Legislature(2003 - 2004)

03/24/2004 08:10 AM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                                                                                                                                
         SB 170-CRIMINAL LAW/SENTENCING/PROBATION/PAROLE                                                                    
                                                                                                                              
CHAIR SEEKINS announced the committee would take up SB 170.                                                                     
                                                                                                                                
MS.  SUSAN PARKES,  Deputy  Attorney  General, Criminal  Division                                                               
Department of Law (DOL), informed  members that DOL provided some                                                               
proposed amendments to the committee.                                                                                           
                                                                                                                                
CHAIR SEEKINS numbered  the amendments and asked  members if they                                                               
want to address them as a package.                                                                                              
                                                                                                                                
SENATOR THERRIAULT moved Amendment 1,  which reads as follows. He                                                               
asked for an explanation from DOL.                                                                                              
                                                                                                                                
                       A M E N D M E N T  1                                                                                 
                                                                                                                                
                                                                                                                                
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Page 10, lines 29-31, and Page 11, lines 1-4:                                                                                   
                                                                                                                                
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          "(4) the force applied was the result of using a                                                                    
      dangerous instrument that the person claiming the defense                                                               
     of justification possessed while                                                                                         
                                                                                                                                
          (A) acting alone or with others to further a                                                                        
          felony criminal objective of the person or                                                                          
          one or more other persons; or                                                                                       
                                                                                                                                
          (B) participating in  a felony transaction or                                                                       
          purported   transaction,   or  in   immediate                                                                       
          flight   from   a   felony   transaction   or                                                                       
          purported  transaction  in  violation  of  AS                                                                       
          11.71.                                                                                                              
                                                                                                                                
TAPE 04-25, SIDE B                                                                                                            
                                                                                                                                
MS. PARKES explained that Amendment  1 makes changes to the self-                                                               
defense provision  to address concerns  raised by  testifiers and                                                               
committee members about the broadness  of the original provision.                                                               
The amendment  adds to  that provision  by saying  a self-defense                                                               
claim  does not  apply if  the force  applied was  the result  of                                                               
using a  dangerous instrument  by the  person claiming  the self-                                                               
defense. It also  adds a gang activity provision  and a provision                                                               
dealing with  drug-transactions that are felonious  conduct. That                                                               
was  added  to  address  concerns   about  minor  or  misdemeanor                                                               
conduct.                                                                                                                        
                                                                                                                                
SENATOR  FRENCH  asked  Ms.  Parkes  why  DOL  chose  the  phrase                                                               
"dangerous  instrument" over  "firearm"  in  defining who  cannot                                                               
claim self-defense. He noted he  was asking because the committee                                                               
was trying to  address gang shootings, in which  both parties are                                                               
carrying guns and both parties  claim self-defense. He continued,                                                               
"I understand  dangerous instrument is  a knife, a club,  or what                                                               
else but sometimes a dangerous instrument  can be a pair of hands                                                               
if you  use them  the wrong way  and so maybe  you can  just talk                                                               
about why it's dangerous instrument and not firearm."                                                                           
                                                                                                                                
MS. PARKES replied  that the broader term was  used because there                                                               
are situations where other instruments are used. She explained:                                                                 
                                                                                                                                
     Really, the  change was to acknowledge  that the person                                                                    
     is   coming   to   the   transaction,   the   incident,                                                                    
     anticipating  violence  and,   although  guns  are  the                                                                    
     primary   problem,  people   come   to  a   transaction                                                                    
     anticipating violence  and come armed with  any variety                                                                    
     of things  and that was  really what we were  trying to                                                                    
     address.  If  you're going  to  say  someone can't  use                                                                    
     self-defense, we wanted  it to be in  a situation where                                                                    
     they were coming anticipating violence  and that may be                                                                    
     with  a gun  or  a knife  and so  it  was more  broadly                                                                    
     defined. The  other reason is,  although they  may come                                                                    
     with a knife, the person  they're meeting, or the other                                                                    
     people they're involved with may  have guns and, again,                                                                    
     it's just trying to address  the situation where people                                                                    
     are coming anticipating violence.                                                                                          
                                                                                                                                
SENATOR OGAN  commented that  most people  who carry  weapons for                                                               
self-defense  for   legitimate  purposes   do  so   because  they                                                               
anticipate violence. He asked if  this amendment means the person                                                               
was  acting  alone or  with  others  to further  felony  criminal                                                               
objectives  and therefore,  the  person would  not  only have  to                                                               
anticipate violence,  the person  would have  to have  a culpable                                                               
mental state to commit a felony.                                                                                                
                                                                                                                                
MS. PARKES said that is correct.                                                                                                
                                                                                                                                
CHAIR SEEKINS suggested  adding to the end of (B),  "in which the                                                               
individual was a participant."                                                                                                  
                                                                                                                                
MS. PARKES  felt that the  word "participating" at  the beginning                                                               
of (B) was adequate.                                                                                                            
                                                                                                                                
SENATOR OGAN  asked for  the definition  of a  felony transaction                                                               
and whether  the person  has to  be convicted  of that  felony or                                                               
could just be a bystander. He  questioned how that would play out                                                               
in a scenario  in which a person unwittingly goes  to a party and                                                               
somebody  else next  to him  transacts a  drug deal  and suddenly                                                               
guns appear.                                                                                                                    
                                                                                                                                
MS. PARKES acknowledged  that is a very real  scenario that could                                                               
arise. She told members:                                                                                                        
                                                                                                                                
     No, someone who just happened  to be at the wrong place                                                                    
     at the  wrong time,  this would not  apply to  them and                                                                    
     that's why they have to  be acting alone or with others                                                                    
     to further  the felony criminal objective.  You have to                                                                    
     have that  criminal objective as  your mental  state or                                                                    
     subsection (B)  - we want  it clear that it's  a person                                                                    
     participating  in the  transaction,  not the  bystander                                                                    
     who gets  caught up in  it. How  this would work  is if                                                                    
     someone were  given a  self-defense instruction  by the                                                                    
     court, which  with our other provision  would mean they                                                                    
     raised some  plausible evidence that  it wasn't  a drug                                                                    
     transaction  or they  weren't a  participant, then  the                                                                    
     state  would  have  the  burden  of  proving  beyond  a                                                                    
     reasonable  doubt to  get a  conviction that  they were                                                                    
     part of  this criminal objective  or they were  part of                                                                    
     this felony  drug transaction. So  the burden  would be                                                                    
     on the state to prove that.                                                                                                
                                                                                                                                
SENATOR FRENCH  returned to the  issue of  "dangerous instrument"                                                               
and said his concern  is that term can mean a pair  of hands or a                                                               
boot.  He noted  the  word "firearm"  is  probably the  narrowest                                                               
definition, and  suggested using the term  "deadly weapon," which                                                               
includes knives,  clubs, and  guns. He asked  if that  term would                                                               
satisfy DOL's need  to be able to  go after people who  come to a                                                               
situation  heavily armed  but  would exclude  the  person who  is                                                               
forced to defend himself with his  hands or feet against a person                                                               
who is armed with a knife or gun.                                                                                               
                                                                                                                                
MS. PARKES said it would  address DOL's concerns. She noted, "The                                                               
intent isn't  to be able  to say well,  you come armed  with your                                                               
hands so  suddenly you're at  risk and  then you decide  to choke                                                               
someone and  use them as  a dangerous  instrument - that  was not                                                               
our intent  because as you  pointed out, anyone comes  armed with                                                               
their hands and feet and so substituting deadly weapon...."                                                                     
                                                                                                                                
CHAIR  SEEKINS  interrupted and  commented  that  in relation  to                                                               
subsection  (B), if,  in  the  process of  fleeing,  he ran  over                                                               
someone with  his car and  killed that  person, his car  would be                                                               
considered a  dangerous instrument  but not necessarily  a deadly                                                               
weapon.                                                                                                                         
                                                                                                                                
SENATOR OGAN  argued that might  not be directly related  and was                                                               
not self-defense.                                                                                                               
                                                                                                                                
SENATOR  FRENCH thought  he  would  not be  able  to claim  self-                                                               
defense.                                                                                                                        
                                                                                                                                
CHAIR SEEKINS thought  he would if the person was  pointing a gun                                                               
at him.                                                                                                                         
                                                                                                                                
SENATOR OGAN felt that would be self-defense.                                                                                   
                                                                                                                                
CHAIR SEEKINS questioned  how that would apply if  he intended to                                                               
buy drugs from that person.                                                                                                     
                                                                                                                                
SENATOR FRENCH thought  the bill, as written,  would preclude him                                                               
from  claiming  self-defense  but the  proposed  amendment  would                                                               
allow him to.                                                                                                                   
                                                                                                                                
CHAIR  SEEKINS questioned  whether a  car would  be considered  a                                                               
deadly weapon  or a dangerous  instrument and said he  wants that                                                               
included.                                                                                                                       
                                                                                                                                
MS. PARKES  clarified if  the committee  members want  to include                                                               
that  kind of  a  scenario, they  would not  want  to change  the                                                               
amendment to read dangerous instrument  instead of deadly weapon.                                                               
She then commented  that bricks and pipes are  not always covered                                                               
under  deadly  weapons  but  would  be  covered  under  dangerous                                                               
instrument.                                                                                                                     
                                                                                                                                
CHAIR SEEKINS  said his next  question is about using  a baseball                                                               
bat as a club.  He indicated that his objective is  to say if you                                                               
were there, and  while committing a felony kill  someone, it will                                                               
be  very difficult  to claim  self-defense. He  added, "I'm  just                                                               
trying not to say, well it's  okay to run somebody over if you've                                                               
got a gun pointed  at you and you're in the middle of  a - but it                                                               
wouldn't be okay to shoot them...."                                                                                             
                                                                                                                                
SENATOR  ELLIS  asked  Ms.  Parkes   to  elaborate  on  the  term                                                               
"purported transaction" and who decides what that is.                                                                           
                                                                                                                                
MS.  PARKES  explained  that  section   is  meant  to  address  a                                                               
situation  in which  one  person thinks  he is  going  to a  drug                                                               
transaction  while the  other party  intends to  rob that  person                                                               
rather  than sell  him  drugs. She  said  many violent  outbreaks                                                               
occur because of a "rip-off."                                                                                                   
                                                                                                                                
SENATOR ELLIS  asked if other  states handle those  situations by                                                               
using "purported transaction" in their statutes.                                                                                
                                                                                                                                
MS. PARKES was not sure but  noted that Mr. Guaneli and others in                                                               
DOL prepared that language.                                                                                                     
                                                                                                                                
SENATOR ELLIS  expressed concern that "purported  transaction" is                                                               
a subjective term and he  questioned how that would be determined                                                               
within the workings of a case.                                                                                                  
                                                                                                                                
MS. PARKES  replied, "I  think, given  its common  sense meaning,                                                               
people are  coming there anticipating a  felony drug transaction,                                                               
a purported transaction, is what we intended with the language."                                                                
                                                                                                                                
SENATOR OGAN  expressed concern that  a normally  rational person                                                               
would  not pull  a knife  on  a person  with  a gun.  Or, in  the                                                               
example of the  car, if the person  in the car has  no weapon but                                                               
hits the  person with a gun  with the car, his  attitude is "more                                                               
power to  him, at least  he had the common  sense to not  bring a                                                               
gun to  a drug  transaction and  possibly endanger  other people.                                                               
But under  that scenario,  I hope  he does run  the guy  over and                                                               
kills him too. That's one less person the state has to...."                                                                     
                                                                                                                                
CHAIR SEEKINS said  he somewhat agrees but both  parties may have                                                               
had  guns.  He said  generally  speaking,  people who  intend  to                                                               
commit  felony transactions  know there's  a risk  involved.   He                                                               
stated,  "I agree  sometimes the  best thing  would be  for these                                                               
people  to be  put away  for a  long time  on both  sides of  the                                                               
issue. If  one of them  is dead, one  of them  is put away  for a                                                               
long  time when  they  were committing  felonies, we've  probably                                                               
served a better public purpose than if one of them gets off."                                                                   
                                                                                                                                
SENATOR FRENCH  said he preferred to  err on the side  of caution                                                               
so   moved  to   amend  Amendment   1  by   replacing  "dangerous                                                               
instrument" with "deadly weapon". He  then read the definition of                                                               
"deadly  weapon"   under  AS  11.81.900:  Firearm,   or  anything                                                               
designed for  and capable  of causing  death or  serious physical                                                               
injury,  including a  knife,  axe, club,  metal  knuckles, or  an                                                               
explosive. He  felt that change will  keep the focus on  the gang                                                               
issue and  leave out  folks who  have to use  their hands  to get                                                               
themselves out of a bad situation.                                                                                              
                                                                                                                                
CHAIR SEEKINS objected.                                                                                                         
                                                                                                                                
SENATOR OGAN told  members he agreed with Senator  French on this                                                               
issue.                                                                                                                          
                                                                                                                                
A  roll call  vote was  taken. The  motion carried  with SENATORS                                                               
OGAN, FRENCH  and ELLIS voting  yea, and SENATORS  THERRIAULT and                                                               
SEEKINS voting nay. Therefore, Amendment 1 was amended.                                                                         
                                                                                                                                
There being  no further discussion  about Amendment 1  amended, a                                                               
roll call  vote was  taken. The  motion to  adopt Amendment  1 as                                                               
amended  carried with  Senators Therriault,  Ellis, French,  Ogan                                                               
and Seekins in favor.                                                                                                           
                                                                                                                                
SENATOR THERRIAULT moved to adopt Amendment 2 (which reads as                                                                   
follows), and asked for an explanation from department staff.                                                                   
                                                                                                                                
                       A M E N D M E N T  2                                                                                 
                                                                                                                                
OFFERED IN THE SENATE                                                                                                           
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     "Sec. 32.  AS 47.12.310(c) is amended to read:                                                                           
                                                                                                                                
     A state or municipal law enforcement agency                                                                                
                                                                                                                                
     (1) shall disclose information regarding a case that                                                                       
          is  needed by  the person  or agency  charged with                                                                    
          making   a  preliminary   investigation  for   the                                                                    
          information of the court under this chapter;                                                                          
     (2) may disclose to the public information regarding                                                                       
          a criminal offense in which  a minor is a suspect,                                                                    
          victim, or witness if the  minor is not identified                                                                    
          by the disclosure;                                                                                                    
     (3) may disclose to school officials information                                                                           
          regarding a  case as may  be necessary  to protect                                                                    
          the  safety of  school  students and  staff or  to                                                                    
          enable   the   school   to   provide   appropriate                                                                    
          counseling  and supportive  services  to meet  the                                                                    
          needs  of  a  minor   about  whom  information  is                                                                    
          disclosed.                                                                                                            
     (4) Or a state or municipal agency or employee may                                                                       
          disclose  to the  public  information regarding  a                                                                    
          case as may be necessary  to protect the safety of                                                                    
          the public; and                                                                                                       
     (5) May disclose to a victim or to the victim's                                                                            
          insurance  company  information, including  copies                                                                    
          of reports,  as necessary for civil  litigation or                                                                    
          insurance  claims   pursued  by  or   against  the                                                                    
          victim."                                                                                                              
                                                                                                                                
MS. PARKES  told members that DOL  made a proposal that  would allow a                                                          
state agency or employee, upon the  request of a member of the public,                                                          
to  provide  information  about  a juvenile  adjudication  for  a  sex                                                          
offense as necessary to protect the  safety of a child or a vulnerable                                                          
adult. Amendment  2 comes  after consultation  with the  Department of                                                          
Health and Social Services (DHSS)  Juvenile Justice Division. Division                                                          
staff  were  concerned  that  as  drafted,  the  disclosure  would  be                                                          
mandatory,  and   that  members  of   the  public  could   misuse  the                                                          
information. The division  wanted more discretion to  set policy about                                                          
disclosure.  Amendment 2  makes disclosure  discretionary by  saying a                                                          
state  or municipal  agency or  employee  may disclose  to the  public                                                          
information  regarding a  case  as  may be  necessary  to protect  the                                                          
safety of the  public. It allows the division to  set up in regulation                                                          
how it  will disclose  information. She  indicated that  the situation                                                          
that  prompted this  proposal was  one  in which  social workers  were                                                          
visiting homes where juvenile sex  offenders were babysitting or given                                                          
access to  vulnerable adults  and children.  The social  workers could                                                          
not provide that information to the public.                                                                                     
                                                                                                                                
SENATOR FRENCH said the bill  was written specific to adjudication for                                                          
a sexual offense but that is  not referenced in Amendment 2. He asked,                                                          
"I take it  there's some other piece of law  somewhere that sucks that                                                          
information into 'a case'?"                                                                                                     
                                                                                                                                
MS. PARKES  replied, "If  you look  at the  statute as  it's currently                                                          
written, this adds a provision.  They talk about providing information                                                          
about  a case  to  law enforcement  [indisc.] so  it's  a phrase  they                                                          
already  use  in interpreting  how  to  release information.  It  does                                                          
broaden it from  just adjudication to being able to  talk about cases,                                                          
say  where  a  juvenile  is  currently charged  but  hasn't  yet  been                                                          
adjudicated. We  actually think it  gives the agency  more flexibility                                                          
to provide information to protect the public."                                                                                  
                                                                                                                                
SENATOR FRENCH  asked if Amendment  2 will incorporate  social workers                                                          
into the broader group above the law enforcement community.                                                                     
                                                                                                                                
MS.  PARKES said  that  is  correct; the  intent  is  to allow  social                                                          
workers and other  state employees that may have  that information and                                                          
are interacting with the public [to disclose that information].                                                                 
                                                                                                                                
SENATOR FRENCH asked what guidelines will constrain their discretion.                                                           
                                                                                                                                
MS. PARKES  repeated that DHSS  specifically requested  flexibility to                                                          
allow agencies to set those policies.                                                                                           
                                                                                                                                
SENATOR OGAN  questioned how  Amendment 2  amends existing  statute by                                                          
deleting material.                                                                                                              
                                                                                                                                
MS. PARKES  explained that  Amendment 2 deletes  lines from  the bill,                                                          
not the statute.                                                                                                                
                                                                                                                                
SENATOR  OGAN asked  if AS  47.12.310(b) will  remain the  same but  a                                                          
sentence will be added to .310(c).                                                                                              
                                                                                                                                
MS. PARKES said that is correct.                                                                                                
                                                                                                                                
CHAIR SEEKINS  questioned how  an agency  would prevent  the disclosed                                                          
information from being posted on telephone poles.                                                                               
                                                                                                                                
MS. PARKES  indicated that nothing  in Amendment 2 could  prevent that                                                          
from happening;  the agencies themselves  want to establish  that kind                                                          
of protection  through policy  and regulations.  She repeated  that is                                                          
the agencies'  concern and is why  they did not want  disclosure to be                                                          
mandatory. She believes  the agencies have ideas on  how to accomplish                                                          
that goal.                                                                                                                      
                                                                                                                                
CHAIR SEEKINS asked, "What if they don't?"                                                                                      
                                                                                                                                
MS.  PARKES   said  the  person   requesting  the   information  could                                                          
disseminate it  and she is  not aware  of any criminal  prohibition or                                                          
statute that could be used to go after them.                                                                                    
                                                                                                                                
CHAIR  SEEKINS  questioned   what  would  happen  if   there  were  no                                                          
regulations or policy against it.                                                                                               
                                                                                                                                
MS. PARKES indicated  that Amendment 2 was requested  by DHSS and                                                               
deferred to the department for an answer.                                                                                       
                                                                                                                                
CHAIR  SEEKINS pointed  out  he is  not  unnecessarily trying  to                                                               
protect  the  minor  and  allow  inappropriate  contact  but  his                                                               
concern is that  there is the possibility that a  juvenile with a                                                               
relatively minor offense could be the victim of a witch-hunt.                                                                   
                                                                                                                                
SENATOR  FRENCH  noted  that  under   current  law,  a  state  or                                                               
municipal law  enforcement agency has the  discretion to disclose                                                               
information  to  school officials  if  necessary  to protect  the                                                               
safety of school  officials, staff, [and students].  He noted the                                                               
difficulty  of finding  a balance  between protecting  the public                                                               
from a potential juvenile predator  and protecting the juvenile's                                                               
ability to be rehabilitated for a mistake made early in life.                                                                   
                                                                                                                                
CHAIR SEEKINS agreed;  and added there is a  difference between a                                                               
predator and someone who may have  broken the law at a young age.                                                               
He questioned,  "If we're  being very  careful about  the details                                                               
into which we - how we  pour something into the sieve, why aren't                                                               
we being careful about the details of how we do it?"                                                                            
                                                                                                                                
SENATOR FRENCH suggested hearing from a DHSS staff person.                                                                      
                                                                                                                                
SENATOR  OGAN expressed  concern  that Amendment  2 broadens  the                                                               
scope  of  who  can  disclose  in  the  name  of  public  safety,                                                               
regardless of the  seriousness of the crime. He said  he would be                                                               
more comfortable  with that provision  if it specified  a certain                                                               
level of crime, such as a felony assault against a person.                                                                      
                                                                                                                                
CHAIR SEEKINS asked Mr. Guaneli to testify.                                                                                     
                                                                                                                                
MR. DEAN  GUANELI, Assistant Attorney with  the Criminal Division                                                               
of  the Department  of Law,  suggested adding  an effective  date                                                               
section  to the  bill  that  says this  provision  does not  take                                                               
effect until DHSS  adopts regulations to implement  the change in                                                               
law enacted by that section.                                                                                                    
                                                                                                                                
SENATOR  OGAN asked  if the  provision  deals with  any level  of                                                               
crime so that  an employee could arbitrarily  decide whether that                                                               
person is a threat to the public.                                                                                               
                                                                                                                                
MR. GUANELI replied:                                                                                                            
                                                                                                                                
     I think that  - this information is  confidential and I                                                                    
     think  that  what  the  statute  says  is  'as  may  be                                                                    
     necessary to  protect the public.'  I think  that's the                                                                    
     thing  that   really  ought  to   be  addressed   in  a                                                                    
     regulation - the level of  the threat that is involved,                                                                    
     how  the  agency  goes about  weighing  that  level  of                                                                    
     threat. And  I think  that's something that  really the                                                                    
     public  process  leading  to  those  regulations  would                                                                    
     address. I'm  not certain that  it's something  that we                                                                    
     can completely anticipate right here in this forum.                                                                        
                                                                                                                                
SENATOR OGAN asked, since particular  crimes are not specified in                                                               
the provision, [choosing  which crimes to disclose]  will be left                                                               
to the discretion of the employee.                                                                                              
                                                                                                                                
MR. GUANELI thought that was correct.                                                                                           
                                                                                                                                
MS. PARKES  responded that the  proposed bill addresses  the fact                                                               
that  right now  any sexual  abuse of  a minor  perpetuated by  a                                                               
juvenile is a  misdemeanor. DOL is proposing  to make penetration                                                               
a felony while contact would  remain a misdemeanor. She said that                                                               
is why  she has  concerns about trying  to distinguish  between a                                                               
felony and misdemeanor [in regard to this provision].                                                                           
                                                                                                                                
SENATOR OGAN said  he would feel more comfortable  if Amendment 2                                                               
contained  some  parameters  on  what  crimes  can  be  disclosed                                                               
because,  right  now,  it  will   allow  any  state  employee  to                                                               
arbitrarily disclose  anything about anybody. He  maintained that                                                               
if Amendment  2 passes  without parameters,  DHSS should  look to                                                               
the committee record to determine the committee's intent.                                                                       
                                                                                                                                
SENATOR FRENCH  noted the first line  of Section 32 in  version H                                                               
says,  "A state  or municipal  agency or  employee..." while  the                                                               
first  line of  Amendment 2(c)(4)  reads, "A  state or  municipal                                                               
agency or  employee..." and  questioned whether  that distinction                                                               
was made consciously.                                                                                                           
                                                                                                                                
MR. GUANELI  thought the addition  of the word "or  employee" was                                                               
intended to  mean that a  particular employee could  disclose the                                                               
information so that disclosure would  not require some sort of an                                                               
agency proclamation.                                                                                                            
                                                                                                                                
SENATOR  FRENCH  interjected,  "It   seems  like,  the  way  it's                                                               
written, the whole  statute is about an agency. I  don't know how                                                               
it works now  - if APD releases information, does  it come from a                                                               
person, a sergeant,  or does it come from the  agency? And it may                                                               
ease some  of Senator Ogan's concerns  to know that this  is more                                                               
of an  agency decision, that  is, it's  been passed up  through a                                                               
little procedure and  it isn't one, you know,  social worker kind                                                               
of on a personal mission to release information."                                                                               
                                                                                                                                
MS.  PARKES responded  that  DOL would  not  oppose deleting  "or                                                               
employee" to  clarify that it is  to be a policy  decision of the                                                               
agency.                                                                                                                         
                                                                                                                                
CHAIR SEEKINS  agreed and said  he does  not have faith  that the                                                               
regulatory  process  will always  carry  out  the intent  of  the                                                               
legislature.                                                                                                                    
                                                                                                                                
SENATOR OGAN moved  to amend Amendment 2(c)(4) to  read, "A state                                                               
or  municipal  agency  or authorized  employee..."  so  that  the                                                               
agency  has  identified  an  authorized   who  will  provide  the                                                               
disclosures. He  continued, "...so  the agency  identifies, okay,                                                               
for  these  disclosures you  go  to  this  desk and  that  person                                                               
understands what  the policy of the  agency is so you  don't have                                                               
these  -  any  -  say  a  social  worker  who  doesn't  like  the                                                               
particular  family or  whatever and  that gives  me more  comfort                                                               
that they're carrying  out the policy of the  agency, rather than                                                               
just any employee arbitrarily."                                                                                                 
                                                                                                                                
CHAIR SEEKINS  announced that without objection,  Amendment 2 was                                                               
amended.                                                                                                                        
                                                                                                                                
SENATOR OGAN asked  that DHSS draft regulations  that specify the                                                               
types  of crimes  that  will be  disclosed,  those being  violent                                                               
crimes against person crimes.                                                                                                   
                                                                                                                                
CHAIR SEEKINS  asked Ms. Parkes  if DOL would draft  a conceptual                                                               
amendment  to address  DOL's suggestion  that  an effective  date                                                               
clause be  added to the  bill so that  Amendment 2 does  not take                                                               
effect until regulations have been adopted.                                                                                     
                                                                                                                                
MS. PARKES agreed.                                                                                                              
                                                                                                                                
CHAIR SEEKINS  requested a  roll call vote.  The motion  to adopt                                                               
Amendment 2 as amended carried  with Senators Ellis, French, Ogan                                                               
and Seekins in favor.                                                                                                           
                                                                                                                                
SENATOR OGAN moved to adopt Amendment 3, which reads as follows.                                                                
                                                                                                                                
                       A M E N D M E N T  3                                                                                 
                                                                                                                                
OFFERED IN THE SENATE                                                                                                           
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     Page 11, following line 29:                                                                                                
                                                                                                                                
     Insert the following:                                                                                                      
                                                                                                                                
          "(3) 'higher level felony' means an unclassified                                                                  
     or a class A felony;                                                                                                   
                                                                                                                              
          (4) 'lower-level felony' means a class B or                                                                       
          a class C felony."                                                                                                
                                                                                                                                
     Page 12, lines 23 and 24:                                                                                                  
                                                                                                                                
     Following "applies:":                                                                                                      
                                                                                                                                
     Delete all material and insert the following:                                                                              
                                                                                                                                
     "a higher-level felony, a lower-level felony, or a                                                                         
     misdemeanor."                                                                                                              
                                                                                                                                
                                                                                                                                
CHAIR SEEKINS objected for the purpose of discussion.                                                                           
                                                                                                                                
MS. PARKES told members that  Amendment 3 deals with the immunity                                                               
proposal, as was discussed at prior hearings. She explained:                                                                    
                                                                                                                                
     We  proposed  a  procedure  where   a  witness  who  is                                                                    
     claiming  immunity goes  into a  hearing with  a judge.                                                                    
     They're appointed an attorney  and in a private hearing                                                                    
     that's  closed without  a  prosecutor  present a  judge                                                                    
     hears a proffer  of testimony as to why  the person has                                                                    
     a  Fifth Amendment  privilege. If  a  judge finds  that                                                                    
     there's a  Fifth Amendment privilege, the  way the bill                                                                    
     is  currently drafted,  the only  information that  the                                                                    
     judge  gives   to  the  prosecution  about   the  Fifth                                                                    
     Amendment  privilege   is  what  level  of   crime  the                                                                    
     person's  Fifth Amendment  applies to.  In the  bill as                                                                    
     it's  currently written,  the  prosecution  is told  if                                                                    
     it's  an unclassified  or A  felony, it  would be  a C.                                                                    
     There were  some concerns raised  at the  prior hearing                                                                    
     that that might  be too specific of  information - that                                                                    
     it might  be able to  point the state in  the direction                                                                    
     of who the worst player in  a group is. And, to address                                                                    
     that concern yet still give  the state some information                                                                    
     that  would allow  them to  responsibly exercise  their                                                                    
     power  to give  immunity or  not, we're  proposing that                                                                    
     instead  of  being  told   specifically  the  level  of                                                                    
     offense, the  state be  told that  it's a  higher level                                                                    
     felony, meaning an A or  an unclassified, a lower level                                                                    
     felony, meaning  a B or  a C, or a  misdemeanor. That's                                                                    
     the only change.                                                                                                           
                                                                                                                                
SENATOR FRENCH noted that he has concerns about that section but                                                                
none about Amendment 3.                                                                                                         
                                                                                                                                
CHAIR SEEKINS announced that with no objection to Amendment 3,                                                                  
it was adopted.                                                                                                                 
                                                                                                                                
SENATOR FRENCH moved to adopt Amendment 4, which reads as                                                                       
follows.                                                                                                                        
                                                                                                                                
                       A M E N D M E N T  4                                                                                 
                                                                                                                                
OFFERED IN THE SENATE                                                                                                           
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Delete Page 15, line 31 to page 16, lines 1-3                                                                                   
                                                                                                                                
Insert in its place:                                                                                                            
                                                                                                                                
     (S)  In a  prosecution  under (a)  of  this section,  a                                                                  
     person  may  introduce   evidence  of  having  consumed                                                                  
     alcohol before operating or  driving the motor vehicle,                                                                  
     aircraft  or  watercraft,  to   rebut  or  explain  the                                                                  
     results of  a chemical  test, but it  is not  a defense                                                                  
     that  the  chemical  test did  not  measure  the  blood                                                                  
     alcohol at the time of the operating or driving.                                                                         
                                                                                                                                
Add a new section and renumber other sections accordingly:                                                                      
                                                                                                                                
     *Sec. ___. AS 28.35.030(a is amended to read:                                                                            
                                                                                                                                
     (a) A person  commits the crime of  driving while under                                                                  
     the influence  of an  alcoholic beverage,  inhalant, or                                                                  
     controlled substance  if the person operates  or drives                                                                  
     a  motor   vehicle  or  operates   an  aircraft   or  a                                                                  
     watercraft                                                                                                               
                                                                                                                                
          (1)  while under  the  influence  of an  alcoholic                                                                  
          beverage,  intoxicating liquor,  inhalant, or  any                                                                  
          controlled substance;                                                                                               
                                                                                                                              
          (2)  If  [WHEN], as determined by  a chemical test                                                              
          taken within four hours  after the alleged offense                                                                  
          was committed,  there is 0.08  percent or  more by                                                                  
          weight  of alcohol  in the  person's  blood or  80                                                                  
          milligrams or more of  alcohol per 100 milliliters                                                                  
          of  blood, or  if [WHEN]  there is  0.08 grams  or                                                              
          more  of alcohol  per 210  liters of  the person's                                                                  
          breath; or                                                                                                          
                                                                                                                                
          (3)    While  the  person is  under  the  combined                                                                  
          influence   of    an   alcoholic    beverage,   an                                                                  
          intoxicating  liquor,  an  inhalant,  or  [AND]  a                                                              
          controlled substance.                                                                                               
                                                                                                                                
MS.  PARKES explained  that Amendment  4 addresses  the "big                                                                    
gulp  defense" proposal  discussed  at  prior hearings.  The                                                                    
current law  says if a  person is given an  intoximeter test                                                                    
within 4 hours  of driving and is .08 or  above, that person                                                                    
is  legally intoxicated.  However, the  courts have  allowed                                                                    
people to  argue that  they "took a  big gulp"  right before                                                                    
driving  and although  the intoximeter  was accurate  at the                                                                    
time taken, the person's blood  alcohol level was lower than                                                                    
that. DOL  does not  believe the  intent of  the legislation                                                                    
was  to get  into  the  middle of  a  battle  of experts  so                                                                    
Amendment 4 would  do away with that defense  and overturn a                                                                    
case called  "Conrad," issued by  the Court of  Appeals. DOL                                                                    
found, during discussion at prior  hearings, that it drafted                                                                    
the proposal  so broadly that  it would exclude  people from                                                                    
introducing legitimate  evidence. Therefore, it  has revised                                                                    
the  proposal [Amendment  4] so  that it  would specifically                                                                    
say  that  a  person  may introduce  evidence  to  rebut  or                                                                    
explain the results of a chemical  test but that it is not a                                                                    
defense that  the chemical  test did  not measure  the blood                                                                    
alcohol at the  time of the operating or  driving. That will                                                                    
allow people to  attack the accuracy of  the intoximeter but                                                                    
[not the  timing] of the  test if driving. She  explained in                                                                    
the Conrad case,  the [court] looked at  the "when" language                                                                    
of  the statute.  DOL is  proposing to  substitute "if"  for                                                                    
"when".                                                                                                                         
                                                                                                                                
TAPE 04-26, SIDE A                                                                                                            
                                                                                                                                
CHAIR SEEKINS announced that with  no objection to Amendment                                                                    
4,  it  was  adopted.  He  opened  the  meeting  for  public                                                                    
testimony.                                                                                                                      
                                                                                                                                
MS. BARBARA  BRINK, Alaska Public  Defender Agency,  told members                                                               
her  concerns about  the amendments  echo the  committee members'                                                               
concerns. She has  trouble determining that people  give up their                                                               
right  of  self-defense  because  they are  engaged  in  unlawful                                                               
conduct.  She  fears  this   policy  decision  somewhat  promotes                                                               
vigilantism.  She  said  the  scale  is  imbalanced  when  people                                                               
involved  in  low-level  criminal activities  cannot  claim  that                                                               
right. She  said she  appreciates the  change to  "deadly weapon"                                                               
made to that amendment.                                                                                                         
                                                                                                                                
Regarding disclosure  of information  [in Amendment 2],  she felt                                                               
it is  critical to amend it  to say that nothing  in this section                                                               
allows the disclosure of public  information unless and until the                                                               
regulations are drafted and policy is set by DHSS.                                                                              
                                                                                                                                
MS. BRINK'S final concern was  that she does not believe anything                                                               
can be  done to make  the immunity provision  constitutional. She                                                               
believes the Alaska  Supreme Court has said quite  clearly in the                                                               
Gonzales case that the State  of Alaska's standard is higher than                                                               
the federal  standard and that  people may not be  prosecuted for                                                               
anything  regarding  the subject  matter  of  their testimony  if                                                               
given  immunity.   She  added,   "I  think  that   informing  the                                                               
prosecutor  what level  of felony  or  what level  of offense  is                                                               
involved does become a link in  the chain. I guess the person who                                                               
has a valid Fifth Amendment  right [sic] will render this section                                                               
of the bill unconstitutional."                                                                                                  
                                                                                                                                
MS. SIDNEY  BILLINGSLEA, representing  the Alaska  Trial Lawyers,                                                               
made the following four points.                                                                                                 
                                                                                                                                
   · The  statement made  that minors  convicted of  sex offenses                                                               
     are  convicted only  of  misdemeanors  is incorrect  because                                                               
     minors under the age of 18  who cannot be waived under Title                                                               
     47 can be convicted of class B and C felonies.                                                                             
   · Regarding  Section 13,  murder in  the second  degree, where                                                               
     the  committee  is  considering excluding  co-committers  of                                                               
     crimes  for   felonies,  including  attempted   felonies,  a                                                               
     potential unintended consequence is  the inclusion of people                                                               
     who  are   committing  crimes.   She  explained   that  most                                                               
     burglaries in Alaska  happen between the hours  of 2:00 p.m.                                                               
     and 6:00 p.m.,  which are the hours after  school and before                                                               
     parents  arrive  home.   Most  perpetrators  of  residential                                                               
     burglaries are  young males between  the ages of 15  and 20.                                                               
     She cautioned that  if two teenagers, who  are fairly decent                                                               
     people  but are  committing  a stupid,  juvenile act,  break                                                               
     into  a home  of  a  friend and  startle  the homeowner  who                                                               
     shoots one of them, the  other teenager can be prosecuted as                                                               
     an adult for murder in the second degree.                                                                                  
   · Regarding  the self-defense  section, she  pointed out  that                                                               
     all Alaskans  are citizens who  are presumed  innocent, have                                                               
     equal protection  to the laws,  and have the right  to life,                                                               
     liberty, and  the pursuit of  happiness. To presume  to take                                                               
     away  some  of those  fundamental  rights  from a  class  of                                                               
     citizens who are purported to be  involved in a crime is not                                                               
     a good way to conduct business in Alaska.                                                                                  
   · Regarding the  immunity section,  she believes if  the state                                                               
     has  investigated  a  case sufficiently  to  decide  who  to                                                               
     charge  and who  should be  a witness,  the state  must have                                                               
     data on  those individuals  to decide whether  the witnesses                                                               
     are important or  not. At the point the witness  needs to be                                                               
     given  immunity  to help  convict  the  worse offender,  the                                                               
     state needs  to make that  decision and provide  the witness                                                               
     with immunity.  The goal of  the state would be  the greater                                                               
     good of punishing the greater  perpetrator. To find out what                                                               
     type  of  felony  the  witness  may or  may  not  have  been                                                               
     involved in  would provide the  state with  an investigative                                                               
     instrument that  she does not  trust the state  with because                                                               
     the state could decide not to grant immunity.                                                                              
                                                                                                                                
   There being  no questions  of Ms.  Billingslea, CHAIR  SEEKINS                                                               
   called the next testifier.                                                                                                   
                                                                                                                                
   MS. ALLISON MENDEL, representing the Alaska  Trial Lawyers and                                                               
   herself, asked to speak  to Section 19, which  relates to jury                                                               
   instructions about self-defense. She informed members that she                                                               
   primarily does appellate criminal  law in the  federal courts.                                                               
   She views the bill's biggest  weakness as the fact  that it is                                                               
   based upon  an attempt  to reverse  the results  of particular                                                               
   appellate  cases  that  the  prosecutors  did  not  like.  She                                                               
   cautioned that it is very difficult to draft a bill that fixes                                                               
   the result of a  specific case without having  many unintended                                                               
   consequences, Section 19 being a good example. She stated:                                                                   
                                                                                                                                
        First of all, appellate  cases - criminal  cases are                                                                    
        always the defendant appealing  because a prosecutor                                                                    
        can't appeal a jury verdict so  it doesn't even come                                                                    
        to your  attention until  the defendant  has won  an                                                                    
        appellate case.  Then the  question is  why did  the                                                                    
        defendant win  and what  can we  do about  it so  it                                                                    
        doesn't happen again. But, if you're  going to avoid                                                                    
        the expert appellate decision,  what you have  to do                                                                    
        is provide  clear  guidance to  the  trial judge  in                                                                    
        terms that everyone understands and won't  lead to a                                                                    
        lot more appellate cases. I think Section 19 clearly                                                                    
        doesn't do that. It talks about  the judge, prior to                                                                    
        agreeing to give a jury instruction, finding - quote                                                                    
        unquote -  plausible  evidence  to  warrant  a  jury                                                                    
        instruction on  self-defense. Plausible  evidence is                                                                    
        not a term of art  as far as I know,  or anyone I've                                                                    
        talked to. We don't know what  plausible evidence is                                                                    
        and therefore any case after this bill, there'd be a                                                                    
        question  on   appeal  whether   the  evidence   was                                                                    
        plausible or not.                                                                                                       
                                                                                                                                
        Ms. Parkes in her presenting this  bill to the House                                                                    
        committee, I wasn't  around when she  explained this                                                                    
        to the Senate committee,  says that this  adopts the                                                                    
        federal standards.  It  doesn't.  There  is  nothing                                                                    
        about plausible evidence  in the  federal standards.                                                                    
        The  federal   standard   talks   about  whether   a                                                                    
        reasonable  jury  could  find  self-defense  so  the                                                                    
        federal system just works differently. This does not                                                                    
        adopt federal standards;  it adopts a  standard that                                                                    
        no one knows what  it is and no  one can understand.                                                                    
        It also inexplicably, I think, expresses distrust of                                                                    
        the jury  in  determining  whether there's  a  self-                                                                    
        defense claim at  all. I  don't understand  why this                                                                    
        committee  would   want  to   have  the   judge  run                                                                    
        interference for the jury and say well, I don't want                                                                    
        the jury to think  about this self-defense  claim. I                                                                    
        want the judge to decide  if it's a good  one or not                                                                    
        and that seems  to me to  run against the  values of                                                                    
        the State of  Alaska and our  laws in general  - let                                                                    
        the facts go  to the  jury, let  the jury  decide. I                                                                    
        don't see  a harm  in  letting the  jury decide  the                                                                    
        self-defense claim. If it's  completely implausible,                                                                    
        why would the jury find it  as self-defense? I don't                                                                    
        know of any cases that illustrate how the jury finds                                                                    
        self-defense on the  basis of  no evidence.  I think                                                                    
        that this section is unnecessary and I think it does                                                                    
        more damage than repair to the law. Thank you.                                                                          
                                                                                                                                
   MS. CARMEN CLARK, testifying  on her own behalf,  directed her                                                               
   testimony  toward  the  "big  gulp   defense"  amendment.  She                                                               
   informed members she practices as a  criminal defense attorney                                                               
   primarily  involving  DUI  cases  and  listed  a  long  resume                                                               
   including jobs as the chief prosecutor for the Municipality of                                                               
   Anchorage   and   the   National    Highway   Traffic   Safety                                                               
   Administration  Alaska  DWI  attorney  for   four  years.  She                                                               
   explained in the  Conrad case, the  prosecutor argued  that it                                                               
   didn't matter whether  or not  the driver  was over  the limit                                                               
   when driving, as long as the driver was  over the limit within                                                               
   four hours after the arrest. She indicated  that DOL is asking                                                               
   the legislature to change the  DWI so that it  will not matter                                                               
   what the driver's legal limit is while driving.                                                                              
                                                                                                                                
   MS. CLARK  pointed out  the Conrad  case was  unusual. In  the                                                               
   normal DWI case, the driver is arrested and is asked to submit                                                               
   to a breath test approximately one hour  after the arrest. The                                                               
   State of  Alaska  crime lab  documentation  and notebooks  for                                                               
   instructing  state  troopers  and  police  officers  say  that                                                               
   alcohol is eliminated at .02 per hour. That means the only way                                                               
   one could argue he or she was below .08 at the time of driving                                                               
   would be if the breath test registered at or  below .10 at the                                                               
   time tested.  She  maintained that  in  her experience,  three                                                               
   years ago, the average blood alcohol  concentration of someone                                                               
   arrested for  DWI  in  Alaska was  .18,  which  is why  it  is                                                               
   unlikely that a case similar  to the Conrad case  will come up                                                               
   often. She pointed out:                                                                                                      
                                                                                                                                
        But when  it  does  come  up,  it's  the  difference                                                                    
        between one drink,  or a man  who weighs  180 pounds                                                                    
        could get to  .08 - if  you're talking four  to five                                                                    
        drinks and  that  includes with  food.  So what  the                                                                    
        Department of  Law  is  asking  you  to  do  is  not                                                                    
        eliminate  the   requirement  for   experts  because                                                                    
        experts do not show up in most DWI  cases - most DWI                                                                    
        cases don't even  go to  trial. What  they're asking                                                                    
        you to  do is  at that  very fine  line between  the                                                                    
        amount of alcohol we believe is illegal to drink and                                                                    
        drive and that very fine amount when you're suddenly                                                                    
        over - and  for most people  at .08 they  don't even                                                                    
        show any signs [indisc.] - man, you really shouldn't                                                                    
        drive, give  me your  keys.  So, I'm  asking you  to                                                                    
        leave it the way it is. There [are] going to be very                                                                    
        few cases  where the  breath  test concentration  is                                                                    
        tested within  the  usual  hour after  arrest.  It's                                                                    
        going to be so  low that a person  might actually be                                                                    
        able to say that  they weren't over the  legal limit                                                                    
        when they  were  driving. And  that  even gets  more                                                                    
        reduced because at the  time of arrest,  the officer                                                                    
        usually goes through  a series of  questions, asking                                                                    
        the person when they stopped  driving. Almost nobody                                                                    
        has alcohol in the car, which is really the only way                                                                    
        to do this defense if you're going to  be able to do                                                                    
        it very successfully.                                                                                                   
                                                                                                                                
        So, they're asking you  to change the  definition of                                                                    
        DWI so that it doesn't matter whether or not you are                                                                    
        intoxicated or impaired  at the  time of  driving so                                                                    
        long as somehow within the subsequent four hours you                                                                    
        were intoxicated  or had  a legally  impaired breath                                                                    
        alcohol concentration. So  I'm asking you  to reject                                                                    
        that.                                                                                                                   
                                                                                                                                
        And then I had a very quick  comment. With regard to                                                                    
        the purported  drug crime,  I think  you all  should                                                                    
        table that whole thing. Send it off  and ask them to                                                                    
        redraft  it.  I  sat  through  hours  and  hours  of                                                                    
        testimony and hours  and hours  of questions  and it                                                                    
        doesn't  appear  that   anybody  here  knows   -  we                                                                    
        understand  what   the   purpose   is   but   nobody                                                                    
        understands if it's  drafted very  well. So  I think                                                                    
        the question about how  do other states do  it was a                                                                    
        good one. I think  that whole part should  simply be                                                                    
        tabled, send the  Department of Law  off to  do some                                                                    
        investigation and come back with a  bill that's less                                                                    
        vague and less confusing as to how it works.                                                                            
                                                                                                                                
        And then the other thing that I'd  like to point out                                                                    
        has to do with - I  heard two different philosophies                                                                    
        going on in the  testimony over the last  many hours                                                                    
        that I've sat through. One is  this idea of personal                                                                    
        responsibility  for  people  who   [indisc.]  become                                                                    
        engaged in drug activity, which I  think was part of                                                                    
        purported drug  dealing  and a  part  of the  reason                                                                    
        while  we're  trying  to  reduce  that  self-defense                                                                    
        claim. I  find that  philosophy  definitely at  odds                                                                    
        with  the  new   felony  murder  rule   that's  been                                                                    
        proposed. If I go along with you  on a bank robbery,                                                                    
        if  I've   assumed  a   risk  [indisc.],   it  seems                                                                    
        inappropriate for my co-defendant  to be responsible                                                                    
        for my death.  So that's  my last  point and  then I                                                                    
        think it's been [indisc.] covered a great deal about                                                                    
        the  whole  concept  of  negligent  driving  causing                                                                    
        severe physical injury being  a felony and  I'd like                                                                    
        the court  to -  I'm  sorry, I  call  you the  court                                                                    
        because you're addressing [indisc.], but essentially                                                                    
        I'd like  you  all to  also  reject that  particular                                                                    
        proposal. It  is currently  a  misdemeanor, which  I                                                                    
        think is a significant enough crime  for someone who                                                                    
        might be speeding over the limit,  have a moose step                                                                    
        in front of them and have  their passenger have seat                                                                    
        belt [indisc.],  which, under  this law  would be  a                                                                    
        felony....                                                                                                              
                                                                                                                                
   CHAIR SEEKINS asked Ms. Clark to send him a summary of her                                                                   
   comments for distribution to committee members.                                                                              
                                                                                                                                
   He then announced that the committee would dedicate its                                                                      
   meeting on Monday, March 29, to SB 170. He adjourned the                                                                     
   meeting at 10:15 a.m.                                                                                                        

Document Name Date/Time Subjects