Legislature(2007 - 2008)SENATE FINANCE 532
03/24/2008 09:00 AM Senate FINANCE
| Audio | Topic |
|---|---|
| Start | |
| SB234 | |
| SB214 | |
| SB259 | |
| SB260 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 214 | TELECONFERENCED | |
| + | SB 234 | TELECONFERENCED | |
| + | SB 259 | TELECONFERENCED | |
| + | SB 260 | TELECONFERENCED | |
| + | TELECONFERENCED |
SENATE BILL NO. 234
"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."
9:14:47 AM
Co-Chair Stedman requested an overview of the Committee
Substitute but pointed out that the Committee was without a
quorum; therefore, the Committee Substitute 25-GS2038\K
could not be adopted at this time.
ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES
SECTION-JUNEAU, CRIMINAL DIVISION, AND DEPARTMENT OF LAW,
provided a sectional analysis overview of SB 234. She began
with Sections 1 and 2 of the bill that requires (copy on
file):
a person who lends money on secondhand articles in a
municipality with over 5,000 residents to maintain
records in an electronic format.
Ms. Carpeneti explained that this would help people recover
stolen property. She informed the Committee that a statewide
reporting proposal is available for consideration. Ms.
Carpeneti reported that Section 3 provides:
that a person commits assault in the third degree, a
class C felony, if the person commits assault in the
fourth degree that is an injury assault, and has been
convicted in the past 10 years of two or more crimes
against the person that are homicide, assault (except
misdemeanor fear assault) stalking, first and second
degree sexual assault, or first or second degree sexual
abuse. Generally fourth degree assault is a class A
misdemeanor. Making a third conviction of this offense
a class C felony will help stop the often escalating
violence by persons who repeatedly harm other people.
AT EASE: 9:17:08 AM
RECONVENED: 9:17:35 AM
Co-Chair Stedman confirmed a quorum now existed in the
Committee and requested a motion to adopt the committee
substitute as a working document.
Senator Thomas moved to ADOPT Committee Substitute 25-
GS2038\K as a working document.
Co-Chair Stedman OBJECTED for discussion purposes.
Co-Chair Stedman requested that Ms Carpeneti address the
Committee Substitute changes.
9:18:48 AM
Ms. Carpeneti reviewed the changes to the Committee
Substitute\K starting with Page 6, lines 11-17. She informed
the Committee that the insertion of the new Section 13
allows for probation to be imposed on a person convicted of
a violation under Title 11 or Title 16. She explained that
it would allow cases, which can be resolved as either a
misdemeanor or a violation, to be charged with a violation
and placed on probation. Ms. Carpeneti continued that
Section 14, Page 6, line 18, clarifies the definition of
aggravated assaultive behavior for courts and attorneys for
an aggravated factoring at sentencing. Ms. Carpeneti
reported that Section 15 assists attorneys and courts in
sentencing felons with prior convictions for sexual assault
or sexual abuse of minors. The addition of 18(B) clarifies
that the aggravating factor may be litigated to the court
without a jury since it is based on a prior felony
conviction. Ms. Carpeneti remarked that Section 17, Page 7,
allows the court to order restitution in the amounts already
scheduled in law for a person who takes the listed animals
for any violation of Title 16.
9:21:58 AM
ANDREW PETERSON, DEPARTMENT OF LAW, OFFICE OF SPECIAL
PROSECUTIONS testified via teleconference and explained that
the current Section 17, AS 16.05.925 allows that the state
can process most Fish and Game offenses as either a
misdemeanor or a violation. When the offense is reduced to a
violation, the court, at this time, can not impose
restitution. Mr. Peterson revealed that the change would
make the statutory provision consistent with many other
statutes in Title 16, allowing the court impose restitution
up to the amount recommended by the Legislature. Mr.
Peterson believed this will help the state resolve cases
pretrial and give the state the option of reducing charges
from a misdemeanor to a violation, but, at the same time,
receive the same monetary benefit as if it were a
misdemeanor.
9:25:14 AM
Co-Chair Stedman WITHDREW his OBJECTION. There being NO
further OBJECTION, Committee Substitute 25-GS2038\K was
adopted as a working document.
Ms. Carpeneti reviewed Section 3 for the Committee.
9:26:00 AM
Ms. Carpeneti continued that Section 4 is a conforming
provision to clarify that a conviction occurs on the date
that the sentence is imposed. She remarked that Section 5
was added to the Senate Judiciary version in response to
problems of theft in the larger stores. People have entered
the large stores with containers or carts, filled them with
merchandize, and then walked out the door. Under current
law, security personnel and store staff can only ask about
merchandize that is hidden on the person. This would allow:
for a peace officer or owner of a commercial
establishment to detain a person for a reasonable time
if there is probable cause to believe the person has
committed or attempted to commit theft from the
establishment.
9:27:39 AM
Co-Chair Stedman reminded the Committee that the new
Committee Substitute was just obtained that morning.
9:27:53 AM
Ms. Carpeneti continued that Section 6, a conforming
amendment, addresses when a theft occurs with prior
convictions it would clarify that:
when a theft offense is enhanced one level because the
defendant has two prior thefts within five years of the
new crime, a prior conviction occurs on the date the
defendant was sentenced for the theft.
Ms. Carpeneti signified that Section 7 adds three substances
to Schedule 4 which:
adds carisprodol (commonly called Soma and listed as a
controlled substance in 17 states), zolpidem (commonly
called Ambien and listed as a Schedule IV substance in
the federal schedule), and zopiclone (commonly called
Lunesta and listed as a Schedule IV substance in the
federal schedules) to Alaska's schedules of controlled
substances. The substances would be listed in Schedule
IVA. These prescription drugs have been widely abused,
and have been found by law enforcement to be present in
drivers who are impaired.
Ms. Carpeneti explained that Section 8 clarifies:
that a court may issue a search warrant for property
located outside the state. The issue of a court's
authority out of state has arisen in white collar
investigations where the state seeks stored electronic
information. Companies that store this information are
willing to provide it if law enforcement presents a
search warrant for it. This will clarify that a court
may issue a warrant to obtain this information.
Ms. Carpeneti continued that Section 9 allows:
a judicial officer to issue a search warrant over the
telephone or other electronic means in all cases.
Alaskans rely on the telephone and other electronic
communication in the important affairs of their lives.
Law enforcement should not have to drive or fly to a
judicial officer for a search warrant when electronic
means are available for the court to fairly evaluate
the evidence.
9:29:38 AM
Ms. Carpeneti remarked that before obtaining a telephonic
search warrant under current law, the property must be
subject to being lost or destroyed. She asserted that
traveling to obtain these in person involves a waste of
resources. Sections 10-12, Sections 14-15, and Sections 18-
19 attempts to tighten up the provisions for a person who
has been charged with a felony but who have been found
incompetent to be tried. She stressed that such individuals
can be dangerous and after being housed in a hospital or
jail for a period of time are often released into the
community with no prior notice to the prosecution. This
would require a person:
charged with a felony and found incompetent to be
evaluated for commitment and treatment. If the
defendant remains incompetent after one year (for
persons charged with crimes involving forces and
presenting a substantial dangers to others), the bill
would require that civil commitment proceeding be
considered. A person found incompetent to proceed may
be released from the hospital; the professional
authorizing the release must give at least 10 days
notice to the prosecution. This notice will allow the
prosecution time to reinstate charges if appropriate
under the circumstances, and also give law enforcement
forewarning that the person will be returning to the
community.
9:32:23 AM
Senator Thomas requested clarification on the sequence when
there is the arrest.
9:33:09 AM
Ms. Carpeneti remarked that the courts start with the
presumption that the defendant is competent to be tried, but
if they are found to not understand the proceedings or be
able to help their attorney in the defense, the individual
is held for a period of time to try and reverse this
incompetence, either through medication or treatment. After
a certain period of time they are held in connection with
the criminal charge or continual holding of that person
must, proceed with civil commitment procedures.
9:34:01 AM
Senator Thomas remarked that the normal arrangement
procedure goes forward then it could be determined they are
not competent. Ms. Carpeneti remarked that there would be an
evidentiary hearing and the judge would determine if the
individual was competent to be tried.
9:34:31 AM
Ms. Carpeneti referred to Section 16 which would allow the
Governor to delegate the extradition authority to the Lt.
Governor or the head of one of the principle departments in
the executive branch. At this time, the Governor signs all
extradition requests.
Co-Chair Stedman requested an explanation on why the
Governor would want to delegate this authority.
9:35:58 AM
RICHARD SVOBODNY, DEPUTY ATTORNEY GENERAL, CRIMINAL
DIVISION, DEPARTMENT OF LAW explained that extradition is
the one of two rights granted to the states by the United
States Constitution and the governors in each state make
these decisions. Alaska is only state where the governor is
required to sign each extradition order; all other states
delegate this role. He thought the change, if adopted,
should be prepared through a statute.
9:37:29 AM
Ms. Carpeneti continued that Sections 18-19 are provisions
dealing with the discharge of an individual from an
institution. This would require the institution holding an
individual in connection with a crime, to notify the
prosecuting authority ten days in advance of the
individual's release. She explained that Sections 20-21 are
conforming repealers dealing with telephonic search warrants
and the prohibition of the state from prosecuting a crime if
the individual has already been prosecuted for that same act
by the federal government.
9:39:46 AM
Mr. Svobodny offered a recent experience when the State of
Alaska tried to reach a resolution in a criminal case
against British Petroleum for pipeline corrosion on the
North Slope. The federal government said they were going to
resolve the case and Alaska must join and after the
resolution, Alaska, under its own law, could not bring its
own case against the company.
9:40:51 AM
Senator Elton asked if the state files charges first and
then the federal government comes in, would the state
charges go away.
9:41:31 AM
Mr. Svobodny responded that the law in Alaska is not clear
on this issue, whether it is the first in the courtroom door
or the first to judgment. Ms. Carpeneti said there is no
prohibition for the federal government to file their own
charges after the state.
9:41:59 AM
Senator Thomas asked for clarification if the referred
British Petroleum case was the case where a plea agreement
was reached in Chicago this year. Mr. Svobodny replied that
it was not, the referenced case was from the spill on the
North Slope in March 2006.
9:42:39 AM
Senator Elton questioned that if these provisions are not
repealed could the state get into a situation where the
state files first, then the federal government files,
prompting the party to settle quickly with the federal
government leaving out the State of Alaska. Mr. Svobodny
agreed. Ms. Carpeneti stressed that this provision would not
allow the state to cross into a different municipalities to
prosecute the same act or smaller crimes twice.
9:44:28 AM
Ms. Carpeneti referred to Section 22 which extends the time
to return a search warrant with inventory from ten days to
thirty days from the date of issuance. She revealed that in
longer prosecutions and investigations, ten days is not long
enough. She stressed that the courts have been very
cooperative in extending the search warrants, but it is more
expeditious to change in the law. Ms. Carpeneti explained
that Section 23, involving third time assault in the fourth
degree, would be under these applicability provisions,
prospective, and those with multiple assaults on their
record, would be able to start under this bill with a clean
slate.
9:45:38 AM
Co-Chair Stedman requested a return to Section 8 which
authorizes a judge to issue search warrants outside of
Alaska. He wondered how this would work and if a judge in
another state would honor this request.
9:46:09 AM
Mr. Svobodny responded that another state does not have to
comply with the search warrant issued by a judge from the
State of Alaska, but it gives the state the ability to ask
if they will comply. There are many serious offenses, such
as, kidnapping, sexual assault, child pornography where
subpoenas are honored in other states.
9:48:16 AM
Senator Elton referred to Sections 5 and 6. He agreed that
Section 5 closes a large loophole for theft but wondered why
in Section 6, which provides the court shall consider the
date of a prior conviction; the state is prosecuting the
crime of concealment under AS 11.46.220(c) and not giving
the same power under AS 11.46.230(a) where it was amended.
9:49:12 AM
Ms. Carpeneti inquired if Senator Elton wanted to amend
Section 6. Senator Elton agreed. Ms. Carpeneti replied she
would reassess this section. Section 6 in the bill is a
conforming amendment when a conviction happens that only
applies when your third crime in five years is enhanced.
9:50:41 AM
Senator Thomas referred to Section 7 and wondered if the
drugs listed were in a numerical ordering of just
prescription drugs or the list of all drugs that would be
considered impairing. Ms. Carpeneti replied that the numbers
represented the end of the list of Schedule 4(a) of the drug
schedules.
9:51:24 AM
Senator Huggins referred to Section 16(b) where it states "a
principal department in the executive branch" and questioned
if someone from the Department of Transportation could sign
an eradication order. Ms. Carpeneti agreed that was the way
it was drafted. Senator Huggins believed this did not seem
logical. Ms. Carpeneti said it could be changed to the
Office of Public Safety or the Department of Law. Co-Chair
Stedman agreed that work was needed to revise who should
have the extradition authority.
9:52:48 AM
JAMES SCOTT, ASSISTANT DISTRICT ATTORNEY, KETCHIKAN
testified via teleconference and acknowledged that he was
available to speak on how Alaska deals with the criminal
cases found in Sections 10, 11, 14, 15 of the Committee
Substitute. He related an incompetency case in Sitka.
9:54:44 AM
LT RODNEY DIAL, LIEUTENANT, ALASKA STATE TROOPERS, KETCHIKAN
testified via teleconference in support of SB 234. He
believed some important sections dealt with search warrants,
especially when investigating computer crimes and for
troopers located near the Canadian border. The troopers
commended the sections that expand the ability of law
enforcement officers to obtain search warrants
telephonically. He acknowledged that obtaining telephonic
search warrants would not lower the standards; however it
would prove more efficient in time and money.
9:56:37 AM
Co-Chair Stedman summarized the six fiscal notes attached to
the bill. He had some concerns why the Public Defenders
Agency needed to hire three new full time positions and the
Department of Law asked for one new position.
9:57:51 AM
Mr. Svobodny addressed the Department of Law's request by
stating that felony assault cases take up more time and
money and the department anticipates more cases dealing with
child enticement and child pornography.
10:00:02 AM
Ms. Svobodny commented further on the search warrant
provisions. He affirmed that the Fourth Amendment protects
all United States citizens from unreasonable search and
seizures. He stressed that all cases for search warrants are
reviewed by a judge to ascertain if a crime has been
committed. Mr. Svobodny clarified that Section 8 shows the
court the authority exists "to issue a search warrant for a
place or property located either in the state or outside the
state." He believed that as technology keeps advancing the
courts will be looking more into electronic evidence which
is often located outside of Alaska. He explained the process
for obtaining a search warrant in Alaska and how the ability
to obtain these warrants telephonically would save time and
department resources. Mr. Svobodny remarked that Section 22
would just extend the time, from ten to thirty days, for the
execution and return of inventory from the date of issuance
of a search warrant.
10:07:06 AM
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