Legislature(2003 - 2004)

04/16/2004 09:09 AM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                                                            
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                                                            
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                                                            
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                                                            
Ms.  Parks  replied that  the  community  of  St. Mary's,  plus  two                                                            
others,  has  adopted  rules  providing   lower  levels  of  alcohol                                                            
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                                                            
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.                                                                                                    

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