. So I think
the question about how do other states do it was a
good one. I think that whole part should simply be
tabled, send the Department of Law off to do some
investigation and come back with a bill that's less
vague and less confusing as to how it works.
And then the other thing that I'd like to point out
has to do with - I heard two different philosophies
going on in the testimony over the last many hours
that I've sat through. One is this idea of personal
responsibility for people who [indisc.] become
engaged in drug activity, which I think was part of
purported drug dealing and a part of the reason
while we're trying to reduce that self-defense
claim. I find that philosophy definitely at odds
with the new felony murder rule that's been
proposed. If I go along with you on a bank robbery,
if I've assumed a risk [indisc.], it seems
inappropriate for my co-defendant to be responsible
for my death. So that's my last point and then I
think it's been [indisc.] covered a great deal about
the whole concept of negligent driving causing
severe physical injury being a felony and I'd like
the court to - I'm sorry, I call you the court
because you're addressing [indisc.], but essentially
I'd like you all to also reject that particular
proposal. It is currently a misdemeanor, which I
think is a significant enough crime for someone who
might be speeding over the limit, have a moose step
in front of them and have their passenger have seat
belt [indisc.], which, under this law would be a
felony....
CHAIR SEEKINS asked Ms. Clark to send him a summary of her
comments for distribution to committee members.
He then announced that the committee would dedicate its
meeting on Monday, March 29, to SB 170. He adjourned the
meeting at 10:15 a.m.
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