Legislature(2005 - 2006)BELTZ 211

02/22/2005 03:30 PM Senate STATE AFFAIRS


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ SB 39 BALLOT PROPOSITIONS AND TITLES TELECONFERENCED
Heard & Held
*+ SB 95 COLLECTION OF DNA/USE OF FORCE TELECONFERENCED
Heard & Held
*+ SB 104 PERMANENT FUND DIVIDEND FRAUD TELECONFERENCED
Heard & Held
Bills Previously Heard/Scheduled
             SB  95-COLLECTION OF DNA/USE OF FORCE                                                                          
                                                                                                                                
SENATOR  GENE   THERRIAULT  announced   SB  95   to  be   up  for                                                               
consideration. He asked Senator Bunde to introduce the bill.                                                                    
                                                                                                                                
4:38:24 PM                                                                                                                    
                                                                                                                                
SENATOR CON BUNDE, prime sponsor,  explained that he had the bill                                                               
drafted as  a result of  a conversation with the  commissioner of                                                               
the Department of  Public Safety. He learned that  people who are                                                               
required to  submit to  DNA testing may  refuse to  cooperate and                                                               
the authorities may not force  compliance. Convicted people often                                                               
have quite a  resume of another crimes, he said,  so matching DNA                                                               
can  help solve  other unsolved  crimes. It's  logical, he  said,                                                               
that the state should be able  to use reasonable force to collect                                                               
a  DNA  sample  if  the   convicted  individual  decides  not  to                                                               
cooperate.  The  procedure isn't  invasive  it's  simply using  a                                                               
cotton swab on the cheek.                                                                                                       
                                                                                                                                
SB 95 is  an attempt to clear the backlog  of unsolved crimes and                                                               
perhaps  discourage   some  people  from   committing  additional                                                               
crimes.                                                                                                                         
                                                                                                                                
CHAIR  THERRIAULT asked  Senator  Bunde to  discuss  some of  the                                                               
backup material provided in the packets.                                                                                        
                                                                                                                                
SENATOR  BUNDE referenced  the letter  from the  Anchorage Police                                                               
Department  supporting SB  95  then said  the  other material  is                                                               
general background and information  on the effectiveness of using                                                               
DNA.                                                                                                                            
                                                                                                                                
CHAIR  THERRIAULT  remarked   the  language  "forced  collection"                                                               
sounds harsher  than a cotton swab  on the cheek. He  asked which                                                               
other states have implemented DNA collection laws.                                                                              
                                                                                                                                
LAUREN WICKERSHAM, staff  to Senator Bunde, said  she didn't know                                                               
which  states  use  reasonable  force  to  collect  DNA  but  the                                                               
database technology is new and growing quickly.                                                                                 
                                                                                                                                
CHAIR  THERRIAULT  said  his  staff   found  that  the  State  of                                                               
Washington uses  similar legislation  and he was  curious whether                                                               
the   sponsor  worked   with  the   drafters  to   develop  model                                                               
legislation.                                                                                                                    
                                                                                                                                
4:43:54 PM                                                                                                                    
                                                                                                                                
SENATOR BUNDE  emphasized this  is a  relatively new  concern and                                                               
some  in   law  enforcement  were  surprised   that  a  convicted                                                               
individual  could refuse  to  cooperate. The  crime  lab and  the                                                               
Department of Public Safety did provide input, he said.                                                                         
                                                                                                                                
CHAIR THERRIAULT  asked whether this  would apply only  to people                                                               
who were incarcerated and not be retroactive.                                                                                   
                                                                                                                                
SENATOR BUNDE replied he didn't intend it to be retroactive.                                                                    
                                                                                                                                
MS. WICKERSHAM added the bill  doesn't address whom; it addresses                                                               
how to collect for those who refuse.                                                                                            
                                                                                                                                
SENATOR CHARLIE  HUGGINS suggested  the sponsor narrow  the scope                                                               
of who may collect a DNA sample.                                                                                                
                                                                                                                                
SENATOR BUNDE replied  the bill was purposefully  drafted to cast                                                               
a broad net.                                                                                                                    
                                                                                                                                
SENATOR  KIN  ELTON  questioned whether  the  state  might  incur                                                               
liability or obligation once they  have collected the DNA sample.                                                               
Once the  DNA is  collected does  it go into  a databank  that is                                                               
secure and inviolate, he asked.                                                                                                 
                                                                                                                                
SENATOR  BUNDE replied  his  understanding is  that  DNA is  only                                                               
collected for  identification purposes and testing  for extensive                                                               
genetic   markers  wouldn't   occur.  He   assured  members   the                                                               
information is kept secure.                                                                                                     
                                                                                                                                
SENATOR  ELTON  asked  what happens  to  samples  collected  from                                                               
juvenile offenders.                                                                                                             
                                                                                                                                
SENATOR BUNDE replied  his staff confirmed that  privacy would be                                                               
maintained.                                                                                                                     
                                                                                                                                
4:49:48 PM                                                                                                                    
                                                                                                                                
SENATOR ELTON said he assumed  that most felonies were prosecuted                                                               
by  the  state and  he  wondered  which municipalities  prosecute                                                               
felonies.                                                                                                                       
                                                                                                                                
SENATOR BUNDE  replied none come  to mind,  but it is  in keeping                                                               
with the casts a wide net theory.                                                                                               
                                                                                                                                
CHAIR THERRIAULT asked Mr. Giffer to give his testimony.                                                                        
                                                                                                                                
MR.  GIFFER,   Alaska  State  Trooper  investigator,   spoke  via                                                               
teleconference  to  say that  this  bill  would be  important  in                                                               
working old  cases. Taking  a swab is  very non-intrusive  and no                                                               
one should get hurt in the process.                                                                                             
                                                                                                                                
CHAIR THERRIAULT asked Dean Guaneli to give testimony.                                                                          
                                                                                                                                
4:54:33 PM                                                                                                                    
                                                                                                                                
DEAN  GUANELI, chief  assistant attorney  general, Department  of                                                               
Law, expressed  support for  the bill for  the reasons  stated by                                                               
Senator Bunde  and Investigator Gifford.  DNA testing  has proven                                                               
to be  most effective in  solving crimes, convicting  the guilty,                                                               
and clearing the innocent. SB 95  makes it clear that samples may                                                               
be  collected  from  municipal offenders  who  are  convicted  of                                                               
assault. The  clarification is good  because research  shows that                                                               
collecting  DNA  samples  from  misdemeanor  offenders  solves  a                                                               
number of serious offenses.                                                                                                     
                                                                                                                                
He emphasized  that collecting DNA  samples by means  of swabbing                                                               
the inside  of the  cheek isn't an  intrusive procedure  and that                                                               
whether  force is  used or  not is  entirely within  the person's                                                               
control. Most  people choose  to cooperate,  but some  people who                                                               
are under  state supervision  elect to buck  the system  at every                                                               
opportunity.  He  suggested that  most  of  those who  refuse  to                                                               
cooperate would change their mind  if they were informed that the                                                               
law authorizes force.                                                                                                           
                                                                                                                                
Technology is  advancing quickly  and smaller samples  are needed                                                               
to conduct  DNA testing.  In fact,  the oil  in a  fingerprint is                                                               
getting  to be  enough  to  run a  DNA  test,  he said.  However,                                                               
because prisoner litigation is and  will continue to be an issue,                                                               
he  suggested   that  an  appropriate  immunity   clause  against                                                               
prisoner lawsuits is needed.                                                                                                    
                                                                                                                                
SENATOR  KIM  ELTON said  he  assumes  that municipalities  often                                                               
prosecute misdemeanor assault crimes.                                                                                           
                                                                                                                                
MR. GUANELI said that is correct.                                                                                               
                                                                                                                                
SENATOR  ELTON  asked where  the  cutoff  point might  occur  and                                                               
questioned whether a  DNA sample might be  collected if neighbors                                                               
got into a scuffle.                                                                                                             
                                                                                                                                
5:01:00 PM                                                                                                                    
                                                                                                                                
MR.  GUANELI  replied current  law  requires  DNA samples  to  be                                                               
collected  from anyone  convicted of  a crime  against a  person.                                                               
Misdemeanor assault typically occurs  in domestic situations, but                                                               
it could  happen in  the situation  posited and  that would  be a                                                               
crime against a person.                                                                                                         
                                                                                                                                
SENATOR ELTON  asked for confirmation  that the intent is  not to                                                               
go to lower level crimes.                                                                                                       
                                                                                                                                
MR. GUANELI said  that is not the intent; the  intent is for more                                                               
inclusion. Under  current law misdemeanor assaults  prosecuted by                                                               
a municipality aren't covered so one  of the things SB 95 does is                                                               
include those and make the system totally comprehensive.                                                                        
                                                                                                                                
CHAIR THERRIAULT summarized  that the expansion is  the same type                                                               
of crime prosecuted by another jurisdiction.                                                                                    
                                                                                                                                
MR. GUANELI agreed.                                                                                                             
                                                                                                                                
CHAIR  THERRIAULT  asked  what  happens   to  DNA  data  that  is                                                               
collected from minors once they become adults.                                                                                  
                                                                                                                                
MR. GUANELI replied juvenile  fingerprint information is retained                                                               
in  juvenile justice  systems and  he thought  DNA identification                                                               
was retained as  well. They are simply  identification tools; the                                                               
DNA markers checked  in an identification system  are referred to                                                               
as "junk DNA"  in the scientific community and  provide no useful                                                               
information  other than  identification.  Many parts  of the  DNA                                                               
system  disclose nothing  other than  identity and  that's what's                                                               
saved and analyzed, he said.                                                                                                    
                                                                                                                                
SENATOR ELTON  made the  point that there's  nothing in  law that                                                               
precludes  the state  from  analyzing the  DNA  for markers  that                                                               
would relate to medical or other genetic conditions.                                                                            
                                                                                                                                
MR.  GUANELI replied  misuse of  DNA information  became a  crime                                                               
under previous legislation, but he'd  have to review the statutes                                                               
to determine  whether the  state is authorized  to run  tests for                                                               
information other than identification.                                                                                          
                                                                                                                                
CHAIR THERRIAULT asked  whether it was Senator  Olson's bill that                                                               
touched on penalties for improper  use and/or distribution of DNA                                                               
information.                                                                                                                    
                                                                                                                                
SENATOR ELTON  recalled insurance  companies and  other interests                                                               
were at issue.                                                                                                                  
                                                                                                                                
SENATOR BUNDE  pointed out  that SB 95  doesn't expand  the tests                                                               
for DNA it simply addresses collection.                                                                                         
                                                                                                                                
5:05:51 PM                                                                                                                    
                                                                                                                                
CHAIR THERRIAULT read  the following from the State  of Idaho and                                                               
asked whether Alaska has a similar requirement.                                                                                 
                                                                                                                                
     When the  state accepts an offender  from another state                                                                    
     under any  interstate compact, or any  other reciprocal                                                                    
     agreement with any county, state  or federal agency, or                                                                    
     any other provision of law  whether or not the offender                                                                    
     is confined  or released the acceptance  is conditional                                                                    
     on the  offender providing a DNA  sample and thumbprint                                                                    
     impression if the offender was  convicted of an offense                                                                    
     that would qualify as a crime described in Section 19.                                                                     
                                                                                                                                
MR. GUANELI explained that registered  sex offenders are required                                                               
to  give a  DNA sample  whether  they're convicted  in Alaska  or                                                               
elsewhere,  but  non   sex  offenders  who  come   in  under  the                                                               
interstate process aren't  required to do so. There  are two ways                                                               
to address  that, he said. Although  he'd have to check  with the                                                               
interstate supervision  process, his first suggestion  is for the                                                               
Department  of  Corrections  to adopt  an  administrative  policy                                                               
stating   they  won't   accept   a   prisoner  under   interstate                                                               
supervision without taking  a DNA sample. Another  way to address                                                               
the issue would be to enact  a statute to require collection. The                                                               
latter would require drafting changes, but it is a possibility.                                                                 
                                                                                                                                
CHAIR THERRIAULT asked Portia Parker to come forward.                                                                           
                                                                                                                                
5:08:15 PM                                                                                                                    
                                                                                                                                
PORTIA  PARKER, deputy  commissioner, Department  of Corrections,                                                               
thanked  Senator  Bunde  for   introducing  the  legislation  and                                                               
expressed   departmental   support   for  the   bill.   Generally                                                               
corrections  officials  don't   have  difficulty  collecting  DNA                                                               
samples from  offenders, but just  knowing that  reasonable force                                                               
could  be  used   would  be  very  helpful.   The  Department  of                                                               
Corrections also supports the bill as  a way to close other cases                                                               
using  DNA. This  is  a real  need for  law  enforcement and  for                                                               
victims and for public safety, she said.                                                                                        
                                                                                                                                
The  collection  process  and the  policies  and  procedures  the                                                               
Department  of Corrections  and the  Department of  Public Safety                                                               
established cooperatively  when DNA samples were  first collected                                                               
is  working fairly  well,  she  reported, but  "this  would be  a                                                               
definite  to   the  department   in  fulfilling   that  statutory                                                               
obligation."                                                                                                                    
                                                                                                                                
CHAIR  THERRIAULT asked  her to  address  the interstate  compact                                                               
issue.                                                                                                                          
                                                                                                                                
MS. PARKER  said she hadn't contacted  the compact administrator,                                                               
but she  thought the department  would support that if  it didn't                                                               
interfere with  the interstate compact  rules with  other states.                                                               
"Although if other  states are requiring that  of offenders going                                                               
into  their state,  we probably  won't have  a problem  requiring                                                               
that."  It certainly  wouldn't be  a problem  if the  requirement                                                               
were in statute, she said                                                                                                       
                                                                                                                                
5:10:56 PM                                                                                                                    
                                                                                                                                
CHAIR THERRIAULT  questioned why  the state would  swap prisoners                                                               
and asked  her to  elaborate on what  actually happens  under the                                                               
compact.                                                                                                                        
                                                                                                                                
MS. PARKER explained that this  involves a probationer or parolee                                                               
in another state  who wants to move to Alaska  and typically it's                                                               
an  Alaskan  who  wants  to return  home.  Likewise,  Alaska  has                                                               
offenders from  outside the  state who want  to return  home once                                                               
they are  out of prison and  on probation or parole.  A mechanism                                                               
is established  whereby every state participating  in the compact                                                               
must  abide  by compact  rules.  Although  there are  exceptions,                                                               
"They pretty much have  to take ours who want to  go there and we                                                               
have  to take  theirs who  want  to come  here so  there is  that                                                               
movement."  Generally  it's a  good  process,  she said,  because                                                               
they're going  where they  have family  support, or  a job,  or a                                                               
school opportunity.                                                                                                             
                                                                                                                                
CHAIR THERRIAULT asked  Senator Bunde whether he  would object to                                                               
including language to make it  clear that if a convicted offender                                                               
were  to come  to Alaska  from another  jurisdiction, they  would                                                               
have to abide by the same rules as people convicted in Alaska.                                                                  
                                                                                                                                
SENATOR BUNDE said he wouldn't object; it seems logical.                                                                        
                                                                                                                                
SENATOR THOMAS  WAGONER questioned  how many  people move  in and                                                               
out of the state under the compact.                                                                                             
                                                                                                                                
5:12:42 PM                                                                                                                    
                                                                                                                                
MS. PARKER replied  she could get the information,  but last year                                                               
roughly  the same  number left  the  state under  the compact  as                                                               
returned home.                                                                                                                  
                                                                                                                                
SENATOR  WAGONER asked  if  his assumption  is  correct that  the                                                               
receiving parole officer is responsible for oversight.                                                                          
                                                                                                                                
MS. PARKER replied that's the  case since the compact adopted new                                                               
rules in  August 2004.  Probation or  parole violations  here are                                                               
subject to  Alaska conditions and consequences.  The same applies                                                               
to  offenders  sent out  of  state;  they  must comply  with  the                                                               
conditions in the jurisdiction in which they reside.                                                                            
                                                                                                                                
CHAIR THERRIAULT referenced page 1,  lines 6 and 7 and questioned                                                               
whether we  currently collect blood  samples or just rely  on the                                                               
oral swab.                                                                                                                      
                                                                                                                                
MS.PARKER replied the oral swab is used.                                                                                        
                                                                                                                                
CHAIR  THERRIAULT  referenced  the suggested  language  "may  use                                                               
reasonable force to collect" and  questioned whether it should be                                                               
expanded to say,  "use such means as are  reasonably necessary to                                                               
collect".                                                                                                                       
                                                                                                                                
MS. PARKER responded the department had no opinion on that.                                                                     
                                                                                                                                
SCOTT CAULDER testified via  teleconference and expressed concern                                                               
with the applicability of the  bill because it appears to address                                                               
an overly broad  range of things. Another issue  is that although                                                               
the  bill  targets notorious  criminals,  anybody  else might  be                                                               
eligible. He questioned what might  be considered reasonable when                                                               
"reasonable  force"  may  be used.  This  would  be  particularly                                                               
important when you're talking about juveniles, he said.                                                                         
                                                                                                                                
What this  boils down to is  "The individual has the  choice, but                                                               
their  choice is  no choice  and  this is  our way  to get  those                                                               
people who  are bucking  the system." He  asked the  committee to                                                               
consider whether that foundation is a  good reason for a law even                                                               
though it might be a good tool in the toolbox.                                                                                  
                                                                                                                                
5:20:30 PM                                                                                                                    
                                                                                                                                
CHAIR THERRIAULT asked Mr. Guaneli  what standard the court would                                                               
allow  in  determining what  is  reasonable  and if  unreasonable                                                               
force were used, whether the sample would be invalid.                                                                           
                                                                                                                                
MR.  GUANELI said  his view  is that  if unreasonable  force were                                                               
used  both  the  state  and  the  officer  would  be  subject  to                                                               
liability, but  the sample wouldn't  be jeopardized. In  terms of                                                               
what is reasonable, it's the  same as with any negligence action.                                                               
The standard  would be what  a reasonable officer would  do under                                                               
the  circumstances and  an expert  would validate  the action  if                                                               
litigation  were involved.  "It's difficult  to envision  all the                                                               
circumstances that  would face an  officer who is dealing  with a                                                               
recalcitrant inmate so the word  reasonable was chosen. The whole                                                               
concept  of reasonableness  is  reflected  throughout the  Alaska                                                               
statutes - throughout our constitution."                                                                                        
                                                                                                                                
SENATOR ELTON  pointed out that  inserting the language  "in this                                                               
state"  in two  places is  a limiting  element and  that language                                                               
seems to  apply to  felonies under  AS 11 or  AS 28.35.  Then the                                                               
language, "or  a law or an  ordinance" is used. Because  the word                                                               
"or" is used, he wondered whether  "in this state" applies to the                                                               
state statutes but not to an ordinance or law elsewhere.                                                                        
                                                                                                                                
MR.  GUANELI  said  the  qualifier "in  this  state"  would  mean                                                               
Alaska, Alaska  statutes, or Alaska municipal  statutes. If there                                                               
were  going  to  be  a  provision  that  talks  about  interstate                                                               
probation  supervision, you'd  have  to  add a  number  6 to  the                                                               
classes of people from whom samples  would be taken, he said. The                                                               
bill  was  drafted  that  way   so  it  would  include  municipal                                                               
offences. Standard  language used  throughout the statutes  is "a                                                               
law or ordinance  with elements similar to a  crime". That raises                                                               
the question of whether people  coming to Alaska who have already                                                               
served  their time  would  have  to submit  a  sample. Using  the                                                               
language, "in  this state"  would exclude  those people  from the                                                               
reach of this statute, he said.                                                                                                 
                                                                                                                                
SENATOR ELTON  asked if  his reading is  that using  "or" doesn't                                                               
interrupt the predicate "in this state".                                                                                        
                                                                                                                                
MR. GUANELI said it doesn't interrupt.                                                                                          
                                                                                                                                
CHAIR THERRIAULT announced  they would work with  the sponsor and                                                               
look  at the  interstate compact  issue before  hearing the  bill                                                               
again.                                                                                                                          
                                                                                                                                
5:25:32 PM                                                                                                                    
                                                                                                                                
SENATOR  BUNDE summarized  that people  who are  investigated for                                                               
minor crimes frequently have a  substantial criminal record so he                                                               
would  argue  for  including the  broader  definition  of  crimes                                                               
against  people and  that collecting  a  DNA sample  is the  21st                                                               
century fingerprint.                                                                                                            
                                                                                                                                
SB 95 was held in committee.                                                                                                    

Document Name Date/Time Subjects