Legislature(1993 - 1994)

03/28/1994 03:00 PM HES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                            
  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                    
  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                 
  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                      
  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                    
  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                 
  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                            
  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                     
  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                 
  CHAIR BUNDE said the committee would have to contact Legal                   
  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                      

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