Legislature(2013 - 2014)CAPITOL 120
04/04/2014 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing(s)|| Board of Governors of the Alaska Bar | |
| SB187 | |
| HB282 | |
| SB64 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 187 | TELECONFERENCED | |
| += | SB 64 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| + | TELECONFERENCED | ||
| += | HB 282 | TELECONFERENCED | |
SB 64-OMNIBUS CRIME/CORRECTIONS/RECIDIVISM BILL
[Contains discussions of SB 108, HB 313, and SB 81]
2:15:59 PM
CHAIR KELLER announced that the final order of business would be
CS FOR SENATE BILL NO. 64(FIN), "An Act relating to theft and
property offenses; relating to the definition of 'prior
convictions' for certain theft offenses; establishing the Alaska
Criminal Justice Commission and providing an expiration date;
relating to the crime of custodial interference; relating to the
duties of the Alaska Judicial Council; relating to jail-time
credit for offenders in court-ordered treatment programs;
relating to conditions of release, probation, and parole;
relating to duties of the commissioner of corrections and board
of parole; establishing a fund for reducing recidivism in the
Department of Health and Social Services; requiring the
commissioner of health and social services to establish programs
for persons on conditions of release or probation that require
testing for controlled substances and alcoholic beverages;
requiring the board of parole to establish programs for persons
on parole that require testing for controlled substances and
alcoholic beverages; relating to the duties of the Department of
Health and Social Services; and providing for an effective
date."
2:16:18 PM
[The proposed amendments were numbered.]
2:20:42 PM
CHAIR KELLER moved to adopt Amendment 11, labeled 28-
LS0116\L.21, Gardner, 4/3/14.
REPRESENTATIVE GRUENBERG objected for the purpose of discussion.
At the request of Chair Keller, Representative Gruenberg
withdrew his objection.
CHAIR KELLER withdrew his motion to adopt Amendment 11.
2:21:13 PM
REPRESENTATIVE LYNN moved to rescind the committee's action in
adopting Amendment 10 on 4/2/14.
CHAIR KELLER objected for the purpose of discussion. He
explained the reason for the motion to rescind is that changes
were made to the amendment. Chair Keller then removed his
objection. There being no further objection, it was so ordered.
2:21:52 PM
CHAIR KELLER moved to adopt Amendment 11, labeled 28-
LS0116\L.21, Gardner, 4/3/14, which read as follows:
Page 18, line 27, following "and":
Insert "criminal justice"
Page 18, line 28:
Delete "sentences"
Insert "those sentencing laws and criminal
justice practices"
Page 18, line 29, following "crimes,":
Insert "the rights of the accused and the person
convicted,"
Page 18, line 31, following "practices":
Insert "and criminal justice practices, including
rehabilitation and restitution"
Page 19, line 2:
Delete "and court rules related"
Insert ", court rules, and court decisions
relevant"
Page 19, line 6:
Delete "and proportionality"
Insert "proportionality, and accountability"
Page 19, line 8:
Delete "use"
Insert "efficacy"
Page 19, lines 8 - 9:
Delete "sentencing criminal defendants and to
ensure"
Insert "reducing recidivism, achieving
rehabilitation, and ensuring"
Page 19, line 16, following "resources;":
Insert "and"
Page 19, line 17:
Delete all material.
Renumber the following paragraph accordingly.
Page 19, line 19:
Delete "collection and dissemination"
Insert "collection, dissemination, and
extrapolation"
Page 19, lines 21 - 26:
Delete all material and insert:
"(1) recommend legislative and
administrative action on criminal justice practices;
and
(2) select and retain the services of
consultants as necessary."
Page 19, line 31:
Delete "criminals"
Insert "and administering justice"
Page 20, line 6, following "confine":
Insert "violent"
Page 20, lines 14 - 15:
Delete "the resources available to agencies in
the criminal justice system; and"
Insert "the sufficiency of state agency resources
to administer the state's criminal
justice system;"
Page 20, line 16:
Delete "sentencing"
Insert "criminal justice laws and practices"
Page 20, line 17, following "state":
Insert ";
(K) peer reviewed and data-driven research;
(L) the effect of over-classification of
prisoners; and
(M) the effects of evidence-based
restorative justice initiatives on persons convicted
of criminal violations and offenses, the victim, and
the community"
REPRESENTATIVE GRUENBERG objected for the purpose of discussion.
2:22:40 PM
ERNEST PRAX, Staff, Representative Wes Keller, Alaska State
Legislature, informed the committee Amendment 11 incorporates
some of the conceptual amendments that were made in the
rescinded Amendment 10 and also makes an additional change to
the original language of SB 64. He related Conceptual Amendment
1 to Amendment 10 was changed to remove "usability" and restore
"effectiveness." Directing attention to Amendment 11, page 2,
lines 16-17, he said this change is Conceptual Amendment 2 to
Amendment 10 that replaces "collection and dissemination" with
"collection, dissemination, and extrapolation." On page 2,
lines 19-23, he said this change relates to tasks of the
commission, deleting all of the material on page 19, lines 21-
26, of the original bill, and inserting, "that the commission
may recommend legislative and administrative action on criminal
justice practices and ... select and retain the services of
consultants as necessary."
2:25:38 PM
MR. PRAX, as an aside, noted that the aforementioned changes to
1ines 19-23 are the work of Representative Gruenberg, Senator
Coghill's staff, and he, and thus are supported by
Representative Gruenberg.
REPRESENTATIVE GRUENBERG concurred.
MR. PRAX said the final change in Amendment 10 is reflected in
Amendment 11, on page 3, line 3, which replaces "the sufficiency
in" with "the sufficiency of." This was also a recommendation
from Representative Gruenberg.
REPRESENTATIVE GRUENBERG pointed out that he had previously
questioned the use of the term "proportionality" in Amendment
11, on page 1, lines 19-20, and in the bill on page 19, line 6.
He expressed his understanding that proportionality is a term of
art that means "is not tremendously disproportionate to what is
intended under the statute." Representative Gruenberg noted the
use of the term is found in Sikeo v. State, 258 P.3d 906,
(Alaska Ct. App. 2011).
2:28:49 PM
REPRESENTATIVE GRUENBERG then removed his objection to the
motion to adopt Amendment 11. [Although not stated, there being
no further objection, Amendment 11 was treated as adopted.]
2:29:09 PM
REPRESENTATIVE GRUENBERG moved to adopt Amendment [12], labeled
28-LS0116\L.9, Gardner, 3/31/14, which read:
Page 2, line 20, following "person":
Insert ", with the intent to take or keep the
child or incompetent person"
CHAIR KELLER objected for the purpose of discussion.
REPRESENTATIVE GRUENBERG related Amendment 12 establishes that
"there has to be an intent that you're going to really do
something."
2:30:24 PM
QUINLAN STEINER, Director, Central Office, Public Defender
Agency, Department of Administration, informed the committee
Amendment 12 cures the problem that a person could be convicted
of a crime for just making a statement. He said the amendment
clarifies that there must be intent and further action.
2:31:03 PM
REPRESENTATIVE KELLER removed his objection. There being no
further objection, Amendment 12 was adopted.
[Amendment 13, labeled 28-LS0116\L.15, Strasbaugh, 4/1/14, was
briefly discussed and was not offered.]
REPRESENTATIVE GRUENBERG said Amendment 14 establishes post-
traumatic stress disorder (PTSD) as a mitigating factor in
sentencing. The language of the amendment was derived from [HB
313] which was heard before the House Special Committee on
Military and Veterans' Affairs.
2:32:42 PM
REPRESENTATIVE GRUENBERG moved to adopt Amendment 14, labeled
28-LS0116\L.24, Strasbaugh/Gardner, 4/3/14, which read:
Page 1, line 6, following "and parole;":
Insert "relating to a mitigating factor for a
person suffering from combat-related post-traumatic
stress disorder or combat-related traumatic brain
injury"
Page 13, following line 27:
Insert a new bill section to read:
"* Sec. 25. AS 12.55.155(d) is amended to read:
(d) The following factors shall be considered by
the sentencing court if proven in accordance with this
section, and may allow imposition of a sentence below
the presumptive range set out in AS 12.55.125:
(1) the offense was principally
accomplished by another person, and the defendant
manifested extreme caution or sincere concern for the
safety or well-being of the victim;
(2) the defendant, although an accomplice,
played only a minor role in the commission of the
offense;
(3) the defendant committed the offense
under some degree of duress, coercion, threat, or
compulsion insufficient to constitute a complete
defense, but that significantly affected the
defendant's conduct;
(4) the conduct of a youthful defendant was
substantially influenced by another person more mature
than the defendant;
(5) the conduct of an aged defendant was
substantially a product of physical or mental
infirmities resulting from the defendant's age;
(6) in a conviction for assault under
AS 11.41.200 - 11.41.220, the defendant acted with
serious provocation from the victim;
(7) except in the case of a crime defined
by AS 11.41.410 - 11.41.470, the victim provoked the
crime to a significant degree;
(8) before the defendant knew that the
criminal conduct had been discovered, the defendant
fully compensated or made a good faith effort to fully
compensate the victim of the defendant's criminal
conduct for any damage or injury sustained;
(9) the conduct constituting the offense
was among the least serious conduct included in the
definition of the offense;
(10) the defendant was motivated to commit
the offense solely by an overwhelming compulsion to
provide for emergency necessities for the defendant's
immediate family;
(11) after commission of the offense for
which the defendant is being sentenced, the defendant
assisted authorities to detect, apprehend, or
prosecute other persons who committed an offense;
(12) the facts surrounding the commission
of the offense and any previous offenses by the
defendant establish that the harm caused by the
defendant's conduct is consistently minor and
inconsistent with the imposition of a substantial
period of imprisonment;
(13) the defendant is convicted of an
offense specified in AS 11.71 and the offense involved
small quantities of a controlled substance;
(14) the defendant is convicted of an
offense specified in AS 11.71 and the offense involved
the distribution of a controlled substance, other than
a schedule IA controlled substance, to a personal
acquaintance who is 19 years of age or older for no
profit;
(15) the defendant is convicted of an
offense specified in AS 11.71 and the offense involved
the possession of a small amount of a controlled
substance for personal use in the defendant's home;
(16) in a conviction for assault or
attempted assault or for homicide or attempted
homicide, the defendant acted in response to domestic
violence perpetrated by the victim against the
defendant and the domestic violence consisted of
aggravated or repeated instances of assaultive
behavior;
(17) except in the case of an offense
defined by AS 11.41 or AS 11.46.400, the defendant has
been convicted of a class B or C felony, and, at the
time of sentencing, has successfully completed a
court-ordered treatment program as defined in
AS 28.35.028 that was begun after the offense was
committed;
(18) except in the case of an offense
defined under AS 11.41 or AS 11.46.400 or a defendant
who has previously been convicted of a felony, the
defendant committed the offense while suffering from a
mental disease or defect as defined in AS 12.47.130
that was insufficient to constitute a complete defense
but that significantly affected the defendant's
conduct;
(19) the defendant is convicted of an
offense under AS 11.71, and the defendant sought
medical assistance for another person who was
experiencing a drug overdose contemporaneously with
the commission of the offense;
(20) except in the case of an offense
defined under AS 11.41 or AS 11.46.400, the defendant
committed the offense while suffering from a condition
diagnosed
(A) as a fetal alcohol spectrum disorder,
the fetal alcohol spectrum disorder substantially
impaired the defendant's judgment, behavior, capacity
to recognize reality, or ability to cope with the
ordinary demands of life, and the fetal alcohol
spectrum disorder, though insufficient to constitute a
complete defense, significantly affected the
defendant's conduct; in this paragraph, "fetal alcohol
spectrum disorder" means a condition of impaired brain
function in the range of permanent birth defects
caused by maternal consumption of alcohol during
pregnancy; or
(B) as combat-related post-traumatic stress
disorder or combat-related traumatic brain injury, the
combat-related post-traumatic stress disorder or
combat-related traumatic brain injury substantially
impaired the defendant's judgment, behavior, capacity
to recognize reality, or ability to cope with the
ordinary demands of life, and the combat-related post-
traumatic stress disorder or combat-related traumatic
brain injury, though insufficient to constitute a
complete defense, significantly affected the
defendant's conduct; in this paragraph, "combat-
related post-traumatic stress disorder or combat-
related traumatic brain injury" means post-traumatic
stress disorder or traumatic brain injury resulting
from combat with an enemy of the United States in the
line of duty while on active duty as a member of the
armed forces of the United States; nothing in this
paragraph is intended to limit the application of (18)
of this subsection."
Renumber the following bill sections accordingly.
Page 23, line 17:
Delete "secs. 1 - 28 and 30 - 34"
Insert "secs. 1 - 29 and 31 - 35"
Page 23, line 19:
Delete "sec. 26"
Insert "sec. 27"
Delete "sec. 27"
Insert "sec. 28"
Page 23, line 20:
Delete "sec. 28"
Insert "sec. 29"
Page 23, line 21:
Delete "sec. 32"
Insert "sec. 33"
Page 23, line 22:
Delete "secs. 1 - 28 and 30 - 34"
Insert "secs. 1 - 29 and 31 - 35"
Page 23, line 23:
Delete "secs. 1 - 28 and 30 - 34"
Insert "secs. 1 - 29 and 31 - 35"
Page 23, following line 23:
Insert a new subsection to read:
"(c) AS 12.55.155(d)(20), as amended by sec. 25
of this Act, applies to prosecutions occurring on or
after the effective date of sec. 25 of this Act for
offenses occurring before, on, or after the effective
date of sec. 25 of this Act."
Page 23, line 27:
Delete "sec. 30"
Insert "sec. 31"
Page 23, line 29:
Delete "sec. 30"
Insert "sec. 31"
Page 24, line 3:
Delete "sec. 26"
Insert "sec. 27"
Page 24, line 6:
Delete "sec. 27"
Insert "sec. 28"
Delete "sec. 28"
Insert "sec. 29"
Page 24, line 9:
Delete "sec. 32"
Insert "sec. 33"
Page 24, line 12:
Delete "Section 29"
Insert "Section 30"
Page 24, line 13:
Delete "Section 36"
Insert "Section 37"
Page 24, line 14:
Delete "Sections 1 - 28 and 30 - 34"
Insert "Sections 1 - 29 and 31 - 35"
CHAIR KELLER objected for the purpose of discussion. He spoke
to his objection, saying that Amendment 14 is outside the scope
and intent of the bill. In addition, the subject is addressed
by other proposed legislation.
REPRESENTATIVE GRUENBERG said Amendment 14 makes clear that PTSD
and combat-related traumatic brain injury are "mental disease or
defect[s]", as referred to in [paragraph] 18, page 3, lines 6-10
of the proposed bill. The amendment directs that people who
have PTSD and combat-related traumatic brain injury, as a result
of active duty, would be able to use this mitigating factor.
The subject is germane to the bill because the proposed bill
deals with crimes and criminal procedures and is an omnibus bill
with a broad title. In addition, he said it would be a shame
not to let somebody who is not committing a crime against the
person, or a first degree arson, present the aforementioned
mitigating factor as evidence.
2:36:56 PM
JORDAN SHILLING, Staff, Senator John Coghill, Alaska State
Legislature, informed the committee that Senator Coghill
deferred judgment on Amendment 14 to the chair of the House
Judiciary Standing Committee.
2:37:23 PM
The committee took an at-ease from 2:37 p.m. to 2:38 p.m.
2:38:06 PM
REPRESENTATIVE LEDOUX expressed her support of Amendment 14.
2:38:26 PM
CHAIR KELLER agreed that Amendment 14 is germane to the proposed
bill. He removed his objection, and there being no further
objection, Amendment 14 was adopted.
2:39:23 PM
REPRESENTATIVE GRUENBERG moved to adopt Amendment 15, labeled
28-LS0116\L.28, Gardner, 4/4/14, which read:
Page 17, line 21:
Delete "10"
Insert "12"
Page 18, following line 5:
Insert new paragraphs to read:
"(9) one victims' rights advocate appointed
by the governor for a three-year term;
(10) the chief executive officer of the
Alaska Mental Health Trust Authority or a designee of
the chief executive officer;"
Renumber the following paragraphs accordingly.
Page 18, line 10:
Delete "(a)(7) or (8)"
Insert "(a)(7) - (9)"
CHAIR KELLER objected for the purpose of discussion. Speaking
from his experience serving on commissions, he stressed the
importance of keeping the proposed commission small. Expanding
the commission to 12 participants is "nearly unmanageable."
Although he would like to add the victims' rights advocates to
the commission, he assured the committee "they're going to be
listened to." His said his opposition is only to the expansion
of the size of the commission.
2:41:04 PM
The committee took a brief at-ease.
2:42:38 PM
MR. SHILLING expressed his belief that Senator Coghill would
defer to the chair on this amendment.
2:43:09 PM
REPRESENTATIVE GRUENBERG said the purpose of Amendment 15 is to
provide "a smorgasbord approach." He made a motion to adopt an
amendment to Amendment 15 to delete lines 9-10 which read:
the chief executive officer of the Alaska Mental
Health Trust Authority or a designee of the chief
executive officer,"
There being no objection, it was so ordered.
2:44:22 PM
CHAIR KELLER removed his objection to Amendment 15, as amended.
There being no further objection, Amendment 15, as amended, was
adopted.
2:45:03 PM
CHAIR KELLER moved to adopt Amendment 16, labeled 28-
LS0116\L.27, Gardner, 4/4/14, which read:
Page 1, line 3, following "date;":
Insert "allowing a reduction of penalties for
offenders successfully completing court-ordered
treatment programs for persons convicted of driving
while under the influence; relating to termination of
a revocation of a person's driver's license; relating
to limitation of drivers' licenses; relating to
restoration of a driver's license;"
Page 13, following line 31:
Insert new bill sections to read:
"* Sec. 26. AS 28.15.181(f) is amended to read:
(f) The court may terminate a revocation for an
offense described in (a)(5) or (8) of this section if
(1) either
(A) the person's license, privilege to
drive, or privilege to obtain a license has been
revoked for the minimum periods set out in (c) of this
section; or
(B) the person
(i) has successfully completed a court-
ordered treatment program under AS 28.35.028;
(ii) has not been convicted of a violation
of AS 28.35.030 or 28.35.032, or a similar law or
ordinance of this or another jurisdiction since
completing the program; and
(iii) has been granted limited license
privileges under AS 28.15.201(g) and has successfully
driven for two years under that limited license
without having the limited license privileges revoked;
and
(2) the person complies with the provisions
of AS 28.15.211(d) and (e).
* Sec. 27. AS 28.15.201 is amended by adding new
subsections to read:
(g) Notwithstanding (d) of this section, a court
revoking a driver's license, privilege to drive, or
privilege to obtain a license under AS 28.15.181(c),
or the department when revoking a driver's license,
privilege to drive, or privilege to obtain a license
under AS 28.15.165(c), may grant limited license
privileges if
(1) the revocation was for a felony
conviction under AS 28.35.030;
(2) the person has successfully
participated for at least six months in, or has
successfully completed, a court-ordered treatment
program under AS 28.35.028;
(3) the person provides proof of insurance
as required by AS 28.20.230 and 28.20.240;
(4) the court requires the person to use an
ignition interlock device during the period of the
limited license whenever the person operates a motor
vehicle in a community not included in the list
published by the department under AS 28.22.011(b) and,
when applicable,
(A) the person provides proof of
installation of the ignition interlock device on every
vehicle the person operates;
(B) the person signs an affidavit
acknowledging that
(i) operation by the person of a vehicle
that is not equipped with an ignition interlock device
is subject to penalties for driving with a revoked
license;
(ii) circumventing or tampering with the
ignition interlock device is a class A misdemeanor;
and
(iii) the person is required to maintain
the ignition interlock device throughout the period of
the limited license, to keep up-to-date records in
each vehicle showing that any required service and
calibration is current, and to produce those records
immediately on request;
(5) the person is enrolled in and is in
compliance with or has successfully completed the
alcoholism screening, evaluation, referral, and
program requirements of the Department of Health and
Social Services under AS 28.35.030(h);
(6) the person has not previously been
granted a limited license under this subsection and
had the license revoked under (h) of this section;
(7) the person complies with a program
established under AS 47.38.020 for a minimum of 120
days from the date a limited license is granted under
this section.
(h) The court or the department may immediately
revoke a limited license granted under (g) of this
section if the person is convicted of a violation of
AS 28.35.030 or 28.35.032 or a similar law or
ordinance of this or another jurisdiction.
* Sec. 28. AS 28.35.028(b) is amended to read:
(b) Once the court elects to proceed under this
section, the defendant shall enter a no contest or
guilty plea to the offense or shall admit to a
probation violation, as appropriate. The state and the
defendant may enter into a plea agreement to determine
the offense or offenses to which the defendant is
required to plead. If the court accepts the agreement,
the court shall enforce the terms of the agreement.
The court shall enter a judgment of conviction for the
offense or offenses for which the defendant has
pleaded or an order finding that the defendant has
violated probation, as appropriate. A judgment of
conviction or an order finding a probation violation
must set a schedule for payment of restitution owed by
the defendant. In a judgment of conviction and on
probation conditions that the court considers
appropriate, the court may withhold pronouncement of a
period of imprisonment or a fine to provide an
incentive for the defendant to complete recommended
treatment successfully. Imprisonment or a fine imposed
by a court shall comply with AS 12.55 or any mandatory
minimum or other sentencing provision applicable to
the offense. However, notwithstanding Rule 35, Alaska
Rules of Criminal Procedure, and any other provision
of law, the court, at any time after the period when a
reduction of sentence is normally available, may
consider and reduce the defendant's sentence,
including imprisonment, fine, or license revocation,
based on the defendant's compliance with the treatment
plan; when reducing a sentence, the court (1) may not
reduce the sentence below the mandatory minimum
sentence for the offense unless the court finds that
the defendant has successfully complied with and
completed the treatment plan and that the treatment
plan approximated the severity of the minimum period
of imprisonment, and (2) may consider the defendant's
compliance with the treatment plan as a mitigating
factor allowing a reduction of a sentence under
AS 12.55.155(a). A court entering an order finding the
defendant has violated probation may withhold
pronouncement of disposition to provide an incentive
for the defendant to complete the recommended
treatment successfully.
* Sec. 29. AS 28.35.030(o) is amended to read:
(o) Upon request, the department shall review a
driver's license revocation imposed under (n)(3) of
this section and
(1) may restore the driver's license if
(A) [(1)] the license has been revoked for
a period of at least 10 years;
(B) [(2)] the person has not been convicted
of a criminal offense since the license was revoked;
and
(C) [(3)] the person provides proof of
financial responsibility;
(2) shall restore the driver's license if
(A) the person has been granted limited
license privileges under AS 28.15.201(g) and has
successfully driven under that limited license for two
years without having the limited license privileges
revoked;
(B) the person has successfully completed a
court-ordered treatment program under AS 28.35.028;
(C) the court previously terminated the
person's revocation as provided in
AS 28.15.181(f)(1)(B);
(D) the person has not been convicted of a
violation of AS 28.35.030 or 28.35.032 or a similar
law or ordinance of this or another jurisdiction since
the license was revoked;
(E) the person's privilege to drive may be
restored as provided in AS 28.15.211; and
(F) the person provides proof of financial
responsibility."
Renumber the following bill sections accordingly.
Page 23, line 17:
Delete "secs. 1 - 28 and 30 - 34"
Insert "secs. 1 - 32 and 34 - 38"
Page 23, line 18, following "Act,":
Insert "AS 28.15.181(f), as amended by sec. 26 of
this Act, AS 28.15.201(g) and (h), enacted by sec. 27
of this Act, AS 28.35.028(b), as amended by sec. 28 of
this Act, AS 28.35.030(o), as amended by sec. 29 of
this Act,"
Page 23, line 19:
Delete "sec. 26"
Insert "sec. 30"
Delete "sec. 27"
Insert "sec. 31"
Page 23, line 20:
Delete "sec. 28"
Insert "sec. 32"
Page 23, line 21:
Delete "sec. 32"
Insert "sec. 36"
Page 23, line 22:
Delete "secs. 1 - 28 and 30 - 34"
Insert "secs. 1 - 32 and 34 - 38"
Page 23, line 23:
Delete "secs. 1 - 28 and 30 - 34"
Insert "secs. 1 - 32 and 34 - 38"
Page 23, line 27:
Delete "sec. 30"
Insert "sec. 34"
Page 23, line 29:
Delete "sec. 30"
Insert "sec. 34"
Page 24, line 3:
Delete "sec. 26"
Insert "sec. 30"
Page 24, line 6:
Delete "sec. 27"
Insert "sec. 31"
Delete "sec. 28"
Insert "sec. 32"
Page 24, line 9:
Delete "sec. 32"
Insert "sec. 36"
Page 24, line 12:
Delete "Section 29"
Insert "Section 33"
Page 24, line 13:
Delete "Section 36"
Insert "Section 40"
Page 24, line 14:
Delete "Sections 1 - 28 and 30 - 34"
Insert "Sections 1 - 32 and 34 - 38"
REPRESENTATIVE GRUENBERG objected for the purpose of discussion.
2:45:14 PM
MR. SHILLING explained that the purpose of Amendment 16 was to
incorporate the concept of a limited license. This concept was
originally in [SB 81], sponsored by Senators Meyer and Coghill,
and which was "rolled into the crime bill, SB 64." He described
the concept as very complicated, made more so by AS Title 28 -
Motor Vehicles. The main reason to establish a limited license
in Alaska is because those who have been convicted of felony
driving under the influence (DUI) and lose their right to drive
for life, still continue to drive while unlicensed and
uninsured. Amendment 16 would establish a special license to
"funnel these individuals into a state-supervised license." To
qualify for the special license, an individual must agree to the
following public safety measures: participate in a therapeutic
court, which is a treatment program; have insurance; have an
ignition interlock device on their vehicle; be enrolled in the
Alcohol Safety Action Program (ASAP); and be on the 24/7
Sobriety Program. Mr. Shilling stressed that an individual only
has one opportunity to obtain a special limited license. He
recalled that the sponsors have been working on the concept of
Amendment 16 for over one year.
CHAIR KELLER observed the foregoing supports the creation of the
Alaska Criminal Justice Commission.
REPRESENTATIVE FOSTER asked about the access to limited licenses
for those living in the rural areas of Alaska.
2:49:06 PM
TONY PIPER, Program Manager, Alcohol Safety Action Program,
Division of Behavioral Health, Department of Health and Social
Services, responded that the Alcohol Safety Action Program
(ASAP) has 13 offices around the state; in areas without an ASAP
office, the "treatment agencies" in the area sometimes offer
monitoring and reporting services.
REPRESENTATIVE FOSTER expressed his support for limited
licenses, as long as the state can ensure that they are
available to those in rural Alaska.
MR. SHILLING said he was unsure of which communities are
exempted from interlock laws.
2:50:36 PM
REPRESENTATIVE GRUENBERG withdrew his objection. There being no
further objection, Amendment 16 was adopted.
2:51:00 PM
CHAIR KELLER moved to adopt Amendment 17, labeled 28-
LS0116\L.18, Gardner, 4/1/14, which read:
Page 2, line 1, following "Services;":
Insert "relating to the confidentiality of
certain records of criminal cases;"
Page 2, following line 2:
Insert a new bill section to read:
"* Section 1. The uncodified law of the State of
Alaska is amended by adding a new section to read:
LEGISLATIVE INTENT FOR SEC. 27 OF THIS ACT. It is
the intent of the legislature in sec. 27 of this Act
that, to the extent practicable, the Alaska Court
System hold confidential records of criminal cases
that were disposed of before the effective date of
sec. 27 of this Act by acquittal of all charges, by
dismissal of all charges, or by acquittal of some
charges and dismissal of the remaining charges, to the
same extent that records are held confidential under
AS 22.35.030, enacted by sec. 27 of this Act."
Page 2, line 3:
Delete "Section 1"
Insert "Sec. 2"
Renumber the following bill sections accordingly.
Page 13, following line 31:
Insert a new bill section to read:
"* Sec. 27. AS 22.35 is amended by adding a new
section to read:
Sec. 22.35.030. Records concerning criminal cases
resulting in acquittal or dismissal confidential. (a)
A court record of a criminal case is confidential if
120 days have elapsed from the date of acquittal or
dismissal and
(1) the defendant was acquitted of all
charges filed in the case;
(2) all criminal charges against the
defendant in the case have been dismissed by the
prosecuting authority; or
(3) the defendant was acquitted of some of
the criminal charges in the case and the remaining
charges were dismissed.
(b) Notwithstanding (a) of this section, the
following persons may have access to records made
confidential under this section:
(1) employees of the Department of Health
and Social Services who are responsible for the
health, safety, welfare, or placement of a child, a
person with a physical or intellectual disability, or
a person with a mental illness;
(2) the public guardian under AS 13.26.370
or a guardian ad litem supervised by the office of
public advocacy;
(3) a person who is authorized to have
access to the criminal justice information network
maintained by the Department of Public Safety under
AS 12.62.
(c) The Department of Health and Social Services
shall adopt regulations to administer (b)(1) of this
section."
Renumber the following bill sections accordingly.
Page 23, line 3:
Delete "sec. 1"
Insert "sec. 2"
Page 23, line 4:
Delete "sec. 2"
Insert "sec. 3"
Delete "sec. 3"
Insert "sec. 4"
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Page 23, line 6:
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Insert "sec. 6"
Delete "sec. 6"
Insert "sec. 7"
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Insert "sec. 8"
Delete "sec. 8"
Insert "sec. 9"
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Delete "sec. 10"
Insert "sec. 11"
Page 23, line 9:
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Insert "sec. 13"
Delete "sec. 13"
Insert "sec. 14"
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Delete "sec. 14"
Insert "sec. 15"
Delete "sec. 15"
Insert "sec. 16"
Page 23, line 12:
Delete "sec. 16"
Insert "sec. 17"
Delete "sec. 17"
Insert "sec. 18"
Page 23, line 13:
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Page 23, line 14:
Delete "sec. 19"
Insert "sec. 20"
Delete "sec. 20"
Insert "sec. 21"
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Delete "sec. 21"
Insert "sec. 22"
Delete "sec. 22"
Insert "sec. 23"
Page 23, line 16:
Delete "sec. 23"
Insert "sec. 24"
Page 23, line 17:
Delete "secs. 1 - 28 and 30 - 34"
Insert "secs. 1 - 26, 28 - 30, and 32 - 36"
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Delete "sec. 24"
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Page 23, line 19:
Delete "sec. 26"
Insert "sec. 28"
Delete "sec. 27"
Insert "sec. 29"
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Insert "sec. 30"
Page 23, line 21:
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Insert "sec. 34"
Page 23, line 22:
Delete "secs. 1 - 28 and 30 - 34"
Insert "secs. 1 - 26, 28 - 30, and 32 - 36"
Page 23, line 23:
Delete "secs. 1 - 28 and 30 - 34"
Insert "secs. 1 - 26, 28 - 30, and 32 - 36"
Page 23, following line 23:
Insert a new subsection to read:
"(c) AS 22.35.030, enacted by sec. 27 of this
Act, applies to criminal charges concluded on or after
the effective date of sec. 27 of this Act, by
dismissal or by acquittal of the defendant."
Page 23, line 27:
Delete "sec. 30"
Insert "sec. 32"
Page 23, line 29:
Delete "sec. 30"
Insert "sec. 32"
Page 24, line 3:
Delete "sec. 26"
Insert "sec. 28"
Page 24, line 6:
Delete "sec. 27"
Insert "sec. 29"
Delete "sec. 28"
Insert "sec. 30"
Page 24, line 9:
Delete "sec. 32"
Insert "sec. 34"
Page 24, following line 11:
Insert a new bill section to read:
"* Sec. 39. Section 27 of this Act takes effect
October 1, 2014."
Renumber the following bill sections accordingly.
Page 24, line 12:
Delete "Section 29"
Insert "Section 31"
Page 24, line 13:
Delete "Section 36"
Insert "Section 38"
Page 24, line 14:
Delete "Sections 1 - 28 and 30 - 34"
Insert "Sections 1 - 26, 28 - 30, and 32 - 36"
REPRESENTATIVE GRUENBERG objected for the purpose of discussion.
MR. PRAX said the language in Amendment 17 was derived from SB
108 which is sponsored by Senator Dyson and is currently in the
House Judiciary Standing Committee. The amendment relates to
the confidentiality of records in criminal cases.
2:52:02 PM
SENATOR FRED DYSON, Alaska State Legislature, expressed his
belief that the adoption of Amendment 17 is supported by Senator
Coghill. He informed the committee the substance of Amendment
17 was thoroughly vetted in the Senate [during the hearing of SB
108], and noted there has been consistent support in both houses
of the legislature for rights held in the Second Amendment to
the U.S. Constitution. Amendment 17 addresses Amendments 4 and
5 to the U.S. Constitution, which are included in the Bill of
Rights: privacy and due process. He explained that Alaska has
had - for the last 10 years - the most extensive record of court
proceedings of any state through [the statewide index of trial
court cases filed with the Alaska Court System] CourtView.
However, there is no mechanism for arrest records "to disappear
off the list" thus the records of misdemeanor arrests that have
been dismissed are kept "forever without this bill." He
estimated that last year there were about 7,000 felony arrests
of which about 1,900 were dismissed and never went to trial, but
the records are maintained, along with those of defendants who
go through the trial process and who are acquitted. Senator
Dyson said the result is that people who are arrested but who
are not charged, have had their cases dismissed, or who are
acquitted, must explain to employers, lenders, and others why
they have a record. Furthermore, he pointed out that interested
parties may not sufficiently research a case to find a dismissal
or an acquittal. The purpose of the amendment is for those who
fully participated in the adjudication process, and have had all
charges dismissed, after 120 days the record will be removed
from CourtView. The records will still be available from the
National Crime Information Center and from the Alaska Public
Safety Information Network; in fact, there are special
provisions in the legislation to provide training on access to
the records for those researching adoptive and foster parents
and guardians. Senator Dyson described some of the problems
caused by a record remaining after a case was dismissed. He
opined that the number of cases filed against defendants found
guilty will be far less than the total arrests. He estimated
that over a 10-year history of recordkeeping through CourtView,
there may be 60,000-70,000 residents who were never charged or
whose cases were adjudicated.
2:57:24 PM
CHAIR KELLER clarified that the "trigger" is acquittal or
dismissal, and a [waiting] time period of 120 days.
SENATOR DYSON said yes.
2:57:34 PM
CHUCK KOPP, Staff, Senator Fred Dyson, Alaska State Legislature,
added that to have the arrest record removed a person must be
acquitted and/or dismissed of all charges, so if a defendant is
arrested on more than one charge, and pleads to the lesser
charge, all of the charges remain on CourtView. He said, "So it
only would go away if you were dismissed of all charges or all
charges against you, you were acquitted of."
REPRESENTATIVE LEDOUX called attention to legislative intent,
which appears to make the bill retroactive. She remarked:
And [it] also looks like that, as far as the
retroactivity portion of it, it could be acquittal of
some charges and dismissal of the remaining charges
for retroactive application, as opposed to for
prospective application, it would only be dismissal of
all of the charges. So that sort of confuses me.
MR. KOPP answered that the legislative intent section was added
because of the practical considerations of undoing the damage of
CourtView. To the extent this is practical, the court system
would treat the proposed legislation as going back for those who
are acquitted of all charges, dismissed of all charges or by
acquittal of some charges and dismissal of the remaining
charges, to the same extent that records are held confidential.
Inclusion of this language would "help [the court system] do
that to the portion of this process that most affects people,
which is CourtView, and then go forward with both the hard copy
and the electronic without a huge fiscal note ... going back for
decades of hard file copies.
REPRESENTATIVE FOSTER expressed his support of Amendment 17.
REPRESENTATIVE GRUENBERG also expressed support, but pointed out
that in the amendment a dismissal is only allowed if made by the
prosecuting attorney; however, a dismissal could be made by the
court.
MR. KOPP recognized that the court also dismisses cases and said
the omission had previously been brought to the sponsor's
attention. In further response to Representative Gruenberg, he
said the sponsor is comfortable with correcting the omission.
3:02:24 PM
SENATOR DYSON cautioned that there have been objections to
including dismissal by the court because of an apprehension of
arbitrary court decisions, and "a predisposition on the
Department of Law to keep control within their kingdom."
REPRESENTATIVE GRUENBERG said his first concern was to who can
dismiss cases, and his second concern was to why cases can be
dismissed. In fact, cases can be dismissed on their merits or
for various administrative reasons, such as a lack of a speedy
trial. He asked whether "the why of the dismissal" should be
part of the reason the records are not retained. Of his third
concern, he posed that a request for records could come for the
purpose of their use at trial to impeach a witness, and he asked
if the sponsor wants to allow the court to enter an appropriate
order to retain the records.
SENATOR DYSON restated that the records are only taken off
CourtView and officers of the court and police would still have
access to other sources. The Alaska Court System has changed
its court rules for civil cases.
REPRESENTATIVE LEDOUX observed that the amendment says, "A court
record of a criminal case is confidential." However, not having
records on CourtView does not mean they are confidential. She
read from Amendment 17 on page 2, lines 9-10, which read:
(b) Notwithstanding (a) of this section, the following
persons may have access to records made confidential
under this section:
REPRESENTATIVE LEDOUX continued, saying the language clearly
delineates the people who have access to records.
3:07:31 PM
NANCY MEADE, General Counsel, Administrative Staff, Alaska Court
System, in response to Representative LeDoux, confirmed that the
proposed statute would make the aforementioned court records
confidential in their paper format and on CourtView. The Alaska
Court System's definition of confidential is that those records
would be accessible only to the parties of a case and not by
other attorneys, thus the specific exceptions to who can access
the records is included in the proposed legislation.
REPRESENTATIVE LEDOUX stressed that the foregoing testimony has
been that "somebody could actually go down there and look at the
records, but that doesn't sound like that is necessarily the
case."
MS. MEADE expressed her understanding that these cases would be
confidential just like a Child in Need of Aid (CINA) case, and
access to those records is restricted to the parties, the
attorneys, and someone with a written order from the court or
court staff. She restated that the records would not be on
CourtView and would only be accessible in paper form to those
who are authorized.
REPRESENTATIVE GRUENBERG observed that there are still questions
about the amendment to be posed; for example, the best evidence
rule has not been discussed. Generally, parties to a legal case
seek a document in the best condition possible.
3:10:10 PM
The committee took a brief at-ease.
3:10:35 PM
REPRESENTATIVE LEDOUX said she felt uncomfortable with Amendment
17 as drafted.
MS. MEADE clarified that confidential records are accessible for
the use of law enforcement.
3:12:01 PM
REPRESENTATIVE GRUENBERG removed his objection. There being no
further objection, Amendment 17 was adopted.
3:12:13 PM
CHAIR KELLER [moved to adopt] Conceptual Amendment 18.
REPRESENTATIVE GRUENBERG objected for the purpose of discussion.
3:12:28 PM
The committee took a brief at-ease.
3:12:34 PM
CHAIR KELLER rescinded his motion to adopt Conceptual Amendment
18, and then moved to adopt Amendment 18, labeled 28-0116\L.29,
Gardner, 4/4/14 which read:
Page 23, following line 23:
Insert a new bill section to read:
"* Sec. 35. The uncodified law of the State of
Alaska is amended by adding a new section to read:
SPECIAL REPORT OF ALASKA CRIMINAL JUSTICE
COMMISSION. The Alaska Criminal Justice Commission
shall submit to the governor and the legislature a
special report, not later than July 1, 2016, regarding
alcohol-related offenses in AS 28. The report must
include recommendations on
(1) whether a revision of the alcohol-
related offenses in AS 28 is necessary;
(2) maintaining both the administrative and
court license revocation processes;
(3) the effectiveness of ignition interlock
devices in reducing the offenses of driving while
under the influence of an alcoholic beverage,
inhalant, or controlled substance and refusal to
submit to a chemical test, and reducing recidivism;
(4) whether the punishment, fines, and
associated driver's license revocation periods for the
offenses of driving while under the influence of an
alcoholic beverage, inhalant, or controlled substance
and refusal to submit to a chemical test should be
decreased or increased;
(5) the effectiveness of programs that
promote offender accountability, emphasize swift and
certain, yet measured, punishment, reduce recidivism,
and maximize the offender's ability to remain
productive in society;
(6) whether limited licenses should be
available for persons charged with or convicted of the
offenses of driving while under the influence of an
alcoholic beverage, inhalant, or controlled substance
or refusal to submit to a chemical test, while
providing for public safety."
Renumber the following bill sections accordingly.
Page 24, line 13:
Delete "Section 36"
Insert "Section 37"
REPRESENTATIVE GRUENBERG objected for the purpose of discussion.
3:13:50 PM
MR. PRAX explained that Amendment 18 was the result of
collaboration between Senator Coghill's staff, the Department of
Law, the court system, other interested parties, and himself.
He advised that Alaska's DUI laws are complex regarding licensed
drivers who have received a misdemeanor or felony DUI
conviction. He said the aforementioned collaborators concluded
that AS 28 "needs to be ... simplified" for the benefit of
drivers and other interested parties. Mr. Prax said the purpose
of Amendment 18 was to add a special report from the Alaska
Criminal Justice Commission to the legislature and the governor,
which is to be received no later than 7/1/16. The commission is
charged to review AS 28 and issue its report making
recommendations on the following:
· whether a revision of alcohol-related offenses in AS 28 is
necessary;
· maintaining both the administrative and court license
revocation processes;
· the effectiveness of ignition interlock devices in reducing
the offenses of driving while under the influence of
alcohol and in reducing recidivism;
· whether the punishment, fines, and associated driver's
license revocation periods for DUI offenses should be
increased or decreased;
· the effectiveness of programs that promote offender
accountability, emphasize swift and certain punishment and
maximize the offender's ability to remain productive in
society;
· whether limited licenses should be available for persons
convicted of DUI offenses.
MR. PRAX provided a short description of each task.
3:22:50 PM
MR. SHILLING said the amendment is commendable and agreed that
AS 28 is extremely difficult to interpret.
CHAIR KELLER cautioned about the amount of resources needed to
complete the purpose of the amendment, and expressed his
support.
REPRESENTATIVE GRUENBERG surmised that releasing an offender on
the street with "nothing and no way to get anywhere" invites
another offense.
CHAIR KELLER directed the committee's attention to a response
from the Department of Corrections found in the committee packet
related to the resources that are available to an inmate.
3:25:06 PM
REPRESENTATIVE GRUENBERG removed his objection. There being no
further objection, Amendment 18 was adopted.
3:25:17 PM
[CSSB 64(FIN) was held over.]