Legislature(2003 - 2004)
04/21/2004 01:53 PM House FIN
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE BILL NO. 244
An Act relating to the Code of Criminal Procedure;
relating to defenses, affirmative defenses, and
justifications to certain criminal acts; relating to
rights of prisoners after arrest; relating to
discovery, immunity from prosecution, notice of
defenses, admissibility of certain evidence, and right
to representation in criminal proceedings; relating to
sentencing, probation, and discretionary parole;
amending Rule 16, Alaska Rules of Criminal Procedure,
and Rules 404, 412, 609, and 803, Alaska Rules of
Evidence; and providing for an effective date.
SUSAN PARKES, DEPUTY ATTORNEY GENERAL, CRIMINAL DIVISION,
DEPARTMENT OF LAW (DOL), introduced the omnibus crime bill.
She noted that many concerns were raised in various
committees, and this bill is very different than last year's
crime bill after the House Judiciary Committee's work on the
new Committee Substitute. The bill covers both procedure and
substantive criminal law.
Ms. Parkes provided a detailed explanation of the sectional
analysis. She pointed out that the first six sections of
CSHB 244(2ndJUD) concern enforcement of bootlegging, which
is a priority of the current Administration. It would
empower communities to limit alcohol, and allow by statute
the recognition and enforcement by state troopers and
prosecutors of lower levels of alcohol in the communities.
Currently four communities have chosen to allow only lower
limits of possession of alcohol than the state statutes
provide for. These provisions also allow for better
forfeiture. Currently, money is not included in the
bootlegging forfeiture statutes. This would allow money as
well as snow machines and boats in the forfeiture and bring
it into compliance with the drug statutes. It also provides
that unless a village has opted out of this provision,
providing liquor to a minor in a local option community
would become a C felony rather than an A misdemeanor.
Ms. Parkes said that Section 8 is a conforming section to
another provision. Section 9 amends the felony murder
statute. Current law provides that if a group commits a
serious offense and one member kills a non-participant,
everyone is guilty of murder. The House Judiciary amendment
states that if a participant is killed in the commission of
a felony, the other participants could be held liable for
murder unless the death results from the felony conduct of a
non-participant.
Representative Chenault asked for further clarification of
the forfeiture of money. Ms. Parkes explained that it
involves money that can be tied to the crime, as in money
changing hands in a drug deal. There must be a nexus between
the money and the crime, and the DOL can't sweep an
individual's bank account. She said the forfeiture of money
often happens in drug deals, but this provision would add it
under the bootlegging forfeiture.
Representative Chenault asked if currently all participants
in a group could be charged with murder. Ms. Parkes
affirmed, and explained that the theory behind felony murder
is that the conduct of people participating in dangerous
activities could result in a death.
Ms. Parkes spoke to Section 10, which changes the assault
statutes. It closes a loophole and gives the Department the
ability to prosecute cases of assault where there is
criminal negligence and serious physical injury from a
dangerous instrument.
Ms. Parkes continued. Sections 11 and 12 relate to the
sexual abuse of a minor statute, making penetration offenses
a felony while contact offenses remain a misdemeanor.
Section 13 creates a new crime called "violation of a third
party custodian." Currently judges, as part of the bail
condition, release people to a third party custodian who
agrees to report any violations of bail. Many people do not
take the job seriously, and this creates a misdemeanor
offense instead of holding the third party custodian in
contempt for not immediately reporting violations.
Ms. Parkes explained that Sections 14 and 15 extensively
amend the self-defense statutes, in response to "the
sweeping proposal" that created concern last session. A
court must find at least some plausible evidence of self-
defense. It also addresses gunfights between drug dealers
and gangs in Anchorage and Fairbanks, providing that if the
force used resulted from a weapon brought to a felony drug
deal or a felony gang activity, the violator can't hide
behind the shield of self-defense.
Ms. Parkes noted that Section 16 is an amendment added in
House Judiciary Committee. Under current statute, if a
person is arrested and voluntarily agrees to talk to the
police, an attorney can interrupt the interview. This
recognizes that the Constitutional right to remain silent
belongs to the individual and if the individual has waived
that right, someone else can't later invoke it on his or her
behalf.
Representative Chenault questioned if a parent could decide
to end the interview of a minor. Ms. Parkes answered that
officers must ask minors if they want to have their parents
present. She maintained that there are safeguards to protect
individuals needing protection. Representative Chenault
argued that there are cases of intimidation, which would
result in a minor waiving their right. He spoke against
allowing minors to be interviewed without the presence of
their parents.
Ms. Parkes explained that Section 17 conforms the statutes.
Section 18 was added to require a written or oral finding
when a third-party custodian is required as part of bail.
Ms. Parkes continued. Sections 19-21 address immunity.
Section 19 conforms immunity to the interpretation of the
Supreme Court, which allows transactional immunity.
Sections 20 and 21 set up a process to handle these
situations by the court. If a witness is subpoenaed, the
judge will appoint an attorney and hold a private hearing to
decide if there is a valid claim of Fifth Amendment
privilege. She discussed the provisions.
Ms. Parkes noted that Section 22 is a conforming statute.
Section 23 relates to consecutive terms of imprisonment, and
it is identical to last year's bill. It mandates that in
serious crimes, judges be required to impose some
consecutive term of imprisonment. In the interpretation of
current statute by the courts, judges have not recognized
multiple victims or multiple crimes in their sentencing.
This would require mandatory time for each victim and each
offense.
Ms. Parkes noted that Sections 24 and 25 are conforming
language. Section 26 applies to driving under the influence.
Currently, the third DUI within 10 years becomes a felony,
but because of the way the ten-year "look-back" works,
another DUI within 2 or 3 years might be a misdemeanor. This
provision would recognize another DUI within 20 years as a
felony once a person has a felony DUI.
In response to a question by Representative Chenault, Ms.
Parkes clarified that another bill addresses the "look-back"
at past DUI activity, but this provision addresses the
future.
Representative Fate questioned why drugs are not addressed
in the bill, considering their endemic existence in rural
Alaska. Ms. Parkes responded that the bill includes
provisions to address the gaps in the bootlegging statutes,
and the self-defense provision addresses the violence
related to drugs and alcohol.
Representative Fate reiterated his concern.
Representative Joule acknowledged that there are laws in
place to address drug use, but he pointed out that the laws
are not successful without enforcement. He noted the lack of
funding for enforcement.
Ms. Parkes stated that Section 27 addresses the "big gulp"
defense. Current statute allows a defendant to argue that he
consumed a large amount of alcohol just before his departure
in a vehicle, the alcohol was not in his blood stream at the
time he was stopped by the police, but he was over the legal
limit an hour later when given the blood alcohol test. This
would foreclose that defense and make the defendant
responsible for his alcohol consumption.
Ms. Parkes noted that Section 28 relates to the DUI and the
20-year look forward. Sections 30 and 31 are conforming
statutes. Section 32 would allow public disclosure by the
Department of Health & Social Services about juvenile
offenders when it is necessary to protect the safety of the
public. Regulations would be created to address this
concern.
TAPE HFC 04 - 93, Side A
Representative Joule expressed concern regarding the
bootlegging provisions and questioned whether the State
would have the resources to handle the increased offenses.
He observed that part of the intent in moving from a class A
misdemeanant to a class A felon is to allow greater
supervision by probation officers. Ms. Parkes offered to
address the issue later.
CINDY CASHEN, MOTHERS AGAINST DRUNK DRIVING, JUNEAU,
testified in support of the legislation. She read from
written testimony, paraphrasing the following:
"Mothers Against Drunk Driving (MADD) supports CS for House
Bill 244.
MADD supports consecutive jail time for each death in a
drunk driving crash in order for restorative justice to take
place within our communities.
As a victim in the State v. Glaser case, I cannot begin to
explain the unnecessary bitterness and frustration our
families struggle with because of the court decision which
refused to consider the multiple deaths in the drunk driving
tragedy. Currently in Alaska, a loved one's life is less
valuable than a stolen automobile in a felony case; this
sends a dangerous message out to all Alaskans. Each life
torn from us by drunk driving is certainly worth taking into
individual consideration; to do otherwise would create
additional heartache and trauma for victims of this violent
crime.
MADD also supports the right for communities to adopt lower
limits of alcohol possession and importation in order to
increase the health and safety of their people.
MADD supports stricter drunk driving sanctions for high risk
drivers. Habitual drunk drivers who have repeatedly chosen
to endanger themselves and everyone else who shares their
road system must be held accountable for their crimes.
About one-third of all drivers arrested or convicted of
driving under the influence are repeat offenders. These
drivers are 40% more likely to be involved in a fatal crash
than those without prior DUIs.
MADD supports increased penalties for those whose choice to
drink and drive results in the serious injury of an innocent
victim or victims.
People who drink and drive are unable to determine if they
are sober before arriving at their destination. If a person
chooses to drink and drive then that person has committed a
crime and should be held accountable for his/her actions.
MADD supports the recommended changes in CS for House Bi1l
224 as a way of deterring further drunk driving tragedies
and improving Alaska's restorative justice system."
Ms. Cashen recounted an incident in Hoonah. She spoke in
support of third party custodian provisions. She asked that
the amendment deleting the manslaughter charge and allowing
it to become concurrent sentencing not be adopted. She
discussed the pain that it caused two families when the
judge changed his decision from consecutive to concurrent
sentencing for the accident causing the deaths of her own
father and Martin Richard. In essence, the drunk driver was
punished for causing one death instead of two. Ms. Cashen
concluded that this issue concerns restorative justice and
the victims of the drunk driver.
HB 244 was heard and HELD in Committee for further
consideration.
ADJOURNMENT
The meeting was adjourned at 3:42 P.M.
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