Legislature(2007 - 2008)BUTROVICH 205
04/03/2008 08:00 AM JUDICIARY
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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 (DOL). 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 lifted. 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 choices. 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.