Legislature(2003 - 2004)
04/16/2004 09:09 AM FIN
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
CS FOR SENATE BILL NO. 170(JUD) "An Act relating to murder in the second degree, the justification of defense of self or others, immunity from prosecution, sentencing, probation, discretionary parole, and the right to representation in certain criminal proceedings; relating to violation of a custodian's duty; relating to sexual abuse of a minor; relating to release of information concerning certain cases involving a minor; relating to local options regarding alcoholic beverages, the offense of furnishing or delivery of alcoholic beverages to a person under 21 years of age, and forfeiture of property used in, and money or other items of value used in financial transactions derived from, violation of certain laws relating to alcoholic beverages; relating to assault by means of a dangerous instrument; relating to operating or driving a motor vehicle, aircraft, or watercraft while under the influence of an alcoholic beverage, inhalant, or controlled substance, to the refusal to submit to a chemical test, and to the presumptions concerning the chemical analysis of breath or blood; and providing for an effective date." This was the first hearing for this bill in the Senate Finance Committee. SUSAN PARKS, Deputy Attorney General, Criminal Division, Department of Law, noted this is a comprehensive bill that covers many areas of criminal law. She stated it addresses many "problems" that law enforcement and public safety officers are faced with. She noted this committee substitute is significantly different than the original legislation, as a result of concerns raised during hearings in the Senate Judiciary Committee. She reported that extensive public testimony was taken on the committee substitute in the aforementioned committee. She remarked upon the efforts of the Senate Judiciary Committee to ensure this legislation balances public safety with the rights of defendants. Ms. Parks stated that Sections 1 through 11 address "the problem of alcohol", specifically bootlegging laws. She explained the goal of these provisions it to provide communities with more options and greater ability to enforce their local liquor option laws. She noted Sections 1 through 4 would allow local communities to adopt a lower threshold standard for possession of alcohol within the community. She informed that currently State statue contains one standard, and although some communities have adopted lower limits, the State does not have the ability to enforce the lower limits. The provisions in these bill sections she said would grant that enforcement ability. Senator Bunde asked whether local communities would retain the option to adopt local liquor option laws but would not be required to do so. Ms. Parks affirmed. She continued that these provisions would eliminate a loophole, which she explained occurs as a result of closed communities adoption of conflicting rules, and from overlapping boundaries. She stated that bootleggers have been able to take advantage of these discrepancies. Ms. Parks noted bootlegging statutes currently do not allow for the confiscation of property and pointed out this legislation would match provisions for seizure of property used in drug crimes. Ms. Parks also noted this legislation would create new statutes in Sections 14 and 17. She described Section 14, to correct an omission in the current statutes governing assaults. She stated this provision would create a new Class C felony for crimes in which criminal negligence causes serious physical injury by means of a dangerous instrument. She gave as the most common example, instances in which the driver of a vehicle was not found to be intoxicated, but who nonetheless inflicted serious injury due to criminal negligence. Ms. Parks stated that Section 17 relates to violation of third- party custodian duties. She informed that currently a judge has the option of releasing a defendant on bail into the custody of a third party who promises to report any violations the defendant may commit. Unfortunately, she reported many of the third party custodians fail to fulfill these duties and the State only has the option of pursuing criminal contempt charges. This legislation, she said would establish a and b misdemeanor crimes depending on whether the person the third party custodian was supervising was charged with a felony or a misdemeanor. Ms. Parks continued that this legislation would also amend some existing statutes to "make them stronger". Section 13, she said would modify the felony murder statutes, noting that currently all participants in a serious felony crime, such as a robbery, in which someone other than the participant is killed, is held responsible for that death. She stated this legislation proposes that if the death of a participant is caused by someone other than a participant, such as a store clerk shooting one of the robbers, all participants are held accountable for the death. She remarked this is because the conduct of the participants in the robbery or other crime prompted the death. Ms. Parks informed that Sections 15 and 16 would amend current statues pertaining to the crime of sexual abuse of a minor, noting that currently statutes make no distinction between penetration and touching in offenses perpetrated on a minor by juveniles 15 years of age or younger. The crimes are all classified as misdemeanors, she said, despite the disproportion of the harm caused by penetration. She remarked that this legislation would classify penetration of victims three or more years of age younger than the juvenile offender who is 15 years of age or younger, as a C felony crime. She qualified the case would remain in the juvenile judicial system, but that the higher classification would be a recognition of the seriousness of the conduct. Ms. Parks indicated that Sections 26 and 27 would amend the statutes relating to felony driving under the influence of drugs or alcohol. Ms. Parks informed that currently provisions allow the Department of Health and Social Services to release identifying information on juvenile offenders to schools and law enforcement, but not to the general public. Section 32, she stated would allow the release of this information in certain circumstances for public safety reasons, although in such a manner as to protect confidentiality, Senator Dyson asked if this would allow child care providers who employ teenagers to obtain this information. Ms. Parks replied that is the situation that prompted this change. Ms. Parks then reminded that current statutes are intended for judges to impose consecutive sentencing for each victim and crime committed by an offender; however, she stated adequate sentencing is not occurring. She remarked that Sections 22, 23, 30 and 31 would mandate the legislative intent of the current statute. Ms. Parks then told the Committee this legislation would establish procedures for instances in which a witness in a court proceeding is granted immunity in exchange for testimony but refuses to testify citing protection under the Fifth Amendment to the US Constitution. Ms. Parks next told of situations of gang or drug-related violence whereby all parties claim self defense when an innocent party is injured. She remarked that this bill would prohibit a self-defense plea for anyone who brings a gun to drug or gang activities. Ms. Parks addressed the "big gulp" defense claim sometimes made in driving under the influence arrests that the alcohol was consumed shortly before the driver took the wheel and that the driver would have reached his or her destination before the alcohol entered the blood stream had the driver not been stopped. CINDY CASHEN, victim of drunk driving, and Executive Director, Mothers Against Drunk Driving (MADD), Juneau Chapter, read testimony into the record as follows. MADD supports the committee substitute for House Bill 244. We support the right for communities to adopt lower limits of alcohol possession and importation in order to improve the health and safety of their people. Empowering communities to take part in dealing with alcohol abuse and the breaking of the laws is something that MADD supports. We support stricter drunk driving sanction for high-risk drivers - these are drunk drivers who have repeatedly chosen to endanger themselves and everyone else who shares the road system - must be held accountable for their crimes. About one- third of all drivers arrested or convicted of driving under the influence are repeat offenders. These drivers are 40 percent more likely to be involved in a fatal crash than those without prior DUIs. We support increased penalties for those who chose to drink and drive, which results in the serious injury of an innocent victim or victims. People who drink and drive - referring to the "big gulp" theory - they're not doctors. They're not experts. They aren't able to determine if they're sober before arriving at their destination. If a person chooses to drink and drive, they've broken the law; they've committed a crime and they should be held accountable for it. It's that simple. Ms. Cashen then relayed her story in which the drunk driver was to receive a sentence for each life taken and a lesser sentence for the serious injury caused to another. She stated that the victims' families agreed to this, but the judge "felt sorry" for the offender and imposed a lesser sentence, combining the crimes. Ms. Cashen also stressed the need to address the third party custodian statutes. She told of a drunk driving death that occurred in Hoonah and her assistance to the mother of the deceased boy. SFC 04 # 84, Side B 09:56 AM Ms. Cashen continued that the offender was released to a third party custodian pending trial and subsequently drank and even partied in the house of the victim, and yet no action could be taken against the third party custodian. She predicted this legislation would provide consequences for third party custodians who fail to report violations committed by their charge. Senator Dyson thanked the witness for turning a tragedy into something useful to others. Senator Hoffman asked the number of MAAD chapters in Alaska. Ms. Cashen listed Anchorage, Fairbanks and Juneau with established chapters, and the June 2004 opening of a chapter in Mat-Su, and the formation of another in Petersburg. Ms. Cashen commented that April 19 would be the four-year anniversary of her father's death and "yet nothing has been done." Senator Hoffman referenced Ms. Park's testimony that several communities requested lower alcohol possession limits and he asked which communities made this request. He also asked the impetus of the proposed changes to the alcohol possession statutes made to the bill in the Senate Judiciary Committee. He noted the committee substitute received only one "do pass" recommendation from that Committee. Ms. Parks replied that the community of St. Mary's, plus two others, has adopted rules providing lower levels of alcohol possession. AL STORY, Lieutenant, Alaska State Troopers, Department of Public Safety, testified via teleconference from an offnet location that currently troopers are unable to enforce the limited alcohol possession rules because of current statutory language. Ms. Parks informed the matter of the alcohol possession provisions was discussed extensively in the Senate Judiciary Committee. Senator Hoffman pointed out these provisions were not included in the original version of the bill and asked why it was included in the Senate Judiciary committee substitute. Ms. Parks replied that over the interim, it became a priority of Governor Murkowski to keep alcohol out of "dry" communities. Senator Hoffman wanted to know how this provision would keep alcohol out of communities. He reminded that he sponsored the original legislation to provide for the establishment of dry communities and questioned how the proposed provision would be effective. Ms. Parks responded that it would provide the State the ability to better enforce community decisions. She admitted there is no "silver bullet" for those who want to commit crimes. Senator Hoffman noted the additional penalties for offenses involving alcohol. Ms. Parks explained the proposal to increase to a C felony, the penalty for supplying alcohol to a minor in an area closed to alcohol. She noted mandatory forfeiture of seized items if the offense involved "egregious" circumstances. Senator Hoffman asked if conviction of a C felony results in forfeiture of permanent fund dividends. Ms. Parks answered yes. Senator Dyson appreciated the efforts made in drafting this legislation and commented that the bill must also pass the House of Representatives and that other opportunities would be available to address concerns. Senator Dyson offered a motion to report the bill from Committee with individual recommendations and an accompanying and a new fiscal note. There was no objection and CS SB 170 (JUD) MOVED from Committee with fiscal note #3 for $3,400 from the Department of Corrections, and a new fiscal note for $90,800 from the Department of Administration dated 4/8/04.