Legislature(2003 - 2004)
05/06/2003 03:02 PM House TRA
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 65 - IMPORTING ALCOHOL TO DRY VILLAGE CO-CHAIR MASEK announced that the next order of business would be HOUSE BILL NO. 65, "An Act relating to forfeiture of a motor vehicle, airplane, or vessel for illegal transportation of alcohol." Number 1134 REPRESENTATIVE FATE moved to adopt the proposed committee substitute (CS) [Version H, labeled 23-LS0159\H, Ford, 4/23/03] as a work draft. There being no objection, Version H was before the committee. Number 1165 REPRESENTATIVE BOB LYNN, Alaska State Legislature, sponsor of HB 65, provided the following testimony: Our Alaska villages have a right to determine if they are dry or if they are wet in so far as implication of alcoholic beverages are concerned. For those villages that have opted to be dry, bootleg implication of alcoholic beverages in the dry villages has been a continuing problem for a number of years. This situation flouts the law and denigrates the authority of the village officials. This legislation mandates, after due process of law, vehicle confiscation of vehicle used in bootleg operations. And I might say this bill has the direct interest of Governor Murkowski. You may remember during his state of the state address, way back when, to our joint session, that this was a key part of his message. It's also a part of the governor's crime-fighting package that he announced at a press conference, at which I was honored to be a part. I believe that we need to support our governor; most importantly, though, I think we need to support the laws of our villages and put teeth into those villages' laws, so there will be respect for the law, and I believe that at least some of the problems related to alcohol may be addressed. I also have a letter of support from the Alaska Association of Police Chiefs, signed by Chief Thomas Clemons, which I'll pass around to the committee. We have some members of the administration here today who will testify in support of this bill and will hopefully answer some of the more technical aspects of the bill. Number 1277 LINDA WILSON, Deputy Director, Public Defender Agency, Department of Administration, testified that the proposed CS would probably have no significant change on the fiscal note. She said that she didn't have a position one way or the other on HB 65, although she believes that it provides consideration for the due process of law for people with snow machines, vessels, or boats regarding mandatory forfeiture. She said the agency represents indigent clients charged with bootlegging offenses and that representing someone who owns an airplane would be unlikely. The number of cases that the agency would carry under this bill would probably be fairly limited, considering that clients generally don't have many assets. Ms. Wilson added that the proposed CS was an improvement upon HB 65. Number 1350 MATTHEW C. LEVEQUE, Lieutenant, Alaska State Troopers, Department of Public Safety (DPS), testified that DPS supports HB 65 and offered to answer questions. Number 1378 MATT FELIX, National Council on Alcohol and Drug Dependence, testified that the council, having been in Juneau since 1965, was one of the oldest nonprofit corporations in Juneau and was a prevention agency. He said that when he had previously been director of the state's Alcohol and Drug Abuse Division in the 1980s, he had worked with the legislature to pass local-option alternatives at the request of a number of incorporated and non- incorporated villages. He stated that the legislation allowing for villages to vote to stay dry or wet was requested by rural Alaskans. He said the desire was that this type of legislation would be enforceable and that its creation would not contribute to there being a profitable situation for bootleggers. Mr. Felix strongly urged the committee to pass HB 65 and mentioned that two major research projects on the effects of going dry in rural Alaska have been conducted and that those studies had been very positive. CO-CHAIR MASEK ascertained that there was no further public testimony and then closed public testimony. REPRESENTATIVE FATE asked whether a description of "illegal transportation" existed in regulation or in law. Number 1520 ANNE CARPENETI, Assistant Attorney General, Legal Services Section - Juneau, Criminal Division, Department of Law (DOL), testified that the division supports HB 65 and answered the previous question by suggesting that it would be interpreted as transportation and violation of the local option law or another provision in Title 4. She then said that "illegal transportation" would be transportation and violation of the local-option law, or transportation of alcohol for sale without a license, under Title 4. She commented that she was trying to imagine all of the violations under law; she said the main one would be transportation in violation of Title 4 [AS 04.11.499], the local-option law, which this bill mainly addresses. REPRESENTATIVE FATE referred to an instance he'd read about in which an airplane was carrying [a large] amount of alcohol to a dry area in rural Alaska. There was an attempt to forfeit the aircraft due to the claim of bootlegging, and this coincided with the claim that the alcohol was the man's personal stock of liquor. Representative Fate asked, "How is illegal transportation termed, outside of going to an expensive litigation process?" MS. CARPENETI replied that in this particular case, a factual analysis would be necessary to determine where he was going, what the local options were in that particular community, and if he was prosecuted for violation of the local options - which would require proof beyond a reasonable doubt of having violated the local-option law - and that then the state could ask the court for forfeiture. REPRESENTATIVE KOOKESH asked for clarification of the phrase "where he was going," explaining that if one was in Fairbanks, planning to go to a dry region, "where he was going doesn't matter until he gets there." MS. CARPENETI responded, "If he was on his way, and stopped in a dry village that had a local option, ... if he were parked in Fairbanks, I don't think there would be a violation." She thanked Representative Kookesh for suggesting that clarification. REPRESENTATIVE OGG asked what would happen in situations in which commercial planes flying to both wet and dry areas might stop in those areas and stay overnight, resulting in there being something on the plane that would violate the local dry law. MS. CARPENETI replied that in a circumstance in which a commercial airplane was traveling from place to place, carrying cargo, nothing would happen to the person in charge of the aircraft. She said that depending on the local option, the person sending it would be in violation of the law, assuming that it got to a village that had adopted a local option against the sale or possession, but it wouldn't be a violation of the law if it was contained in the airplane as unloaded cargo. REPRESENTATIVE OGG asked about a passenger on that plane who would take luggage into the area. MS. CARPENETI said this would depend upon the facts; to prosecute a person for violation of a local option, there would have to be some culpable mental state of the person. If something happened just "by accident" because of weather considerations, she didn't think prosecution would be brought. REPRESENTATIVE OGG asked who would be called upon to prove the [culpable] mental state. MS. CARPENETI answered that the state would have to first prove that violation of the law was beyond a reasonable doubt and then, in terms of the forfeiture, it would be by preponderance of the evidence. Ms. Carpeneti said she should double check. REPRESENTATIVE OGG said that in some instances, the party in question would be the owner. Number 1760 MS. CARPENETI asked if he was referring to subsections (e) and (f), and if so, explained that those subsections modify the remission provisions in the forfeiture law for violations of Title 4, and that a remission is when a co-owner of a car or vehicle, who hasn't been involved in the illegal transportation of alcohol, goes to the court and says, "Judge, I didn't have anything to do with this violation. It's my car too. I want it back so I can use it. It's not fair for me to lose my interest in this car." She indicated this toughening-up of the remission provisions allows forfeiture in cases when a co-owner may know that his/her co-owner is violating the law and knows that the vehicle is being used for illegal acts and doesn't stop it. Under the forfeiture provision, that person would have to go to the judge and say, "Not only did I not know about this particular violation, but I had no reason to know about it and I had no reason to know that this person had been bootlegging before." Number 1808 CO-CHAIR HOLM referred to forfeiture, saying that he had a problem with the word "reputation" [in subsections (e) and (f)] and asked, "At what point in time does the forfeiture occur, and then at what point in time does the remission of that forfeiture occur?" He said that when items are being held for court purposes, many times those items are held for years as part of the court's process and need for evidence, before those items are returned. He expressed his concern for "evidentiary holding," whether it was a car or a snow machine, and asked, "If we're going to allow somebody to have the remission of that forfeiture, what kind of timing do we have here? Do we have whatever the court deems is a reasonable time, or is there some mechanism whereby, if it's shown that a person doesn't know, then it's an immediate remission of that forfeiture?" MS. CARPENETI responded that HB 65 doesn't change the provisions of the law set in statute regarding the procedure for forfeiture of a car, boat, or airplane. She explained that the vessel would be seized and statute requires that notice be given to owners or others who have potential interest in that piece of property, including a bank with a loan on it, or the spouse of the person who has been charged or convicted. At that point, a hearing is set up on the forfeiture and the person who claims an interest has a chance to give his/her side of the story. She said that banks or spouses may not have any reason to know of certain situations. CO-CHAIR HOLM asked again about the timeframes involved. MS. CARPENETI replied that it's all set out in AS 04.16.220(e). REPRESENTATIVE FATE said, "Once again, there's no aviation provisions in the event that local option areas overlap." He said that in the worst-case scenario, if there was a local option that was dry and a local option that was wet, the most restrictive would dominate, meaning that in the overlapping areas, the areas wanting to be wet would then have to go dry. He asked if there was any mediation involved so that the people who voted for that area to be wet would not have that right be denied. MS. CARPENETI said this was an interesting question and that the reason this was proposed was because when local options are overlapping, statutes currently provide that the boundaries go back to the actual village. She said the division just learned this because somebody was violating both local options, and the law indicates that with overlapping options, the five-mile boundary no longer applies and "you go back to the actual village." She said the division was trying to address that situation, and when this amendment was originally suggested, the suggestion was for the least restrictive option to apply. She stated that the sponsor preferred the application of the more restrictive option. REPRESENTATIVE FATE stated that he had a problem with statutes' taking away something that people had voted into existence unless it was at least mediated. He said he also had a problem with the word "reputation" because a reputation is sometimes earned but just as often is not, and that the use of the word in law may undeservedly "violate [an individual's] record". Number 2127 MS. CARPENETI responded that the bill does provide for some sort of forum to arbitrate the boundaries. She said that in current law, the Alcoholic Beverage Control Board ("ABC Board") has the authority to alter boundaries under some circumstances and that this allows for the ABC Board to adjust the boundaries for these overlapping conditions. She said that "reputation" applies to remission, not to whether a person is guilty of violating the title. She said she believed the purpose was "to not allow somebody who's a co-owner of a vehicle to close their eyes and say, 'Gee whiz, I want my car back because I didn't know that he was going to go out that night and bootleg all this alcohol in violation of the local option.'" MS. CARPENETI continued that it only refers to a co-owner getting his/her interest back, and that it makes it more difficult for that owner to get his/her interest back regarding a vehicle that has been used to violate the local option, because the co-owner has to show that he/she was truly innocent by indicating that it was unknown that anything was going to happen on an actual occasion and that there was no reason to know that this other person had violated the law in the past or was a known bootlegger. REPRESENTATIVE FATE asked if the ABC Board's authority was exercised after the fact and not before. MS. CARPENETI asked, "After the fact of what?" REPRESENTATIVE FATE explained that if this law were to pass, the gray area, the overlapping options, would precipitate the ABC Board's redoing of the boundaries. The violation would have already taken place because of the most restrictive option, before the ABC Board reforms the boundaries. He said that if every time there's an overlap, the ABC Board redoes the boundary so that the problem is avoided, then Ms. Carpeneti would be correct. But ordinarily, the overlapping boundaries would precipitate a violation because of the most restrictive option, and at that point, the ABC Board redoes the boundary - so it is after the fact of a violation that has already occurred. MS. CARPENETI said that in this instance, this had not been the DOL's suggestion, so she directed concern for "most restrictive" rather than "least restrictive" to the sponsor of HB 65. Number 2252 CO-CHAIR MASEK indicated that due to remaining questions on HB 65, her recommendation was to hold the bill over. REPRESENTATIVE LYNN said valid concerns had been brought up and he would continue to work with the DOL to resolve those issues. REPRESENTATIVE KOOKESH suggested that the sponsor reconsider the use of the word "may" on page 3, line 24, and the word "village" on line 27. He referred to a dry community in his district with a population of 2,500 people, saying that the interpretation of a village should be something different than having a population of 1,000 people. REPRESENTATIVE LYNN asked where a definition of "village" could be found in statute. MS. CARPENETI said she could access that information. REPRESENTATIVE OGG commented that the law presently offers the option, but with [HB 65] forfeiture would become mandatory. He wondered whether having the option had decreased the amount of bootlegging and if changing to mandatory would likely effect a decrease. TAPE 03-20, SIDE B Number 2375 REPRESENTATIVE LYNN said he didn't know the answer, but assumed that if the village had voted to go dry, there must have been some amount of reduction involved. He said he assumed that having a law by which a vehicle may be confiscated would deter even more people. He commented that there are tremendous alcohol problems in the villages and this includes some of the military population who reside in the villages. REPRESENTATIVE OGG said that if a village goes dry, there is a definite impact and "that's when bootlegging starts to become something." He asked whether having the more permissive option of confiscating a vehicle had caused a decrease in bootlegging. REPRESENTATIVE LYNN responded, "I don't know," but said that in cases like this, it's better to tighten the law because of the problems "out there." REPRESENTATIVE OGG questioned the value if it doesn't act as a deterrent. REPRESENTATIVE LYNN replied that when there are laws against anything, there is a consideration of two points, the punitive action or the action to deter. He suggested that this argument could be applied to the death penalty as well as being applied, to a lesser degree, in this case. CO-CHAIR MASEK announced that HB 65 would be held over in order to address questions that had been brought up by members.
| Document Name | Date/Time | Subjects |
|---|