Legislature(2007 - 2008)CAPITOL 120

04/06/2008 03:00 PM JUDICIARY


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04:00:37 PM Start
04:00:52 PM HB323
05:34:50 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
--Delayed to Immediately After Session--
-- Continued from 04/04/08 --
+= HB 323 CRIMINAL LAW/PROCEDURE: OMNIBUS BILL TELECONFERENCED
Moved CSHB 323(JUD) Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
HB 323 - CRIMINAL LAW/PROCEDURE: OMNIBUS BILL                                                                                 
                                                                                                                                
4:00:52 PM                                                                                                                    
                                                                                                                                
CHAIR RAMRAS announced  that the only order of  business would be                                                               
HOUSE BILL NO. 323, "An Act  relating to the crimes of assault in                                                               
the fourth  degree and of  resisting or interfering  with arrest;                                                               
relating to the  determination of time of  a conviction; relating                                                               
to  offenses   concerning  controlled  substances;   relating  to                                                               
issuance   of  search   warrants;  relating   to  persons   found                                                               
incompetent to stand trial  concerning criminal conduct; relating                                                               
to probation  and to  restitution for  fish and  game violations;                                                               
relating  to  aggravating  factors  at  sentencing;  relating  to                                                               
criminal  extradition authority  of  the  governor; removing  the                                                               
statutory  bar to  prosecution of  certain crimes;  amending Rule                                                               
37(b), Alaska Rules of Criminal  Procedure, relating to execution                                                               
of warrants; and  providing for an effective date."   [Before the                                                               
committee was the proposed committee  substitute (CS) for HB 323,                                                               
Version 25-GH2038\K,  Luckhaupt, 4/2/08,  which had  been adopted                                                               
as the work draft on 4/4/08.]                                                                                                   
                                                                                                                                
4:00:58 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE DAHLSTROM moved [to  adopt] the proposed committee                                                               
substitute  (CS)  for  HB 323,  Version  25-GH2038\L,  Luckhaupt,                                                               
4/6/08, [as the  work draft].  There being  no objection, Version                                                               
L was before the committee.                                                                                                     
                                                                                                                                
CHAIR RAMRAS  indicated that Sections 1  and 2 of Version  L will                                                               
change AS 04.16.051(a) and AS  04.16.052, respectively, such that                                                               
a licensee  or an  agent or  employee of a  licensee who  - while                                                               
working  on the  licensed  premises -  furnishes  or delivers  an                                                               
alcoholic  beverage  to someone  under  the  age  of 21  will  be                                                               
subject to  a class A  misdemeanor instead  of a class  C felony.                                                               
He  offered   his  belief  that   this  change  will   provide  a                                                               
distinction  between  those  who accidentally  serve  alcohol  to                                                               
someone under the  age of 21 and those who  do it "with malicious                                                               
intent."                                                                                                                        
                                                                                                                                
REPRESENTATIVE GRUENBERG,  pointing out  that Section 2  uses the                                                               
phrase, "may not  with criminal negligence", asked  what level of                                                               
crime it would  be when the licensee or agent  or employee of the                                                               
licensee   -   while  working   on   the   licensed  premises   -                                                               
"intentionally" or  "knowingly" serves alcohol to  a person under                                                               
the  age of  21.   He  opined  that if  someone  is knowingly  or                                                               
intentionally furnishing  alcohol to  a person  under the  age of                                                               
21,  it  shouldn't   make  a  difference  whether   he/she  is  a                                                               
licensee/agent/employee   or  just   another   customer  of   the                                                               
establishment.  He surmised that  the change proposed by Sections                                                               
1 and 2  will let someone off  the hook for serving  alcohol to a                                                               
minor just because he/she happens to be an employee.                                                                            
                                                                                                                                
CHAIR RAMRAS said that that person  would still be charged with a                                                               
class A misdemeanor.   In response to a question,  he offered his                                                               
understanding that the  same would be true if the  person was not                                                               
[a  licensee/agent/employee]  unless  it was  his/her  second  or                                                               
subsequent  offense.   He acknowledged,  though, that  the change                                                               
proposed by  Sections 1  and 2  will create  a gap  through which                                                               
licensees/agents/employees  who continue  to intentionally  serve                                                               
alcohol to  minors can fall through  - such a person  would still                                                               
only be  charged with  a class A  misdemeanor [regardless  of how                                                               
many times he/she breaks the law].                                                                                              
                                                                                                                                
REPRESENTATIVE  GRUENBERG asked  how they  should deal  with that                                                               
gap.                                                                                                                            
                                                                                                                                
REPRESENTATIVE  SAMUELS  said he  is  assuming  that that  person                                                               
would lose his/her job.                                                                                                         
                                                                                                                                
REPRESENTATIVE GRUENBERG  said he is merely  considering this gap                                                               
from  a  criminal-law  point  of view,  and  asked  Chair  Ramras                                                               
whether  he wants  to address  repeat offenders  who continue  to                                                               
offend in their capacity as a licensee/agent/employee.                                                                          
                                                                                                                                
CHAIR RAMRAS said he doesn't want to.                                                                                           
                                                                                                                                
REPRESENTATIVE DAHLSTROM  said her  view is that  the legislature                                                               
is  simply setting  up the  guidelines  with regard  to what  the                                                               
consequences will be when a person makes certain choices.                                                                       
                                                                                                                                
4:11:48 PM                                                                                                                    
                                                                                                                                
ANNE  CARPENETI,  Assistant   Attorney  General,  Legal  Services                                                               
Section, Criminal Division, Department  of Law (DOL), in response                                                               
to  a  question,  explained  that  under  Sections  1  and  2,  a                                                               
licensee/agent/employee  who  -  while working  on  the  licensed                                                               
premises - serves  alcohol to a minor would only  be subject to a                                                               
class A  misdemeanor regardless  of whether  he/she does  it with                                                               
criminal negligence,  or knowingly, or intentionally,  and that's                                                               
because the  culpable mental state of  "criminal negligence" also                                                               
includes  "knowingly"  and  "intentionally."     In  response  to                                                               
questions,  she  said  that  a  repeat  offender  who  is  not  a                                                               
licensee/agent/employee  would be  subject to  a class  C felony,                                                               
whereas a repeat offender who  is a licensee/agent/employee would                                                               
only be subject to a class A misdemeanor.                                                                                       
                                                                                                                                
REPRESENTATIVE GRUENBERG asked why  shouldn't repeat offenders be                                                               
subject to the same penalty regardless of where they work.                                                                      
                                                                                                                                
CHAIR  RAMRAS -  characterizing the  penalties associated  with a                                                               
class A misdemeanor as not  insignificant - opined that because a                                                               
licensee/agent/employee  has   far  more  opportunity   to  serve                                                               
alcohol  to a  minor,  the  licensee/agent/employee shouldn't  be                                                               
subject to a class C felony.                                                                                                    
                                                                                                                                
REPRESENTATIVE   GRUENBERG   said   he  doesn't   see   why   the                                                               
consequences  should   be  different  just  because   the  repeat                                                               
offender committed  the offense while on  the job.  Why  should a                                                               
repeat offender be  protected just because he/she  is an employee                                                               
of an establishment that serves alcohol?                                                                                        
                                                                                                                                
4:17:29 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE   SAMUELS   asked    who   determines   that   the                                                               
licensee/agent/employee should  have known that he/she  was being                                                               
presented with a fake identification (ID).                                                                                      
                                                                                                                                
MS.  CARPENETI explained  that  the State  would  have to  decide                                                               
whether there  is enough evidence  to prove  criminal negligence,                                                               
which means  being so unaware as  to not recognize the  risk that                                                               
is there.  One reason the  DOL is happy with [the change proposed                                                               
by Sections 1  and 2], she relayed, is that  it will help servers                                                               
make "that" decision  even when they're busy, and  the State will                                                               
have a better  chance of proving criminal negligence  or at least                                                               
recklessness   because    a   fake    ID   was   seen    by   the                                                               
licensee/agent/employee but then ignored.                                                                                       
                                                                                                                                
REPRESENTATIVE  SAMUELS indicated  that the  penalty should  be a                                                               
class C  felony if  it is  obvious that  the person  being served                                                               
alcohol is underage.                                                                                                            
                                                                                                                                
REPRESENTATIVE GRUENBERG offered his  understanding that in order                                                               
for the State  to prove a mens rea of  "knowing," the state would                                                               
have to  show that  that particular person  knew something  - not                                                               
just that a reasonable person would know something.                                                                             
                                                                                                                                
MS. CARPENETI  clarified that in  proving "knowingly,"  the State                                                               
merely has  to show either that  one did know or  that one should                                                               
have known.  Particularly when  a circumstance is so obvious that                                                               
one should have known, the State  doesn't have to prove that that                                                               
particular person did know.                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG  posited   that  borderline  situations                                                               
wouldn't be prosecuted.                                                                                                         
                                                                                                                                
CHAIR RAMRAS disagreed.                                                                                                         
                                                                                                                                
REPRESENTATIVE GRUENBERG  surmised, then, that if  the State were                                                               
to   prosecute   a   licensee/agent/employee  in   a   borderline                                                               
situation,  then the  State  would also  prosecute  someone in  a                                                               
borderline  situation who  isn't a  licensee/agent/employee.   He                                                               
said  his concern  is that  there  might be  an equal  protection                                                               
issue raised  if the average  person is  subject to a  felony for                                                               
knowingly or willfully serving alcohol  to an underage person but                                                               
a  licensee/agent/employee  isn't.   What  societal  interest  is                                                               
there that's  compelling, or  under any  constitutional standard,                                                               
to  protect  the   licensee/agent/employee,  since  normally  the                                                               
licensees/agents/employees  are   held  to  a   higher  standard?                                                               
Doesn't that raise a constitutional problem?                                                                                    
                                                                                                                                
4:22:55 PM                                                                                                                    
                                                                                                                                
MS.  CARPENETI said  she's  not yet  researched  that issue,  but                                                               
could do  so.   She added  that although  the change  proposed by                                                               
Sections 1  and 2 would  treat people differently,  it recognizes                                                               
that the circumstances  would be different as  well, depending on                                                               
who the  person is,  because the existing  provisions of  law use                                                               
different culpable mental  states.  Under the bill,  the mens rea                                                               
for  a  licensee/agent/employee  would be  criminally  negligent,                                                               
whereas currently  the mens rea for  a licensee/agent/employee is                                                               
knowingly.  She said she is  not sure whether the change proposed                                                               
via Sections 1 and 2 would raise a constitutional issue.                                                                        
                                                                                                                                
CHAIR RAMRAS said  that the distinction he is making  is that for                                                               
a  licensee/agent/employee,  the  behavior   is  occurring  in  a                                                               
licensed premise, where there is  more oversight by the Alcoholic                                                               
Beverage Control Board ("ABC Board").   He said he is questioning                                                               
whether someone who serves alcohol  as part of his/her job should                                                               
be held to the same level of culpability as one who doesn't.                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG said  it  seems to  him, however,  that                                                               
when  speaking about  a second  willful or  knowing offense,  the                                                               
higher  penalty ought  to apply  regardless of  where the  person                                                               
works; it's not about where the  offense occurs, but about who is                                                               
committing the offense.                                                                                                         
                                                                                                                                
CHAIR  RAMRAS argued  that  where the  offense  occurs creates  a                                                               
different dynamic.                                                                                                              
                                                                                                                                
REPRESENTATIVE  GRUENBERG said  he thinks  the penalty  should be                                                               
the same - a  class C felony - adding that  he still hasn't heard                                                               
any good reason  for [the penalty to be different  based on where                                                               
one works].                                                                                                                     
                                                                                                                                
CHAIR  RAMRAS said  he doesn't  want to  hold someone  who serves                                                               
alcohol as part  of his/her job to the same  standard as a member                                                               
of the general public.                                                                                                          
                                                                                                                                
REPRESENTATIVE GRUENBERG pointed out  that Section 2 only applies                                                               
to someone who is acting  with criminal negligence, whereas he is                                                               
speaking about the licensee/agent/employee  who willfully - for a                                                               
second  or subsequent  time  - serves  alcohol to  a  minor.   He                                                               
indicated  that  he  might  offer   an  amendment  to  address  a                                                               
licensee/agent/employee  who   is  willfully/knowingly   -  while                                                               
working on  the licensed  premises - serving  alcohol to  a minor                                                               
for a second or  subsequent time.  He said he  has a problem with                                                               
only charging a repeat offender  who is a licensee/agent/employee                                                               
with a class A misdemeanor but  charging a repeat offender who is                                                               
not a licensee/agent/employee with a  class C felony - both types                                                               
of  willful/knowing, repeat  offenders should  be charged  with a                                                               
class C felony.                                                                                                                 
                                                                                                                                
4:33:00 PM                                                                                                                    
                                                                                                                                
RODNEY   DIAL,  Lieutenant,   Deputy  Commander,   A  Detachment,                                                               
Division of  Alaska State Troopers,  Department of  Public Safety                                                               
(DPS), said  the DPS supports  Version L of HB  323, particularly                                                               
those provisions dealing with search  warrants, because they will                                                               
increase  the  DPS's  productivity,  and  the  mandatory  minimum                                                               
sentencing provisions  pertaining to the importation  of alcohol,                                                               
because they  will assist the  DPS's efforts to keep  alcohol out                                                               
of communities that prohibit it.                                                                                                
                                                                                                                                
MS. CARPENETI  explained that Sections  3 and 4 would  change the                                                               
statutes  pertaining  to bootlegging.    Currently  the crime  of                                                               
bootlegging is a  felony if a person brings alcohol  in excess of                                                               
certain amounts into a community  in violation of a local option,                                                               
and  a misdemeanor  if the  amounts are  less than  those certain                                                               
amounts.  Under  Section 3 of the  bill, it would be  a felony if                                                               
the  amount  of alcohol  being  brought  in  is less  than  those                                                               
certain  amounts  but it  is  the  person's third  or  subsequent                                                               
conviction within the last 10  years.  She explained that Section                                                               
4  would  impose  mandatory  minimum   sentences  and  fines  for                                                               
bootleggers that  are almost  the same  as the  mandatory minimum                                                               
sentences  and fines  pertaining to  driving under  the influence                                                               
(DUI) crimes  and the crime of  refusing to take a  chemical test                                                               
for purposes  of establishing blood alcohol  concentration (BAC);                                                               
the  only  difference is  that  under  Section 4,  the  look-back                                                               
period for bootlegging crimes is  10 years, whereas the look-back                                                               
period for DUI crimes is 15 years.                                                                                              
                                                                                                                                
REPRESENTATIVE   SAMUELS  referred   to   Section  4's   proposed                                                               
subsection (g)(1)(B), said  he is assuming that  bootlegging is a                                                               
lucrative business, and asked what  the DOL would think of making                                                               
the  mandatory  minimum fine  for  a  second offense  $10,000  or                                                               
$20,000 instead  of just  $3,000, which  he characterized  as not                                                               
being very  much money and  perhaps an amount that's  just viewed                                                               
as part of the cost of doing business.                                                                                          
                                                                                                                                
MS.  CARPENETI said  that  the DOL  considers  the sentences  and                                                               
fines listed  in Section 4  as a really good  start, particularly                                                               
given that  currently it is  very difficult to get  a significant                                                               
sentence applied  to bootlegging convictions, and  given that the                                                               
mandatory minimum sentences  and fines proposed in  Section 4 are                                                               
much greater  than what they  currently are.  She  added, though,                                                               
that  she doesn't  have any  philosophical disagreement  with the                                                               
suggestion to increase the fines  to $10,000 or $20,000, and does                                                               
agree that  deciding to be  a bootlegger is an  economic decision                                                               
whereas deciding to drive drunk is not.                                                                                         
                                                                                                                                
4:39:08 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SAMUELS, in  response  to  a question,  indicated                                                               
that he  would be willing to  raise the fines listed  in proposed                                                               
subsection (g)(1) to $10,000.                                                                                                   
                                                                                                                                
CHAIR RAMRAS asked Representative  Samuels whether he is thinking                                                               
to leave  the sentences listed  in proposed subsection  (g)(1) as                                                               
they are.                                                                                                                       
                                                                                                                                
REPRESENTATIVE  SAMUELS  characterized  raising the  fines  as  a                                                               
commercial disincentive,  and bootlegging as just  a business out                                                               
to make money.                                                                                                                  
                                                                                                                                
REPRESENTATIVE   GRUENBERG   sought    clarification   that   the                                                               
suggestion  to increase  the fines  would not  apply to  proposed                                                               
subsection (g)(1)(A)  - which pertains  to a first offense  - but                                                               
would instead  start with changing proposed  subsection (g)(1)(B)                                                               
- which pertains to a second offense.                                                                                           
                                                                                                                                
REPRESENTATIVE SAMUELS concurred.                                                                                               
                                                                                                                                
MS. CARPENETI reminded  members that Section 4  is only proposing                                                               
mandatory  minimum sentences  and  fines, and  so  the fines  and                                                               
sentences a judge orders could actually  end up being higher.  In                                                               
response to a question, she  said that currently the maximum fine                                                               
is $10,000  for a class A  misdemeanor and $50,000 for  a class C                                                               
felony.                                                                                                                         
                                                                                                                                
4:41:09 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG   referred  to  Section   4's  proposed                                                               
subsection (h),  and suggested that  the committee might  wish to                                                               
look at  the $10,000 fine outlined  on line 6.   He then referred                                                               
to Section 4's  proposed subsections (i), (j), and  (k) and asked                                                               
what the difference is between subsections (i) and (j).                                                                         
                                                                                                                                
MS. CARPENETI said  that subsection (i) defines what  is meant by                                                               
the term "previously  convicted" with regard to  subsection (g) -                                                               
the  misdemeanor provisions  -  and that  subsection (j)  defines                                                               
what is meant  by that same term with regard  to subsection (h) -                                                               
the felony provisions.                                                                                                          
                                                                                                                                
REPRESENTATIVE GRUENBERG  asked what  the consequences are  for a                                                               
person who is convicted of a felony  for the first time but has a                                                               
previous misdemeanor conviction.                                                                                                
                                                                                                                                
MS.  CARPENETI offered  her understanding  that  one wouldn't  be                                                               
convicted  of  a  felony  unless he/she  already  has  two  prior                                                               
misdemeanor convictions; so if one  has not yet been convicted of                                                               
a  felony, then  only the  misdemeanor provisions  of [subsection                                                               
(g)] would apply.                                                                                                               
                                                                                                                                
REPRESENTATIVE  GRUENBERG asked  how Section  4's subsection  (k)                                                               
would work.                                                                                                                     
                                                                                                                                
MS. CARPENETI  said subsection  (k) simply  tells the  court what                                                               
standard  to   use  when  determining  whether   a  third  felony                                                               
conviction  within the  10 preceding  years has  a occurred;  the                                                               
court would look  at the sentencing date of  prior convictions as                                                               
the conviction date.                                                                                                            
                                                                                                                                
REPRESENTATIVE GRUENBERG  asked why the court  shouldn't consider                                                               
the date the offense occurred instead.                                                                                          
                                                                                                                                
MS.  CARPENETI explained  that under  common law  in Alaska,  the                                                               
court  generally   -  for  future   consequences  -   counts  the                                                               
conviction  as  occurring  on  the date  of  sentencing.    Court                                                               
decisions have  held that that is  the date that the  judge looks                                                               
the defendant in the face and  says, "You have violated our laws,                                                               
now is the time to accept  the consequences of it."  Setting this                                                               
standard  out  in subsection  (k)  will  ensure that  the  courts                                                               
understand that this is what the legislature intends.                                                                           
                                                                                                                                
4:46:31 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SAMUELS offered a  hypothetical example in which a                                                               
person throws a  party at which several  underage persons consume                                                               
alcohol, and  asked whether each  instance of an  underage person                                                               
consuming alcohol  at that party  would be considered  a separate                                                               
offense for purposes of constituting a prior conviction.                                                                        
                                                                                                                                
MS. CARPENETI  indicated that they  would not because  the person                                                               
would have had  to have been convicted and sentenced  for a first                                                               
offense prior to having committed the current offense.                                                                          
                                                                                                                                
CHAIR RAMRAS  pointed out that  that hypothetical example  has no                                                               
bearing on the change proposed by Sections 1 and 2 of Version L.                                                                
                                                                                                                                
REPRESENTATIVE  GRUENBERG  referred   to  serial  arsonists,  and                                                               
offered his understanding that even  though they've generally set                                                               
three or four  fires before they're charged for  a first offense,                                                               
they  can't be  charged with  a felony  until after  they've been                                                               
previously  convicted,  and surmised  that  Section  4 is  merely                                                               
outlining a similar standard.                                                                                                   
                                                                                                                                
MS.  CARPENETI concurred,  and added,  "Generally these  statutes                                                               
say, 'on two  or more separate occasions' when  you're looking at                                                               
prior  strikes."   In response  to questions  about the  crime of                                                               
theft, she said  that theft of $500 [or more]  on one occasion is                                                               
a felony, and  that theft of $100 is a  misdemeanor.  In response                                                               
to a  question about whether a  series of thefts would  warrant a                                                               
felony charge, she said that  although it would depend on whether                                                               
the DOL - under the circumstances  of the particular case - could                                                               
prove the behavior  constituted a course of conduct,  a series of                                                               
thefts [for amounts under $500] would simply be misdemeanors.                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG  said  he  would  not  be  offering  an                                                               
amendment addressing  Sections 1  and 2 at  this time,  but would                                                               
research  the issue  raised  by those  sections  further and  let                                                               
members know if he develops something.                                                                                          
                                                                                                                                
4:51:56 PM                                                                                                                    
                                                                                                                                
MS. CARPENETI  - referring to  Section 11, which  establishes the                                                               
crime  of criminally  negligent  burning in  the  first degree  -                                                               
suggested that  the words, "on  two separate occasions"  be added                                                               
after the word,  "convicted" on page 6, lines 11.   Such a change                                                               
would ensure that the proposed  enhancement of a misdemeanor to a                                                               
felony-level crime would  occur for a third offense  instead of a                                                               
second offense.                                                                                                                 
                                                                                                                                
REPRESENTATIVE GRUENBERG  indicated that  although such  a change                                                               
would not  be his first  choice, he  recognizes that it  could be                                                               
helpful to those who must enforce Section 11.                                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG  then made a motion  to adopt Conceptual                                                               
Amendment 1,  such that the  words, "on two  separate occasions,"                                                               
be added after the word, "convicted"  on page 6, lines 11.  There                                                               
being no objection, Conceptual Amendment 1 was adopted.                                                                         
                                                                                                                                
REPRESENTATIVE SAMUELS  referred to Section 4,  and asked whether                                                               
someone convicted  of proposed AS  04.16.200 would be  subject to                                                               
forfeiture of the equipment used to transport bootleg alcohol.                                                                  
                                                                                                                                
MS. CARPENETI explained  that such equipment would  be subject to                                                               
forfeiture under AS 04.16.220(a)(3).                                                                                            
                                                                                                                                
4:56:23 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SAMUELS   made  a  motion  to   adopt  Conceptual                                                               
Amendment 2, which read [original punctuation provided]:                                                                        
                                                                                                                                
     pg 3 line 3                                                                                                                
     line 13 delete 3000,                                                                                                       
             insert 10,000                                                                                                      
                                                                                                                                
     line 15 delete 4000                                                                                                        
             insert 15,000                                                                                                      
                                                                                                                                
     line 18 delete 5000                                                                                                        
             insert 20,000                                                                                                      
                                                                                                                                
     line 21 delete 6000                                                                                                        
             insert 25,000                                                                                                      
                                                                                                                                
     line 13 delete 7000,                                                                                                       
             insert 30,000                                                                                                      
                                                                                                                                
REPRESENTATIVE COGHILL objected for the purpose of discussion.                                                                  
                                                                                                                                
REPRESENTATIVE SAMUELS  offered his belief  that if a  person has                                                               
been  convicted of  bootlegging  once and  has therefore  already                                                               
forfeited  the equipment  used, already  paid a  minimum fine  of                                                               
$1,500, and  already spent a  minimum of  three days in  jail but                                                               
still chooses  to engage in  bootlegging, it must still  be worth                                                               
the person's while to be bootlegging as a business.                                                                             
                                                                                                                                
CHAIR RAMRAS offered his understanding,  though, that the maximum                                                               
fine for a misdemeanor is $10,000.                                                                                              
                                                                                                                                
MS. CARPENETI clarified that Title  12 actually allows for higher                                                               
fines as long as they are  specified in statute; the maximum fine                                                               
is $10,000 only if no other amount is specified.                                                                                
                                                                                                                                
REPRESENTATIVE  SAMUELS opined  that  if  someone has  previously                                                               
been convicted  of bootlegging [more  than] four times  and still                                                               
chooses to  engage in bootlegging,  the fine "probably  can't get                                                               
high enough for me."                                                                                                            
                                                                                                                                
REPRESENTATIVE  COGHILL  asked  whether  Conceptual  Amendment  2                                                               
would make prosecution  more difficult, and, if  so, whether they                                                               
should  instead  just  [decrease]  the  amount  of  alcohol  that                                                               
warrants only a misdemeanor charge,  as opposed to increasing the                                                               
fines.                                                                                                                          
                                                                                                                                
CHAIR RAMRAS  asked whether [Conceptual Amendment  2] would place                                                               
an additional burden on the court system.                                                                                       
                                                                                                                                
4:59:14 PM                                                                                                                    
                                                                                                                                
DOUG  WOOLIVER,  Administrative Attorney,  Administrative  Staff,                                                               
Office  of  the  Administrative  Director,  Alaska  Court  System                                                               
(ACS), said he  didn't know whether Conceptual  Amendment 2 would                                                               
make  bootlegging  crimes  more  difficult  to  prosecute,  since                                                               
issues related to prosecution fall  under the purview of the DOL.                                                               
and that the ACS merely  imposes whatever penalty the legislature                                                               
mandates.  He noted, however,  that under Conceptual Amendment 2,                                                               
only the misdemeanor fines [proposed  under subsection (g)] would                                                               
be increased, whereas the felony  fine [proposed under subsection                                                               
(h)]  would stay  at  $10,000;  if that  remains  the case,  then                                                               
conceivably  under  Conceptual  Amendment  2, there  could  be  a                                                               
$30,000 misdemeanor fine but only a $10,000 felony fine.                                                                        
                                                                                                                                
MS. CARPENETI  said that Conceptual Amendment  2 shouldn't impede                                                               
the  DOL's  prosecution  of bootlegging  cases,  since  the  fine                                                               
amount is  not an  element of  the offense  - it's  not something                                                               
that has to be  proven in order to get a  conviction.  She added,                                                               
however,  that she  would like  to  discuss this  issue with  the                                                               
DOL's prosecutors.                                                                                                              
                                                                                                                                
CHAIR  RAMRAS  expressed  a preference  for  amending  Conceptual                                                               
Amendment 2 such  that the fines listed on page  3, lines 13, 15,                                                               
18, 21,  and 24  all be  raised to $10,000.   He  characterized a                                                               
fine of  $10,000 as a significant  deterrent, and said he  is not                                                               
sure  that having  the fine  escalate as  Conceptual Amendment  2                                                               
currently  proposes  would be  that  much  more of  a  deterrent,                                                               
particularly given  that the terms  of imprisonment  [outlined in                                                               
subsection  (g)]  are  still   increasing  with  each  subsequent                                                               
conviction.                                                                                                                     
                                                                                                                                
REPRESENTATIVE  SAMUELS indicated  that  he is  unsure whether  a                                                               
fine  of  only  $10,000  will   be  sufficient  to  deter  repeat                                                               
offenders.                                                                                                                      
                                                                                                                                
REPRESENTATIVE DAHLSTROM  relayed that  when the  House Community                                                               
and Regional  Affairs Standing  Committee heard  legislation with                                                               
provisions similar  to Sections  3 and 4,  some members  from the                                                               
Bush  had expressed  a strong  desire  for having  the fines  and                                                               
periods  of imprisonment  for  bootlegging  crimes increased,  as                                                               
well as  for having bootleggers  forfeit absolutely  anything and                                                               
everything that they use in the  commission of their crimes.  She                                                               
offered her  belief that an increase  in the fines will  act as a                                                               
deterrent for those who bootleg as a business.                                                                                  
                                                                                                                                
REPRESENTATIVE  COGHILL offered  his  understanding  that even  a                                                               
fourth bootlegging  conviction warrants a felony  charge and thus                                                               
he isn't sure why they  should be including subparagraphs (E) and                                                               
(F) in Section 4's subsection (g)(1).                                                                                           
                                                                                                                                
MS.  CARPENETI, in  response to  comments, acknowledged  that the                                                               
maximum  amounts  of  alcohol that  only  warrant  a  misdemeanor                                                               
bootlegging charge  are still large  amounts of alcohol.   Beyond                                                               
those  amounts, the  charge becomes  a felony  and there  is then                                                               
also the  presumption that  the person is  intending to  sell the                                                               
alcohol.   Furthermore,  [under  Section 3],  a third  conviction                                                               
within 10 years warrants a  felony charge, and subparagraphs (C)-                                                               
(F)  of   Section  4's   subsection  (g)(1)   addresses  previous                                                               
convictions  that occur  outside of  [Section 3's]  10-year look-                                                               
back period.                                                                                                                    
                                                                                                                                
5:05:42 PM                                                                                                                    
                                                                                                                                
MS.  CARPENETI, in  response to  questions,  said that  currently                                                               
bootlegging  amounts of  alcohol under  10.5 liters  of distilled                                                               
spirits, or  24 liters of  wine, or  12 gallons of  malt beverage                                                               
warrants a class A misdemeanor charge  with a maximum of one year                                                               
of imprisonment and  a $10,000 fine; that  bootlegging amounts of                                                               
alcohol over the aforementioned limits  warrants a class C felony                                                               
charge  with  a maximum  of  five  years  of imprisonment  and  a                                                               
$50,000  fine;  that currently  there  are  no mandatory  minimum                                                               
sentences  or fines  set out  in statute;  and that  the bill  is                                                               
setting out those mandatory minimum sentences and fines.                                                                        
                                                                                                                                
REPRESENTATIVE  DAHLSTROM offered  her  understanding that  under                                                               
Version  L, particularly  if Conceptual  Amendment 2  is adopted,                                                               
the bootlegging provisions of statute  will become much stronger,                                                               
something  many  people want  to  see  happen.   The  amounts  of                                                               
alcohol being bootlegged is of  secondary concern compared to the                                                               
fact  that  that bootlegged  alcohol  is  being transported  into                                                               
communities that have voted themselves "damp" or "dry."                                                                         
                                                                                                                                
CHAIR RAMRAS  expressed an interest  in seeing an  amendment that                                                               
would make  bootlegging a felony  sooner; that would  provide for                                                               
greater fines;  and that would  ensure that  bootlegging offenses                                                               
are prosecutable.                                                                                                               
                                                                                                                                
MS. CARPENETI  suggested providing for a  longer look-back period                                                               
- perhaps  a 15-year look-back  as is  the case with  DUI crimes;                                                               
this would ensure  that more prior convictions  are being counted                                                               
towards a third conviction, which  would warrant a felony charge.                                                               
She  said  she  doesn't  have  any  philosophical  objections  to                                                               
raising  the fines,  but wants  to ask  the DOL's  prosecutors to                                                               
consider that issue.                                                                                                            
                                                                                                                                
5:10:30 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SAMUELS   made  a  motion  to   amend  Conceptual                                                               
Amendment 2 such  that the fines listed on page  3, lines 13, 15,                                                               
18, 21, and  24 would all be  raised to $10,000.   There being no                                                               
objection, Conceptual Amendment 2 was amended.                                                                                  
                                                                                                                                
REPRESENTATIVE COGHILL withdrew his objection.                                                                                  
                                                                                                                                
CHAIR RAMRAS  announced that Conceptual Amendment  2, as amended,                                                               
was adopted.                                                                                                                    
                                                                                                                                
5:12:25 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE COGHILL  made a  motion to  adopt Amendment  3, to                                                               
delete subparagraphs (E) and (F) from page 3, lines 21-26.                                                                      
                                                                                                                                
CHAIR RAMRAS objected for the purpose of discussion.                                                                            
                                                                                                                                
REPRESENTATIVE  COGHILL asked  whether  Amendment  3 would  allow                                                               
someone to be charged with a felony sooner.                                                                                     
                                                                                                                                
MS. CARPENETI said  she doesn't think it would  because there are                                                               
some  prior  convictions  that would  have  occurred  outside  of                                                               
[Section   3's]   proposed   10-year   look-back   period,   [and                                                               
eliminating Section  4's subparagraphs  (E) and (F)  would simply                                                               
result in  some fifth and subsequent  misdemeanor convictions not                                                               
being subject to the proposed  escalating mandatory minimum terms                                                               
of imprisonment].   Again,  changing the  look-back period  to 15                                                               
years  would gather  more misdemeanor  convictions that  could be                                                               
applied towards a third, and therefore felony, conviction.                                                                      
                                                                                                                                
REPRESENTATIVE COGHILL withdrew Amendment 3.                                                                                    
                                                                                                                                
5:13:43 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  COGHILL  again  questioned  whether  they  should                                                               
decrease   the  quantity   of  alcohol   that  warrants   only  a                                                               
misdemeanor  charge.   He asked  the DOL  to consider  this issue                                                               
further as the bill moves through the process.                                                                                  
                                                                                                                                
MS.  CARPENETI,   in  response  to  a   comment,  clarified  that                                                               
bootlegging amounts  of alcohol lower than  the amounts currently                                                               
outlined  in statute  still  warrants prosecution  as  a class  A                                                               
misdemeanor.                                                                                                                    
                                                                                                                                
REPRESENTATIVE COGHILL  concurred, but added, "I  also understand                                                               
how misdemeanors get treated in so many rural areas."                                                                           
                                                                                                                                
MS. CARPENETI agreed to research  the issue further.  In response                                                               
to a question, she explained  that [under Section 3], bootlegging                                                               
amounts of alcohol  lower than the amounts  currently outlined in                                                               
statute  is a  class A  misdemeanor if  it is  a first  or second                                                               
offense within 10 years.                                                                                                        
                                                                                                                                
CHAIR RAMRAS  asked what  the minimum amount  of alcohol  is that                                                               
would result in a class A misdemeanor bootlegging charge.                                                                       
                                                                                                                                
REPRESENTATIVE COGHILL offered his  understanding that very small                                                               
amounts would  be acceptable.   His concern, he relayed,  is that                                                               
the  behavior of  bootlegging only  misdemeanor-level amounts  of                                                               
alcohol   will  simply   continue  because   misdemeanors  aren't                                                               
prosecuted  as  vigorously as  felonies.    He characterized  the                                                               
maximum amounts  warranting only  a misdemeanor charge  as enough                                                               
to supply a whole village in some cases.                                                                                        
                                                                                                                                
MS. CARPENETI again agreed to research the issue further.                                                                       
                                                                                                                                
CHAIR  RAMRAS expressed  a preference  for addressing  this issue                                                               
before the bill moves to its next committee of referral.                                                                        
                                                                                                                                
REPRESENTATIVE COGHILL,  in response to comments  and a question,                                                               
offered his belief  that lowering the maximum  amounts of alcohol                                                               
that  warrant only  a  misdemeanor charge  would  result in  more                                                               
felony charges and thus more prosecutions.                                                                                      
                                                                                                                                
CHAIR RAMRAS  said he is  amenable to that concept,  and surmised                                                               
that such a change would address  the concerns of those who spoke                                                               
on  this  issue  in  the House  Community  and  Regional  Affairs                                                               
Standing Committee.   He asked what the  amounts currently listed                                                               
in statute translate to in terms of commonly referenced amounts.                                                                
                                                                                                                                
REPRESENTATIVE SAMUELS  offered his understanding that  24 liters                                                               
of wine  would be two  cases of wine  assuming that there  are 12                                                               
bottle of wine  to a case; that 10.5 liters  of distilled spirits                                                               
would  be  roughly a  case  of  distilled  spirits; and  that  12                                                               
gallons of malt beverage would  perhaps be three-fourths of a keg                                                               
but he  is not  sure how  many cans of  beer that  would be.   He                                                               
surmised that  bootleggers aren't  going to be  transporting kegs                                                               
of beer, but will instead be transporting cans of beer.                                                                         
                                                                                                                                
CHAIR RAMRAS,  after attempting  to calculate  how many  cases of                                                               
beer  12  gallons  would  result in,  asked  what  the  threshold                                                               
amounts listed in statute should be changed to.                                                                                 
                                                                                                                                
5:24:47 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE COGHILL suggested changing  the amounts to half of                                                               
what  they  currently  are.    He  surmised  that  the  issue  of                                                               
enforcement also needs to be addressed.                                                                                         
                                                                                                                                
REPRESENTATIVE  COGHILL then  made a  motion to  adopt Conceptual                                                               
Amendment  4 such  that  [throughout  proposed AS  04.16.200(e)],                                                               
10.5  liters of  distilled  spirits  be changed  to  5 liters  of                                                               
distilled spirits, 24  liters of wine be changed to  12 liters of                                                               
wine, and 12 gallons of malt  beverage be changed to 6 gallons of                                                               
malt beverage.                                                                                                                  
                                                                                                                                
CHAIR  RAMRAS  objected  for  the  purpose  of  discussion.    He                                                               
surmised  that Conceptual  Amendment 4  will address  the concern                                                               
that  misdemeanors  [are sometimes  not  prosecuted  as often  as                                                               
felonies].                                                                                                                      
                                                                                                                                
REPRESENTATIVE COGHILL concurred.                                                                                               
                                                                                                                                
CHAIR  RAMRAS removed  his objection.    After ascertaining  that                                                               
there  were no  further  objections, he  relayed that  Conceptual                                                               
Amendment 4 was adopted.                                                                                                        
                                                                                                                                
5:26:53 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SAMUELS drew  attention  to  Section 3's  10-year                                                               
look-back period  outlined on  page 3,  line 5.   He asked  why a                                                               
period of 10 years was chosen.                                                                                                  
                                                                                                                                
MS.  CARPENETI said  that  some look-back  periods,  such as  for                                                               
theft and  furnishing alcohol to  a minor,  are for 5  years, and                                                               
some, such as for DUI, are for  15 years.  So when considering HB                                                               
323,  the DOL  viewed a  10-year look-back  period as  being good                                                               
middle ground;  furthermore, there are 10-year  look-back periods                                                               
for other crimes as well.                                                                                                       
                                                                                                                                
REPRESENTATIVE GRUENBERG added that  the bill's proposed crime of                                                               
criminally negligent  burning in the  first degree has  a 10-year                                                               
look-back period.                                                                                                               
                                                                                                                                
MS. CARPENETI noted that at one  point in time there was no look-                                                               
back  period  for  DUI  but   then  the  legislature  decided  to                                                               
establish a 15-year  look-back period.  The  longer the look-back                                                               
period is, she offered, the harsher  it is because there is "more                                                               
time to gather up your misdemeanors."                                                                                           
                                                                                                                                
REPRESENTATIVE COGHILL said he objects  to changing the look-back                                                               
period because  they've already  increased the  minimum mandatory                                                               
penalties and have  decreased the amounts alcohol  that warrant a                                                               
felony charge,  and he is  not sure what ramifications  even just                                                               
those changes will have on prosecution efforts.                                                                                 
                                                                                                                                
REPRESENTATIVE    SAMUELS   asked    how   often    the   bootleg                                                               
transportation of just  one bottle of alcohol is  prosecuted.  He                                                               
said he is assuming that  only commercial bootlegging enterprises                                                               
get prosecuted.                                                                                                                 
                                                                                                                                
MS. CARPENETI said that that is her understanding as well.                                                                      
                                                                                                                                
MR. WOOLIVER added:                                                                                                             
                                                                                                                                
     When I  look back at  our prosecutions, all I  see from                                                                    
     our  numbers is  how  many times  ...  the crime  [was]                                                                    
     charged,  and, absent  looking at  the details  of each                                                                    
     individual case,  that's not something that  we gather.                                                                    
     Although  these could  be in  conjunction with  another                                                                    
     prosecution,  too  -  you [could  get]  prosecuted  for                                                                    
     assault and they  find that you've got  the alcohol, so                                                                    
     that  can be  an  add-on  - so  even  small amounts  of                                                                    
     alcohol  can become  part of  a  prosecution even  when                                                                    
     it's not the primary underlying [crime].                                                                                   
                                                                                                                                
5:30:58 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SAMUELS   made  a  motion  to   adopt  Conceptual                                                               
Amendment 5, to delete "10" on page 3, line 5, and insert "15".                                                                 
                                                                                                                                
REPRESENTATIVE COGHILL  objected.   He said he  is just  not sure                                                               
what the ramifications of such a  change, in addition to the ones                                                               
already made, will be.                                                                                                          
                                                                                                                                
REPRESENTATIVE GRUENBERG  noted that he'd once  defended a person                                                               
engaged in a commercial bootlegging operation.                                                                                  
                                                                                                                                
A roll  call vote  was taken.   Representatives  Lynn, Dahlstrom,                                                               
Samuels, and  Ramras voted  in favor  of Conceptual  Amendment 5.                                                               
Representatives   Gruenberg  and   Coghill   voted  against   it.                                                               
Therefore, Conceptual Amendment 5 was adopted by a vote of 4-2.                                                                 
                                                                                                                                
CHAIR  RAMRAS  asked  Representative   Gruenberg  whether  he  is                                                               
satisfied with  the bill's 10-year look-back  provision regarding                                                               
[criminally negligent burning in the first degree].                                                                             
                                                                                                                                
REPRESENTATIVE GRUENBERG  said he  is, but is  somewhat concerned                                                               
about [Conceptual  Amendment 1's]  requirement that there  be two                                                               
previous  convictions instead  of  just one,  because that  might                                                               
result  in  some serial  arsonists  not  getting charged  with  a                                                               
felony when they should be.                                                                                                     
                                                                                                                                
MS. CARPENETI  said she thinks  that it is a  reasonable approach                                                               
to make a  third class A misdemeanor conviction  within a 10-year                                                               
period a felony.                                                                                                                
                                                                                                                                
REPRESENTATIVE GRUENBERG indicated that  he is now satisfied with                                                               
that provision as well.                                                                                                         
                                                                                                                                
5:34:50 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE DAHLSTROM moved  to report the proposed  CS for HB                                                               
323, Version  25-GH2038\L, Luckhaupt, 4/6/08, as  amended, out of                                                               
committee  with individual  recommendations and  the accompanying                                                               
fiscal notes.  There being no objection, CSHB 323(JUD) was                                                                      
reported from the House Judiciary Standing Committee.                                                                           
                                                                                                                                
CHAIR RAMRAS [made a motion to adopt] the letter of intent dated                                                                
April 6, 2008.  There being no objection, the letter of intent                                                                  
was adopted.                                                                                                                    
                                                                                                                                
[CSHB 323(JUD) was reported from committee.]                                                                                    

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