Legislature(1995 - 1996)
03/27/1995 02:30 PM House JUD
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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 27, 1995
2:30 p.m.
MEMBERS PRESENT
Representative Brian Porter, Chairman
Representative Joe Green, Vice Chairman
Representative Con Bunde
Representative Bettye Davis
Representative Al Vezey
Representative Cynthia Toohey
Representative David Finkelstein
MEMBERS ABSENT
None
COMMITTEE CALENDAR
HB 159: "An Act allowing a person under age 21 to be arrested
by a peace office without a warrant for illegal
possession, consumption, or control of alcohol;
relating to the offenses of driving with a revoked
license, driving while intoxicated, or failure to
submit to a chemical test of breath or blood; and
providing for an effective date."
PASSED OUT OF COMMITTEE
HB 203: "An Act relating to the meaning of the phrase
"previously convicted" as that phrase applies to the
operation of a motor vehicle, commercial motor vehicle,
aircraft, or watercraft while intoxicated."
PASSED OUT OF COMMITTEE
HB 204: "An Act relating to the administrative revocation of a
minor's license to drive; creating criminal offenses of
minor operating a vehicle after consuming alcohol, a
minor's refusal to submit to chemical test, and driving
during the 24 hours after being cited for minor
operating a vehicle after consuming alcohol;
establishing penalties for these offenses; and relating
to implied consent to certain testing if operating a
motor vehicle, aircraft, or watercraft."
PASSED OUT OF COMMITTEE
HB 201: "An Act relating to prisoner litigation, post-conviction
relief, sentence appeals, amending Alaska Administrative
Rule 10, Alaska Rules of Appellate Procedure 204, 208,
209, 215, 521, 603, and 604, and Alaska Rules of
Criminal Procedure 11, 33, 35, and 35.1; and providing
for an effective date."
HEARD AND HELD
WITNESS REGISTER
MARGOT KNUTH, Assistant Attorney General
Criminal Division
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Provided information on HB 203
CHARLES MCKEE
P.O. Box 143452
Anchorage, AK 99514
Telephone: Not Available
POSITION STATEMENT: Testified on HB 203
LAURIE OTTO, Deputy Attorney General
Criminal Division
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Testified in favor of HB 201
PREVIOUS ACTION
BILL: HB 159
SHORT TITLE: DWI LAWS/ MINOR IN POSSESSION LAWS
SPONSOR(S): REPRESENTATIVE(S) PORTER,Bunde,Green,Toohey
JRN-DATE JRN-PG ACTION
02/06/95 253 (H) READ THE FIRST TIME - REFERRAL(S)
02/06/95 253 (H) JUDICIARY, FINANCE
02/17/95 (H) JUD AT 01:00 PM CAPITOL 120
02/20/95 (H) JUD AT 01:00 PM CAPITOL 120
02/20/95 (H) MINUTE(JUD)
02/21/95 431 (H) COSPONSOR(S): GREEN
03/06/95 623 (H) COSPONSOR(S): TOOHEY
03/27/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 203
SHORT TITLE: PREVIOUS CONVICTIONS FOR DWI OFFENSES
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
JRN-DATE JRN-PG ACTION
02/27/95 493 (H) READ THE FIRST TIME - REFERRAL(S)
02/27/95 493 (H) TRANSPORTATION, JUDICIARY
02/27/95 494 (H) 2 ZERO FISCAL NOTES (ADM)
02/27/95 494 (H) 3 ZERO FISCAL NOTES (CORR,LAW,DPS)
02/27/95 494 (H) GOVERNOR'S TRANSMITTAL LETTER
03/08/95 (H) TRA AT 01:00 PM CAPITOL 17
03/08/95 (H) MINUTE(TRA)
03/10/95 698 (H) TRA RPT 3DP 2NR
03/10/95 698 (H) DP: MACLEAN, WILLIAMS, SANDERS
03/10/95 698 (H) NR: MASEK, G.DAVIS
03/10/95 698 (H) 2 ZERO FISCAL NOTES (ADM)
2/27/95
03/10/95 698 (H) 3 ZERO FN (CORR, LAW, DPS)
2/27/95
03/27/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 204
SHORT TITLE: NO DRINK BEFORE DRIVING IF UNDER 21
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
JRN-DATE JRN-PG ACTION
02/27/95 495 (H) READ THE FIRST TIME - REFERRAL(S)
02/27/95 495 (H) TRANSPORTATION, JUDICIARY
02/27/95 495 (H) 5 ZERO FISCAL NOTES (2-ADM,
2-DPS, LAW)
02/27/95 496 (H) GOVERNOR'S TRANSMITTAL LETTER
03/13/95 (H) TRA AT 01:00 PM CAPITOL 17
03/15/95 (H) TRA AT 01:00 PM CAPITOL 17
03/15/95 (H) MINUTE(TRA)
03/17/95 773 (H) TRA RPT 5DP 1NR
03/16/95 774 (H) DP: SANDERS,WILLIAMS,JAMES,MACLEAN
03/16/95 774 (H) DP: MASEK
03/16/95 774 (H) NR: G.DAVIS
03/16/95 774 (H) 5 ZERO FISCAL NOTES (2-ADM, LAW,
2-DPS)
03/27/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 201
SHORT TITLE: PRISONER LITIGATION AND APPEALS
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
JRN-DATE JRN-PG ACTION
02/27/95 488 (H) READ THE FIRST TIME - REFERRAL(S)
02/27/95 488 (H) STATE AFFAIRS, JUDICIARY, FINANCE
02/27/95 488 (H) 3 ZERO FISCAL NOTES (LAW,CORR,DPS)
02/27/95 488 (H) 2 ZERO FISCAL NOTES (ADM)
02/27/95 488 (H) GOVERNOR'S TRANSMITTAL LETTER
03/07/95 (H) STA AT 08:00 AM CAPITOL 102
03/07/95 (H) MINUTE(STA)
03/14/95 (H) STA AT 08:00 AM CAPITOL 102
03/14/95 (H) MINUTE(STA)
03/16/95 (H) STA AT 08:00 AM CAPITOL 102
03/16/95 (H) MINUTE(STA)
03/18/95 (H) STA AT 10:00 AM CAPITOL 102
03/18/95 (H) MINUTE(STA)
03/20/95 807 (H) STA RPT 3DP 1NR
03/20/95 807 (H) DP: JAMES, GREEN, ROBINSON
03/20/95 807 (H) NR: IVAN
03/20/95 808 (H) 3 ZERO FNS (LAW, CORR, DPS)
2/27/95
03/20/95 808 (H) 2 ZERO FNS (ADM) 2/27/95
03/27/95 (H) JUD AT 01:00 PM CAPITOL 120
ACTION NARRATIVE
TAPE 95-36, SIDE A
Number 000
The House Judiciary Standing Committee was called to order at 2:30
p.m. on Monday, March 27, 1995. A quorum was present. CHAIRMAN
BRIAN PORTER stated that the following bills would be heard: CSHB
159, HB 203, HB 204, and HB 201.
HB 159 - DWI LAWS/MINOR IN POSSESSION LAWS
CHAIRMAN BRIAN PORTER explained that there is a memo in the packets
describing the differences made in the committee substitute since
the last time the Judiciary Committee members heard HB 159. The
bill has a provision that would allow an officer to make an arrest
when having probable cause for minor consuming. This allowance
should also apply to municipal ordinances as well as to state
statutes. Section 4 requires alcohol screening to be conducted
prior to sentencing, which is aimed at giving the judge the best
picture of this individual so as to guide the sentence in terms of
the appropriate length of prison time and probation time. Section
5 requires the court to impose any suspended jail time when a
person convicted of a DWI fails to complete the alcohol treatment
program. The idea is to have that big hammer to get their
attention and make them not want to violate their probation and
start drinking again. It increases the minimum period of
incarceration so there will not be any situation where the minimum
sentence for a misdemeanor is more than what it is for a felony.
REPRESENTATIVE JOE GREEN, bill sponsor, made a motion to adopt the
new committee substitute for HB 159, Version K, dated 3/21/95, as
their working draft. Seeing no objection, Version K was adopted as
the working draft.
REPRESENTATIVE DAVID FINKELSTEIN stated for the record that he
still had the same concerns that he had previously voiced in the
last hearing on HB 159.
REPRESENTATIVE CYNTHIA TOOHEY made a motion to move CSHB 159,
Version K, out of committee with individual recommendations and
attached fiscal notes. Seeing no objection, it was so ordered.
HB 203 - PREVIOUS CONVICTIONS FOR DWI OFFENSES
Number 150
CHAIRMAN PORTER called Margot Knuth forward to explain HB 203.
MARGOT KNUTH, Assistant Attorney General, Criminal Division,
Department of Law, thanked the committee for hearing the bill, on
behalf of both the Governor and the Department of Law. HB 203
addresses previous convictions for purposes of our driving while
intoxicated (DWI) laws. The problem this bill remedies is an
Alaska appellate opinion stating that convictions from ".08"
jurisdictions are not substantially similar to Alaska DWI ".10"
convictions; and therefore, these convictions were not counted as
prior convictions, for purposes of our mandatory minimum sentencing
for DWI offenses. This bill adds language to the current statute
to include a law or ordinance of another jurisdiction that presumed
the person was under the influence of intoxicating liquor at a
lower percentage by weight of alcohol in the person's blood, than
that required in Alaska law. The legislature has concluded that a
DWI conviction is a DWI conviction, and should be treated as such.
There are three places this requires changes in our Title 28, and
HB 203 makes all of those necessary changes.
Number 195
REPRESENTATIVE TOOHEY noted this is the third time the committee
has looked at the DWI issue. She asked Ms. Knuth if these fix-it
bills were just causing the committee to revisit issues that were
not addressed properly or completely the first time around. She
wondered if there was a more efficient way they could be handling
this issue.
MS. KNUTH thought there would not be a more efficient way, because
it is the nature of criminal litigation that everybody who is
convicted, has a right to try to poke a hole in the sand chute.
The court looks at all of the arguments that are made. Even though
the court only accepts one out of a hundred, they end up finding
all of the other holes that need to be filled.
Number 225
CHARLES MCKEE expressed personal concerns via teleconference from
Anchorage. He spoke of his prior DWI conviction in 1976. He does
not have a driver's license. He does not even have a state I.D.
because of previous discrepancies with the actuaries and their
affiliation with the DMV (Division of Motor Vehicles), and the
state of Alaska, and the Judiciary. He has been made aware that if
he decides to become licensed to drive in Alaska in the future, and
then tries to drive through Canada, that previous conviction on his
record would prohibit him from driving through Canada. He would
like to see that remedied to his satisfaction.
CHAIRMAN PORTER concluded the public hearing on HB 203.
REPRESENTATIVE CON BUNDE made a motion to move HB 203 out of
committee with individual recommendations and accompanying fiscal
notes. Seeing no objection, it was so ordered.
HB 204 - NO DRINK BEFORE DRIVING IF UNDER 21
Number 280
MS. KNUTH explained that this bill establishes a zero tolerance for
minors in Alaska drinking and then driving. This bill is supported
by the United States Department of Transportation, and the National
Highway Safety Traffic Administration. Other supportive groups
include: The Alaska Council on the Prevention of Alcohol and Drug
Abuse, Alaskans for Drug-Free Youth, and several other agencies of
federal and state law enforcement. Drunk driving is one of the
most serious offenses we have in this state, causing the greatest
amount of harm to people and to property. There are some groups we
can target as being a particularly dangerous group. One of those
target groups is juveniles who are drinking. They do not have the
driving experience of other driving populations, and they do not
have the drinking experience either. When the two are combined,
their accident rate is substantially higher than that of other
driver groups. Worse than that, and more distressing, the fatality
rate for the accidents is much higher as well. This law makes it
a violation, not a misdemeanor. You cannot go to jail, it is just
a violation to be a minor and operate a vehicle after having
consumed any alcohol. It provides officers with a tool to get
these kids off of the road. We are aware that in bush areas, they
may not have intoximeters or a station that is easy to take kids
to, so it parallels our DWI law that allows for a portable breath
test to be used in some areas if there is another responsible
driver in the vehicle, and then the vehicle could be released to
that other person. A person picked up on this offense should be
cited to a parent or other responsible adult, rather than being
held in jail. The emphasis is not punitive, it is very much a
deterrent.
REPRESENTATIVE TOOHEY made motion to move HB 204 out of committee
with individual recommendations and attached fiscal notes. Seeing
no objection, it was so ordered.
HB 201 - PRISONER LITIGATION AND APPEALS
Number 400
LAURIE OTTO, Deputy Attorney General, Criminal Division, Department
of Law, described HB 201. One of the things that the Governor
asked when he first took office is for everyone to look at their
future budgets. One thing in the Criminal Division Budget, is a
growing number of Corrections' lawyers that work for the Department
of Law. Over the last four years, there has been a 20 percent
growth rate in the number of civil cases being filed against the
state by prisoners. Alaskan prisoners litigate at a tremendously
high rate. Many times, prisoners litigate just for something to
spend their time on and to get back at the people who are
imprisoning them. One of the things that has been successful in
other states is requiring prisoners to pay partial filing fees.
New York's prisoner litigation rate has dropped in half since they
established this requirement. Right now, most prisoners are pretty
much exempt from paying filing fees because they are considered
indigent in most cases. So they can file a civil action without
any immediate cost or any ultimate financial risk. If you or I
file a civil suit, we have to pay a filing fee, and we are
potentially liable for the other side's attorney's fees if we lose.
That is not a realistic possibility if you are talking about a
prisoner. So what we did, is say that if you are in prison and do
not have the $100 filing fee, you have to pay essentially 20
percent of the average six month balance in your inmate account.
So if the average monthly balance over a six month period is $5,
you have to pay $1; if it is $100, you have to pay $20. You have
to pay SOMETHING in order to get a case filed in court. Also, if
you are paying less than full filing fees, the bill would require
the court to make a finding not after an investigation, but just
based on the pleadings before the court, that it is not malicious,
frivolous, or brought in bad faith, so that there is an initial
screening step that the court has to take in accepting a case where
less than full filing fees have been paid. That is purpose number
1 of the bill.
MS. OTTO explained purpose number 2. People are able to file
sentence appeals as a matter of right in the state. If you have
been given a sentence in excess of a year for a felony, or 90 days
for a misdemeanor, you can file a sentence appeal. That it is your
right. There is no screening. You can file an appeal and the
court has to hear it. We are upping those limits to two years for
a felony and 120 days for a misdemeanor. We have gone back and
looked at court system statistics, and we see that only a very
small percentage of sentence appeals are granted, that 90 percent
of sentences are affirmed. We looked at the body of cases where
they were being affirmed, and there is a case called Austin that
talks about giving somebody who is a first felony offender more
than the sentence for a second felony offender. For class C
felonies, it is two years, and if you are within that two year
range, which is within the Austin limits, the courts pretty
routinely reject the sentence appeals, so we tried to pick the bulk
of sentence appeals where they were routinely being denied by the
courts. Part of the theory here is to allow all the agencies
involved, the courts, the prosecutors, the public defenders and the
Office of Public Advocacy, to focus on the cases where there is a
likelihood of prevailing as opposed to the cases where they are
routinely being denied, and we are all just churning up resources.
We have also said that if you agree to a particular sentence, so
that if you were convicted of second degree murder, and you agree
to a sentence between 30 and 40 years; if you get 40 years, this
bill would say you can no longer appeal that sentence as being
excessive, because it is part of what you agreed to. If you plea
to second degree murder with the understanding that you will not
get less than 20 years but the state can argue for up to 99 years,
it says if you get 20 years, you cannot appeal the sentence, but
you can if you get 99 years because that is more than what you
agreed to as the minimum. If you get within the minimum, or within
the range of what you agreed to, those can no longer be appealed.
Right now, those cases are being appealed. The bill is trying to
put some finality to criminal convictions.
Number 730
REPRESENTATIVE FINKELSTEIN asked under what circumstances you can
still appeal despite the restrictions.
MS. OTTO answered that they are on page 9, starting on line 19.
These would include instances where there was something to
physically prevent you from filing a claim, such as a guard in a
correctional institute refusing to take your paperwork, and you are
depending upon them to file it. That would be an exception. Also
if you came up with evidence that would show that you are innocent,
that would be an exception.
REPRESENTATIVE BUNDE asked Ms. Otto to explain Section 3.
MS. OTTO answered that under Evidence Rules 608 and 609, they spell
out the circumstances in which you can impeach, attack or discredit
a witness.
CHAIRMAN PORTER asked Ms. Otto if she felt there would be an equal
protection problem with the different treatment of those who are
indigent as opposed to those who are not.
Number 820
MS. OTTO said she had spoken with Ms. Carpeneti about this, and Ms.
Knuth has been working on it this morning. They would prefer the
bill were amended to say that the sections that are on page 3, and
continue on to page 4, only apply to people who are indigent and
are filing partial fees. We would prefer this to apply to all
prisoners who have filed a lawsuit for exactly the reason that you
are saying. We feel that making people who are poor jump through
different hoops than people who are not poor is a problem from an
equal protection standpoint. We would like the bill amended to
reflect that change.
Number 860
CHAIRMAN PORTER said the bill would be held over until one o'clock
on Wednesday, in order to draft a committee substitute.
ADJOURNMENT
The House Judiciary Committee adjourned at 3:15 p.m.
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