Legislature(2003 - 2004)

05/04/2004 09:21 AM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
CS FOR SENATE BILL NO. 170(JUD)                                                                                               
                                                                                                                                
     An  Act relating  to murder  in the  second degree,  the                                                                   
     justification  of defense  of self  or others,  immunity                                                                   
     from prosecution,  sentencing, probation,  discretionary                                                                   
     parole,  and  the  right to  representation  in  certain                                                                   
     criminal  proceedings;   relating  to  violation   of  a                                                                   
     custodian's duty;  relating to sexual abuse  of a minor;                                                                   
     relating  to release of  information concerning  certain                                                                   
     cases  involving  a  minor; relating  to  local  options                                                                   
     regarding   alcoholic   beverages,    the   offense   of                                                                   
     furnishing  or  delivery  of alcoholic  beverages  to  a                                                                   
     person  under  21  years   of  age,  and  forfeiture  of                                                                   
     property  used in,  and money  or other  items of  value                                                                   
     used in  financial transactions derived  from, violation                                                                   
     of  certain   laws  relating  to  alcoholic   beverages;                                                                   
     relating to assault by means  of a dangerous instrument;                                                                   
     relating  to  operating  or  driving  a  motor  vehicle,                                                                   
     aircraft, or watercraft while  under the influence of an                                                                   
     alcoholic beverage,  inhalant, or controlled  substance,                                                                   
     to the refusal to submit  to a chemical test, and to the                                                                   
     presumptions concerning the  chemical analysis of breath                                                                   
     or blood; and providing for an effective date.                                                                             
                                                                                                                                
SUSAN  PARKS,  DEPUTY ATTORNEY  GENERAL,  CRIMINAL  DIVISION,                                                                   
DEPARTMENT OF  LAW, spoke on  SB 170, the companion  bill for                                                                   
HB  244,  previously heard  and  held  in the  House  Finance                                                                   
Committee.   Both bills  were introduced  last year  and were                                                                   
worked on  extensively over the  interim.  The  Department of                                                                   
Law recommends  that the  Committee consider amending  SB 170                                                                   
to reflect  some of the refinements that  the House Judiciary                                                                   
Committee made in the provisions.                                                                                               
                                                                                                                                
Ms. Parks  pointed out  that there are  two provisions  in SB                                                                   
170, not contained  in HB 244 that address  bootlegging.  The                                                                   
first area  not covered  in HB 244  is Sections  5 & 6  of SB                                                                   
170.    Currently,  that  provision covers  a  5-mile  radius                                                                   
around  the villages,  however, in  areas where  the villages                                                                   
are  close  together,  the  5-mile  radius  overlaps.    When                                                                   
villages   have  conflicting   local   options,  the   courts                                                                   
interpret  that to say  that no local  option could  apply in                                                                   
that  area.  There  would then  be corridors created  outside                                                                   
the  areas  where  bootleggers  could  act.    Provisions  in                                                                   
Sections  5   &  6  clarify  that  the  local   option  of  a                                                                   
municipality  takes precedence and  if it were  two villages,                                                                   
it would  be the one least restrictive,  providing protection                                                                   
around the perimeters of the villages.                                                                                          
                                                                                                                                
Ms. Parks continued.   The other provisions  not contained in                                                                   
HB  244 address  forfeiture  in bootlegging  cases listed  in                                                                   
Sections 9, 10  & 11 of SB 170.  Those  provisions refine the                                                                   
admission  procedure.   When property  has been  seized  in a                                                                   
bootlegging case,  when an innocent third party  comes in and                                                                   
makes  a  showing that  the  seized  property  should not  be                                                                   
seized, those  provisions lay out a refinement  of what needs                                                                   
to  be  shown  in  order  to get  the  property  back.    The                                                                   
provisions  also   comply  for  a  mandatory   forfeiture  in                                                                   
situations  of a prior conviction  for bootlegging  or felony                                                                   
probation.    She reiterated  that  Sections  9-11 would  add                                                                   
forfeiture provisions not included in HB 244.                                                                                   
                                                                                                                                
Ms. Parks noted the proposed  amendments included in member's                                                                   
packets that would  take language from HB 244  and move it to                                                                   
SB  170.     She  stated  that  Representative   Samuels  had                                                                   
recommended  a  provision   that  is  not  supported  by  the                                                                   
Department,  as  it  would   create  concerns  for  attorneys                                                                   
interrupting  interviews of the  individual in custody.   She                                                                   
offered to answer questions of the Committee.                                                                                   
                                                                                                                                
LINDA   WILSON,   (TESTIFIED  VIA   TELECONFERENCE),   DEPUTY                                                                   
DIRECTOR,  PUBLIC  DEFENDER,  DEPARTMENT  OF  ADMINISTRATION,                                                                   
ANCHORAGE,  testified on  SB 170,  the companion  bill  to HB                                                                   
244.    She   addressed  some  amendments   proposed  by  the                                                                   
Department  of Law  for the  Senate bill.   She  acknowledged                                                                   
that the  Public Defender does  support most of  the proposed                                                                   
amendments  except  the witness  immunity  section, Page  12,                                                                   
Section  21.  That  section brings  concerns with  the Alaska                                                                   
constitutional  rights  regarding  self-incrimination.    The                                                                   
bill  intends to  provide  a procedure  for  when claims  are                                                                   
raised  of self-incrimination.    When the  judge  determines                                                                   
that  a  witness  has  a  valid  claim,  they  then  let  the                                                                   
prosecutor know  that information.   The prosecutor  then has                                                                   
to determine  if they want to  grant the witness  immunity or                                                                   
not.  Under the Alaska Constitution,  that immunity is called                                                                   
'transactional  immunity'  and  the  person  could  never  be                                                                   
prosecuted for the crimes exposing  themselves to that.   She                                                                   
reiterated    that   the    Alaska   Constitution    requires                                                                   
transactional immunity.                                                                                                         
                                                                                                                                
Ms. Wilson  pointed out  that the  Senate version  identifies                                                                   
compliance and stops  at the findings by the  judge regarding                                                                   
a valid  claim.  Subsection I,  Section 21, shall  advise the                                                                   
prosecution of  that finding.   That area was debated  in the                                                                   
Senate  Judiciary Committee  and that  the provisions  in the                                                                   
House version would  make it unconstitutional.   In the House                                                                   
version,  Section 21,  Page 11,  the judge  would share  some                                                                   
information with the special District  Attorney (DA) assigned                                                                   
to  make the  decision  regarding  whether to  grant  witness                                                                   
immunity.   The  judge  would reveal  to  the prosecutor  the                                                                   
level  of the  felony.   Unfortunately,  sharing  information                                                                   
with any prosecutor  defeats the right  of self-incrimination                                                                   
and would  make the  bill unconstitutional.   She urged  that                                                                   
the Committee leave the Senate  version in its current state.                                                                   
                                                                                                                                
Ms. Wilson  identified Section  13 in SB  170.  She  believed                                                                   
that HB 244 was  more refined in that section.   She spoke to                                                                   
Section 9  in HB  244, regarding  the felony murder  offense.                                                                   
If a person is charged with a  felony, then that person could                                                                   
                   nd                                                                                                           
be  charged with  2  degree  murder.   In current  law, if  a                                                                   
participant in the  crime is killed, the other  person cannot                                                                   
be fined  or charged with their  death.  That portion  of the                                                                   
bill seeks  in include  a participant's death.   There  is an                                                                   
exception  in  the  house bill  that  removes  that  exposure                                                                   
except when the  killing is of a participant and  is a direct                                                                   
result of a felony criminal crime  by a non-participant.  The                                                                   
non-participant would  have to do something  very significant                                                                   
for it to  be an exception in  the bill.  She  suggested that                                                                   
language  could be  a refinement  and that  HB 244 offered  a                                                                   
better version to that section.                                                                                                 
                                                                                                                                
Ms.  Wilson   addressed  felonies   and  the  Driving   While                                                                   
Intoxicated  (DWI) provisions.    The language  of the  house                                                                   
bill  is   preferred,  as  it   is  narrower   regarding  the                                                                   
challenging evidence.  Section  27 of both bills, would allow                                                                   
evidence  of alcohol  consumption before  and after  driving.                                                                   
Taking a breath test hours after  the driving does not always                                                                   
reflect what  the blood alcohol  level is during the  time of                                                                   
operating the vehicle.   HB 244 allows the person  to raise a                                                                   
valid defense for a breath test.                                                                                                
                                                                                                                                
Ms.  Wilson  pointed  out  that  Ms.  Parks  had  touched  on                                                                   
elements  of SB 170  regarding overlapping  and  local option                                                                   
areas, which  is an improvement.  Ms. Wilson  reiterated that                                                                   
the   Public  Defender   does   agree   with  some   proposed                                                                   
amendments:                                                                                                                     
                                                                                                                                
   ·    The assault of the third degree;                                                                                        
   ·    Requiring a court to make findings for release on                                                                       
        bail;                                                                                                                   
   ·    In a felony DWI, refusal situation, limiting a look                                                                     
        back to 20-years for a subsequent felony;                                                                               
   ·    Regarding the local option provision, an "opting                                                                        
        out" by local option, and                                                                                               
   ·    Does not make it a felony to furnish alcohol to a                                                                       
        minor.  Ms. Wilson concluded her testimony.                                                                             
                                                                                                                                
Co-Chair  Williams  stated  that  SB  170 would  be  HELD  in                                                                   
Committee for further consideration.                                                                                            
                                                                                                                                
CS FOR SENATE BILL NO. 170(JUD)                                                                                               
                                                                                                                                
     An  Act relating  to murder  in the  second degree,  the                                                                   
     justification  of defense  of self  or others,  immunity                                                                   
     from prosecution,  sentencing, probation,  discretionary                                                                   
     parole,  and  the  right to  representation  in  certain                                                                   
     criminal  proceedings;   relating  to  violation   of  a                                                                   
     custodian's duty;  relating to sexual abuse  of a minor;                                                                   
     relating  to release of  information concerning  certain                                                                   
     cases  involving  a  minor; relating  to  local  options                                                                   
     regarding   alcoholic   beverages,    the   offense   of                                                                   
     furnishing  or  delivery  of  alcoholic beverages  to  a                                                                   
     person  under  21  years   of  age,  and  forfeiture  of                                                                   
     property  used in,  and money  or other  items  of value                                                                   
     used in  financial transactions derived  from, violation                                                                   
     of  certain   laws  relating  to   alcoholic  beverages;                                                                   
     relating to assault  by means of a dangerous instrument;                                                                   
     relating  to  operating  or  driving  a  motor  vehicle,                                                                   
     aircraft, or watercraft  while under the influence of an                                                                   
     alcoholic  beverage, inhalant, or  controlled substance,                                                                   
     to the refusal to submit  to a chemical test, and to the                                                                   
     presumptions concerning  the chemical analysis of breath                                                                   
     or blood; and providing for an effective date.                                                                             
                                                                                                                                
Co-Chair Williams stated that Representative Samuels asked                                                                      
to be included in further discussions on SB 170.                                                                                
                                                                                                                                
Co-Chair Williams noted that SB 170 would be HELD in                                                                            
Committee for further consideration.                                                                                            

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