Legislature(2007 - 2008)BUTROVICH 205

04/03/2008 08:00 AM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Recessed to 1:30 pm --
Moved SCS CSHB 65(JUD) Out of Committee
Moved SCS CSHB 307(JUD) Out of Committee
Heard & Held
Moved SCS CSHB 88(JUD) Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
              HB 359-PROBATION AND MINOR CONSUMING                                                                          
CHAIR FRENCH announced  the consideration of HB  359. [Before the                                                               
committee was CSHB 359 (FIN).]                                                                                                  
1:48:57 PM                                                                                                                    
REPRESENTATIVE RAMRAS,  Sponsor of HB  359, said this  bill seeks                                                               
to  take  advantage  of the  greatest  vocational  rehabilitation                                                               
program in the nation by helping  minors on probation to join the                                                               
armed services. Current Alaska law  requires the court to place a                                                               
minor who  is convicted of  consuming on probation until  age 21.                                                               
"As long as the  State of Alaska has its thumb  on you, Uncle Sam                                                               
can't  own you,  which is  their  expectation when  you join  the                                                               
armed services," he said.                                                                                                       
1:50:19 PM                                                                                                                    
EMILY  BEATLEY, Staff  to Representative  Ramras, explained  that                                                               
under the current minor consuming  statute, the court is required                                                               
to place  a convicted person on  probation for one year  from the                                                               
date of  conviction or until  the person  reaches the age  of 21,                                                               
whichever is later.  For a 16 year old that  can mean a probation                                                               
term of 5 years  with no possibility for it to  be lifted. HB 359                                                               
adds a subsection to AS  04.16.050 giving courts the authority to                                                               
terminate  the probation  with the  exception  of habitual  minor                                                               
consuming. The bill also amends  the current statute establishing                                                               
new  probation terms  of  up to  one year  for  first and  second                                                               
violations. No  change is  made to  the habitual  minor consuming                                                               
probation term. HB  359 offers good young Alaskans  who have made                                                               
mistakes the  opportunity to learn,  to grow, and to  work toward                                                               
becoming more disciplined and law-abiding individuals.                                                                          
CHAIR  FRENCH  noted  that  alcohol  crimes  are  different  than                                                               
others.  It's possible  to be  convicted of  DWI at  age 16  even                                                               
though  for other  crimes  that same  person  would be  processed                                                               
through the juvenile system. He asked how this crime is treated.                                                                
MS. BEATLEY deferred to Ms.  Carpeneti with the Department of Law                                                               
1:52:35 PM                                                                                                                    
ANNE  CARPENETI, Assistant  Attorney General,  Criminal Division,                                                               
Department of  Law (DOL), explained  that Title 47  provides that                                                               
minor  consuming is  a  crime  that is  not  subject to  juvenile                                                               
jurisdiction. The  legislature made  that change in  1994. Before                                                               
that  it  was   considered  a  delinquent  act   over  which  the                                                               
Department of Health and Social Services had jurisdiction.                                                                      
CHAIR  FRENCH added  that it's  a charging  decision the  officer                                                               
makes  about whether  to write  a minor  consuming citation.  But                                                               
once the citation is written, it's an adult offense.                                                                            
MS. CARPENETI  agreed; officers do  use discretion  and sometimes                                                               
take the minor home. Sometimes,  though, it's better to write the                                                               
citation and have a consequence for the young person.                                                                           
CHAIR  FRENCH said  he imagines  that 13-15  year olds  often get                                                               
charged  with  minor  consuming  and  get  caught  up  under  the                                                               
probation provisions.                                                                                                           
MS. CARPENETI agreed.                                                                                                           
CHAIR FRENCH  said he understands that  for the last few  years a                                                               
15-year-old,  for example,  who is  convicted of  minor consuming                                                               
stays on probation until age 21.                                                                                                
MS.  CARPENETI  explained  that  that  was  a  well-intended  but                                                               
unsuccessful  effort in  2001 to  deal with  the huge  problem of                                                               
underage drinking  in this state. The  unintended consequence was                                                               
that  young   people  can't  join   military  service   while  on                                                               
probation, and this bill intends to address that.                                                                               
1:54:50 PM                                                                                                                    
CHAIR FRENCH  asked what the state  can hold over a  youth who is                                                               
on probation.                                                                                                                   
MS.  CARPENETI   said  there's   no  probation   supervision  for                                                               
misdemeanors  in  our state,  but  the  statute mandates  certain                                                               
things that kids have to  do under these circumstances. Probation                                                               
would at least allow enforcement  of conditions, like going to an                                                               
alcohol information class.                                                                                                      
CHAIR FRENCH asked the maximum penalty for minor consuming.                                                                     
MS. CARPENETI said  that for the first and  second violation it's                                                               
a violation  and there's  no jail  time. A  third violation  is a                                                               
class B misdemeanor.                                                                                                            
CHAIR  FRENCH noted  that page  2, line  9, provides  a $200-$600                                                               
fine for the first violation.                                                                                                   
MS.  CARPENETI  added  that  for a  second  or  repeat  violation                                                               
there's a $1,000  fine, but the court has the  ability to suspend                                                               
half of the  fine. The third violation is a  B misdemeanor and as                                                               
such has many more options.                                                                                                     
CHAIR FRENCH asked if the cumulative penalties still apply.                                                                     
MS.  BEATLEY relayed  that subsection  (e) on  page 3,  says that                                                               
persons convicted under subsections (b)(2),  (c), or (d) shall be                                                               
placed  on probation.  Each is  an individual  violation and  the                                                               
probation periods are listed separately.                                                                                        
CHAIR  FRENCH asked  the  maximum probation  period  for a  first                                                               
offense, it this bill passes.                                                                                                   
MS. BEATLEY said for the first  and second offense it's up to one                                                               
year.  She  agreed  with Chair  French  that  habitual  consuming                                                               
hasn't been adjusted because it's a separate criminal violation.                                                                
CHAIR FRENCH asked for an explanation of Section 5.                                                                             
1:58:27 PM                                                                                                                    
MS.  BEATLEY relayed  that that  was added  because there  was no                                                               
ability  to  make  a  motion  to  the  court  to  lift  probation                                                               
conditions.  This   section  allows  someone  who   has  met  the                                                               
conditions of  their probation to make  a motion to the  court to                                                               
have the balance of their probation period terminated.                                                                          
SENATOR McGUIRE asked if this section models any other statute.                                                                 
MS. BEATLEY said no, it comes from legislative drafters.                                                                        
SENATOR McGUIRE  asked the definition  of the phrase  "good faith                                                               
effort" on page 4, lines 1 and 7.                                                                                               
MS.  BEATLEY  said  the  House  Judiciary  Committee  added  that                                                               
phrase; it was to be at the court's discretion.                                                                                 
SENATOR  McGUIRE asked  if "good  faith  effort" is  meant to  be                                                               
something  beyond   entering  into  the  repayment   plan  that's                                                               
mentioned on line 2.                                                                                                            
MS.  BEATLEY relayed  her understanding  that the  repayment plan                                                               
would  be entered  into after  probation is  lifted so  the state                                                               
could continue to recover the  fines after the probation term was                                                               
2:01:13 PM                                                                                                                    
CHAIR FRENCH asked if this  section applies prospectively or also                                                               
to those currently on probation.                                                                                                
MS.  BEATLEY  said  she  understands  it  would  apply  to  those                                                               
currently under  probation. The fiscal  note decreases  over time                                                               
reflecting the  3,500 folks that would  be able to motion  to the                                                               
court  for  their  probation  to   be  lifted.  Responding  to  a                                                               
question, she  explained that  3,500 folks  would come  under the                                                               
bill and the court assumes that  about 2,500 would be 17 years of                                                               
age  or  older  and  actually  motion  to  the  court  for  their                                                               
probation to be lifted.                                                                                                         
2:02:25 PM                                                                                                                    
SENATOR WIELECHOWSKI  observed that  this should have  a positive                                                               
impact  on  the  state  treasury, but  the  fiscal  note  doesn't                                                               
reflect that.                                                                                                                   
MS. BEATLEY deferred to Mr. Wooliver.                                                                                           
CHAIR FRENCH  asked why  petitioning the  court shouldn't  be the                                                               
approach for all the probation terms.                                                                                           
MS. BEATLEY  explained that some House  Finance Committee members                                                               
thought the probation  periods were excessive and this  was a way                                                               
to address that.                                                                                                                
CHAIR FRENCH  commented that the  wise members of  that committee                                                               
picked a year of probation.                                                                                                     
REPRESENTATIVE RAMRAS  said he gladly accommodated  that point of                                                               
view  to  maintain  the  momentum,  but  he  shares  the  Chair's                                                               
interest in this particular provision.  There was some thoughtful                                                               
debate about  how to deal with  young people who did  "not really                                                               
doing anything that bad." The  conversation was tactful and there                                                               
were varying degrees  of tolerance for the  one-time offender who                                                               
gets caught  in the legal system  for up to four  years. We tried                                                               
to bring  some balance there  knowing that if the  Senate members                                                               
thought otherwise,  there would be  an opportunity to  remedy it,                                                               
he said.                                                                                                                        
CHAIR FRENCH agreed that it seems like a good idea.                                                                             
2:05:55 PM                                                                                                                    
DOUGLAS WOOLIVER,  Administrative Attorney, Alaska  Court System,                                                               
explained that the  fiscal note is based on the  number of people                                                               
under age  21 who are  currently on probation under  the existing                                                               
law. There  are about  3,500 people. He  assumed that  those most                                                               
likely to  petition the court  would be  age 17-21 and  there are                                                               
about 2,500  people in  that category  today. He  further assumed                                                               
that 25 percent of those would  petition the court. If 25 percent                                                               
of  the 3,500  people petition  in year  one, another  1,000 will                                                               
likely petition in  the second year and thereafter  the number of                                                               
people coming to the court doesn't warrant a fiscal note.                                                                       
CHAIR FRENCH summarized that you  expect a flurry of activity the                                                               
first year and a reduction thereafter. Mr. Wooliver agreed.                                                                     
2:07:29 PM                                                                                                                    
THOMAS CAPSAN, Brigadier General,  Army National Guard, said this                                                               
is an important bill and he  appreciates it more all the time. He                                                               
retired from the  Anchorage Police Department after  21 years and                                                               
during that  time he had to  enforce a similar law  for juveniles                                                               
drinking. When he retired he  joined the National Guard full time                                                               
and was  in charge of the  counter-drug unit. Now he's  in charge                                                               
of recruiting and  retention with the Alaska  Army National Guard                                                               
and he  sees kids  trying to  make good  choices, but  they can't                                                               
enter the  military because  they are screened  out due  to their                                                               
probation  status. This  bill is  critical to  provide a  pool of                                                               
people options  so they can continue  on the path of  making good                                                               
2:11:07 PM                                                                                                                    
CHAIR FRENCH, finding  no one else who wished  to testify, closed                                                               
public testimony and announced he  would hold HB 359 overnight to                                                               
think about the policy choice in Section 5.                                                                                     

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