Legislature(2003 - 2004)
04/21/2004 01:53 PM House FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE FINANCE COMMITTEE
April 21, 2004
1:53 P.M.
TAPE HFC 04 - 92, Side A
TAPE HFC 04 - 92, Side B
TAPE HFC 04 - 93, Side A
CALL TO ORDER
Co-Chair Williams called the House Finance Committee meeting
to order at 1:53 P.M.
MEMBERS PRESENT
Representative John Harris, Co-Chair
Representative Bill Williams, Co-Chair
Representative Kevin Meyer, Vice-Chair
Representative Mike Chenault
Representative Eric Croft
Representative Hugh Fate
Representative Richard Foster
Representative Mike Hawker
Representative Reggie Joule
Representative Carl Moses
Representative Bill Stoltze
MEMBERS ABSENT
None
ALSO PRESENT
Susan Parkes, Deputy Attorney General, Criminal Division,
Department of Law; Ernesta Ballard, Commissioner, Department
of Environmental Conservation; Dan Easton, Director,
Division of Facility Construction and Operation, Department
of Environmental Conservation; Ron Wolfe, Corporate
Forester, Sealaska Corporation; Representative Paul Seaton;
Cindy Cashen, Mothers Against Drunk Driving, Juneau; Mike
Barnhill, Assistant Attorney General, Department of Law; Tom
Wright, Staff to Representative Harris; Susan Burke,
Attorney, Juneau; Larry Meyers, Deputy Director, Tax
Division, Department of Revenue
PRESENT VIA TELECONFERENCE
Gunnar Knapp, Economics Professor, University of Alaska,
Anchorage
SUMMARY
HCR 28 Relating to the socioeconomic impacts of salmon
harvesting cooperatives.
CS HCR28(FIN) was REPORTED out of Committee with a
DO PASS recommendation and two zero fiscal impact
notes.
HB 244 An Act relating to the Code of Criminal Procedure;
relating to defenses, affirmative defenses, and
justifications to certain criminal acts; relating
to rights of prisoners after arrest; relating to
discovery, immunity from prosecution, notice of
defenses, admissibility of certain evidence, and
right to representation in criminal proceedings;
relating to sentencing, probation, and
discretionary parole; amending Rule 16, Alaska
Rules of Criminal Procedure, and Rules 404, 412,
609, and 803, Alaska Rules of Evidence; and
providing for an effective date.
HB 244 was heard and HELD in Committee for further
consideration.
HB 546 An Act relating to regulation of the discharge of
pollutants from timber-related activities under
the National Pollutant Discharge Elimination
System; relating to waste treatment and disposal
permits; making conforming amendments; and
providing for an effective date.
CSHB 546(JUD) was REPORTED out of Committee with
individual recommendations and one previously
published fiscal impact note.
HB 552 An Act relating to gambling and gaming.
CSHB 552(FIN) was REPORTED out of Committee with
individual recommendations and two new
indeterminate fiscal impact notes.
HOUSE CONCURRENT RESOLUTION NO. 28
Relating to the socioeconomic impacts of salmon
harvesting cooperatives.
Vice-Chair Meyer MOVED to ADOPT Work Draft 23-LS1419,
Version V, Utermohle, dated 3-31-04, as the version of
legislation before the Committee. There being NO OBJECTION,
it was so ordered.
REPRESENTATIVE PAUL SEATON explained that HCR 28 was brought
forward at the recommendation of the joint legislative
Salmon Industry Task Force that convened for the last two
sessions. The resolution requests that the University of
Alaska and its subunit study the socioeconomic effects of
the management regime in the Chignik Cooperative fishery
because the Task Force lacked data on which to base
decisions. The short timeframe led to a $100 thousand fiscal
note. The new version removed the date and requested that
the University continue its studies. He noted that the
Institute of Social and Economic Research (ISER) had
conducted studies on the Chignik fishery, which were based
on fishermen's surveys of the economic impacts on
themselves, but did not address the economic impacts on the
community. Representative Seaton pointed to the zero fiscal
note and discussed a couple of the public policy issues.
GUNNAR KNAPP, ECONOMICS PROFESSOR, UNIVERSITY OF ALASKA
ANCHORAGE, INSTITUTE OF SOCIAL & ECONOMIC RESEARCH (ISER),
VIA TELECONFERENCE, ANCHORAGE, spoke representing himself
and ISER. He stated that the Chignik Salmon Cooperative is
an issue that has received attention regarding its effects
on the community. He thought that this issue deserved study
and the University would assist as its budget allows.
Representative Hawker referred to the letter from the United
Fishermen of Alaska (UFA), (copy on file), asking if the
Committee Substitute addresses their concerns and whether
the studies look beyond the existing cooperative.
Representative Seaton replied that Chignik is the only
allocative cooperative in the state that allocates a portion
of the fish to fishermen. The intent is to generate
information in order to make recommendations to the Board of
Fish to establish public policy. The other cooperatives are
not allocative and Chignik is the first cooperative to be
studied.
Representative Hawker commented that the UFA supports HCR 28
overall.
Representative Foster MOVED to report CS HCR28(FIN) out of
Committee with individual recommendations and the
accompanying fiscal notes. There being NO OBJECTION, it was
so ordered.
CS HCR28(FIN) was REPORTED out of Committee with a DO PASS
recommendation and two zero fiscal impact notes.
HOUSE BILL NO. 546
An Act relating to regulation of the discharge of
pollutants from timber-related activities under the
National Pollutant Discharge Elimination System;
relating to waste treatment and disposal permits;
making conforming amendments; and providing for an
effective date.
ERNESTA BALLARD, COMMISSIONER, DEPARTMENT OF ENVIRONMENTAL
CONSERVATION (DEC), explained that Governor Murkowski has
discussed permit streamlining. The Governor envisions
efficient and effective resource development while
maintaining the State's environmental goals. This bill would
help to ensure achievement of those goals.
Commissioner Ballard informed the Committee that the
National Permit Discharge Elimination System (NPDES) program
is designed in the Clean Water Act for delegation to the
states. Forty-five states have delegation, but Alaska is one
of the five states without it. The Clean Water Act intends
that permitting be done at the state level where a state
regulatory agency can be in contact with industry and
municipal dischargers to make the important risk-based
decisions effective in protecting a state's waters.
Commissioner Ballard pointed out that the key parts of the
Clean Water Act fall under Sections 402 and 401. Section
402 allows the permit to be written and issued, while 401 is
the "heart" of the program that requires the state to
certify that the permit will protect the state's waters. The
DEC issues the 401 certification and currently the
Environmental Protection Agency (EPA) issues the 402 permit,
which requires a state applicant to get two permits. In the
45 states with delegation, only one permitting action is
necessary because the state issues the 402 permit and the
401 certification. Both of these water protection actions
are based on a state's water quality standards.
Commissioner Ballard explained that the DEC is seeking
primacy for only a portion of the industries that receive
permits in the State because the Department is not ready for
the other industry segments to submit a full primacy
package. The timber industry requested partial primacy to
give them the services it needs from the DEC. She noted that
this would allow other industries to observe how a
regulatory package comes together. The Department intends to
use this as a pilot project and to seek full primacy in the
future.
Commissioner Ballard referred to the fiscal note, and
pointed out that it is "frontloaded" with the first two
years requiring a more concentrated effort by the DEC to
write regulations and negotiate with the EPA. The bill has
a relatively small fiscal impact in future years because the
timber industry is currently small.
Representative Chenault referred to the fiscal note
reflecting in the Analysis Continuation one full-time
position from FY 2005 to FY 2010 and one permanent position.
He questioned the two long-term non-permanent positions
under Contractual, noting the change from $300 thousand to
$56 thousand for those two positions.
Commissioner Ballard explained that during the first two
years, FY 05 and FY 06, the contractual positions would
write regulations and would not remain part of the staff.
The permanent position would work with the regulation
writers and stay on with the Department.
DAN EASTON, DIRECTOR, DIVISION OF FACILITY CONSTRUCTION AND
OPERATION, DEPARTMENT OF ENVIRONMENTAL CONSERVATION, thought
that the Committee might not have an accurate fiscal note.
Representative Chenault said that the fiscal note in his
packet was dated 3-9-04, and Commissioner Ballard clarified
that it was the fiscal note she was discussing.
Commissioner Ballard continued explaining that the
frontloading expense would allow contractors to complete the
regulatory package under the Department's supervision. The
remaining staff position is a permanent state employee. In
response to a question by Representative Chenault,
Commissioner Ballard explained that $56 thousand is in the
Department's budget as an RSA to the Department of Law for
on-going legal expenses.
RON WOLFE, CORPORATE FORESTER, SEALASKA CORPORATION, spoke
in support of HB 546 that would allow timber primacy for the
NPDES program. The Corporation believes that the action
would help a struggling industry whose survival is important
to Alaska's healthy economy. He pointed out that the timber
industry is also important to the Native communities who
receive revenues under ANCSA in the form of dividends. State
primacy would give local access to the regulators on permit
issues rather than the EPA in Seattle. Mr. Wolfe said that
the Sealaska Corporation's NPDES permits for log transfer
facilities were completed three years ago and amended last
year.
Co-Chair Harris asked if it would be possible to change the
$177 thousand in General Funds for this year's budget to
Receipt Supported Services on the fiscal note. Commissioner
Ballard explained that it would be difficult to charge for
the services of writing regulations. In future years, the
Department would propose a fee structure as it has done for
other permit programs.
Co-Chair Harris pointed out on the fiscal note that only $30
thousand is indicated in later years. Commissioner Ballard
said that the DEC would propose to the Legislature a
modified fee structure similar to its other permitting
programs that have a "slightly stronger contribution" made
by the permit holder.
Representative Croft asked if there would continue to be a
significant General Fund component and the DEC would not be
fee-based. Commissioner Ballard commented on balancing the
General Fund subsidy of a permit program having the public
effect of protecting the state's resources but also the
direct effect of benefiting a municipal or industrial
discharger. She pointed out that the DEC has General Fund
support of all its permit programs, and said that the
Legislature's intent would be some continuing level of
General Fund support for the Department's permitting
programs. Future administrations would discuss the issue,
she said.
Representative Foster MOVED to report CSHB 546(JUD) out of
Committee with individual recommendations and the
accompanying fiscal note. There being NO OBJECTION, it was
so ordered.
CSHB 546(JUD) was REPORTED out of Committee with individual
recommendations and one previously published fiscal impact
note.
HOUSE BILL NO. 552
An Act relating to gambling and gaming.
Co-Chair Harris MOVED to ADOPT Committee Substitute Work
Draft Version I dated 4-20-04 as the version of legislation
before the Committee. There being NO OBJECTION, it was so
ordered.
TOM WRIGHT, STAFF TO REPRESENTATIVE HARRIS, explained the
differences between the original bill and Work Draft Version
I.
Mr. Wright stated that Version I deleted the following:
- all references to the Alaska Gaming Commission and
its supervision of charitable gaming found in, or
related to, AS 05.15;
- Section 2 from the original bill that gave authority
to the Alaska Gaming Commission to suspend a license or
permit for a violation of AS 05.15;
- Section 3 from the original bill that gave authority
to the Alaska Gaming Commission to administer the
provisions of AS 05.15;
- Section 4 from the original bill that provided a
definition of the Alaska Gaming Commission under AS
05.15.
Mr. Wright stated that Work Draft Version I also made the
following changes:
- on page 2, line 21,provided a definition of a public
officer of the State and gave it the same definition
found in AS 39.52.960;
- on page 3, line 2, further defined the grounds for
removal of a commissioner. This includes the failure
of a commissioner to attend at least 50% of the
meetings in any 12-month period;
- on page 5, line 27, provided an appeals process which
allows a person to seek judicial review of a final
administrative order of the commission as defined in AS
44.62.560 and 44.62.570 (judicial review under the
Administrative Procedures Act);
Mr. Wright continued explaining that Version I also:
- deleted subsection 10 on page 10 of the original bill
that required a person applying for an owner's or
supplier's license to provide information of the
amount, date and method of payment of political
contributions, loans, donations or other payments to a
candidate or office holder for the previous five years
before the date the person applied for a license;
- on page 11, line 13, added subsection (i). Requires
an applicant for a license to submit to the commission,
fingerprints and fees required by the Department of
Public Safety for criminal justice information and a
national criminal history record check. The commission
is then required to forward fingerprints and fees to
the department for a report of criminal justice
information under AS 12.62 (Criminal Justice
Information Systems Security and Privacy) and a
national criminal history record check. The results
will be used to then evaluate applicants.
Mr. Wright emphasized that the change adding subsection (i)
must be included for the department to get permission to
request this information.
Mr. Wright noted the following changes in Version I:
- on page 16, line 5, clarified language that any
income earned on the principal of a cash or negotiated
securities bond will be paid to the benefit of the
licensee;
- on page 16, line 25, rewrote subsection (h) for
clarity purposes;
- on page 30, line 22, added security and surveillance
services and supplies and money counting services and
supplies to the definition of supplier's license; and
- deleted Sections 10 and 11 from the original bill.
Section 10 repealed the definition of department
(Department of Revenue) since the commission was to
provide supervision of charitable gaming activities.
Section 11 instructed the revisor to change references
to the commissioner and department in AS 05.15 to
commission.
Representative Stoltze asked if he had looked into the
ramifications of the Indian gaming issues. Mr. Wright said
that he was in contact with the Department of Law, and the
request is under review. Mr. Barnhill could address it.
Representative Stoltze asked if it is the intent to have a
sole source contract, and whether there is expertise on
Indian gaming within the Department of Law and Legislative
Legal Services. Mr. Wright deferred to Mr. Barnhill.
Co-Chair Harris concurred with Representative Stoltze's
concerns. He thought that there might be a lack of
expertise in that area because gaming is not a major part of
Alaska's economy.
MIKE BARNHILL, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW
(DOL), agreed that Representative Stoltze's concerns are
valid. As with any unclear issue of law, the decision falls
to the courts. While the DOL can provide its best analysis
and evaluation of legal questions, it cannot predict with
certainty what a court would decide. Mr. Barnhill said that
he and experts in Indian gaming and law discuss these
issues.
Representative Stoltze asked if it should be a legitimate
concern of the policymakers on this Committee that with
passage of the bill, the sole source contract in Anchorage
could provide a legal remedy for Native gaming in other
communities and other sites in Anchorage. Mr. Barnhill
replied that passage of the bill would allow Indian gaming.
Representative Joule asked if the State has a concern that
Indian gaming could result from this bill. Mr. Barnhill said
that the DOL declines to express views on policy issues. He
was unaware of the Department having a concern.
Representative Croft asked if it would be possible to get a
ruling or declaratory judgment on the status of the tribes
and their lands. Mr. Barnhill had spoken with the
Solicitor's Office in the Department of the Interior and he
noted that most of the requests for declaration of Indian
land were turned down. Indian lands may have a different set
of facts pertinent to the regulation of each particular
parcel. He doubted the possibility of getting a declaratory
judgment because it's on a case-by-case basis. Only a few of
the seven or more Alaskan cases before the National Indian
Gaming Commission (NIGC) succeeded in obtaining a decision
of being Indian lands: Metlakatla, Kake and Klawock.
In response to a question by Representative Croft, Mr.
Barnhill explained that these were requests by the tribe for
an Indian land declaration from the NIGC rather than
lawsuits. The Department intervened in the Barrow case, and
attempted to intervene in the Kake and Akiachak cases but
was unsuccessful.
SUSAN BURKE, ATTORNEY, JUNEAU, stated that she was asked by
Mr. Green to look into the Indian gaming issues relating to
the bill.
Representative Croft asked if there is a procedure to
determine the status of Alaska lands under the Indian Gaming
Act before enacting this legislation.
Ms. Burke responded that village lands are not subject to
any alienation restrictions and explained that the only
lands held with federal restrictions on alienation are
individual Native allotments. It would be difficult for any
tribal entity to persuade the Indian Gaming Commission or a
court that it exercised governmental authority over the
allotment of land. She pointed out that the courts don't
issue advisory opinions.
Ms. Burke said that she did not see the bill as a major
threat to the proliferation of gaming in Alaska for two
reasons. The Alaska Gaming Commission would have the
authority to determine the games authorized in the Anchorage
casino. In the Ninth Circuit, the State is required to
negotiate with an Indian tribe only over specific games
authorized by law or regulation. She stressed that it is an
economic issue and she thought that Metlakatla, Kake and
Klawock are so isolated that it would be difficult to come
up with an economically feasible proposal.
In response to a question by Representative Croft, Ms. Burke
said that Eklutna had applied in the past for authority from
the Indian Gaming Commission.
TAPE HFC 04 - 92, Side B
Ms. Burke continued discussing Eklutna. She thought that
Eklutna would be unable to meet the governmental
jurisdiction aspect of Indian lands. She didn't know if
there was a Native allotment within the general Eklutna
area.
Representative Croft pointed out that the two issues
involved in the Indian Gaming Regulatory Act (IGRA) are the
lands issue and governmental authority by the tribe. He
asked if Native allotments would be considered Indian land
and not Indian Country.
Ms. Burke answered that Indian Country is not irrelevant in
relation to the reservations, and after the Venetie
Decision, people argued the issues of Indian lands or Indian
Country. The ANCSA settlement lands are not Indian Country
and were deeded to the regional and village corporations
without any alienation on restriction. The IGRA definition
of lands would not include the ANCSA lands.
Representative Croft asked if the Venetie and IGRA
definitions are identical. Ms. Burke said that Indian
Country and Indian land are distinct definitions. The
definition of Indian lands must be considered under the IGRA
and these include reservations, e.g. Metlakatla. Under the
IGRA definition, Indian lands also are lands held in trust
with restrictions on alienation imposed by the federal
government.
Representative Croft asked what it takes to change tribal
governance status. He pointed out that President Clinton
changed some of the authority given to tribes, allowing them
to operate nonprofit organizations. Ms. Burke said that
Congress has the authority to change tribal governance, but
not the President.
Representative Croft noted that Congress didn't declare the
Venetie Decision Indian Country yet. Ms. Burke affirmed, and
reiterated that Congress has authority over Indian issues
involving lands or powers.
Representative Hawker asked if passage of the bill would
expose the State to the intrusion of [indisc]. Mr. Barnhill
affirmed, and clarified that he said "yes" in relation to
Metlakatla. If Class 3 gaming were permitted in Anchorage,
Metlakatla would be able to conduct the same kind of gaming.
Outside of the known exceptions of Metlakatla, Kake, and
Klawock, he thought the odds were low that another parcel of
land could qualify as Indian lands because there must be
tribal governance over the land. He guessed there are
relatively few parcels with tribal governing power, while
noting that no one has done an exhaustive survey of all of
the potential parcels.
Representative Fate asked if Indian lands held in trust by
the Bureau of Indian Affairs (BIA) would become available.
Ms. Burke said that all village lands are subject to no
restrictions on alienation, and she was unaware of any
village land qualifying as Indian lands under IGRA.
Co-Chair Williams commented that Congress passed the 1991
Amendments involving a different type of trust similar to a
land bank wherein nothing can be done on village corporation
land. The land can't be taxed or worked. Ms. Burke affirmed
that it applies to regional corporation land.
In response to a question by Representative Stoltze, Ms.
Burk said no one knows how Eklutna's application would have
fared before the Indian Gaming Commission because they
withdrew it once the Legislature repealed the "Monte Carlo
Nights." She was not sure if the Legislature's concerns
were reasonable or unwarranted, or if Indian Gaming was the
only reason prompting the repeal of the Monte Carlo Nights.
In her view, Eklutna would have hard time persuading the
Commission that it exercises policing and taxing powers and
other governmental authority over its lands to qualify as
Indian lands under the definition. Lawyers always dispute
these issues, she said.
Representative Croft brought up page 4 of 6 on Fiscal Note
Component 2476, expressing surprise at how little revenue
would derive from tourists visiting the Anchorage casino.
He asked the source of the participation rates.
LARRY MEYERS, DEPUTY DIRECTOR, TAX DIVISION, DEPARTMENT OF
REVENUE, replied that the participation rates were based on
Oregon's 8 casinos and Washington's 17 casinos. Two percent
of the tourist population would visit the Anchorage casino.
In response to a question by Representative Croft, Mr.
Meyers clarified that the $50 million in revenue is the
"after prize receipts:" not total money circulated, but the
profit to the industry.
Representative Hawker referred to the same chart on page 4
of 6 of the fiscal note, asking if Total Tourists includes
both domestic and international tourists. Mr. Meyers replied
that the figure is derived from Northern Economics, and
reflects only the total domestic tourists statewide.
At Ease: 2:58 P.M.
Reconvene: 3:02 P.M.
Representative Foster MOVED to report CSHB 552(FIN) out of
Committee with individual recommendations and the
accompanying fiscal note. There being NO OBJECTION, it was
so ordered.
CSHB 552(FIN) was REPORTED out of Committee with individual
recommendations and two new indeterminate fiscal impact
notes.
HOUSE BILL NO. 244
An Act relating to the Code of Criminal Procedure;
relating to defenses, affirmative defenses, and
justifications to certain criminal acts; relating to
rights of prisoners after arrest; relating to
discovery, immunity from prosecution, notice of
defenses, admissibility of certain evidence, and right
to representation in criminal proceedings; relating to
sentencing, probation, and discretionary parole;
amending Rule 16, Alaska Rules of Criminal Procedure,
and Rules 404, 412, 609, and 803, Alaska Rules of
Evidence; and providing for an effective date.
SUSAN PARKES, DEPUTY ATTORNEY GENERAL, CRIMINAL DIVISION,
DEPARTMENT OF LAW (DOL), introduced the omnibus crime bill.
She noted that many concerns were raised in various
committees, and this bill is very different than last year's
crime bill after the House Judiciary Committee's work on the
new Committee Substitute. The bill covers both procedure and
substantive criminal law.
Ms. Parkes provided a detailed explanation of the sectional
analysis. She pointed out that the first six sections of
CSHB 244(2ndJUD) concern enforcement of bootlegging, which
is a priority of the current Administration. It would
empower communities to limit alcohol, and allow by statute
the recognition and enforcement by state troopers and
prosecutors of lower levels of alcohol in the communities.
Currently four communities have chosen to allow only lower
limits of possession of alcohol than the state statutes
provide for. These provisions also allow for better
forfeiture. Currently, money is not included in the
bootlegging forfeiture statutes. This would allow money as
well as snow machines and boats in the forfeiture and bring
it into compliance with the drug statutes. It also provides
that unless a village has opted out of this provision,
providing liquor to a minor in a local option community
would become a C felony rather than an A misdemeanor.
Ms. Parkes said that Section 8 is a conforming section to
another provision. Section 9 amends the felony murder
statute. Current law provides that if a group commits a
serious offense and one member kills a non-participant,
everyone is guilty of murder. The House Judiciary amendment
states that if a participant is killed in the commission of
a felony, the other participants could be held liable for
murder unless the death results from the felony conduct of a
non-participant.
Representative Chenault asked for further clarification of
the forfeiture of money. Ms. Parkes explained that it
involves money that can be tied to the crime, as in money
changing hands in a drug deal. There must be a nexus between
the money and the crime, and the DOL can't sweep an
individual's bank account. She said the forfeiture of money
often happens in drug deals, but this provision would add it
under the bootlegging forfeiture.
Representative Chenault asked if currently all participants
in a group could be charged with murder. Ms. Parkes
affirmed, and explained that the theory behind felony murder
is that the conduct of people participating in dangerous
activities could result in a death.
Ms. Parkes spoke to Section 10, which changes the assault
statutes. It closes a loophole and gives the Department the
ability to prosecute cases of assault where there is
criminal negligence and serious physical injury from a
dangerous instrument.
Ms. Parkes continued. Sections 11 and 12 relate to the
sexual abuse of a minor statute, making penetration offenses
a felony while contact offenses remain a misdemeanor.
Section 13 creates a new crime called "violation of a third
party custodian." Currently judges, as part of the bail
condition, release people to a third party custodian who
agrees to report any violations of bail. Many people do not
take the job seriously, and this creates a misdemeanor
offense instead of holding the third party custodian in
contempt for not immediately reporting violations.
Ms. Parkes explained that Sections 14 and 15 extensively
amend the self-defense statutes, in response to "the
sweeping proposal" that created concern last session. A
court must find at least some plausible evidence of self-
defense. It also addresses gunfights between drug dealers
and gangs in Anchorage and Fairbanks, providing that if the
force used resulted from a weapon brought to a felony drug
deal or a felony gang activity, the violator can't hide
behind the shield of self-defense.
Ms. Parkes noted that Section 16 is an amendment added in
House Judiciary Committee. Under current statute, if a
person is arrested and voluntarily agrees to talk to the
police, an attorney can interrupt the interview. This
recognizes that the Constitutional right to remain silent
belongs to the individual and if the individual has waived
that right, someone else can't later invoke it on his or her
behalf.
Representative Chenault questioned if a parent could decide
to end the interview of a minor. Ms. Parkes answered that
officers must ask minors if they want to have their parents
present. She maintained that there are safeguards to protect
individuals needing protection. Representative Chenault
argued that there are cases of intimidation, which would
result in a minor waiving their right. He spoke against
allowing minors to be interviewed without the presence of
their parents.
Ms. Parkes explained that Section 17 conforms the statutes.
Section 18 was added to require a written or oral finding
when a third-party custodian is required as part of bail.
Ms. Parkes continued. Sections 19-21 address immunity.
Section 19 conforms immunity to the interpretation of the
Supreme Court, which allows transactional immunity.
Sections 20 and 21 set up a process to handle these
situations by the court. If a witness is subpoenaed, the
judge will appoint an attorney and hold a private hearing to
decide if there is a valid claim of Fifth Amendment
privilege. She discussed the provisions.
Ms. Parkes noted that Section 22 is a conforming statute.
Section 23 relates to consecutive terms of imprisonment, and
it is identical to last year's bill. It mandates that in
serious crimes, judges be required to impose some
consecutive term of imprisonment. In the interpretation of
current statute by the courts, judges have not recognized
multiple victims or multiple crimes in their sentencing.
This would require mandatory time for each victim and each
offense.
Ms. Parkes noted that Sections 24 and 25 are conforming
language. Section 26 applies to driving under the influence.
Currently, the third DUI within 10 years becomes a felony,
but because of the way the ten-year "look-back" works,
another DUI within 2 or 3 years might be a misdemeanor. This
provision would recognize another DUI within 20 years as a
felony once a person has a felony DUI.
In response to a question by Representative Chenault, Ms.
Parkes clarified that another bill addresses the "look-back"
at past DUI activity, but this provision addresses the
future.
Representative Fate questioned why drugs are not addressed
in the bill, considering their endemic existence in rural
Alaska. Ms. Parkes responded that the bill includes
provisions to address the gaps in the bootlegging statutes,
and the self-defense provision addresses the violence
related to drugs and alcohol.
Representative Fate reiterated his concern.
Representative Joule acknowledged that there are laws in
place to address drug use, but he pointed out that the laws
are not successful without enforcement. He noted the lack of
funding for enforcement.
Ms. Parkes stated that Section 27 addresses the "big gulp"
defense. Current statute allows a defendant to argue that he
consumed a large amount of alcohol just before his departure
in a vehicle, the alcohol was not in his blood stream at the
time he was stopped by the police, but he was over the legal
limit an hour later when given the blood alcohol test. This
would foreclose that defense and make the defendant
responsible for his alcohol consumption.
Ms. Parkes noted that Section 28 relates to the DUI and the
20-year look forward. Sections 30 and 31 are conforming
statutes. Section 32 would allow public disclosure by the
Department of Health & Social Services about juvenile
offenders when it is necessary to protect the safety of the
public. Regulations would be created to address this
concern.
TAPE HFC 04 - 93, Side A
Representative Joule expressed concern regarding the
bootlegging provisions and questioned whether the State
would have the resources to handle the increased offenses.
He observed that part of the intent in moving from a class A
misdemeanant to a class A felon is to allow greater
supervision by probation officers. Ms. Parkes offered to
address the issue later.
CINDY CASHEN, MOTHERS AGAINST DRUNK DRIVING, JUNEAU,
testified in support of the legislation. She read from
written testimony, paraphrasing the following:
"Mothers Against Drunk Driving (MADD) supports CS for House
Bill 244.
MADD supports consecutive jail time for each death in a
drunk driving crash in order for restorative justice to take
place within our communities.
As a victim in the State v. Glaser case, I cannot begin to
explain the unnecessary bitterness and frustration our
families struggle with because of the court decision which
refused to consider the multiple deaths in the drunk driving
tragedy. Currently in Alaska, a loved one's life is less
valuable than a stolen automobile in a felony case; this
sends a dangerous message out to all Alaskans. Each life
torn from us by drunk driving is certainly worth taking into
individual consideration; to do otherwise would create
additional heartache and trauma for victims of this violent
crime.
MADD also supports the right for communities to adopt lower
limits of alcohol possession and importation in order to
increase the health and safety of their people.
MADD supports stricter drunk driving sanctions for high risk
drivers. Habitual drunk drivers who have repeatedly chosen
to endanger themselves and everyone else who shares their
road system must be held accountable for their crimes.
About one-third of all drivers arrested or convicted of
driving under the influence are repeat offenders. These
drivers are 40% more likely to be involved in a fatal crash
than those without prior DUIs.
MADD supports increased penalties for those whose choice to
drink and drive results in the serious injury of an innocent
victim or victims.
People who drink and drive are unable to determine if they
are sober before arriving at their destination. If a person
chooses to drink and drive then that person has committed a
crime and should be held accountable for his/her actions.
MADD supports the recommended changes in CS for House Bi1l
224 as a way of deterring further drunk driving tragedies
and improving Alaska's restorative justice system."
Ms. Cashen recounted an incident in Hoonah. She spoke in
support of third party custodian provisions. She asked that
the amendment deleting the manslaughter charge and allowing
it to become concurrent sentencing not be adopted. She
discussed the pain that it caused two families when the
judge changed his decision from consecutive to concurrent
sentencing for the accident causing the deaths of her own
father and Martin Richard. In essence, the drunk driver was
punished for causing one death instead of two. Ms. Cashen
concluded that this issue concerns restorative justice and
the victims of the drunk driver.
HB 244 was heard and HELD in Committee for further
consideration.
ADJOURNMENT
The meeting was adjourned at 3:42 P.M.
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