Legislature(1993 - 1994)
03/17/1993 01:00 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
March 17, 1993
1:00 p.m.
MEMBERS PRESENT
Representative Brian Porter, Chairman
Representative Jeannette James, Vice-Chair
Representative Pete Kott
Representative Gail Phillips
Representative Joe Green
Representative Jim Nordlund
MEMBERS ABSENT
Representative Cliff Davidson
COMMITTEE CALENDAR
HB 109 "An Act relating to blood tests for persons
charged with sex offenses; and providing for an
effective date."
CSHB (109) HES PASSED OUT WITH A DO PASS
RECOMMENDATION
*HB 127 "An Act setting presumptive terms of imprisonment
for certain defendants convicted of certain crimes
who possessed a firearm during the commission of
the crime; setting a mandatory term of
imprisonment for a defendant convicted of assault
in the fourth degree who possessed a firearm
during the commission of the offense."
HEARD AND HELD IN COMMITTEE FOR FURTHER
CONSIDERATION
HB 86 "An Act relating to sanctions for property-related
offenses, to remedies for property-related
offenses committed by juveniles, and to certain
records of those offenses."
HEARD AND HELD IN COMMITTEE FOR FURTHER
CONSIDERATION
(* first public hearing)
WITNESS REGISTER
REPRESENTATIVE PETE KOTT
Alaska State Legislature
State Capitol, Room 409
Juneau, Alaska 99801-1182
Phone: 465-3777
Position Statement: Prime sponsor of HB 109 and HB 127
LEE ANN LUCAS
Special Assistant to the Commissioner
Department of Public Safety
P. O. Box 111200
Juneau, Alaska 99811
Phone: 465-4322
Position Statement: Answered questions related to HB 109
ELMER LINDSTROM
Special Assistant to the Commissioner
Department of Health and Social Services
P. O. Box 110601
Juneau, Alaska 99811-0601
Phone: 465-3030
Position Statement: Answered questions, provided information
and suggested amendment to HB 109
JERRY LUCKHAUPT
Legislative Affairs Agency
Division of Legal Services
130 Seward Street, Suite 401
Juneau, Alaska 99801
Phone: 465-2450
Position Statement: Provided information related to HB 109
CINDY SMITH
Alaska Network on Domestic Violence and Sexual Assault
419 Sixth Street
Juneau, Alaska 99801
Phone: 586-3650
Position Statement: Suggested amendment to HB 109
MARGOT KNUTH
Assistant Attorney General
Department of Law
Criminal Division
P. O. Box 110300
Juneau, Alaska 99811-0300
Phone: 465-3428
Position Statement: Answered questions related to HB 109 and
HB 127; suggested amendment to HB 127
JACK PHELPS, Legislative Aide
to Representative Pete Kott
Alaska State Legislature
State Capitol, Room 409
Juneau, Alaska 99801-1182
Phone: 465-3777
Position Statement: Provided information related to HB 109
GAYLE HORETSKI
Committee Counsel
House Judiciary Committee
Alaska State Legislature
State Capitol, Room 120
Juneau, Alaska 99801-1182
Phone: 465-6841
Position Statement: Asked questions related to HB 109
SANDY PEVAN
P. O. Box 871256
Wasilla, Alaska 99687
Phone: 373-6198
Position Statement: Supported HB 86
REPRESENTATIVE CON BUNDE
Alaska State Legislature
State Capitol, Room 112
Juneau, Alaska 99801-1182
Phone: 465-4843
Position Statement: Prime sponsor of HB 86
PREVIOUS ACTION
BILL: HB 109
SHORT TITLE: BLOOD TESTS ON SEX CRIME PERPETRATORS
BILL VERSION: CSHB 109(JUD)
SPONSOR(S): REPRESENTATIVE(S) KOTT
TITLE: "An Act relating to blood tests for persons charged
with sex offenses; and providing for an effective date."
JRN-DATE JRN-PG ACTION
01/29/93 181 (H) READ THE FIRST TIME/REFERRAL(S)
01/29/93 181 (H) HES, JUDICIARY, FINANCE
02/16/93 (H) HES AT 03:00 PM CAPITOL 106
02/16/93 (H) MINUTE(HES)
02/17/93 370 (H) HES RPT CS(HES) 8DP
02/17/93 370 (H) DP: VEZEY, G.DAVIS, BUNDE,
NICHOLIA
02/17/93 370 (H) DP: B.DAVIS, KOTT, TOOHEY,
BRICE
02/17/93 370 (H) -FISCAL NOTE (DHSS) 2/17/93
02/17/93 370 (H) -2 ZERO FNS (CORR, LAW)
2/17/93
03/17/93 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 127
SHORT TITLE: PRESUMPTIVE TERMS FOR FIREARMS POSSESSION
BILL VERSION:
SPONSOR(S): REPRESENTATIVE(S) KOTT,Bunde,Green
TITLE: "An Act setting presumptive terms of imprisonment for
certain defendant convicted of certain crimes who possessed
a firearm during the commission of the crime; setting a
mandatory term of imprisonment for a defendant convicted of
assault in the fourth degree who possessed a firearm during
the commission of the offense."
JRN-DATE JRN-PG ACTION
02/05/93 235 (H) READ THE FIRST TIME/REFERRAL(S)
02/05/93 235 (H) JUDICIARY, FINANCE
02/08/93 264 (H) COSPONSOR(S): BUNDE
02/22/93 421 (H) COSPONSOR(S): GREEN
03/17/93 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 86
SHORT TITLE: SANCTIONS FOR PROPERTY-RELATED OFFENSES
BILL VERSION: 2D SSHB 86
SPONSOR(S): REPRESENTATIVE(S) BUNDE,Green
TITLE: "An Act relating to sanctions for property-related
offenses, to remedies for property-related offenses
committed by juveniles, and to certain records of those
offenses."
JRN-DATE JRN-PG ACTION
01/22/93 141 (H) READ THE FIRST TIME/REFERRAL(S)
01/22/93 141 (H) JUDICIARY, FINANCE
01/29/93 177 (H) SPONSOR SUBSTITUTE INTRODUCED-
NEW TITLE
01/29/93 177 (H) REFERRED TO JUDICIARY, FINANCE
02/03/93 223 (H) COSPONSOR(S): GREEN
02/25/93 455 (H) 2D SPONSOR SUBSTITUTE
INTRODUCED
02/25/93 455 (H) JUDICIARY, FINANCE
03/12/93 (H) JUD AT 01:00 PM CAPITOL 120
03/17/93 (H) JUD AT 01:00 PM CAPITOL 120
ACTION NARRATIVE
TAPE 93-35, SIDE A
Number 000
The House Judiciary Standing Committee meeting was called to
order at 1:07 p.m., on March 17, 1993. A quorum was
present. Chairman Porter announced that the committee would
address HB 109 first.
HB 109: BLOOD TESTS ON SEX CRIME PERPETRATORS
Number 025
REPRESENTATIVE PETE KOTT, PRIME SPONSOR of HB 109, called
his legislation a "victims' rights bill." He said that
sexual assault victims were faced with many difficulties,
including the fear of having been infected with HIV and
other sexually-transmitted diseases (STDs). He expressed an
opinion that the state had a responsibility to provide some
measure of relief to victims. He said that a sexual assault
victim had the right to know whether or not the offender was
infected with HIV or another STD.
REPRESENTATIVE KOTT commented that if an offender tested
positive for HIV, a victim could begin taking precautions to
protect himself or herself and others. He noted that a
victim could elect to be treated with the drug AZT. He said
that HB 109 would require the Department of Health and
Social Services (DHSS) to provide information, counseling,
and referral to sexual assault victims so that they could
make informed decisions concerning the health of themselves
and others.
Number 075
REPRESENTATIVE KOTT commented that, because of the delay
between HIV infection and the time when the virus could be
detected, an offender's initial negative HIV test would not
necessarily mean that the virus had not been transmitted to
the victim. However, he said that a negative test would be
beneficial in sustaining a victim's natural hope that she or
he had not been infected with the HIV virus. He mentioned
the positive psychological effects of such hope. He cited
the currently accepted medical practice of testing a sexual
assault victim for the presence of the HIV virus several
times over the months following an assault.
REPRESENTATIVE KOTT stated that since 1987, 24 states had
enacted laws similar to HB 109. He said that the bill would
require the court to order that an offender be tested, at
the request of a victim, when the court found probable cause
that the defendant committed specified sexual acts during
which bodily fluids were likely transmitted to the victim.
Number 125
REPRESENTATIVE KOTT said that five other states allowed for
a person to be tested upon a court order at the time of
arrest or when charges were filed. Other states, he noted,
had made testing mandatory upon arrest. He said that in
light of Alaska's constitutional right to privacy, mandatory
testing upon arrest might be struck down by the court. He
added that some victims' advocacy groups had indicated their
preference for a testing process initiated by the victim.
REPRESENTATIVE KOTT commented that in 1990, Congress passed
a law tying action on the issue of testing sex offenders for
the HIV virus with certain federal funding. He said that
unless the legislature passed HB 109 or a similar law, the
Department of Public Safety (DPS) stood to lose $185,000 in
federal funds.
REPRESENTATIVE KOTT noted that although federal guidelines
only required that states test convicted offenders, many
advocacy groups insisted that the delay between the assault
and conviction was too long to provide the desired
reassurance to victims. That approach was, therefore, not
adopted in HB 109. He called members' attention to
materials in their bill packets. He noted that HB 109 had
received unanimous "do pass" votes when it was passed out of
the House Health, Education, and Social Services (HESS)
Committee.
Number 157
REPRESENTATIVE JOE GREEN asked if every state implementing a
testing program would receive the same amount of federal
funding, or if funding depended upon a state's population.
Number 175
REPRESENTATIVE KOTT did not know the answer to
Representative Green's question.
Number 177
LEE ANN LUCAS, SPECIAL ASSISTANT TO THE COMMISSIONER OF THE
DEPARTMENT OF PUBLIC SAFETY, said that the funds were based
upon a state's population.
Number 182
REPRESENTATIVE GREEN asked if there was any possibility of
Alaska getting a substantially smaller amount of federal
funding, due to states with large populations implementing
testing programs. Specifically, he wanted to know if it was
possible that the testing program might cost the state more
money than it would receive from the federal government.
MS. LUCAS understood that states had until October to comply
with the federal law, and stated that thus far, only one
additional state had implemented a testing program.
CHAIRMAN BRIAN PORTER asked if it would be fair to say that
Alaska's $185,000 was predicated on all states coming into
compliance with the federal law.
Number 205
REPRESENTATIVE KOTT believed that Alaska would receive
$185,000 at a minimum. If all states did not comply with
the law, he added, Alaska could receive even more federal
funds.
ELMER LINDSTROM, SPECIAL ASSISTANT TO THE COMMISSIONER OF
THE DHSS, said that HB 109 had been extensively discussed by
the Department of Law (DOL), the Department of Corrections
(DOC), the DPS, and the DHSS. He commented that the DHSS
had submitted two fiscal notes for HB 109, one of which was
for the DHSS' laboratory component, and amounted to $27,900.
He said that the DHSS' laboratories would be responsible for
performing tests on all blood samples required by HB 109.
He mentioned that this fiscal note was the same as one which
had been adopted by the HESS Committee.
Number 230
MR. LINDSTROM said that the DHSS' second fiscal note was for
the nursing component, and amounted to $45,500. He stated
that this fiscal note had not been reviewed by the HESS
Committee. The funds represented the cost of counseling for
sexual assault victims and perpetrators who were not in the
custody of the DOC or the Division of Family and Youth
Services (DFYS). He said that he had tried without success
to find another agency that would provide the counseling
services.
Number 270
MR. LINDSTROM commented that the provisions of HB 109 had
been placed in Title 18 of the Alaska Statutes. He noted
that Title 18 pertained to health matters. He mentioned
that it might be more appropriate to place several of
HB 109's sections into other Titles. Specifically, he felt
that section 1 of the bill would more appropriately appear
within Title 12.
Number 300
MR. LINDSTROM noted that nowhere in HB 109 was it stated
that the DOC and the DFYS had any responsibilities.
However, he said that all parties had agreed that those
agencies ought to be responsible for conducting testing of
and counseling for perpetrators within their custody. He
noted that the DHSS' Division of Public Health (DPH), would
provide testing of and counseling for all other
perpetrators.
Number 336
REPRESENTATIVE GAIL PHILLIPS asked Mr. Lindstrom if he had
suggested that the HESS Committee move sections of HB 109 to
other areas of the Alaska Statutes.
Number 340
MR. LINDSTROM replied in the negative. He believed the
nature of the amendment was such that it would be most
appropriately addressed by the House Judiciary Committee.
Number 352
CHAIRMAN PORTER asked Mr. Lindstrom if he felt that not
moving sections of HB 109 to other areas of the Alaska
Statutes would result in certain agencies not fulfilling
their responsibilities toward the testing program.
Number 356
MR. LINDSTROM noted that all parties involved currently
understood what their responsibilities toward the program
were. However, he commented that over time, personnel would
change and the current understanding might not carry
forward.
REPRESENTATIVE PHILLIPS asked Representative Kott if he had
reviewed Mr. Lindstrom's proposed amendments.
Number 373
REPRESENTATIVE KOTT responded in the negative.
Number 376
REPRESENTATIVE GREEN asked Mr. Lindstrom if the desired
change could be accomplished merely by changing the
referenced Alaska Statute.
Number 384
MR. LINDSTROM replied that as he was not a drafting
attorney, he could not speak to Representative Green's
question.
Number 388
REPRESENTATIVE PHILLIPS expressed concern that bills coming
to the House Judiciary Committee should be in somewhat final
form. She said that this was the second time in less than
two weeks that an agency had come to the committee with an
amendment which the sponsor had not yet reviewed.
Number 402
CHAIRMAN PORTER asked Mr. Lindstrom to clarify how he wished
HB 109 to be amended.
MR. LINDSTROM said that his amendment would provide that the
DOC and the DFYS take samples from perpetrators within their
custody; the samples would then go to the DPH for analysis.
Additionally, the DOC and the DFYS would counsel offenders
within their custody.
Number 431
JERRY LUCKHAUPT, ATTORNEY, LEGISLATIVE AFFAIRS AGENCY,
DIVISION OF LEGAL SERVICES, said that the provisions of
HB 109 were placed in Title 18 because that section of the
statutes dealt with a number of health and safety issues.
He noted that not everything within Title 18 pertained to
the DHSS. He commented that HB 109 dealt with many things:
Children, adults, criminal procedure, sex crimes, and blood
testing, subjects which were usually found within many
different sections of the statutes.
MR. LUCKHAUPT said that rather than put the elements of
HB 109 into many different sections of the statutes, it was
better to put a coordinated system of law within one section
of the statutes. He commented that the revisor of statutes
had the authority to place statutes wherever he saw fit, in
order to make it easier for people to understand the law.
He was of the opinion that the revisor would be reluctant to
place the provisions of HB 109 into more than one section of
the statutes.
REPRESENTATIVE JIM NORDLUND, reviewing Title 18 of the
Alaska Statutes, said that it pertained to many different
departments within state government. He was of the opinion
that placing the provisions of HB 109 into Title 18 did not
mean that the DHSS would have to implement all of those
provisions.
Number 515
MR. LUCKHAUPT commented that AS 18.15, where the provisions
of HB 109 had been placed, dealt with the DHSS; however, he
noted that that did not mean the DHSS was responsible for
implementing all of the provisions.
Number 522
CHAIRMAN PORTER understood that HB 109 would require the
court to make a determination as to which agency would draw
samples and provide counseling.
Number 523
MR. LUCKHAUPT indicated that he had the same understanding.
Number 537
REPRESENTATIVE KOTT said that the intent of HB 109 was to
not place the responsibility of testing and counseling on
any one agency.
Number 541
CINDY SMITH, EXECUTIVE DIRECTOR, ALASKA NETWORK ON DOMESTIC
VIOLENCE AND SEXUAL ASSAULT (ANDVSA), commented that
transmission of STDs such as syphilis and gonorrhea during
sexual assault was not uncommon. She said that it was
currently standard practice at most hospitals to give a rape
victim an automatic course of antibiotics, without waiting
to hear about whether or not an offender had an STD. She
noted that the chances of a sexual assault victim
contracting HIV were thought to be very low, about .2%, but
could be higher in some cases.
Number 561
MS. SMITH said that in 1990, the first documented case of
HIV transmission as a result of a rape was recorded at a
London hospital. She stated that unfortunately, an
offender's negative test did not ensure a victim that she or
he had not contracted the HIV virus. Conversely, an
offender's positive test did not mean that a victim had
contracted the disease. She noted that a victim would still
need to be tested approximately every three months for a
year after an assault.
MS. SMITH commented that there would be two purposes,
medical and legal, served by testing offenders. The first
was that a victim could undergo AZT treatment if there was
known exposure to the HIV virus. She stated that in the
absence of a testing requirement, perpetrators were known to
use their willingness to be tested as a chip in charge
bargaining. She said that the ANDVSA believed that testing
of offenders could be beneficial to victims, and should be
available to them as an option.
MS. SMITH requested that two changes be made to HB 109. She
asked that the committee delete the specific citation of
sexual assault statutes referenced in section 1, line 8.
The deletion would allow for testing for offenders of any
crime of sexual penetration, she said.
Number 600
MS. SMITH also asked that HB 109 be amended so as to broaden
who a victim could tell about contracting an STD as the
result of a sexual assault. She said that it was her
understanding that the sponsor was proposing to add language
addressing her concern that a victim be able to tell a
person with whom she or he was in a dating or engagement
relationship. She expressed her concern that many rape
victims were young and single, and would most likely confide
in a best friend. That, however, would be a violation of
HB 109, as currently drafted, she said.
MS. SMITH commented that the penalty for telling someone not
authorized by law was currently contempt of court. She
noted that raising the penalty to a misdemeanor would be
very unfortunate. She expressed her organization's concern
that confidentiality provisions for STD testing in HB 109
not affect current use of STD tests by prosecutors. In
summary, she said that HB 109 was no panacea, but would be
of some help to sexual assault victims.
Number 652
CHAIRMAN PORTER indicated that Joanne Lopez, from the
Council on Domestic Violence and Sexual Assault was present,
as were Lee Ann Lucas and Alaska State Trooper, Colonel John
Murphy from the DPS.
Number 657
CHAIRMAN PORTER asked Margot Knuth, from the DOL's Criminal
Division, to address a question regarding penalties for
disclosure of information to unauthorized persons.
Number 661
MARGOT KNUTH, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION,
DOL, said that there was concern about involuntarily
identifying persons with the HIV virus. She said that the
question centered around how the state would balance a
perpetrator's right to privacy with the public's and the
victim's right to know and to share that information.
Number 689
CHAIRMAN PORTER asked Ms. Knuth if any problem would result
from removing the section pertaining to disclosure.
Number 694
MS. KNUTH was of the opinion that omitting the section would
not result in any problems. She believed that if a person
was charged with a felony sexual assault, that person's
right to privacy was greatly reduced. She commented that
her opinion was not universally shared, however. She stated
that part of the problem with HB 109 was that it required
testing for persons charged with an offense, not just those
convicted of an offense.
Number 715
REPRESENTATIVE PHILLIPS asked if the sponsor would object to
removing the disclosure section. She found the notion of
finding a victim guilty of an offense for telling a friend
that his or her attacker was HIV-positive very distasteful.
Number 724
CHAIRMAN PORTER asked whether, if the committee removed the
disclosure section, a person who disclosed certain
information could or could not be found to have violated
someone's right to privacy. He further asked if including
the disclosure section established that a victim would
definitely be guilty of violating someone's right to
privacy, if she or he disclosed the offender's HIV-positive
status to a friend.
Number 729
MS. KNUTH felt that the Chairman was correct. She added
that a judge could enter an order requiring non-disclosure
in any case. That, she noted, would invoke all of the
contempt sanctions.
Number 737
REPRESENTATIVE KOTT commented that the section prohibiting
the disclosure of HIV test results was put into HB 109
because of Alaska's constitutional right to privacy. He
noted that the disclosure section in the HESS committee
substitute was somewhat watered down, as compared to the
same section in the original HB 109. He said that in the
original HB 109, disclosure was considered a misdemeanor,
not contempt of court, as it was in the committee
substitute.
REPRESENTATIVE KOTT stated that most states which had
implemented laws similar to HB 109 punished disclosure
violations as misdemeanors. He noted that HB 109 would
require testing for those charged with sex offenses, not
just those who were convicted. He commented that he was
trying to maintain a balance between a defendant's right to
privacy and a victim's rights.
Number 752
CHAIRMAN PORTER wondered aloud whether the balance to which
Representative Kott had referred already existed, as any
person could sue any other person for violating their right
to privacy. He expressed concern that the disclosure
section in HB 109 gave offenders a tool with which to "go
after" victims.
Number 761
REPRESENTATIVE PHILLIPS supported removing the section
prohibiting disclosure of HIV test results from HB 109.
Number 765
CHAIRMAN PORTER relayed a comment from the committee's
counsel that if a court order prohibited a victim from
disclosing a defendant's HIV status, then violation of that
court order would be contempt of court.
Number 772
MS. KNUTH commented that the committee substitute for
HB 109, on page 3, lines 26-27, required that the court
order confidentiality. She suggested that if the committee
chose to delete the disclosure section of the bill, they
should also make the order of confidentiality discretionary,
by changing the word "shall" to "may" on line 26.
CHAIRMAN PORTER said that he would entertain a motion to
strike proposed section 18.15.330 and change, on page 3,
line 26, the word "shall" to "may."
REPRESENTATIVE JEANNETTE JAMES made the MOTION.
TAPE 93-35, SIDE B
Number 000
JACK PHELPS, LEGISLATIVE AIDE TO REPRESENTATIVE PETE KOTT,
asked that the committee get assurance from the DOL that
making the amendment would not compromise the
constitutionality of HB 109.
Number 015
MS. KNUTH commented that the amendment did not present
constitutionality problems. She noted that at some point,
an HIV-positive defendant, whose HIV status was disclosed,
and who was acquitted, might sue. The result of that, she
said, would be that courts would be required to order
confidentiality. The result, in her opinion, would not be
to cease testing.
CHAIRMAN PORTER, hearing no objection to the amendment,
stated that the AMENDMENT had been ADOPTED.
Number 039
MS. KNUTH noted that Representative Kott had proposed
several amendments to HB 109, one of which was important to
the DOL. She suggested that the committee add the word
"exclusively" to language regarding letting the court rely
on evidence presented to a grand jury or at a preliminary
hearing.
Number 060
REPRESENTATIVE JAMES made a MOTION to ADOPT the HESS
Committee substitute for HB 109. There being no objection,
IT WAS SO ORDERED.
Number 084
REPRESENTATIVE KOTT had four amendments to offer. His FIRST
AMENDMENT would ADD the word "presentment" AFTER the word
"indictment" to page 1, lines 7, 12 and 14. He commented
that this amendment would tighten up the constitutionality
of the bill.
Number 100
REPRESENTATIVE GREEN MOVED the AMENDMENT.
Number 124
MR. PHELPS explained that presentment occurred when a charge
was brought by a grand jury, on its own information and
knowledge. He added that it happened very rarely in Alaska.
He said that in contrast, an indictment was an action taken
by a grand jury upon information laid before it by the
government.
There being no objection, the AMENDMENT WAS ADOPTED.
Number 154
REPRESENTATIVE KOTT OFFERED his SECOND AMENDMENT, DELETING
the comma on page 2, line 1, and ADDING "of an alleged
victim who is a minor or incompetent". He said that the
amendment would clear up a technical oversight in the HESS
Committee version of HB 109.
REPRESENTATIVE JAMES MOVED the AMENDMENT. There being no
objection, the AMENDMENT WAS ADOPTED.
Number 171
REPRESENTATIVE KOTT said that his NEXT AMENDMENT was the one
which Ms. Knuth had discussed earlier. It would ADD the
word "exclusively" AFTER the phrase "may rely" on page 2,
line 8, and was being offered at the request of the DOL, he
said. He said also that the amendment would tighten up
HB 109's language.
CHAIRMAN PORTER commented that the amendment would give the
court an indication of the legislature's intent that the
court should not hold another hearing, but instead rely on
the record of previous hearings. There being no objection
to adoption of the amendment, IT WAS ADOPTED.
Number 199
REPRESENTATIVE KOTT offered his LAST AMENDMENT, which would
DELETE, on page 3, line 31, AFTER the phrase "immediate
family" the word "or." On page 4, line 1, he said, the
period would be DELETED, a comma INSERTED, and the phrase
"or a person in a dating, courtship, or engagement
relationship with the victim" ADDED.
Number 227
REPRESENTATIVE GREEN asked what effect the amendment would
have on the occurrence of a spousal rape.
Number 243
CHAIRMAN PORTER commented that the amendment gave the court
the ability to require confidentiality regarding HIV test
results, but would broaden the group of people whom a victim
could tell to include persons with whom the victim was
involved in a dating, courtship, or engagement relationship.
There being no objection to adoption of the amendment, IT
WAS ADOPTED. The Chairman announced that the committee now
had the HESS Committee substitute, as amended, before it.
Number 259
REPRESENTATIVE NORDLUND asked what would happen if a
defendant refused to be tested for sexually-transmitted
diseases. He asked if that person would be held in contempt
of court.
Number 261
CHAIRMAN PORTER commented that court-ordered blood drawing
in other circumstances was simply performed, regardless of
any objections from the defendant.
Number 263
REPRESENTATIVE KOTT concurred.
Number 277
REPRESENTATIVE JAMES made a MOTION to MOVE the amended bill
out of committee with individual recommendations.
Number 280
GAYLE HORETSKI, COMMITTEE COUNSEL, HOUSE JUDICIARY
COMMITTEE, asked the Chairman if he wished to address Ms.
Smith's suggestion regarding broadening the class of crimes
on page 1, line 8. She noted that the crimes included in
HB 109 were both felonies and misdemeanor offenses, and
required that sexual penetration be an element of the
offense. She said that the list of crimes did not include
assault, because sexual penetration was not an element of
that offense, although penetration in fact may have
occurred.
CHAIRMAN PORTER noted that the state would obviously not
want to order HIV testing in every non-sexual assault case.
Number 309
MS. KNUTH indicated that the committee could probably leave
a reference to sexual penetration, that was not an element
of the offense, in HB 109. She commented that the issue was
complex.
Number 329
MS. HORETSKI asked if the committee wanted to leave the
language as it was, but also add another section which
referred to "any crime during which penetration occurred"?
Discussion ensued between Ms. Knuth and Ms. Horetski.
Number 347
CHAIRMAN PORTER said that it might be advisable to pass
HB 109 out of committee in its present form, rather than to
insert potentially inappropriate language that would address
one recent case which hopefully would never happen again.
Hearing no objection to moving the bill out of committee, IT
WAS SO ORDERED. The Chairman announced that HB 127 was the
next item of business before the committee.
HB 127: PRESUMPTIVE TERMS FOR FIREARMS POSSESSION
Number 366
REPRESENTATIVE PETE KOTT, PRIME SPONSOR of HB 127, said the
bill was intended to send a clear message that the state
would deal harshly with people who carried firearms while
committing serious crimes. He noted that HB 127 would
impose presumptive terms of imprisonment on first-time
felony offenders who possessed a firearm while committing a
class B or C felony. He added that the bill would also
impose a mandatory minimum sentence of 30 days for those who
possessed a firearm during the commission of a fourth-degree
assault.
REPRESENTATIVE KOTT noted that the Alaska Peace Officers'
Association supported HB 127, as did Crimestrike, a national
organization devoted to reducing crime. He stated that the
DPS supported the concept of the bill, and had indicated
there was no expected fiscal impact associated with HB 127.
He mentioned that the DOC had submitted a very large fiscal
note, but expressed his opinion that it was based on a great
deal of speculation.
REPRESENTATIVE KOTT commented that while working on HB 127,
he had discovered that the state had a very poor information
management system for reporting and tracking crimes, in his
opinion.
Number 430
REPRESENTATIVE JAMES stated that if the DOC fiscal note was
correct, then the state was in serious trouble and should
have implemented HB 127's provisions long ago.
Number 438
REPRESENTATIVE KOTT noted that if the fiscal note was even
close to being correct, he would have serious problems in
working to advance HB 127.
CHAIRMAN PORTER believed the fiscal note did not reflect
people who were "slipping through the cracks" of the state's
judicial system. Rather, he said that the fiscal note
simply reflected longer sentences for people who had already
been convicted.
Number 454
REPRESENTATIVE KOTT confirmed that the Chairman's comments
were correct, to a large degree. He questioned the
methodology used in calculating the DOC fiscal note.
Number 474
MS. KNUTH stated that Alaska had one of the best information
tracking systems on crimes in the nation. However, she said
that what Alaska tracked was very different from the
information that was needed for a fiscal note like the one
prepared by the DOC. She noted that Alaska was extremely
good at tracking prosecutions and convictions, but said that
offenses were tracked, not conduct, including whether or not
a weapon was used in an offense.
MS. KNUTH expressed the DOL's concerns with HB 127. She
said that the bill would create a presumptive sentence of
one year for class C felonies and two years for class B
felonies, if a person possessed a firearm and that
possession was not an element of the offense. She said that
anytime possession of a firearm was an element of the
offense, there was a rule of law that said a person would
not be doubly penalized. Therefore, she noted that HB 127
would not affect the offender's sentence in any present
misconduct with weapons' offenses.
MS. KNUTH commented that burglary had already been elevated
one degree, if the target of the burglary was a commercial
establishment, or the perpetrator was in possession of a
weapon. She commented further that possession of a weapon
during any drug offense was already a separate crime. She
added that it was already a higher-class felony offense if a
person escaped from incarceration with a gun. She noted
that there were many weapons' offenses that HB 127 would not
affect.
Number 525
MS. KNUTH stated that HB 127 likely would affect about half
of all assault cases and drug offenses in which a gun was
used on the drug charge sentence, but not on the second
charge that was made for the weapons offense of using a
weapon during a drug offense. She was concerned that by
setting a presumptive sentence, the state was tying judges'
hands to some degree. She commented that in cases where a
weapon was an active part of an offense, the state was
already getting much higher sentences than those proposed in
HB 127. She noted that the bill would create "ceilings"
that currently did not exist.
MS. KNUTH cited a recent case that she had prosecuted, which
would have been negatively affected if the provisions of
HB 127 had been law. She commented that generally, the
legislature had tried to respond to the use of weapons by
making it an aggravator in existing presumptive sentences
and by having a long list of separate weapons' crimes. She
predicted that the approach taken in HB 127 would have some
strange effects, some of which were most likely
unintentional.
MS. KNUTH suggested that the committee study the bill
carefully before taking any action on it. She noted that
the Sentencing Commission, in its thorough analysis of the
criminal justice system, had not recommended the approach
taken in HB 127. She commented that HB 127 would increase
sentences in cases where a weapon was not a major part of
the offense. However, in cases where a weapon was a major
part of the offense, sentences would be decreased, she said.
Number 578
REPRESENTATIVE GREEN asked if the legislature could pass
presumptive sentences that took effect only if another
presumptive sentence did not.
Number 585
MS. KNUTH did not believe that could occur. She noted that
the point of presumptive sentences was to use them
generally.
Number 603
REPRESENTATIVE NORDLUND asked Ms. Knuth if the possession of
a firearm during the commission of a crime was now an
aggravator.
MS. KNUTH replied in the affirmative. She said that it gave
flexibility to a judge in handing down a sentence.
Number 628
REPRESENTATIVE NORDLUND commented that Representative Kott's
intentions were probably good, but said that the effect of
HB 127 might be counterproductive to what Representative
Kott had set out to accomplish. He asked Representative
Kott what had prompted his introduction of HB 127.
Number 636
REPRESENTATIVE KOTT replied that he had sponsored the bill
because of concerns raised by police officers. He suggested
that the committee lay HB 127 aside, and instead look into
recommendations made by the Sentencing Commission.
CHAIRMAN PORTER stated that he would accept Representative
Kott's comment as a MOTION to lay HB 127 on the table,
pending further discussion of the Sentencing Commission's
recommendations. There being no objection, IT WAS SO
ORDERED. The Chairman announced that the committee would
take up HB 86 next. He called a brief "at ease" while
Representative Bunde was being notified.
HB 86: SANCTIONS FOR PROPERTY-RELATED OFFENSES
TAPE 93-36, SIDE A
Number 032
CHAIRMAN PORTER called the meeting back to order. He stated
that HB 86 was now before the committee.
Number 042
SANDY PEVAN testified in support of HB 86. She mentioned
that there was a problem in the Matanuska-Susitna Valley
regarding homeless youths and runaways who committed crimes.
She indicated that HB 86 would help to alleviate that
problem.
Number 075
REPRESENTATIVE CON BUNDE, PRIME SPONSOR of HB 86, stated
that the intent behind the bill was to deter juvenile
mischief, which would result from forfeiture of vehicles
used in the commission of a crime, and the publishing of an
offender's name, photograph, and crime. Additionally,
offenders could be required to pay restitution. He was open
to suggestions on other types of deterrents.
Number 129
REPRESENTATIVE NORDLUND asked Representative Bunde to
comment on the current law regarding adults who used a
vehicle in the commission of a crime.
Number 135
REPRESENTATIVE BUNDE replied that for certain drug offenses,
an offender's vehicle could be confiscated. With regard to
other types of offenses, he said that HB 86 would be a
stricter law than that currently applied to adults. He
noted that it was not his intent to restrict juveniles more
than adults. He commented that his bill focused on
forfeiture of a vehicle because criminal mischief was often
committed with a vehicle, and also because a vehicle was
often a minor's only possession of any value.
Number 182
MS. KNUTH noted that section 2 of HB 86, regarding
forfeiture of vehicles, was not limited to minors. She said
that section 2 would apply to vehicles used by a person in
aid of criminal mischief in the first degree or criminal
mischief in the second degree. She commented that criminal
mischief in the first degree occurred very rarely in Alaska.
She commented that the types of crimes which Representative
Bunde had described would be considered criminal mischief in
the third and fourth degrees.
MS. KNUTH said that the DOL had two concerns with vehicle
forfeiture. She noted that there was no provision in HB 86
regarding vehicles owned by innocent parties. She said that
there was no quick fix for this particular problem.
Additionally, she said that the DOL was concerned about the
definition of a vehicle used in aid of criminal mischief
offenses. She noted that there needed to be a nexus between
a vehicle and damage done during a criminal mischief
offense. She commented that using a vehicle to get to the
scene of the crime was not a sufficient nexus, whereas using
a vehicle as a battering ram was.
MS. KNUTH cited the DOL's concern with section 3 of HB 86,
regarding restitution. She said that the section pertained
to restitution ordered of adult offenders. She said the
bill proposed that juveniles waived to adult status be
required to pay restitution for any criminal mischief
offense. She noted that Alaska already had a requirement
that adults pay restitution for criminal mischief in the
third degree. She said the DOL was concerned that HB 86
would set up an anomalous situation in which juveniles
waived to the adult system would be required to pay
restitution for all criminal mischief offenses, while adult
offenders would only have to pay restitution for criminal
mischief in the third degree.
MS. KNUTH commented that the court would question why the
legislature wanted to treat juveniles more harshly than
adults. She suggested that HB 86 be amended so as to
require only under-18 offenders who had been waived to adult
court to pay restitution upon conviction of criminal
mischief in the third degree. Alternatively, she said that
the legislature could amend the adult restitution statutes
so that they would be in line with what was being proposed
in HB 86.
MS. KNUTH recommended that the legislature follow her first
suggestion, as following the second suggestion would require
that the court make a finding that an offender was able to
pay restitution of more than $500 and up to $100,000. She
said that it was easy to require restitution of up to $500,
because anyone could go out and work for a month and come up
with that amount of money. However, she said, when people
were required to pay restitution of $100,000, the state
would run afoul of constitutional prohibitions against
"imprisonment for debt."
MS. KNUTH commented that she had not examined the public
records' provision of HB 86, as the Criminal Division of the
DOL was not involved in juvenile delinquency proceedings.
She had alerted the Civil Division about HB 86, and because
of their absence, she assumed that they had no problem with
HB 86.
Number 354
REPRESENTATIVE GREEN asked if there was any difference in
the use of a vehicle to commit a felony and a misdemeanor.
He used an example of a person driving a getaway car in a
felony.
Number 365
MS. KNUTH replied that if a person drove another person to a
place where the second person committed criminal mischief,
then the driver would be criminally liable. She said that
the state currently had laws regarding the forfeiture of
vehicles used in committing certain drug offenses. That
law, she said, applied to juveniles and adults. She
commented that the state had problems regarding innocent car
owners, when applying that forfeiture law. She noted that
the federal government now handled most of the state's
forfeiture proceedings, as the federal laws more thoroughly
addressed the issue of innocent parties.
MS. KNUTH added that the governor had introduced a bill
which addressed the problem of innocent owners more
effectively.
Number 398
CHAIRMAN PORTER believed that releasing information
regarding juveniles who committed two levels of criminal
mischief offenses and not releasing information about
juveniles who committed much more serious crimes was rather
inconsistent.
Number 416
MS. KNUTH commented that laws were often made in response to
very narrow, perceived problems.
Number 446
REPRESENTATIVE KOTT asked Ms. Knuth how many actual offenses
HB 86 would impact.
Number 455
MS. KNUTH replied that if HB 86 was enacted as currently
written, applying to criminal mischief in the first and
second degrees, its provisions would never be used. If the
bill was amended to reflect the level of criminal mischief
that she believed the sponsor intended to address, she
guessed that fewer than 20 cases a year would be impacted.
Number 481
REPRESENTATIVE JAMES asked Ms. Knuth to comment on the use
of a vehicle as a dangerous weapon.
Number 491
MS. KNUTH responded that cars were treated as dangerous
weapons in certain crimes, including drunk driving.
Number 498
REPRESENTATIVE GREEN asked Ms. Knuth if she had said that,
even if HB 86 were amended, it would only impact 20 or fewer
cases per year.
MS. KNUTH stated that was her best estimate. She said the
original intent behind HB 86 was that taking away a
juvenile's car would serve as a deterrent. She was of the
opinion that courts should order restitution from juveniles
when they caused damage. A juvenile's car could then be
subject to seizure and normal civil attachment procedures.
Number 520
REPRESENTATIVE GREEN inquired about the impact of adding
three-wheelers, snow machines, and other types of vehicles
in HB 86.
Number 522
MS. KNUTH did not know the answer to Representative Green's
question.
Number 532
REPRESENTATIVE BUNDE agreed with Ms. Knuth regarding taking
criminal mischief in the first degree out of HB 86.
However, he argued strongly for leaving criminal mischief in
the second degree in the bill, because it would address
joyriding and causing damage in excess of $500. He wanted
to encourage awareness among juveniles that they needed to
be responsible for their actions.
REPRESENTATIVE BUNDE believed that if the names and
photographs of juveniles who committed criminal mischief
were to be published, that would serve as a deterrent.
Number 570
CHAIRMAN PORTER had some concerns regarding HB 86. Due to
the late hour, however, he said he would hold the bill in
committee and reschedule it for another hearing, at a time
uncertain.
ADJOURNMENT
CHAIRMAN PORTER adjourned the meeting at 3:04 p.m.
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