Legislature(2007 - 2008)CAPITOL 120

02/20/2008 01:00 PM JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ HB 359 PROBATION AND MINOR CONSUMING TELECONFERENCED
Moved CSHB 359(JUD) Out of Committee
+ HB 256 ACTIVE GAME MANAGEMENT/AIRBORNE SHOOTING TELECONFERENCED
Moved CSHB 256(JUD) Out of Committee
+= HB 237 REMOVING A REGENT TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
HB 359 - PROBATION AND MINOR CONSUMING                                                                                        
                                                                                                                                
1:05:18 PM                                                                                                                    
                                                                                                                                
CHAIR RAMRAS announced that the  first order of business would be                                                               
HOUSE  BILL  NO. 359,  "An  Act  relating  to probation  and  the                                                               
offense  of  minor  consuming  or in  possession  or  control  of                                                               
alcohol."                                                                                                                       
                                                                                                                                
1:05:54 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE DAHLSTROM  moved to  adopt the  proposed committee                                                               
substitute  (CS)  for  HB 359,  Version  25-LS1377\M,  Luckhaupt,                                                               
2/20/08, as the work draft.   There being no objection, Version M                                                               
was before the committee.                                                                                                       
                                                                                                                                
CHAIR  RAMRAS  noted that  HB  359  was  sponsored by  the  House                                                               
Judiciary Standing Committee.                                                                                                   
                                                                                                                                
1:06:47 PM                                                                                                                    
                                                                                                                                
EMILY BEATLEY,  Staff to Representative Jay  Ramras, Alaska State                                                               
Legislature,  on behalf  of Representative  Ramras, chair  of the                                                               
House Judiciary  Standing Committee,  sponsor, presented  HB 359.                                                               
She explained that under the  current statute pertaining to minor                                                               
consuming,  the  court  is  required  to  automatically  place  a                                                               
convicted  person on  probation for  one  year from  the date  of                                                               
conviction or until  the person reaches the age  of 21, whichever                                                               
is later.   House Bill 359 proposes to add  a new [subsection] to                                                               
AS 04.16.50,  giving the  courts the  authority to  terminate the                                                               
probation  of  someone  convicted  of minor  consuming  -  unless                                                               
he/she  is a  habitual  repeat  offender -  if  he/she meets  the                                                               
conditions of  probation set forth  by the court  and continuance                                                               
of  probation would  interfere with  the person's  rehabilitation                                                               
and growth.                                                                                                                     
                                                                                                                                
MS.  BEATLEY said  that  HB  359 was  specifically  drafted as  a                                                               
"betterment" bill, and is not  specific to those applying for the                                                               
military,  although  research  indicates  that this  is  a  large                                                               
issue.   Others  who might  also benefit  from HB  359 are  those                                                               
seeking entrance  into certain colleges, and  university students                                                               
traveling into or through Canada  for sporting events.  Under the                                                               
bill,  all who  are  convicted and  serving  probation for  minor                                                               
consuming  - except  for  habitual repeat  offenders  - would  be                                                               
eligible  for probation  termination via  petition to  the court.                                                               
The  belief  is,   she  relayed,  that  the   bill  will  provide                                                               
additional  incentive to  those convicted  of minor  consuming to                                                               
succeed while on probation.                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG  said he strongly  supports HB 359.   He                                                               
asked whether the term "growth" as  used on page 2, line 3, would                                                               
cause the courts difficulty.                                                                                                    
                                                                                                                                
MS. BEATLEY offered her belief that  it would be up to the courts                                                               
to interpret that term.                                                                                                         
                                                                                                                                
1:10:15 PM                                                                                                                    
                                                                                                                                
DOUG  WOOLIVER,  Administrative Attorney,  Administrative  Staff,                                                               
Office  of  the  Administrative  Director,  Alaska  Court  System                                                               
(ACS), said  he doesn't  know what  "growth" means,  but surmised                                                               
that  it was  included  in  the bill  to  give judges  discretion                                                               
beyond just  rehabilitative goals, and that  how judges interpret                                                               
that term will  vary and be closely tied to  the specifics of the                                                               
defendant.                                                                                                                      
                                                                                                                                
REPRESENTATIVE  GRUENBERG  said he  would  hope  that the  courts                                                               
would be able  to apply common sense and thus  alleviate the need                                                               
for the legislature to define the term.                                                                                         
                                                                                                                                
MR. WOOLIVER agreed.   In response to a question,  he offered his                                                               
recollection  that  historically,  there have  been  about  4,000                                                               
minor consuming charges filed each  year, but he doesn't know how                                                               
many  end in  convictions or  how many  of those  charged are  on                                                               
probation at any given time,  though he estimated that the number                                                               
of  the latter  is  probably in  the thousands.    He noted  that                                                               
Version M  somewhat narrows  the category  of who  could petition                                                               
the court  to have his/her  probation terminated -  the procedure                                                               
would  be much  like  a suspended  imposition  of sentence  (SIS)                                                               
procedure -  but he is unable  to estimate at this  time how many                                                               
might petition the court.                                                                                                       
                                                                                                                                
CHAIR RAMRAS offered  that the impetus behind [the  bill] is that                                                               
as long  as the State  of Alaska "has its  thumb on one  of these                                                               
minors, the U.S.  government can't own them"; as  such, "the best                                                               
vocational  rehab program  available across  the country"  is not                                                               
available to some of the youth who might most benefit from it.                                                                  
                                                                                                                                
REPRESENTATIVE SAMUELS questioned Ms.  Beatley's use of the term,                                                               
"habitual," and whether  the bill would apply only  to first time                                                               
offenders.                                                                                                                      
                                                                                                                                
MS.  BEATLEY explained  that AS  04.16.050(d)  currently says  in                                                               
part,  "A person  is guilty  of  habitual minor  consuming or  in                                                               
possession  or control  if  the person  was  placed on  probation                                                               
under  (c) of  this  section, or  has  been previously  convicted                                                               
twice", and that  a reference to subsection  (d) was specifically                                                               
left out  of the  bill so  as to  exclude those  who fit  in that                                                               
category.     In  response  to   a  question,  she   offered  her                                                               
understanding that  the procedure provided  by the bill  could be                                                               
used  by someone  who only  had  one prior  conviction for  minor                                                               
consuming but not by someone who had two prior convictions.                                                                     
                                                                                                                                
1:14:42 PM                                                                                                                    
                                                                                                                                
JOSHUA  FINK,  Director,  Anchorage   Office,  Office  of  Public                                                               
Advocacy (OPA),  Department of Administration (DOA),  opined that                                                               
while  the  State should  never  condone  underage drinking,  the                                                               
punishment should be proportionate to  the crime, and offered his                                                               
belief  that the  legislature did  not  intend for  kids who  are                                                               
cited for  underage drinking to  be precluded from being  able to                                                               
join  the  military.   He  relayed  that  when  he was  a  public                                                               
defender,  he  saw  kids  who got  cited  for  underage  drinking                                                               
because they  were at a party  and who then found  out later that                                                               
they couldn't enlist  in the military, and  he characterized this                                                               
as an unintended  consequence of the current  minor consuming law                                                               
that will be fixed by HB 359.                                                                                                   
                                                                                                                                
1:16:10 PM                                                                                                                    
                                                                                                                                
BRIGADIER  GENERAL THOMAS  H. KATKUS,  Commander, Army  Director,                                                               
Alaska  Army National  Guard (AK  ARNG),  said that  the AK  ARNG                                                               
abides by  all the  [enlistment] standards of  the U.S.  Army for                                                               
age, citizenship, education,  trainability, physical fitness, and                                                               
moral  standards.   If the  courts had  the ability  to terminate                                                               
probation  for those  youths who've  been convicted  of utilizing                                                               
alcohol but who  don't have any other criminal  charges, it would                                                               
give those  youths the  opportunity to  join the  military, which                                                               
could  provide them  with  better mentors  and  more options  for                                                               
getting  out of  a bad  situation.   Any time  a person  has more                                                               
options  available, the  better  his/her chances  of success,  he                                                               
concluded.                                                                                                                      
                                                                                                                                
REPRESENTATIVE GRUENBERG observed that  there are no accompanying                                                               
fiscal notes for HB 359.                                                                                                        
                                                                                                                                
MR. WOOLIVER  explained that if the  ACS were to submit  a fiscal                                                               
note, it would be based on  an anticipated increase in the number                                                               
of hearings  the court  would have.   For  example, if  there are                                                               
8,000  people currently  on probation  for  minor consuming,  the                                                               
court  might  anticipate  a significant  number  of  probationers                                                               
requesting a  hearing.  However,  he added,  he is not  sure what                                                               
percentage  of those  convicted might  qualify for  the procedure                                                               
proposed by  the bill, and so  he will be researching  that issue                                                               
further to see if a fiscal note is warranted.                                                                                   
                                                                                                                                
1:20:26 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG referred to  the language of proposed AS                                                               
04.16.050(l)(2)  and (3),  and  said he  is  having an  amendment                                                               
drafted to address  his concern that the person  will continue to                                                               
make payments for  the court-ordered programs and  the fines that                                                               
the  court  imposes; for  example,  any  unpaid amount  could  be                                                               
entered as a  judgment against the person.  He  asked whether the                                                               
ACS would be amenable to such an amendment.                                                                                     
                                                                                                                                
MR.  WOOLIVER  indicated  that  he  is not  sure  that  [such  an                                                               
amendment] would be an issue for the ACS.                                                                                       
                                                                                                                                
REPRESENTATIVE  COGHILL expressed  concern that  the language  of                                                               
proposed AS 04.16.050(l)(4) isn't written correctly.                                                                            
                                                                                                                                
MS.  BEATLEY  explained that  the  Department  of Law  (DOL)  had                                                               
wanted the  bill to also  stipulate that  the person has  to have                                                               
substantially complied  with other  conditions of  probation, and                                                               
it appears that the drafter  simply added that stipulation to the                                                               
stipulation  that the  continuance of  probation would  interfere                                                               
with the rehabilitation and growth  of the person.  She suggested                                                               
that  perhaps  the two  aspects  of  proposed AS  04.16.050(l)(4)                                                               
could instead be separated into two different paragraphs.                                                                       
                                                                                                                                
REPRESENTATIVE  COGHILL indicated  that he  felt something  still                                                               
needed to be done to clarify those stipulations.                                                                                
                                                                                                                                
REPRESENTATIVE   SAMUELS  said   he   is   reading  proposed   AS                                                               
04.16.050(l)(4) to say  that a person need  not completely comply                                                               
with the  conditions of  probation before  being allowed  to join                                                               
the   service  if   doing  so   would   interfere  with   his/her                                                               
rehabilitation.                                                                                                                 
                                                                                                                                
REPRESENTATIVE  COGHILL said  he  understands  that concept,  but                                                               
opined that the language doesn't currently say that.                                                                            
                                                                                                                                
REPRESENTATIVE  GRUENBERG posited  that the  language means  that                                                               
before the court  can grant the motion  [to terminate probation],                                                               
the  court must  find that  the defendant  has complied  with any                                                               
other  conditions of  probation  - in  other  words, that  he/she                                                               
hasn't been committing  any other crimes - and must  find that if                                                               
probation continues  and the  motion is  not granted,  that would                                                               
interfere  with the  defendant's rehabilitation  and growth.   He                                                               
opined that the  courts would interpret the  language of proposed                                                               
AS 04.16.050(l)(4) in that fashion.                                                                                             
                                                                                                                                
MR. WOOLIVER concurred  with Representative Gruenberg's summation                                                               
of the language, but cautioned that  he can't say how judges will                                                               
actually interpret the language.                                                                                                
                                                                                                                                
CHAIR RAMRAS closed  public testimony and set HB  359, Version M,                                                               
aside until later in the meeting.                                                                                               
                                                                                                                                
HB 359 - PROBATION AND MINOR CONSUMING                                                                                        
                                                                                                                                
2:54:47 PM                                                                                                                    
                                                                                                                                
CHAIR RAMRAS  announced that the  committee would next  return to                                                               
the hearing on HOUSE BILL NO.  359, "An Act relating to probation                                                               
and the  offense of minor  consuming or in possession  or control                                                               
of  alcohol."   [The proposed  committee substitute  (CS) for  HB                                                               
359,  Version 25-LS1377\M,  Luckhaupt,  2/20/08,  which had  been                                                               
adopted as the work draft earlier  in the meeting, was before the                                                               
committee.]                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG made  a  motion to  adopt Amendment  1,                                                               
labeled 25-LS1377\M.1, Luckhaupt, 2/20/08, which read:                                                                          
                                                                                                                                
     Page 1, lines 12 - 13:                                                                                                     
          Delete "has either paid for the programs or has                                                                       
     made a good faith effort to pay for the programs"                                                                          
          Insert "has either                                                                                                    
               (A)  paid for the programs; or                                                                                   
               (B)  made a good faith effort to pay for the                                                                     
     programs, agreed  to have the  debt reduced to  a civil                                                                    
     judgment,  entered  into  a  repayment  plan  with  the                                                                    
     provider  or  the  state, and  agreed  that  the  civil                                                                    
     judgment  may be  enforced in  the manner  provided for                                                                    
     restitution and fines in AS 12.55.051"                                                                                     
                                                                                                                                
     Page 1, line 14, through page 2, line 1:                                                                                   
          Delete "has paid the fine for the offense or has                                                                      
     made a good faith effort to pay the fine"                                                                                  
          Insert "has either                                                                                                    
               (A)  paid the fine; or                                                                                           
               (B)  made a good faith effort to pay the                                                                         
     fine, agreed to have  the remaining fine amount reduced                                                                    
     to  a civil  judgment,  entered into  a  plan with  the                                                                    
     state,  and  agreed  that the  civil  judgment  may  be                                                                    
     enforced  in the  manner provided  for restitution  and                                                                    
     fines in AS 12.55.051"                                                                                                     
                                                                                                                                
CHAIR RAMRAS objected.                                                                                                          
                                                                                                                                
REPRESENTATIVE  GRUENBERG   explained  that  Amendment   1  would                                                               
require that a person, in addition  to making a good faith effort                                                               
to  pay for  the  programs,  must also  agree  to  have the  debt                                                               
reduced to  a civil  judgment, enter into  a repayment  plan, and                                                               
agree  that the  civil judgment  may  be enforced  in the  manner                                                               
provided for in  statute for restitutions and fines.   He offered                                                               
his understanding that Mr. Wooliver  from the Alaska Court System                                                               
(ACS) doesn't, at this time, see a problem with Amendment 1.                                                                    
                                                                                                                                
CHAIR RAMRAS removed his objection  to Amendment 1.  [Amendment 1                                                               
was treated as adopted.]                                                                                                        
                                                                                                                                
2:57:21 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG made  a  motion to  adopt Amendment  2,                                                               
labeled 25-LS1377\M.2, Luckhaupt, 2/20/08, which read:                                                                          
                                                                                                                                
     Page 1, lines 1 - 2:                                                                                                       
          Delete "probation and the offense of minor                                                                          
     consuming or in possession or control of alcohol"                                                                        
     Insert  "termination of  probation for  certain persons                                                                  
     convicted  of  minor  consuming  or  in  possession  or                                                                  
     control  of alcohol  or repeat  minor  consuming or  in                                                                  
     possession or control of alcohol"                                                                                        
                                                                                                                                
CHAIR RAMRAS objected.                                                                                                          
                                                                                                                                
REPRESENTATIVE  GRUENBERG   explained  that  Amendment   2  would                                                               
tighten the title so as to limit what may be added to HB 359.                                                                   
                                                                                                                                
CHAIR RAMRAS removed his objection.   [Amendment 2 was treated as                                                               
adopted.]                                                                                                                       
                                                                                                                                
2:58:35 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  moved to report the  proposed committee                                                               
substitute  (CS)  for  HB 359,  Version  25-LS1377\M,  Luckhaupt,                                                               
2/20/08,   as  amended,   out   of   committee  with   individual                                                               
recommendations and  the accompanying fiscal notes.   There being                                                               
no  objection,   CSHB  359(JUD)  was  reported   from  the  House                                                               
Judiciary Standing Committee.                                                                                                   
                                                                                                                                

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