Legislature(2007 - 2008)HOUSE FINANCE 519
04/08/2008 01:30 PM House FINANCE
| Audio | Topic |
|---|---|
| Start | |
| SB259 | |
| SB254 | |
| SB202 | |
| SB265 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 243 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 265 | TELECONFERENCED | |
| += | SB 202 | TELECONFERENCED | |
| += | SB 119 | TELECONFERENCED | |
| += | SB 259 | TELECONFERENCED | |
| += | SB 254 | TELECONFERENCED | |
CS FOR SENATE BILL NO. 265(FIN)
An Act relating to the payment of permanent fund
dividends to certain individuals required to register
as sex offenders or child kidnappers; relating to
execution upon permanent fund dividends by civilian
process servers using electronic procedures; amending
Rule 89, Alaska Rules of Civil Procedure; and providing
for an effective date.
Representative Foster MOVED to ADOPT work draft 25-LS1449\W,
Luckhaupt, 4/6/08, as the version of the bill before the
Committee. There being NO OBJECTION, it was adopted.
4:24:18 PM
SENATOR LESLIE MCGUIRE, SPONSOR, directed her comments to
the original version of SB 265.
*Co-Chair Meyer pointed out that the bill had previously
been heard in the House Finance Committee and that public
testimony had been closed.
Senator McGuire addressed previous question about
identifying those who are not in compliance with the sex
offender registry and why they were not being arrested. She
explained that the issue is one of resources and that being
out of compliance for the sex offender registry is a Class A
misdemeanor. She reiterated the concern with resources and
that the bill attempts to create one more disincentive for a
sex offender to comply.
Senator McGuire requested that Amendment 1, 25-LS1449\W.6,
Luckhaupt, 4/7/08, be WITHDRAWN. The amendment would have
mandated that the Department of Public Safety distribute a
list to all law enforcement, a practice already done. She
added that the manner, in which the amendment was drafted,
would make it more confusing.
4:27:34 PM
KATHRYN MONFREDA, CRIMINAL RECORDS & IDENTIFICATION BUREAU,
DEPARTMENT OF PUBLIC SAFETY, ANCHORAGE, testified via
teleconference, advised that the Department of Public Safety
currently produces a monthly list of non-compliant sex
offenders distributed to specific law enforcement agencies.
4:28:31 PM
Senator McGuire addressed the next question put forward by
the Committee. Two members asked about the issue of court
ordered garnishments [child support payments] owed to
children of sex offenders. Amendment 3, 25-LS1449\W.4,
Cook, 4/7/08, was written to address that concern.
Amendment 3 exempts court ordered garnishments from the bill
and Child Support Enforcement Agency (CSEA) and other
debtors would still be able to get the offenders Permanent
Fund Dividend (PFD) if they are out of compliance.
Senator McGuire continued. The final question brought
forward by the Committee was in regard to the Permanent Fund
Dividends (PFD)'s after they had been withheld for a year.
She pointed out that in Amendment 4, 25-1449\W.3, Cook,
4/7/08, the PFD would be withheld up to one year. If the
person failed to comply after that year, the PFD would then
be rolled into the Crime Victim Compensation Fund.
4:31:34 PM
Representative Gara noted that SB 265 includes a number of
bills and asked if the ones brought forward were the same
version as they had been amended in other committees or the
same as the original bills.
Senator McGuire offered to provide a sectional analysis,
addressing concerns with the bills during other committee
processes. She explained that each piece was chosen and
incorporated only if there had been no contention. She
added, there is a new concept proposed by the House Judicial
Committee, which had come before the Finance Committee as an
amendment. It addresses the boot-legging provision.
4:33:35 PM
Senator McGuire:
· Sections 1 & 2 was taken from the House Judiciary
Committee (HJC) and provides that a licensee, agent
or employee of a licensee is not subject to
prosecution for furnishing alcohol to a minor under
AS 04.16.051. Rather, licensees and their agents
would be subject to prosecution under AS 04.16.052,
which would be a Class A misdemeanor.
· Section 3 provides that a person who sends,
transports, or brings alcoholic beverages into a
municipality or established village that has
prohibited the importation of alcohol, upon the
third offense within 10 years is guilty of a Class C
felony.
4:35:38 PM
ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES
SECTION-JUNEAU, CRIMINAL DIVISION, DEPARTMENT OF LAW,
explained Section 4.
· Section 4 provides a minimum sentence of
imprisonment and fines for a conviction under AS
04.16.200(e)(1), if the person is not subject to the
changes made in Section 3.
4:36:20 PM
Senator McGuire continued:
· Sections 5 & 6, requires a person who lends money on
secondhand articles in a municipality with over
5,000 residents to maintain in an electronic format,
the date of the transaction and a description of the
property.
4:37:40 PM
Vice-Chair Stoltze noted the 5,000 population limit for a
municipality. Ms. Carpeneti understood that a municipality
as included in Sections 5 & 6 refers to a borough.
Representative Gara noted his support for the endeavor. He
worried about the single subject rule, referencing Sections
5 & 6, civil aspects of particular crimes on pawn shops and
theft. He questioned the position of such issues addressed.
Senator McGuire opined that the single subject rule is "a
delicate line" and that there had been a severability clause
written into the bill. She believed that including Sections
5 & 6 "makes the cut", but acknowledged that ultimately, it
is open to the will of the Committee. Ms. Carpeneti added
that it is defensible under the single subject rule because
it addresses stolen property.
4:40:11 PM
Representative Gara inquired where Sections 5 & 6 had been
taken from. Senator McGuire responded that Senator French
had proposed that amendment during the Senate Judiciary
Committee (SJC) meeting.
4:42:15 PM
Senator McGuire continued:
· Section 7 allows a peace officer, owner or owner's
agent of a commercial establishment to detain a
person for a reasonable time if there is a probable
cause to believe the person has committed or
attempted to commit theft from the property.
· Section 8 clarifies that when a theft offense is
enhanced one level because the defendant has two
prior thefts within five years of the new crime, a
prior conviction occurs on the date that the
defendant was sentenced for the theft.
· Section 9 changes the culpable mental state for the
nd
crime of Arson in the 2 Degree.
· Section 10 adopts a new crime - Criminally Negligent
st
Burning in the 1 Degree, which applies to persons,
convicted a second time within a 10-year period of
arson or criminally negligent burring. The crime is
a Class C felony.
4:44:55 PM
Representative Gara asked if it would reduce the mental
state from "intentionally" to "knowingly" for arson in the
nd
2 degree. Ms. Carpeneti said yes and that recommendation
had been made by Representative Gruenberg, resulting from a
series of intentionally started home dumpster fires.
Representative Gara inquired if there could be "reckless"
cause creating damage. Ms. Carpeneti replied that there is
criminal negligence in burning. Current law carries arson
stnd
in the 1 and 2 degree & criminally negligent burning. The
proposed law divides the criminally negligent burning into
stnd
1 and 2 degree.
Representative Gara proposed that for some adolescences,
negligence does not intent to light a house on fire. He
asked if that was the correct & fair penalty for a dumb
mistake. Senator McGuire interjected that the Committee
could amend the bill, however, the current language states:
"Knowingly damaging a building". Ms. Carpeneti understood
that the risk was known when the fire was started, which
would have to be proven.
4:49:40 PM
Senator McGuire referenced Section 11.
· Section 11 conforms current law, the criminally
nd
negligent burning, by making it 2 degree criminally
negligent burning.
*Representative Gara asked the level of crimes that Sections
9 & 10 consider. Ms. Carpeneti explained that arson in the
nd
2 degree is a Class B felony; the new crime, criminally
st
negligent burning in the 1 degree would be a Class C
nd
felony; currently, criminally negligent burning is 2 degree
Class A misdemeanor. Representative Gara inquired about the
classification of Class C felonies. Ms. Carpeneti stated
that "knowing" is a higher standard than "reckless".
4:51:31 PM
Senator McGuire continued:
· Section 12 ads three controlled substances under
Schedule IVA including Carisprodol-commonly called
Soma and listed as a controlled substance in 17
states; Zolpidem-commonly called Ambien and listed
as a Schedule IV substance in federal schedules;
Zopiclone-commonly called Lunesta and listed as a
Schedule IV substance in federal schedules. These
prescription drugs have been widely abused and have
been found by law enforcement to be present in
drivers who are impaired.
· Section 13 clarifies that a court may issue a search
warrant for property located outside the State. The
issue of the court's authority out of state has
arisen in white collar investigations where the
state seeks stored electronic information.
Companies that store the information are willing to
provide it if law enforcement and present a search
warrant for the information. The change would
clarify that a court may issue a warrant to obtain
the information.
4:53:16 PM
Senator McGuire continued:
· Section 14 allows a judicial officer to issue a
search warrant over the telephone or other
electronic communications in the important affairs
of their lives. Law enforcement should not have to
drive or fly to a judicial officer for a search
warrant when electronic means are available for the
court to fairly evaluate the evidence.
· Sections 15, 16, 17, 30 & 31 will help avoid
potentially dangerous situations where a person is
charged with a crime, but found incompetent to be
tried for it, and then is released back into a
community without adequate consideration of the
danger the individual may present and without notice
of release to the prosecution. It would require a
person charged with a felony and found incompetent
to be evaluated for commitment and treatment. The
bill adopts a rebuttable presumption that a person
charged with a felony but found incompetent to
proceed is mentally ill and likely to present a
danger to themselves or others. It allows the court
to consider the conduct with which the person has
been charged in making that determination.
4:54:43 PM
Ms. Carpeneti explained that those sections address a
problem that has arisen in how to deal with people that are
not competent to be tried. The language requires that the
persons charged with the felony to be referred for an
evaluation by a mental health professional. It would then
adopt the presumption that is rebuttable that the person
sent for evaluation presumption that person is mentally ill
and is likely to commit serious harm to them self or another
individual. Later sections of the bill require that before
a release of a person found to be incompetent, a
professional must notify the prosecution before the release,
allowing time to notify the law enforcement.
4:56:54 PM
Ms. Carpeneti explained:
· Section 18 allows the court to impose probation on a
person who is convicted of a violation under AS 11
and AS 16.
4:58:50 PM
Representative Kelly questioned the notification of
prosecutors for intervention help and asked if the murder in
Sitka could have been avoided using that provision. Ms.
Carpeneti acknowledged that situation was difficult. Under
current statutes, the person could not be held longer than a
year because the incompetent person had not been convicted.
It would help to require an evaluation of every person
charged of a felony, requiring the notice before that person
is released.
Representative Kelly wondered if there was any additional
language that could be added to address loopholes in the
system. Ms. Carpeneti did not think the statutes could be
applied to the Sitka case since that young man had not been
found incompetent initially to be tried. He had only been
charged with an assault and had then been released on bail.
5:02:15 PM
Representative Gara voiced concern that in Section 18, a
person that had not yet committed a crime could be placed on
probation. Ms. Carpeneti stated that there are a few
violations in AS 11, such as failure to report a crime.
Representative Gara questioned why a fish and game crime
could become a fineable offense. Ms. Carpeneti explained
that would be determined by whether it happened
intentionally or not. Representative Gara inquired the
level at which it becomes only a violation. Ms. Carpeneti
acknowledged that a person can not go to jail with only a
violation and that there is no probation supervision for
those convicted misdemeanors or offenses. Fines can be
imposed.
5:04:48 PM
Ms. Carpeneti addressed Section 19.
· Section 19 defines "aggravated assaultive behavior"
as a felony assault under AS 11.41 or a similar
provision in another jurisdiction.
· Section 20 provides that the aggravating factor that
a defendant convicted of a felony sex offense has
engaged in sexual offense against the same or
another victim, is a factor that may be proven to
the court at sentencing rather than to the jury.
Representative Gara referenced another bill proposed by
Representative Holmes regarding the three offense
sentencing. He asked if either of the two bills would
address the Blakely concerns. Ms. Carpeneti replied they
would not.
Senator McGuire continued:
· Section 21 allows the Governor to delegate
extradition authority responsibilities either to the
Lt. Governor or the head of a principal department
in the executive branch. The appointment must be in
writing and filed with the Lt. Governor.
· Sections 22-24 address post-conviction relief. In
the language Sections 22 and 23, provides that a
person has one year to bring an application for the
relief after the entry of judgment if no appeal from
the conviction is taken and one year to bring an
application for the relief after the entry of an
order revoking probation. Section 24 requires the
court to first decide whether an application for
post-conviction relief is timely and no previous
application filed, before considering a substantive
claim in an application.
· Section 25 allows a court to order a person
convicted of violating any law or regulation under
Title 16 for the unlawful taking of game to pay
restitution for the unlawful taking.
5:09:25 PM
Senator McGuire continued:
· Section 26 provides that a court that convicts a
person for violation of AS 04.16.050 (Possession,
control, or consumption by persons under the age of
21) shall forward a record of the conviction to the
Division of Motor Vehicles (DMV) within five working
days.
· Section 27 provides that the court may order a
person charged under AS 04.16.200(b) or (e) to
complete a court-ordered treatment program.
· Sections 28-29 requires that payment of the
Permanent Fund Dividend (PFD) for a person, who is
required by law to register as a sex offender or
child kidnapper, be delayed until that person
submits proof that the requirements for sex offender
registration have been met by the applicant for the
dividend.
· Section 32 dispels a potential misunderstanding in
the applicability sectional clause in HB 90, which
had been adopted last year.
Ms. Carpeneti explained that Section 32 clarifies the
intention for adoption of HB 90 last year, an action, which
limited application for post conviction relief to a one year
statute of limitation.
5:14:08 PM
Senator McGuire argued that had not been the intent of HB
90, but rather to "narrow" the language, not reopen claims
for post-conviction relief.
· Section 33 repeals AS 12.35.015(f) to conform the
amendment in Section 12, which allows a court to
issue search warrants by telephone and other
electronic means.
· Section 34 repeals AS 11.71.310 and AS 12.20.010
that prohibit prosecution by the State for
violations of State law if the federal government
has prosecuted the same act for violation of federal
law. Although, the situation does not occur often,
it is important that Alaska has the authority to
enforce laws and protect interests and the citizens.
· Section 35 changes a Court Rule to allow more time
for the return with inventory of a search warrant.
· Section 36 is a Court Rule change reflecting the
provisions relating to post-conviction relief
contained in Sections 22, 23 and 24.
· Section 37 is an applicability section.
· Section 38 retroactive section for Section 32.
· Section 39 provides the immediate effective date for
Sections 32 and 38.
st
· Section 40 indicates that January 1 2009 as the
effective date for Sections 28 and 29.
st
· Section 41 is an effective date of July 1 2008 for
all other sections not stipulated in Sections 39 and
40.
5:20:01 PM
Ms. Carpeneti clarified that Section 38 makes retroactive
the section that clarifies the applicability clause in HB
90, retroactive to July 1, 2007.
AT EASE: 5:21:09 PM
RECONVENE: 5:23:04 PM
Representative Gara recommended a severability clause be
included. Senator McGuire agreed, advising that one is
currently being drafted.
Representative Gara asked about the post-conviction relief
section of the bill regarding finding evidence within one
year and if that could be used. He worried about new
evidence coming forward.
BLAIR MCCUNE, CRIMINAL DEFENSE ATTORNEY, PRIVATE PRACTICE,
ANCHORAGE, testified via teleconference, agreed that the
provision was unclear. He added that if new evidence was
presented that could change the outcome, there should be no
time limit attached. A two year limitation was determined
in 1995 and he did not believe that it could survive a due
process challenge. He stated that it is difficult to file
such cases since the 1995 determination. Two years for
entry of judgment for conviction, recognizes that most
people currently would not be currently represented. The
big concern is the filing fee exemption. In order to file
the applications, if the filing fee is not available, that
person must get a certification from the Department of
Corrections regarding their inmate account balance and then
the court can charge 20% of the average six month balance.
The process takes a long time.
5:30:00 PM
In response to Representative Gara, Ms. Carpeneti explained
that the action would not be happening after an appeal but
after the conviction had been appealed and upheld. Under
current law, the Statute of Limitations for post conviction
relief is one year if there is an appeal and two years if
there isn't. The language would not limit any newly
discovered evidence.
Representative Gara did not understand the language on Page
11, regarding submersible evidence not known within one
year. Ms. Carpeneti recommended reading the lead-in
language on Page 10: "Not withstanding A(3) & (4), the
statute of limitations, the court may hear the claim based
on newly discovered evidence". She agreed that the statute
directive had been drafted strangely.
Representative Gara asked the result if the evidence was
found six months afterward. Ms. Carpeneti responded that
due diligence would have to be established. Representative
Gara asked the relief after one year. Ms. Carpeneti stated
that if due diligence is established after the evidence is
discovered, they could bring the application of post
conviction forward. If it was not known for one year, under
Section 22, those time limitations do not apply.
Representative Gara presented two circumstances. Ms.
Carpeneti explained that the person would have to exercise
due diligence in filing the claim to bring forward to the
courts.
Mr. McCune acknowledged that the statute was confusing. He
wondered if it would be easier to say with due diligence,
the person could bring forward an application for post
conviction relief based on newly discovered evidence at any
time. Ms. Carpeneti agreed that was the correct
interpretation.
Representative Gara asked about concerns voiced by Mr.
McCune regarding State resources and that one year would not
be enough time to file a claim. Ms. Carpeneti said that was
not of concern; the sentencing occurs after a person has
been convicted and the conviction has been upheld. She
maintained that due diligence should be used and that one
year would be long enough.
5:37:50 PM
Representative Nelson requested further discussion of
Section 4 and the bootlegging provisions. She noted that
she represents twenty-nine [29] dry communities. She
questioned if the language only addresses fines and the
look-back period.
REPRESENTATIVE RALPH SAMUELS explained that the House
Judiciary Committee (HJC) did not change the jail time in
Section 4. The first conviction was left at $1500 dollars
and after that, every other conviction was raised to $10,000
dollars and then up to $25,000 dollars. It is just a
business and that the costs should be increased until the
bootleggers can no longer afford to do business. He had
spoken with various representatives from the village
communities and maintained that fines knock-back bootlegging
business.
Senator McGuire pointed out that she was committed to
working with the Department of Law with regard to the amount
of alcohol across all the statutes and up for reduction.
5:41:47 PM
REPRESENTATIVE JAY RAMRAS added that the House Judiciary
Committee attempted to blend a variety of concerns. A
majority of the Committee members shared an intolerance of
alcohol being in the dry communities. Included in the work
draft is the existing amount of alcohol indicated in Title
4. The look-back period was shifted to 15-years. The
intention is to show a distinct intolerance of alcohol
coming into dry communities. Representative Nelson
reiterated the intolerance of alcohol coming into dry
communities; she asked the difference between five and ten
jugs if the community is dry.
Ms. Carpeneti advised that currently, it is a Class A
misdemeanor to bootleg amounts lower than the felony
threshold level into a dry community. Right now, it is a
Class C felony to bootleg amounts higher than the amount set
forth in statute. The work draft makes it a Class C felony
if a person is convicted for the third time for bootlegging
small amounts into a dry community. Title 12 uses the same
amounts in a variety of areas in Title 4; she however,
worried about unintended consequences with the change.
Representative Nelson commented that she had a difficult
time imaging the quantities. She asked the difference
between a damp community and a dry community. Ms. Carpeneti
explained that in a damp community, a person can legally
possess certain amounts of alcohol without the intent to
sell. If more than those amounts are possessed, there is a
legal presumption that person possess with the intent to
sell. She pointed out that the fines had been raised in HJC
in order to enforce the law. She advised that a $10,000
mandatory minimum fine for subsequent bootlegging will cause
problems.
5:48:24 PM
Representative Nelson inquired how the monthly volume is
determined for a damp community. Representative Ramras
replied that the calculations were measured in ounces per
gallon; one case of liquor, 2 cases of wine and about 10
cases of beer.
Representative Nelson asked if the Rural Justice Commission
had taken a stand on the bill. Representative Ramras
responded that there had been an issue that came up in the
HJC, in which they relied on testimony taken from
Representative Dalhstrom. He recommended that
Representative Fairclough address that round-table
discussion that occurred in that Committee. The Committee
attempted to reflect the broader concerns that had been
raised. Senator McGuire interjected that there are a number
of bootlegging bills circulating throughout the legislature.
5:51:31 PM
REPRESENTATIVE ANNA FAIRCLOUGH understood that the Rural
Justice Commission was supportive of the consolidated
package, but she did not know the specifics. Ms. Carpeneti
clarified that the rules have been in statute for many
years. She shared the concerns regarding the amounts
allowed and encouraged that they are considered within the
entire context of Title 4.
Representative Nelson acknowledged they are large amounts.
She hoped that individual's attorneys would advise those
offenders of the increased offense. Senator McGuire pointed
out that the bill has created a "big debate". She agreed
that when determining an amount, there should be an attempt
to make it consistent. She supported increasing the
staggered fines. She pointed out that on Page 3, Line 8
makes the look-back 15-years as opposed to 10-years. She
noted that she had not the time to pull together all section
of Title 4, which governs alcohol. Ms. Carpeneti
interjected that this is the first time there has been
mandatory fines for bootlegging.
5:54:58 PM
Representative Joule directed discussion to the fine
structure. He thought that behavior could only be changed
through monitoring post offices and airports with well
trained dogs. He did not understand what the proposed
language could accomplish, pointing out that there are not
enough troopers or village Public Safety Officers (VPSO)'s.
5:58:22 PM
Representative Thomas didn't think that the fine would keep
the bootleggers from bringing the alcohol into the
communities and that the action will continue.
Ms. Carpeneti did not object to returning the fines to those
recommended in the HJC; however, pointed out that
prosecutors have voiced concern. Representative Kelly
echoed previous comments made by Representative Thomas. He
added that if the Rural Justice Commission supports the
bill, it should be implemented and done correctly with the
stronger approach.
6:02:16 PM
LIEUTENANT RODNEY DIAL, ALASKA STATE TROOPERS, DEPARTMENT OF
PUBLIC SAFETY, ANCHORAGE, testified via teleconference,
agreed that there is a significant financial incentive for
the bootleggers. The Troopers have witnessed returns as
high as 15-1. The State Troopers are attempting proactive
enforcement by intercepting alcohol. He added that the
sentences and fines mentioned in the bill were reasonable.
Representative Joule asked how effective dogs could be in
assisting the Troopers. Lt. Dial suggested that they are
more effective with illegal drug importation than with
alcohol because of the sealed containers.
Representative Joule asked the rate of success with alcohol
seizure from the use of dogs. Lt. Dial responded that in
2007, the State Troopers seized 181 gallons of alcohol not
dog related. He did not know if dogs could be trained to
find and smell alcohol.
6:05:44 PM
Representative Crawford proposed that in attempting to make
it effective, all alcohol sent to dry communities should be
marked with a smell and then tracking the point of delivery
to each airport or post office for dog-tracking.
Representative Gara asked about the damp communities that
can legally possess alcohol for personal consumption but not
for selling. He asked if the alcohol limitation applies for
personal consumption. Representative Nelson explained that
it can be purchased, just not brought into the dry
communities.
Ms. Carpeneti emphasized that the penalties contained in the
bill apply only to bootlegging in dry communities. For the
damp community, the same amounts are the threshold level,
and above those amounts, would create a presumption that it
is possessed with the intent to sell.
6:09:02 PM
Senator McGuire encouraged that the House Finance Committee
wait to determine the amounts or fine structure. She
pointed out that the fine structure can not be more than
$10,000 dollars.
Representative Nelson referenced previous comments regarding
volume and hoped to see the Alcohol Beverage Control (ABC)
Board adjusting the volume across the statutes, changing the
amounts of wine allowed in and decreasing the amount of hard
alcohol. She added that there are not a lot of "winos" in
rural Alaska. She did not want to see responsible drinkers
punished.
6:12:27 PM
Representative Gara mentioned the previous criminal bills
moving throughout the legislature. He asked about the bill
addressing high-level animal cruelty. Senator McGuire
stated that she would support any amendments proposed by the
House Finance Committee (HFC) for a vote.
Vice-Chair Stoltze noted that he was a co-sponsor on animal
cruelty legislation, summarized how complicated that bill
is.
6:15:14 PM
Senator McGuire requested to WITHDRAW new Amendment #1, 25-
LS1449\W.6, Luckhaupt, 4/7/08. The Department testified
that it is already their practice to report sex offenders.
6:16:16 PM
Vice-Chair Stoltze MOVED to ADOPT Amendment 2, to Page 6,
Line 14, after "convicted" inserting "on two separate
occasions". Co-Chair Chenault OBJECTED.
Senator McGuire addressed the amendment, which guarantees
that a person would not be convicted until there had been
two prior convictions.
Representative Hawker clarified that a new Amendment 2 had
been moved, not the original version.
6:18:23 PM
Ms. Carpeneti advised that the Department of Law had
requested the amendment. When a misdemeanor offense is
enhanced to a felony, it would only occur on the third time,
as proposed in new Amendment 2. She added that
Representative Gruenberg did not object to the changes made
in the HJC.
Co-Chair Chenault WITHDREW his OBJECTION. There being NO
further OBJECTION, it was adopted.
6:20:23 PM
Vice-Chair Stoltze MOVED to ADOPT Amendment 3, 25-
LS1449\W.r, Cook, 4/7/08. Co-Chair Chenault OBJECTED.
Senator McGuire advised that the amendment addresses a
concern brought forward by the House Finance Committee
(HFC), clarifying that if there is a court ordered
garnishment for child support, it takes precedence prior to
withholding a sex offender's Permanent Fund Dividend (PFD).
Co-Chair Chenault WITHDREW his OBJECTION. There being NO
further OBJECTION, it was adopted.
Vice-Chair Stoltze MOVED to ADOPT Amendment 4, 25-
LS1449\W.3, Cook, 4/7/08. Co-Chair Chenault OBJECTED.
Senator McGuire explained that Amendment 4 addresses the HFC
questioning regarding what happens with the PFD's after they
are withheld for a period of a year, while the sex offender
continues to be non compliant. The amendment proposes to
sweep the PFD's into the Crime Victim Compensation Fund.
Funds can not be dedicated and consequently, the amendment
is drafted listing all funds that it could move into.
6:22:48 PM
Co-Chair Chenault asked if it would apply to the non-
compliant sex offenders after a year. Senator McGuire
agreed, pointing out that it currently is a crime to fail to
register & comply. She added that over 10% of the sex
offender population fails to comply. Law enforcement is
now over-stretched. The amendment provides a step into help
address those that do not comply.
Co-Chair Chenault WITHDREW his OBJECTION. There being NO
further OBJECTION, it was adopted.
Vice-Chair Stoltze MOVED to ADOPT Amendment 5 to Page 6,
Lines 24-27, deleting all material and renumbering the
remaining sections accordingly. He noted the drafting
instructions: "Make any conforming changes to the sections,
renumbering as a result of adoption of the amendment." Co-
Chair Chenault OBJECTED.
6:26:04 PM
Senator McGuire advised that the amendment addresses
concerns voiced by the HFC.
Representative Gara pointed out that included were legal
prescriptions drugs; he noted concern with the impact of
that section. Ms. Carpeneti explained the substances are
commonly used for sleep conditions. Representative Gara
asked if they would be included in the "driving while under
influence" statute. Ms. Carpeneti explained that if the
person was under the influence of the substances identified
in Amendment 5, that person could be prosecuted under the
influence of a drug. Representative Gara asked what under
the influence of one of the compounds means. Ms. Carpeneti
responded, it expounds that the person was driving
erratically while using too much of the prescription drug.
Representative Gara worried about including that language.
Senator McGuire was okay with removing the section.
6:29:55 PM
Representative Hawker noted that he would not challenge the
sponsor to remove it; however, he did not want to go soft on
the issue.
Vice-Chair Stoltze told a story of an accident that killed a
pedestrian as a result of careless driving. He stated that
there is a degree of recklessness associated from taking
sleeping pills & then driving.
Representative Gara questioned how the prosecution would
work with the substance remaining in the system for a time
after taking it.
Vice-Chair Stoltze admitted that he did not know about the
drugs and did not know if he wanted to remove or not that
section from the bill.
6:34:26 PM
Co-Chair Chenault asked what currently, could happen if a
person is charged with a "Driving under the Influence" (DUI)
while using one of the listed drugs. He asked how it would
be measured. Ms. Carpeneti listed three ways to commit
drunk driving:
· Driving with alcohol in the blood stream of .08 and
above;
· Driving under the influence of alcohol; or
· Driving under controlled substances.
Ms. Carpeneti added that a person could be charged under AS
28.35.030, the drunk-driving statute and that without them
listed on the schedule, they would not be considered
"controlled substances" in Alaska.
Co-Chair Chenault asked if the determination of the amount
in the system would be a "judgment call" made by the
arresting officer. Ms. Carpeneti acknowledged that it would
be a judgment call by fact finding the jury and the evidence
would be the driving, the behavior after stopped, the
sobriety test and some sort of blood test.
Representative Kelly asked if the referenced drugs were sold
over the counter. Ms. Carpeneti replied that they are all
prescription drugs.
Representative Crawford described his experience with a
prescription sleep drug and indicated that he did not know
how much resides in the system the next morning. He wanted
to know more about how the drug works before they were
included in the legislation.
6:37:57 PM
Vice-Chair Stoltze asked the wish of the sponsor. Senator
McGuire asked to remove it at this time in order to get more
information. She did not want to see the bill include
controversial matters.
Co-Chair Chenault WITHDREW his OBJECTION. Vice-Chair
Stoltze MOVED to WITHDRAW Amendment 5. Following discussion
on what the amendment actually accomplishes, Vice-Chair
Stoltze MOVED to ADOPT Amendment #5. There being NO
OBJECTION, it was adopted.
AT EASE: 6:40:03 PM
RECONVENED: 6:43:33 PM
6:43:40 PM
Vice-Chair Stoltze MOVED to ADOPT Amendment 6. Co-Chair
Chenault OBJECTED for discussion purposes.
Senator McGuire pointed out that if the amendment does pass,
the Committee will need to move a conforming title
amendment.
Representative Fairclough stated that the amendment adds to
existing code, strengthened language mandating reports for
child pornography. It has been determined that pornography
is a precursor to an escalated behavior with crimes against
children. The language of the amendment was brought forward
by community members that have serviced computers while
finding disturbing images.
Representative Hawker asked clarification regarding the
language of the amendment and if it could clearly address
the legal realm of child pornography. He mentioned the 1
amendment rights for adults, the fine line versus illegal
participation against children. Ms. Carpeneti stated that
Alaska Statute 11.41.455 is specific and would be cross
referenced in a number of other statutes in Title 11. The
amendment would replace a section in current law that is not
quite as broad.
6:47:04 PM
Representative Crawford asked about up dating personal
computers and what could occur in a case where a person's
teenagers had been using it inappropriately. Representative
Fairclough understood that the computer technician would
have to report it to a law enforcement agency if they had
found multiple images of child pornography and then an
investigation would be started.
Representative Thomas questioned neighborhood children using
one's computer for inappropriate purposes. Representative
Fairclough reiterated that viewing something on the computer
is different than downloading multiple images, which is
generally associated with storing. Ms. Carpeneti added that
the acts that are described and required to be reported do
not include words but rather images of indecent acts.
Representative Thomas was worried. Ms. Carpeneti explained
that the law does not prohibit inadvertent opening of email
images. She guaranteed that no one can be held liable for
something that someone else has done. Senator McGuire added
that the duty is on the person observing the image & once
the report is made, the investigation of the report begins.
Representative Fairclough acknowledged for the record that
existing federal law passed in 1999, already provides
internet service providers (ISP) report suspected child
pornography through the cyber-tip line.
6:54:47 PM
Representative Gara inquired how a person would prove that
they had not been the party that attempted downloading child
pornography. Senator McGuire advised that the bill only
requires those who witness the image, to report it.
Regarding what is prosecutable is a different section & she
did not know those specifics. Ms. Carpeneti explained that
the Department does not prosecute cases unless they can
prove without a reasonable doubt that the person is guilty;
inadvertent mistakes are not crimes.
Representative Gara wanted to understand how the statute
works. Ms. Carpeneti advised that the cases that the
Department charges, involve hundreds & hundreds of images.
Representative Fairclough recounted for the record a
specific case in which the arrested person had downloaded
15,000 child pornography images on their computer. These
are heavily loaded computers that draw the attention and
that most of these people are duel offenders, with
escalating behavior.
6:59:00 PM
Representative Gara worried about house-sitters using a home
computer inappropriately and the responsibility to the owner
of that computer. Vice-Chair Stoltze acknowledged the
complication with the prosecution; however, pointed out that
the amendment is only about the recording & reporting.
Co-Chair Chenault inquired if Amendment 6 would require an
additional fiscal note. Senator McGuire did not think so.
Co-Chair Chenault WITHDREW his OBJECTION. Representative
Gara OBJECTED.
Representative Gara referenced Lines 11 & 12, language
regarding "report the observation to the nearest law
enforcement agency". He recommended replacing that with "a
local, state or federal enforcement agency". Representative
Fairclough did not oppose that change, however, mentioned
there could be an issue for rural Alaska.
Representative Gara MOVED to AMEND Amendment 6 with the
language stated above. Ms. Carpeneti indicated concern; she
thought that it should be reported to a State law
enforcement officer, not only the federal government if it
is a local concern.
Representative Nelson recommended using "to a law
enforcement agency". Representative Fairclough responded
that the proposed language had been specifically prepared.
When choices are offered, it can provide areas of confusion.
She hoped it to see more mandatory reporting. The proposed
language had been presented by Legislative Legal Services.
7:04:32 PM
Representative Thomas pointed out that there are not
troopers in every community. He asked if the amendment had
been presented on the Senate side. Representative
Fairclough responded that it was not addressed and the bill
had been set aside.
Representative Hawker pointed out that the legal drafters
proposed the language and he deferred to their
recommendation. Representative Fairclough interjected that
one issue was in regard to jurisdiction. There is a federal
law existing for the software for internet providers.
Representative Gara maintained his OBJECTION.
A roll call vote was taken on the motion.
IN FAVOR: Gara
OPPOSED: Hawker, Joule, Nelson, Stoltze, Thomas,
Foster, Chenault
Representative Kelly, Representative Crawford and Co-Chair
Meyer were not present for the vote.
The MOTION FAILED (1-7).
7:08:58 PM
Co-Chair Chenault WITHDREW his OBJECTION to unamended
Amendment 6. There being NO further OBJECTION, it was
adopted.
7:09:10 PM
Representative Gara MOVED to ADOPT Amendment 7, 25-
LS1449\W.5, Luckhaupt, 4/7/08. Co-Chair Chenault OBJECTED
for discussion purposes.
Representative Gara explained that the amendment clarifies
that if any part of the bill is determined invalid, the
remainder remains valid.
Co-Chair Chenault WITHDREW his OBJECTION. There being NO
further OBJECTION, it was adopted.
7:09:51 PM
Representative Gara MOVED to ADOPT Amendment 8, which
replaces "one year" with "eighteen months" on Page 10, Lines
15 and 19-20; Page 11, Lines 11 & 13. Co-Chair Chenault
OBJECTED.
Representative Gara explained the amendment. Ms. Carpeneti
noted that she had spoken with Representative Samuels and
that he had agreed it would be a reasonable compromise.
Co-Chair Chenault WITHDREW his OBJECTION. There being NO
further OBJECTION, it was adopted.
7:11:38 PM
Senator McGuire requested that Amendment 9, 25-LS1449\W.7,
Luckhaupt, 4/8/08, be WITHDRAWN.
Vice-Chair Stoltze MOVED to ADOPT the necessary conforming
title changes to accommodate amendments passed by the
Committee.
Senator McGuire requested that Amendment 10 be adopted.
Amendment 10 would change the look-back period, deleting
"10" and inserting "15" years on Page 3, Line 8, & Page 4,
Lines 25 & 29.
Representative Nelson MOVED to ADOPT the conceptually
proposed Amendment 10 as indicated by Senator McGuire.
There being NO OBJECTION, it was adopted.
7:13:54 PM
Representative Nelson asked if she could entertain a
conceptual Amendment #11, increasing fines to match what the
crime bill accomplished in the House Judiciary Committee
(HJC) on Page 3, Line 16, changing $3,000 to $10,000.
AT EASE: 7:14:37 PM
RECONVENE: 7:21:34 PM
Representative Nelson WITHDREW the conceptual Amendment 11
as proposed. She noted that consensus was met to see how
the fines would affect mandatory minimum sentences.
Vice-Chair Stoltze MOVED to ADOPT a conceptual amendment to
make the necessary conforming title changes to comply with
the adopted amendments. There being NO OBJECTION, it was
adopted.
7:22:43 PM
Co-Chair Chenault referenced the fiscal notes.
Co-Chair Meyer understood that the notes would be changing
with the addition of the new amendments. He pointed out a
new note from Department of Public Safety in the amount of
$420 thousand dollars and a new note by the Department of
Revenue for $60 thousand dollars.
7:24:23 PM
Senator McGuire recalled a presentation provided by Flint
Waters regarding internet child pornography and the volume
of cases which exist in the State of Alaska. She emphasized
the need within the Department of Public Safety to address
those cases, indicating support for the additional funding
request.
7:26:00 PM
LAUREN RICE, LEGISLATIVE LIAISON, DEPARTMENT OF PUBLIC
SAFETY, explained that the Department does have available
software to track the IT addresses of people downloading
pornography. She maintained that pornography and violence
is increasing and the age is getting younger. The ability
for people to download, view, share and distribute is
increasing. The Department needs additional funding to
expand and to deal with those crimes.
Co-Chair Chenault questioned the two temporary positions
listed on the front. He pointed out that the final
paragraph lists position funding for one criminal justice
technician, one Alaska State Trooper investigator and the
services of one Department of Law attorney; however, he did
not think the request matched the analysis. He maintained
that those guilty should be prosecuted and the price
requested was small compared to the safety of children. He
requested that the Department of Public Safety speak with
him.
7:30:28 PM
Ms. Rice believed that the specific concern should be
addressed by the Department of Law.
Senator McGuire interjected that it is not just the viewing
of child pornography, but that the most disturbing situation
is that they are actually able to view children being
sexually abused in real time.
RICHARD SVOBODNY, DEPUTY ATTORNEY GENERAL, CRIMINAL
DIVISION, DEPARTMENT OF LAW, commented that he had drafted
the analysis contained on the fiscal note. He acknowledged
that child pornography is a great concern for the Department
of Law. The model across the country is a team effort
between investigators and prosecutors. A different type of
investigation has to be accomplished with specialized and
complicated knowledge about computers and computer
forensics.
7:34:12 PM
Co-Chair Chenault reiterated his concern with the
differences between the front and backside of the fiscal
note. Mr. Svobodny recommended that the Department of
Public Safety address the concern, which totals
approximately $200 thousand dollars.
Representative Hawker asked if it would be more appropriate
for a Department of Law's attorney to be indicated in that
Department's fiscal note. Mr. Svobodny replied it would
however, the fiscal note resulted from a request by Senator
McGuire.
Ms. Rice stated that the fiscal note was assembled in a
short period of time. The Department of Law indicated that
they would also need increased resources. She acknowledged
that there should be a fiscal note from both departments.
Senator McGuire clarified that the concerns voiced by Flint
Waters should be reflected. She had not spoken with the
Department of Law.
7:37:13 PM
Representative Hawker understood that the Department of Law
costs would be around $200 thousand dollars and that
Department of Public Safety would need additional dollars
also. He wanted specific numbers.
Ms. Rice stated that it was not decided during the
discussions who would submit the fiscal note. At that time,
it was not going to come from Department of Public Safety
but rather from the House Finance Committee.
Senator McGuire requested that Department of Public Safety
address the fiscal concern.
7:38:41 PM
LIEUTENANT RODNEY DIAL, ALASKA STATE TROOPERS, DEPARTMENT OF
PUBLIC SAFETY, ANCHORAGE, testified via teleconference,
addressed the fiscal note. He thought that the Department
could use two retired investigators to get started. There
currently, are about fifteen backlogged cases. The
Department wants to implement something soon so they can
begin addressing these situations.
Co-Chair Meyer requested notes be submitted from each
department, representing their associated costs.
Representative Joule asked if with the addition of the
bootlegging sections, the Alaska Court's should also submit
a note.
Senator McGuire apologized about the manner in which the
fiscal notes came forward. She explained the rush.
DOUG WOOLIVER, ADMINISTRATIVE ATTORNEY, ALASKA COURT SYSTEM,
addressed bootlegging provisions, which he did not foresee
warranting an additional note.
7:43:20 PM
DWAYNE PEEPLES, DEPUTY COMMISSIONER, DEPARTMENT OF
CORRECTIONS, stated that he did not anticipate a lot of
impact from bootlegging and that some of the other sections
were more difficult to make a determination. He commented
that the Department would be submitting a revised
indeterminate note.
Representative Gara did not want to see an indeterminate
fiscal note but rather real numbers. The Committee needs to
know what costs to expect. Co-Chair Chenault added that he
too had requested "hard numbers". He trusted an analysis of
the issues but added that it would be okay if initially the
note was indeterminate.
Representative Foster MOVED to REPORT HCS CSSB 265(FIN) out
of Committee with individual recommendations and with the
accompanying fiscal notes. There being NO OBJECTION, it was
so ordered.
HCS CS SB 265(FIN) was reported out of Committee with a "do
pass" recommendation and with 2 new zero notes by the
Department of Health and Social Services, a new fiscal note
by the Department of Public Safety & the Department of Law,
a new indeterminate note by the Department of Corrections,
fiscal note #2 by the Department of Public Safety, zero note
#5 by the Department of Administration and fiscal note #6 by
the Department of Revenue.
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