Legislature(1993 - 1994)
03/28/1994 03:00 PM HES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 221 - ARREST OF MINORS FOR CONSUMING ALCOHOL CHAIR BUNDE asked for public testimony. Number 050 JOE AMBROSE, Legislative Aide to Sen. Robin Taylor, Prime Sponsor of SB 221, stated that SB 221 would amend AS 12.25.030 (b) to provide the ability for peace officers to arrest minors for consuming under the age of 21 without a warrant. If the peace officer has a reasonable cause to believe that a minor unlawfully possessed, consumed, and controlled alcohol, the bill has the power of overruling a recent Superior Court decision that requires a person be caught in the act of consuming before an arrest can be made. MR. AMBROSE indicated that the proposal does not have a fiscal impact because it returns the law to its former interpretation prior to the Superior Court's decision. Number 062 CHAIR BUNDE said he appreciated the zero fiscal note. (Chair Bunde indicated that Reps. Brice and B. Davis arrived at 3:10 p.m.) REP. OLBERG asked if the committee had previously seen the legislation in another form. MR. AMBROSE asserted that there is a companion measure in the House. CHAIR BUNDE pointed out that the companion bill did not pass out of committee and suggested that the committee had an opportunity to pass SB 221. Number 092 REP. TOOHEY asked Mr. Ambrose if a minor who has been cited for consuming has the right to go through a court proceeding. MR. AMBROSE said yes. He indicated that currently it is the district attorney's directive that officers who encounter minors under the influence should issue citations rather than make arrests. He said Sen. Taylor felt that the law never intended police officers to write a ticket to an intoxicated minor and then walk away. Number 125 CHAIR BUNDE asked for questions. Hearing none, he asked for further testimony. Number 126 JEFF BUSH, Attorney, Alaska Civil Liberties Union (AkCLU), testified in opposition to SB 221. He stated that he had a letter from the executive director of the AkCLU, RANDALL BURN, who was informed that the meeting was unable to be teleconferenced. He distributed the letter to the committee and asserted that the AkCLU is opposed to the legislation and any legislation that in any way restricts constitutional civil liberties. He said the bill obviously would expand search and seizure laws. Number 174 REP. TOOHEY asked Mr. Bush if it was against the law for a minor to consume alcohol. MR. BUSH said yes. REP. TOOHEY said the bill addresses a minor under the influence of alcohol or consuming alcohol. MR. BUSH explained that the AkCLU does not object to a minor consuming as being a crime or a minor driving under the influence of alcohol. He said the AkCLU's concern is that the proposal requires that an officer have reasonable cause, not probable cause, which is what the constitutional standard generally has been. He said he is opposed to the standard the police officer must meet in order to make an arrest. REP. TOOHEY asked if Mr. Bush condones alcohol consumption by a minor. MR. BUSH said no. REP. TOOHEY asked, if a minor is seen drinking, or has alcohol on his breath, or is staggering, would that be considered probable cause? Number 246 MR. BUSH said, "Well, I'm not going to sit here and play judge. If they see them drinking, it's clearly probable cause. In the past the courts have generally said that if you have an alcohol smell, but that might be enough for probable cause. That is where there is a dispute, at least among the courts. And, I, the AkCLU's position on that would simply be, it's up to the courts to decide where probable cause lies and not to simply say, `We're not going to require probable cause. We're going to require something less.'" REP. TOOHEY asked if a Breathalyzer test would be acceptable to the AkCLU. MR. BUSH said a Breathalyzer would be acceptable once there is legitimate probable cause to conduct the test. He said if a person walks down the street and stumbles, that should not be reason enough for an officer to take the individual to the station for a Breathalyzer. Number 282 REP. TOOHEY said if a person looks drunk and acts drunk, they're drunk. She said if they're not drunk they're having a "diabetic problem" and the officer needs to help them anyway. MR. BUSH asserted if the officer has probable cause to believe the minor has been drinking, there is no question that they could make an arrest. CHAIR BUNDE asserted that it was the court's interpretation that probable cause would mean actually seeing the minor consuming alcohol. MR. BUSH said it was his understanding that consuming is actually the simplest type of probable cause and speculated that if someone was stumbling down the street and smelled of alcohol, the court would say that was probable cause. He felt what the court said is that merely smelling alcohol on the breath or in the vicinity of the individual is not enough to constitute probable cause. He maintained that under SB 221 that would constitute probable cause. Number 324 REP. G. DAVIS maintained that if he saw a minor drinking, it would not be probable cause; it would be proof positive. He also indicated that the smell of alcohol on a person's breath would be reasonable and probable cause. He questioned as to whether or not the term "reasonable" should be used in the proposal and suggested that perhaps it should be probable cause. He said he had no problem either way. (Chair Bunde indicated that Rep. Nicholia arrived at 3:17 p.m.) CHAIR BUNDE asked for further questions. REP. VEZEY asked Mr. Bush what would be considered probable cause if a person had consumed alcohol. MR. BUSH said the question should be answered by a judge or those with expertise in this area of the law. He said from what he understood, probable cause was deemed by the Juneau magistrate to mean more than just being able to smell alcohol in the vicinity. He said it disturbs the AkCLU when legislation says that probable cause is no longer necessary. He asserted that because there was one bad court decision, 200 years of constitutional law should not be thrown away because it is felt that probable cause is no longer needed. He said, "If you want to say that probable cause could consist of X, Y, or Z, the AkCLU would have far less concerns with that." Number 443 REP. VEZEY said the question is, "What is an acceptable amount of proof?", not whether there's probable or reasonable cause. MR. BUSH said he could not address that question. CHAIR BUNDE observed that there was no one from the Department of Law to offer the definition of probable and reasonable cause. REP. TOOHEY referred to page 1 of the court decision, that recounts the case of a minor found passed out with his pants down on a toilet located in the Senate building. She said the circumstance did not arise from an "overdose of Hershey bars," and said the case was thrown out because the minor was not caught consuming the alcohol. Number 501 REP. VEZEY asked, as reasonable people, where would the line be drawn; at staggering or at merely reasonable suspicion? He asked if merely smelling alcohol on a person's breath would be reason enough for a warrantless arrest. CHAIR BUNDE asked if Rep. Vezey's question was rhetorical. REP. VEZEY said yes. He said it was his understanding that if a person is incoherent and incapacitated, any police officer would have probable cause to make an arrest. REP. TOOHEY asserted that the legislation is aimed at that very problem. (Chair Bunde stated for the record that Rep. Kott arrived at 3:23 p.m.) Number 544 CHAIR BUNDE asked for further questions. There were none. He summarized the intent of the bill and then asked the pleasure of the committee. REP. TOOHEY made a motion to pass SB 221 out of committee with individual recommendations and accompanying zero fiscal note. REP. B. DAVIS asked if she could make a statement. CHAIR BUNDE said yes. REP. B. DAVIS asked if there was a definition in statute for reasonable cause. CHAIR BUNDE said he could not answer that question but said, "there is certainly a definition in the legal cannon, as to reasonable and probable." REP. B. DAVIS suggested that perhaps a definition should be crafted by Legal Services if there is no existing definition. CHAIR BUNDE asked Mr. Ambrose if the definition of reasonable exists in statute. MR. AMBROSE said he was sure the definition of reasonable is in statute. Number 601 REP. G. DAVIS referred to Statute 12.25.030 (b) and said the term reasonable cause is in statute. CHAIR BUNDE said the term is defined in current statute. REP. B. DAVIS asked what the statute says. CHAIR BUNDE asked the committee aide to find the correct statute. Number 655 REP. OLBERG stated that while the committee waited for the information, perhaps they could discuss Mr. Sivertsen's qualifications to be a magistrate. He said he would like to speculate. CHAIR BUNDE said the committee would have to contact Legal Services. REP. B. DAVIS suggested that her concerns could be addressed in the Judiciary Committee. CHAIR BUNDE asked if there were any objections. REP. KOTT said House Judiciary would address that concern. CHAIR BUNDE, hearing no objections, declared that SB 221 passed out of committee. He then brought HB 378 to the table.