Legislature(1995 - 1996)

03/27/1995 02:30 PM JUD

Audio Topic
* first hearing in first committee of referral
+ 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                                                                
 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                                                                
 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)                         
 03/10/95       698    (H)   3 ZERO FN (CORR, LAW, DPS)                        
 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,                  
 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)                       
 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                
 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.                       
 The House Judiciary Committee adjourned at 3:15 p.m.                          

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