03/30/2005 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB54 | |
| HB210 |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 210 | TELECONFERENCED | |
| *+ | HB 54 | TELECONFERENCED | |
| + | HB 150 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 30, 2005
1:24 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative Nancy Dahlstrom
Representative Pete Kott
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
Representative John Coghill
COMMITTEE CALENDAR
HOUSE BILL NO. 54
"An Act relating to bail review."
- HEARD AND HELD
HOUSE BILL NO. 150
"An Act requiring licensure of occupations relating to
radiologic technology, radiation therapy, and nuclear medicine
technology; and providing for an effective date."
- HEARD AND HELD
HOUSE BILL NO. 210
"An Act relating to blood testing of certain persons alleged to
have committed certain offenses directed toward peace officers
or emergency workers."
- MOVED CSHB 210(JUD) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 54
SHORT TITLE: BAIL REVIEW
SPONSOR(S): REPRESENTATIVE(S) SAMUELS, STOLTZE
01/10/05 (H) PREFILE RELEASED 1/7/05
01/10/05 (H) READ THE FIRST TIME - REFERRALS
01/10/05 (H) JUD, FIN
03/30/05 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 150
SHORT TITLE: LICENSING RADIOLOGIC TECHNICIANS
SPONSOR(S): REPRESENTATIVE(S) ANDERSON
02/14/05 (H) READ THE FIRST TIME - REFERRALS
02/14/05 (H) L&C, JUD, FIN
02/23/05 (H) L&C AT 3:15 PM CAPITOL 17
02/23/05 (H) Scheduled But Not Heard
03/02/05 (H) L&C AT 3:15 PM CAPITOL 17
03/02/05 (H) Heard & Held
03/02/05 (H) MINUTE(L&C)
03/18/05 (H) L&C AT 3:15 PM CAPITOL 17
03/18/05 (H) Moved CSHB 150(L&C) Out of Committee
03/18/05 (H) MINUTE(L&C)
03/22/05 (H) L&C RPT CS(L&C) 2DP 1NR 2AM
03/22/05 (H) DP: LYNN, ANDERSON;
03/22/05 (H) NR: CRAWFORD;
03/22/05 (H) AM: ROKEBERG, KOTT
03/30/05 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 210
SHORT TITLE: BLOODBORNE PATHOGEN TESTING
SPONSOR(S): REPRESENTATIVE(S) MCGUIRE
03/07/05 (H) READ THE FIRST TIME - REFERRALS
03/07/05 (H) JUD, FIN
03/30/05 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
SARA NIELSEN, Staff
to Representative Ralph Samuels
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 54 on behalf of Representative
Samuels, one of the bill's prime sponsors.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
54; responded to questions during discussion of HB 210.
LINDA WILSON, Deputy Director
Central Office
Public Defender Agency (PDA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 54, responded to
questions and expressed concerns.
TAMARA de LUCIA, Associate Victims' Rights Advocate
Office of Victims' Rights (OVR)
Alaska State Legislature
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
54 and responded to questions.
DOUG WOOLIVER, Administrative Attorney
Administrative Staff
Office of the Administrative Director
Alaska Court System (ACS)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 54.
JON BITTNER, Staff
to Representative Tom Anderson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 150, provided
comments on behalf of the sponsor, Representative Anderson.
SHALON SZYMANSKI, Staff
to Representative Lesil McGuire
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 210 on behalf of the sponsor,
Representative McGuire.
ANTHONY NEWMAN
Social Services Program Officer
Division of Juvenile Justice (DJJ)
Department of Health and Social Services (DHSS)
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
210 and suggested a change.
MIKE COUTURIER, Vice President
Anchorage Police Department Employees Association (APDEA)
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
210 and responded to a question.
WILL AITCHISON
Anchorage Police Department Employees Association (APDEA)
Anchorage, Alaska
POSITION STATEMENT: Responded to a question during discussion
of HB 210.
ACTION NARRATIVE
REPRESENTATIVE TOM ANDERSON [acting as chair in the absence of
Chair Lesil McGuire] called the House Judiciary Standing
Committee meeting to order at 1:24:21 PM. Representatives
Anderson, Kott, Dahlstrom, Gruenberg, and Gara were present at
the call to order. Representative McGuire arrived as the
meeting was in progress.
HB 54 - BAIL REVIEW
REPRESENTATIVE ANDERSON announced that the first order of
business would be HOUSE BILL NO. 54, "An Act relating to bail
review."
1:24:52 PM
REPRESENTATIVE DAHLSTROM moved to adopt the proposed committee
substitute (CS) for HB 54, Version 24-LS0271\Y, Luckhaupt,
3/21/05, as the work draft. There being no objection, Version Y
was before the committee.
1:25:11 PM
SARA NIELSEN, Staff to Representative Ralph Samuels, Alaska
State Legislature, presented HB 54 on behalf of Representative
Samuels, one of the bill's prime sponsors. She pointed out that
HB 54, Version Y, has two parts, and that the first part deals
with bail review hearings. She explained:
Right now a defendant may be granted a bail hearing
every 24 hours without limitation. ... A lot of the
defendants take advantage of that 24-hour hearing
period and they use it to get out of jail, to go to
court, and the [District Attorney] has to drop what
they're doing. And the victim has a right to be at
the hearing, so they drop what they're doing, and ...
it brings forth many logistical problems. So to help
limit the abuse ... of that, HB 54 proposes to do
three things. The first is that the accused must
submit in writing that there exists new information
for the court's consideration that wasn't considered
at a trial bail hearing. The second is that the
[district attorney] is given 48 hours notice in which
to notify the victim of the hearing. And lastly,
there will be a 48-hour period between calendared bail
hearings, so we're just changing it from 24 to 48
[hours].
MS. NIELSEN continued:
The second part of the bill, which is the new language
in the CS, has been added [so] that a victim may be
introduced to a jury during an opening statement at a
trial or during the jury selection process. Right now
the defendant is right there throughout the entire
process, and the jury is able to see the defendant.
And just to balance it, we thought it was a good idea
for the prosecution to be allowed to introduce the
victim.
1:27:17 PM
REPRESENTATIVE KOTT asked if bail hearings are heard before the
same judge [that presided over the original trial], whether
packets of information are presented in advance to the judge
that's making the determination, and whether he/she has to
consider that information.
1:29:23 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL),
opined that HB 54 will bring order to what are sometimes
disorderly requests for bail hearings. She noted that there
have been problems particularly in Anchorage with what she
called "serial" bail hearings. In response to Representative
Kott, she replied that bail hearings are heard by whoever is
available, and that a file with all pertinent information
follows the case.
REPRESENTATIVE KOTT, noting that the current standard allows a
person to request a bail hearing every day, asked what would be
the substantial savings in moving that to the 48-hour
arrangement, since one could still bring the issue up every two
days.
MS. CARPENETI answered that the bill allows for at least twice
as long as is currently provided for, plus requires that one
have additional information to provide to the judicial officer.
1:32:41 PM
REPRESENTATIVE KOTT offered a hypothetical example wherein a
person can't make bail initially but can within a few hours; he
asked if this person would then have to wait in jail for the
entire 48 hours before having the opportunity to pay bail and
leave the premises.
MS. CARPENETI responded that she didn't believe that would be
correct. She said, "If the judge sets a $5,000 cash bail and
you don't have it at 'hour one' but you have it at 'hour five,'
... you can be released."
REPRESENTATIVE GRUENBERG relayed his concern that it is not
always possible to get a hold of the prosecuting attorney for a
bail review hearing, particularly in rural areas. He suggested
amending Version Y to allow the court to waive the proposed
requirements. He asked Ms. Carpeneti if she saw any problems
with such an amendment.
MS. CARPENETI asked that she be allowed to discuss this with the
DOL's prosecutors, but she worries that such an amendment would
require the court to hear the request and then have another
hearing within 24 hours regarding whether there's sufficient
cause to have a hearing.
REPRESENTATIVE GRUENBERG remarked that that is not his intent.
1:35:48 PM
REPRESENTATIVE ANDERSON mentioned that the Office of Victims'
Rights had originally requested the bill.
REPRESENTATIVE GARA asked where in the law it says that one can
keep requesting more and more bail hearings without any new
information or any cause.
MS. CARPENETI replied that the law does not say this
specifically, but such has been the practice.
1:37:26 PM
REPRESENTATIVE GARA surmised, then, that HB 54 would allow one
to get a bail review after a review of the first hearing.
MS. CARPENETI clarified that an individual is arraigned within
24 hours of being arrested and bail is set at that time. The
individual then has the right to a hearing 48 hours from the
time of arraignment. She said, "This bill addresses hearings
after that first arraignment and the 48-hour hearing after
that." In response to a question, she replied that HB 54 would
add a new subsection (j) to AS 12.30.020 that would address bail
hearings after the hearing outlined in AS 12.30.120(f).
REPRESENTATIVE GARA asked whether other states or federal trials
allow the victim to be introduced during the opening statement.
MS. CARPENETI said she did not know the answer, but offered her
understanding that most judges in Alaska do allow prosecutors to
introduce the [victim] but not in all situations, and this has
been the impetus for the bill. She said:
I think the bill originally said, "during the opening
statement," and then it was revised to allow
introduction during jury selection for a couple of
reasons. If the victims are sitting in the audience
and there're all these jurors being voir dired,
they're kind of wondering who these people are. The
defendant is there; they know who he or she is, but
they don't know these other people who are potential
jurors. Plus the fact that the jurors may actually
know the victims and may not recognize the name but
recognize the face, and it's important so they can
answer accurately whether or not they know any of the
parties in the case. ...
REPRESENTATIVE GARA wanted to know why the rule is as it is
currently, whether there is some sort of "fairness at trial"
concern that judges have. He commented, "I don't want to just
quickly change a court rule without thinking it through."
MS. CARPENETI offered her belief that there is nothing that
addresses this specifically. She pointed out that the practice
has been to allow introduction of victims, but there have been a
few recent cases where this has not been allowed.
REPRESENTATIVE GARA asked why.
MS. CARPENETI replied that she did not know.
1:41:14 PM
REPRESENTATIVE KOTT relayed that he'd sat through a [hearing]
wherein the defendant had a $5,000 bail that he couldn't pay.
The defendant asked if he could be sent to a halfway house in
lieu of paying bail. Representative Kott asked if this case
would fall within the scope of this bill.
MS. CARPENETI said she'd never heard of a person being given the
choice of staying at a halfway house in lieu of paying bail.
REPRESENTATIVE GARA asked whether a person has a right to get a
new bail hearing every time he/she asks for one, or just the
right to ask for one.
MS. CARPENETI offered her understanding that the judge would
have to hold the hearing.
1:44:00 PM
REPRESENTATIVE GARA asked what would happen if there is no new
information to change the judge's mind, but the defendant has a
"new conditions" request.
MS. CARPENETI replied that there are types of new information
that would entitle a person to a new bail hearing, such as that
someone is willing to post a portion of the bond or be a third
party custodian. She pointed out, however, that "if you had the
same person suggested as the third party custodian that the
court had rejected at the prior hearing, suggesting the same one
again would not be new information, but if you had somebody else
who you could say is willing to be a custodian, ... I think that
is new information."
1:45:23 PM
REPRESENTATIVE GRUENBERG asked whether the bill will allow a
bail hearing in situations wherein the defense lawyer finds
something illegal in the condition of bail.
MS. CARPENETI said that it would.
REPRESENTATIVE GRUENBERG offered his understanding that a direct
court rule amendment will require a two-thirds vote to become
effective, while an indirect rule does not require such a vote.
MS. CARPENETI responded that her understanding is that the
indirect rule also requires a two-thirds vote, and noted that
the title of the bill says that it would change court rules.
REPRESENTATIVE GRUENBERG opined that the committee should, as a
matter of policy, also put that in the bill.
1:49:12 PM
LINDA WILSON, Deputy Director, Central Office, Public Defender
Agency (PDA), Department of Administration (DOA), mentioned that
she'd been able to speak with the PDA attorney who handles all
superior court arraignments, but not with the attorney who
handles district court arraignments. She went on to say:
[The Anchorage] superior court hears bail hearings for
cases where the defendant has been indicted already,
so if it's pre-indictment, the bail hearings are
occurring in district court - post-indictment they're
heard in the superior court. The superior court also
hears bail hearings on petitions to revoke probation,
and the bulk of the bail hearings the superior court
hears has to do with probation revocation and bail for
those revocations. So in the superior court, it's all
in front of the same judge routinely, ... and the
court generally schedules only five or six hearings a
day.
So it's a limited number of hearings that the judge
allows to come in before the court on a regular basis.
So you don't have that situation where you have a
defendant abusing the system and coming in every day
for repeated bail hearings, arguing the same thing
over and over again. Quite frankly, that's not
happening. So I'm not sure if this is something that
they're saying is occurring in the district court; ...
I haven't spoken with them, but I find ... that that
would be quite remarkable if that were happening.
MS. WILSON continued:
What we normally do is what we call calendaring for a
date. Generally speaking, we have to wait a week to
get a bail hearing scheduled in front of the judge.
So again, it's not happening the next day. We
generally give the [district attorneys] 24-hour
advance notice [of] ... what our request is and give
an explanation. ... If we're proposing a third party,
we give them the third party information so they can
review it. ...
And then we e-mail the probation officer [PO] and let
them know about it because the superior court has
wanted to get the PO involved as well. ... On very
rare occasions could you get bail hearings for
something less than the five days away or the week
away ... and those are usually for pretty extenuating
circumstances, and you usually have to go to the judge
to request that expedited bail hearing. ... So that's
what I'm finding out about superior court
arrangements, which indicate to me that it's not a
situation where there's a lot of abuse or that there
is a problem that exists for the superior court.
MS. WILSON said that judges normally do allow the victim to be
introduced to the jury, but pointed out that Section 3 of
Version Y says that the term "victim" has the meaning given in
AS 12.55.185, which is a broad definition of the word and
includes members of the victim's family and "any interested
party." She said that she would like to hear more information
about why this was included in the bill.
1:56:22 PM
TAMARA de LUCIA, Associate Victims' Rights Advocate, Office of
Victims' Rights (OVR), Alaska State Legislature, said:
The provisions contained in HB 54 are important to
protect the needs and rights of victims in several
ways. ... The bail provision [serves] to curb the
current defense practice of setting bail hearings in
the morning for hearings that same afternoon.
Generally I would tell you this is a district court
problem. I'm not sure if it's necessarily
particularized to Anchorage, but I would imagine that
it is. ... In addition, this is not a situation where
we have encountered the [PDA] as the culprit. This is
a tactic very often used by private attorneys and by
the "defense contractor" for the Municipality of
Anchorage. So this is a district court misdemeanor
problem; it affects a lot of misdemeanor cases in the
... city, especially in the domestic violence context
because most of those cases do go to "misdemeanor
land."
MS. de LUCIA continued:
The way the current practice is at this point, the
defense attorneys fax in a request before 10 ... in
the morning for a bail hearing set the same day. And
what they do is they fax that to the calendaring
division - the request does not go before a judge, it
goes to "calendaring," ... [which] automatically
calendars that hearing. The prosecutors also get the
printout of the court calendar ... at 11 a.m. ... and
they have to scramble to notify the victim, to get the
file to prepare the prosecutor for the hearing, and
this is all done mindful of the fact that there's a
noon to 1 p.m. lunch hour. They have about an hour or
forty-five minutes to get that together, which can be
very difficult for victims. It puts a burden on the
court system because what the effect that you have of
scheduling a hearing with such short notice is that
more than half the time the victim's aren't notified
or the prosecutor's not prepared, and so the
prosecutor comes to court saying, "I never got my
victim on line," and the court has to re-calendar it
for the next day, affectively giving us 48 hours
anyway.
MS. de LUCIA continued:
So that does put a strain on the calendaring division
because judges are getting, especially in district
court, ... a bail hearing calendar that has 30 cases
set. And they very often go way through the
afternoon, a lot longer than the time they have set
aside for those hearings, in order to see who's there,
who's not, and who's ready. The court must allow
victim input at bail hearings. Most victims do choose
to exercise that right and ... not only is ... [that]
right ... constitutionally protected, but the court is
under statutory obligation to consider [the] risk to
the victim. So it's very important to have victim
input at these hearings.
MS. de LUCIA explained that the 48-hour issue wouldn't affect
the first bail hearing. She presented an example wherein a
defendant is held on a $5,000 cash corporate bail but can't make
bail that first day. The next day the defendant can come
forward with another application requesting to be sent to the
halfway house or asking for approval of a third party. She
pointed out that the DOC halfway houses do act as a bail hold
for defendants. She also noted that the prosecution has the
right to run the criminal history of the third party, to check
with the victim about suitability of that third party, and to
interview the third party to find out if the person is suitable.
Occasionally there isn't enough time for this background work,
and the third party is found to be unsuitable, which, she
commented, "just puts another kink in the gears that make
justice swiftly turn."
2:01:02 PM
MS. de LUCIA commented, "I don't think [HB 54] affects the
defendant's right to ask for bail hearings; it just says you
can't use this system to clog and abuse the process." She
reiterated that in district court, the judges don't set their
own schedules; this task is completed by calendaring personnel.
She noted that by having a 48-hour waiting period, the district
attorney would have enough time to produce a file and notify the
victim. Regarding HB 54, she said, "These provisions balance
the rights of the accused, they balance the rights of crime
victims, and they accommodate for the schedules of ... the
district attorney's office, the prosecutor's office, and the
court system."
MS. de LUCIA then stated, "Allowing the victim to choose whether
to be introduced to the jury is important because it recognizes
the victim's critical role in this process." She clarified that
the definition of victim in the bill is predicated on the victim
being deceased, so if the victim is deceased, the next of kin
would "step into the victim's shoes." She continued:
Very often victims feel totally out of control and
wholly secondary to the court proceeding and
especially secondary to the rights of the defendant.
Without the opportunity to be introduced to the jury,
the jurors may get the sense that the victim is
peripheral to the process, and this provision gives
some sense of control and importance to the crime
victim. ... We already allow the defendant to be
humanized, [and] our courts have ruled that those
efforts do not prejudice the fairness of the trial.
2:06:33 PM
MS. de LUCIA concluded:
[House Bill 54] is designed to strike the balance
between rights afforded the defendants throughout the
criminal process ... [and] those constitutionally
protected rights of crime victims. It's designed to
humanize the process for victims, take into account
the importance of victim involvement and participation
throughout the criminal process, and I would urge
passage, as written, of this bill.
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,
Office of the Administrative Director, Alaska Court System
(ACS), in response to a question, noted that he'd received a
comment from a rural magistrate saying that even if there is a
stipulation, there may not be a district attorney in the
community, or there may be only one district attorney and he/she
is tied up in a different case. He said that in those
situations, if there is some avenue for the court, on its own,
to waive the provision, it would facilitate cases in rural
communities where it just isn't possible to gather everybody
within the 48-hour time period.
REPRESENTATIVE GRUENBERG asked Ms. Carpeneti if she was able to
come up with any kind of language that might solve the problem;
he noted that it is definitely not his intent to have yet
another hearing.
2:08:57 PM
MS. CARPENETI commented that she hated to be the one holding up
the bill, but she would really like to have more time to talk
with other people about [that issue]. She, too, offered her
understanding that the issue at hand is a district court
problem, not a superior court problem.
REPRESENTATIVE GRUENBERG said that he had no problem with the
bill's definition of "victim" and "defendant".
2:11:30 PM
REPRESENTATIVE ANDERSON closed public testimony on HB 54.
REPRESENTATIVE KOTT asked whether, if the defendant cannot post
bail but then something occurs in the interim which enables the
defendant to post bail, the victim has a right to attend the
second hearing, or even whether there is a second hearing. He
said he can envision a situation in which a defendant can post
bail without the victim's knowledge, which could then pose a
risk to the victim.
MS. de LUCIA replied that the victim has the right to be present
at every proceeding where the accused's release is considered,
including all subsequent bail hearings. However if it is simply
the case that bail money wasn't posted the first day but was
posted the second day, that defendant will just be released, and
then the onus is on the Department of Corrections (DOC) to
inform the victim that the accused was released.
MS. WILSON added that there isn't a bail hearing every time a
person is released from jail; if the defendant is able to come
up with whatever the conditions of bail are, then he/she is
released from the facility without a separate bail hearing. She
noted that halfway houses are often used in Anchorage as part of
a bail release plan. She again assured the committee that the
PDA doesn't abuse the bail hearing process.
2:15:37 PM
REPRESENTATIVE GARA said he understands the reason for what the
bill proposes in district court, but is a little concerned that
there might be some exceptional circumstance when the bail order
releases a defendant to a treatment center that is full; the
defendant would then have to wait another 48 hours to get a new
bail hearing. He asked whether the bill could contain a
provision that would retain the current rules on expedited
review under exceptional circumstances.
MS. WILSON opined that the bill should contain a safety valve
for exceptional circumstances. She offered her belief that 24
hours seems to be adequate notice. She noted, "In the bill, it
reads that the court cannot schedule ... a bail hearing without
the 48 hour notice." She pointed out that sometimes a judge
will continue a bail hearing the next day so that more
information can be presented; she asked how that situation would
be affected by HB 54, and recommended that language be added to
the bill to clarify that the 48-hour period would begin after
there was a decision regarding bail.
MS. de LUCIA commented:
Very often [in cases of exceptional circumstance] I
would argue that it would be very easy to get a
stipulation to say, "We're just going to amend this or
transfer this language," and it wouldn't necessarily
require 48 hours, or you could get a stipulation from
your prosecutor saying, "We waive this provision and
we're going in today ... just to change this
administrative problem." And that could solve the
issue summarily. ...
MS. de LUCIA commented on the situation where cases are reset
for the next day, saying that the next bail hearing has to be 48
hours after the initial request.
2:20:10 PM
REPRESENTATIVE GARA said he didn't think he is comfortable
giving prosecutors the discretion to determine whether there is
good cause for an expedited review, because that is the role of
the judge.
MS. de LUCIA agreed. She opined that such would be ideal if all
the cases were heard before a judge, but that is not the case;
rather, these requests are dealt with by administrative
calendaring officials.
2:21:17 PM
REPRESENTATIVE GRUENBERG said it sounds like some attorneys are
abusing the bail process. He noted that in civil court
proceedings there are rules such as Rule 11 and Rule 95 of the
Alaska Rules of Civil procedure which could be used to address
the perceived abuse. He asked whether there are any criminal
rules similar to these civil rules that could address the
problem.
MR. WOOLIVER replied that he didn't know.
REPRESENTATIVE GRUENBERG suggested that the bill be held over to
address members' concerns.
REPRESENTATIVE ANDERSON opined that members' concerns could be
characterized as differences in viewpoint.
REPRESENTATIVE GRUENBERG replied that he supports the bill but
is concerned about an amendment that would give the courts some
additional discretion. However, he said it seems to him that if
attorneys are violating the spirit of the rules by filing
frivolous motions, then perhaps the bill should include rules
for criminal proceedings equivalent to Rules 11 and 95. He
commented: "If you're filing ... stuff frivolously, the court
can really sanction you. It's the modern equivalent to a
contempt of court. They don't use contempts of court now
against attorneys; they use Rule 95."
REPRESENTATIVE ANDERSON offered his belief that it is seldom
used.
REPRESENTATIVE GRUENBERG concurred.
REPRESENTATIVE ANDERSON speculated that Representative Samuels
would not want such an amendment in HB 54.
MS. NIELSEN relayed that the goal of the bill is to limit abuse,
and posited that the bill in its current form would be
sufficient.
REPRESENTATIVE ANDERSON said that he would like to move the bill
today.
2:27:12 PM
REPRESENTATIVE GRUENBERG opined that the court should be given
discretion.
MS. NIELSEN suggested that she and the DOL could work outside of
the committee to draft another CS.
REPRESENTATIVE ANDERSON said that HB 54 would be held over.
HB 150 - LICENSING RADIOLOGIC TECHNICIANS
REPRESENTATIVE ANDERSON announced that the next order of
business would be HOUSE BILL NO. 150, "An Act requiring
licensure of occupations relating to radiologic technology,
radiation therapy, and nuclear medicine technology; and
providing for an effective date." [Before the committee was
CSHB 150(L&C).]
JON BITTNER, Staff to Representative Tom Anderson, Alaska State
Legislature, sponsor, said on behalf of Representative Anderson
that several groups have come forward with concerns about the
bill, and asked that HB 150 be heard at another time after the
concerns have been addressed.
REPRESENTATIVE ANDERSON said HB 150 would be held over and
public testimony would be kept open.
HB 210 - BLOODBORNE PATHOGEN TESTING
2:30:16 PM
REPRESENTATIVE ANDERSON announced that the final order of
business would be HOUSE BILL NO. 210, "An Act relating to blood
testing of certain persons alleged to have committed certain
offenses directed toward peace officers or emergency workers."
SHALON SZYMANSKI, Staff to Representative Lesil McGuire, Alaska
State Legislature, sponsor, said on behalf of Representative
McGuire that HB 210 proposes to expand the existing policies and
procedures for testing for bloodborne pathogens to include peace
officers, fire fighters, emergency medical technicians, and
mobile paramedics. She explained:
If an individual is exposed to another individual's
blood or bodily fluid that is contaminated with
bloodborne pathogens, they're at risk of being exposed
to a variety of viruses, ranging from hepatitis to
[human immunodeficiency virus (HIV)]. If a public
safety officer feels that he or she has been exposed
to an offender or prisoner's blood or bodily fluids
that could be contaminated with bloodborne pathogens,
they could request from their employing agency that
they be tested for bloodborne pathogens. A physician
would then be appointed to determine whether the
exposure of the blood or bodily fluid was significant
enough for further testing. If further testing is
necessary, the physician will then take the request
for a blood sample and request it from the prisoner or
the offender. And you can find a description of that
in the first section of the bill.
MS. SZYMANSKI continued:
Throughout this process of testing, the person being
tested is protected; their identity is protected. And
the test results will then also be passed on to the
person being tested. The bill also provides
information on the process in which the tests can be
ordered if the person refuses to give a sample of
blood, and it could therefore then be ordered by the
court. And that would be found in Section 3 of the
bill, on page 4. This bill does not enact any new
policies or procedures for bloodborne pathogen
testing; it simply adds public safety officers. ...
2:33:29 PM
ANTHONY NEWMAN, Social Services Program Officer, Division of
Juvenile Justice (DJJ), Department of Health and Social Services
(DHSS), commented that the DJJ appreciates the bill, but asked
that the definition of a public safety officer be expanded to
include juvenile probation officers and juvenile justice
officers. The current definitions for public safety officer
include probation officers and corrections facilities staff, but
those are Department of Corrections employees, whereas juvenile
probation officers and juvenile justice officers fall under the
purview of the DHSS.
REPRESENTATIVE GRUENBERG asked Mr. Newman to write language for
his suggested change.
[Representative Anderson turned the gavel over to Chair
McGuire.]
2:35:29 PM
MIKE COUTURIER, Vice President, Anchorage Police Department
Employees Association (APDEA), testified in support of HB 210.
He stated that HB 210 will help provide appropriate protection
for police officers who are accidentally or intentionally
exposed to infectious pathogens via another's bodily fluids. He
pointed out that HB 210 follows the example set in other states,
and it will provide safety and peace of mind for police officers
and their families while providing ample privacy protections for
offenders. He relayed his personal experience wherein he was
stuck with a used needle. He'd asked for a search warrant to
get a sample of the person's blood, and the magistrate did
finally authorize it, but the test still had to be taken by
force and the risk management personnel would not provide him
with the test results. He remarked that the bill will go a long
way towards solving this issue.
REPRESENTATIVE GRUENBERG characterized HB 210 as a fine bill.
He asked whether federal officials ought to be included in the
list of those covered by the bill.
WILL AITCHISON, Anchorage Police Department Employees
Association (APDEA), said he is not aware of any national
protection existing for federal law enforcement officers in
Alaska, though other states do have such protection.
2:40:29 PM
REPRESENTATIVE GRUENBERG said that he would like the committee
to consider including federal officers in the bill.
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on HB 210.
REPRESENTATIVE GRUENBERG made a motion to adopt Conceptual
Amendment 1, as follows [original text provided]:
Page 2, line 6, after "paramedic"
Insert "juvenile probation officer or juvenile
detention or treatment facility staff"
REPRESENTATIVE GRUENBERG then made a motion to amend Conceptual
Amendment 1 such that it would say:
Page 7, [paragraph] 8, include "juvenile probation
officer or juvenile detention or treatment facility
staff".
2:42:57 PM
CHAIR McGUIRE clarified:
Conceptual Amendment [1, as amended,] will allow
latitude to the drafters to get it right, but we
understand the basic ideas in the definitional section
that applies then throughout the bill. Page 7, lines
4-7: that section there that will add "juvenile
probation officer or juvenile detention or treatment
facility staff".
CHAIR McGUIRE noted that there were no objections to Conceptual
Amendment 1, as amended. Therefore, Conceptual Amendment 1, as
amended, was adopted.
REPRESENTATIVE GRUENBERG made a motion to adopt Conceptual
Amendment 2, which would define the term "public safety officer"
to include federal and military public safety officers.
REPRESENTATIVE ANDERSON turned attention to page 6, line 16,
which would require assistance from departments and
municipalities, and asked if federal departments would have to
be added.
REPRESENTATIVE GRUENBERG replied that such is not needed.
REPRESENTATIVE ANDERSON opined that Conceptual Amendment 2 is
too broad.
2:45:08 PM
REPRESENTATIVE GRUENBERG said that it is not his intention to
require the federal government to comply with the new statutes.
He reiterated that he would like to protect and assist the
federal officials who might be at risk at contracting bloodborne
pathogens while on the job.
REPRESENTATIVE ANDERSON cautioned that Conceptual Amendment 2 is
too expansive. He noted that page 1, line 10, and page 2, line
9, say that the employing agency shall follow the testing
procedure. He said, "We don't have purview over the federal
government."
2:46:52 PM
REPRESENTATIVE GRUENBERG said that he did not intend to make any
changes to the term "employing agency."
CHAIR McGUIRE remarked that she understands Representative
Gruenberg's point, and likened it to when a federal employee or
military police officer is acting as an agent for the state,
carrying forward a duty that would normally be done by a state
employee.
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL),
stated that the bill requires employing agencies not to divulge
what they have learned about individual prisoners and offenders.
She said, "If we add federal agents, we're not putting a
concomitant responsibility on those employers."
REPRESENTATIVE GRUENBERG withdrew Conceptual Amendment 2.
2:48:42 PM
REPRESENTATIVE ANDERSON moved to report HB 210, as amended, out
of committee with individual recommendations and the
accompanying zero fiscal notes. There being no objection, CSHB
210(JUD) was reported from the House Judiciary Standing
Committee.
ADJOURNMENT
2:49:13 PM
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:49 p.m.
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