Legislature(2007 - 2008)CAPITOL 120
04/30/2007 01:00 PM JUDICIARY
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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.