Legislature(2005 - 2006)BUTROVICH 205
03/01/2005 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| SB87 | |
| Start | |
| SB87 | |
| SB95 | |
| SB104 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 87 | TELECONFERENCED | |
| + | SB 95 | TELECONFERENCED | |
| + | SB 104 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 95-COLLECTION OF DNA/USE OF FORCE
9:00:48 AM
SENATOR CON BUNDE introduced SB 95. Current law allows people
who are incarcerated to refuse to provide a deoxyribonucleic
acid (DNA) sample. He offered a committee substitute (CS).
MS. LAUREN WICKERSHAM, staff to Senator Bunde, advised the CS
was in front of committee members.
SENATOR GENE THERRIAULT made a motion to use version \F as the
working document. With no opposition, the motion carried.
SENATOR BUNDE referenced Section 2, subsection (p) and advised
it addressed immunity for a person using reasonable force to
collect DNA.
9:03:14 AM
SENATOR GUESS asked Senator Bunde why the language was changed
from reasonable force to "for actions arising out of DNA
collection."
SENATOR BUNDE replied it was due to advice from Dean Guaneli and
the Department Of Law (DOL). He deferred Senator Guess's
question to the DOL.
SENATOR GUESS asked Senator Bunde to expand on the reference to
misdemeanors in the fiscal notes.
SENATOR BUNDE answered crimes against a person can also fall
within the misdemeanor statute of assault.
SENATOR THERRIAULT said the new subsection (p) does not contain
the word reasonable but it appears in subsection (o) so the
verbiage appears more succinct.
CHAIR SEEKINS commented as long as they use reasonable force
they are indemnified.
9:06:25 AM
SENATOR BUNDE offered "reasonable force" is well established in
the law.
MS. ANNE CARPENETI, criminal division, Department Of Law (DOL),
testified that Section 2 includes municipal prosecutions for
crimes against a person, and addresses problems with people who
refuse to provide a DNA sample. DNA samples could solve crimes.
The procedure is a Q-tip swab inside the mouth, which doesn't
take much force. DOL experts in civil liability suggested the
language change. SB 95 addresses people who have already been
convicted.
9:10:16 AM
SENATOR THERRIAULT asked Ms. Carpeneti if the rewording in
Section 2 was merely a structural change.
MS. CARPENETI answered instead of saying a person has immunity;
Section 2 says a person cannot bring a cause of action for
reasonable actions taken to obtain a DNA sample.
SENATOR THERRIAULT asked how it was different.
MS. CARPENETI answered the purpose is to stop a frivolous
lawsuit in the early stages, but DOL didn't want to immunize
anyone who was using unreasonable force.
9:12:15 AM
SENATOR THERRIAULT asked Ms. Carpeneti if she views the new
suggested language as more broad.
MS. CARPENETI answered yes in the sense of civil liability. The
purpose of Section 2 is due to tort liability.
SENATOR THERRIAULT asked if the criminal part was separated.
MS. CARPENETI answered yes. Section 2 is less broad in the
criminal sense but more broad in the civil sense.
SENATOR THERRIAULT commented he wants to understand why Ms.
Carpeneti views the language as broader.
MS. CARPENETI said that it attaches at a different period of
litigation. Protection kicks in earlier.
SENATOR THERRIAULT asked if that was the only change, or whether
Section 2 gives broader protection under civil liability. He
commented that it seems like it is all attached to "reasonable"
so the standard is the same.
MS. CARPENETI answered yes.
9:14:00 AM
SENATOR FRENCH said most people would cooperate if advised it's
a class C felony to refuse to give a DNA sample.
CHAIR SEEKINS said the swab would be taken during booking.
MS. CARPENETI advised most DNA swabs would be taken at
conviction, not during booking.
SENATOR FRENCH asked whether maximum-security inmates often
refuse to cooperate.
MS. CARPENETI answered yes.
SENATOR FRENCH commented a claim could be filed in the case of
an injury. The judge will have to decide.
MS. CARPENETI replied as currently drafted, yes.
SENATOR FRENCH clarified a claim wouldn't be automatically
rejected due to SB 95, but that a hearing would be held with a
motion to dismiss. Then either a judge or jury would decide. He
asked Ms. Carpeneti if that is how she sees the process.
MS. CARPENETI agreed.
SENATOR FRENCH commented that corrections officers work in
stressful situations and may not always get along well with
life-long inmates. A Q-tip swab could be used to hurt someone.
9:16:41 AM
SENATOR FRENCH referred to subsection (o) and the use of
reasonable force compared with non-deadly force. He asked Ms.
Carpeneti to explain the difference between the terms.
MS. CARPENETI explained people are comfortable with the language
of reasonable force. The concept of reasonable force is in the
constitution and throughout Alaska state law. Non-deadly force
has a broad connotation.
SENATOR FRENCH asked if non-deadly force allows more force than
reasonable force.
MS. CARPENETI said that is the way she interprets it. The person
receiving the swab sets the parameters. It depends on the
circumstances but the purpose is to use as little force as
necessary.
MS. PORTIA PARKER, Department of Corrections (DOC), explained
reasonable force. Force elevates through the response of a
person. The DOC has to apply different levels of force every day
depending on the situation. Officers are trained to use the
least amount of force possible to accomplish the lawful end. The
definition is ambiguous. It is the amount of lawful force that
is used to reach a lawful end. The DOC doesn't anticipate having
to use force to take a DNA sample.
9:21:06 AM
CHAIR SEEKINS asked Ms. Parker how hard it is to get a DNA
sample.
MS. PARKER replied that it generally takes a few officers to
hold the prisoner and one to take the swab.
CHAIR SEEKINS commented unless severe injury occurred, the
person could not bring a nuisance lawsuit.
MS. PARKER agreed.
SENATOR THERRIAULT commented reasonable force is considered on a
sliding scale.
MS. PARKER said the least amount of force is used but it depends
on the response of the offender.
9:22:25 AM
CHAIR SEEKINS asked Ms. Parker whether the DOC uses force in its
daily activities.
MS. PARKER answered yes.
SENATOR THERRIAULT asked Ms. Parker to describe the swab.
MS. PARKER replied the Department of Public Safety (DPS)
provides DNA kits. It is a small oral swab rubbed along the
cheek. It then goes into a special container, which is sent to
the crime lab.
9:23:48 AM
SENATOR HUGGINS commented the correctional system is a
controlled environment. He recognized that it was part of a
normal daily process for the DOC to maintain control, which, if
SB 95 passes, will be another part of the job.
MS. PARKER agreed. The DOC recently went to Arizona to help
collect 45 DNA samples and experienced no refusals.
MICHAEL MACLEOD, executive director, Alaska Civil Liberties
Union (ACLU) opposed SB 95. The ACLU opposes most all systems
where the government is collecting identifiable information on
individual citizens. He is concerned with privacy rights,
recognizing that offenders forego many of their rights. He
disputed an earlier reference to fingerprinting saying that DNA
collection is invasive. He questioned any direct link with the
collection of DNA to resolving crimes. He questioned probable
cause to suspect a link to other crimes. He has concerns about
due process and the need to use an independent decision maker to
resolve whether or not a DNA sample should be taken from an
individual.
9:28:35 AM
MR. MACLEOD asked whether the information could constitutionally
be used in any future proceedings if forcibly taken without
probable cause.
SENATOR THERRIAULT asked Mr. Macleod whether that ground wasn't
already covered by the use of fingerprinting for identification
purposes.
MR. MACLEOD agreed there are two identification systems with
distinctions between the methods. The invasiveness of swabbing
is greater than taking fingerprints.
9:30:28 AM
CHAIR SEEKINS asked Ms. Carpeneti whether the question of what
offenses would apply is already set into law.
MS. CARPENETI replied yes. SB 95 refers only to those people
convicted of crimes.
CHAIR SEEKINS asked whether SB 95 changes current law regarding
who is tasked with taking the DNA sample.
MS. CARPENETI said no. The judge, at the time of conviction,
orders the person to give a DNA sample. It is not a decision
made by a correctional officer, it is pursuant to a court order.
9:31:37 AM
SENATOR HUGGINS asked Mr. Macleod whether he has any court cases
pending on this issue.
MR. MACLEOD answered no.
SENATOR BUNDE commented the DNA database has generated 30 hits
and has aided in 38 different investigations. That makes Alaska
one of the most successful per capita in the nation.
MS. CARPENETI commented the connection to DNA and solving crimes
is significant.
9:33:29 AM
CHAIR SEEKINS asked Ms. Carpeneti whether taking a swab from
someone's mouth is considered to be extremely invasive.
MS. CARPENETI replied no. Blood draws are considered more
invasive.
CHAIR SEEKINS asked Ms. Parker whether the DOC performs any
other normal procedures that are considered more invasive than
taking a DNA sample.
MS. PARKER answered yes. The DOC does not view taking a DNA
sample to be invasive. The booking procedure and medical
examinations are more invasive. Taking a DNA sample is a
forensic collection of evidence.
9:35:10 AM
CHAIR SEEKINS asked which booking procedures are invasive.
MS. PARKER replied inmates are required to submit their clothing
and possessions. They are given a full medical and sometimes
mental health exam. They are watched very closely initially.
CHAIR SEEKINS asked Ms. Parker if she was aware of any other
jurisdictions that have ruled DNA sampling to be
unconstitutional.
MS. PARKER answered no.
SENATOR HUGGINS commented DNA testing could be used to accuse or
to clear someone of a crime. He observed the accuracy of DNA
testing favors the innocent person.
MS. PARKER agreed.
MS. CARPENETI commented she does not consider a Q-tip swab to be
invasive.
9:37:28 AM
CHAIR SEEKINS asked Ms. Carpeneti if she knew of any
jurisdiction that has found DNA sampling to be in violation of
fundamental rights.
MS. CARPENETTI answered no.
MR. TONY NEWMAN, program officer, Division of Juvenile Justice
testified probation officers have never had to use force while
collecting DNA in the juvenile system.
SENATOR GUESS asked Senator Bunde why SB 95 has no effective
date.
9:39:59 AM
SENATOR BUNDE answered inmates generally serve a long-term
incarceration. He didn't see a need for an immediate law.
CHAIR SEEKINS asked Senator Bunde if he wanted to add an
amendment for an effective date.
SENATOR BUNDE said he was not sure it was necessary, but he
recognized it could speed up an investigation.
SENATOR GUESS made a motion to amend SB 95 to include an
immediate effective date. Hearing no objections, the motion
carried.
9:43:01 AM
SENATOR THERRIAULT moved CSSB 95(JUD) from committee with
individual recommendations and accompanying fiscal notes. With
no objection, the motion carried.
9:43:25 AM
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