Legislature(2001 - 2002)
02/28/2002 01:54 PM House FIN
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE BILL NO. 330
"An Act relating to providing alcoholic beverages to a
person under 21 years of age."
REPRESENTATIVE NORMAN ROKEBERG, SPONSOR, testified in
support of HB 330. He observed that a major tragedy occurred
in Anchorage last summer. An Anchorage police officer,
Justin Wollan, was killed in an automobile accident. The
officer was killed when he was hit by a teenager [under the
influence of alcohol], who perished along with other young
people in the automobile. The two individuals that were
convicted of furnishing alcohol to a minor could only be
charged with misdemeanors. The legislation would raise the
penalty for a person who furnishes alcohol to a minor from a
misdemeanor to a class C felony, if the action of the minor
results in serious injury or death. A class C felony is
punishable by a sentence of up to five years and up to a $50
thousand dollar fine. A misdemeanor is limited to up to one
year in prison and up to a $5 thousand dollar fine. He noted
that in the Anchorage incident one of the individuals was
convicted of two counts of misdemeanor furnishing alcohol to
a minor and sentenced to a maximum penalty of two
consecutive years [in prison] and a fine of $10 thousand
dollars. The legislation would allow the judge to pursue a
felony if the situation is egregious; where there was a
serious injury or death as a result of the cause of drinking
alcohol.
Representative Croft spoke in support of the legislation's
intent. He questioned if "negligently causes serious
physical injury" would include "intentionally" causing
serious physical injury. Representative Rokeberg noted that
the standard is simple negligence. Representative Croft
asked if the legislation would cover a case where a minor
who was provided alcohol assaulted somebody or, as in
Officer Wollam's case, they intentionally drove across the
meridian. Representative Rokeberg deferred the question to
legal counsel.
Representative Croft expected the legislation to tie the
harmful act to the intoxication. He asked the legal standard
for "under the influence". He questioned if it would be the
.08 blood alcohol content (BAC) level or the alcohol having
any affect on the conduct. Representative Rokeberg thought
that the standard was changed from .10 BAC to .08 BAC. He
pointed out that impairment is .04 BAC.
Representative Croft concluded that impairment would be
included. Representative Rokeberg agreed, in that it affects
the actions of the youthful miscreant. He stated that it was
his interpretation that "impairment" would be included under
the legislation.
ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES
SECTION, CRIMINAL DIVISION, DEPARTMENT OF LAW provided
information regarding the legislation. She clarified that
the Department interprets the law to be "under the
influence" of an alcoholic beverage. She pointed out that
the state prosecuted DWI cases for "under the influence"
prior to blood alcohol standards and breathalyzers. She
observed that it is a question of fact; whether or not the
state can prove beyond reasonable doubt that the person was
under the influence of alcoholic beverages. "Under the
influence" is not defined statutorily. There are definitions
of drunken person in Title 4. "Under the influence" is a
term that courts apply depending on the individual defendant
and the surrounding circumstances of their behavior.
Representative Croft reiterated that he expected to see a
nexus between providing the alcohol, specifically being
under the influence, and the negligence. He noted that [the
legislation pertains] to persons who cause physical injury
and are under the influence, without any link that indicates
that the drunken state was a contributing factor to or was a
substantial factor in the injury. Being negligent and being
under the influence are independent in the bill.
Ms. Carpeneti thought that the conditions were connected.
She thought "while under the influence of the alcoholic
beverage received in violation of the section" speaks to the
intent of the legislation. She noted that the intent was to
cover situations where individuals furnish alcoholic to
minors and [the minor] goes out and hurts people because of
their alcoholic intoxication. She emphasized the difficulty
of defining "under the influence" because it depends on the
person. Young people tend to be influenced at a lower level
of alcohol than more experienced drinkers.
Representative Croft observed that in cases where a license
holder in alcohol provides alcohol to a minor or someone who
is intoxicated, and they can be held civilly liable do not
require that it be shown that the particular alcohol that
was sold contributed to the accident, but they do require a
link to the actual drunkenness to the incident. He stressed
that there is precedent for linking the intoxicated state to
the negligent act.
Representative Rokeberg noted that the previous versions of
the bill connected both negligence and under the influence;
both negligence and under the influence would have to be
present. The current statute for .08 BAC is driving while
intoxicated.
Ms. Carpeneti explained that criminal law sets a certain
culpable mental state for the state to prove in order for a
person to be found guilty of an offense, Title 11 provides
that any culpable state more serious than that stated,
qualifies for that culpable mental state. She explained that
if the standard is criminal negligence and a person is
proved to have acted recklessly then they could be convicted
for criminally negligent homicide under the circumstances.
Representative Rokeberg added that the standard is civil
negligence.
Representative Lancaster questioned if drugs could be
included. Representative Rokeberg pointed out that Title 4
deals with alcohol. The inclusion of "controlled substances"
would need to be included under another title.
Representative Lancaster questioned if there is a way to
present the message without the legal penalty.
Representative Rokeberg noted that other laws have required
the posting of signs. He did not think that [posting signs]
would be warranted if the state does its job and gets the
word out. He expressed the hope that people would become
aware that the Legislature has reacted to the Anchorage
tragedy. He maintained that young people and children often
know the laws, such as minor possession, before adults.
Representative John Davies asked for further interpretation
regarding the language contained in the legislation.
Ms. Carpeneti explained that Title 11 speaks to the person
that furnishes alcohol to a minor, which results in harm to
other persons.
Representative Croft read A.S. 11.81.900:
(1) a person acts with "criminal negligence" with
respect to a result or to a circumstance described by a
provision of law defining an offense when the person
fails to perceive a substantial and unjustifiable risk
that the result will occur or that the circumstance
exists; the risk must be of such a nature and degree
that the failure to perceive it constitutes a gross
deviation from the standard of care that a reasonable
person would observe in the situation.
Representative John Davies questioned if a person would be
criminally negligent if they had alcohol in their cupboard
and knew that [the minor(s) who consumed the alcohol and
subsequently committed an offense which causes harm to
another person] knew that it was there. He also questioned
if a person provides alcohol [to a minor] and the minors
promise not to go anywhere but subsequently go out and
drive, if the person would be criminally negligent.
Representative Rokeberg observed that there were substantial
discussions in the House Judicial Committee on the "hosting
event" issue. He explained that criminal negligence is on
the part of the person that furnishes. The person that does
the act would also have to be negligent and cause physical
harm. Supervision around the dispensing of alcohol, such as
from a parent to a child, is recognized as legal under the
statutes. There are circumstances that are allowed under
Title 4 for hosting. He did not think that the situation in
a home where there was no supervision would be qualified as
a criminally negligent activity.
Ms. Carpeneti stressed that, as in all criminal cases, it
depends on the facts. If the alcohol is in a cupboard and
the person doesn't invite their children or their friends to
use it they would not be criminally negligent. If the adult
invites the underage children to consume the substance then
they would be negligent because they would know that there
was a risk that the minors would drink [the alcohol]; they
would be inviting them to violate the law.
Representative John Davies concluded that the alcohol has to
be provided with criminal negligence and secondly, the
person has to negligently cause physical injury. Ms.
Carpeneti stated that the legislation is more of a penalty
provision because the law already prohibits providing
alcohol to minors.
Representative Rokeberg interjected that the legislation is
just stepping up the penalty provision. Ms. Carpeneti
pointed out that the second time a person furnishes alcohol
to a minor they can be charged and convicted of a class C
felony.
Representative Croft questioned if someone who creates an
intentional act would be covered. Ms. Carpeneti stated that
the intent was that an intentional act be covered as long as
the child is acting under the influence of alcohol at the
time.
Representative Croft expressed concern that an adult that
allows their 19 or 20 year old child to have a beer would be
the guarantor of their subsequent conduct.
Representative Rokeberg pointed out that it is currently a
misdemeanor [to furnish alcohol to a minor] even if the
child does not injure someone. Representative Croft
concluded that it would be a class C felony if a person
negligently furnishes a minor with alcohol, who causes
injury, even if it is not related to being under the
influence.
Ms. Carpeneti noted that it would be class C felony if it
were the second occasion and no one was hurt. The clear
intent is that the injury is related to "under the
influence".
In response to a question by Representative Foster,
Representative Rokeberg reviewed the sentencing of the
individuals convicted of furnishing alcohol to the minors
involved in the Wollam case.
Representative Harris referred to the fiscal note by the
Alaska Public Defenders Agency. The Alaska Public Defenders
Agency expressed concerns regarding determinations and what
constitutes an "injury". Representative Rokeberg noted that
the definition is in Title 11. He explained that "serious
physical" was added [to injury].
Vice-Chair Bunde drew the parallel of a loaded firearm and
questioned if it would be negligent to have a loaded firearm
in a home where it is misused and someone is injured. Ms.
Carpeneti did not know the civil negligence ramifications
under the law. On a personal level, she felt that it would
be egregious to leave loaded guns where children could get
them and felt that it could rise to civil negligence. It
would depend on the facts. Vice-Chair Bunde asked if alcohol
in the home would potentially have the same problems as the
loaded firearm. Ms. Carpeneti responded that alcohol has the
potential of being very harmful, "as we have seen, over and
over."
Representative Rokeberg noted that there is another piece of
legislation on the issue, which provides a cause of action
in civil damages that would come before the committee. The
could not be combined due to the single subject rule.
Vice-Chair Bunde stated that he did not think it was
negligent to have a bottle of wine in an unlocked cabinet.
Ms. Carpeneti agreed and explained that the legislation
addresses "furnishing" which is much more serious.
Representative Whitaker agreed with the intent but
questioned the threshold necessary to achieve the intent. He
summarized that there must be a provision of alcohol by an
adult, which is currently a misdemeanor. Then there must be
a criminally intent occurrence, which also has a provision
of negligence associated with the minor. He questioned if
both were necessary to make the penalty more severe. Ms.
Carpeneti explained that the legislation addresses the
penalty section. The legislation provides a standard for the
negligent furnishing of alcohol to a minor to be classified
as a class C felony on the second occurrence within a five-
year period. The legislation also provides a class C felony
if the alcohol was given to a minor with criminal negligence
and the minor commits an act with civil negligence (after
they received and consumed the alcohol), which results in
serious physical injury or death to another person.
Representative Whitaker concluded that criminal negligence
must be attached to the provision of alcohol to the minor.
Ms. Carpeneti explained that for the offense to move to the
next penalty that there would have to be a past occurrence
of furnishing to a minor; or the minor would have to commit
an act, which causes serious physical injury [or death],
with some degree of negligence.
Representative Whitaker questioned if the act of illegally
receiving and consuming the alcohol could be deemed to be
negligent on the part of the minor, automatically rising to
the second standard. Ms. Carpeneti did not think that the
mere act of drinking the alcohol would raise the standard.
The minor would have to drink the alcohol and then act in
some way that was not free from guilt. Alcohol consumption
alone would not be considered civil negligence on the part
of the receiver. The child is breaking the law by consuming,
but it is a violation, not a crime. The law does not make
the association.
Representative Hudson questioned if the current law defines
"provider". He questioned if a parent who had a bottle of
scotch in the cupboard, which was consumed by minors, would
be guilty of a felony. Representative Rokeberg pointed out
that a person may not furnish or deliver an alcoholic
beverage to a person under the age of 21. It must be a
willful act on the part of the deliverer. Merely having a
bottle of wine in the cupboard would not be negligent.
Vice-Chair Bunde acknowledged the egregious behavior of
providing alcohol to 13 - 14 year olds. He observed that
there are indeterminate fiscal notes from the Department of
Corrections and the Alaska Public Defenders Agency. He
questioned the fiscal impact. Representative Rokeberg
emphasized the difficulty of making projections about
discrete criminal activity and did not think that the
statute would be frequently enforced. He noted that the law
would be put on the books as a deterrent. He could not
determine the specific cost. There would already be a charge
under current law. The statute change would result in
additional hard time.
Vice-Chair Bunde questioned how many people had been charged
with furbishing alcohol to a minor in the last 5 years,
whether or not a serious accident was involved.
Representative Rokeberg observed that the fiscal note was
based on the original draft, which spoke to "injury". The
current version speaks to "serious [physical] injury". Vice-
Chair Bunde reiterated that they should be able to tell how
many cases occurred in the past five years.
Co-Chair Mulder summarized that there is a certain amount of
anxiety about the family member who is caught in a bad
situation, which was not intentional, but could somehow be
construed as negligent. He emphasized that it is difficult
to establish the negligence standard in court. Ms. Carpeneti
explained that the culpable state of criminal negligence
must be proved beyond a reasonable doubt. Co-Chair Mulder
felt that the provision would only occur in extreme cases.
Ms. Carpeneti agreed. She thought that the Department of Law
would have looked at statistics for second offenses. She
reiterated that it would be utilized for extreme cases, "not
for your everyday furnishing, which is not the most common
offense anyway." Co-Chair Mulder stated that he would
support the legislation with the assurance that it would be
used for extreme cases.
Representative John Davies questioned if the simple
provision of alcohol to a minor is by definition criminal
negligence. Ms. Carpeneti noted that criminal negligence,
which is a higher standard, would have to be proved in order
to convict someone of a class C felony.
Representative Davies asked if: "I were in my house, [and] I
provided alcohol to a friend of my son's or daughter's, is
that provision of alcohol to a minor criminally negligent?"
Ms. Carpeneti responded that it would be criminally
negligent, if he knew that they were minors. Representative
Davies concluded that the simple provision of alcohol to a
minor is by definition criminal negligence.
Representative Rokeberg observed that under AS 04.106.051,
the mere act of the misdemeanor would not be negligent.
Representative Davies disagreed with Representative
Rokeberg's interpretation of the statute. He concluded that
he would be criminally negligent if he provided a beer to
the underage friend of his son's. Ms. Carpeneti affirmed
that it would be criminally negligent if he knowingly
provided the alcohol to minors.
Representative Davies MOVED to ADOPT Amendment 1: Page 1,
line 12 delete, "while" and insert "as a result of being".
Representative Rokeberg stated that he would not object to
the amendment if there were no objections from the
Department of Law.
Representative Davies clarified that the intent of the
amendment is to make it clear that there is a causal
element. He stated that there could be circumstances where
the fact of the alcohol could be a non-issue in the cause of
the injury.
TAPE HFC 02 - 33, Side B
Ms. Carpeneti expressed concern that if the minor received
alcohol from multiple sources it would be impossible to
prove that it was the result of one particular place.
Representative Davies stressed that the furnisher might not
be criminally negligent if there were multiple sources that
they were not aware of. She acknowledged the intent to
specify causation, but argued that the intent could be
established without having to proving that a particular
alcohol was the one that caused the injury to a person.
Representative John Davies WITHDREW his amendment.
Representative John Davies MOVED to ADOPT Amendment 2:
insert "acting" after "while" on line 12, page 1. There
being NO OBJECTION, it was so ordered.
Co-Chair Mulder observed that the fiscal notes were zero and
MOVED to report CSHB 330 (FIN) out of Committee with the
accompanying fiscal notes. There being NO OBJECTION, it was
so ordered.
CSHB 330 (FIN) was REPORTED out of Committee with a "do
pass" recommendation and with previously published fiscal
notes: LAW (1), ADM (2) and DOR (3).
| Document Name | Date/Time | Subjects |
|---|