Legislature(1995 - 1996)
01/24/1996 01:10 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 370 - LEGAL COUNSEL FOR ACCUSED CRIMINALS CHAIRMAN PORTER, Co-Prime Sponsor gave a short synopsis of HB 370, which provides for legal services through Office of Public Advocacy (OPA) and the public defender by appointment of the court. Number 130 LT. CHRIS STOCKARD, Planning and Research Division, Department of Public Safety, testified that he was asked by Deputy Commissioner Dell Smith to address the committee and express that Public Safety supported this legislation. He stated that there had been problems in the past with self-appointment of the public defender to criminal suspects. Lt. Stockard cited an extreme example of a defendant who while in the course of a felony act was self- appointed by the public defender's office and asked that the police not question the this person. He pointed out that the public defender could not have determined at that time whether the suspect was even indigent and unable to afford an attorney. Lt. Stockard said the department was looking for more balance in the appointment of attorneys than what currently exists. Number 256 REPRESENTATIVE CON BUNDE asked for clarification that the self- appointment Lt. Stockard referred to was conducted by the public defender's office without the judicial system's involvement. LT. STOCKARD said that this was what he meant. REPRESENTATIVE CYNTHIA TOOHEY asked if there was a specific time frame an attorney would need to be appointed before a defendant is deemed indigent. How long does it take to verify that someone is unable to afford representation? LT. STOCKARD said from his interpretation of the bill that an investigation is not required, but a finding by the court as to whether or not they believe a defendant under oath cannot afford an attorney. They could require an additional investigation if they were unable to initially determine someone as indigent. He thought perhaps this was something Art Snowden could speak to. Number 360 RANDY WELKER, Legislative Auditor, Legislative Audit Division, stated that an audit was conducted on the appointment process of public defenders and OPA. They concluded that there were no set guidelines or consistency in the appointment of public defenders in the court system. They found that different methods were used to determine eligibility from district to district, within districts, between judges, et cetera. The auditor's department recommended that there be more standardization of guidelines and criteria established regarding who is eligible for public defender services and who is not. MR. WELKER said that the court system has a pre-trial service in Anchorage and Fairbanks, albeit Mr. Welker added, they are not staffed adequately, but the service in Fairbanks specifically does interview people before they enter the court system. Outside of Fairbanks and Anchorage an interview by the judge at arraignment is conducted and there are no standardized guidelines to determine someone's indigence. Because of this and the lack of follow up, it can't be said with certainty that the public defender's services are provided to only indigent defendants. There are no controls in place to support this system. MR. WELKER suggested that the courts conduct a more deliberate and formal process of reviewing a defendant's financial situation on a case by case basis. Number 585 REPRESENTATIVE JOE GREEN asked if there were any suggestions for a reasonably low cost method to establish this consistency and verification. MR. WELKER stated that the department, at the request of Representative Martin, was still looking at how other states conduct their eligibility interviews. He pointed out that some states have a stronger determination system. The state of Washington, for example, has a two tier determination system in statute where a person is deemed indigent automatically if they receive AFDC (Aid to Families with Dependent Children). The second tier allowed for a determination that if a person was indigent, they might still be capable of contributing to their legal fees. He cautioned that if standardized criteria was spelled out, it would not necessarily apply to all areas of the state. For instance, a judge could determine that a commercial fishing permit was an asset and other courts might not. REPRESENTATIVE GREEN asked if there was a federal guideline which determines a poverty level. He said that this may not be a cure all, but it could be defensible. MR. WELKER believed that some of these standards would be good starting points and perhaps legislation or the courts providing for exceptions to income could work. The more criteria created, the more intense the effort to document income becomes. He didn't know if these criteria could be required of a judge. He again pointed out that there were four people combined in pre-trial services in Anchorage and Fairbanks who specifically are responsible to make eligibility determinations. The Fairbanks' staff appear to be busier than the one in Anchorage. It takes resources to accommodate the criteria established in a pre-trial eligibility interview. Number 890 ART SNOWDEN, II, Administrative Director, Alaska Court System, stated that Mr. Welker and his department did a good job in their auditing efforts. Not all of the defendants' records were made available due to confidentiality, but if Mr. Welker wished to review these records, Mr. Snowden would clear them for him. He added that the auditors did the best they could with anecdotal information. MR. SNOWDEN said the court system has only four people statewide to conduct eligibility screenings. They do check all available information. Sometimes people will sign affidavits under oath. This is about all they can do as a requirement. Most of the people assigned to the public defender's office are indigent. If some of these individuals as financially capable slip through the cracks, the department is not perfect. MR. SNOWDEN added that it's mandated by rule that the public defender must reassign someone who is not indigent. There is also a rule which states that if someone is not indigent, but because the trial, is advanced and a reassignment could interfere with the trial the defender can continue with the case. But, it is required that the defendant pay for full compensation of legal services. MR. SNOWDEN said there are no standards to determine someone's indigence. For example, in Barrow; There are no attorneys and if someone got arrested, even for a minor crime, how much money would it cost to fly an attorney in from Anchorage? Almost anyone in Barrow, under this standard, could be considered indigent. Indigence is a floating concept, for example, someone may not be indigent for a shoplifting charge, since the fees would probably be minimal. But, if someone murdered an individual, they might not be able to afford representation under these circumstances. MR. SNOWDEN said he would concede that 400 people might slip through the system as indigent who really aren't, although he didn't think this was true. What would happen if these 400 people were removed from the public defender's over-worked staff, nothing. The same number of public defenders are needed, the budget couldn't be cut, et cetera. Beyond this, if a defendant was not appointed and they came in pro-per it would take this individual forever to get through the system. Eventually, the public defender would have to protect their constitutional rights, which would cost time and money. MR. SNOWDEN submitted to the committee that the municipalities in the state are costing the tax payers more than the public defender's office by representing non-indigent defendants. For example, Anchorage and Juneau pay for their own public defenders Any other place in the state does not want to pay for their municipal prosecutor. They charge everyone under state statutes and make the district attorney (DA) do it, therefore, the statewide public defender has to defend cases. He stated that this is not fair. If these laws are passed, putting the burden back on the municipalities for misdemeanors, more money would be saved as versus stepping up the screening process for indigent defendants. MR. SNOWDEN referred to Section 5 of the bill, more specifically the language, "The determination shall be made by the court on the record and shall set out the basis for the finding that the person is indigent." It was determined that the committee substitute (CS) had yet to be adopted. Number 1158 REPRESENTATIVE TOOHEY moved to adopt CS work draft 9LS1352-C 1/19/96. There being no objection, CSHB 370(JUD) was adopted. Number 1188 MR. SNOWDEN suggested for argument sake, that this examination on the record regarding indigence, could take fifteen minutes. Presently, in Anchorage, the DA is arraigning 22,000 cases a year and in Fairbanks close to 10,000 a year. If someone took 15 minutes per arraignment when processing 80 cases per day, he suggested that the legislature should probably give the court system ten more judgeships. He added that this indigence test can be applied in rural settings, but he would like to see a related amendment, in writing, that a judge would approve of this procedure. Mr. Snowden thought that there was no way an additional fifteen minutes per arraignment could be added in Anchorage, per defendant. CHAIRMAN PORTER stated that in discussing this legislation he recognized the complexity of the general issue of adding an additional burden to the judges by requiring a standardized screening procedure. The intent of this legislation was to point out to the court that they could do a better job of screening with the resources that they have. Within this context, Chairman Porter asked Mr. Snowden to work with Mr. Stockard to come up with a few words to enhance the language regarding the written procedure of screening while also recognizing the impetus of the entire bill. MR. SNOWDEN pointed out that people do sign affidavits, their incomes are researched, et cetera, by people outside of the judge's position. In response to the audit, he suggested that a year long study be undertaken to look at each defendant appointment and create some chronology to reflect how the system works. He said that if they came up with additional suggestions on how things could be done differently, they would. Number 1342 REPRESENTATIVE TOOHEY asked if permanent fund checks were secured in instances of indigence. MR. SNOWDEN said that everyone who is appointed to a public defender by a supreme court rule and statute, has their permanent fund taken. A recommendation was made in the audit, which says everyone should forfeit their permanent fund check whether or not they're found guilty. In the original bill which established this system of taking permanent fund checks, the legislature chose to only seize permanent fund checks if that person was found guilty. The court system does think that everyone should have to forfeit their permanent fund check regardless, since any representation costs money regardless of the verdict. He suggested that the legislature revisit this issue. REPRESENTATIVE TOOHEY suggested that maybe an amendment addressing the permanent fund takings could be incorporated into this present legislation. Number 1395 REPRESENTATIVE BUNDE said he understood Mr. Snowden's concerns and practicality regarding this indigence procedure, the appearance of fairness is very important. He felt as though 20 people slipping through the cracks was too many, much less the 400 estimate which Mr. Snowden outlined previously. Representative Bunde pointed out that tightening the standards for this indigence review was not going to balance the budget, but the whole system of justice is predicated on the appearance of fairness. MR. SNOWDEN wished to make it very clear that he threw out the number of 400 because it was the highest number he could think of. There are not 400 people who slip through the system. REPRESENTATIVE BUNDE understood that this number was just a hypothetical number and that they really don't know how many people slip through, but even this fact undermines the confidence in the system. He referred to the information Mr. Snowden outlined as the standard procedure in statute when it was determined someone really wasn't indigent and asked how often this happens. MR. SNOWDEN said Representative Bunde would probably need to ask the public defender's office, but he said he had not heard of anyone re-assigning a case, which in his view meant that there are not many people slipping through the cracks. Mr. Snowden asked, why it would be in the best interest for the public defender or OPA, who are already overworked, to defend people they don't have to defend. This reassignment of a non-indigent individual is mandated by rule that requires the public defender to return any case where they find an individual is not indigent. Number 1553 REPRESENTATIVE AL VEZEY asked that Mr. Snowden clarify for the committee the difference in the duties of the public defender as versus the duties performed by Public Advocacy. MR. SNOWDEN generally qualified the overall differences between the two agencies. In the past, there was always a public defender in the Executive Branch. Any time there were multiple defendants, they would defend the first one, then the court would have to find attorneys to defend the others. This remedied any conflict problems. The legislature created the office of public advocacy to take all of these surplus defendants in order to represent them personally through this office or to contract out the defendants to private attorneys. The public advocacy office represent children's cases and other indigent types of cases. Number 1620 JOHN SALEMI, Public Defender, when called upon to testify, defined what he saw as a problem with the bill, more specifically self- appointment of the public defender. Of the 18,000 cases which Anchorage processes, 99.9 percent of these individuals are appointed by the court system. The number of individuals who are non-indigent make up a very small fraction of this case load. He wished to point out that the example used by Mr. Stockard was inaccurate. The facts were not entirely correct as stated. MR. SALEMI understood that the intent of this legislation was that when the public defender self-appoints themselves, this potentially creates problems for the police, which is inconsistent with good public safety, policy and practice. He frankly told the committee. There were instances where he had informed people before being appointed by the court about their constitutional right not to cooperate with the police for self-incriminating reasons. This was only in instances where it seemed these people had been involved in some criminal activities. He pointed that was obligated to this as a lawyer. The perception that the public defender's stock advise is that these individuals should just keep their mouth shut and go about their business is dead wrong. Mr. Salemi pointed out that this would be unethical, not good advise and possibly considered malpractice. MR. SALEMI added that this bill in all instances would eliminate a public defender from self-appointing themselves. The effect of this is would be the denial of people of modest or little means access to lawyers when they have a legal question regarding the criminal system. The only other time these individuals could get an answer to their questions would be after they've already been charged, which might be too late for them. A prosecutor or a police office may not always be in a good position to know that somebody needs a lawyer, as well. MR. SALEMI further stated that by passing this law, people who can afford a lawyer would not be affected. To some extent, a two tier system of justice will be created where poor people are denied access to legal services and people who have means still go out and get good advise from lawyers. This bill would create a greater divide between poor people and people of means. Two kinds of justice would result. Besides this philosophical or policy argument, Mr. Salemi wished to discuss the practical impact of this legislation. MR. SALEMI said there is a practical benefit to having public defender attorneys involved early on through a self-appointment process. He said he gets lots of calls from people who have not been appointed. Some of these people will never have cases, but need legal advise. Mr. Salemi refers lots of people to the police and tells them to take a polygraph test where it has been suggested. He also gets calls from people who are out of state and want to turn themselves in, but don't know how to go about it. He also gets lots of calls from victims and refers them to the district attorney's office or the police. When people come to his office he doesn't know what their problem is and if he's unable to self-appoint he'll never know what their problem is. MR. SALEMI has helped people to turn state's evidence. He cited the example of multi-cultural people who are intimidated by the system. These people are reluctant to go to law enforcement, unless they are given some assurance, that this is how the system works. The public defender facilitates these people to the justice system and to the law enforcement community. Number 2150 MR. SALEMI gets numerous calls from people who vaguely think they might be involved with a criminal situation. They want not to be involved with the criminal justice system, but think they have information they should provide. If he explains to them the concept of accomplice liability and it turns out they aren't accomplices, then he has given them the freedom to walk into a police station to translate what they know about a criminal situation. It's less likely that these individuals will come forward if they believe they can be implicated somehow. MR. SALEMI used the example of a woman with children who had a bad crack habit. She was afraid her children would be taken away if she looked into treatment. After Mr. Salemi explained that she wouldn't go to prison for ten years because she had no prior criminal convictions and that there was a possibility if she went for resident treatment that this could count towards her jail time. This person indicated to Mr. Salemi that she was much relieved and that she thought she could face all the requirements ahead of her for treatment. Number 2294 MR. SALEMI pointed out that the public defender provides a service to individuals, not all of whom are criminals who deserve to be in prison. There are distinct benefits to law enforcement and prosecution as well. He also didn't know if this was an unconstitutional bill in it's present form. He pointed out that it might generate constitutional attacks on fifth amendment grounds, Miranda grounds, sixth amendment grounds and on equal protection. MR. SALEMI noted that there are other practical problems with this legislation. The public defender has a 24-hour answering service, most times for Driving While Intoxicated (DWI) offenses. These DWI individuals are entitled to consult an attorney before they blow into a Breathalyzer. The police officer will read a suspect a complied consent before they do so, and if the suspect chooses not to blow into this Breathalyzer, they could loose their license and they can be charged criminally for refusal. If they have doubts about this procedure, this consent allows them the option of calling an attorney first. Number 2460 MR. SALEMI cited the Alaska Criminal Rule 5, section (b) which says, "Immediately after arrest the prisoner shall have the right forthwith to telephone or otherwise to communicate with both an attorney and any relative or friend." He pointed out that the committee with this new legislation is attempting to amend this Rule 5. MR. SALEMI added as a final point that an attorney has a right based on professional canons, to provide this type of referral service even though a court, prosecutor, or a law enforcement officer doesn't necessarily think an individual needs a lawyer. He then read from a commentary from the Alaska Rules of Professional Conduct for Lawyers, Rule 6.1, "The rights and responsibilities of individuals and organizations in the United States are increasingly defined in legal terms. As a consequence, legal assistance in coping with the web of statutes, rules and regulations is imperative for persons of modest and limited means as well as for the relatively well to do." MR. SALEMI stated that this is a provision of the professional canons where lawyers are encouraged to provide legal services to people who don't have the money to afford them. There is no way that an average person would have the time or know how to understand the complexities of the legal system. It makes sense that people are trained to interpret the system and extend themselves to provide help to people. He noted that this legal access must be maintained. TAPE 96-7, SIDE B Number 052 REPRESENTATIVE GREEN asked if there might be a simple fix to this. He referred to line 25, page 2, of the CS and he suggested dropping the language, "on the record." He wondered if this would simplify or help eliminate some of the problems. CHAIRMAN PORTER responded that this edit would address the problems which Mr. Snowden discussed, put suggested that they wrap up the testimony first. Number 071 REPRESENTATIVE DAVID FINKELSTEIN asked Mr. Salemi about the circumstance where someone admits their guilt and the fact that Mr. Salemi is required to tell them to avoid cooperation in this situation. Representative Finkelstein asked that if someone said they were innocent, would he encourage them to cooperate. MR. SALEMI answered certainly, especially if the police have been soliciting them and they're getting calls from law enforcement. If a police or law enforcement officer wishes to contact someone, this is when this someone usually calls him. Once he's assured that there is no liability in this person talking to the police, he will encourage them to make contact. If it looks like there will be some exposure, sometimes he will contact the police himself and explain the elements of this vulnerability. In some instances, an agreement will be forged in return for the information this person might have. REPRESENTATIVE FINKELSTEIN added that it was his impression, if this same person contacted a private attorney, this attorney would more than likely tell them not to speak to law enforcement officials without an attorney present. He thought it would be more common for a private attorney to encourage a person not to talk unless counsel present and he asked if this was correct. MR. SALEMI said that this was an interesting point and it would depend on the private attorney. He spoke to private criminal lawyers specifically and said they'd probably be more likely to tell the individual not to cooperate. There are lots of reasons for this, namely these attorneys are required to carry malpractice insurance, and they don't want to be sued later. The safe course for a private attorney is to counsel them not to talk, because what this person doesn't say, won't hurt them. Number 147 REPRESENTATIVE FINKELSTEIN also pointed out that this was also a resource issue. These private attorneys have the resources to counsel this way, as versus a public defender's office. MR. SALEMI said that this was true, but in a sense he was being asked to generalize and he said it was much easier to look at situations on a case by case basis. He suggested that Representative Finkelstein ask private attorneys the same questions. The public defender's office has limited resources and this has always been a factor when deciding the course of advise for a client. Number 224 REPRESENTATIVE BUNDE pointed out that he saw the problem as deciding where representation begins. He wondered if it was possible for this bill to allow for an initial consultation without representation, say for instance a means for establishing what a client's issues are and at the same time this would disseminate good will from the public defender's office. These individuals could then be designated indigent if applicable, followed by actual representation. CHAIRMAN PORTER thought that they could not have it both ways. The public defender cannot necessarily facilitate good justice with an initial contact and also require that person not to talk. They either have to get involved or not. CHAIRMAN PORTER pointed out that this was the purpose of Section 2 of the present legislation. Under the DWI situation for instance, or any other situation where a law enforcement official is told by someone they wish to have an attorney present or within a custody situation where the officer is required to advise them of their Miranda rights, it behooves the officer to contact the prosecutor to arrange for a court appointed attorney. Currently, the only difference in this procedure is that sometimes the officer calls the public defender directly and under this provision of self- appointment the public defender gets involved. Number 327 REPRESENTATIVE BUNDE asked that in a major capital case, wouldn't any middle class citizen be considered indigent because the cost of defense could cost lots of money. CHAIRMAN PORTER then referred to what Mr. Snowden said about the discrepancy of costs for defense of crimes, such as a shoplifting offense versus a murder case. He pointed out that this bill doesn't try to remedy this discrepancy. The intent of the legislation is to make sure the court is initiating the minimal steps to interview people for indigence. Number 392 MIKE KORKEL, President of Alaska Peace Officers Association, testified that his organization has had a chance to view and discuss this bill at length. His concerns centered around self- appointments when an officer is trying to obtain information from an individual and this person contacts the public defender's office before being charged. Ethically the public defender is an advocate for this person. If a person is charged with a crime there should be a hearing in court on that person's possible indigence. He too would utilize the public defender's office as an avenue to get legal questions answered since it's free advise, regardless of an indigent status. He pointed out that maybe the public defender's office was taking on a larger burden that was necessary under the circumstances. MR. KORKEL pointed out that the peace officers do get calls in the course of investigations from public defenders' and are told that the public defender represents a particular person. They then ask if the person under investigation is going to be charged with a crime. Mr. Korkel is always incredulous when this happens. He believes that once a person is determined to be indigent, they should then be appointed a public defender. Number 600 REPRESENTATIVE TOOHEY asked when Miranda rights are read, before or after an attorney is instated? MR. KORKEL explained that miranda rights are read when an individual is no longer free to leave, when it is determined that they are under arrest. MR. SALEMI stated that this wasn't necessarily true. Miranda rights come into play when a person is being detained and based on objective criteria is not free to leave and are about to be arrested. Mr. Korkel said that yes, he would agree with this definition. This is also referred to as Constructive Custody. Number 640 DEAN GUANELI, Criminal Division, Department of Law, stated that because prosecutors are usually in an adversarial position with public defenders, the division chose not to take a position on this legislation. He was requested by Representative Martin's office to address questions about the constitutionality of this legislation. MR. GUANELI represented that the criminal division felt as though this legislation was constitutional. At what point in time does the public defender get appointed and by whom? What this legislation seeks to do is to drawn the line at the person's first court appearance. This is consistent with the constitutional law of the state and the country, that a person is entitled to an attorney at public expense if they can't afford one at a critical stage in a criminal proceeding. To draw the line at the initial appearance in court to access indigence is appropriate. Before this point in time, the Miranda rule protects the rights of an individual. MR. GUANELI outlined that in a Miranda situation a police officer has two options, one, they can stop questioning the individual, which is what usually happens. In this instance, within 12 hours this person is appointed an attorney. The other option, if it's imperative that the officer continue with their line of questioning can appear before a judge, have an attorney appointed and then proceed with the questioning. Mr. Guaneli felt as though this latter situation wouldn't happen very often because the attorney would probably caution their client not to answer any questions. MR. GUANELI agreed that as Mr. Salemi indicated, this legislation would not affect 99.9 percent of the cases already being processed through the courts. This legislation will effect the example as cited by Lt. Stockard's where an attorney is self-appointed in the middle of a hostage situation to a situation where people in the course of an investigation wish to give information to an officer. This is a policy choice to be made by the legislature, as to when and under what circumstances appointment of public defenders are going to occur. MR. GUANELI noted it often occurs that someone can't get an attorneyin a DWI case. There is an opinion that it's unethical for an attorney to advise someone to refuse to take a Breathalyzer test. To do so, would be advising them to commit a crime, unless the attorney has a good faith belief that they can legally challenge the statute that makes it a crime to refuse the Breathalyzer. This statute has been upheld time and again. There is no good faith basis to challenge this statute. MR. GUANELI pointed out that he wonders what an attorney would tell a DWI individual besides what the officer has already imparted. This person will loose their license if they don't take it. The police officer has a litany of rights and consequences they're suppose to read to the suspect. He questioned the usefulness of attorney advise at this time. For this reason he does not believe that the court will find that this is a critical stage in the criminal justice process to warrant attachment of a constitutional right to a lawyer or a right to a publicly appointed lawyer. Number 902 REPRESENTATIVE FINKELSTEIN asked about a case which Mr. Salemi referred to in regards to particular treatment of DWI offenses and the need to inform the involved individual of their rights. MR. GUANELI responded by stating that there is an Alaska statute which says if a person is arrested, they have an immediate right to telephone an attorney, friend, or relative. The question the court resolved in the case mentioned by Mr. Salemi was whether or not that person was to be given a dime to make a phone call before they took the breath test or after they took it. The practice up until this time had been that the individual took the Breathalyzer and then they made their phone call. The officers did this in order that the alcohol would not dissipate. The court said the person must be given their right to call their attorney immediately and take the Breathalyzer test afterwards. REPRESENTATIVE FINKELSTEIN asked what part of law this case was based on. MR. GUANELI said this case concerned a specific statute and not the constitutionality of it's requirements. He referred to the court criminal rule which repeats essentially what the statute outlines. REPRESENTATIVE FINKELSTEIN asked what the effect on this particular case would be if this present legislation was passed? MR. GUANELI said as he understood it, this legislation does not amend this other statute of the right to speak to an attorney. REPRESENTATIVE FINKELSTEIN asked if the particular case just discussed would be overruled. MR. GUANELI answered that no, this case would still be good law and that police officers would still have to give people access to a telephone in private to call an attorney. Whether they get an attorney who is willing to talk to them is something else again. All the statute requires is an opportunity to contact someone. Number 1060 CHAIRMAN PORTER added for clarification the distinction of compelling someone to blow into a Breathalyzer as versus someone to testify against themselves. In any situation when someone is taken into custody and Miranda rights are given, if an attorney is not available to give advise and is requested, the officer must stop and not continue the questioning. This legislation doesn't change that. REPRESENTATIVE FINKELSTEIN understood that, his question dealt with that individual who is about to take a Breathalyzer and can't contact an attorney, how does the court decide that this ruling no longer applies. CHAIRMAN PORTER pointed out that the right not to self-incriminate still applies to a verbal statement, but to a Breathalyzer, once an effort has been made to contact an attorney the other statute applies. If that person refuses to take the Breathalyzer then they're guilty of another offense. The person should be afforded the opportunity to be informed about their rights in relation to a Breathalyzer test, not necessarily that an attorney should be contacted before such a test. Number 1139 MR. GUANELI added the question was as to whether or not the person actually contacts an attorney, the content of the conversation once contact has been made was not addressed. If there is no attorney available, as long as the officer has given them a chance to try to contact one before the test, that's all that the statute requires. CHAIRMAN PORTER used the example of this DWI specific situation as a balancing of the evidence and the right to an attorney, since the longer it takes to contact an attorney, the opportunity to determine alcohol consumption diminishes. Number 1210 MR. GUANELI clarified that the person about to take the Breathalyzer does not necessarily have the right to meet with the attorney in person, only that they are able to attempt to obtain advise. Again, this goes to the issue of diminishing evidence. Number 1257 REPRESENTATIVE FINKELSTEIN asked if Mr. Guaneli had a chance to review the pending legislation as unintentionally amending rule number 5. MR. GUANELI said that Criminal Rule 5 (b) which Mr. Salemi referred to is almost verbatim what the statute outlines in regards to having a right to call an attorney immediately after arrest. This bill does not affect that statute, in his opinion, and it does not affect the rule. REPRESENTATIVE GREEN wondered if someone can withhold blowing into a Breathalyzer until their counsel is present. Does that also apply to these tests on the road? Number 1330 CHAIRMAN PORTER answered that no, there had to be a reasonable allowance of time considering that the evidence was diminishing. A reasonable amount of time is given for an attorney to be present. REPRESENTATIVE GREEN then asked about the finger to the nose test. He questioned whether someone can refuse to take this test until their attorney is present. CHAIRMAN PORTER stated that someone can refuse to cooperate with the initial sobriety tests, but then it's up to the officer's discretion whether or not to pursue the situation further if it appears the suspect is actually intoxicated, i.e. request that they submit to a Breathalyzer. Number 1465 REPRESENTATIVE BUNDE asked whether or not a Breathalyzer is administered in the field. Number 1479 CHAIRMAN PORTER answered that there is a mini-Breathalyzer used in the field. The suspect can also be required to take a full blood test, which usually produces more consistent results. Number 1525 REPRESENTATIVE GREEN made a motion that on line 25 of the CS, of page two, after the word "court," that they strike "on the record." This would be considered amendment number one. Chairman Porter noted that because this amendment would be so slight it wouldn't require the formal amendment procedure. REPRESENTATIVE FINKELSTEIN asked for some clarification about the language in Rule 5 and the statute regarding the right to call an attorney. He pointed out that the court rule said immediately after arrest and the pending CS said at the time of the person's appearance before the court. It seemed to him that this pending legislation clause would amend the court rule. MR. GUANELI answered that the court rule which representative Finkelstein addressed and the statute amended in the bill really refer to two separate issues. The first is the point in time at which an attorney gets appointed to represent a person and the court rule addresses when a police officer is required to give the detainee a dime to make a phone call. These are two distinct issues and one does not affect the other. The policeman is required to provide a dime in all cases, whether the suspect is indigent or not. Number 1755 MR. SALEMI disagreed as to the interpretation of the language in each of these instances. If someone was arrested and said they were broke, under these circumstances the only representation they could afford would be a public defender. The bill before the committee would not allow the public defender to answer the phone in the instance of a person being cited for a DWI offense. REPRESENTATIVE FINKELSTEIN felt as though the key word between the present CS and the court rule would be the distinction between the "opportunity" to speak to an attorney and the "right" to speak to an attorney. MR. GUANELI pointed out that the courts have interpreted this rule and the statute to impose a reasonableness requirement. It does not require the suspect all night to contact an attorney. As long as they are given the opportunity. He also added that there is a problem with how the current law is being applied. If public defender's are answering the phone and giving advise to any DWI suspect who calls in the middle of the night without any kind of inquiry as to their entitlement of representation, this is a problem as well. This bill seeks to correct this problem. In his opinion, it does not amend the court rule. Number 1797 REPRESENTATIVE FINKELSTEIN asked if they could ask for the bill drafter's thought on this distinction in the language, at least for a later consideration. CHAIRMAN PORTER hazard to guess at the result. The word immediate in this instance has been interpreted to mean a reasonable period of time. He guessed that this language would not run a foul of the statute or the court rule. Number 2033 REPRESENTATIVE BUNDE moved to pass the CSHB 370 (Jud) from this committee with individual recommendations and attached fiscal notes. Representative Finkelstein objected for debate purposes. REPRESENTATIVE FINKELSTEIN stated that he appreciated the audit efforts regarding the indigence issue, but there's nothing in the audit which would recommend the passage of this bill. The auditors suggested that there be specifically defined standards to determine indigence, either through statute or regulation. There were also recommendations to internal workings of the public defender. The audit was perfectly prescribed in this situation and given some reasonable time period for the agency to correct these problems, the legislature shouldn't change the rules or whatever. The legislature hasn't given the court system a chance to put these suggestions into affect. REPRESENTATIVE FINKELSTEIN added that there is a very important cost benefit analysis any time there are attempts to establish a system for preventing people from getting around the law. He cited the permanent fund division in their attempts to establish fraud, the welfare division, etcetera. He asked how much money should they spend in fraud detection as versus how much money will be saved by not. He also pointed out that there are no hard statistics on what the level of fraud is in regards to indigence. He believed that the outcome of this type of legislation would create a two-tier system. TAPE 96-8, SIDE A Number 060 REPRESENTATIVE BUNDE pointed out that there are two areas of the bill that are under consideration. There is the area which Representative Finkelstein just discussed and the issue of self- appointment. He felt as though there was a problem where a state agency who was not following what he understood to be the law and undertaking to represent people who have not been determined to be indigent. It's a policy call whether or not this should continue. He respectfully disagreed that not everything is a cost analysis and that particularly in the system of justice the public has to have confidence that this system is fair. CHAIRMAN PORTER prescribed to what Representative Bunde had just stated. In regards to the audit, the legislature has asked that the court set out a basis for their indigence determination which was not previously set out in statute. This should help the court to recognize that the legislature is serious in trying to set out consistent standards for determining indigence. CHAIRMAN PORTER add that the other part of the bill is a policy decision that doesn't necessarily accrue to the work load of the public defender which deals with who will establish whether or not a public defender gets appointed. Should the public defender do this or the court? Chairman Porter felt as though it should be the court who decides. Number 218 REPRESENTATIVE FINKELSTEIN referred to the sponsor statement which said that this legislation was in response to the audit. He pointed out that there are a set of anecdotes for either side of the issue. He thought that audits are good for the legal system and that this is a reasonable use of resources. He pointed out again that it's the audit which spurned these changes in legislation, judging from the sponsor statement. He felt as though this legislation was premature. CHAIRMAN PORTER asked for a roll call. Representatives Toohey, Vezey, Green, Bunde and Chairman Porter voted to move CSHB 370(JUD). Representative Finkelstein voted against moving the bill. Representative Davis was not present. The CSHB 370(JUD), as amended, was passed out of committee.