Legislature(2003 - 2004)

03/30/2004 01:05 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
               HOUSE JUDICIARY STANDING COMMITTEE                                                                             
                         March 30, 2004                                                                                         
                           1:05 p.m.                                                                                            
MEMBERS PRESENT                                                                                                               
Representative Lesil McGuire, Chair                                                                                             
Representative Tom Anderson, Vice Chair                                                                                         
Representative Jim Holm                                                                                                         
Representative Dan Ogg                                                                                                          
Representative Ralph Samuels                                                                                                    
Representative Les Gara                                                                                                         
Representative Max Gruenberg                                                                                                    
MEMBERS ABSENT                                                                                                                
All members present                                                                                                             
COMMITTEE CALENDAR                                                                                                            
CS FOR SENATE BILL NO. 30(JUD) am                                                                                               
"An  Act  relating  to  information  and  services  available  to                                                               
pregnant women  and other persons; and  ensuring informed consent                                                               
before an abortion  may be performed, except in  cases of medical                                                               
     - MOVED HCS CSSB 30(JUD) OUT OF COMMITTEE; ADOPTED A HOUSE                                                                 
       CONCURRENT RESOLUTION ALLOWING THE TITLE CHANGE                                                                          
HOUSE BILL NO. 353                                                                                                              
"An Act  relating to jury  duty; and amending Rule  15(k), Alaska                                                               
Rules of Administration."                                                                                                       
     - MOVED CSHB 353(JUD) OUT OF COMMITTEE                                                                                     
HOUSE BILL NO. 244                                                                                                              
"An Act relating  to the Code of Criminal  Procedure; relating to                                                               
defenses,  affirmative defenses,  and  justifications to  certain                                                               
criminal  acts; relating  to rights  of  prisoners after  arrest;                                                               
relating  to  discovery,  immunity from  prosecution,  notice  of                                                               
defenses,  admissibility  of  certain   evidence,  and  right  to                                                               
representation in  criminal proceedings; relating  to sentencing,                                                               
probation,  and discretionary  parole; amending  Rule 16,  Alaska                                                               
Rules of  Criminal Procedure, and  Rules 404, 412, 609,  and 803,                                                               
Alaska Rules of Evidence; and providing for an effective date."                                                                 
     - HEARD AND HELD                                                                                                           
SENATE BILL NO. 344                                                                                                             
"An  Act  relating  to  the  Uniform  Probate  Code  and  trusts,                                                               
including  pleadings,  orders,   nonprobate  assets,  estates  of                                                               
decedents,  minors,  protected  persons,  incapacitated  persons,                                                               
guardians, conservators, trustees,  foreign trusts, principal and                                                               
income, and  transfer restrictions; relating to  corporate voting                                                               
trusts; and providing for an effective date."                                                                                   
     - SCHEDULED BUT NOT HEARD                                                                                                  
HOUSE BILL NO. 439                                                                                                              
"An Act  relating to the  authority to take  oaths, affirmations,                                                               
and acknowledgments  in the state;  relating to  notaries public;                                                               
relating to  fees for issuing  certificates with the seal  of the                                                               
state affixed; and providing for an effective date."                                                                            
     - SCHEDULED BUT NOT HEARD                                                                                                  
HOUSE BILL NO. 484                                                                                                              
"An  Act imposing  a correctional  facility surcharge  on persons                                                               
convicted  of a  crime  under  state law,  and  on persons  whose                                                               
probation  is   revoked;  relating  to  fees   and  expenses  for                                                               
interstate transfer of probation or  parole; and providing for an                                                               
effective date."                                                                                                                
     - SCHEDULED BUT NOT HEARD                                                                                                  
HOUSE BILL NO. 474                                                                                                              
"An  Act relating  to civil  liability  associated with  aircraft                                                               
runways, airfields, and landing areas."                                                                                         
     - SCHEDULED BUT NOT HEARD                                                                                                  
HOUSE BILL NO. 339                                                                                                              
"An Act relating  to negative option plans for  sales, to charges                                                               
for goods or services after a  trial period, and to acts that are                                                               
unlawful as unfair trade practices."                                                                                            
     - SCHEDULED BUT NOT HEARD                                                                                                  
PREVIOUS COMMITTEE ACTION                                                                                                     
BILL: SB 30                                                                                                                   
SHORT TITLE: ABORTION: INFORMED CONSENT; INFORMATION                                                                            
SPONSOR(S): SENATOR(S) DYSON                                                                                                    
01/21/03       (S)       READ THE FIRST TIME - REFERRALS                                                                        
01/21/03       (S)       HES, JUD, FIN                                                                                          
03/17/03       (S)       HES AT 1:30 PM BUTROVICH 205                                                                           
03/17/03       (S)       Heard & Held                                                                                           
03/17/03       (S)       MINUTE(HES)                                                                                            
03/26/03       (S)       HES AT 1:30 PM BUTROVICH 205                                                                           
03/26/03       (S)       Heard & Held                                                                                           
03/26/03       (S)       MINUTE(HES)                                                                                            
04/03/03       (S)       HES AT 5:00 PM BELTZ 211                                                                               
04/03/03       (S)       Heard & Held                                                                                           
04/03/03       (S)       MINUTE(HES)                                                                                            
04/09/03       (S)       HES AT 1:30 PM BUTROVICH 205                                                                           
04/09/03       (S)       Heard & Held                                                                                           
04/09/03       (S)       MINUTE(HES)                                                                                            
04/14/03       (S)       HES AT 1:30 PM BUTROVICH 205                                                                           
04/14/03       (S)       Moved CSSB  30(HES) Out of Committee                                                                   
04/14/03       (S)       MINUTE(HES)                                                                                            
04/15/03       (S)       HES RPT CS 2DP 1DNP 1NR SAME TITLE                                                                     
04/15/03       (S)       DP: DYSON, GREEN;                                                                                      
04/15/03       (S)       DNP: DAVIS; NR: WILKEN                                                                                 
05/02/03       (S)       JUD AT 1:00 PM BELTZ 211                                                                               
05/02/03       (S)       Heard & Held                                                                                           
05/02/03       (S)       MINUTE(JUD)                                                                                            
05/03/03       (S)       JUD AT 9:00 AM BELTZ 211                                                                               
05/03/03       (S)       Moved CSSB 30(JUD) Out of Committee                                                                    
05/03/03       (S)       MINUTE(JUD)                                                                                            
05/06/03       (S)       JUD RPT CS 3DP SAME TITLE                                                                              
05/06/03       (S)       DP: SEEKINS, THERRIAULT, OGAN                                                                          
05/12/03       (S)       FIN AT 9:00 AM SENATE FINANCE 532                                                                      
05/12/03       (S)       Moved Out of Committee                                                                                 
05/12/03       (S)       MINUTE(FIN)                                                                                            
05/12/03       (S)       FIN RPT CS(JUD) 3DP 3NR 1AM                                                                            
05/12/03       (S)       DP: GREEN, TAYLOR, STEVENS B;                                                                          
05/12/03       (S)       NR: WILKEN, HOFFMAN, BUNDE; AM: OLSON                                                                  
05/16/03       (S)       TRANSMITTED TO (H)                                                                                     
05/16/03       (S)       VERSION: CSSB 30(JUD) AM                                                                               
05/16/03       (H)       READ THE FIRST TIME - REFERRALS                                                                        
05/16/03       (H)       HES, JUD, FIN                                                                                          
05/17/03       (H)       HES AT 1:00 PM CAPITOL 106                                                                             
05/17/03       (H)       Moved HCS CSSB 30(HES) Out of Committee                                                                
05/17/03       (H)       MINUTE(HES)                                                                                            
05/17/03       (H)       HES RPT HCS(HES) 4DP 1NR                                                                               
05/17/03       (H)       DP: SEATON, COGHILL, WOLF, WILSON;                                                                     
05/17/03       (H)       NR: CISSNA                                                                                             
02/18/04       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
02/18/04       (H)       Heard & Held                                                                                           
02/18/04       (H)       MINUTE(JUD)                                                                                            
03/18/04       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/18/04       (H)       Heard & Held                                                                                           
03/18/04       (H)       MINUTE(JUD)                                                                                            
03/26/04       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/26/04       (H)       Scheduled But Not Heard                                                                                
03/29/04       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/29/04       (H)       Bill Postponed To 3/30/04                                                                              
03/30/04       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
BILL: HB 353                                                                                                                  
SHORT TITLE: JURY DUTY EXEMPTION FOR CERTAIN TEACHERS                                                                           
SPONSOR(S): REPRESENTATIVE(S) KAPSNER                                                                                           
01/12/04       (H)       PREFILE RELEASED 1/2/04                                                                                
01/12/04       (H)       READ THE FIRST TIME - REFERRALS                                                                        
01/12/04       (H)       EDU, HES, JUD                                                                                          
02/17/04       (H)       EDU AT 11:00 AM CAPITOL 124                                                                            
02/17/04       (H)       Moved Out of Committee                                                                                 
02/17/04       (H)       MINUTE(EDU)                                                                                            
02/18/04       (H)       EDU RPT 3DP 2NR 2AM                                                                                    
02/18/04       (H)       DP: GARA, KAPSNER, GATTO;                                                                              
02/18/04       (H)       NR: OGG, WOLF; AM: SEATON, WILSON                                                                      
03/04/04       (H)       HES AT 3:00 PM CAPITOL 106                                                                             
03/04/04       (H)       Scheduled But Not Heard                                                                                
03/18/04       (H)       HES AT 3:00 PM CAPITOL 106                                                                             
03/18/04       (H)       Moved CSHB 353(HES) Out of Committee                                                                   
03/18/04       (H)       MINUTE(HES)                                                                                            
03/22/04       (H)       HES RPT CS(HES) 4DP 2NR                                                                                
03/22/04       (H)       DP: KAPSNER, GATTO, CISSNA, WILSON;                                                                    
03/22/04       (H)       NR: COGHILL, WOLF                                                                                      
03/29/04       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/29/04       (H)       Bill Postponed To 3/30/04                                                                              
03/30/04       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
BILL: HB 244                                                                                                                  
SHORT TITLE: CRIMINAL LAW/SENTENCING/PROBATION/PAROLE                                                                           
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR                                                                                    
04/04/03       (H)       READ THE FIRST TIME - REFERRALS                                                                        
04/04/03       (H)       JUD, FIN                                                                                               
04/14/03       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
04/14/03       (H)       Heard & Held                                                                                           
04/14/03       (H)       MINUTE(JUD)                                                                                            
04/25/03       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
04/25/03       (H)       -- Meeting Postponed to April 29 --                                                                    
05/07/03       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
05/07/03       (H)       Scheduled But Not Heard                                                                                
05/08/03       (H)       JUD AT 3:30 PM CAPITOL 120                                                                             
05/08/03       (H)       Heard & Held                                                                                           
05/08/03       (H)       MINUTE(JUD)                                                                                            
05/09/03       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
05/09/03       (H)       Moved CSHB 244(JUD) Out of Committee                                                                   
05/09/03       (H)       MINUTE(JUD)                                                                                            
05/12/03       (H)       JUD RPT CS(JUD) NT 1DP 1DNP 4NR                                                                        
05/12/03       (H)       DP: SAMUELS; DNP: GARA; NR: HOLM,                                                                      
05/12/03       (H)       OGG, GRUENBERG, MCGUIRE                                                                                
05/13/03       (H)       FIN AT 1:30 PM HOUSE FINANCE 519                                                                       
05/13/03       (H)       -- Meeting Canceled --                                                                                 
05/14/03       (H)       FIN AT 8:30 AM HOUSE FINANCE 519                                                                       
05/14/03       (H)       Heard & Held                                                                                           
05/14/03       (H)       MINUTE(FIN)                                                                                            
05/15/03       (H)       FIN AT 8:30 AM HOUSE FINANCE 519                                                                       
05/15/03       (H)       Moved CSHB 244(JUD) Out of Committee                                                                   
05/15/03       (H)       MINUTE(FIN)                                                                                            
05/15/03       (H)       FIN RPT CS(JUD) NT 2DNP 4NR 4AM                                                                        
05/15/03       (H)       DNP: KERTTULA, FOSTER; NR: MOSES,                                                                      
05/15/03       (H)       CHENAULT, HARRIS, WILLIAMS; AM: HAWKER,                                                                
05/15/03       (H)       STOLTZE, BERKOWITZ, WHITAKER                                                                           
05/15/03       (H)       RETURNED TO JUD COMMITTEE                                                                              
05/15/03       (H)       IN JUDICIARY                                                                                           
03/19/04       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/19/04       (H)       Heard & Held                                                                                           
03/19/04       (H)       MINUTE(JUD)                                                                                            
03/24/04       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/24/04       (H)       Heard & Held                                                                                           
03/24/04       (H)       MINUTE(JUD)                                                                                            
03/30/04       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
WITNESS REGISTER                                                                                                              
VANESSA TONDINI, Staff                                                                                                          
to Representative Lesil McGuire                                                                                                 
House Judiciary Standing Committee                                                                                              
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  During discussion of SB 30, explained the                                                                  
changes in the proposed committee substitute (CS), Version O,                                                                   
and responded to questions.                                                                                                     
SENATOR FRED DYSON                                                                                                              
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Sponsor of SB 30.                                                                                          
JASON HOOLEY, Staff                                                                                                             
to Senator Fred Dyson                                                                                                           
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Provided a comment during discussion about                                                                 
a proposed amendment to SB 30.                                                                                                  
REPRESENTATIVE MARY KAPSNER                                                                                                     
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Sponsor of HB 353.                                                                                         
LINDA SAITO                                                                                                                     
Kotzebue, Alaska                                                                                                                
POSITION STATEMENT:  Provided comments and responded to                                                                         
questions during discussion of HB 353.                                                                                          
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                                                                
proposed amendments to HB 353; responded to questions during                                                                    
discussion of the proposed CS for HB 244.                                                                                       
BARBARA BRINK, Director                                                                                                         
Central Office                                                                                                                  
Public Defender Agency (PDA)                                                                                                    
Department of Administration (DOA)                                                                                              
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  During discussion of the proposed CS for HB                                                                
244, relayed the PDA's concerns and responded to questions.                                                                     
SUSAN A. PARKES, Deputy Attorney General                                                                                        
Central Office                                                                                                                  
Criminal Division                                                                                                               
Department of Law (DOL)                                                                                                         
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  On behalf of the administration, responded                                                                 
to questions during discussion of the proposed CS for HB 244.                                                                   
ANNE CARPENETI, Assistant Attorney General                                                                                      
Legal Services Section-Juneau                                                                                                   
Criminal Division                                                                                                               
Department of Law (DOL)                                                                                                         
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Responded to  questions during discussion of                                                               
the proposed CS for HB 244.                                                                                                     
PATTY WARE, Director                                                                                                            
Division of Juvenile Justice (DJJ)                                                                                              
Department of Health & Social Services (DHSS)                                                                                   
Juneau, Alaska                                                                                                                  
POSITION  STATEMENT:     Provided   comments  and   responded  to                                                               
questions regarding Section 27 of the proposed CS for HB 244.                                                                   
ACTION NARRATIVE                                                                                                              
TAPE 04-51, SIDE A                                                                                                            
Number 0001                                                                                                                     
CHAIR  LESIL   McGUIRE  called   the  House   Judiciary  Standing                                                             
Committee meeting,  which had  been recessed  on March  29, 2004,                                                               
back to order  at 1:05 p.m.  Representatives  McGuire, Holm, Ogg,                                                               
and   Samuels  were   present  at   the  call   back  to   order.                                                               
Representatives  Anderson, Gara,  and  Gruenberg  arrived as  the                                                               
meeting was in progress.                                                                                                        
SB 30 - ABORTION: INFORMED CONSENT; INFORMATION                                                                               
[Contains  discussion  of  an  amendment  that  would  conform  a                                                               
provision of  SB 30 to a  provision of HB 472;  contains adoption                                                               
of what would become known as  HCR 36 for the purpose of changing                                                               
the title of SB 30.]                                                                                                            
Number 0022                                                                                                                     
CHAIR McGUIRE  announced that the  first order of  business would                                                               
be  CS FOR  SENATE  BILL  NO. 30(JUD)  am,  "An  Act relating  to                                                               
information and  services available  to pregnant women  and other                                                               
persons; and ensuring informed consent  before an abortion may be                                                               
performed, except  in cases of  medical emergency."   [Before the                                                               
committee was HCS CSSB 30(HES).]                                                                                                
CHAIR  McGUIRE  indicated that  members'  packets  now include  a                                                               
proposed House committee substitute (HCS)  for SB 30, Version 23-                                                               
LS0193\O, Mischel, 3/22/04, and a  legal analysis by the attorney                                                               
general dated March 30, 2004, regarding that proposed HCS.                                                                      
Number 0100                                                                                                                     
VANESSA  TONDINI, Staff  to Representative  Lesil McGuire,  House                                                               
Judiciary Standing  Committee, Alaska State  Legislature, offered                                                               
to explain the changes made by the proposed HCS.                                                                                
Number 0167                                                                                                                     
REPRESENTATIVE HOLM  moved to adopt  the proposed HCS for  SB 30,                                                               
Version 23-LS0193\O, Mischel, 3/22/04, as  the work draft.  There                                                               
being no objection, Version O was before the committee.                                                                         
MS. TONDINI  relayed that  Version O was  created in  response to                                                               
the  attorney   general's  March  18  legal   analysis  outlining                                                               
numerous areas  in a prior iteration  of SB 30 that  needed to be                                                               
addressed.   One  issue that  was of  concern was  that the  bill                                                               
should  contain language  requiring that  the information  in the                                                               
pamphlet be  "unbiased information that is  reviewed and approved                                                               
for   medical   accuracy   and  appropriateness   by   recognized                                                               
obstetrics   and   gynecological   specialists."     Section   1,                                                               
paragraphs  (4)-(5), and  Section 2,  subsection (a),  paragraphs                                                               
(6)-(9), of Version  O now contain that  language.  Additionally,                                                               
Version O now  stipulates that the aforementioned  review will be                                                               
performed by the State Medical Board.                                                                                           
MS.  TONDINI  relayed that  another  issue  of concern  was  that                                                               
should the aforementioned  change be made to  Section 2, although                                                               
changes  made regarding  information  on gestational  development                                                               
and other  information will be  more legally defensible,  it will                                                               
not  eliminate the  possibility of  a challenge,  on privacy  and                                                               
equal protection grounds, that the  material is intended to shock                                                               
rather than inform.  Also of  concern was that the definitions in                                                               
Section  2 should  be  medically accurate,  and  the most  recent                                                               
legal analysis  still offers this  as a concern.   The definition                                                               
section  of Version  O  is  on page  4,  lines  9-16, Section  2,                                                               
subsection    (c)(1)-(4),   and    provides   definitions    for:                                                               
"abortion",  "fertilization",  "gestational   age",  and  "unborn                                                               
child".  She mentioned that  she is providing members with copies                                                               
of  what  she   said  she  believes  to   be  medically  accurate                                                               
definitions of  the aforementioned  terms that she  gathered from                                                               
several medical web sites and medical dictionaries.                                                                             
MS.  TONDINI noted  that another  issue of  concern was  that the                                                               
bill  should contain  language specifying  that there  will be  a                                                               
disclaimer  on   the  web  site  regarding   the  graphic  and/or                                                               
sensitive nature  of the information  contained on the  web site.                                                               
She  said  that  such  language is  now  included  in  subsection                                                               
(a)(10)  of Section  2, on  page 10,  lines 5-6.   Still  another                                                               
issue  of concern  was that  the bill  should stipulate  that the                                                               
pamphlet will only  include those providers who  consent to being                                                               
included;  that language  can be  found on  page 2,  line 30,  of                                                               
Version  O.    Additionally  of concern  was  that  the  findings                                                               
section of a  prior iteration the bill referred  to immunity, but                                                               
the text  in Section 4  of that prior  iteration did not  use the                                                               
term  immunity  and  instead   simply  provided  for  affirmative                                                               
defenses.  This inconsistency has  been addressed in Version O by                                                               
removing  "immunity" from  the findings  section, Section  1, and                                                               
keeping  the  provisions  in   Section  4  regarding  affirmative                                                               
Number 0481                                                                                                                     
MS.  TONDINI  relayed that  another  issue  of concern  was  that                                                               
requiring  a 24-hour  waiting period  could raise  constitutional                                                               
issues;  therefore, that  requirement  has  been eliminated  from                                                               
Version O, specifically from Section  5, subsection (c).  A final                                                               
issue of  concern expressed  in the  attorney general's  March 18                                                               
legal analysis is  that under this legislation,  abortion will be                                                               
the  only medical  procedure that  has its  own informed  consent                                                               
requirements set out in statute;  Version O does not change this,                                                               
so equal protection issues may still exist.                                                                                     
MS.  TONDINI noted  that the  attorney general's  March 18  legal                                                               
analysis  also raised  some technical  points.   One, that  there                                                               
should be a medically accurate  definition of abortion; Version O                                                               
-  page 4,  line  10 -  says  that the  term  "abortion" has  the                                                               
meaning  given in  AS  18.16.090.   Two,  that  the inclusion  of                                                               
[child  care] in  Section 2,  subsection  (a)(3), is  misleading;                                                               
Version  O   deletes  that  reference.     Three,  that  although                                                               
inclusion  of  exceptions  for rape  and  incest  are  necessary,                                                               
neither rape nor incest is  legally defined in statute; Version O                                                               
now contains  reference - in Section  5, subsection (d) -  to the                                                               
statutes pertaining to those crimes.                                                                                            
MS. TONDINI  continued.  Four,  that the language  requiring that                                                               
information  on alcohol  use  and drug  use  during pregnancy  be                                                               
provided did  not specify whether the  information should pertain                                                               
to legal  drugs or illegal  drugs; Version  O now specifies  - in                                                               
Section  2, subsection  (a)(9) -  that  the information  required                                                               
should pertain to  use of illegal drugs.  She  mentioned that the                                                               
issue of whether to also  require that information on tobacco use                                                               
during pregnancy  be included  might be  discussed later.   Five,                                                               
that  there  is  no  need,  if   there  is  a  signed  and  dated                                                               
certificate showing  informed consent, for the  certificate to be                                                               
stamped as well;  Version O does not  contain language pertaining                                                               
to  certificates.   Six, that  the department  should be  granted                                                               
regulatory authority  to create the  pamphlet required by  SB 30;                                                               
Version O provides  that authority in Section  2, subsection (b),                                                               
on page 4, lines 7-8.                                                                                                           
MS. TONDINI offered her belief  that the attorney general's March                                                               
30 legal  analysis agrees that  almost all of  the aforementioned                                                               
concerns have been addressed in Version  O.  The only other issue                                                               
that  the  committee may  still  wish  to address,  she  offered,                                                               
pertains  to  the   language  on  page  4,   lines  30-31,  which                                                               
stipulates that a  woman must be domiciled  or physically present                                                               
in the state  for 30 days before the abortion.   This language is                                                               
part of current  law, she relayed, but  offered her understanding                                                               
that there  is a distinction  between being domiciled,  which she                                                               
surmised  meant  being  physically  present with  the  intent  to                                                               
remain, and residency, which she  surmised meant being physically                                                               
present in the state  for 30 days.  She suggested  that if such a                                                               
requirement  is kept  in  statute, it  should  be clarified  with                                                               
regard to the legislature's intent.                                                                                             
Number 0784                                                                                                                     
SENATOR  FRED DYSON,  Alaska State  Legislature, sponsor,  shared                                                               
his appreciation  for the committee's  patience and all  the work                                                               
that's been done on SB 30.                                                                                                      
Number 0803                                                                                                                     
REPRESENTATIVE OGG  made a motion  to adopt  Conceptual Amendment                                                               
1, to  say, on page  4, line 3,  that the information  pertain to                                                               
alcohol, tobacco,  legal drugs, and  illegal drugs.   There being                                                               
no objection, Conceptual Amendment 1 was adopted.                                                                               
Number 0881                                                                                                                     
REPRESENTATIVE GARA  made a  motion to  adopt Amendment  2, which                                                               
read [original punctuation provided]:                                                                                           
     Page 4, lines 30-31:                                                                                                       
     Delete all material                                                                                                        
Number 0889                                                                                                                     
CHAIR McGUIRE objected [for the purpose of discussion].                                                                         
REPRESENTATIVE  GARA  said  that  the  language  which  would  be                                                               
deleted  by  Amendment  2  precludes  a  woman  from  getting  an                                                               
abortion  if she  hasn't lived  in  the state  for 30  days.   He                                                               
opined  that such  a  restriction  is probably  unconstitutional,                                                               
pointed  out  that   no  other  medical  procedure   has  such  a                                                               
restriction, and  surmised that it  would require a woman  who is                                                               
right  at  the end  of  her  first  trimester of  pregnancy,  for                                                               
example, and  who's just moved  to the  state, to wait  until her                                                               
second trimester before getting an abortion.                                                                                    
REPRESENTATIVE SAMUELS asked what other  states do with regard to                                                               
this issue,  and asked for  confirmation that the  language which                                                               
would be deleted via Amendment 2 is part of current law.                                                                        
REPRESENTATIVE GARA replied:  "It is  part of the current law.  I                                                               
think  ... it  might  have been  added as  part  of the  informed                                                               
consent law that was  passed a couple of years ago  that is up in                                                               
the supreme court now, but I'm  not so sure when it was [adopted]                                                               
SENATOR DYSON mentioned that he did not know that either.                                                                       
REPRESENTATIVE GARA said  he cannot see a reason  why they should                                                               
tell a  woman who  picks one  procedure that she  has to  live in                                                               
Alaska for 30 days, particularly  given that the ramifications of                                                               
waiting  30  days are  that  it  might  become  too late  or  too                                                               
dangerous to  have an  abortion, and  also because  anybody else,                                                               
for any  other procedure, doesn't have  to live in Alaska  for 30                                                               
REPRESENTATIVE OGG suggested that the  reason such language is in                                                               
statute is to stop "form shopping."                                                                                             
REPRESENTATIVE  GARA said  he didn't  think that  people come  to                                                               
Alaska just to  get abortions, and suggested that  it is probably                                                               
easier and cheaper to get an abortion in another state.                                                                         
SENATOR  DYSON   remarked  that  preventing  someone   from  form                                                               
shopping  is  a  persuasive  argument  for  keeping  the  current                                                               
language  as is,  because if  the parental  consent provision  is                                                               
ultimately struck down,  then minors may come to  Alaska in order                                                               
to get around the parental consent requirements of other states.                                                                
Number 1212                                                                                                                     
REPRESENTATIVE GRUENBERG remarked:                                                                                              
     I believe  that the  note [to  that statute]  says that                                                                    
     the Department  of law does not  currently enforce that                                                                    
     section, and I believe the  implication is that it's of                                                                    
     doubtful  constitutionality.   The case  that comes  to                                                                    
     mind,  a  case  out  of Washington  DC  from  the  U.S.                                                                    
     Supreme  Court  a  number  of  years  ago,  Shapiro  v.                                                                  
     Thompson  (ph),   said  that   in  dealing   with  case                                                                  
     involving  fundamental rights,  it is  unconstitutional                                                                    
     to impinge  on the  person's right  to travel;  in that                                                                    
     case,  it  involved welfare.    And  recent cases  have                                                                    
     expanded that to include  the privileges and immunities                                                                    
     clause  as a  basis for  striking down  provisions like                                                                    
     I   do   not   think   that  this   would   survive   a                                                                    
     constitutional  challenge under  either the  ... [U.S.]                                                                    
     Constitution  or,  frankly,  under the  Alaska  [State]                                                                    
     Constitution's right to privacy,  and I think that this                                                                    
     would  be struck  down  without question.    And ...  I                                                                    
     think  the  attorney  general's  very  correct  in  its                                                                    
     determination not to enforce it,  because it would be a                                                                    
     needless waste of  state resources.  It's  on the books                                                                    
     ...   [though]  it's   not   being   enforced  by   any                                                                    
     administration and it's  unconstitutional, so I support                                                                    
     the amendment.   I'd  like to see  us pass  things that                                                                    
     are constitutional.                                                                                                        
REPRESENTATIVE   GARA    said   that   ultimately,    there's   a                                                               
philosophical  rift  among many  legislators  on  an issue  where                                                               
there are  really good arguments  on both  sides, but as  long as                                                               
the legislature is going to recognize  that a woman has the right                                                               
to choose an abortion, the  language that Amendment 2 proposes to                                                               
delete  is an  impediment to  a legal  right, an  impediment that                                                               
doesn't exist for  anybody else for any  other medical procedure.                                                               
He  said   he  believes  that   [the  current  language]   is  an                                                               
inappropriate impediment to a constitutional right.                                                                             
Number 1372                                                                                                                     
CHAIR  McGUIRE  asked  whether  the  language  that  Amendment  2                                                               
proposes to delete would apply to victims of incest or rape.                                                                    
SENATOR DYSON  said he did  not intend for  it to apply  in those                                                               
CHAIR McGUIRE asked Senator Dyson  whether he would be willing to                                                               
accept a friendly amendment to that effect.                                                                                     
SENATOR DYSON said yes.                                                                                                         
REPRESENTATIVE  GARA   said  he  would  not   accept  a  friendly                                                               
amendment  to Amendment  2,  adding,  "I just  think  ... it's  a                                                               
constitutional right ...."                                                                                                      
REPRESENTATIVE  HOLM  mentioned that  he  isn't  sure whether  an                                                               
abortion would even  be preformed within the first 30  days [of a                                                               
woman's pregnancy].                                                                                                             
CHAIR McGUIRE  noted that the  provisions pertaining to  rape and                                                               
incest are on page 6, under proposed AS 18.16.060(d).                                                                           
REPRESENTATIVE OGG  remarked that such  is a tough issue  to deal                                                               
Number 1519                                                                                                                     
A roll  call vote  was taken.   Representatives  Gara, Gruenberg,                                                               
and Samuels voted in favor  of Amendment 2.  Representatives Ogg,                                                               
Holm,  and McGuire  voted  against it.    Therefore, Amendment  2                                                               
failed by a vote of 3-3.                                                                                                        
Number 1535                                                                                                                     
REPRESENTATIVE GARA  made a  motion to  adopt Amendment  3, which                                                               
read [original punctuation provided]:                                                                                           
     Page Two, Lines 11-12:                                                                                                     
     Delete all material                                                                                                        
Number 1543                                                                                                                     
CHAIR McGUIRE objected for the purpose of discussion.                                                                           
REPRESENTATIVE GARA  said that although  he would  not ordinarily                                                               
propose  an  amendment  to a  legislative  finding,  because  its                                                               
language  says that  the  legislature  has received  considerable                                                               
testimony  indicating  that  women have,  on  occasion,  received                                                               
abortions   in   the   state   without   considering   sufficient                                                               
information, but  he has not heard  such testimony in any  of the                                                               
committees that  he has sat on,  he is reluctant to  include such                                                               
language because  it isn't supported  by the evidence  with which                                                               
he is familiar.                                                                                                                 
CHAIR  McGUIRE asked  Senator Dyson  whether, when  creating this                                                               
language, he  was referring to  testimony that he'd heard  in the                                                               
committees that he'd sat on.                                                                                                    
SENATOR DYSON  said yes,  adding, "I understood  that ...  if the                                                               
attorney  general is  ever having  to  defend this,  it helps  to                                                               
establish the case of why, why  ... did the legislature take this                                                               
action  to try  to ensure  that people  got the  information they                                                               
REPRESENTATIVE  HOLM   asked  whether  the  testimony   that  the                                                               
findings section refers to is on record.                                                                                        
SENATOR DYSON said yes.                                                                                                         
REPRESENTATIVE GARA remarked:                                                                                                   
     I ...  think I misread  this sentence; I guess  it says                                                                    
     considerable  testimony  has  been received,  not  that                                                                    
     this  has happened  on considerable  occasions.   So  I                                                                    
     guess I took this [paragraph]  (6) to mean that we were                                                                    
     finding  that many  women  have  had abortions  without                                                                    
     thinking about  them first but, really,  it doesn't say                                                                    
     that.  It  just says there was a lot  of testimony, and                                                                    
     it doesn't say that this is happening a lot.                                                                               
Number 1660                                                                                                                     
REPRESENTATIVE GARA withdrew Amendment 3.                                                                                       
Number 1700                                                                                                                     
REPRESENTATIVE  GRUENBERG made  a  motion to  adopt Amendment  4,                                                               
which read [original punctuation provided]:                                                                                     
     Page 4, line 19: Delete "or surgeon."                                                                                      
Number 1709                                                                                                                     
CHAIR McGUIRE objected [for the purpose of discussion].                                                                         
REPRESENTATIVE GRUENBERG  said it  is his understanding  that all                                                               
surgeons are physicians.                                                                                                        
CHAIR McGUIRE  remarked that  she knows of  no surgeons  that are                                                               
not physicians.                                                                                                                 
Number 1725                                                                                                                     
JASON HOOLEY, Staff to Senator Fred Dyson, Alaska State                                                                         
Legislature, sponsor, noted that the language Amendment 4                                                                       
proposes to delete is part of current law.                                                                                      
CHAIR McGUIRE, after withdrawing her objection to Amendment 4,                                                                  
announced that Amendment 4 was adopted.                                                                                         
Number 1784                                                                                                                     
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 5,                                                                    
which read [original punctuation provided]:                                                                                     
     Page 2, lines 17-20: Amend paragraph (1) as follows                                                                        
          (1) contains geographically indexed material                                                                          
     designed  to  inform a  person  of  public and  private                                                                    
     agencies, [AND]  services, clinics and  facilities that                                                                
     are  available  to  assist a  woman  with  the  woman's                                                                    
     reproductive  choices;  the  department  shall  include                                                                    
     information  about  at  least the  following  types  of                                                                    
     agencies, [AND] services, clinics and facilities:                                                                      
     Page 2, line 29:  Amend paragraph (2) as follows:                                                                          
          (2) includes a comprehensive regional directory                                                                       
     of   the   agencies,   services  [AND]   clinics,   and                                                                
     facilities identified  by the  department under  (1) of                                                                  
     this  subsection, a  description of  the services  they                                                                    
     offer, and  the manner in which  the agencies, services                                                                  
     [AND]  clinics,   and  facilities  may   be  contacted,                                                                  
     including telephone numbers;                                                                                               
Number 1801                                                                                                                     
CHAIR McGUIRE objected [for the purpose of discussion].                                                                         
REPRESENTATIVE GRUENBERG indicated that Amendment 5 merely                                                                      
conforms the language in paragraphs (1) and (2) to the language                                                                 
in paragraph (1)'s subparagraphs.                                                                                               
SENATOR DYSON said he did not have a problem with Amendment 5.                                                                  
Number 1859                                                                                                                     
CHAIR  McGUIRE withdrew  her objection  and  asked whether  there                                                               
were any  further objections to  Amendment 5.  There  being none,                                                               
Amendment 5 was adopted.                                                                                                        
Number 1867                                                                                                                     
REPRESENTATIVE  GRUENBERG made  a  motion to  adopt Amendment  6,                                                               
which read [original punctuation provided]:                                                                                     
     Page 4, line 5: Insert  new paragraph (10) and renumber                                                                    
     existing paragraph (10) as paragraph (11):                                                                                 
          (10)    contains    objective,    unbiased,    and                                                                    
     comprehensive   information   that  is   reviewed   and                                                                    
     approved  for medical  accuracy and  appropriateness by                                                                    
     recognized  obstetrics  and  gynecological  specialists                                                                    
     designated  by the  State  Medical  Board on  different                                                                    
     types  of  available   contraceptive  choices  and  the                                                                    
     medical  risk   and  possible   complications  commonly                                                                    
     associated  with each  method as  well as  the possible                                                                    
     psychological  effects that  have been  associated with                                                                    
     using contraceptives;                                                                                                      
REPRESENTATIVE   GRUENBERG  mentioned   that   the  language   in                                                               
Amendment 6 is from HCS CSSB 30(HES).                                                                                           
SENATOR DYSON  relayed that he  has in his possession  a slightly                                                               
different   amendment  on   the   same   topic  -   contraceptive                                                               
information  - that  uses the  phrase  "including abstinence  and                                                               
natural  family  planning".   He  indicated  that adding  such  a                                                               
phrase to Amendment  6 would alleviate most of  his objections to                                                               
including a  provision regarding  contraceptive information.   He                                                               
offered  his belief,  though, that  neither Amendment  6 nor  the                                                               
amendment he has  contains a disclaimer about  the graphic nature                                                               
of such information.                                                                                                            
REPRESENTATIVE  GRUENBERG pointed  out  that  that disclaimer  is                                                               
already in the bill.                                                                                                            
MS.  TONDINI  concurred,   adding  that  it  is   in  a  separate                                                               
REPRESENTATIVE  GRUENBERG  said he  would  have  no problem  with                                                               
conceptually amending  Amendment 6  to add the  phrase "including                                                               
abstinence and natural family planning".                                                                                        
CHAIR  McGUIRE suggested  that  Amendment 6  also  be amended  to                                                               
include,  wherever appropriate,  the department's  recommendation                                                               
regarding graphic and sensitive material.                                                                                       
Number 2031                                                                                                                     
REPRESENTATIVE GRUENBERG  [made a  motion to]  conceptually amend                                                               
Amendment 6  to "put the [attorney  general's recommendation] ...                                                               
[with] Senator  [Dyson's] ... language  and my thing  together in                                                               
one  provision."   There  being  no  objection, Amendment  6  was                                                               
Number 2044                                                                                                                     
CHAIR  McGUIRE  asked  whether   there  were  any  objections  to                                                               
Amendment 6, as amended.   There being no objection, Amendment 6,                                                               
as amended, was adopted.                                                                                                        
Number 2073                                                                                                                     
REPRESENTATIVE  GRUENBERG made  a  motion to  adopt Amendment  7,                                                               
which read [original punctuation provided]:                                                                                     
     Page 5, lines 10-18:  Amend subsection (i) as follows:                                                                     
          (i)  It is a defense to any action for medical                                                                        
     malpractice  based upon  an alleged  failure to  obtain                                                                    
     informed consent of a person  under (h) of this section                                                                    
               (1)  the risk not disclosed is too commonly                                                                      
     known or is too remote to require disclosure; or                                                                           
               (2)  the person who is the subject of the                                                                        
     alleged failure  to obtain the informed  consent stated                                                                    
     to  the physician  or other  health care  provider that                                                                    
     the  patient would  or would  not undergo  the abortion                                                                    
     procedure regardless  of the risk involved  or that the                                                                    
     person did  not want to  be informed of the  matters to                                                                    
     which the person would be entitled to be informed; or                                                                    
               (3)  under the circumstances, consent by or                                                                    
     on behalf of the patient was not possible; or                                                                            
               (4)  the physician or health care provider,                                                                    
     after  considering  all  of  the  attendant  facts  and                                                                  
     circumstances,  used reasonable  discretion  as to  the                                                                  
     manner and  extent that the alternatives  or risks were                                                                  
     disclosed  to  the  patient  because  the  health  care                                                                  
     provider  reasonably believed  that  a full  disclosure                                                                  
     would  have  a  substantially  adverse  effect  on  the                                                                  
     patient's condition.                                                                                                     
Number 2089                                                                                                                     
CHAIR McGUIRE objected [for the purpose of discussion].                                                                         
REPRESENTATIVE GRUENBERG  relayed that  Amendment 7  contains, in                                                               
part,  language  from [AS  09.55.556  as  it  is proposed  to  be                                                               
amended by] HB 472.                                                                                                             
CHAIR McGUIRE  added that Amendment 7  would conform SB 30  to HB                                                               
472, which pertains to medical malpractice.                                                                                     
REPRESENTATIVE GARA objected.  He said:                                                                                         
     It would  be inconsistent for  me to narrow  the rights                                                                    
     of a  woman who's a  victim of ...  malpractice because                                                                    
     she's pregnant,  when I don't  believe that  the rights                                                                    
     of other victims of malpractice  should be limited. ...                                                                    
     So,  right now,  we're getting  rid of  the reasonable-                                                                    
     patient  standard  for  pregnant  women  -  that's  the                                                                    
     reasonable-patient   standard  for   informed  consent.                                                                    
     Current  law is  that a  doctor has  a duty  to give  a                                                                    
     patient all of  the information that they  need and all                                                                    
     of  the information  that  a  reasonable patient  would                                                                    
     want.    There  is  an effort  afoot,  in  the  medical                                                                    
     malpractice bill,  to say that [that]  shouldn't be the                                                                    
     standard  for  informed   consent,  [rather  that]  the                                                                    
     standard  for   informed  consent  should  be   what  a                                                                    
     reasonable  doctor   in  the  community   provides  for                                                                    
     information - it's a ...  smaller amount of information                                                                    
     probably. ...                                                                                                              
Number 2201                                                                                                                     
REPRESENTATIVE GRUENBERG  suggested bifurcating Amendment 7.   He                                                               
directed attention  to proposed  [paragraph] (3) of  Amendment 7,                                                               
and  posited  that  there  shouldn't  be  any  objection  to  the                                                               
addition of  that language because it  should be a defense  if it                                                               
is impossible to get someone's consent for some reason.                                                                         
SENATOR DYSON asked how it would  be impossible to get consent by                                                               
or on behalf of the patient.                                                                                                    
REPRESENTATIVE GRUENBERG  suggested that  such could happen  if a                                                               
woman is in a coma and an  abortion needs to be performed to save                                                               
her life.                                                                                                                       
SENATOR DYSON pointed  out, however, that language on  page 6 [of                                                               
the  bill],  lines  27-28,  says that  informed  consent  is  not                                                               
required in cases of medical  emergency; he suggested, therefore,                                                               
that proposed paragraph (3) of Amendment 7 is not necessary.                                                                    
CHAIR McGUIRE agreed.                                                                                                           
REPRESENTATIVE   GRUENBERG   argued   that   the   aforementioned                                                               
hypothetical  situation might  not constitute  an emergency  and,                                                               
thus, would  not be covered under  the language on page  6, lines                                                               
SENATOR DYSON  opined, though,  that if it  is not  an emergency,                                                               
then  there  will be  time  to  obtain  consent from  the  person                                                               
designated or appointed to act on the woman's behalf.                                                                           
TAPE 04-51, SIDE B                                                                                                            
Number 2364                                                                                                                     
REPRESENTATIVE GRUENBERG said:                                                                                                  
     The  context  this will  arise  [in]  is in  a  medical                                                                    
     malpractice case, and I don't  want to see the [doctor]                                                                    
     sued in  this situation when they're  reasonably trying                                                                    
     to  give the  information  that's necessary.   This  is                                                                    
     trying  to allow  a  reasonable  physician to  practice                                                                    
     reasonably ... without fear of  some lawsuit coming out                                                                    
     of left  field, ...  and it's doing  the same  thing we                                                                    
     did in the general malpractice bill ....                                                                                   
SENATOR DYSON  said he did  not feel  a need to  include proposed                                                               
paragraph  (3).    With  regard  to  proposed  paragraph  (4)  of                                                               
Amendment 7, he  said that it comes across as  insulting to women                                                               
to say that full disclosure will  have an adverse effect on their                                                               
condition.   He  said  he  could envision  a  scenario wherein  a                                                               
doctor decides to  perform an abortion on a  woman having surgery                                                               
without getting informed consent  because of the possibility that                                                               
informing her  about the pregnancy/abortion will  have an adverse                                                               
effect on her  condition.  He opined that women  are tough enough                                                               
to handle the  information that they are pregnant  and what would                                                               
be  involved  in an  abortion,  and  that  they would  want  that                                                               
REPRESENTATIVE  SAMUELS remarked  that he  wouldn't want  to have                                                               
doctors exposed to potential lawsuits  regarding this issue.  He,                                                               
too, suggested bifurcating Amendment 7.                                                                                         
REPRESENTATIVE  GARA said  he cannot  understand  why they  would                                                               
want  to  give a  pregnant  woman  fewer  rights than  any  other                                                               
patient.   People have  a right  to fair  information and  a fair                                                               
level of  competence from their  physicians, and he did  not feel                                                               
like compromising those rights,  he remarked, adding, "I've never                                                               
heard of any sort of explosion  of frivolous lawsuits in the area                                                               
abortions, and  don't know why  we have to limit  people's rights                                                               
just to  prevent frivolous  lawsuits ... that  don't exist."   He                                                               
mentioned that  he agrees with Senator  Dyson regarding Amendment                                                               
SENATOR DYSON  asked whether the  provisions contained in  HB 472                                                               
would cover abortions  if it is adopted into law.   He questioned                                                               
whether, if such is the case, Amendment 7 is even necessary.                                                                    
CHAIR  McGUIRE remarked  that in  statutes,  a general  provision                                                               
applies unless there is a specific provision.                                                                                   
Number 2011                                                                                                                     
REPRESENTATIVE  GRUENBERG  offered  that   since  SB  30  already                                                               
contains paragraphs (1) and (2)  of Amendment 7 - which contains,                                                               
in part,  language from  [AS 09.55.556  as it  is proposed  to be                                                               
amended  by]  HB  472  -  it  would  be  congruent  to  also  add                                                               
paragraphs (3) and (4).  Not  including paragraphs (3) and (4) in                                                               
SB 30  would provide less  immunity for abortion  procedures than                                                               
for all other  procedures, he added.  Conversely,  he queried, if                                                               
that  immunity  should not  apply  to  abortion procedures,  why,                                                               
then, should it apply to all other procedures.                                                                                  
SENATOR DYSON said  he still has a strong  objection to including                                                               
proposed  paragraphs (3)  and (4)  in SB  30, and  reiterated his                                                               
arguments for leaving them out.                                                                                                 
REPRESENTATIVE  GARA asked  what kind  of circumstances  proposed                                                               
paragraph (4) would apply in.                                                                                                   
REPRESENTATIVE  GRUENBERG  said  that   he  didn't  know  of  any                                                               
specific circumstances; rather, he was  just thinking that if the                                                               
language is  in HB 472, then  it ought to also  be in SB 30.   He                                                               
surmised that all of Senator  Dyson's arguments against including                                                               
this language in SB 30 are also applicable to HB 472.                                                                           
Number 1917                                                                                                                     
REPRESENTATIVE SAMUELS  made a  motion to  amend Amendment  7, to                                                               
eliminate paragraph (3).                                                                                                        
REPRESENTATIVE GRUENBERG said  he just wants HB 472 and  SB 30 to                                                               
be consistent.                                                                                                                  
CHAIR  McGUIRE  opined  that abortion  is  different  than  other                                                               
procedures, and  said she could envision  someone using paragraph                                                               
(3) to get around having to obtain informed consent.                                                                            
REPRESENTATIVE  GRUENBERG  said  he   would  not  object  to  the                                                               
amendment to  Amendment 7, but  noted that his concern  is simply                                                               
that the two bills be consistent.                                                                                               
Number 1853                                                                                                                     
CHAIR McGUIRE, after ascertaining  that there were no objections,                                                               
announced that Amendment 7 was amended.                                                                                         
REPRESENTATIVE  GARA   said  he  objected  to   the  adoption  of                                                               
Amendment 7, as amended, for the reasons he stated earlier.                                                                     
REPRESENTATIVE OGG  offered his understanding that  the bill that                                                               
passes last  takes precedence:   if  HB 472  passes first,  SB 30                                                               
will provide an exception to it and visa versa.                                                                                 
REPRESENTATIVE GRUENBERG said he disagrees.  He elaborated:                                                                     
     This covers the defenses  for medical malpractice based                                                                    
     upon an  alleged failure to obtain  informed consent of                                                                    
     a  person  under  subsection   (h),  and  the  specific                                                                    
     controls over  the general where  they're inconsistent,                                                                    
     and so if there's  any inconsistency, this would apply.                                                                    
     And  I think  it is  inconsistent now  in at  least the                                                                    
     sense that  a defense  in [HB 472]  ... that  would be,                                                                    
     quote,  "under the  circumstances, consent  [by or  on]                                                                    
     behalf  of  the  patient was  not  possible",  unquote,                                                                    
     would  not be  an  allowable defense  in  this kind  of                                                                    
     malpractice (indisc.).                                                                                                     
Number 1757                                                                                                                     
CHAIR  McGUIRE asked  Representative Gruenberg  whether he  would                                                               
accept a  second amendment to Amendment  7, as amended, to  put a                                                               
period after "patient" in proposed paragraph (4).                                                                               
REPRESENTATIVE GRUENBERG said he would accept that change.                                                                      
Number 1719                                                                                                                     
REPRESENTATIVE  GARA  said he  objects  to  such  a change.    He                                                               
     I  can't  imagine  a circumstance  where  a  woman  who                                                                    
     doesn't want to  have an abortion should  have her will                                                                    
     overruled.    If  a  woman  doesn't  want  to  have  an                                                                    
     abortion, that  ... decision should be  respected.  And                                                                    
     if we  are implying  here that  a physician  might know                                                                    
     better than the woman and  decide, 'under the facts and                                                                    
     circumstances",  to  withhold information  because  the                                                                    
     physician thinks it's  better for the woman  to have an                                                                    
     abortion, I  think that's ...  not good policy.  ... We                                                                    
     have a right  in this state ... under  current law that                                                                    
     says a  physician has  the duty  to disclose  all known                                                                    
     risks and  all known  dangers and all  known reasonable                                                                    
     alternatives to a patient.                                                                                                 
     I think that's  fair; that's ... a  right that patients                                                                    
     should have, and  I'm going to object  [to] the changes                                                                    
     in that law  in [HB 472] ... vociferously  on the House                                                                    
     floor.  But the implication  here that a doctor should,                                                                    
     because they  believe it's reasonable, be  able to lull                                                                    
     somebody into  having an abortion when  they don't want                                                                    
     to have an abortion I think is dangerous."                                                                                 
CHAIR McGUIRE offered her belief  that such is not Representative                                                               
Gruenberg's  intent or  the intent  of Amendment  7, as  amended.                                                               
She  opined that  the language  in  Amendment 7,  as amended,  is                                                               
meant  to  allow for  a  reasonable-physician  standard, so  that                                                               
there will not  be a proliferation of lawsuits.   It is not meant                                                               
to provide  a method  by which  a doctor  can bypass  a patient's                                                               
REPRESENTATIVE GRUENBERG pointed out  that he offered Amendment 7                                                               
with the goal  of making the two bills congruent.   Now, however,                                                               
Amendment 7  has been amended and  a further amendment to  it has                                                               
been suggested, and so it  substantially increases the discretion                                                               
[of the physician] and the scope of the defense.                                                                                
Number 1512                                                                                                                     
REPRESENTATIVE GRUENBERG withdrew Amendment 7, as amended.                                                                      
The committee took an at-ease from 2:20 p.m. to 2:21 p.m.                                                                       
Number 1493                                                                                                                     
REPRESENTATIVE GARA  made a  motion to  adopt Amendment  8, which                                                               
read [original punctuation provided]:                                                                                           
     Page 1, lines 1-2:  Delete "and other persons"                                                                             
     Page 3, section 6 and Page 4, sections 3 and 4: Delete                                                                     
      "unborn child" wherever it appears and replace with                                                                       
Number 1474                                                                                                                     
CHAIR McGUIRE objected [for the purpose of discussion].                                                                         
REPRESENTATIVE  GARA,   referring  to   the  second   portion  of                                                               
Amendment 8, noted that the  bill currently uses the term "unborn                                                               
child" in  places where  historically the  term "fetus"  has been                                                               
used.  He  said he does not  want to decrease the  chances that a                                                               
woman's right  to choose to  have an  abortion will be  upheld by                                                               
future  courts, and  suggested that  not using  the term  "fetus"                                                               
increases  the  chances that  a  woman  will  lose her  right  to                                                               
choose.   He  said he  would prefer  that the  bill use  the term                                                               
"fetus"  because  it  is  the  medical term  and  has  been  used                                                               
REPRESENTATIVE  GRUENBERG   said  he  would  like   to  cosponsor                                                               
Amendment 8.                                                                                                                    
SENATOR DYSON,  referring to  the first  portion of  Amendment 8,                                                               
explained that  he'd included the  phrase "and other  persons" in                                                               
the  title  because  he's   anticipating  that  parental  consent                                                               
language  will survive  constitutional challenge,  and that  "and                                                               
other persons" refers to parents and guardians.                                                                                 
Number 1304                                                                                                                     
REPRESENTATIVE  GARA  made a  motion  to  amend Amendment  8,  to                                                               
delete the first portion of Amendment 8.                                                                                        
Number 1290                                                                                                                     
REPRESENTATIVE HOLM objected and then removed his objection.                                                                    
Number 1287                                                                                                                     
CHAIR McGUIRE announced that Amendment 8 has been amended.                                                                      
SENATOR DYSON opined that Amendment 8, as amended, gets right to                                                                
the heart of the whole debate.  He elaborated:                                                                                  
     Fetus is just Latin for unborn  child.  You can put the                                                                    
     whole  bill in  Latin if  you want.  ... What  I really                                                                    
     worry about here, and it gets  back to the heart of the                                                                    
     argument, is  an attempt  to justify  the fact  that in                                                                    
     this country, some people do  not have protections, and                                                                    
     that is:  if you're  an unborn child, you're not worthy                                                                    
     of ...  protection under  the law.   And if  ... that's                                                                    
     your goal, then  you really do want  to, everywhere you                                                                    
     can, substitute a synonym, in  whatever language, for a                                                                    
     human  being.    And  that has  been  ...  the  classic                                                                    
     pattern  of  oppressors  down through  6,000  years  of                                                                    
     recorded history  ....  [If]  there's a group  that you                                                                    
     don't  want  to  have  rights, then  you  come  up  for                                                                    
     another  term for  them.    And I'm  very  wary of  ...                                                                    
     continuing that pattern. ...                                                                                               
     The  U.S. Congress  has just  passed  the unborn  child                                                                    
     protection  Act  recognizing  at least,  if  the  child                                                                    
     happens to  be wanted, [that  in] doing damage  to that                                                                    
     child,  something, in  fact and  in law,  of value  was                                                                    
     lost. ...  [Amendment 8,  as amended]  is not  going to                                                                    
     change the content of the  bill; it changes the flavor.                                                                    
     And  for those  of you  that want  to preserve,  quote,                                                                    
     "the right  to choose"  - and I  think the  more proper                                                                    
     (indisc.)  is,   "the  right  to  solve   the  unwanted                                                                    
     pregnancy  by  terminating  the life  of  a  developing                                                                    
     child" - ...  and if you want to obscure  the fact that                                                                    
     we're  dealing  with  a   human  life,  then  obscuring                                                                    
     language,  even  if  it  happens to  be  that  it  [is]                                                                    
     sometimes used in  medical circles, but I  can tell you                                                                    
     when a  doctor's ... dealing  with a  woman [regarding]                                                                    
     prenatal care,  they don't ever  talk about  the fetus,                                                                    
     they're talking about a baby -- and so I object ....                                                                       
Number 1068                                                                                                                     
REPRESENTATIVE GARA said he did not introduce Amendment 8, as                                                                   
amended, to denigrate the value of a woman or a woman who's                                                                     
carrying a child.  He elaborated:                                                                                               
     I've introduced  [Amendment 8, as amended]  because the                                                                    
     first thing that those lawyers  on the pro-life side of                                                                    
     the  issue are  going  to  do if  this  bill passes  as                                                                    
     written is  say, "Look, the state  of Alaska recognizes                                                                    
     that a pregnant  woman is carrying a  child even before                                                                    
     the child  is born, at  day one,  at day two,  at month                                                                    
     one,  at month  two, at  month three,  at month  four."                                                                    
     They're going  to make that argument  and they're going                                                                    
     to say to  the courts that the state of  Alaska has now                                                                    
     elevated  the protection  it wants  to  give to  unborn                                                                    
     children, it has now lowered  the interest that a woman                                                                    
     has, in  having an  abortion.  And  it will  argue that                                                                    
     the calculus  the court has  to enter into  in deciding                                                                    
     whether  a woman  still  has a  right  to abortion  has                                                                    
     changed, because  in order to  take away  a fundamental                                                                    
     right,  the  court has  to  consider  what the  state's                                                                    
     interests are.   And I  think by changing  the language                                                                    
     we are now  creating an argument for  the pro-life side                                                                    
     of the  battle, that we  have elevated the  interest in                                                                    
     not having abortions in this state.                                                                                        
     So  I am  not particularly  offended, in  the parlance.                                                                    
     I've  ... patted  pregnant friends  of mine  and talked                                                                    
     about the  baby inside the  pregnant friend of  mine; I                                                                    
     consider  it  a  baby  at that  point,  personally,  in                                                                    
     parlance.  I  just know that this language  is going to                                                                    
     be  used  in  legal  battles to  try  and  undermine  a                                                                    
     woman's right to have an  abortion, and I don't want to                                                                    
     undermine  that  right.    We  are  so  philosophically                                                                    
     opposed on  this one, we'll  never agree, and so,  if I                                                                    
     have a  ... motive ..., it's  that I want to  protect a                                                                    
     woman's right to  choose and I don't want  to give away                                                                    
     an  argument in  court  in the  future.   And  frankly,                                                                    
     that's why the lawyers on  both sides and the lobbyists                                                                    
     on both  sides of these  issues fight over  these words                                                                    
     all the  time.  And so  in a conversation I'll  have no                                                                    
     problem  using  either  term,  but   in  court  it's  a                                                                    
     different [story].                                                                                                         
Number 0979                                                                                                                     
A roll call vote was taken.  Representatives Gara and Gruenberg                                                                 
voted in favor of Amendment 8, as amended.  Representatives Ogg,                                                                
Samuels,   Holm,  Anderson,   and  McGuire   voted  against   it.                                                               
Therefore, Amendment 8, as amended, failed by a vote of 2-5.                                                                    
Number 0945                                                                                                                     
REPRESENTATIVE HOLM moved to report  the proposed House committee                                                               
substitute  (HCS)  for  SB   30,  Version  23-LS0193\O,  Mischel,                                                               
3/22/04,   as  amended,   out   of   committee  with   individual                                                               
recommendations,  the accompanying  fiscal notes,  and the  legal                                                               
analysis by  the attorney  general dated March  30, 2004.   There                                                               
being no objection, HCS CSSB  30(JUD) was reported from the House                                                               
Judiciary Standing Committee.                                                                                                   
Number 0908                                                                                                                     
CHAIR  McGUIRE  made a  motion  to  [adopt  and] report  a  House                                                               
Concurrent  Resolution,  for  the purpose  of  making  conforming                                                               
changes to the  title of SB 30, out of  committee with individual                                                               
recommendations.   There being no  objection, a  House Concurrent                                                               
Resolution  [which later  became HCR  36] was  reported from  the                                                               
House Judiciary Standing Committee.                                                                                             
[HCS CSSB 30(JUD) was reported from committee.]                                                                                 
HB 353 - JURY DUTY EXEMPTION FOR CERTAIN TEACHERS                                                                             
Number 0850                                                                                                                     
CHAIR McGUIRE announced that the  next order of business would be                                                               
HOUSE BILL NO.  353, "An Act relating to jury  duty; and amending                                                               
Rule  15(k),  Alaska  Rules  of  Administration."    [Before  the                                                               
committee was CSHB 353(HES).]                                                                                                   
Number 0829                                                                                                                     
REPRESENTATIVE MARY  KAPSNER, Alaska State  Legislature, sponsor,                                                               
said that  HB 353 will exempt  from jury duty teachers  who teach                                                               
in schools  that are not  meeting adequate yearly  progress (AYP)                                                               
under state  and federal law.   In the  last six to  eight years,                                                               
the state has  implemented benchmark testing and  the high school                                                               
qualifying exit exam,  and, at the federal level,  there has been                                                               
implementation  of the  No Child  Left Behind  Act of  2001 (NCLB                                                               
Act),  which requires  that every  school  have highly  qualified                                                               
teachers  in each  subject area.   For  many small  schools these                                                               
changes have posed  a challenge when teachers are  asked to leave                                                               
the classroom for  the purpose of serving jury  duty, because, in                                                               
a lot  of locations  around the  state, it  is very  difficult to                                                               
find  substitute  teachers that  are  certified  in the  area  of                                                               
expertise that the regular teacher is certified in.                                                                             
REPRESENTATIVE  KAPSNER noted  that in  Bethel, for  example, the                                                               
court system seeks jurors from  a pool of 11 surrounding villages                                                               
and Bethel.   If a  teacher in  Kasigluk, for example,  is called                                                               
out  of the  classroom for  jury duty,  or if  there is  even the                                                               
possibility that this  will occur, it creates a lot  of stress on                                                               
the whole  school, on both  students and other  teachers, because                                                               
in most villages it's hard to  find a substitute teacher that has                                                               
a  high school  diploma.   The Lower  Kuskokwim School  District,                                                               
between September  and December, lost  107 teaching days  to jury                                                               
duty.   Now that districts  are facing AYP, benchmark  tests, and                                                               
high  school  exit  exams,  loss   of  teaching  days  is  really                                                               
ratcheting up the pressure on schools, students, and parents.                                                                   
REPRESENTATIVE  KAPSNER said  that HB  353 provides  an exemption                                                               
for  teachers from  jury  duty  so that  while  a  school is  not                                                               
meeting AYP, they can stay in  the classroom as much as possible.                                                               
She  relayed her  hope that  this exemption  won't last  forever,                                                               
that when all  schools meet AYP, the exemption will  no longer be                                                               
needed and  all teachers can be  part of a jury  pool; hopefully,                                                               
HB 353 will just be a temporary fix to a temporary problem.                                                                     
Number 0604                                                                                                                     
REPRESENTATIVE  KAPSNER   pointed  out   two  areas   of  concern                                                               
regarding CSHB 353(HES):  page  1, line 5, contains "may" instead                                                               
of "shall";  and page 1,  line 6, contains "school  year" instead                                                               
of "school term".  She indicated  that the bill should be changed                                                               
to say  "school term" because  that refers to whatever  period of                                                               
time in  a given year  the school district decides  students will                                                               
be required to attend.  In  response to a question, she indicated                                                               
that the  "may" that  she is  suggesting should  be changed  to a                                                               
"shall" is  the second "may" on  line 5.  She  said that although                                                               
there  was discussion  in  a prior  committee  that judges  could                                                               
simply  decide whether  a  person should  be  exempted from  jury                                                               
duty, it  is not customary  for judges  to make such  a decision,                                                               
and so  to require it of  them would create an  additional burden                                                               
on the court system.                                                                                                            
CHAIR  McGUIRE  noted  that  some  students  from  Representative                                                               
Joule's district were present to observe the hearing on HB 353.                                                                 
[The students  introduced themselves  and stated the  school they                                                               
were from.]                                                                                                                     
Number 0432                                                                                                                     
LINDA SAITO  relayed that  she is the  music teacher  at Kotzebue                                                               
Middle/High School and was called  for jury duty starting January                                                               
4  [2004] through  the  end of  April [2004].    Noting that  her                                                               
school has  not yet met  AYP, she  said that [getting  picked for                                                               
jury duty]  was a concern  because she  had to be  prepared every                                                               
day, for  four months, to  call in a  substitute so she  could go                                                               
serve.   She  added that  it is  very difficult,  particularly in                                                               
villages, to  get substitute teachers  that can come in  and give                                                               
quality lessons.                                                                                                                
REPRESENTATIVE   KAPSNER,   in   response   to   questions   from                                                               
Representative Anderson, said that there  are between 400 and 500                                                               
residents in the  village of Kwigillingok, that  the Alaska Court                                                               
System picks  jurors from  the list of  people that  have applied                                                               
for  a permanent  fund  dividend,  and that  a  jury  made up  of                                                               
teachers [from  rural schools] is  not necessarily going to  be a                                                               
jury  of one's  peers because  many of  those teachers  are newly                                                               
arrived  from the  Lower 48  and won't  know the  culture or  the                                                               
REPRESENTATIVE ANDERSON mentioned that he supports HB 353.                                                                      
TAPE 04-52, SIDE A                                                                                                            
Number 0001                                                                                                                     
REPRESENTATIVE GARA remarked  that a jury is supposed  to be made                                                               
up  of  people who  live  in  one's  community, and  this  notion                                                               
militates  in favor  of  the bill.   He  also  remarked that  the                                                               
turnover  rate  in small  schools  is  phenomenal, that  this  is                                                               
terrible for the  students, and asked whether there  is a similar                                                               
problem in larger communities such as Kotzebue.                                                                                 
MS. SAITO said that  this year her school is losing  10 out of 28                                                               
teachers, and  that two years ago  about half of the  staff left.                                                               
In response to  a question she relayed that this  turnover is not                                                               
related to teachers retiring.                                                                                                   
REPRESENTATIVE GARA said he agrees  with the bill, adding that it                                                               
makes sense.   He  mentioned that  he would  like to  also exempt                                                               
teachers  from schools  that are  not on  the road  system, since                                                               
those  teachers can't  easily  be replaced  by  a substitute  and                                                               
their presence is  very important to the  students; he predicted,                                                               
however,  that such  a change  might hurt  the bill's  chances of                                                               
REPRESENTATIVE  SAMUELS indicated  that he  would support  such a                                                               
change if an  amendment were offered to that effect  on the House                                                               
CHAIR McGUIRE  suggested making the  bill apply to  those schools                                                               
that have only one to five teachers.                                                                                            
REPRESENTATIVE OGG offered  his belief that teachers  are part of                                                               
the  community, and  opined that  the legislature  should not  be                                                               
saying that teachers who've been  encouraged to come to the state                                                               
to teach in small communities  are not part of those communities.                                                               
He said  he thinks  that HB  353 is a  good bill  that recognizes                                                               
some paucity in the ability to draw jurors in small areas.                                                                      
Number 0363                                                                                                                     
REPRESENTATIVE  GRUENBERG   said  he  would  like   to  offer  an                                                               
amendment to "tighten the title", and  that he would like to know                                                               
from the Alaska Court System what  the impact will be of changing                                                               
the second "may"  on page 1, line  5, to "shall".   He noted that                                                               
as currently written, the bill  applies to a school in Anchorage,                                                               
and predicted that it could  apply to more Anchorage schools next                                                               
year.   He said it  sounds to him  as though the  problem doesn't                                                               
have anything  to do with the  NCLB Act, rather that  the problem                                                               
stems from a  lack of substitute teachers in rural  areas, but HB                                                               
353 doesn't  appear to  get at  that specific  issue.   Under the                                                               
bill,  a school  in Anchorage  is covered  even though  getting a                                                               
substitute teacher is not a  problem, whereas a rural school that                                                               
is  meeting AYP  would not  be covered  even though  it could  be                                                               
quite difficult to get a substitute teacher.                                                                                    
[Chair McGuire turned the gavel over to Representative Samuels.]                                                                
REPRESENTATIVE KAPSNER responded:                                                                                               
     I  had the  pleasure and  distinction of  serving as  a                                                                    
     substitute teacher  for one year,  in Bethel.   And one                                                                    
     of the things that I was  very surprised to find out is                                                                    
     how many  students' lives are extremely  disrupted when                                                                    
     the teacher is  out of the classroom.   Typically these                                                                    
     are the students  [for whom] their teacher  is the only                                                                    
     thing  that stays  constant in  their life  on a  daily                                                                    
     basis  ... in  one year  - maybe  that teacher  changes                                                                    
     every year.   But  what I noticed  is, in  almost every                                                                    
     class that  I taught,  there was  one student  that was                                                                    
     extremely, emotionally  disturbed, and that  was really                                                                    
     brought out when  their teacher was gone.   And I think                                                                    
     that this  is especially true  in schools that  are not                                                                    
     meeting  adequate  yearly progress;  there's  something                                                                    
     else going on that's not  just the fault of the school,                                                                    
     but I  think that  something else  is missing  in their                                                                    
     home life and in their community.   So I think that any                                                                    
     school  that is  not meeting  adequate yearly  progress                                                                    
     probably  has  some  element   of  the  teacher  really                                                                    
     needing to be there everyday.                                                                                              
REPRESENTATIVE  GARA  mentioned that  it  might  be difficult  to                                                               
define which schools should have  their teachers be exempted from                                                               
jury  duty.   He said  he agrees  that teachers  are part  of the                                                               
community and did not mean to suggest that they aren't.                                                                         
Number 0763                                                                                                                     
REPRESENTATIVE SAMUELS said  he would like to  offer an amendment                                                               
"to change  the second 'may' on  line 5 to 'shall',  and the word                                                               
'year'  to   'term'  on  line   6,  page  1,"  as   suggested  by                                                               
Representative Kapsner.                                                                                                         
Number 0769                                                                                                                     
REPRESENTATIVE  OGG  made a  motion  to  adopt the  foregoing  as                                                               
Amendment 1.                                                                                                                    
REPRESENTATIVE GRUENBERG  asked that the representative  from the                                                               
Alaska Court System be allowed to comment on Amendment 1.                                                                       
Number 0770                                                                                                                     
DOUG  WOOLIVER,  Administrative Attorney,  Administrative  Staff,                                                               
Office  of  the  Administrative  Director,  Alaska  Court  System                                                               
(ACS),  said he  did not  see a  particular problem  for the  ACS                                                               
regarding changing  the second  "may" to "shall",.   In  fact, he                                                               
added,  it  is easier  administratively  if  there is  a  blanket                                                               
exemption  rather  than  a judicial  determination.    In  larger                                                               
communities, he relayed,  jury clerks handle this  type of issue,                                                               
but in smaller communities, judges do it.                                                                                       
REPRESENTATIVE GRUENBERG said he removes his objection.                                                                         
Number 0836                                                                                                                     
REPRESENTATIVE  SAMUELS  asked  whether there  were  any  further                                                               
objections to  Amendment 1.   There being  none, Amendment  1 was                                                               
Number 0853                                                                                                                     
REPRESENTATIVE GRUENBERG made a motion  to adopt CSHB 353(HES) as                                                               
the work draft.  There being no objection, it was so ordered.                                                                   
Number 0862                                                                                                                     
REPRESENTATIVE  GRUENBERG  made  a  motion  to  adopt  Conceptual                                                               
[Amendment 2],  to tighten the  title so  that it is  confined to                                                               
the specific subject of the bill.                                                                                               
REPRESENTATIVE SAMUELS  asked whether  there were  any objections                                                               
to Conceptual Amendment 2.                                                                                                      
REPRESENTATIVE  KAPSNER  indicated  that adoption  of  Conceptual                                                               
Amendment 2 would be fine with her.                                                                                             
REPRESENTATIVE  SAMUELS, after  ascertaining that  there were  no                                                               
objections, announced that Conceptual Amendment 2 was adopted.                                                                  
[Representative Samuels returned the gavel to Chair McGuire.]                                                                   
REPRESENTATIVE HOLM asked whether HB  353 would be limiting one's                                                               
right to  serve on a  jury, and  whether a blanket  exemption for                                                               
any group of people would be constitutional.                                                                                    
[Chair McGuire turned the gavel over to Representative Samuels.]                                                                
REPRESENTATIVE  HOLM,   characterizing  HB   353  as  a   law  of                                                               
exclusion, said he questions whether  they, as American citizens,                                                               
should be promoting such.  "Are  we saying that we have polarized                                                               
groups within  ... the  United States that  cannot be  peers?" he                                                               
asked, and,  "Is it good  state policy  for us to  have different                                                               
rules  for people  that  live in  Aniak or  people  that live  in                                                               
Fairbanks or in Juneau when it comes to justice?"                                                                               
REPRESENTATIVE  KAPSNER explained  that  she did  not intend  for                                                               
this to  become a  regional issue, and  reminded members  that HB                                                               
353 was created in response to the NCLB Act and AYP.                                                                            
[Representative Samuels returned the gavel to Chair McGuire.]                                                                   
Number 1101                                                                                                                     
REPRESENTATIVE KAPSNER went on to say:                                                                                          
     What  we're saying  is that  under the  conditions that                                                                    
     teachers  are teaching  in  now,  under the  conditions                                                                    
     that  students   are  learning  in,  in   schools  with                                                                    
     exorbitant overhead,  with few classroom tools,  with a                                                                    
     lot of  testing going on,  [with] a lot of  people ill-                                                                    
     prepared  for  tests,  [and with]  a  myriad  of  other                                                                    
     challenges that schools ... [face],  I think this would                                                                    
     be a good ... policy ...  that we can give the schools,                                                                    
     saying, "This  didn't cost us  anything, this  is going                                                                    
     to  provide more  classroom hours  for you,  less of  a                                                                    
     burden for  you to be  paying teachers for doing  a lot                                                                    
     of work in  preparation time and serving  on ... juries                                                                    
     and  away  from  the classroom,  the  travel  expenses,                                                                    
     [and] the expense  of getting other people  lined up in                                                                    
     their communities  to serve  as substitute  teachers if                                                                    
     that need should arise."                                                                                                   
Number 1261                                                                                                                     
     And this  could happen in  Fairbanks.  I'm not  sure if                                                                    
     you know  how many  schools in  your community  are not                                                                    
     meeting  adequate yearly  progress, but  I'm sure  that                                                                    
     when and  if this bill is  passed, Representative Holm,                                                                    
     many teachers  in your community  will say,  "Thank you                                                                    
     for  helping  me do  my  job  under these  very  trying                                                                    
     times."   And  as  I  said at  the  outset,  this is  a                                                                    
     temporary solution  to a temporary  problem, hopefully.                                                                    
     Hopefully we get to the  point where 100 percent of our                                                                    
     schools  are meeting  adequate  yearly  progress.   The                                                                    
     conversation of  jury of peers  was merely as  an aside                                                                    
     and  that is  not  the  heart of  the  bill,  and I  am                                                                    
     nervous about going down that path.                                                                                        
REPRESENTATIVE KAPSNER concluded:                                                                                               
     And we  could spend many  hours talking about  [a] jury                                                                    
     of peers, and  I could tell you  [about] specific cases                                                                    
     where  trials  have been  won  because  all the  jurors                                                                    
     understood  that  every  person  in  a  village  has  a                                                                    
     different  smell depending  on  what  family they  come                                                                    
     from  - depending  on  the  kind of  meat  they eat  or                                                                    
     greens that they pick -  that perhaps somebody not from                                                                    
     that  area ...  wouldn't  understand. ...  But I  don't                                                                    
     want  to go  down  that path.   I  want  to talk  about                                                                    
      adequate yearly progress, highly qualified teachers,                                                                      
     and helping schools meet those needs.                                                                                      
Number 1206                                                                                                                     
REPRESENTATIVE  HOLM reiterated  his  concern  about taking  away                                                               
someone's right to serve on a jury.                                                                                             
REPRESENTATIVE KAPSNER  pointed out that a  teacher covered under                                                               
this bill is not required to claim exemption.                                                                                   
CHAIR McGUIRE concurred,  adding that a teacher  is not compelled                                                               
to claim  exemption because  the bill says,  "A person  may claim                                                               
MR. WOOLIVER  agreed that  the first  "may" on  line 5  gives the                                                               
teacher  the discretion  of whether  to claim  exemption; if  the                                                               
teacher  does choose  to claim  exemption, then  he/she shall  be                                                               
excused.   In  response to  a question,  he noted  that currently                                                               
there are no other exemptions from jury duty.                                                                                   
REPRESENTATIVE  KAPSNER  mentioned  that  there  was  [one]  more                                                               
housekeeping measure she'd like the committee to address.                                                                       
CHAIR  McGUIRE  suggested  that   members  focus  on  the  policy                                                               
question  of whether  it is  appropriate to  create an  exemption                                                               
from jury  duty for a  teacher from a  school that has  failed to                                                               
meet AYP.                                                                                                                       
REPRESENTATIVE GARA offered his  belief that it is constitutional                                                               
to provide exemption from jury  duty to certain people, and noted                                                               
that such is done in the federal  courts.  He said it makes sense                                                               
to him to  provide the exemption proposed by HB  353, and that he                                                               
is supportive of the bill.                                                                                                      
REPRESENTATIVE GRUENBERG  offered his  belief that there  is case                                                               
law that says  the legislature does have the  authority to create                                                               
exemptions from  jury duty and establish  qualifying criteria for                                                               
serving on a jury.                                                                                                              
REPRESENTATIVE KAPSNER  turned attention to  page 1, line  7, and                                                               
indicated that  the language, "has  failed" should be  changed to                                                               
read, "is designated as failing".                                                                                               
Number 1631                                                                                                                     
CHAIR McGUIRE made a motion to  adopt Amendment 3, to replace, on                                                               
page 1,  line 7,  "has failed" with  "is designated  as failing".                                                               
There being no objection, Amendment 3 was adopted.                                                                              
CHAIR  McGUIRE, in  response to  comments regarding  Amendment 1,                                                               
clarified that Amendment 1 changed the  second "may" on line 5 to                                                               
"shall", and changed "school year" on line 6 to "school term".                                                                  
Number 1687                                                                                                                     
REPRESENTATIVE  GRUENBERG  moved  to  report  CSHB  353(HES),  as                                                               
amended,  out of  committee with  individual recommendations  and                                                               
the accompanying [zero] fiscal notes.   There being no objection,                                                               
CSHB  353(JUD) was  reported from  the  House Judiciary  Standing                                                               
The committee took an at-ease from 3:20 p.m. to 3:40 p.m.                                                                       
HB 244 - CRIMINAL LAW/SENTENCING/PROBATION/PAROLE                                                                             
Number 1733                                                                                                                     
CHAIR McGUIRE  announced that the  final order of  business would                                                               
be HOUSE BILL  NO. 244, "An Act relating to  the Code of Criminal                                                               
Procedure;  relating  to   defenses,  affirmative  defenses,  and                                                               
justifications to  certain criminal  acts; relating to  rights of                                                               
prisoners  after arrest;  relating  to  discovery, immunity  from                                                               
prosecution,  notice   of  defenses,  admissibility   of  certain                                                               
evidence, and  right to  representation in  criminal proceedings;                                                               
relating  to  sentencing,  probation, and  discretionary  parole;                                                               
amending Rule 16,  Alaska Rules of Criminal  Procedure, and Rules                                                               
404, 412, 609,  and 803, Alaska Rules of  Evidence; and providing                                                               
for an effective date."                                                                                                         
[Before the committee, adopted as a  work draft on 3/19/04, was a                                                               
proposed committee substitute (CS) labeled 04-0033, 1/16/2004.]                                                                 
Number 1769                                                                                                                     
BARBARA BRINK,  Director, Central Office, Public  Defender Agency                                                               
(PDA), Department  of Administration  (DOA), noting that  she has                                                               
been a  public defender  for more than  21 years,  specified that                                                               
the information  she'd present  wouldn't be in  the order  of her                                                               
priorities.   She  referred to  Section 5,  paragraph (3),  which                                                               
          (3) the violation occurs within the boundaries of                                                                 
     a  municipality  or  the perimeter  of  an  established                                                                
     village  that   has  adopted   a  local   option  under                                                                
     AS 04.11.490.                                                                                                          
MS. BRINK pointed  out that this makes it a  [class C] felony for                                                               
a person to  provide alcohol to a minor within  the boundaries of                                                               
a local  option area.   Although  it's a  policy call  within the                                                               
legislature's   purview,  she   cautioned   about  the   racially                                                               
disparate impact on Alaska Natives,  who are the people that live                                                               
in areas that  have established these local options.   A 21-year-                                                               
old may  share a  beer with  a nephew  who is  20 years  old, for                                                               
example; that  suddenly would  become a  felony, and  that person                                                               
would be punished  with a felony conviction and  all the possible                                                               
ways such a conviction can hurt somebody.                                                                                       
MS.  BRINK,   in  response   to  questions   from  Representative                                                               
Gruenberg, specified that AS 04.16.051  has to do with furnishing                                                               
or  delivering  alcohol  to  a   person  under  the  age  of  21.                                                               
Section 5  makes   that  a   felony  if   it  happens   within  a                                                               
municipality or the perimeter of  an established village that has                                                               
adopted a local option.                                                                                                         
CHAIR McGUIRE  clarified, "Meaning they're  dry - or damp."   She                                                               
opined that  if a village  has made that public  policy decision,                                                               
it's more  egregious for somebody  to provide alcohol  to someone                                                               
under the age of 21.                                                                                                            
MS.  BRINK said  she  understands,  but asked  whether  it is  so                                                               
egregious that the  desire is to make it a  felony for someone in                                                               
that village.  She reiterated  that those felony convictions will                                                               
disparately impact Alaska Natives in the local option areas.                                                                    
Number 1943                                                                                                                     
MS.  BRINK   turned  attention  to  Section   6,  the  forfeiture                                                               
provisions.   Referring to discussion  at the last  hearing about                                                               
how  forfeiture  works,  she  affirmed   that  the  police  seize                                                               
property or money first and ask questions later.  She explained:                                                                
     Frankly, they seize  everything on a person.   So if my                                                                    
     client  is arrested  and charged  with sharing  a beer,                                                                    
     they will take  all the money in his  possession at the                                                                    
     time  he is  cited or  arrested and  put that  into the                                                                    
     state's evidence locker.  And  it will be difficult for                                                                    
     that person to get that money back.                                                                                        
     Not only can  the state then forfeit  it, but, frankly,                                                                    
     a  lot of  times  the prosecutor's  office  makes it  a                                                                    
     requirement  --  if  you  want   to  work  out  a  plea                                                                    
     agreement or a settlement of  the case without going to                                                                    
     trial, the state will often  require forfeiture of that                                                                    
     property without  a forfeiture proceeding, in  order to                                                                    
     give you any concessions on a charge (indisc.).                                                                            
MS.  BRINK, in  response to  Representative Gruenberg  on another                                                               
topic,  agreed to  talk  with  him later  and  added that  public                                                               
defenders  or advocates  aren't  the best  experts on  forfeiture                                                               
because most of  their clients don't have assets  that are seized                                                               
in forfeiture proceedings.                                                                                                      
Number 2014                                                                                                                     
MS.  BRINK addressed  Section  8, which  amends  the statutes  on                                                               
murder in the  second degree [by removing "other than  one of the                                                               
participants" in  two locations].   It makes  a person  guilty of                                                               
murder in the  second degree even if a participant  in the felony                                                               
crime was killed during that act.   She offered her view that the                                                               
policy,  by not  including the  participant previously,  has been                                                               
that  someone who  engages in  felonious conduct  somehow assumes                                                               
the risk that  things could go wrong and  therefore that person's                                                               
life has  been "valued  less seriously."   Ms. Brink  said, "This                                                               
section, which  I don't  have a whole  lot of  disagreement with,                                                               
just makes it  so a participant's getting killed  during a felony                                                               
[crime]  ... can  also result  in  felony murder  charges."   She                                                               
noted  that  she'd  bring  up Section  8  later  when  discussing                                                               
Section 13 because they seem a little inconsistent.                                                                             
MS.  BRINK paraphrased  new language  in Section  9 [relating  to                                                               
committing  the crime  of  assault in  the  third degree],  which                                                               
          (4) with criminal negligence causes serious                                                                       
     physical  injury  to  another  person  by  means  of  a                                                                
     dangerous instrument.                                                                                                  
MS. BRINK clarified that this is  being moved from assault in the                                                               
fourth degree,  a class  A misdemeanor, to  assault in  the third                                                               
degree, a  class C felony.   She said she appreciates  the desire                                                               
to bring harsher consequences to  those who are "drinking but are                                                               
not under  the influence of  alcohol, but somehow are  related in                                                               
automobile  accidents"; however,  she  suggested if  that is  the                                                               
purpose, this bill is drafted  far too broadly because nothing in                                                               
this statute requires any alcohol to have been consumed.                                                                        
MS. BRINK  predicted there'd be "unintended  people falling under                                                               
the  rubric of  this crime."   She  explained that  the following                                                               
examples  could   be  felony-level  conduct  if   there  were  an                                                               
accident:  failure to see a stop  sign, not seeing black ice on a                                                               
road  and thus  traveling  too fast  for  conditions, or  getting                                                               
distracted by the behavior of kids  in the back seat and swerving                                                               
over the line.  She added  that she doesn't think [paragraph (4)]                                                               
is necessary, that  she believes the current state of  the law is                                                               
that  recklessly-caused serious  physical injury  by means  [of a                                                               
dangerous  instrument] will  result  in a  felony,  and that  she                                                               
cannot  imagine that  a  jury in  Alaska  wouldn't find  reckless                                                               
behavior if someone had been drinking and caused a car accident.                                                                
MS.  BRINK,  in  response  to  a  question  from  Chair  McGuire,                                                               
clarified that  her suggestion  is to omit  paragraph (4)  in its                                                               
entirety.    Saying  it's  already  a  felony  to  cause  serious                                                               
physical  injury  to  another  person by  means  of  a  dangerous                                                               
instrument, she added that she  believes it's actually assault in                                                               
the second degree.  She  said recklessly causing serious physical                                                               
injury  by means  of a  dangerous  [instrument] is  a felony  and                                                               
carries  a  mandatory  presumptive [sentence].    [Teleconference                                                               
cutting out.]   She went on to say, "We  should think twice about                                                               
making felons out of people  who make careless but still innocent                                                               
mistakes."  She  added that if the  goal is to get  at people who                                                               
have consumed alcohol, then "we  should at the very least include                                                               
that requirement in that section."                                                                                              
Number 2170                                                                                                                     
CHAIR  McGUIRE asked  how many  times a  person has  been charged                                                               
with assault or  criminal negligence from turning  around to deal                                                               
with kids  in the back seat  or other examples such  as Ms. Brink                                                               
had  mentioned.   She also  asked about  times when  it has  been                                                               
MS. BRINK replied  that the case management  system doesn't allow                                                               
breaking down the  categories with that kind of detail.   She did                                                               
report that  when she  handled misdemeanors  in the  early 1980s,                                                               
people were  charged with  assault in  the fourth  degree without                                                               
having   consumed  any   alcohol.     She   suggested  that   the                                                               
representative  from the  Office of  Public Advocacy  (OPA) might                                                               
have examples of cases he has seen.                                                                                             
MS. BRINK turned attention to Section  12, which makes it a crime                                                               
if   a  third-party   custodian   fails   to  provide   immediate                                                               
notification  of a  violation.   She explained  that the  idea of                                                               
third-party custodians originated to help  poor people get out of                                                               
jail when they  had absolutely no money for bail.   A third-party                                                               
custodian is  like a  substitute jailer and  must come  to court,                                                               
most often promise the judge to  watch the person 24 hours a day,                                                               
insist that  every condition  ordered by  the judge  be followed,                                                               
and  promise to  immediately turn  in the  person if  there is  a                                                               
violation of those conditions.                                                                                                  
MS. BRINK said the problem is  that the system has evolved into a                                                               
requirement in practically every case,  "not only as a substitute                                                               
for money bail, but ... in  addition to money bail."  Saying that                                                               
now  people   are  being   held  in   jail  for   even  low-level                                                               
misdemeanors because  they have no  friends or relatives  who can                                                               
take off work and watch them 24 hours a day, she explained:                                                                     
     My  biggest fear  with this  section is  that now  even                                                                    
     fewer people will be able  to be third-party custodians                                                                    
     because these  people are not  well versed in  the law.                                                                    
     To be a third-party custodian,  you pretty much have to                                                                    
     have no criminal  record and not much  experience.  And                                                                    
     so when they  come to court and hear that  they are now                                                                    
     subject to being  charged with a crime, I  can tell you                                                                    
     that that  information isn't going  to be  clear enough                                                                    
     to them that ... this  is really only a serious problem                                                                    
     if you're  not going to do  your duties.  I  think it's                                                                    
     just  going  to  dissuade  more and  more  people  from                                                                    
     acting as third-party custodians. ...                                                                                      
Number 2249                                                                                                                     
     And,  frankly, that's  already happening.   The  Alaska                                                                    
     Judicial  Council  just  prepared a  report  on  Alaska                                                                    
     felony  processes,  looking  at 1999,  and  I'm  pretty                                                                    
     certain  that  they  sent  copies  of  this  report  to                                                                    
     everyone in the legislature.   But it already confirmed                                                                    
     that   public-defender  clients   -   poor  clients   -                                                                    
     (indisc.)  incarcerated  pretrial than  other  clients.                                                                    
     And it also confirmed  that third-party custodians were                                                                    
     a huge reason why people spent more time incarcerated.                                                                     
     It's going to  have a huge chilling  effect on people's                                                                    
     willingness  to   come  forward  and   be  [third-party                                                                    
     custodians].  And ... it's  going to result in more and                                                                    
     more  people spending  more and  more  time in  custody                                                                    
     before they're ever convicted.                                                                                             
MS. BRINK emphasized that these  are "pretrial people" sitting in                                                               
jail because they cannot come up with a third-party custodian.                                                                  
Number 2300                                                                                                                     
CHAIR McGUIRE  asked why that  trend of increasingly  requiring a                                                               
third-party custodian is occurring.                                                                                             
MS.  BRINK replied  that she'd  asked  judges to  explain it  but                                                               
still  didn't know  why.   She said  people already  are somewhat                                                               
reluctant to be third-party  [custodians] because they're advised                                                               
they could be  subject to contempt of court if  they don't follow                                                               
all  the conditions  to the  letter.   Saying she  disagrees with                                                               
testimony that the contempt process  is a cumbersome process, she                                                               
     You  file  a one-page  order  to  show cause  why  this                                                                    
     person should  not be held  in contempt, and  I've seen                                                                    
     it done in  bail cases.  I think  that the prosecutors'                                                                    
     office, rightly so, limits  their prosecutions of these                                                                    
     people to ...  cases where they think  there really was                                                                    
     a  deliberate failure.  ... Since  they already  can be                                                                    
     prosecuted,  and since  it's  already  so difficult  to                                                                    
     find [third-party  custodians], I  just don't  think we                                                                    
     need to  criminalize yet  another act  in the  state of                                                                    
CHAIR McGUIRE remarked  that she'd be more inclined  to say "that                                                               
you  should have  this" and  that  third-party custodians  should                                                               
take  it very  seriously, since  they are  jailers by  extension.                                                               
She  expressed   curiosity  about  discovering   why  third-party                                                               
custodians are  increasingly being required in  addition to bail,                                                               
even  in misdemeanor  cases,  and suggested  that  should be  the                                                               
problem that is focused on.                                                                                                     
TAPE 04-52, SIDE B                                                                                                            
Number 2389                                                                                                                     
CHAIR  McGUIRE suggested  third-party  custodians should  believe                                                               
"to the  bottom of their  soul" that  what they're doing  is very                                                               
serious.   She said  she is concerned  about "the  logic process"                                                               
here and  doesn't think the  answer is to not  implement stronger                                                               
measures  for   third-party  custodians  simply   because  judges                                                               
perhaps   inappropriately  require   such   custodians  in   some                                                               
situations.  If  the original intent was to help  poor people who                                                               
cannot  come up  with  bail money,  she asked,  why  would it  be                                                               
required in misdemeanor cases in addition  to bail.  She said she                                                               
didn't know the answer.                                                                                                         
MS. BRINK  replied that she didn't  know either.  She  shared her                                                               
experience that  it's difficult to find  a third-party custodian,                                                               
and pointed  out that  the person  is informed  of the  rules and                                                               
then has  to sign a  document which  states that he/she  could be                                                               
charged with contempt.   Ms. Brink said there is  a strong effort                                                               
to  convince third-party  custodians  of the  importance of  this                                                               
obligation,  that it's  critical to  the process,  and that  they                                                               
will be prosecuted with contempt if  they violate the terms.  She                                                               
expressed concern  that because it  is so  hard to find  a third-                                                               
party custodian, this will just make it harder.                                                                                 
REPRESENTATIVE  GARA  agreed   that  third-party  custodians  are                                                               
overused.   He  asked, if  it's already  a crime  for third-party                                                               
custodians to violate their duties,  why it makes things worse to                                                               
"just come up with a  different misdemeanor" to charge instead of                                                               
criminal contempt.   He  also asked  how that  deters third-party                                                               
custodians  if  they're  already   being  told  a  violation  may                                                               
constitute a crime.                                                                                                             
MS. BRINK  replied that  contempt can  be punished  by up  to six                                                               
months in jail and  a fine of up to $300.   This provision raises                                                               
it  to  a   class  A  misdemeanor,  which   carries  a  potential                                                               
punishment of up to a year in jail and up to a $10,000 fine.                                                                    
Number 2247                                                                                                                     
REPRESENTATIVE GARA suggested someone who  is willing to commit a                                                               
crime  probably  doesn't  think  about the  full  extent  of  the                                                               
penalties.   He questioned  whether the  change in  penalty would                                                               
affect people's behavior.                                                                                                       
MS. BRINK pointed out that  [third-party custodians] are making a                                                               
huge  sacrifice in  their  lives and  thus  already are  somewhat                                                               
reluctant  to undertake  this,  even for  someone  they love  and                                                               
support;  that they  aren't people  who commit  crimes, but  will                                                               
think  about  consequences and  will  listen  carefully when  the                                                               
judge advises  them of  what the  mandatory or  maximum penalties                                                               
might be; and that they aren't  well versed in criminal law.  She                                                               
expressed  concern  that  this   will  increase  their  level  of                                                               
reluctance to get involved.                                                                                                     
REPRESENTATIVE GARA remarked that he'd prefer that fewer third-                                                                 
party custodians were  used, but still wasn't  so convinced about                                                               
the difference between  criminal contempt and a  misdemeanor.  He                                                               
shared his  belief that third-party  custodians are  imposed only                                                               
when the  prosecution asks for them,  but said he has  found that                                                               
some  - especially  younger  prosecutors -  ask  for them  almost                                                               
routinely.   He suggested attorneys  may overuse  their authority                                                               
in this  regard.   For example,  an attorney may  say to  a judge                                                               
that someone "might possibly, conceivably  be dangerous while out                                                               
on  bail," which  might apply  to any  defendant; thus  the judge                                                               
will agree to a third-party custodian just to be safe.                                                                          
REPRESENTATIVE GARA  asked other  attorneys present, "Is  there a                                                               
tweak  to the  statute  that governs  third-party custodians  and                                                               
when they may  be offered that we might consider  that would be a                                                               
reasonable tweak  - not a ...  radical tweak but a  minor tweak -                                                               
that might result  in limiting the use  of third-party custodians                                                               
to really  the more necessary  cases?"  Saying it's  a rhetorical                                                               
question,  he added  that if  such  a tweak  exists, however,  it                                                               
might be considered as an addition  to the bill.  He suggested if                                                               
the result is  less frequent use of  third-party custodians, then                                                               
everybody would  be better off in  the long run, even  if this is                                                               
changed to a misdemeanor from criminal contempt.                                                                                
Number 2130                                                                                                                     
MS. BRINK observed that many times the requirement for a third-                                                                 
party  custodian is  set  by an  arraigning  magistrate before  a                                                               
prosecutor is  involved in a  case; this happens when  the person                                                               
is taken  to the magistrate  right from  the scene of  arrest for                                                               
arraignment.   Even though the  state constitution and  the rules                                                               
require reasonable bail  to be set within 24  hours, in actuality                                                               
reasonable bail  hasn't been  set because  the person  cannot get                                                               
out;  to get  out, the  person must  request a  bail hearing  and                                                               
either propose removal  of the third-party custodian  - which the                                                               
next judge down  the line is loath  to do - or bring  in a third-                                                               
party custodian who'll be approved.   Thus there always must be a                                                               
bail   hearing,  which   greatly   increases   the  workload   of                                                               
prosecutors, defense  lawyers, and judges.   This initial setting                                                               
of bail is sort of meaningless, she remarked.                                                                                   
MS.  BRINK  added  that  bail setting  seems  almost  in  inverse                                                               
proportion to  the seriousness of  cases the judges  usually see.                                                               
Magistrates,   whose  day-to-day   business   other  than   these                                                               
arraignments  is handling  the lowest  level of  serious offenses                                                               
such as  traffic offenses, seem  to set  third-party requirements                                                               
all  the time.   District  court judges,  who handle  misdemeanor                                                               
clients and cases,  often set much harsher bail  conditions.  And                                                               
superior court judges  seem to be the best  at setting reasonable                                                               
bail, she said, because they see the whole gamut.                                                                               
REPRESENTATIVE GARA clarified that  he'd meant to suggest perhaps                                                               
there should be some standard  that a magistrate must meet before                                                               
imposing   the  third-party   custodian  requirement,   a  higher                                                               
standard than currently exists.                                                                                                 
MS. BRINK  replied, "The  statute actually  has a  presumption of                                                               
'OR' [own recognizance] release, but it seems to mean nothing."                                                                 
CHAIR McGUIRE  noted that  the violation  being discussed  is the                                                               
third-party custodian's failure to  immediately report a released                                                               
person's  violations of  his/her  conditions of  release.   Given                                                               
that, she  remarked, it  seems a  minimal burden  to pick  up the                                                               
phone and report immediately.                                                                                                   
REPRESENTATIVE GRUENBERG  asked that the representative  from the                                                               
Alaska Court System be allowed to comment on this issue.                                                                        
Number 1989                                                                                                                     
DOUG  WOOLIVER,  Administrative Attorney,  Administrative  Staff,                                                               
Office  of  the  Administrative  Director,  Alaska  Court  System                                                               
(ACS),  relayed  that this  coming  Friday,  the Alaska  Judicial                                                               
Council (AJC)  will be reporting  to the committee  regarding its                                                               
felony  sentencing  study,  a good  portion  of  which  addresses                                                               
third-party custodians and their impact [on the ACS].                                                                           
MS.  BRINK turned  attention to  Section 13,  which, she  opined,                                                               
removes  the right  of a  whole class  of people  to claim  self-                                                               
defense.  She said:                                                                                                             
     I  have  great  hesitation supporting  this  because  I                                                                    
     don't think  these are questions that  we can determine                                                                    
     legislatively.    Whether  or  not  a  person  has  the                                                                    
     reasonable right of self  defense has traditionally, in                                                                    
     the American system of justice,  been left to the jury,                                                                    
     who can hear all the  evidence.  And removing this from                                                                    
     ...  whole classes  of people  engaged in  fairly petty                                                                    
     conduct actually seems inconsistent  with Section 8 ...                                                                    
     that I  mentioned. ... In  Section 8, we're  setting to                                                                    
     value the  life of a  participant in a felony  who gets                                                                    
     killed, and making that a  possibility to charge felony                                                                    
     Well here [in Section 13]  it seems like we're removing                                                                    
     the right of self defense  for whole classes of people,                                                                    
     and I have a couple of  examples and I can also address                                                                    
     the  amendment that  I know  is before  you because  it                                                                    
     tries to  address this but  I don't think  it addresses                                                                    
     it adequately.   I  think in the  current state  of the                                                                    
     bill, as  it looks now,  let's say a  prostitute picked                                                                    
     up a customer  and it turned out, which  is not unheard                                                                    
     of in Alaska, that he's a  serial killer - this bill is                                                                    
     telling her that  she has no right to  preserve her own                                                                    
     life.  Let's  say there's a couple of  underage kids at                                                                    
     a park sharing a beer  and they're attacked by some ...                                                                    
     robber  or  mugger -  you're  telling  those kids  that                                                                    
     their life is not worth protecting. ...                                                                                    
     You might  think these hypotheticals  are overdramatic,                                                                    
     but these  are instances  that easily could  be charged                                                                    
     under  this.   What  we're  doing  is we're  sentencing                                                                    
     people  to  death  if they  engage  in  petty  criminal                                                                    
     conduct.   What if somebody  is driving with  a license                                                                    
     that's suspended  and they get carjacked  [and] there's                                                                    
     a baby in  the backseat of the car?   The mother has no                                                                    
     right  to protect  her child  or herself  because she's                                                                    
     driving  with  a  suspended  license.  ...  What  we're                                                                    
     saying is, you  don't have a right  to defend yourself.                                                                    
     But  what  are we  going  to  do  if these  people  are                                                                    
     attacked  with   deadly  force   and  they   do  defend                                                                    
     themselves?  Well, we're going  to convict them.  We're                                                                    
     not even going  to let them bring to the  jury the fact                                                                    
     that they  had a dangerous  situation and it  was their                                                                    
     life  or  the  person's  life at  stake  because  we're                                                                    
     saying,  "You have  no right  of  self defense";  their                                                                    
     lawyer  won't even  get  to ask  the  jury to  consider                                                                    
Number 1855                                                                                                                     
MS. BRINK continued:                                                                                                            
     And the examples  can go on and on.   What if there's a                                                                    
     woman  who  has  a  restraining  order  out  against  a                                                                    
     violent husband  and she's carrying a  concealed weapon                                                                    
     in someplace  where it's prohibited  or banned,  like a                                                                    
     university or  a bank?   Her  husband, who  has already                                                                    
     posed a documented danger to  her in the past, comes up                                                                    
     and attacks  her, and  what we're  telling her  is that                                                                    
     she  has  no  right  to defend  herself.    [If  she's]                                                                    
     charged,  she may  not be  permitted to  talk the  jury                                                                    
     about his  violent history,  what he's  done to  her in                                                                    
     the  past, because  [we've] said  to  her, "You  cannot                                                                    
     defend [yourself]."                                                                                                        
     And even  under the  amendment that is  being proposed,                                                                    
     where we  change it to felonious  conduct, [it] doesn't                                                                    
     take much  to be  [charged with  a] felony  these days.                                                                    
     If you're shoplifting something  worth over $50 and, in                                                                    
     the  last  five  years,  you've shoplifted  a  pack  of                                                                    
     cigarettes  and a  carton  of milk,  you  are facing  a                                                                    
     felony.   And  if  some lunatic  attacks  you [in]  the                                                                    
     parking lot as you're  fleeing the shoplifting, you may                                                                    
     not defend  yourself. ... This  reminds me of  the case                                                                    
     in  California   where  the  "three-strikes   law"  was                                                                    
     drafted to  cover all  kinds of  conduct.   I'm certain                                                                    
     that  the drafters  in California  did  not think  that                                                                    
     stealing  three  videos would  subject  you  to a  life                                                                    
     But under  this bill, if  you steal three videos  - and                                                                    
     you have a  prior conviction for a theft  - that's over                                                                    
     $50;  now, all  of a  sudden,  you're not  going to  be                                                                    
     permitted to  defend yourself.   And I just  think that                                                                    
     we're  removing the  power from  the people,  [because]                                                                    
     we're taking away  a jury's right to look  into all the                                                                    
     evidence about why someone engaged in self defense.                                                                        
CHAIR McGUIRE asked whether changing the burden such that the                                                                   
defendant would have to argue an affirmative defense would                                                                      
alleviate the PDA's concerns.                                                                                                   
MS. BRINK said that might be an improvement, but pointed out                                                                    
that that is a difficult burden.                                                                                                
Number 1759                                                                                                                     
REPRESENTATIVE SAMUELS offered a hypothetical situation:                                                                        
     If  I go  to  a house  and  I'm there  to  buy a  large                                                                    
     quantity of drugs, and I bring  a gun and I know it's a                                                                    
     dangerous  situation, ...  and somebody  gets shot,  do                                                                    
     you think self  defense should be allowed  in?  Because                                                                    
     that's [a]  far more realistic situation  than two kids                                                                    
     sitting  there  drinking  beer getting  beat  up  by  a                                                                    
     serial killer ....                                                                                                         
MS. BRINK replied:                                                                                                              
     Self  defense  is a  lot  more  complicated than  that.                                                                    
     What would have to be  determined is whether the person                                                                    
     who went there to buy drugs  with a gun was the initial                                                                    
     aggressor, because,  if he  was the  initial aggressor,                                                                    
     the person in  their own home, even  if they're selling                                                                    
     drugs, has  a right to  defend themselves -  there's no                                                                    
     duty  to retreat  in your  own home.   So  I appreciate                                                                    
     what  you're   saying,  but  self  defense   is  really                                                                    
     complicated, and all  I'm saying is that  we should let                                                                    
     the jury  sort it out ....   No, I don't  think the guy                                                                    
     is  justified if  the person  in the  house doesn't  do                                                                    
     something  to attack  him or  try to  hurt him  or kill                                                                    
     him.   But let's say  the person  in the house  does do                                                                    
     that.   Why  would  we  want to  force  this guy,  just                                                                    
     because he's going  there to get drugs, to  not be able                                                                    
     to defend himself?                                                                                                         
REPRESENTATIVE   SAMUELS   offered   a   different   hypothetical                                                               
     You've got two cars full  of kids driving down Northern                                                                    
     Lights [Blvd.]  shooting back and forth  at each other,                                                                    
     and  nobody  gets  charged, even  though  somebody  got                                                                    
     killed, because  they both claimed  self defense.   And                                                                    
     that's  a far  more realistic  [hypothetical] than  the                                                                    
     two kids in the  park. ... If ... you bring  a gun to a                                                                    
     situation  and you  escalate  it, and  if  it's a  drug                                                                    
     dealer,  it's already  escalated enough.   And  if it's                                                                    
     not in  somebody's house, let's  say it's in  a parking                                                                    
     lot somewhere, and somebody gets  shot, and those, once                                                                    
     again, are far more  realistic real-life scenarios, but                                                                    
     I  think  that  ...  when the  ...  Department  of  Law                                                                    
     drafted this that they were  trying to cut those off at                                                                    
     the pass.                                                                                                                  
Number 1682                                                                                                                     
MS.  BRINK  said  she  doesn't  know  that  she  can  agree  that                                                               
Representative   Samuels's  hypothetical   situations  are   more                                                               
realistic, because  she has seen  more of the type  of situations                                                               
that  she  listed.   She  referred  to  Representative  Samuels's                                                               
hypothetical about the two cars full of kids, and said:                                                                         
     Let's  say that's  true.   Let's say  there's two  cars                                                                    
     driving  down  Northern Lights  [Blvd.]  and  all of  a                                                                    
     sudden  one car  starts  firing on  the  other.   We're                                                                    
     telling the people in the  second car that because they                                                                    
     fired back they don't have a  right to self defense.  I                                                                    
     mean,  Representative   Samuels,  the  right   of  self                                                                    
     defense is  inherent in every citizen's  right to life,                                                                    
     liberty,  and the  pursuit of  happiness.   How can  we                                                                    
     decide, before an event even  takes place, that someone                                                                    
     has forfeited their right by engaging in petty crime?                                                                      
     And  why would  we  want  to do  that?   Wouldn't  that                                                                    
     encourage  vigilantism to  go on?  ... I  disagree that                                                                    
     those people  can't be charged.   They can  be charged;                                                                    
     yes, it  might be a more  difficult case to prove.   So                                                                    
     why couldn't the juries figure  that out?  Why couldn't                                                                    
     the jury, based  on all the evidence  and proof brought                                                                    
     before  them,  decide who  fired  on  [whom] first  and                                                                    
     whether or not  someone was justified.   Why can't they                                                                    
     make that decision?                                                                                                        
REPRESENTATIVE SAMUELS asked Ms. Brink whether she is proposing                                                                 
that all the information should just be given to the jury so                                                                    
that it can determine what occurred.                                                                                            
MS. BRINK said yes.                                                                                                             
Number 1604                                                                                                                     
REPRESENTATIVE GARA said:                                                                                                       
     There  are  circumstances  where  it's  hard  to  prove                                                                    
     somebody is  guilty.  There  are two things we  can do:                                                                    
     make  it presumptive  that ...  both guilty  people and                                                                    
     innocent  people  are guilty  -  that  makes it  really                                                                    
     easy,  you   don't  have  to  worry   about  hard-proof                                                                    
     problems; or you can follow  the sort of constitutional                                                                    
     mandate that we've followed in  this country that says,                                                                    
     "You know, sometimes  proof is really hard  to come by,                                                                    
     but we're  going to  require it anyway."   And  we know                                                                    
     when we do  that, ... that that  benefits guilty people                                                                    
     as well as  innocent people.  That's the  fight that we                                                                    
     have here all the time.                                                                                                    
     But  by taking  away  the right  to  self defense  from                                                                    
     people  who didn't  do anything  to  deserve death,  by                                                                    
     taking away the  right to self defense  from people who                                                                    
     should, by  all rights,  be able to  defend themselves,                                                                    
     just because  we want  to make  it easier  to prosecute                                                                    
     people, I  think is  wrong.   I understand  your point,                                                                    
     Representative  Samuels:   if we  don't do  this, there                                                                    
     will be  guilty people who go  free.  But if  we do, do                                                                    
     this, we are ... taking  away the right to self defense                                                                    
     from  somebody who,  by all  rights,  should have  that                                                                    
     right to self defense.                                                                                                     
CHAIR McGUIRE  opined that the  current language in  the proposed                                                               
CS goes  too far,  and mentioned  that she  would be  offering an                                                               
amendment to "add  back in the presumption,"  perhaps by shifting                                                               
the burden.                                                                                                                     
REPRESENTATIVE  GRUENBERG asked  whether courts  have upheld  the                                                               
constitutionality of shifting the burden.                                                                                       
MS. BRINK said she did not know.                                                                                                
Number 1422                                                                                                                     
SUSAN  A.  PARKES,  Deputy   Attorney  General,  Central  Office,                                                               
Criminal  Division,  Department of  Law  (DOL),  said that  other                                                               
states  currently have  such in  law and  it has  been upheld  in                                                               
those other states.                                                                                                             
REPRESENTATIVE  GRUENBERG  asked  whether there  are  any  states                                                               
where it has not been upheld.                                                                                                   
MS. PARKES said she did not know of any.                                                                                        
Number 1392                                                                                                                     
ANNE  CARPENETI,  Assistant   Attorney  General,  Legal  Services                                                               
Section-Juneau,  Criminal  Division,  Department  of  Law  (DOL),                                                               
indicated  that she  only  knew of  cases in  which  it has  been                                                               
upheld, one of those being a U.S. Supreme Court case.                                                                           
MS.  BRINK,  referring  to language  in  Section  13,  subsection                                                               
(a)(4)(B),  said  she  did  not   understand  what  is  meant  by                                                               
"transaction or purported transaction",  especially what is meant                                                               
by "purported", and that she would  be even more confused if this                                                               
were  changed  to  an affirmative  defense  because  she  doesn't                                                               
understand who  will have  the burden  of proving  what.   Is the                                                               
defendant  going to  have  to  prove that  he/she  was  not in  a                                                               
"purported  transaction",  or  was  not acting  to  "further  the                                                               
criminal objectives  of one  or more persons"?   She  opined that                                                               
the  "purported" language  is very  vague;  if there  is even  an                                                               
accusation  that a  defendant was  trying to  buy or  sell drugs,                                                               
then he/she would lose the right to claim self defense.                                                                         
CHAIR McGUIRE said  she agrees that that language is  a bit vague                                                               
and  relayed  that  there would  be  amendments  addressing  that                                                               
MS.  BRINK directing  attention  to Section  14,  said that  this                                                               
section also  addresses the  issue of  self defense  but contains                                                               
language specifying  that the  court may  only instruct  the jury                                                               
about the  justification of  self defense  if the  court, sitting                                                               
without a  jury, finds that  there is "some  plausible evidence".                                                               
Currently, jury  and judge have  two different roles in  a trial:                                                               
the  judge  decides  what  evidence  is  admissible  -  and  this                                                               
involves determining  whether the evidence was  legally obtained,                                                               
whether  it's relevant  to prove  some issue  in that  particular                                                               
case, and  whether the evidence  would be too prejudicial  to one                                                               
side or  the other - and  often hears evidence in  advance of the                                                               
jury for the  purpose of ruling on  the evidence's admissibility;                                                               
the  jury  decides  what  weight to  give  evidence  and  whether                                                               
evidence is  plausible, or credible,  or believable.   Section 14                                                               
takes away the jury's power and give it to the judge.                                                                           
MS. BRINK  said she doesn't  understand why such a  change should                                                               
be made, adding,  "we don't make the judge the  finder of fact in                                                               
a jury trial."  "You have a right  to have a jury trial, you have                                                               
a right  to have 12 of  your peers determine whether  or not your                                                               
[claim of] self defense [is]  plausible, and what self-respecting                                                               
jury would find self defense  when the evidence was implausible?"                                                               
she  asked.    She  offered   her  belief  that  if  evidence  is                                                               
admissible, then the jury should  be allowed to determine whether                                                               
it is plausible.                                                                                                                
Number 1209                                                                                                                     
MS. PARKES,  in response  to a question,  said that  according to                                                               
her understanding, the  word "plausible" is used  in the proposed                                                               
CS  because  the  Alaska  Court of  Appeals  currently  says  any                                                               
evidence,  even  if implausible,  raises  self  defense and  [the                                                               
jury] "gets the  instruction."  She said that the  DOL is "trying                                                               
to make the level of evidence a little higher."                                                                                 
MS.  CARPENETI indicated  that there  are Alaska  cases regarding                                                               
this issue.                                                                                                                     
REPRESENTATIVE GARA remarked:                                                                                                   
     There seems  to be an  undercurrent here that  we don't                                                                    
     want  the  self-defense defense  to  be  used in  cases                                                                    
     where it's  really a  frivolous claim,  and so  I think                                                                    
     that  was the  attempt, frankly,  in Section  13.   But                                                                    
     Section 13  is written  in a way  that bothers  many of                                                                    
     us.  And  I wonder whether, if we adopt  Section 14, we                                                                    
     don't need  to deal with  Section 13, if we  could just                                                                    
     dump it.   And here  you have this  gatekeeper standard                                                                    
     that  says ...  if it's  plausible, let  the jury  hear                                                                    
     about it,  and [then] we  don't have to go  through the                                                                    
     whole process of adopting this  sort of really loose or                                                                    
     more  troublesome standard  that's  in Section  13.   I                                                                    
     wonder if that might be the way to deal with it.                                                                           
REPRESENTATIVE GRUENBERG offered his  belief, however, that there                                                               
are  two  different  issues:     one,  whether  the  evidence  is                                                               
plausible; and two, whether "it's susceptible of determination."                                                                
Number 1033                                                                                                                     
MS. BRINK referred  to Sections 15-17, which  pertain to immunity                                                               
for  witnesses.   She  mentioned  that the  PDA  has submitted  a                                                               
proposed  amendment that  would simply  end [subsection]  (i), of                                                               
Section 17, after the word "finding" on page 9, line 30.                                                                        
REPRESENTATIVE  GRUENBERG remarked  that that  proposed amendment                                                               
might also require some conforming  changes elsewhere in Sections                                                               
MS. BRINK relayed  that [the PDA] doesn't have  any problems with                                                               
the  provisions  in  Sections  15-17  that  clarify  statute  and                                                               
conform  it to  State  v. Gonzalez,  wherein  the Alaska  Supreme                                                             
Court  held that  Alaska's privilege  against self  incrimination                                                               
requires any  finding of immunity  to be  transactional immunity,                                                               
not just use and derivative use  immunity.  She also relayed that                                                               
[the PDA]  does have a  problem, however, with the  provisions of                                                               
those  sections that  requires the  judge, after  a proffer  by a                                                               
witness   who's    exercising   the   privilege    against   self                                                               
incrimination, to  share information  about what was  said during                                                               
the hearing in  camera in which the judge finds  that the witness                                                               
does  have a  valid claim  of "Fifth  Amendment" privilege.   She                                                               
remarked that when a judge makes  such a finding, the witness has                                                               
an  absolute  right  not  to  testify  or  give  any  information                                                               
regarding his/her involvement.                                                                                                  
MS. BRINK pointed out that language  in Section 17 is telling the                                                               
judge that he must tell the  prosecutor what level of offense the                                                               
witness is involved in.  She said:                                                                                              
     I  think, Madame  Chair, that  that  is a  link in  the                                                                    
     chain tying them to the  crime and, under transactional                                                                    
     immunity, that's  unconstitutional.  I don't  you think                                                                    
     you can  fix that part.   I think the only  way you can                                                                    
     make  this statute  constitutional  is  to remove  that                                                                    
     proffer  from the  judge to  the [district  attorney's]                                                                    
     office.    I  realize   the  [district  attorneys]  are                                                                    
     frustrated, they  would like  to know what  that person                                                                    
     is  involved in,  like  to know  that  before making  a                                                                    
     decision to  grant them  immunity, [but]  the privilege                                                                    
     is absolute and it cannot be  breached.  And I think if                                                                    
     you include  that information going  from the  court to                                                                    
     the  [district  attorney],  this renders  that  section                                                                    
Number 0869                                                                                                                     
REPRESENTATIVE  GRUENBERG asked  Ms.  Brink whether  she has  any                                                               
authority to  support that proposition  or whether any  state has                                                               
adopted "such a provision."                                                                                                     
MS.  BRINK,  in response,  relayed  that  the Gonzalez  case  [in                                                             
referring to E.L.L.  v. State, 572 P.2d, 786  (Alaska)] says that                                                             
in  Alaska,  the  privilege  against  self-incrimination  applies                                                               
where the  answers elicited could  support a conviction  or might                                                               
furnish a link in the chain  of evidence leading to a conviction.                                                               
She indicated that her position  is that the information mandated                                                               
by Section 17 to be  shared with the prosecution constitutes such                                                               
a link.                                                                                                                         
MS. PARKES said the DOL has  not found any state with a provision                                                               
such as is  being proposed in Section 17, though  very few states                                                               
require  transactional immunity.   She  said [the  DOL does]  not                                                               
believe  that the  proposed  language  is unconstitutional  under                                                               
Gonzales,  which declared  that  Alaska  must have  transactional                                                             
immunity, and is prepared to  litigate the issue.  Characterizing                                                               
the proposed language as one  of the most important provisions of                                                               
the bill and  as a very minimal request  by prosecutors regarding                                                               
the extremely powerful tool of  immunity, she opined that because                                                               
of  the possible  ramifications,  it is  very  dangerous to  give                                                               
someone immunity  with absolutely  no information, which  is what                                                               
the DOL is required to do now.                                                                                                  
REPRESENTATIVE  GRUENBERG  noted  that   the  Gonzalez  case  [in                                                             
referring to E.L.L.  v. State, 572 P.2d, 786  (Alaska)] also says                                                             
that a witness  may not refuse to testify where  there is no real                                                               
or  substantial hazard  of incrimination.   He  asked Ms.  Parkes                                                               
whether her  view is based on  a belief that the  information the                                                               
judge would  be required to  reveal to  the prosecution is  not a                                                               
MS. PARKES indicated that that is her view.                                                                                     
REPRESENTATIVE GRUENBERG asked  Ms. Brink why she  believes it is                                                               
a link.                                                                                                                         
Number 0535                                                                                                                     
MS. BRINK said:                                                                                                                 
     Because  the idea  is that  a  person who  has a  valid                                                                    
     Fifth  Amendment  right  must   be  kept  in  the  same                                                                    
     position as if he remained  silent. ... So the standard                                                                    
     is, the  same position if  he remains silent.   This is                                                                    
     not  the  same position.    This  is giving  the  state                                                                    
     information about the crime -  about the type of crime,                                                                    
     about the  level of crime -  from his own words;  if he                                                                    
     had remained silent, he would  have faced no hazards of                                                                    
     incrimination  from his  own words.    And through  the                                                                    
     second  basis, through  the Gonzales  opinion, it  says                                                                  
     that the  court and the state  cannot safeguard against                                                                    
     the nonevidentiary use of compelled testimony.                                                                             
     And  nonevidentiary use  means, what's  to prevent  law                                                                    
     enforcement  or the  [district attorney's]  office from                                                                    
     focusing  the  investigation,  deciding to  initiate  a                                                                    
     prosecution,   refusing   to    plea   [bargain],   ...                                                                    
     interpreting   evidence,   ...   planning   a   [cross-                                                                    
     examination],  or  somehow   otherwise  planning  trial                                                                    
     strategy. ...  I'd like  to point  out one  more thing.                                                                    
     The  state  ...  prosecutor's office  argued  extremely                                                                    
     strongly  in this  case that  our  statute, which  only                                                                    
     provided   use  and   derivative   use  immunity,   was                                                                    
     constitutional, and  they were  wrong about that.   The                                                                    
     [Alaska]  Supreme Court  held  that  the statute,  this                                                                    
     very  statute  that you're  fixing  now  and that  [the                                                                    
     state]  supported,  was  unconstitutional  if  it  only                                                                    
     provided use  and derivative use  [immunity].   So that                                                                    
     question of constitutionality  was resolved against the                                                                    
REPRESENTATIVE  GRUENBERG asked  Ms. Parkes  what safeguards  the                                                               
state  would   use  to  ensure  against   nonevidentiary  use  of                                                               
compelled testimony.  "It seems  to me that if that information's                                                               
provided to you, then you could use it," he remarked.                                                                           
MS. PARKES replied:                                                                                                             
     It's information, it's not testimony.  ... This is just                                                                    
     a judge letting us know  the level of offenses, and not                                                                    
     even the specific level, that  we're looking at. ... So                                                                    
     I don't think we're getting  much information.  I don't                                                                    
     consider  it  evidence  to  be   given  that  level  of                                                                    
     information.   What seems to  be being implied  here is                                                                    
     that we're in  an investigative stage of  a case, [but]                                                                    
     ...  we're not.    What we're  talking  about is,  when                                                                    
     someone's been  charged, we're trying  to go  to trial,                                                                    
     we've  made   a  charging  decision,  we've   done  our                                                                    
     investigation,  we're trying  to get  a witness  on the                                                                    
     stand to  give evidence,  and so  I think  the concerns                                                                    
     that we're  somehow going to be  using this information                                                                    
     to  now focus  on the  person  we're trying  to get  to                                                                    
     testify  ...  are  far  afield  of  what  would  really                                                                    
Number 0372                                                                                                                     
REPRESENTATIVE GRUENBERG, in response, said:                                                                                    
     The  first,  that this  is  not  testimony, frankly,  I                                                                    
     can't buy ... because the  way the judge learned it was                                                                    
     from  the defendant's  mouth,  or  from the  attorney's                                                                    
     mouth  on  behalf of  the  defendant,  in chambers;  it                                                                    
     clearly  was testimony  at that  point.   Secondly,  if                                                                    
     you're saying  that you're focusing  on whether  to get                                                                    
     this  person to  testify, that's  great, but  the court                                                                    
     here  is  talking about  whether  you,  the state,  can                                                                    
     provide an  assurance [that] it  won't be  used against                                                                    
     that person.   And that's  the crux.   I don't  need an                                                                    
     answer  now, but  if you  want something  like this,  I                                                                    
     think  to meet  the standard  of Gonzales  you have  to                                                                  
     have  a  meaningful  safeguard   that  the  words,  the                                                                    
     information  you  obtain,  are  not going  to  be  used                                                                    
     against that person.                                                                                                       
MS. PARKES said she wouldn't be opposed to the addition of                                                                      
language that said that the information given by the judge -                                                                    
fruits of that poisonous tree  - would be suppressed, couldn't be                                                               
used, or  couldn't be pursued.   She mentioned that  she couldn't                                                               
see  that   the  information   given  by   the  judge   would  be                                                               
particularly useful in an investigation anyway.                                                                                 
REPRESENTATIVE GRUENBERG suggested to Ms. Parkes that she pursue                                                                
the issue of additional language.                                                                                               
Number 0133                                                                                                                     
CHAIR McGUIRE remarked:                                                                                                         
     The way it is right now,  if there's a witness that you                                                                    
     want  to put  up, and  they claim  immunity and  go and                                                                    
     meet  with the  judge,  you really  are  in a  position                                                                    
     where  it could  be for  something very,  very serious.                                                                    
     And  I'm sure  that  there's probably  even  a case  of                                                                    
     somebody  ... [wanting]  to be  a witness  because they                                                                    
     could get  immunity for something like  that, where, at                                                                    
     a  minimum,  you're  granting  immunity  for  something                                                                    
     very, very  serious when you  could have  found another                                                                    
     witness or you could have let that part go.                                                                                
MS. PARKES responded:                                                                                                           
     That's exactly  the concern: ...  you give  immunity to                                                                    
     the wrong  person because you  do it blindly  and, yes,                                                                    
     someone's  going  to get  up  there  and confess  to  a                                                                    
     homicide.   And  [if] you've  given them  transactional                                                                    
     immunity, you're  done, you can't prosecute  them.  And                                                                    
     that's what  we're trying to  avoid.  And I  just would                                                                    
     like to point  out that many, many times,  we work with                                                                    
     witnesses and  work these things  out, where  they tell                                                                    
     us  what their  concerns  are [and]  we  know what  the                                                                    
     crime is  that they're  concerned about  - drug  use or                                                                    
     something like that - and  we do give immunity in these                                                                    
     cases.     These  are  cases   where  the   witness  is                                                                    
     uncooperative  with us;  sometimes they  are afraid  to                                                                    
     testify -  they've been intimidated by  the defendant -                                                                    
     [or] they're  friends with the defendant  [and] want to                                                                    
     protect  them.   Those are  the kind  of cases,  often,                                                                    
     where  this  is  coming  up,  and  then  we  lose  very                                                                    
     valuable evidence in a serious case.                                                                                       
TAPE 04-53, SIDE A                                                                                                            
Number 0001                                                                                                                     
REPRESENTATIVE GARA remarked:                                                                                                   
     We're  asking  the  court  to  advise  the  prosecution                                                                    
     whether  the privilege  was for  [a class  A felony,  a                                                                    
     class B  felony, a class  C felony, or  a misdemeanor],                                                                    
     and  I  don't  think  that's  knowable  in  many  cases                                                                    
     because the gradations in the  severity of your conduct                                                                    
     are  so   subtle,  sometimes,  between  a   high  level                                                                    
     misdemeanor  and  low level  felony,  and  a mid  level                                                                    
     felony   and  a   high  level   felony.     That's  why                                                                    
     prosecutors submit jury instructions  that say, "If you                                                                    
     find  all of  this evidence,  convict the  defendant of                                                                    
     this; if  you find  some of  it, convict  the defendant                                                                    
     this lesser  offense."  And  so how is a  ... defendant                                                                    
     supposed to tell a judge,  and a judge supposed to tell                                                                    
     the  prosecution, whether  the  conduct  is clearly  [a                                                                    
     class A felony, a class B  felony, a class C felony, or                                                                    
     a  misdemeanor]  when it  might  be  very fuzzy  as  to                                                                    
     [which] side of the line the conduct falls on.                                                                             
MS. PARKES clarified that the  bill only refers to a higher-level                                                               
felony, a lower-level felony, and a  misdemeanor.  For a judge to                                                               
make  a  finding  that  a  person has  a  valid  Fifth  Amendment                                                               
privilege,  he/she has  to have  some concept  of what  crime the                                                               
person potentially  could be  prosecuted for.   She said  she has                                                               
faith that judges  are able to make that call  and perhaps err on                                                               
the side of "a higher potential liability."                                                                                     
REPRESENTATIVE GARA pointed  out, though, that the  bill does not                                                               
specify  that if  it's unclear  the  judge should  assume it's  a                                                               
higher-level crime.   The bill  presumes that the level  of crime                                                               
will be really clear.                                                                                                           
MS. PARKES said  she did not think it will  be that difficult for                                                               
a judge  to determine what the  potential charge could be.   With                                                               
regard  to   the  aforementioned   jury  instructions   given  by                                                               
prosecutors, she said, "What you're  actually going to be able to                                                               
prove  beyond a  reasonable doubt  in front  of a  jury may  be a                                                               
different thing  and so we want  to give juries options,  but the                                                               
prosecutor,  I  can  guarantee  you,  always  believes  that  the                                                               
highest level charge charged is the accurate charge."                                                                           
Number 0300                                                                                                                     
MS. BRINK,  with regard to  the suggestion of adding  language to                                                               
limit  the state's  use of  the information  given by  the judge,                                                               
said she  didn't think that  that would be effective  because, in                                                               
Gonzales, the  Alaska Supreme Court  has said, "Even  the state's                                                             
utmost  good   faith  is  not   an  adequate   assurance  against                                                               
nonevidentiary uses because there  may be 'nonevidentiary uses of                                                               
which even the prosecutor might  not be consciously aware.'"  She                                                               
pointed out that in that case, the court also said:                                                                             
     We  sympathize  with  the Eighth  Circuit's  lament  in                                                                    
     McDaniel  that "we  cannot escape  the conclusion  that                                                                    
     the [compelled]  could not  be wholly  obliterated from                                                                    
     the prosecutor's  mind in his preparation  and trial of                                                                    
     the case."  ... This incurable inability  to adequately                                                                    
     prevent or  detect nonevidentiary use,  standing alone,                                                                    
     presents  a  fatal  constitutional   flaw  in  use  and                                                                    
     derivative use immunity.                                                                                                   
MS. BRINK turned attention to Sections 18 and 19, which pertain                                                                 
to consecutive sentences.  She said:                                                                                            
     What these  provisions do is specify,  in great detail,                                                                    
     what cases  have to have consecutive  sentences and, in                                                                    
     many cases,  in fact, what  amount of jail time  has to                                                                    
     be consecutive.   And I  guess I'm unhappy  with [these                                                                    
     sections] because I've  always felt like individualized                                                                    
     case  consideration is  the hallmark  of our  system of                                                                    
     justice.   I don't really  understand why we  want this                                                                    
     judicial discretion taken away  from judges.  They have                                                                    
     a lot more  time and energy to listen to  all the facts                                                                    
     of a  particular individual case  and try  to determine                                                                    
     the  appropriate   sentence.     And  there   might  be                                                                    
     individual circumstances that  warrant a deviation from                                                                    
     a strict  application of presumptive  ... [consecutive]                                                                    
Number 0497                                                                                                                     
     Why would we, as a state,  want to spend $56,000 a year                                                                    
     to house an  inmate when it isn't justified  in ... [a]                                                                    
     particular case?  I think  this will have a huge fiscal                                                                    
     impact on  [the Department  of Corrections]  that isn't                                                                    
     reflected in  their fiscal  note.   And I  realize that                                                                    
     all   we're  trying   to  do   is   to  punish   people                                                                    
     appropriately  and somehow  reduce recidivism  and save                                                                    
     money  that way,  but  I  have to  say,  after being  a                                                                    
     [public  defender] for  21 years,  I have  not seen  an                                                                    
     instance  where  we,  as  a   state,  have  decided  to                                                                    
     increase penalties [and] that  has then resulted in the                                                                    
     reduction of a particular type of crime.                                                                                   
     One  of our  goals,  in criminal  justice,  is to  have                                                                    
     uniformity  of   sentences,  sentences  that   are  not                                                                    
     influenced  by  race,  whether [the  defendant]  had  a                                                                    
     public  attorney [or]  a  private  attorney, [or]  what                                                                    
     [the  defendant's] socioeconomic  status is.   I  think                                                                    
     that by  doing this  you'll actually  damage uniformity                                                                    
     of sentencing  because, in essence, you're  leaving the                                                                    
     sentencing  decision up  to  an individual  prosecutor.                                                                    
     That  individual  person,  who draws  up  the  charging                                                                    
     document and deals with the  case and either negotiates                                                                    
     it or  sends it to trial,  has the ultimate say  in the                                                                    
     number [and]  types of counts that  are charged against                                                                    
     any  one [defendant];  ...  that individual  prosecutor                                                                    
     can decide whether all these  counts and charges should                                                                    
     be resolved in one judgment  or more than one judgment,                                                                    
     and  if  it's  more   than  one  judgment,  there's  no                                                                    
     possibility of concurrent sentencing.                                                                                      
MS. BRINK continued:                                                                                                            
     Now, I  have to say,  some prosecutors I've  dealt with                                                                    
     for years I  could trust to make that decision.   But I                                                                    
     frankly  trust the  judges to  make objective  and fair                                                                    
     decisions more  than I do  the prosecutors  because the                                                                    
     prosecutors  are advocates  in this  process -  they're                                                                    
     subject  to  the  human  emotions   of  engaging  in  a                                                                    
     competitive and ... [adversarial]  system - and I would                                                                    
     prefer that  we (indisc.  - coughing) decisions  by the                                                                    
     judge and  the probation  officer in the  Department of                                                                    
     Corrections who  writes the  presentence report  and is                                                                    
     supposed   to  give   an  objective   viewpoint.     As                                                                    
     advocates, our viewpoint is not objective.                                                                                 
Number 0609                                                                                                                     
     Frankly,  the  trend nationally  is  to  get away  from                                                                    
     rigid and  mandatory minimums.   We  often read  in the                                                                    
     paper about  federal judges  who are  complaining about                                                                    
     the  federal  sentencing  guidelines; many  states  are                                                                    
     starting  to  revoke  mandatory minimums  because  they                                                                    
     found that the people who don't  need to be in jail are                                                                    
     staying there  a long  time and  draining the  state of                                                                    
     the resources  that they really  need to use  for other                                                                    
     matters.     [This]   seems   to   be  regressive   and                                                                    
     unnecessary.    People   are  getting  long  sentences;                                                                    
     people  are getting  long  presumptive  sentencing.   I                                                                    
     don't know that ... you,  as a legislative body, or we,                                                                    
     as  people  outside  of  a  case,  can  determine  that                                                                    
     somebody should  have gotten 20  years instead of  13 -                                                                    
     we have limited  information.  I think  the judges, who                                                                    
     have  all the  information, should  get [to  make] that                                                                    
     decision of what sentence a person should get.                                                                             
     And the  report that Mr. Wooliver  was testifying about                                                                    
     had another interesting conclusion.   In case you think                                                                    
     that we're not punishing  people enough, in that report                                                                    
     they   concluded  that   more  Alaska   defendants  are                                                                    
     sentenced  to jail  time than  in other  places in  the                                                                    
     Nation, and  that they're likely  to serve more  of the                                                                    
     time  that's imposed  on them  than  defendants in  the                                                                    
     rest  of the  country.   So,  believe me,  if we  think                                                                    
     we're not  already being  punitive enough,  compared to                                                                    
     the national standards, we certainly are.                                                                                  
Number 0739                                                                                                                     
MS. BRINK, in response to a question, said that for the most                                                                    
serious crimes, the PDA agrees that the presumptive term has to                                                                 
be imposed consecutively.                                                                                                       
CHAIR McGUIRE asked Ms. Brink, if three people are murdered, for                                                                
example, why isn't each one of those lives deserving of an                                                                      
individual sentence?                                                                                                            
MS. BRINK replied:                                                                                                              
     I do think each individual  life has value, but I think                                                                    
     that  those  of [us]  who've  practiced  in the  courts                                                                    
     don't think that  the value of the person  who was lost                                                                    
     is characterized  by the sentence  that is imposed.   I                                                                    
     think that  what judges do and  what lawyers understand                                                                    
     is  that   the  total  gravity  of   the  situation  is                                                                    
     reflected in  the total  length of  the sentence.   And                                                                    
     that's  why,  for a  double  homicide,  for example,  a                                                                    
     person  might get  99 years  for the  first one  and an                                                                    
     additional  20  or  10  for   the  second  one  to  run                                                                    
     It's not that  that second life is only worth  10 or 20                                                                    
     years, Madam Chair,  it's that the fact  that there was                                                                    
     more than one person  involved increases the gravity of                                                                    
     this crime  and the  seriousness and the  punishment to                                                                    
     go beyond  the maximum,  beyond what anybody  could get                                                                    
     for a single  homicide, and that the  total sentence of                                                                    
     say  119 years  is  reflective of  that  situation.   I                                                                    
     don't think  any judge ever  intended that  that should                                                                    
     somehow be  a measure  of each  individual life,  and I                                                                    
     think that's why  we err when we try  to calculate time                                                                    
     in that  manner.   I don't think  that that's  what the                                                                    
     sentence is  reflective of  because certainly  no one's                                                                    
     life could be measured in a term of years.                                                                                 
CHAIR  McGUIRE posited  that many  share a  frustration over  the                                                               
tendency  to  view  a  situation  as one  criminal  act  even  if                                                               
multiple people  are seriously  harmed or killed.   "I  really do                                                               
feel like,  for each person  who is hurt,  for each life  that is                                                               
taken,  there  ought  to  be  that  opportunity  for  a  separate                                                               
sentencing," she relayed.                                                                                                       
Number 0938                                                                                                                     
REPRESENTATIVE GARA,  referring to page  10, line 26,  asked what                                                               
AS 11.41. pertains to.                                                                                                          
MS. PARKES explained  that AS 11.41 pertains  to offenses against                                                               
a person.                                                                                                                       
REPRESENTATIVE GARA referred  to page 11, lines  6-7, which read:                                                               
"two  years or  the  active term  of  imprisonment, whichever  is                                                               
less,  for each  additional  crime that  is criminally  negligent                                                               
homicide".    He  asked  whether   a  two-year  minimum  term  of                                                               
imprisonment will be required  for criminally negligent homicide,                                                               
and whether that is more jail time than is currently required.                                                                  
MS.  PARKES  replied:    "I don't  believe  there's  a  mandatory                                                               
minimum  on criminally  negligent homicide,  so I  think ...  the                                                               
belief  was  [that]  two  years  was  an  appropriate  amount  of                                                               
additional time for each count."                                                                                                
REPRESENTATIVE  GARA asked  what  "active  term of  imprisonment"                                                               
MS. PARKES explained  that if someone is  sentenced, for example,                                                               
to  five years  of imprisonment  with four  years suspended,  the                                                               
active term  of imprisonment would be  one year.  She  noted that                                                               
these provisions of  the proposed CS are  identical to provisions                                                               
in the original version of HB 244                                                                                               
REPRESENTATIVE GARA  asked whether Section  19 is saying  that if                                                               
there are  two or more  crimes against  a person, then  the total                                                               
sentence has to be at least the minimum for one of those two                                                                    
Number 1266                                                                                                                     
MS. BRINK responded:                                                                                                            
     No, I  think what [Section 19  is] saying is it  has to                                                                    
     be doubled.   What's happening in this  section is that                                                                    
     it's  a  regimented  approach.    Already  the  statute                                                                    
     creates  a  presumption  of consecutive  sentences,  so                                                                    
     judges  know that  judges do  have  the opportunity  to                                                                    
     impose  consecutive  terms.    What  this  does  is  it                                                                    
     regiments how much  time must be consecutive.   If it's                                                                    
     an escape,  all the  imprisonment must  be consecutive.                                                                    
     If  it's [murder  in the  first] degree,  the mandatory                                                                    
     minimum term  for each one  much be consecutive.   Same                                                                    
     with an  unclassified felony.   In a manslaughter  or a                                                                    
     kidnapping  that's a  class A  felony, the  presumptive                                                                    
     term must be consecutive.   So, depending on the number                                                                    
     of people  involved, it's really arithmetic:   you take                                                                    
     the mandatory  minimum term  and you  chop it  up among                                                                    
     the different counts.                                                                                                      
     Now currently, the  judges can get to  the same overall                                                                    
     sentence,  if they  want to,  in  the appropriate  case                                                                    
     just  by  doing  a  larger   term  of  years  or  doing                                                                    
     consecutive sentencing.   But they don't  have to parse                                                                    
     it  out;  they  don't  have  [to]  apportion  it  among                                                                    
     victims.   And so  that's what's different,  here; this                                                                    
     is  a  regimented  approach, dealing  with  cases  that                                                                    
     haven't  even  happened  yet, deciding  what  might  be                                                                    
     appropriate   in   the  individual   circumstances   by                                                                    
REPRESENTATIVE GARA asked, "Currently, if the presumption is                                                                    
consecutive sentences, that just applies to felonies?"                                                                          
MS. BRINK said it applies to all crimes, both felonies and                                                                      
MS. PARKES remarked, however,                                                                                                   
     I  don't   think  there's  a  presumption   that  every                                                                    
     sentence,  every time,  should be  consecutive.   There                                                                    
     are times that the statute  indicated that it should be                                                                    
     consecutive, but there are times  it can be concurrent.                                                                    
     And  frankly,  part of  this  proposal  was because  it                                                                    
     appeared  that judges  were  not necessarily  following                                                                    
     what was already in the  statutes; they were not giving                                                                    
     consecutive times  when it appeared  that that  was the                                                                    
     legislative intent  of the statutes that  are currently                                                                    
     on the books.                                                                                                              
Number 1359                                                                                                                     
REPRESENTATIVE GARA asked,  "So are you saying  that the statutes                                                               
provide that  in some  cases the  presumption is  not consecutive                                                               
MS. PARKES offered  as an example AS 12.55.025(g),  which says in                                                               
part:   "If  the  defendant has  been convicted  of  two or  more                                                               
crimes  before  the judgment  on  either  has been  entered,  any                                                               
sentences of imprisonment may run  concurrently if ...".  So it's                                                               
a clear opportunity, she remarked, rather than a presumption.                                                                   
REPRESENTATIVE GARA asked:  "So  the statutes provide that ... if                                                               
the defendant meets  certain standards, then they can  get out of                                                               
the  concurrent  sentence  presumption  -  is  that  what  you're                                                               
MS. BRINK offered:                                                                                                              
     I have to strenuously  disagree that the presumption is                                                                    
     for  concurrent  sentences.   The  presumption  is  for                                                                    
     consecutive sentences.  [In  AS] 12.55.025(e) it states                                                                    
     very clearly,  "Except as  provided in  (g) and  (h) of                                                                    
     this  section" -  and that  was the  section that  [Ms.                                                                    
     Parkes just referred  to] - "if the  defendant has been                                                                    
     convicted  of   two  or   more  crimes,   sentences  of                                                                    
     imprisonment shall run consecutively.                                                                                      
REPRESENTATIVE GARA  said, "So [AS 12.55.025(e)]  says they shall                                                               
be presumptive, and  then [AS 12.55.025(g) and (h)]  say here are                                                               
the  circumstances where  you can  get out  of a  presumptive ...                                                               
consecutive  sentence. ...  What are  the circumstances  that ...                                                               
now would get you out of the consecutive sentence?"                                                                             
MS. BRINK replied:                                                                                                              
     For you  to get  out of  the consecutive  sentence, ...                                                                    
     what  you  have to  show  is  that the  crimes  violate                                                                    
     similar societal interests; they  are part of a single,                                                                    
     continuous   criminal   episode;   there  was   not   a                                                                    
     substantial  change in  the objective  of the  criminal                                                                    
     episode,  including  a change  in  the  parties to  the                                                                    
     crime,  the  property or  the  type  of property  right                                                                    
     offended, or the persons offended;  the crimes were not                                                                    
     committed while [you] ... attempted  to escape or avoid                                                                    
     detection or  apprehension after commission  of another                                                                    
     crime;  it's not  for a  violation  of [AS]  11.41.100-                                                                    
     11.41.470, which, again,  [are] crimes against persons;                                                                    
         and it's not for a violation of [AS] 11.41.500-                                                                        
     11.41.530 that  results in  physical injury  or serious                                                                    
     physical   injury,   [and   those]  I   believe   [are]                                                                    
     misdemeanor crimes against [a person].                                                                                     
Number 1529                                                                                                                     
     So  it is  very,  very difficult  to  get a  concurrent                                                                    
     sentence.  And in fact,  when that section was changed,                                                                    
     it  was a  sea change;  the presumption,  when I  began                                                                    
     practicing  ... was  for concurrent  sentences.   [The]                                                                    
     legislature changed that and  made the presumption very                                                                    
     clear:   they are  to be  consecutive sentences.   [if]                                                                    
     there's a change in the  parties, if you have more than                                                                    
     one  person who  is injured,  in two  different assault                                                                    
     counts, they cannot get concurrent [sentences].                                                                            
MS.  BRINK turned  attention to  Section 20,  and said  she likes                                                               
this section  because it codifies the  current practice regarding                                                               
instances in which an indigent  witness is called upon to testify                                                               
in  a court  proceeding and  the  judge thinks  that that  person                                                               
needs legal  representation to  address the  issue of  whether or                                                               
not he/she  has a valid  Fifth Amendment privilege.   That person                                                               
can be  appointed a  public defender  so that  the judge  and the                                                               
witness are not left to sort  out that point on their own without                                                               
MS. BRINK  turned attention to  Sections 21 and 23,  and surmised                                                               
that  [Section  21] says  that  once  someone gets  convicted  of                                                               
felony  driving under  the influence  (DUI), any  DUI after  that                                                               
will  always be  a  felony, and  that Section  23  says the  same                                                               
regarding "felony  [DUI] refusal."   She  urged the  committee to                                                               
consider a time limit for those provisions.  She elaborated:                                                                    
     If  you have  a young  kid struggling  with a  drinking                                                                    
     problem who, say, gets [DUIs]  when he's 16, 17, or 18,                                                                    
     [but]  he   successfully  attends   a  [rehabilitation]                                                                    
     program and  ... remains clean and  sober [and] becomes                                                                    
     a hard  working and productive  citizen for 30,  40, 50                                                                    
     years,  ... do  we really  want to  make that  person a                                                                    
     felon at the age  of 48, 58, 68?  Do  we really want to                                                                    
     make that a felony? ...  I know there is pending before                                                                    
     the  legislature another  bill  to  adjust the  current                                                                    
     look-back  for  mandatory  minimum sentences  on  [DUI]                                                                    
     sentences.  ...  We're  looking at  that  because  what                                                                    
     we've discovered  is, we have among  the harshest look-                                                                    
     back  ...  and  [DUI]   sentencing  provisions  in  the                                                                    
     country; we  have the longest look-back  provision, and                                                                    
     so,  once  again,  I  think that  making  it  a  felony                                                                    
     anytime  in the  next  lifetime of  a  person would  be                                                                    
     extremely harsh.                                                                                                           
CHAIR McGUIRE remarked that those are good points.                                                                              
Number 1633                                                                                                                     
MS. BRINK  turned attention to  Section 22, which,  she remarked,                                                               
has  to do  with eliminating  what [prosecutors]  characterize as                                                               
the "big gulp"  defense.  She said this  provision would prohibit                                                               
any  introduction  of  evidence   regarding  the  consumption  of                                                               
alcohol  [that occurred  before] the  driving or  operating.   So                                                               
that means  that the  person who's charged  with a  blood alcohol                                                               
concentration (BAC)  level of  .08 does  not get  to come  in and                                                               
testify  that,  "No, I  only  had  a  beer,"  even if  there  are                                                               
witnesses to  that effect.   She posited  that this  provision is                                                               
broader than what people have said is the intent.  She added:                                                                   
     I  don't  think we  ought  to  eliminate the  big  gulp                                                                    
     defense  because,  frankly,  don't we  want  to  punish                                                                    
     those people whose judgment  and skills [are] impaired?                                                                    
     Don't we  want to punish  those people who  are driving                                                                    
     under  the influence?    If a  person  isn't under  the                                                                    
     influence  at the  time they're  driving, do  we really                                                                    
     want  to  treat  them  the same  as  somebody  who  is?                                                                    
     That's what we do if  we adopt this measure saying that                                                                    
     that evidence  is not relevant  or admissible.   And I,                                                                    
     frankly,  think  we  should  concentrate  on  punishing                                                                    
     those people  who are under  the influence  or impaired                                                                    
     at the time of driving.                                                                                                    
MS.  PARKES relayed  that for  those  very reasons,  the DOL  has                                                               
drafted a proposed  amendment for the purpose  of tightening down                                                               
that provision  such that  it will only  apply in  the situations                                                               
intended.   That  proposed amendment  read [original  punctuation                                                               
     Delete Page 13, lines 7-10                                                                                               
     Insert in its place:                                                                                                     
          (s) In a prosecution under (a) of this section, a                                                                     
     person  may  introduce   evidence  of  having  consumed                                                                    
     alcohol before operating or  driving the motor vehicle,                                                                    
     aircraft  or  watercraft,  to   rebut  or  explain  the                                                                    
     results of  a chemical  test, but it  is not  a defense                                                                    
     that  the  chemical  test did  not  measure  the  blood                                                                    
     alcohol at the time of the operating or driving.                                                                           
     Add  a   new  section   and  renumber   other  sections                                                                  
     *Sec.__.  AS 28.35.030(a) is amended to read:                                                                            
          (a) A person commits the crime of driving while                                                                       
     under   the  influence   of   an  alcoholic   beverage,                                                                    
     inhalant,  or   controlled  substance  if   the  person                                                                    
     operates  or  drives a  motor  vehicle  or operates  an                                                                    
     aircraft or a watercraft                                                                                                   
               (1) while under the influence of an                                                                              
     alcoholic beverage,  intoxicating liquor,  inhalant, or                                                                    
     any controlled substance;                                                                                                  
               (2) if [WHEN], as determined by a chemical                                                                   
     test taken within four hours  after the alleged offense                                                                    
     was committed, there is 0.08  percent or more by weight                                                                    
     of alcohol  in the person's  blood or 80  milligrams or                                                                    
     more of  alcohol per  100 milliliters  of blood,  or if                                                                
     [WHEN] there is  0.08 grams or more of  alcohol per 210                                                                    
     liters of the person's breath; or                                                                                          
               (3) while the person under the combined                                                                          
     influence  of an  alcoholic  beverage, an  intoxicating                                                                    
     liquor, an inhalant, or [AND] a controlled substance.                                                                  
Number 1606                                                                                                                     
MS. PARKES added:                                                                                                               
     If  someone  wants  to  attack   the  validity  of  the                                                                    
     [Intoximeter  3000] and  needs to  talk about  how much                                                                    
     alcohol  they've  had  to say  the  Intoximeter  wasn't                                                                    
     accurate  at  the  time of  the  test,  that  certainly                                                                    
     should be  admissible.  And  this is a policy  call for                                                                    
     the legislature.  It appeared  to us that the intent in                                                                    
     the original drafting of the  DUI statute - [which] ...                                                                    
     said, within four hours of  driving, you get tested and                                                                    
     you're  .08,  you're  considered  under  the  influence                                                                    
     under  the statute  - was  [that that  would] ...  be a                                                                    
     presumption.   And we  feel that  the big  gulp defense                                                                    
     of, "Well,  ... my blood  alcohol was rising,"  sort of                                                                    
     thwarts  the legislative  intent.   If the  legislature                                                                    
     doesn't believe  that that thwarts  it, then  you would                                                                    
     want to reject this provision ....                                                                                         
MS. PARKES, in  response to a comment, remarked  that the defense                                                               
[currently used]  is, "My  blood alcohol was  rising, and  if I'd                                                               
only made  it home  before I  got stopped,  I wouldn't  have been                                                               
drunk driving."                                                                                                                 
Number 1789                                                                                                                     
REPRESENTATIVE GARA  posed a  scenario in  which someone  has two                                                               
drinks, drives  home, starts  "partying like  a maniac,"  and the                                                               
police, who've received a call,  come, test that person, and find                                                               
that  he/she has  a  BAC level  of  .15.   He  asked whether  the                                                               
aforementioned  proposed amendment  would  allow  that person  to                                                               
offer  the defense  that he/she  had only  had two  drinks before                                                               
MS. PARKES pointed  out that the person really ought  to speak to                                                               
how much alcohol he/she consumed  after driving.  That's the real                                                               
defense, and that's preserved, she remarked.                                                                                    
REPRESENTATIVE GARA  said:   "And you could  talk about  what you                                                               
had before you  started driving, too, right?  ... Frankly, that's                                                               
the more important part."                                                                                                       
MS.  PARKES remarked,  "To rebut  or explain  the results  of the                                                               
chemical test."                                                                                                                 
REPRESENTATIVE  GARA offered,  "I don't  really want  to have  to                                                               
prove how  much I had  to drink  after I got  home; I want  to be                                                               
able to  prove that  I only had  two drinks before  I got  in the                                                               
MS.  PARKES responded,  "Under those  circumstances, that  is not                                                               
what we're intending to exclude now."                                                                                           
REPRESENTATIVE  GARA  asked,  "But  it's clear  in  the  amending                                                               
language that  you can show that  I only had two  drinks before I                                                               
got in the car?"                                                                                                                
MS.  PARKES  said  she'd  have  to look  at  the  DOL's  proposed                                                               
amendment to see if it addresses the aforementioned scenario.                                                                   
CHAIR McGUIRE surmised that a  person's conduct after he/she gets                                                               
out of the car  can be used as a defense, and  that a person will                                                               
still  have  the   ability  to  question  the   validity  of  the                                                               
Intoximeter.   What they  didn't want to  allow, she  posited, is                                                               
the argument that  it was that last drink before  leaving the bar                                                               
that "put you  over the edge and that you  weren't drunk when you                                                               
were driving  - it was that  you were tested later  and that huge                                                               
drink that you took, before you left, kicked in."                                                                               
MS. PARKES concurred.                                                                                                           
Number 1887                                                                                                                     
MS.   BRINK   opined  that   under   the   scenario  offered   by                                                               
Representative  Gara, the  jury would  be instructed  to disallow                                                               
those  facts as  a  defense  because a  portion  of the  proposed                                                               
amendment stipulates that  it is not a defense  that the chemical                                                               
test  did not  measure  the  blood alcohol  at  the  time of  the                                                               
operating or  driving.  So, although  a person may be  allowed to                                                               
offer evidence,  the jury will be  told that it is  not a defense                                                               
that the chemical  test did not measure the blood  alcohol at the                                                               
time of the operating or driving.                                                                                               
MS. PARKES  disagreed, saying  that "this  does not  preclude the                                                               
alcohol that  was then  [drunk] at the  house after  the driving,                                                               
and  could be  introduced to  explain why  the chemical  test was                                                               
REPRESENTATIVE GARA  suggested that they write  an amendment that                                                               
says a person  shall be allowed to show what  he/she had to drink                                                               
before driving.                                                                                                                 
MS. PARKES  argued, however,  that the  real defense  pertains to                                                               
the alcohol  that was consumed after  driving; evidence regarding                                                               
that  is what  will show  that  a person  was not  DUI, and  that                                                               
evidence would still  be admissible.  She noted that  part of the                                                               
proposed  amendment will  alter  "when" to  "if"  in the  current                                                               
statute because  the court, in  the Conrad (ph) case,  focused on                                                             
that  current  statutory  language  and decided  that  it  didn't                                                               
clearly disallow a big gulp defense.                                                                                            
REPRESENTATIVE  SAMUELS offered  his belief  that everyone  is in                                                               
agreement with regard  to the intent, and now they  just need the                                                               
right language.                                                                                                                 
Number 2080                                                                                                                     
MS. BRINK  turned attention  to Section 27  and said  she doesn't                                                               
like  Section   27  because  it   doesn't  offer   protection  to                                                               
juveniles.  She elaborated:                                                                                                     
     The reason  we treat juveniles differently  and we have                                                                    
     their information be  confidential is because, although                                                                    
     juveniles  don't  have  the (indisc.)  capabilities  of                                                                    
     processing  information like  adults -  their brain  is                                                                    
     not sufficiently  developed - many, many  juveniles who                                                                    
     come (indisc.)  are rehabilitatable and  never reappear                                                                    
     in the  adult [system].   And so  we keep  their record                                                                    
     and their cases confidential.                                                                                              
     I understand wanting  to be able to  protect members of                                                                    
     the public,  but if we were  going to do that,  I would                                                                    
     suggest  we  limit  [it] strictly  to  sexual  offenses                                                                    
     [and] we  limit [it]  strictly to adjudications.   What                                                                    
     about  a case  that's investigated  and dismissed?   Or                                                                    
     [a] case where the juvenile  is acquitted at trial?  We                                                                    
     don't want to  give that information to  members of the                                                                    
     public.   So  I would  like to  pick and  chose between                                                                    
     these two version to find  the one that provides, first                                                                    
     of  all, the  most-needed  information  for reasons  of                                                                    
     public safety - and  I think that's adjudication having                                                                    
     to  do with  [sexual] offenses  - upon  request, giving                                                                    
     that to members of the public.                                                                                             
MS. BRINK  noted that although  a proposed amendment  was drafted                                                               
with the  assistance of  the Division  of Juvenile  Justice (DJJ)                                                               
and stipulates  that the  department shall  formulate regulations                                                               
regarding disclosure, nothing in  the bill precludes someone from                                                               
giving out  information before those regulations  are actually in                                                               
place.   Additionally, nothing in  the bill precludes  members of                                                               
the  public,  once  they receive  information,  from  putting  up                                                               
flyers all  over the neighborhood  saying that "Johnny"  is being                                                               
investigated for  a sexual offense  by the DJJ, and  include that                                                               
child's  picture  and   home  address  on  those   flyers.    She                                                               
characterized the aforementioned as a  good reason for not freely                                                               
giving out this sort of confidential information.                                                                               
Number 2215                                                                                                                     
PATTY  WARE,  Director,  Division   of  Juvenile  Justice  (DJJ),                                                               
Department  of  Health  &  Social   Services  (DHSS),  said  that                                                               
although she understands the PDA's  concerns, the language in the                                                               
proposed  amendment  contains  "may"  rather  than  "shall"  with                                                               
regard to  disclosing information.   She offered that  the intent                                                               
of  Section 27  is to  allow  the Office  of Children's  Services                                                               
(OCS) employees and DJJ employees  to share information when it's                                                               
appropriate.    Noting  that  Section 27  proposes  to  alter  AS                                                               
47.12.310, she  relayed that under  existing AS  47.12.315, there                                                               
is a fair  amount of information that the DJJ  can share with the                                                               
public,  information  related  to specific  offenses  though  not                                                               
solely  limited  to  cases  that  have  been  adjudicated.    For                                                               
example, when a juvenile is 13 years  of age or older and the DJJ                                                               
is going to  file a petition on a felony  crime against a person,                                                               
or a crime  that involves a deadly weapon, arson  in the first or                                                               
second  degree, burglary  in the  first  degree, distribution  of                                                               
child pornography,  promoting prostitution  in the  first degree,                                                               
or  misconduct  involving a  controlled  substance,  the DJJ  can                                                               
disclose that information to the public.                                                                                        
MS. WARE said  that the DJJ is committed to  working closely with                                                               
the DOL  and the OCS  to ensure  that regulations are  crafted to                                                               
address concerns about  treating juvenile information differently                                                               
than adult information.  In  response to questions, she said that                                                               
the DJJ  is already able to  share information with the  OCS, but                                                               
the OCS cannot  then share that information with a  member of the                                                               
public;  that AS  47.12 addresses  the  issue of  inappropriately                                                               
releasing  information;  and  that  the  penalty  is  a  Class  B                                                               
TAPE 04-53, SIDE B                                                                                                            
Number 2381                                                                                                                     
CHAIR McGUIRE surmised, then, that  that penalty would also apply                                                               
to the provision proposed via Section 27.                                                                                       
MS. WARE, in  response to a further question,  offered her belief                                                               
that Section 27  would not expand the amount  of information that                                                               
may be shared with the public;  rather, it would just ensure that                                                               
all relevant agencies would be  allowed to share information that                                                               
is currently available to the public.                                                                                           
MS. BRINK offered  her belief that the  disclosure prohibition in                                                               
AS 47.12.320 only  applies to state officials  or employees, and,                                                               
thus,  there is  no punishment  for a  member of  the public  who                                                               
inappropriately disseminates information.   She acknowledged that                                                               
it  is  hard  to  find  a  balance  between  protecting  juvenile                                                               
offenders and protecting  the public, but asked  the committee to                                                               
err on the  side of ensuring control  of confidential information                                                               
once it's  released and limiting  disclosure to  circumstances in                                                               
which there is a genuine danger to the public.                                                                                  
CHAIR McGUIRE said  she did not see that the  type of information                                                               
that could be released is being changed by Section 27.                                                                          
MS. BRINK said:                                                                                                                 
     The way  I read  [AS] 47.12.310, which  has to  do with                                                                    
     agency  records, we  have to  go  to [subsection]  (a),                                                                    
     [and the] amendment starts with  [subsection] (c).  But                                                                    
     in  [subsection] (a),  if  you're  complying [with  AS]                                                                    
     47.12.310, [it] allows  [disclosure of] all information                                                                    
     and social  records pertaining to  a minor  prepared by                                                                    
     or  in  the  possession   of  [a]  federal,  state,  or                                                                    
     municipal agency or employee.                                                                                              
CHAIR McGUIRE  remarked that that  point is critical.   She asked                                                               
whether a minor's criminal record  is destroyed when he/she turns                                                               
18,  and what  happens  to "the  trail of  that  record" if  that                                                               
record had to be disclosed.                                                                                                     
MS. PARKES  explained that there  will be three sets  of records:                                                               
the court system's records - she  remarked that did not know what                                                               
occurs  with those  records; the  DHSS's records  - she  surmised                                                               
that the  DHSS must  have a policy  regarding those  records; and                                                               
the  DOL's  records -  she  said  that  the  DOL keeps  files  on                                                               
delinquency cases until  the person is 21  because sometimes that                                                               
information can  be used if  the person  gets into trouble  as an                                                               
adult,  and  that  those  records  are  archived  and  ultimately                                                               
Number 2031                                                                                                                     
MS.  WARE  said that  something  similar  occurs with  the  DJJ's                                                               
records.   She noted that  although the  DJJ can disclose  a fair                                                               
amount of  information to the  public, it does not  disclose that                                                               
information  unless   requested.     Once  that   information  is                                                               
disclosed, though,  nothing in existing  statute limits  what can                                                               
be  done with  it  -  it becomes  public  information  - and  the                                                               
proposed changes will not alter that.                                                                                           
CHAIR  McGUIRE said  that one  hopes that  when a  member of  the                                                               
public asks for  such information, he/she does  so for legitimate                                                               
reasons,  because  that information  could  be  used against  the                                                               
minor from then on.  This is of concern to her, she remarked.                                                                   
CHAIR McGUIRE,  after ascertaining  that the  representative from                                                               
the Office  of Public  Advocacy (OPA) was  willing wait  until HB                                                               
244's  next hearing  to testify,  suggested that  any forthcoming                                                               
amendments from interested parties should be in written format.                                                                 
[The committee  had a  brief discussion  regarding when  the bill                                                               
would be heard next; HB 244 was held over.]                                                                                     
Number 1673                                                                                                                     
There being no  further business before the  committee, the House                                                               
Judiciary Standing Committee meeting was adjourned at 5:55 p.m.                                                                 

Document Name Date/Time Subjects