Legislature(1995 - 1996)
03/27/1995 02:30 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.