Legislature(1995 - 1996)
04/21/1995 01:05 PM House JUD
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* first hearing in first committee of referral
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SB 46 - PROSECUTE JUVENILE AS ADULT IN DISTRICT COURT Number 620 JOE AMBROSE, Legislative Assistant to Senator Taylor, bill sponsor, introduced CSSB 46(RLS). This bill was introduced at the urging of parents concerned over the lack of consequences within the juvenile justice system when a minor is arrested for an alcohol related offense. Most of CSSB 46(RLS) is a rewrite of existing law. The drafter took the occasion of complying with the Senator's request for a draft to address alcohol issues by also reordering the material that was already in AS 47.10.010(b). Juveniles are already exempt from juvenile delinquency rules for traffic offenses, tobacco related offenses, fish and game statutes, and vandalism in a recreation area. SB 46 would add alcohol and controlled substance related offenses to that list, and provide that such cases be handled in district court. The parent, guardian, or individual with legal custody would have to be present at all proceedings. The bill was amended in the Judiciary and Finance Committees of the Senate to change minor consuming from its current misdemeanor status to that of an infraction, punishable by a fine of not less than $100. More importantly, by moving the jurisdiction in these cases to district court, a judge would be able to intervene in alcohol abuse cases, which are currently falling through the cracks in the juvenile justice system. Often, a minor must commit a serious crime in conjunction with alcohol use before intervention takes place. MR. AMBROSE explained that the Finance CS included a provision that would add minor consuming to the list of situations where a law enforcement officer could make an arrest without a warrant. This is intended to address a problem in the First Judicial District which still exists, where the court has ruled that an officer must actually witness the consumption before an intoxicated minor can be arrested. The Senate Rules Committee added language which appears on page 2, line 27 of the Rules CS, which makes it clear that the intent of this provision is protective and not punitive. The new language requires that a person under age 18 subjected to a warrantless arrest under this provision be cited and then released to a responsible adult. The number of phone calls we receive regarding kids and alcohol are increasing. Virtually nothing happens when a kid is picked up for alcohol consumption, unless they actually do something else that is of a serious nature. These kids are not referred to the Division of Family and Youth Services (DFYS). Those folks are swamped. MR. AMBROSE said this bill has two effects. To a certain extent it decriminalizes the offense. The law enforcement officer is more likely to issue a citation, because it is not going to create a criminal record for the youngster. Secondly, it gives a district court judge the opportunity to intervene in those cases where necessary. He works with teenage alcoholics and sees the problem growing. He believes that if these juveniles had had intervention at an earlier point, they never would have gotten to the point where they are working with folks like himself. REPRESENTATIVE TOOHEY asked how this differs from the "use it, lose it" bill. MR. AMBROSE said that the "use it, lose it" bill provides for an automatic revocation of a driver's license. SB 46 simply changes minor consuming from the current misdemeanor to an infraction, and moves it out of the juvenile justice system into the district court. It is a fine of not less than $100, and somebody, a mom or dad, has to show up in court with the juvenile. He believed that SB 46 was complimentary to the House "use it, lose it" bill. MARGOT KNUTH, Assistant Attorney General, Criminal Division, Department of Law, stated that the department favors reducing minor consuming to a violation, because those can be presented to the court with just a police officer and they will no longer require a district attorney to screen and prosecute them. There will no longer be a right to a jury trial on the offense. That certainly is a plus for the Criminal Division because, as our resources are becoming even more finite, and as crime rates are going up, this is one easy of lessening our burden in one area. MS. KNUTH said there is also a down side to it. As a violation the court will not have the ability to order treatment for these individuals, because you can only do that if you are suspending jail time and basically time in inpatient treatment is the same as incarceration time. "Use it, lose it" does allow you that option to make treatment a condition of getting your license back. Reducing minor consuming to a violation, and then making it an offense for all juveniles, there is the advantage for many kids out there who would be going to DFYS, where because of their limited resources nothing is happening, and instead, these juveniles will at least on one occasion go before a judge who we hope can impress them with the seriousness of the matter, even though the consequences are not going to be very great. Still, having to go to court with a parent may do something. Minor consuming is an offense that just stays at a high level in this state. We keep trying to find an answer to that problem, so this is yet another creative approach to it. MS. KNUTH mentioned that they would like to keep the opportunity there for rehabilitation of juveniles, including the option of going into the Army. If they have a conviction, it will keep them from going into the Army. The Army is sometimes the best thing that happens to some of these kids, and we would not want to keep them out of it as a result of one adult conviction. They wanted to ask the Legislature to think twice before putting these juveniles into the category which would allow them to receive an adult conviction, with respect to these offenses. She specifically asked that they include only number 5(b) on this list, relating to possession or consumption, and drop the rest of the offenses listed on page 4. REPRESENTATIVE TOOHEY asked if this would provide for a double jeopardy, in conjunction with the "use it, lose it" provision. MS. KNUTH answered that right now, if there is a conviction for minor consuming, it does serve as a basis for administrative revocation. We have not been hearing about the double jeopardy claims. The criminal prosecution comes first and then you have the administrative revocation. The only place we are having problems with the double jeopardy argument is with the DWI context. That argument has been won by states across the country, and they feel that appellate courts will do right by us in this state as well. REPRESENTATIVE FINKELSTEIN made a motion to adopt Amendment Number 1, which would strike sections (a), (c), (d), and 6, on page 4. REPRESENTATIVE TOOHEY objected. REPRESENTATIVE FINKELSTEIN explained that he felt these parts to be unnecessary because (a) is minor on premises, not necessarily consuming, but just being present. He did not think this is the problem. He did not feel these categories would require an automatic elevation of offense level. REPRESENTATIVE BUNDE felt this was related to the rampant false I.D. problem, which is almost a rite of passage, to have a false I.D. So if you first walk in, they can get you for access to a licensed premise, and after that, they get you for possession or consumption. He felt there was a problem there, but also thought that these kids felt that having a phoney I.D. is almost their right now, certainly a rite of passage. REPRESENTATIVE FINKELSTEIN felt that the refusal for admission into the army is a compelling reason in itself to not have these particular crimes included. There is also the stigma you carry in job opportunities when you receive these adult considerations in charging the offenses. He would venture to say that 20 to 30 percent of people fit into these various categories. Is that the number of people we want to preclude from future options in their lives? He did not feel that is what this bill was about, and did not think it to be what our experience tells us is necessary. CHAIRMAN PORTER asked Ms. Knuth if a conviction for a misdemeanor is a permissive bar or an absolute bar. MS. KNUTH thought it was a permissive bar, and felonies are absolute. MR. AMBROSE said on the other hand, if someone is committing these crimes, they are also threatening the business licenses of the businesses who have liquor licenses. That was Senator Taylor's argument. TAPE 95-48, SIDE A Number 000 REPRESENTATIVE TOOHEY said we are not dealing with kids throwing water balloons; society has changed, and this is a bad day for juveniles. If we can stop these kids, she is all for it. REPRESENTATIVE FINKELSTEIN said to take the two instances where someone is either smoking marijuana or using a fake I.D. to enter the premises, statistics would probably show that 1/4 to 1/2 of our youth population fall into one of those two categories. This is not some minor amount, this is a very prevalent thing, so we have decided there is a penalty for it. We have kept them at this lower level of offense. Now the question is, to arrest them for small amounts of marijuana or for being on the premises, if those kinds of things will be on their record when they go in for a job, they will have a hard time getting a job. These things are lower offenses. They just are. He does not believe that smoking marijuana deserves the elevation of offense. CHAIRMAN PORTER did not support Representative Finkelstein's amendment. These offenses are part and parcel of minor consuming, and if you are going to do it for minor consuming, to be consistent, we should do it for the other related offenses. He did not think that most kids are on a licensed premise because they made a mistake and did not realize that they walked into a liquor store or into a bar. The intent was ultimately, minor consuming, so to be consistent, those should stay in there. If it is that 25 to 50 percent of kids have smoked marijuana, he suspected that it is probably because, if they get caught, they get a no-no letter from DFYS three months later, and that is it. That is not a sanction, that is ridiculous. That is the level of capability that DFYS has right now. There is a fiscal note he intended to support that would put these kids in court. He would not support the amendment. REPRESENTATIVE FINKELSTEIN asked if Representative Porter felt that in the case of marijuana, this was really going to serve as a deterrent. CHAIRMAN PORTER said he absolutely does. He has more history in this area than you want to hear about. REPRESENTATIVE FINKELSTEIN did not agree, but respected Representative Porter's experience. CHAIRMAN PORTER asked for a roll call vote. Representative Finkelstein voted yes. Representatives Bunde, Toohey, Green and Porter voted no. Amendment Number 1 failed, four to one. REPRESENTATIVE BUNDE made a motion to move the bill from committee. REPRESENTATIVE FINKELSTEIN objected and a roll call vote was taken. Representative Finkelstein voted no. Representatives Toohey, Bunde, Green, and Porter voted yes. CSSB 46(RLS) moved out of committee with individual recommendations and fiscal notes as attached.
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