Legislature(2007 - 2008)CAPITOL 120

04/30/2007 01:00 PM JUDICIARY


Download Mp3. <- Right click and save file as

* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= HB 3 REQUIREMENTS FOR DRIVER'S LICENSE/I.D. TELECONFERENCED
Moved CSHB 3(JUD) Out of Committee
+= HB 151 INDEMNITY CLAUSE IN PUBLIC CONTRACTS TELECONFERENCED
Moved CSHB 151(JUD) Out of Committee
+= HB 225 POSSESSION OF WEAPON WHILE ON BAIL TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= HB 163 PROPERTY FORECLOSURES AND EXECUTIONS TELECONFERENCED
Moved CSHB 163(JUD) Out of Committee
HB 225 - POSSESSION OF WEAPON WHILE ON BAIL                                                                                   
                                                                                                                                
1:56:26 PM                                                                                                                    
                                                                                                                                
CHAIR RAMRAS announced that the next order of business would be                                                                 
HOUSE  BILL  NO. 225,"An  Act  relating  to misconduct  involving                                                               
weapons and bail."                                                                                                              
                                                                                                                                
The committee took an at-ease from 1:56 p.m. to 1:59 p.m.                                                                       
                                                                                                                                
CHAIR  RAMRAS advised  that the  public testimony  was previously                                                               
closed on HB 225.                                                                                                               
                                                                                                                                
2:00:32 PM                                                                                                                    
                                                                                                                                
JEANNE  OSTNES, Staff  to  Representative  Craig Johnson,  Alaska                                                               
State  Legislature,  indicated that  the  CSHB  225, Version  25-                                                               
LS0710\M, Luckhaupt, 4/11/07, had  previously been adopted by the                                                               
House Judiciary Standing Committee.                                                                                             
                                                                                                                                
REPRESENTATIVE  COGHILL  made  a  motion to  adopt  Amendment  1,                                                               
labeled 25-LS0710\M.2, Luckhaupt, 4/23/07, which read:                                                                          
                                                                                                                                
     Page 3, lines 15 - 20:                                                                                                     
          Delete all material and insert:                                                                                       
               "(A)   while the  person is on  release under                                                                
     AS 12.30.020 - 12.30.040 for a felony under AS 11; or                                                                  
               (B)   in violation of  AS 11.61.220(a)(6) and                                                                
     the  person  is on  release  under  AS 47.12.080 for  a                                                                
     delinquent act  that would be  a felony under  AS 11 if                                                                
     committed by an adult."                                                                                                
                                                                                                                                
     Page 3, following line 20:                                                                                                 
     Insert a new bill section to read:                                                                                         
        "* Sec. 3. AS 11.61.210(a) is amended to read:                                                                        
          (a)  A person commits the crime of misconduct                                                                         
     involving weapons in the fourth degree if the person                                                                       
               (1)    possesses on  the  person,  or in  the                                                                    
     interior of a  vehicle in which the  person is present,                                                                    
     a  firearm   when  the  person's  physical   or  mental                                                                    
     condition is  impaired as a result  of the introduction                                                                    
     of  an intoxicating  liquor or  a controlled  substance                                                                    
     into  the person's  body  in  circumstances other  than                                                                    
     described in AS 11.61.200(a)(7);                                                                                           
               (2)    discharges  a  firearm  from,  on,  or                                                                    
     across a highway;                                                                                                          
               (3)    discharges  a  firearm  with  reckless                                                                    
     disregard for  a risk of  damage to property or  a risk                                                                    
     of  physical injury  to  a  person under  circumstances                                                                    
     other than those described in AS 11.61.195(a)(3)(A);                                                                       
               (4)    manufactures,  possesses,  transports,                                                                    
     sells, or transfers metal knuckles;                                                                                        
               (5)    manufactures,  sells, or  transfers  a                                                                    
     switchblade or a gravity knife;                                                                                            
               (6)     knowingly  sells   a  firearm   or  a                                                                    
     defensive weapon to a person under 18 years of age;                                                                        
               (7)    other  than a  preschool,  elementary,                                                                    
     junior  high, or  secondary  school student,  knowingly                                                                    
     possesses  a  deadly  weapon  or  a  defensive  weapon,                                                                    
     without  the  permission  of the  chief  administrative                                                                    
     officer of  the school or  district or the  designee of                                                                    
     the chief administrative  officer, within the buildings                                                                    
     of, on the grounds of, or  on the school parking lot of                                                                    
     a  public  or  private  preschool,  elementary,  junior                                                                    
     high, or secondary school, on  a school bus while being                                                                    
     transported  to or  from school  or a  school-sponsored                                                                    
     event,  or while  participating  in a  school-sponsored                                                                    
     event, except  that a person  21 years of age  or older                                                                    
     may possess                                                                                                                
               (A)   a  deadly weapon,  other than  a loaded                                                                    
     firearm, in the trunk of  a motor vehicle or encased in                                                                    
     a closed container in a motor vehicle;                                                                                     
               (B)  a defensive weapon;                                                                                         
               (C)   an  unloaded firearm  if the  person is                                                                    
     traversing  school premises  in  a rural  area for  the                                                                    
     purpose  of entering  public or  private  land that  is                                                                    
     open to hunting and  the school board with jurisdiction                                                                    
     over  the  school premises  has  elected  to have  this                                                                    
     exemption  apply  to  the   school  premises;  in  this                                                                    
     subparagraph,   "rural"  means   a  community   with  a                                                                    
     population of  5,500 or less  that is not  connected by                                                                    
     road  or  rail to  Anchorage  or  Fairbanks or  with  a                                                                    
     population of 1,500  or less that is  connected by road                                                                    
     or rail to Anchorage or Fairbanks; [OR]                                                                                    
               (8)   being  a preschool,  elementary, junior                                                                    
     high, or secondary  school student, knowingly possesses                                                                    
     a  deadly  weapon or  a  defensive  weapon, within  the                                                                    
     buildings  of, on  the  grounds of,  or  on the  school                                                                    
     parking  lot   of  a   public  or   private  preschool,                                                                    
     elementary,  junior high,  or  secondary  school, on  a                                                                    
     school bus  while being transported  to or  from school                                                                    
     or a school-sponsored event,  or while participating in                                                                    
     a  school-sponsored event,  except that  a student  may                                                                    
     possess  a  deadly  weapon, other  than  a  firearm  as                                                                    
     defined under 18  U.S.C. 921, or a  defensive weapon if                                                                    
     the student  has obtained the  prior permission  of the                                                                    
     chief administrative officer of  the school or district                                                                    
     or  the designee  of the  chief administrative  officer                                                                    
     for the possession; or                                                                                                 
               (9)   knowingly possesses  a firearm  that is                                                                
     concealed on the person                                                                                                
               (A)   while  the person  is on  release under                                                                
     AS 12.30.020 - 12.30.040 for a                                                                                         
               (i)    misdemeanor  crime  against  a  person                                                                
     under AS 11.41;                                                                                                        
               (ii)   misdemeanor  crime involving  domestic                                                                
     violence; or                                                                                                           
               (iii)    crime  under a  municipal  ordinance                                                                
     similar to  a crime  described in (i)  or (ii)  of this                                                                
     subparagraph; or                                                                                                       
               (B)   in violation of  AS 11.61.220(a)(6) and                                                                
     the  person  is on  release  under  AS 47.12.080 for  a                                                                
     delinquent act that  would be a crime  listed in (A)(i)                                                                
     - (iii) of this paragraph if committed by an adult."                                                                   
                                                                                                                                
     Renumber the following bill sections accordingly.                                                                          
                                                                                                                                
     Page 3, line 28:                                                                                                           
          Delete "sec. 3"                                                                                                       
          Insert "sec. 4"                                                                                                       
                                                                                                                                
     Page 3, line 30:                                                                                                           
          Delete "applies"                                                                                                      
          Insert "and AS 11.61.210(a)(9), added by sec. 3                                                                       
     of this Act, apply"                                                                                                        
                                                                                                                                
REPRESENTATIVE DAHLSTROM objected.                                                                                              
                                                                                                                                
MS. OSTNES  explained that Amendment  1 separates out  the second                                                               
concealed  weapon offense  by aligning  the to  the level  of the                                                               
initial crime.   She explained  that if  the initial crime  was a                                                               
misdemeanor, and he/she violated  bail conditions in a subsequent                                                               
crime [using a concealed weapon],  he/she would be charged with a                                                               
second misdemeanor.   However, if the initial crime  was a felony                                                               
crime, and he/she violated bail  conditions in a subsequent crime                                                               
[using  a  concealed weapon],  he/she  would  be charged  with  a                                                               
second felony crime.                                                                                                            
                                                                                                                                
2:01:55 PM                                                                                                                    
                                                                                                                                
CHAIR  RAMRAS asked  for clarification  whether  Amendment 1  was                                                               
consistent with Amendment 2.                                                                                                    
                                                                                                                                
REPRESENTATIVE COGHILL  responded that one amendment  pertains to                                                               
the charge and  the other amendment pertains to  the condition of                                                               
probation.   He  expressed a  concern that  someone who  has been                                                               
convicted  of a  misdemeanor, and  who is  subsequently found  in                                                               
possession of a concealed weapon  could be charged with a felony.                                                               
Amendment  1 sets  the  charges for  a  concealed weapon  offense                                                               
equal to the level of the initial charge.                                                                                       
                                                                                                                                
MS.  OSTNES, referring  to Amendment  1, explained  that for  the                                                               
change  proposed   to  page  3,   lines  15-20,  of   Version  M,                                                               
subparagraph  (B)  refers  to  a juvenile  on  release  under  AS                                                               
47.12.080 and also separates out misdemeanors from felonies.                                                                    
                                                                                                                                
REPRESENTATIVE  DAHLSTROM inquired  as  to whether  a person  who                                                               
charged  is subsequently  found innocent,  would face  additional                                                               
proceedings for a concealed weapon charge.                                                                                      
                                                                                                                                
MS. OSTNES  specified that when  someone is charged with  a crime                                                               
the judge, as a provision of  bail release, advises the party not                                                               
to  carry a  concealed weapon.    If the  person subsequently  is                                                               
found carrying  a concealed weapon,  he/she would incur  a second                                                               
charge for violation of the judge's order.                                                                                      
                                                                                                                                
REPRESENTATIVE DAHLSTROM  said that although she  agrees with the                                                               
intent of the bill and the  amendment, both appear to be aimed at                                                               
persons carrying  concealed weapons.   She  pointed out  that the                                                               
sponsor  statement refers  to gang-related  crimes, yet  the bill                                                               
doesn't seem  to be  restricted to  gang-related instances.   She                                                               
inquired as to the constitutionality of the bill.                                                                               
                                                                                                                                
MS.  OSTNES  explained that  the  bill  drafter  did not  find  a                                                               
constitutional problem  because the judge would  order the person                                                               
not to carry a concealed weapon, as a condition of bail release.                                                                
                                                                                                                                
REPRESENTATIVE  DAHLSTROM  again   expressed  concern  about  the                                                               
constitutional rights of a person  who has not yet been convicted                                                               
of a crime.                                                                                                                     
                                                                                                                                
REPRESENTATIVE COGHILL offered  his understanding that conditions                                                               
of bail do  curtail some personal rights.  He  said that the bail                                                               
limitations are set to correlate to the magnitude of the crime.                                                                 
                                                                                                                                
2:08:25 PM                                                                                                                    
                                                                                                                                
MS. OSTNES,  in response to  Representative Lynn,  indicated that                                                               
HB 225 applies only to concealed weapon use.                                                                                    
                                                                                                                                
REPRESENTATIVE LYNN asked whether the  bill should be expanded to                                                               
cover non-concealed  weapon use for  felony crimes.  He  posed an                                                               
instance involving  a domestic violence dispute  in which someone                                                               
did  not carry  a concealed  weapon but  could brandish  a weapon                                                               
out in the open.                                                                                                                
                                                                                                                                
MS. OSTNES opined  that in crimes involving  a domestic violence,                                                               
a person  [the victim] would be  able to react to  a situation in                                                               
which he/she  could visibly see a  gun, as opposed to  when a gun                                                               
was  concealed.    She  opined   that  she  did  not  think  some                                                               
organizations, such  as the National Rifle  Association (NRA), or                                                               
others  would support  a blanket  restriction,  unless the  judge                                                               
ordered and imposed, as a  condition of bail, that the individual                                                               
could not carry any firearm at all.                                                                                             
                                                                                                                                
REPRESENTATIVE DAHLSTROM asked if  the crime was serious wouldn't                                                               
the person already be incarcerated and not be released on bail.                                                                 
                                                                                                                                
MS. OSTNES  pointed out  that all  domestic violence  charges are                                                               
misdemeanors and  that a person could  have numerous misdemeanors                                                               
on his/her record [and could still be released on bail].                                                                        
                                                                                                                                
REPRESENTATIVE DAHLSTROM maintained her objection.                                                                              
                                                                                                                                
2:10:07 PM                                                                                                                    
                                                                                                                                
A roll  call vote was  taken.  Representatives  Coghill, Samuels,                                                               
Lynn, Holmes, Gruenberg,  and Ramras voted in  favor of Amendment                                                               
1.    Representative  Dahlstrom voted  against  it.    Therefore,                                                               
Amendment 1 was adopted by a vote of 6-1.                                                                                       
                                                                                                                                
REPRESENTATIVE  COGHILL  made  a  motion to  adopt  Amendment  2,                                                               
labeled 25-LS0710\M.3, Luckhaupt, 4/26/07, which read:                                                                          
                                                                                                                                
     Page 3, lines 21 - 25:                                                                                                     
          Delete all material and insert:                                                                                       
          "Sec. 12.30.018. Possession of concealed firearms                                                                   
     while on  release. A court  may prohibit a  person from                                                                  
     possessing a  concealed firearm while on  release under                                                                    
     AS 12.30.020 -  12.30.040 for a felony  crime against a                                                                    
     person under AS 11.41."                                                                                                    
                                                                                                                                
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.                                                                
                                                                                                                                
REPRESENTATIVE COGHILL  explained that  Amendment 2  outlines the                                                               
conditions of bail  and defines the authorizing  language for the                                                               
judge's sentencing  guidelines.  She  noted that AS  12.30 covers                                                               
misdemeanor offenses, while AS 11.41 covers felony offenses.                                                                    
                                                                                                                                
The committee took an at-ease from 2:11 p.m. to 2:26 p.m.                                                                       
                                                                                                                                
2:26:52 PM                                                                                                                    
                                                                                                                                
ANNE  CARPENETI,  Assistant   Attorney  General,  Legal  Services                                                               
Section-Juneau,  Criminal  Division,  Department  of  Law  (DOL),                                                               
expressed  concern   that  Amendment   2  gives  the   court  the                                                               
discretion to  prohibit firearms for certain  crimes.  Currently,                                                               
the  court has  the discretion  to impose  that condition  on any                                                               
crime and  by adding this  language, a court might  interpret the                                                               
language to mean that these are  the only crimes for which it can                                                               
impose the limitations.  She said  that there are many crimes for                                                               
which a  court would want  to prohibit  a person from  carrying a                                                               
firearm, let alone a concealed weapon, as a condition of bail.                                                                  
                                                                                                                                
REPRESENTATIVE  COGHILL clarified  that  he  thought current  law                                                               
applies to both misdemeanors and felonies.                                                                                      
                                                                                                                                
MS. CARPENETI concurred.                                                                                                        
                                                                                                                                
REPRESENTATIVE  COGHILL questioned  whether dividing  the charges                                                               
in  Amendment 1  altered the  situation between  misdemeanors and                                                               
felonies.                                                                                                                       
                                                                                                                                
MS. CARPENETI said  that she did not necessarily  think they were                                                               
connected.                                                                                                                      
                                                                                                                                
REPRESENTATIVE   COGHILL  questioned   whether  that   permissive                                                               
language was clear in statute elsewhere.                                                                                        
                                                                                                                                
MS. CARPENETI related  that indicated she would  have to research                                                               
the  issue of  bail law  further but  that sections  of bail  law                                                               
address  firearms   specifically,  especially  with   respect  to                                                               
domestic violence offenses.                                                                                                     
                                                                                                                                
2:29:56 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE HOLMES asked whether  Amendment 2 replaces Section                                                               
3 of the bill, and whether  Ms. Carpeneti shared the same concern                                                               
about Section 3 as she had expressed with Amendment 2.                                                                          
                                                                                                                                
MS.  CARPENETI responded  that although  she  was less  concerned                                                               
about  Section 3,  she maintained  a little  concern because  one                                                               
could  argue that  while it  is mandatory  for these  crimes, the                                                               
imposition  is still  discretionary.   She stated  that all  bail                                                               
provisions  have a  catch-all  phrase that  allows  the court  to                                                               
order a condition of bail necessary to protect the public.                                                                      
                                                                                                                                
REPRESENTATIVE   HOLMES   questioned    whether   Ms.   Carpeneti                                                               
recommended that the committee not  adopt Amendment 2, and delete                                                               
Section 3, or  if merely rely on the underlying  bail statutes to                                                               
address the issues.                                                                                                             
                                                                                                                                
MS. CARPENETI said  that she recommended the  committee not adopt                                                               
Amendment 2.  She opined that  Section 3 is acceptable so long as                                                               
the  record is  clear that  the  legislature does  not intend  to                                                               
limit the  court's discretion  to impose a  condition of  bail in                                                               
relation to any other charges.                                                                                                  
                                                                                                                                
2:31:27 PM                                                                                                                    
                                                                                                                                
GERALD   LUCKHAUPT,   Attorney,    Legislative   Legal   Counsel,                                                               
Legislative  Legal  and  Research Services,  Legislative  Affairs                                                               
Agency (LAA),  acknowledged that there  could be an  issue raised                                                               
for Amendment 2  vis-à-vis the authority that a  court would have                                                               
to  restrict  someone to  possess  a  handgun.   He  opined  that                                                               
Section 3 does not pose a  problem since there is nothing in that                                                               
section that would conflict with  the court's ability to restrict                                                               
a handgun as a condition of bail.                                                                                               
                                                                                                                                
REPRESENTATIVE  COGHILL suggested  deleting  Section  3 from  the                                                               
bill because  he said he  thought it  imposes a directive  in all                                                               
circumstances.    He  expressed  concern  that  Section  3  would                                                               
infringe on  the right to  bear arms, and therefore  he suggested                                                               
that the condition should be more permissive                                                                                    
                                                                                                                                
2:33:23 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE COGHILL  maintained his motion to  adopt Amendment                                                               
2,  but   cautioned  that  the   directive  sets  up   a  special                                                               
circumstance that under  all bail releases the  judge must direct                                                               
that the individual cannot keep a concealed firearm.                                                                            
                                                                                                                                
REPRESENTATIVE HOLMES surmised that the  intent of Amendment 2 is                                                               
to  give the  judge more  latitude.   She questioned  whether the                                                               
language of  Amendment 2  was already  covered under  the current                                                               
bail statutes.                                                                                                                  
                                                                                                                                
REPRESENTATIVE  COGHILL   related  his  understanding   that  Ms.                                                               
Carpeneti is  saying that the  discretion to  impose restrictions                                                               
for  concealed   and  non-concealed  weapons  is   covered  under                                                               
existing  bail  statutes.    If  that is  so,  he  suggested  the                                                               
committee strike Section 3 and leave it to the court to decide.                                                                 
                                                                                                                                
REPRESENTATIVE GRUENBERG  opined that the statute  is quite clear                                                               
that the  court can  impose any  restriction necessary  to assure                                                               
the  public's safety.   He  referred  to AS  12.30.020 (b)(7)  as                                                               
follows:   "if a  judicial officer determines  under (a)  of this                                                               
section  that  the release  of  the  person will  not  reasonably                                                               
assure the appearance of the person  or will pose a danger to the                                                               
alleged  victim, other  persons, or  the community,  the judicial                                                               
officer  may impose  any  other  condition considered  reasonably                                                               
necessary to  assure the defendant's  appearance as  required and                                                               
the  safety  of  the  alleged   victim,  other  persons,  or  the                                                               
community."    He  related his  belief  that  the  aforementioned                                                               
language  specifically  allows  a   judge  to  impose  reasonable                                                               
conditions for bail in any case.                                                                                                
                                                                                                                                
A roll call  vote was taken.  Representative Lynn  voted in favor                                                               
of  Amendment 2.    Representatives  Samuels, Holmes,  Gruenberg,                                                               
Dahlstrom,  Coghill, and  Ramras  voted against  it.   Therefore,                                                               
Amendment 2 failed by a vote of 1-6.                                                                                            
                                                                                                                                
2:36:17 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  COGHILL moved  Conceptual Amendment  3 to  strike                                                               
Section 3 from HB 225.                                                                                                          
                                                                                                                                
REPRESENTATIVE HOLMES objected for purposes of discussion.                                                                      
                                                                                                                                
REPRESENTATIVE  COGHILL  said  that the  courts  have  discretion                                                               
under current law to set conditions of bail.                                                                                    
                                                                                                                                
MS. CARPENETI,  in response  to Representative  Holmes, confirmed                                                               
that  under current  law the  courts have  the discretion  to set                                                               
conditions for bail.                                                                                                            
                                                                                                                                
REPRESENTATIVE HOLMES removed her objection.                                                                                    
                                                                                                                                
CHAIR  RAMRAS asked  if  there were  any  further objections  and                                                               
there were none.   Conceptual Amendment 3 was adopted.   He asked                                                               
Ms.  Carpeneti if  she  had  any concerns  with  the language  in                                                               
Amendment 1, which the committee previously passed.                                                                             
                                                                                                                                
MS.  CARPENETI  said that  although  she  had some  concern  with                                                               
Amendment 1, it might only  require technical fine tuning.  Under                                                               
current statute,  AS 11.56.757 (a),  it is a Class  A misdemeanor                                                               
to  violate any  condition of  release, except  for a  failure to                                                               
appear, which is already a  crime.  She related her understanding                                                               
that the  sponsor did  not intend to  change that  condition, but                                                               
that  the sponsor  would  like to  make it  more  serious if  the                                                               
person were  released under  certain circumstances,  for example,                                                               
if he/she carried a concealed  weapon after the court had ordered                                                               
the person not to do so.                                                                                                        
                                                                                                                                
2:38:41 PM                                                                                                                    
                                                                                                                                
MS.  CARPENETI suggested  a conceptual  amendment could  be made,                                                               
and  referred to  page 1  line 13,  (B), Version  M, because  the                                                               
committee   eliminated  that   section  with   the  adoption   of                                                               
Conceptual Amendment  3.  She  reiterated her  understanding that                                                               
the  sponsor  and  the  committee   wanted  to  make  carrying  a                                                               
concealed  weapon after  an individual  has been  ordered by  the                                                               
court not  to do so  a more serious  crime..  She  suggested that                                                               
she would work with the bill drafter to ensure that that                                                                        
condition was met.                                                                                                              
                                                                                                                                
CHAIR RAMRAS asked to set HB 225 aside to bring back to the                                                                     
committee for further review.                                                                                                   
                                                                                                                                
REPRESENTATIVE HOLMES referred Ms. Carpeneti and Mr. Luckhaupt                                                                  
to AS 12 30.018 in Section 4.  The aforementioned statute was                                                                   
added by Section 3.                                                                                                             
                                                                                                                                
CHAIR RAMRAS set aside HB 225, Version M, as amended.                                                                           

Document Name Date/Time Subjects