Legislature(2001 - 2002)
02/11/2002 01:04 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
HB 330 - PROVIDING ALCOHOL TO PERSONS UNDER 21 Number 2423 CHAIR ROKEBERG announced that the next order of business would be HOUSE BILL NO. 330, "An Act relating to providing alcoholic beverages to a person under 21 years of age." Number 2435 REPRESENTATIVE OGAN moved to adopt the proposed committee substitute (CS) for HB 330, version 22-LS1178\O, Ford, 2/11/02, as a work draft. REPRESENTATIVE BERKOWITZ objected for the purpose of discussion. Number 2461 HEATHER M. NOBREGA, Staff to Representative Rokeberg, House Judiciary Standing Committee, Alaska State Legislature, on behalf of the House Judiciary Standing Committee, sponsor, explained that after the accident last summer in which Anchorage police officer Justin Wollam was killed, Mothers Against Drunk Driving (MADD) requested that the penalties be increased for adults who provide alcohol to minors who then go on to hurt or kill someone. She noted that currently, a person who provides alcohol to a minor could be charged with a misdemeanor. She relayed that the original version of HB 330 would make it a class C felony for a person to provide alcohol to a minor who then, while under the influence of that alcohol, injures or kills someone. She pointed out that Version O adds the stipulations that the minor act with "civil negligence" and that the injury be a "serious physical injury". TAPE 02-15, SIDE B Number 2500 MS. NOBREGA explained that the Department of Law suggested that there be a negligence standard included in this legislation, so she had first researched the different standards of conduct at the criminal level, which include "knowingly", "criminal negligence", and "recklessly". She mentioned that the definitions for those standards are included in members' packets. After first considering use of the term "criminal negligence", she said it was determined that proving criminal negligence requires proof beyond a reasonable doubt, and so, instead, opted to use the lowest standard possible, which is civil negligence. She noted that another reason for including this standard is to prevent a minor who has done nothing wrong but who is in an accident from being used as the impetus for charging an adult with a felony. REPRESENTATIVE BERKOWITZ said: "I appreciate the conceptual changes but I have an alternative way of getting there." He asked members to turn to the original version of HB 330, and suggested that [paragraph 2] should be altered to say: the person under 21 years of age who receives the alcoholic beverage seriously injures or causes the death of another person and the injury or death occurs because the person under 21 years of age was under the influence of the alcoholic beverage received in violation of this section. REPRESENTATIVE BERKOWITZ offered that this change maintains the simplicity of the original version of HB 330. CHAIR ROKEBERG argued that such a change makes a huge difference in the bill and "raises the standard completely above -- to a .08 or impairment standard of being under the influence." REPRESENTATIVE BERKOWITZ responded: "Not at all." CHAIR ROKEBERG said: "Yes it does; if he's under the influence, he's got to be at least meeting the criminal definition of impairment." REPRESENTATIVE BERKOWITZ replied: "No, ... the .08 standard -- it's merely a presumption ... [and] those are all arguable; arguably, an individual can be under the influence at .001 or .002. What the statutes have are presumptions that have to be rebutted." Number 2351 REPRESENTATIVE BERKOWITZ, in response to questions, said he is maintaining his objection to the adoption of Version O as a work draft and opined that it would be much more complicated to amend than the original version of HB 330. REPRESENTATIVE OGAN asked whether, with a civil negligence standard, someone causing serious physical injury could be convicted using the "civil standard of proof of clear and convincing." MS. NOBREGA said she thinks so, adding that the DOL has indicated that civil negligence requires a lower standard of proof, perhaps even simply by a preponderance of the evidence. REPRESENTATIVE OGAN said his concern is whether someone could be criminally convicted, using a civil standard of negligence, for the behavior of somebody else. MS. NOBREGA said that according to her understanding, that is possible. REPRESENTATIVE BERKOWITZ added that it seems to him that the criminal conduct for which the defendant would be convicted would be the supplying of alcohol, and once the defendant supplies the alcohol, then, in essence, he/she assumes the risk that the alcohol will result in death or serious physical injury. He noted that this is just his initial assumption, and that they could check with the DOL. Number 2183 A roll call vote was taken. Representatives James, Ogan, Coghill, and Rokeberg voted for the adoption of Version O as a work draft. Representatives Meyer and Berkowitz voted against it. Therefore, Version O was before the committee by a vote of 4-2. Number 2171 MARTI GREESON, Executive Director, Anchorage Chapter, Mothers Against Drunk Driving (MADD), testified via teleconference and indicated that one of the primary reasons that the legal drinking age is 21 is because young people make bad decisions when they drink. She suggested that when an adult provides alcohol to someone under the legal drinking age, a higher standard of responsibility and culpability should be imposed. She mentioned the issue of possibly adding a provision to HB 330 requiring the naming of victims, and briefly relayed some of the details of the accident that killed Officer Wollam and the ensuing court case. Number 2052 PAMELA WATTS, Executive Director, Governor's Advisory Board on Alcoholism and Drug Abuse, Office of the Commissioner, Department of Health and Social Services (DHSS), said that the advisory board appreciates the committee's recognition of the seriousness of adults providing alcohol to persons under 21 years of age, and supports the passage of HB 330. She noted that many adults fail to realize how serious providing alcohol to underage individuals is, and how potentially life-threatening this behavior is. She relayed that research indicates that drinking is associated with risk-taking and sensation-seeking behaviors among adolescents, and that it has a "disinhibiting" effect that may increase the likelihood of unsafe activities. In 1997, nationally, 21 percent of young drivers - 15 to 21 years old - who were killed in crashes were intoxicated; a further breakdown indicated that that was 25 percent of the young males and 12 percent of the young female drivers. MS. WATTS relayed that people who begin drinking before the age of 15 are four times more likely to develop alcohol dependence than those who wait until age 21. Each additional year of "delayed drinking onset" reduces the probability of alcohol dependence by 14 percent. Family and peers can actively influence underage-drinking behavior by explicitly discouraging use or, passively, by providing models of drinking behavior. She noted, for example, that a Columbia University study reports that adolescents whose fathers have more than two drinks a day have a 71 percent greater risk of substance abuse themselves. She also relayed that 95 percent of violent crime on college campuses is alcohol-related and 90 percent of "college rapes" involve alcohol use by the victim and/or the assailant. MS. WATTS, after acknowledging that prevention programs are working, also stated: They need your continued support and advocacy to encourage activities and initiatives that will change community standards and emphasize healthy lifestyles. We need to develop sufficient resources to meet community needs for appropriate levels of intervention and treatment for the underage population who are identified as having alcohol or other drug problems. But the bottom line here is that those adults who provide alcohol to underage drinkers assume a heavy responsibility, and this legislation makes clear what that responsibility is and the consequences associated with it. The Advisory Board on Alcoholism and Drug Abuse encourages your support of this bill. REPRESENTATIVE MEYER relayed that after the aforementioned accident, he, too, wanted to see the penalty increased to a felony; however, his research indicated that most of the time, the adults who furnish alcohol to minors are, for example, an older brother who is 21 buying a six-pack of beer for a younger brother who is 19. He opined that HB 330 would exclude persons in this type of example unless they had a prior conviction for this crime. He asked Ms. Watts who, in her experience, is contributing [alcohol] to minors. REPRESENTATIVE BERKOWITZ disagreed, indicating that Representative Meyer is incorrect in his interpretation that HB 330 would not apply in the aforementioned example. Number 1870 CHAIR ROKEBERG and MS. WATTS confirmed this, pointing out that the language says "; or". REPRESENTATIVE MEYER asked Ms. Watts whether she wanted HB 330 to apply in cases where it is merely an older sibling providing alcohol to a younger one. He acknowledged that in the situation in which Officer Wollam was killed, someone who was 31 and who should have "known better" provided the alcohol. MS. WATTS, after noting that she did not have any statistical information regarding who, in most cases, is providing alcohol to minors, added that during the course of her work in the field for over ten years, she has seen a cross section of individuals purchase alcohol for underage drinkers. She said that in some instances, parents provide alcohol in a misguided effort to help their children "learn how to drink," without really recognizing what the implications might be. She concurred that in some instances, alcohol is provided by the minor's peers or older siblings. She surmised, however, that because the law does have a cut-off age of 21, it might not be possible to refrain from holding someone accountable simply because he/she is a relative or merely a year older. She also pointed out that regardless of the relationship or age differential between the minor and the person providing, the end result could be the same - loss of life, serious injury, or damage to property. REPRESENTATIVE MEYER agreed. Number 1761 CINDY CASHEN, Juneau Chapter, Mothers Against Drunk Driving (MADD), indicated that she agreed with Ms. Greeson's comments regarding naming the victims. She said MADD supports HB 330 because it will act as a deterrent. Referring to the example posed by Representative Meyer, that of an older sibling providing alcohol to a minor, she opined that almost certainly, the older sibling is a "habitual purchaser" and is not doing it for the first time; it will have been many times, until something tragic happens. In light of this, she said, "Yes, we do need to make it a felony." "Because we have given ourselves so many rights," she added, "we are now a state of victims ... and we now need to send a message out that we need to protect ourselves from ourselves." Number 1647 LINDA WILSON, Deputy Director, Public Defender Agency (PDA), Department of Administration, testified via teleconference and said that the PDA is encouraged by the "amendments made or suggested towards" Version O. She noted that since she does not yet have a copy of Version O, she is not sure where the language pertaining to negligence would go. She mentioned that originally, she was going to comment on the use of the broad term "injures", but Version O has addressed those concerns. MS. WILSON pointed out, however, that the PDA still has concerns about causation. When HB 330 requires that the person provide alcohol and that the minor be under the influence of an alcoholic beverage, causation becomes a problem because determining or tracking what alcohol that person is under [the influence of] may be very difficult. "If somebody gives somebody else a beer, another person gives them another beer, four hours later they get another beer, well, what alcohol are they under the influence of?" she asked. She predicted that that would be a difficult question to answer. MS. WILSON, referring to that same scenario, noted that there are also time factors that could come into question. "How long is the person who provides the alcohol exposed [to] liability," she asked. And with regard to the injury, she asked "what about intervening causes," and "what about superseding causes if the person is involved in something where self-defense is required: they leave, they get into a scuffle, there's serious physical injury, but it's in self-defense?" "What if the person who caused the injury was not expected/anticipated," she asked, pointing out that there might be "renegade actions" of a minor that aren't related. MS. WILSON remarked that the PDA has submitted an indeterminate fiscal note because it's very difficult to tell what percentage of the cases that the PDA handles regarding furnishing alcohol to minors might involve a situation where the minor seriously physically injures or kills somebody. The PDA tracks what happens to the person who furnishes the alcohol, she explained, noting that in many situations, that is the only charge; the PDA does not currently have the capability of tracking or correlating information about a separate offense or some other incident involving the minor. MS. WILSON surmised that making the crime of furnishing alcohol a felony as proposed by HB 330 could very well have a fiscal impact. She pointed out that statewide, the PDA handled over 100 cases of furnishing alcohol to minors, and she did not know what percentage of those cases might be charged as felonies, which require more time and effort than misdemeanor charges. To illustrate, she recounted, "You have a larger jury pool; you have indictments, more court hearings; if they are convicted, you have pre-sentence reports; aggravators [and] mitigators apply. So felonies take more time; they increase the workload." Number 1436 MS. WILSON concluded by saying that narrowing the language to "serious physical injury" is an improvement because that is a term already defined in Title 11. In response to a question, she said that she did not believe that the term "furnished" is defined in statute. REPRESENTATIVE BERKOWITZ said: One of the questions I have is whether we're prescribing conduct. For example, if you have an alcohol company that knows that a lot of kids are getting a hold of its booze, and one of those kids then goes out and seriously physically injures or kills somebody while under the influence. Do you think this statute would reach the corporate furnisher or deliverer? MS. WILSON surmised that the crime of furnishing alcohol to minors by a licensee is covered by another statute; AS 04.16.052 covers a licensee, or an agent or an employee of a licensee who furnishes alcohol. In response to the question of whether the two [statutes] are exclusive, she said probably not because "sometimes this particular statute could apply to a bartender." REPRESENTATIVE BERKOWITZ said it seems to him that under Version O, if a company that makes an alcoholic beverage has information that a lot of underage kids are drinking its product, then "you could go out and prosecute the corporation or its officers for furnishing" if, one day, one of those kids goes out and kills someone while under the influence of that product. MS. WILSON said she did not have an answer to that but noted that since HB 330 says "person", she is assuming that it has to be the "person" furnishing or delivering; which could, for example, be a bartender or a bar owner. REPRESENTATIVE BERKOWITZ said: But if the bar owner knew that there was a pattern where there was a lot of underage drinking at that bar and didn't take the steps to clean it up, then you could go back and reach the bar owner for feloniously providing. I'd be willing to take the case as a prosecutor." Number 1261 CHAIR ROKEBERG suggested that there is a separate statute under Title 4 that "is against the license, not the criminality." REPRESENTATIVE BERKOWITZ noted that the two statutes are not exclusive; both could apply. CHAIR ROKEBERG offered that one is a "license action" and one is a criminal action. REPRESENTATIVE MEYER, after noting that the Sullivan Arena, for example, provides alcohol at its events, asked who would be responsible if a minor was supplied with alcohol and then got into an accident on the way home, would it be the City of Anchorage or whoever has the license, or both? CHAIR ROKEBERG suggested that the bartender could be charged with the criminal offense under HB 330, and the licensee could have his/her license suspended/revoked under the other statute that applied. Thus the single occurrence could result in both a civil action and a criminal action. REPRESENTATIVE BERKOWITZ noted that a single course of conduct could result in more than one criminal charge. [The Department of Law provided a proposed amendment, which would later become Amendment 1, and which read as follows with original punctuation provided:] (2) the person who receives the alcoholic beverage negligently causes death or serious physical injury to another while under the influence of the alcoholic beverage received in violation of this section; in this paragraph "serious physical injury" has the meaning given in AS 11.81.900, and "negligently" means acting with civil negligence. Number 1148 ANNE CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), said that both the language in Version O and the language in [Amendment 1] "get you to the same place"; it is merely a question of which language style is preferred. She noted that the DOL supports HB 330 and agrees with the PDA regarding the two additions: "serious physical injury" and the reference to wrongdoing on the part of the child. She explained that the latter point would insure that a person could not be charged with a felony if the child goes out and gets in an accident that was not his/her fault. She acknowledged that there are causation problems [with HB 330] and surmised that [any resulting cases] will be difficult to prove. CHAIR ROKEBERG mentioned that he has some concern with Ms. Wilson's point that there could be some question as to which alcohol contributed to any resulting accident. MS. CARPENETI agreed that that issue could pose problems; nevertheless, [adoption of this type of legislation] is still worth doing even if such cases are difficult to prove. She noted, for example, that there might be cases where someone has been at a party that has "several furnishers." REPRESENTATIVE JAMES suggested that there could also be cases where someone has been drinking before arriving at such a party, does not drink anything at the party, and then later gets in an accident. She mentioned that she is having a struggle with this whole issue because she sees a lot of loopholes and because a felony charge is a serious charge. She asked Ms. Carpeneti for her thoughts on Ms. Cashen's testimony. MS. CARPENETI indicated her agreement with Ms. Cashen's statement that people should simply not be furnishing alcohol to minors; it is a very serious thing to do, and people who do so should take [responsibility for] the consequences. She noted that although she, too, has some concerns, both she and the DOL support HB 330. Number 0920 REPRESENTATIVE JAMES said she has concern about situations in which the alcohol is provided by a spouse. CHAIR ROKEBERG clarified that AS 04.16.051(b) says: "This section does not prohibit the furnishing or delivery of an alcoholic beverage (1) by a parent to the parent's child, by a guardian to the guardian's ward, or by a person to the legal spouse of that person if the furnishing or deliver occurs off licensed premises". And, in an effort to alleviate Representative James's concern about providing for a felony charge, he noted that it is currently a felony under AS 04.16.051 if the person has been previously convicted of this same crime within the five years preceding the current violation. In response to questions, he confirmed that HB 330 would make it a felony for a first-time conviction but only if the underage drinker goes on to cause a serious physical injury or a death while acting in a negligent manner. MS. CARPENETI suggested that if the committee is concerned about the legislation including cases in which persons who are over 21 years old furnish alcohol to persons who are 18, 19 or 20 years old, language could be inserted to the effect that it would only become a felony if the alcohol is provided to a minor - someone under the age of 18. She reiterated, though, that the DOL supports HB 330 as is. In response to a question, she noted that even if such a change were made, the person who was 18, 19 or 20 years old would still be charged with minor in possession. MS. CARPENETI, in response to questions, explained that a class C felony can result in a sentence of up to five years' incarceration, whereas a class A misdemeanor can result in a sentence of up to one year, and that this difference, in part, results in the increased cost associated with prosecuting and defending felony charges. In response to a question of whether a felony charge might be negotiated down to a misdemeanor, she noted that there is always the possibility of negotiations, depending on the facts, regardless of whether the initial charge is a felony or a misdemeanor. Number 0578 REPRESENTATIVE BERKOWITZ asked whether there is any mens rea - culpable mental state - associated with knowing that the person was [under 21]. MS. CARPENETI replied: "The culpable mental state is acting with criminal negligence, [which] violates this section, so you'd have to be criminally negligent about that." REPRESENTATIVE BERKOWITZ surmised, then, that "we're not going to have to check anyone's ID or anything like that." MS. CARPENETI said, "Well, if it were me, I would." CHAIR ROKEBERG mentioned that there would have to be a death or a serious injury "preceding this whole charge." MS. CARPENETI said, "I think you have to act with criminal negligence." REPRESENTATIVE BERKOWITZ asked what sort of sentence range are first- and second-time offenders subject to under the current statutory scheme. MS. CARPENETI posited that it would depend on the facts, adding that she would have to research that information and provide it later. REPRESENTATIVE BERKOWITZ, referring to his earlier example about a hypothetical company that knew underage drinkers were accessing its product, asked whether HB 330 could be used to prosecute that company. MS. CARPENETI said that she reads [HB 330] to be more limited than that; she posited that it applies to the person who actually provides the alcohol. She remarked that, as Chair Rokeberg has already stated, there are other statutes that would apply in Representative Berkowitz's example. She added that she would research the issue to see whether the DOL has ever attempted to prosecute such a case or whether it has been done in another jurisdiction under a similar statute. REPRESENTATIVE BERKOWITZ encouraged the DOL to look into that possibility, saying that it seems to him that an aggressive prosecution could, under the current statutory scheme, reach the corporate executives of his hypothetical example and, under certain circumstances, might indeed be warranted. Number 0383 CHAIR ROKEBERG closed the public hearing on HB 330. He noted that one of the issues the committee must decide is whether to use the language proposed by the DOL [via Amendment 1] or to retain the language in Version O. REPRESENTATIVE JAMES said that it did not matter that much to her which language is used. She mentioned, however, that it seems to her, during attempts to increase penalties because something horrible has happened, that the consistent argument for doing so is that raising the penalties will act as a deterrent, but in her experience, such has not proved to be the case. She added that she has a problem with the concept of trying to create, via laws and penalties, a perfect life on earth; it's just not ever going to happen. REPRESENTATIVE MEYER indicated that he is not too concerned over which language is used either. And while HB 330 may not deter everyone from providing alcohol to underage drinkers, he said he feels that HB 330 is "a victim's-rights bill" in the sense that at least there will be a serious penalty associated with this offense in instances when an underage drinker goes out and causes the death of someone. REPRESENTATIVE BERKOWITZ opined that the simpler language [in Amendment 1] would be preferable; "it's clearer, it's easier to prosecute, people know what the rules are, and, when we're sending messages with our legislation, it ought not to be cryptic." CHAIR ROKEBERG noted that he is not "wedded to either one." REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 1. There being no objection, Amendment 1 was adopted. REPRESENTATIVE OGAN commented that word of this type of a law, which could make it a felony to provide alcohol to a minor if a serious accident results, will quickly spread. TAPE 02-16, SIDE A Number 0001 REPRESENTATIVE OGAN also mentioned that in "the valley," the problem of adults buying alcohol for minors is epidemic. Number 0048 REPRESENTATIVE OGAN moved to report the proposed committee substitute (CS) for HB 330, version 22-LS1178\O, Ford, 2/11/02, as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 330(JUD) was reported from the House Judiciary Standing Committee.
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