Legislature(2013 - 2014)BELTZ 105 (TSBldg)

02/03/2014 01:30 PM Senate JUDICIARY


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01:35:04 PM Start
01:35:10 PM SB64
02:37:43 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= SB 64 OMNIBUS CRIME/CORRECTIONS BILL TELECONFERENCED
Heard & Held
-- Public Testimony --
+ Bills Previously Heard/Scheduled TELECONFERENCED
             SB  64-OMNIBUS CRIME/CORRECTIONS BILL                                                                          
                                                                                                                                
1:35:10 PM                                                                                                                    
CHAIR  COGHILL  announced  the   consideration  of  SB  64.  [The                                                               
committee was considering CSSB 64,  Version G] He recognized that                                                               
Senator Ellis was present. He  recapped the meeting on Friday and                                                               
described  a tentative  outline for  the meetings  this week.  He                                                               
asked Ms. Carpeneti to continue her commentary on the bill.                                                                     
                                                                                                                                
1:39:12 PM                                                                                                                    
ANNE  CARPENETI, Assistant  Attorney General,  Criminal Division,                                                               
Legal  Services  Section,  Department   of  Law  (DOL),  directed                                                               
attention  to page  17,  Sections  27 and  28.  She reminded  the                                                               
committee  that  subsection  (o)  applies  to  termination  of  a                                                               
driver's  license  revocations  for  felony  drunk  driving,  and                                                               
subsection  (q)  applies  to   termination  of  driver's  license                                                               
revocations  for  felony  refusal  to take  a  breath  test.  She                                                               
highlighted  that  the  mandatory language  says  the  department                                                               
shall return the driver's license  if the various conditions have                                                               
been  satisfied, but  the  language does  not  clarify that  this                                                               
applies only  to revocations for  drunk driving and  refusal. She                                                               
suggested the committee clarify its intent.                                                                                     
                                                                                                                                
CHAIR COGHILL summarized that in  each subsection the language in                                                               
paragraph  (2)   following  "shall   restore"  should   say  this                                                               
specifically applies to DUI or refusal.                                                                                         
                                                                                                                                
MS. CARPENETI agreed it doesn't hurt to be as clear as possible.                                                                
                                                                                                                                
CHAIR  COGHILL  asked   if  someone  who  had   another  type  of                                                               
revocation might  purposefully get a  DUI charge so  he/she could                                                               
qualify under this mandate.                                                                                                     
                                                                                                                                
MS. CARPENETI  said she  wouldn't advise anyone  to do  that. She                                                               
further  suggested  these  sections  specify a  time  period  for                                                               
driving successfully  on a limited  license, and  acknowledge the                                                               
requirement in current statutes for  a person convicted of felony                                                               
drunk  driving or  refusal  to  use an  interlock  device for  60                                                               
months after their license is returned.                                                                                         
                                                                                                                                
On page 18, lines 9 and  30, she offered a drafting suggestion to                                                               
say  "controlled substances  or alcoholic  beverages" instead  of                                                               
"controlled substances and alcoholic beverages".                                                                                
                                                                                                                                
Regarding the  risk and  needs assessment  described on  page 20,                                                               
lines 19-22,  she said it might  be helpful to say  whether these                                                               
assessments  will be  done on  people serving  their sentence  at                                                               
home or on an ankle monitor.                                                                                                    
                                                                                                                                
MS. CARPENETI said her final comment  is that it would be helpful                                                               
to have a definite effective  date, especially for the provisions                                                               
addressing  theft, because  the applicability  provision say  the                                                               
new thresholds apply on or after the effective date of the Act.                                                                 
                                                                                                                                
CHAIR COGHILL asked Ms. Thomas  to discuss the ways that licenses                                                               
can be  revoked and why the  bill should be more  specific in the                                                               
provision  that allows  the  return of  a  license under  certain                                                               
conditions.                                                                                                                     
                                                                                                                                
1:48:26 PM                                                                                                                    
TIFFANY  THOMAS,  Driver  Licensing Manager,  Division  of  Motor                                                               
Vehicles, Department of Administration,  reported that her office                                                               
oversees the  processing of the  DMV limited licenses as  well as                                                               
felony  and misdemeanor  terminations  of  revocations. She  said                                                               
that Version G addresses most of  the issues that DMV raised last                                                               
April regarding  the limited  licenses in  Section 24,  but there                                                               
are ongoing concerns with Section 27.                                                                                           
                                                                                                                                
With regard  to Sections  27 and  28, she  said the  intent isn't                                                               
clear,  but it  seems as  though the  bill would  wipe the  slate                                                               
clean  if a  person  successfully completed  wellness court.  The                                                               
language  in both  sections essentially  mandates DMV  to restore                                                               
the driving privileges regardless of  whether that person has set                                                               
aside any  other Title 28  suspensions or revocations  that might                                                               
be on his/her record. The  mandatory language is also problematic                                                               
because it is  contrary to AS 28.15.031(b)(1) that  says that DMV                                                               
cannot issue a license to a  person who is revoked, suspended, or                                                               
disqualified.  She  suggested  keeping  the  permissive  language                                                               
currently in  statute to  give DMV the  discretion to  review the                                                               
driving  record  and  determine   eligibility.  She  also  voiced                                                               
concern about creating  a different standard for a  person with a                                                               
felony  conviction versus  a person  who  may have  only two  DUI                                                               
offenses, and  fitness to drive issues  if a person hasn't  had a                                                               
license in over five years.                                                                                                     
                                                                                                                                
1:52:35 PM                                                                                                                    
CHAIR COGHILL  asked if  inserting a requirement  for a  road and                                                               
written test would alleviate the last concern.                                                                                  
                                                                                                                                
MS.  THOMAS said  yes.  She  offered to  walk  through a  typical                                                               
felony driving record to show  that driving actions compound. For                                                               
example, a person may be in  wellness court in 2006, but they may                                                               
not begin to serve their  felony revocation until 2012 because of                                                               
other  driving  actions  for  which  they've  been  suspended  or                                                               
revoked. Responding to a further  question, she explained that in                                                               
most DUI  or refusal  cases the  criminal action  runs concurrent                                                               
with   the   administrative    action.   Everything   else   runs                                                               
consecutively.                                                                                                                  
                                                                                                                                
CHAIR COGHILL  said the sample  driving record would  be helpful;                                                               
the   intent  is   to  improve   public   safety  by   developing                                                               
accountability  measures so  that  fewer people  will be  driving                                                               
uninsured on a revoked or suspended license.                                                                                    
                                                                                                                                
CHAIR COGHILL recognized Mr. Steiner.                                                                                           
                                                                                                                                
1:56:17 PM                                                                                                                    
QUINLAN STEINER, Director, Public  Defender Agency, Department of                                                               
Administration (DOA), stated that  his comments were technical in                                                               
nature and  would focus on potential  unintended consequences and                                                               
policy issues.                                                                                                                  
                                                                                                                                
He  directed  attention  to  Section  19  that  addresses  credit                                                               
against a  sentence of  imprisonment, or  Nygren credit.  The new                                                               
language on page  11, lines 17-20, redefines the  kinds of passes                                                               
that  are allowed  in a  treatment program.  He said  this is  an                                                               
improvement over the  prior statute but the  discussion about the                                                               
"rehabilitative purposes" for  which somebody can have  a pass to                                                               
leave a treatment program is a little conflicting.                                                                              
                                                                                                                                
MR. STEINER said that "rehabilitative  purpose" can mean a lot of                                                               
different things;  it could  mean going  to an  AA meeting  or it                                                               
could  be an  activity  for purposes  of  reintegrating into  the                                                               
community. He  suggested the committee  to put the intent  on the                                                               
record to help  the courts and practitioners sort it  out. If the                                                               
definition is very restrictive it  might not expand the treatment                                                               
opportunities  to   a  significant  degree.  Whereas   a  broader                                                               
definition  that  was  specifically   defined  by  the  treatment                                                               
provider   as   being   for   reintegration   or   some   broader                                                               
rehabilitative purpose  would be worthwhile would  greatly expand                                                               
it to include  such things like the program that  was at issue in                                                               
the McKinley case.                                                                                                              
                                                                                                                                
SENATOR DYSON  said he  believes that  the controlled  release of                                                               
inmates  to  work off  site  in  fish  processing jobs  ought  to                                                               
qualify for credit  against a sentence. He asked  Mr. Steiner his                                                               
sense of whether the statutes would allow that.                                                                                 
                                                                                                                                
MR.  STEINER responded  that the  proposed change  would probably                                                               
allow  that  provided  the court  didn't  interpret  the  deleted                                                               
language  regarding work  required  by the  treatment program  as                                                               
excluding  it.  Because  there's  ambiguity  in  the  term,  it's                                                               
important to clarify the intent on the record, he said.                                                                         
                                                                                                                                
2:02:24 PM                                                                                                                    
SENATOR DYSON opined  that the language should  be clarified, and                                                               
that people  in the treatment  program should not have  the final                                                               
say about whether the work experience is rehabilitative.                                                                        
                                                                                                                                
MR.  STEINER  suggested  inserting  a safety  clause  to  exclude                                                               
periods that  are determined later  not to be  rehabilitative. He                                                               
said  another concern  is, if  a person  for good  reason doesn't                                                               
exercise  the option  for  a  pass, it  might  exclude the  whole                                                               
treatment program for the period that's not locked down.                                                                        
                                                                                                                                
SENATOR DYSON expressed support for the idea.                                                                                   
                                                                                                                                
MR.  STEINER added  that the  same would  be true  for the  buddy                                                               
pass; if  it was  later determined not  to be  rehabilitative the                                                               
person should  still get  credit for the  period that  he/she was                                                               
confined.                                                                                                                       
                                                                                                                                
2:04:14 PM                                                                                                                    
CHAIR  COGHILL  asked  if  he had  any  experience  with  getting                                                               
approval  in  advance  by  the  court  for  work  required  by  a                                                               
treatment  program.  His  understanding  is that  this  had  been                                                               
problematic.                                                                                                                    
                                                                                                                                
MR.  STEINER  said  the  problem  is that  when  the  work  isn't                                                               
approved in  advance, the person may  not get credit for  it. The                                                               
original  draft expanded  the definition  to expressly  limit the                                                               
pass to both time and purpose,  which was fine. But Version G has                                                               
the  additional  definition  that  the  pass  has  to  be  for  a                                                               
rehabilitative purpose.  That creates  a layer of  ambiguity that                                                               
needs clarification.  Now it  could be argued  that work  isn't a                                                               
rehabilitative purpose; that  rehabilitative purposes are limited                                                               
to things like  treatment programs and counseling  related to the                                                               
person's  underlying issues.  He suggested  it would  add clarity                                                               
for the  court if the  committee were to  say on the  record that                                                               
reintegration  into  the  community  is  a  valid  rehabilitative                                                               
purpose.                                                                                                                        
                                                                                                                                
CHAIR COGHILL asked if a definition was preferable.                                                                             
                                                                                                                                
MR.  STEINER   suggested  that  instead  of   a  definition,  the                                                               
committee say that rehabilitative  purpose is intended to include                                                               
passes  to  support reintegration  into  the  community. Work  is                                                               
potentially included  because it is part  rehabilitative and part                                                               
reintegration.                                                                                                                  
                                                                                                                                
SENATOR DYSON  highlighted the rehabilitative value  of prisoners                                                               
paying restitution.                                                                                                             
                                                                                                                                
2:08:51 PM                                                                                                                    
CHAIR COGHILL stated  his intention to bring  amendments to solve                                                               
this and the DMV issues on Wednesday.                                                                                           
                                                                                                                                
MR. STEINER said  he also had some concerns with  Sections 16 and                                                               
18  that  create  pretrial  release   conditions  for  a  testing                                                               
program. The new language in  these sections requires a person to                                                               
submit  to  a  test  for  a controlled  substance,  but  in  some                                                               
jurisdictions  this has  been determined  to  violate search  and                                                               
seizure rights  in the  Fourth Amendment.  He said  the condition                                                               
doesn't have  a specific nexus to  the purpose of bail  to ensure                                                               
public safety. Some  courts have said that  protecting the public                                                               
is there at all times and is  not a special need that gets around                                                               
the Fourth Amendment.                                                                                                           
                                                                                                                                
With regard to assuring appearance,  he said the courts have held                                                               
that  it requires  some  specific findings  that  the alcohol  or                                                               
drugs led to the person not  coming to court. The consequence may                                                               
be  a Fourth  Amendment  problem  if someone  were  later a  bail                                                               
violator or charged with a  crime. He also expressed concern that                                                               
people with insufficient financial  resources may have difficulty                                                               
getting out of jail.                                                                                                            
                                                                                                                                
CHAIR COGHILL  asked if he  believes that this would  be unusable                                                               
under the least restrictive condition.                                                                                          
                                                                                                                                
MR.  STEINER said  that's possible  and it  could have  a problem                                                               
with  mission creep  if it's  ordered in  cases where  it doesn't                                                               
meet the least restrictive requirement.                                                                                         
                                                                                                                                
CHAIR COGHILL offered  his belief that it could be  used in cases                                                               
where a  person tests positive  for alcohol but their  trial date                                                               
is 40 days away.                                                                                                                
                                                                                                                                
MR. STEINER suggested that limiting  it to certain types of cases                                                               
that  are directly  related to  alcohol and  public safety  would                                                               
address the potential concern about over use.                                                                                   
                                                                                                                                
MR. STEINER also  pointed out that the language on  page 19, line                                                               
9,  could  be  misinterpreted as  requiring  appointments,  which                                                               
would undermine  another aspect  of the  statute. He  also voiced                                                               
concern  in Section  29 that  the program  discusses specifically                                                               
the requirement of  swift and certain, but not  a proportional or                                                               
short sanction. He explained that  what makes a program like PACE                                                               
work is  that the consequences  for noncompliance  are immediate,                                                               
certain, and  short. He suggested that  some legislative guidance                                                               
explaining the purpose  of the PACE-type model  would be helpful.                                                               
He agreed to provide the suggestion in writing.                                                                                 
                                                                                                                                
2:18:01 PM                                                                                                                    
MR.  STEINER said  his next  comment relates  to Section  23 that                                                               
involves permitting  the court to terminate  a license revocation                                                               
for DUI or refusal. Page  13, lines 14-16, impose the requirement                                                               
that  the  person has  not  been  charged  with or  convicted  of                                                               
another  DUI  or  refusal.  But  if a  person  has  been  charged                                                               
inappropriately  and  the  state  later  dismisses  the  charges,                                                               
they're  still  barred  from  getting  their  license  back.  One                                                               
solution is to remove the language about being charged.                                                                         
                                                                                                                                
He pointed  out that Section  24, page 15,  line 3, has  the same                                                               
concern. In  this section  the court  is required  to immediately                                                               
revoke  a  limited  license  if  the person  is  charged  with  a                                                               
violation. Because this could involve  two different courts, it's                                                               
important to  make sure that  the court that revokes  the limited                                                               
license makes a specific finding  that there is probable cause to                                                               
support the subsequent DUI or refusal.                                                                                          
                                                                                                                                
SENATOR DYSON  cited the  example of somebody  who was  cited for                                                               
driving on a revoked license when  he was using his truck to move                                                               
tools to  work on  a culvert  at the bottom  of his  driveway. He                                                               
said he doesn't  want harsh language to force  someone under this                                                               
circumstance to forfeit the capacity  to make a judgment in those                                                               
rare situations.                                                                                                                
                                                                                                                                
MR.  STEINER said  there  would  be a  defense  if  a person  was                                                               
rushing  somebody  to  the  emergency   room,  but  that  defense                                                               
wouldn't be available to the person who was moving his tools.                                                                   
                                                                                                                                
2:24:11 PM                                                                                                                    
SENATOR DYSON said that's a concern.                                                                                            
                                                                                                                                
SENATOR WIELECHOWSKI said a possible  solution to Senator Dyson's                                                               
legitimate concern  is to add language  on page 15, line  3, that                                                               
the court finds  that probable cause exists for the  person to be                                                               
charged.                                                                                                                        
                                                                                                                                
MR.  STEINER agreed  it would  work if  the court  was making  an                                                               
independent finding  of probable  cause, rather than  just noting                                                               
that some other judge reviewed the case.                                                                                        
                                                                                                                                
SENATOR WIELECHOWSKI  said he assumes  that the language  on page                                                               
15,  lines 5-6,  is zero  tolerance. If  someone tests  positive,                                                               
even with  a trace amount,  their license would  automatically be                                                               
revoked.                                                                                                                        
                                                                                                                                
MR. STEINER agreed, and added  that the same problem exists there                                                               
regarding  the inability  to  address  whether or  not  it was  a                                                               
legitimate positive test.                                                                                                       
                                                                                                                                
He read  the language in  Section 27,  page 17, lines  16-17, and                                                               
noted that the corresponding provisions  for the court in Section                                                               
23  don't refer  to any  conviction. Under  this broad  language,                                                               
somebody  might go  through the  entire program  and later  get a                                                               
relatively  minor criminal  conviction  unrelated  to driving  or                                                               
alcohol that would prevent them  from getting their license back.                                                               
In  that  circumstance,  the  purpose of  the  program  and  this                                                               
provision  would  ultimately  not   be  served.  He  suggested  a                                                               
solution would be  to limit it to DUI and  refusal. He noted that                                                               
Section 28, page 18, lines 3-4, has the same concern.                                                                           
                                                                                                                                
CHAIR COGHILL said he was noting the suggestions.                                                                               
                                                                                                                                
MR. STEINER directed  his next comments to the  membership of the                                                               
Alaska   Criminal   Justice   Commission  in   Section   32.   He                                                               
recommended,  as  a  policy matter,  that  the  private  attorney                                                               
that's appointed to the commission  be a defense attorney or have                                                               
a  substantial career  in  criminal defense.  He  noted that  the                                                               
Office of  Public Advocacy (OPA)  represents close to  80 percent                                                               
of the criminal  defense cases in the state, and  opined that OPA                                                               
could bring a helpful perspective to the commission.                                                                            
                                                                                                                                
CHAIR COGHILL said the point is well taken.                                                                                     
                                                                                                                                
MR. STEINER  directed his final  comment to Section 34,  page 25,                                                               
lines 4-6,  that references the  applicability of the  changes to                                                               
the  Nygren  credit.  He recommended  making  the  Nygren  credit                                                               
applicable  immediately  to  any  court order  issued  after  the                                                               
effective date of  the Act. As currently  drafted, two defendants                                                               
could be  in court the  same day  arguing for Nygren  credit, one                                                               
whose  conviction  occurred  the  day  before  the  applicability                                                               
section and  one that  occurred the day  after. Those  two people                                                               
would be treated very differently.                                                                                              
                                                                                                                                
CHAIR  COGHILL  asked  Mr.  Steiner to  send  the  suggestion  in                                                               
writing. He  also asked  how this would  affect the  general rule                                                               
that a  person who is  convicted prior to  a change in  law lives                                                               
under the old law.                                                                                                              
                                                                                                                                
MR. STEINER explained that that  is generally true with regard to                                                               
sentencing provisions.                                                                                                          
                                                                                                                                
CHAIR COGHILL said  that on Wednesday he expected to  take up the                                                               
easier  amendments. This  potentially  would  include the  Nygren                                                               
credit, the main purpose of  which is to allow for rehabilitation                                                               
that ensures accountability.                                                                                                    

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