Legislature(2007 - 2008)BELTZ 211
03/19/2007 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB36 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 48 | TELECONFERENCED | |
| += | SB 36 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 36-SENTENCING FOR ALCOHOL-RELATED CRIMES
1:34:40 PM
CHAIR FRENCH announced the consideration of CSSB 36(STA). He
recapped that the committee heard an overview at the last
meeting and considered some of the provisions.
SENATOR THERRIAULT, Sponsor of SB 36, said his staff informed
him of the discussion that took place and he understands that
the Department of Law (DOL) has proposed language that is
relevant to that discussion. Page 3, subparagraph (B) contains
language about protecting the public and basically the amendment
proposes to insert similar language in subparagraph (A). Barring
opposition from the committee he would support the amendment
because it appears to make sense.
CHAIR FRENCH said the discussion was about policy and whether
language about protecting the public should be included in both
subsections (A) and (B). Currently the language is only in
subsection (B). The question was whether the additional language
would make the bill better or create a hurdle that some courts
would have difficulty overcoming. He noted the proposed
amendment and highlighted the rationale for including the
language. It reads as following:
In CSSB 36 under proposed AS 12.55.015(a)(13)(B),
before a court can order the defendant to refrain from
drinking for up to a lifetime, if the person has been
convicted of drunk driving for a third time or the
drunk driving resulted in a death or serious physical
injury to another person, the court must find that
imposing such a sentence is necessary to protect the
public.
Under the proposed AS 12.55.015(a)(13)(A) the court
may also order a person convicted of a first offense
felony under AS 11.41 if the offense was substantially
influenced by alcohol, to refrain from drinking
alcohol for up to a lifetime. This offense may
include, for example, assault in the third degree, a
class C felony, which can consist of causing only
physical injury by means of a dangerous instrument
such as a car. There is no requirement that the court
find that imposing such a sentence is necessary to
protect the public under AS 12.55.015(a)(13)(A). This
doesn't make sense.
Ordering a person, including a person who may be
addicted to alcohol, to refrain from drinking as
either part of a sentence or as a condition of
probation or parole for up to the rest of his or her
life is not an inconsequential part of a sentence.
This is particularly true if the person has been
convicted of misdemeanor drunk driving as is possible
under proposed AS 12.55.015(a)(13)(B), which has a
maximum term of incarceration of one year, or of
assault in the third degree under the proposed AS
12.55.015(a)(13)(A), which has a maximum term of
incarceration of five years. Litigation over whether
such a sentence or condition would involve a violation
of due process of law or cruel and unusual punishment
may be avoided if, under both scenarios, the court is
required to find that the prohibition of drinking is
necessary to protect the public.
1:37:19 PM
SENATOR McGUIRE joined the meeting.
CHAIR FRENCH motioned to adopt Amendment 1.
AMENDMENT 1
Page 3, line 17:
Following "alcohol":
Insert:
"and that, based on the defendant's history,
there is reason to believe that imposing a requirement
that the defendant refrain from consuming alcohol is
necessary to protect the public"
SENATOR WIELECHOWSKI objected to the provision reasoning that
there shouldn't be a requirement that a judge find that it is
necessary to protect the public. Under many circumstances that
finding would be challengeable, he stated. The entire section is
at a judge's discretion and if someone commits a heinous crime
while under the influence of alcohol, the judge should have the
option to impose a ban on alcohol as part of the punishment, he
stated.
1:40:00 PM
SENATOR THERRIAULT revealed that he would like to make all the
statutes as anti-alcohol as possible. The idea behind the bill
is to deal with those people who have shown a pattern of losing
control and becoming a danger to themselves and others when they
consume alcohol. If adding the language avoids problems at due
process then he supports the amendment.
SENATOR WIELECHOWSKI argued that it will likely lead to more
litigation and appeals. Instead of giving a judge carte blanche
to make a finding on what is best, this will require the judge
to go through the analysis that it is necessary to protect the
public. He maintained his objection.
1:42:04 PM
CHAIR FRENCH asked Mr. Svobodny to comment on the debate.
RICK SVOBODNY, Deputy Attorney General, Criminal Division,
Department of Law, said there will be litigation either way and
he doesn't know which would result in more.
SENATOR WIELECHOWSKI asked if adding the language will require a
judge to make a finding that this is necessary to protect the
public.
MR. SOVOBDNY said yes and that finding would be subject to
appeal by a defendant.
CHAIR FRENCH asked if the amendment was prepared by an assistant
district attorney.
MR. SOVOBDNY said it was prepared by Ms. Carpeneti who works for
the criminal division. Commenting on the rationale he added that
it is possible to commit assault in the third degree by causing
no injury. That is, placing a person in fear of imminent serious
physical injury even though they don't sustain any injury.
A roll call vote was taken. The motion to adopt Amendment 1
prevailed 4 to 1 with Senator Therriault, Senator Huggins,
Senator McGuire and Chair French voting in favor and Senator
Wielechowski voting against.
1:45:38 PM
CHAIR FRENCH asked if there was more discussion on the bill.
SENATOR THERRIAULT summarized the original idea, which was to
provide a tool to deal with people who have a proven history of
becoming a danger to themselves and others when they consume
alcohol. The possibility of a lifetime alcohol ban could be used
to get a person's attention and get them to agree to seek
treatment. This is one more tool for prosecutors and the court
system to use to help control the serious alcohol problems in
the state.
CHAIR FRENCH referenced the letter of intent that came from the
Senate State Affairs Standing Committee, which reads as follows:
The legislature recognizes that laws alone may not
achieve the same level of behavioral correction that
counseling and treatment are designed to provide. It
is therefore the intent of the legislature that the
courts, when addressing those who are first time
violators of AS 12.55.015(a)(13) in this act, use when
available, Therapeutic Court in lieu of a standard
sentencing.
If openings in the Therapeutic Court are not
available, the legislature intends that standard
sentencing for a class A misdemeanor be carried out as
set out in AS 11.56.768(b)(d) of this Act.
1:48:32 PM
CHAIR FRENCH found no further questions or discussion and asked
the will of the committee.
SENATOR THERRIAULT motioned to report CSSB 36(JUD), the attached
fiscal note(s) and the Senate State Affairs Standing Committee
Letter of Intent from committee with individual recommendations.
There being no objection, it was so ordered.
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