Legislature(2003 - 2004)
04/02/2004 09:10 AM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SB 170 - CRIMINAL LAW/SENTENCING/PROBATION/PAROLE
SENATOR OGAN moved to adopt version I as the working document
before the committee. Without objection, the motion carried.
MR. DEAN GUANELI, Chief Assistant Attorney General, Criminal
Division, Department of Law, thanked the committee for the hard
work it has done on SB 170. He then offered to answer questions.
CHAIR SEEKINS asked Mr. Guaneli to standby because the committee
was given two proposed amendments from the Public Defender's
Office on short notice.
SENATOR OGAN referred to Section 17 on page 10 of version I,
regarding violation of custodian's duties, and said he
understands the intent but has spoken with foster parents who
have ended up being third parties for foster children who got in
trouble. He said the intent is to go after people who blatantly
disregard their duty and are not diligent about holding the
released party accountable. He said Senator French made some
excellent points about the risk to the public when people fall
down on those duties. He pointed out that in reality, some
infractions do not get reported. For example, if the court
orders the offender to be at home by 10:00 and the custodian
does not report the offender at 10:01 for not being home, the
custodian could be guilty of a class A misdemeanor if the
offender was a felon. He expressed concern that the idea is to
hold people accountable and not to criminalize every minor
infraction, but the bill is not written that way.
MR. GUANELI said he had a couple of responses to Senator Ogan's
concerns. He said he does not believe Section 17 covers a
situation of foster parents whose children get in trouble. Line
12 specifically refers to a person released under AS 12.30,
which are the bail statutes. He said theoretically that could
involve someone under 18 who is charged with drunk driving, but
most juvenile offenses are dealt with in juvenile court, which
falls under Title 47. He continued:
If the court says something like 'be in at dark,' I
think there's a range of reasonableness that has to be
applied but if a judge thinks it's important enough
that a person have a specific curfew at a specific
hour, then I guess then the question is - and the
judge directs the custodian, you know, if this person
isn't in by 10:00, I'm ordering you to immediately
report that to the police - are you willing to do
that? Yes I am, your honor. You understand that there
are penalties associated with that? Yes I do, your
honor, and I'm still willing to do that.
I guess to me it's a judicial decision that 10:00 is
more important than 10:01 and I'd rather leave it to
the judge to make that decision than someone who has
undertaken responsibility and given a promise to the
judge that they would undertake that responsibility.
And when you're talking about people who are released
on felony offenses, I think that that is a weighty
responsibility. I know the judge is always very good
about making sure the custodian understands their
duties so I guess I'd have to say I think the system
works by allowing the judge to make a determination
whether 10:00 is so important or whether daylight
hours, which gives them a little more flexibility.
That's my response.
CHAIR SEEKINS said he agrees that with adult offenses where the
conditions of release are the conditions of imprisonment, they
would have no leeway if they were in jail. He said if he agreed
to take on a certain responsibility, he should live up to the
terms of that agreement. He believes that provision was meant to
protect the public as much as anything else. He then said when
one talks about the boundaries of an infraction, the infraction
becomes a whole new term.
SENATOR FRENCH said the Municipality of Anchorage has had this
law on its books for a couple of years at least and he is not
aware of any third party custodians being egregiously
overcharged. He said the legislation is crafted to relate the
penalty to the offense and every person has the right to go
before a jury if charged with a crime. He doubted a jury would
convict a person for not reporting a 10:01 violation on a 10:00
curfew.
SENATOR THERRIAULT said a constituent asked him to consider a
potential amendment. The constituent is a referee who was
assaulted by a parent as the result of his officiating a game.
The constituent asked him to consider creating a heightened
crime for assaulting a sports official. He countered by saying
he would consider adding that crime to the list of aggravators
for sentencing. The legal drafters suggested adding a number 31
to AS 12.55.155. He read the proposed amendment:
The defendant knowingly directed the conduct
constituting the offense at a sports official or
referee during or because of the exercise of duties as
a sports official or referee.
He asked Mr. Guaneli if he had any comments on whether such an
amendment would be workable.
MR. GUANELI said that when presumptive sentencing circumscribes
the sentencing discretion, an aggravating factor can allow the
judge to go beyond that. Aggravating factors currently apply to
those who knowingly direct illegal conduct toward a police
officer or emergency responder. He noted that a few bills were
recently introduced to expand the coverage to include teachers,
education officials and possibly clergymen. He said the concern
is whether the legislature wants to expand aggravating factors
that were provided for people involved in inherently dangerous
occupations to a wider range of activities that people engage
in. He said that is a matter of legislative policy. He concluded
that when the judges feel the conduct is egregious enough, the
judge has the sentencing authority to address that so he was not
certain that expanding those protections to a referee is
necessary to achieve justice.
SENATOR OGAN said he has trouble creating different classes of
people for which a crime is elevated because of that particular
class of person. He believes the elevated level is justified for
police officers and emergency responders because they must put
themselves in harms way.
SENATOR FRENCH shared Senator Ogan's concerns and said that
judges know when an outrageous crime has happened in their
communities, which could include a crime against a referee.
CHAIR SEEKINS jested that he has found sports officials to be
very aggravating at times.
SENATOR THERRIAULT said he did not intend to distribute the
amendment and was asking to determine the correct policy call.
SENATOR FRENCH moved to adopt Amendment 1, which reads as
follows.
A M E N D M E N T 1
OFFERED IN THE SENATE
To: CSSB 170(JUD) Work Draft 23-GS1024\I 4/1/04
Page 9, line 15
1(4) with criminal negligence and when as determined by a
chemical test taken within four hours after the alleged offense
was committed, there is 0.05 percent or more by weight of
alcohol in the person's blood or 50 milligrams or more of
alcohol per 100 milliliters of blood, or when there is 0.05
grams or more of alcohol per 210 liters of the person's breath,
causes serious physical injury under AS 11.81.900(55)(B) to
another person by means of a dangerous instrument.
CHAIR SEEKINS objected for the purpose of discussion and asked
for a cross-reference to the correct page in version I.
SENATOR FRENCH said it would replace language on page 9, line
15. He then said the idea is to avoid prosecuting the "cell
phone, make-up application on slippery roads" scenarios that
could cause car collisions that might result in a charge of
assault in the third degree. It narrows the scope of the bill to
those instances where there's enough alcohol involved to justify
a finding of criminal negligence. He said in his experience, .05
percent amounts to at least three or four beers.
MR. GUANELI read the definition as follows:
Serious physical injury means a physical injury caused
by an act performed under circumstances that create a
substantial risk of death or physical injury that
causes serious and protracted disfigurement,
protracted impairment of health, protracted loss or
impairment of the function of a body member, organ or
that unlawfully terminates a pregnancy.
He explained that as a practical matter, that often amounts to
an injury more serious than a broken limb because most juries do
not find a broken limb to be a protracted loss. He said the
quintessential example of a serious physical injury is someone
who ends up in a wheelchair.
SENATOR FRENCH said the annotated statutes say that a broken jaw
constitutes a serious physical injury and a grand jury could
find injuries to the eyes and skull to be serious physical
injuries. He said the (a) subsection is more inclusive and the
(b) subsection is fairly narrow.
CHAIR SEEKINS asked Ms. Wilson to testify.
MS. LINDA WILSON, Deputy Director, Public Defender Agency,
Department of Administration, said the effort made to trim down
the definition of "serious physical injury" is in subsection
(a), which requires physical injury caused by an act performed
under circumstances that create a substantial risk of death. She
said anything involving a car accident creates a risk of death
so that could apply to any physical injury that resulted from an
accident. She said the definition in (a) is overly broad and
would include any scratch or bump that resulted from a car
accident. She said limiting it to the (b) definition gets to the
targeted group - that being people who sustain serious physical
injuries. She disagrees with Mr. Guaneli about what qualifies as
a serious physical injury. She added that including the alcohol
requirement pinpoints the targeted group and avoids the
unintended group, such as cell phone users.
SENATOR OGAN asked why it is narrowed to alcohol use only and
does not include drug use. He noted he would like it to apply to
marijuana and controlled substance use.
MR. GUANELI said, in regard to Senator French's comment that
this would avoid prosecutions based on cell phone use, for
example, he does not believe the state prosecutes anyone for
collisions caused by cell phone use. Senator Ogan introduced a
bill several years ago to at least allow the state to revoke a
person's license if no crime was committed but a person died as
a result of a crash. He spoke to Senator Ogan at that time about
people driving too fast on slippery roads and causing a fatality
as a result. The state simply cannot prosecute those cases
because that behavior does not rise to a prosecution level under
criminal negligence and the standard mental states. As a result,
Senator Ogan's bill was enacted but it only gives a judge the
discretion to take away someone's license. He said there is a
much more serious offense called criminally negligent homicide
but those prosecutions are very rare. He pointed out that
prosecutors nationwide simply cannot prosecute every driver in a
car crash that causes a death. Cases of death that result from
car crashes are handled under wrongful death in civil courts or
through insurance claims.
MR. GUANELI said with respect to narrowing the definition of
serious physical injury, Ms. Wilson indicated that the elements
could be met by minor injuries resulting from a car crash. He
remarked that a horrendous car crash caused by a person acting
with criminal negligence where the car is completely mangled but
only minor injuries are sustained is equally deserving of
punishment because it is only fortuitous that the person walked
away with minor injuries. The Department of Law favors the
original version. He believes this version is much too narrow
and will frustrate the department because it will be unable to
prosecute.
MS. WILSON said she sees two parts to Senator Ogan's question
about controlled substances. She explained:
Controlled substances, I believe, if you're driving I
believe with a controlled substance other than
alcohol, I think you probably could be charged under
the impairment statute, which would probably qualify
for reckless. I think you could address controlled
substances beyond alcohol, which seemed to be the
targeted group with that. On the question about that
the DAs or the prosecutors cannot prosecute, we never
prosecute, I certainly want to caution against
adopting that approach. The DAs have an incredible
amount of discretion and, unfortunately, sometimes
they charge things - they overcharge and I don't think
anybody can dispute that. I keep hearing over and over
again 'trust us, trust us, trust us' but our laws
should not depend on the discretion of a DA,
especially a single DA. These things are and can be
overcharged and to say that they're not is
disingenuous.
I haven't wanted to bring up the Wally Taslow (ph)
case but that's a perfect example of overcharging. You
had a vehicular accident, not much injury, and it was
charged much higher than it should have been so to say
that it's not overcharged is not very believable.
SENATOR OGAN said because he believed some cases were
undercharged, he introduced legislation 10 years ago. He said it
took him eight years to get that law changed.
CHAIR SEEKINS said in trying to figure out what is fair and
right, regarding public safety, that to encourage selective
prosecution is very dangerous. He said he must feel comfortable
that the intent of the legislation is the right thing to do
before he will pass the bill out of committee. He said he is
attempting to do the right thing, not what is least
controversial.
CHAIR SEEKINS reminded members that Amendment 1 was pending and
asked if there was further discussion.
SENATOR FRENCH thanked members for the discussion on Amendment 1
but said he was persuaded by Mr. Guaneli that the law as written
can be used in the right way. He then withdrew Amendment 1
without objection.
SENATOR OGAN moved to adopt Amendment 2, which reads as follows.
A M E N D M E N T 2
OFFERED IN THE SENATE
To: CSSB 170(JUD) Work Draft 23-GS1024\I 4/1/04
Page 3, line 9:
Sec. 4 AS 04.11.491 is amended by adding a new subsection to
read:
(g) If a municipality or established village has adopted a
local option under (a)(1),(2),(3), or (4), or (b)(1),(2), or (3)
of this section, the municipality or established village, as
part of the local option question or questions placed before the
voters, may
(1) adopt an amount of alcoholic beverages that may be
imported that is less than the amounts set out in AS
04.11.150(g);
(2) adopt an amount of alcoholic beverages that would
give rise to a presumption that the person possessed the
alcoholic beverages for sale; the amounts adopted under this
paragraph may be lower than those set out in AS 04.11.010(c);
(3) adopt an increased penalty for furnishing or
delivery of alcoholic beverages to persons under 21 pursuant to
AS 04.16.051(d)(3).
Page 4, lines 17-19:
Sec. 7 AS 04.16.051(d) is amended to read
(d) A person acting with criminal negligence who violates
this section is guilty of a class C felony if
(1) within the five years preceding the violation, the
person has been previously convicted under
(A) this section; or
(B) a law or ordinance of this or another
jurisdiction with elements substantially similar to this
section; [OR]
(2) the person who receives the alcoholic beverage
negligently causes serious physical injury to or the death of
another person while under the influence of the alcoholic
beverage received in violation of this section; in this
paragraph,
(A) "negligently" means acting with civil
negligence; and
(B) "serious physical injury" has the meaning
given in AS 11.81.900; or
(3) the violation occurs within the boundaries of a
municipality or the perimeter of an established village that has
adopted a local option and the increased penalty of a class C
felony under AS 04.11.491.
CHAIR SEEKINS objects for the purpose of discussion.
SENATOR OGAN says this amendment makes it a local option for
people who live in areas who have voted to be "dry" to ratchet
up the penalties for offenders who supply alcohol to minors.
Since the community has identified alcohol as a particular
problem, the "local option" part of the legislation would allow
the local community to put it on the ballot and, for example,
raise the offense from a misdemeanor to a felony.
MS. WILSON agreed that is exactly what the amendment does.
CHAIR SEEKINS asked Ms. Wilson to provide an explanation for the
amendment and the purpose for proposing it.
MS. WILSON said the point of the amendment was to let the local
option area choose how to deal with those who supply alcohol to
a minor. It lets local areas choose whether or not they want to
ratchet up the offense from a misdemeanor to a class C felony.
CHAIR SEEKINS asked Ms. Wilson if she is familiar with the
definition of an established village under statute, and pointed
out that it is any group of 25 people. He asked her if she
believes that we should allow any group of 25 people, at their
own discretion, to vary the state penalty.
MS. WILSON suggested tightening the definition of an established
village.
SENATOR FRENCH asked if the municipality or village could set
the infraction above a Class C felony, i.e., if the local option
areas could label the offense as a Class B or Class A felony.
MS. WILSON referred to section 7, which allows an increased
penalty if there are prior convictions. She suggested adding an
option in section 4 to allow for increased penalties and then
limit the increase.
SENATOR OGAN recognized that local areas must already adopt the
local option as law and questioned the criteria of an
"established village" in regards to the ages of the village
members. In that light, he is hesitant to extend too much
leeway to village members for the purpose of law interpretation.
SENATOR FRENCH proposed to amend the amendment in Sec. 4,
subparagraph 3, to read "adopt an increased penalty of a 'C'
felony for furnishing or delivery of alcoholic beverages to
persons under 21 pursuant to AS 04.16.051(d)(3)".
CHAIR SEEKINS asked and heard no objections but voiced concern
regarding the change of the level of penalty and asked for
further discussion.
MR. GUANELI said he understands from most village leaders that
there are two purposes for the local option laws, which create
immediate benefit to village society: 1) stops domestic abuse
and crimes by adults therefore lessening social problems and 2)
teaches young people that use of alcohol is unacceptable. The
long-term goal of the villagers is to limit the use of alcohol,
especially to young people. The original draft reflects these
goals. Dry villagers are particularly offended by people
supplying alcohol to minors since they made the deliberate
effort to vote the village dry. He feels this current draft
puts an additional burden on the villagers to hold additional
elections.
TAPE 04-32 SIDE B
MR. GUANELI added that he thought we ought to uphold the intent
of the villagers who voted to go dry; it ought to be an
aggravated offense and recognized as such.
CHAIR SEEKINS iterated that he is most interested in the
amendment, which could allow unincorporated groups to have too
much leeway. He also questioned the need to revise the current
penalty.
SENATOR OGAN stated the people in the villages should have the
ability of self-determination to decide whether they have a
problem and how to address the problem. This amendment serves
that purpose.
SENATOR FRENCH clarified that currently, the law states the
first offense is a misdemeanor and the second offense is a
felony. He states that the effect of the amendment basically
allows local areas the option of raising the level of the first
offense to a felony or leaving it as a misdemeanor.
SENATOR FRENCH added - to the point that the local areas decide
whether they want to be dry or not. He stated support for the
amendment.
SENATOR OGAN opined that he is willing to give the local option
but would rather the state set the penalties.
A roll call vote was taken. Amendment 2 failed with Senators
Ogan and French voting in favor and Senators Therriault and
Seekins voting against.
CHAIR SEEKINS referred to a letter received from Legal Services
and the Revisor of Statutes regarding section 32 of the current
bill.
A M E N D M E N T 3
"*Sec 32 AS 47.12.310 (c) is amended to read:
(c) 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."
CHAIR SEEKINS heard no objections to the amendment, recognized
there was also an amendment to the title and directed the
committee's focus to Section 25, which was also included as a
concern in the memorandum from Legal Services.
MR. GUANELI expressed concern over the suggested revised wording
and would prefer to have time to review it. His main concern was
about interpretation in a court of law and he wants to ensure
that the language written in the document is clear.
CHAIR SEEKINS asked that Amendment 3 be withdrawn for the
moment.
CHAIR SEEKINS asks for public testimony and hearing none SB 170
is moved out of committee.
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