Legislature(2003 - 2004)
04/02/2004 09:10 AM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 170 - CRIMINAL LAW/SENTENCING/PROBATION/PAROLE SENATOR OGAN moved to adopt version I as the working document before the committee. Without objection, the motion carried. MR. DEAN GUANELI, Chief Assistant Attorney General, Criminal Division, Department of Law, thanked the committee for the hard work it has done on SB 170. He then offered to answer questions. CHAIR SEEKINS asked Mr. Guaneli to standby because the committee was given two proposed amendments from the Public Defender's Office on short notice. SENATOR OGAN referred to Section 17 on page 10 of version I, regarding violation of custodian's duties, and said he understands the intent but has spoken with foster parents who have ended up being third parties for foster children who got in trouble. He said the intent is to go after people who blatantly disregard their duty and are not diligent about holding the released party accountable. He said Senator French made some excellent points about the risk to the public when people fall down on those duties. He pointed out that in reality, some infractions do not get reported. For example, if the court orders the offender to be at home by 10:00 and the custodian does not report the offender at 10:01 for not being home, the custodian could be guilty of a class A misdemeanor if the offender was a felon. He expressed concern that the idea is to hold people accountable and not to criminalize every minor infraction, but the bill is not written that way. MR. GUANELI said he had a couple of responses to Senator Ogan's concerns. He said he does not believe Section 17 covers a situation of foster parents whose children get in trouble. Line 12 specifically refers to a person released under AS 12.30, which are the bail statutes. He said theoretically that could involve someone under 18 who is charged with drunk driving, but most juvenile offenses are dealt with in juvenile court, which falls under Title 47. He continued: If the court says something like 'be in at dark,' I think there's a range of reasonableness that has to be applied but if a judge thinks it's important enough that a person have a specific curfew at a specific hour, then I guess then the question is - and the judge directs the custodian, you know, if this person isn't in by 10:00, I'm ordering you to immediately report that to the police - are you willing to do that? Yes I am, your honor. You understand that there are penalties associated with that? Yes I do, your honor, and I'm still willing to do that. I guess to me it's a judicial decision that 10:00 is more important than 10:01 and I'd rather leave it to the judge to make that decision than someone who has undertaken responsibility and given a promise to the judge that they would undertake that responsibility. And when you're talking about people who are released on felony offenses, I think that that is a weighty responsibility. I know the judge is always very good about making sure the custodian understands their duties so I guess I'd have to say I think the system works by allowing the judge to make a determination whether 10:00 is so important or whether daylight hours, which gives them a little more flexibility. That's my response. CHAIR SEEKINS said he agrees that with adult offenses where the conditions of release are the conditions of imprisonment, they would have no leeway if they were in jail. He said if he agreed to take on a certain responsibility, he should live up to the terms of that agreement. He believes that provision was meant to protect the public as much as anything else. He then said when one talks about the boundaries of an infraction, the infraction becomes a whole new term. SENATOR FRENCH said the Municipality of Anchorage has had this law on its books for a couple of years at least and he is not aware of any third party custodians being egregiously overcharged. He said the legislation is crafted to relate the penalty to the offense and every person has the right to go before a jury if charged with a crime. He doubted a jury would convict a person for not reporting a 10:01 violation on a 10:00 curfew. SENATOR THERRIAULT said a constituent asked him to consider a potential amendment. The constituent is a referee who was assaulted by a parent as the result of his officiating a game. The constituent asked him to consider creating a heightened crime for assaulting a sports official. He countered by saying he would consider adding that crime to the list of aggravators for sentencing. The legal drafters suggested adding a number 31 to AS 12.55.155. He read the proposed amendment: The defendant knowingly directed the conduct constituting the offense at a sports official or referee during or because of the exercise of duties as a sports official or referee. He asked Mr. Guaneli if he had any comments on whether such an amendment would be workable. MR. GUANELI said that when presumptive sentencing circumscribes the sentencing discretion, an aggravating factor can allow the judge to go beyond that. Aggravating factors currently apply to those who knowingly direct illegal conduct toward a police officer or emergency responder. He noted that a few bills were recently introduced to expand the coverage to include teachers, education officials and possibly clergymen. He said the concern is whether the legislature wants to expand aggravating factors that were provided for people involved in inherently dangerous occupations to a wider range of activities that people engage in. He said that is a matter of legislative policy. He concluded that when the judges feel the conduct is egregious enough, the judge has the sentencing authority to address that so he was not certain that expanding those protections to a referee is necessary to achieve justice. SENATOR OGAN said he has trouble creating different classes of people for which a crime is elevated because of that particular class of person. He believes the elevated level is justified for police officers and emergency responders because they must put themselves in harms way. SENATOR FRENCH shared Senator Ogan's concerns and said that judges know when an outrageous crime has happened in their communities, which could include a crime against a referee. CHAIR SEEKINS jested that he has found sports officials to be very aggravating at times. SENATOR THERRIAULT said he did not intend to distribute the amendment and was asking to determine the correct policy call. SENATOR FRENCH moved to adopt Amendment 1, which reads as follows. A M E N D M E N T 1 OFFERED IN THE SENATE To: CSSB 170(JUD) Work Draft 23-GS1024\I 4/1/04 Page 9, line 15 1(4) with criminal negligence and when as determined by a chemical test taken within four hours after the alleged offense was committed, there is 0.05 percent or more by weight of alcohol in the person's blood or 50 milligrams or more of alcohol per 100 milliliters of blood, or when there is 0.05 grams or more of alcohol per 210 liters of the person's breath, causes serious physical injury under AS 11.81.900(55)(B) to another person by means of a dangerous instrument. CHAIR SEEKINS objected for the purpose of discussion and asked for a cross-reference to the correct page in version I. SENATOR FRENCH said it would replace language on page 9, line 15. He then said the idea is to avoid prosecuting the "cell phone, make-up application on slippery roads" scenarios that could cause car collisions that might result in a charge of assault in the third degree. It narrows the scope of the bill to those instances where there's enough alcohol involved to justify a finding of criminal negligence. He said in his experience, .05 percent amounts to at least three or four beers. MR. GUANELI read the definition as follows: Serious physical injury means a physical injury caused by an act performed under circumstances that create a substantial risk of death or physical injury that causes serious and protracted disfigurement, protracted impairment of health, protracted loss or impairment of the function of a body member, organ or that unlawfully terminates a pregnancy. He explained that as a practical matter, that often amounts to an injury more serious than a broken limb because most juries do not find a broken limb to be a protracted loss. He said the quintessential example of a serious physical injury is someone who ends up in a wheelchair. SENATOR FRENCH said the annotated statutes say that a broken jaw constitutes a serious physical injury and a grand jury could find injuries to the eyes and skull to be serious physical injuries. He said the (a) subsection is more inclusive and the (b) subsection is fairly narrow. CHAIR SEEKINS asked Ms. Wilson to testify. MS. LINDA WILSON, Deputy Director, Public Defender Agency, Department of Administration, said the effort made to trim down the definition of "serious physical injury" is in subsection (a), which requires physical injury caused by an act performed under circumstances that create a substantial risk of death. She said anything involving a car accident creates a risk of death so that could apply to any physical injury that resulted from an accident. She said the definition in (a) is overly broad and would include any scratch or bump that resulted from a car accident. She said limiting it to the (b) definition gets to the targeted group - that being people who sustain serious physical injuries. She disagrees with Mr. Guaneli about what qualifies as a serious physical injury. She added that including the alcohol requirement pinpoints the targeted group and avoids the unintended group, such as cell phone users. SENATOR OGAN asked why it is narrowed to alcohol use only and does not include drug use. He noted he would like it to apply to marijuana and controlled substance use. MR. GUANELI said, in regard to Senator French's comment that this would avoid prosecutions based on cell phone use, for example, he does not believe the state prosecutes anyone for collisions caused by cell phone use. Senator Ogan introduced a bill several years ago to at least allow the state to revoke a person's license if no crime was committed but a person died as a result of a crash. He spoke to Senator Ogan at that time about people driving too fast on slippery roads and causing a fatality as a result. The state simply cannot prosecute those cases because that behavior does not rise to a prosecution level under criminal negligence and the standard mental states. As a result, Senator Ogan's bill was enacted but it only gives a judge the discretion to take away someone's license. He said there is a much more serious offense called criminally negligent homicide but those prosecutions are very rare. He pointed out that prosecutors nationwide simply cannot prosecute every driver in a car crash that causes a death. Cases of death that result from car crashes are handled under wrongful death in civil courts or through insurance claims. MR. GUANELI said with respect to narrowing the definition of serious physical injury, Ms. Wilson indicated that the elements could be met by minor injuries resulting from a car crash. He remarked that a horrendous car crash caused by a person acting with criminal negligence where the car is completely mangled but only minor injuries are sustained is equally deserving of punishment because it is only fortuitous that the person walked away with minor injuries. The Department of Law favors the original version. He believes this version is much too narrow and will frustrate the department because it will be unable to prosecute. MS. WILSON said she sees two parts to Senator Ogan's question about controlled substances. She explained: Controlled substances, I believe, if you're driving I believe with a controlled substance other than alcohol, I think you probably could be charged under the impairment statute, which would probably qualify for reckless. I think you could address controlled substances beyond alcohol, which seemed to be the targeted group with that. On the question about that the DAs or the prosecutors cannot prosecute, we never prosecute, I certainly want to caution against adopting that approach. The DAs have an incredible amount of discretion and, unfortunately, sometimes they charge things - they overcharge and I don't think anybody can dispute that. I keep hearing over and over again 'trust us, trust us, trust us' but our laws should not depend on the discretion of a DA, especially a single DA. These things are and can be overcharged and to say that they're not is disingenuous. I haven't wanted to bring up the Wally Taslow (ph) case but that's a perfect example of overcharging. You had a vehicular accident, not much injury, and it was charged much higher than it should have been so to say that it's not overcharged is not very believable. SENATOR OGAN said because he believed some cases were undercharged, he introduced legislation 10 years ago. He said it took him eight years to get that law changed. CHAIR SEEKINS said in trying to figure out what is fair and right, regarding public safety, that to encourage selective prosecution is very dangerous. He said he must feel comfortable that the intent of the legislation is the right thing to do before he will pass the bill out of committee. He said he is attempting to do the right thing, not what is least controversial. CHAIR SEEKINS reminded members that Amendment 1 was pending and asked if there was further discussion. SENATOR FRENCH thanked members for the discussion on Amendment 1 but said he was persuaded by Mr. Guaneli that the law as written can be used in the right way. He then withdrew Amendment 1 without objection. SENATOR OGAN moved to adopt Amendment 2, which reads as follows. A M E N D M E N T 2 OFFERED IN THE SENATE To: CSSB 170(JUD) Work Draft 23-GS1024\I 4/1/04 Page 3, line 9: Sec. 4 AS 04.11.491 is amended by adding a new subsection to read: (g) If a municipality or established village has adopted a local option under (a)(1),(2),(3), or (4), or (b)(1),(2), or (3) of this section, the municipality or established village, as part of the local option question or questions placed before the voters, may (1) adopt an amount of alcoholic beverages that may be imported that is less than the amounts set out in AS 04.11.150(g); (2) adopt an amount of alcoholic beverages that would give rise to a presumption that the person possessed the alcoholic beverages for sale; the amounts adopted under this paragraph may be lower than those set out in AS 04.11.010(c); (3) adopt an increased penalty for furnishing or delivery of alcoholic beverages to persons under 21 pursuant to AS 04.16.051(d)(3). Page 4, lines 17-19: Sec. 7 AS 04.16.051(d) is amended to read (d) A person acting with criminal negligence who violates this section is guilty of a class C felony if (1) within the five years preceding the violation, the person has been previously convicted under (A) this section; or (B) a law or ordinance of this or another jurisdiction with elements substantially similar to this section; [OR] (2) the person who receives the alcoholic beverage negligently causes serious physical injury to or the death of another person while under the influence of the alcoholic beverage received in violation of this section; in this paragraph, (A) "negligently" means acting with civil negligence; and (B) "serious physical injury" has the meaning given in AS 11.81.900; or (3) the violation occurs within the boundaries of a municipality or the perimeter of an established village that has adopted a local option and the increased penalty of a class C felony under AS 04.11.491. CHAIR SEEKINS objects for the purpose of discussion. SENATOR OGAN says this amendment makes it a local option for people who live in areas who have voted to be "dry" to ratchet up the penalties for offenders who supply alcohol to minors. Since the community has identified alcohol as a particular problem, the "local option" part of the legislation would allow the local community to put it on the ballot and, for example, raise the offense from a misdemeanor to a felony. MS. WILSON agreed that is exactly what the amendment does. CHAIR SEEKINS asked Ms. Wilson to provide an explanation for the amendment and the purpose for proposing it. MS. WILSON said the point of the amendment was to let the local option area choose how to deal with those who supply alcohol to a minor. It lets local areas choose whether or not they want to ratchet up the offense from a misdemeanor to a class C felony. CHAIR SEEKINS asked Ms. Wilson if she is familiar with the definition of an established village under statute, and pointed out that it is any group of 25 people. He asked her if she believes that we should allow any group of 25 people, at their own discretion, to vary the state penalty. MS. WILSON suggested tightening the definition of an established village. SENATOR FRENCH asked if the municipality or village could set the infraction above a Class C felony, i.e., if the local option areas could label the offense as a Class B or Class A felony. MS. WILSON referred to section 7, which allows an increased penalty if there are prior convictions. She suggested adding an option in section 4 to allow for increased penalties and then limit the increase. SENATOR OGAN recognized that local areas must already adopt the local option as law and questioned the criteria of an "established village" in regards to the ages of the village members. In that light, he is hesitant to extend too much leeway to village members for the purpose of law interpretation. SENATOR FRENCH proposed to amend the amendment in Sec. 4, subparagraph 3, to read "adopt an increased penalty of a 'C' felony for furnishing or delivery of alcoholic beverages to persons under 21 pursuant to AS 04.16.051(d)(3)". CHAIR SEEKINS asked and heard no objections but voiced concern regarding the change of the level of penalty and asked for further discussion. MR. GUANELI said he understands from most village leaders that there are two purposes for the local option laws, which create immediate benefit to village society: 1) stops domestic abuse and crimes by adults therefore lessening social problems and 2) teaches young people that use of alcohol is unacceptable. The long-term goal of the villagers is to limit the use of alcohol, especially to young people. The original draft reflects these goals. Dry villagers are particularly offended by people supplying alcohol to minors since they made the deliberate effort to vote the village dry. He feels this current draft puts an additional burden on the villagers to hold additional elections. TAPE 04-32 SIDE B MR. GUANELI added that he thought we ought to uphold the intent of the villagers who voted to go dry; it ought to be an aggravated offense and recognized as such. CHAIR SEEKINS iterated that he is most interested in the amendment, which could allow unincorporated groups to have too much leeway. He also questioned the need to revise the current penalty. SENATOR OGAN stated the people in the villages should have the ability of self-determination to decide whether they have a problem and how to address the problem. This amendment serves that purpose. SENATOR FRENCH clarified that currently, the law states the first offense is a misdemeanor and the second offense is a felony. He states that the effect of the amendment basically allows local areas the option of raising the level of the first offense to a felony or leaving it as a misdemeanor. SENATOR FRENCH added - to the point that the local areas decide whether they want to be dry or not. He stated support for the amendment. SENATOR OGAN opined that he is willing to give the local option but would rather the state set the penalties. A roll call vote was taken. Amendment 2 failed with Senators Ogan and French voting in favor and Senators Therriault and Seekins voting against. CHAIR SEEKINS referred to a letter received from Legal Services and the Revisor of Statutes regarding section 32 of the current bill. A M E N D M E N T 3 "*Sec 32 AS 47.12.310 (c) is amended to read: (c) 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." CHAIR SEEKINS heard no objections to the amendment, recognized there was also an amendment to the title and directed the committee's focus to Section 25, which was also included as a concern in the memorandum from Legal Services. MR. GUANELI expressed concern over the suggested revised wording and would prefer to have time to review it. His main concern was about interpretation in a court of law and he wants to ensure that the language written in the document is clear. CHAIR SEEKINS asked that Amendment 3 be withdrawn for the moment. CHAIR SEEKINS asks for public testimony and hearing none SB 170 is moved out of committee.