03/12/2003 01:04 PM House JUD
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 12, 2003
1:04 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson, Vice Chair
Representative John Coghill
Representative Jim Holm
Representative Ralph Samuels
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 114
"An Act relating to the issuance of a search warrant."
- HEARD AND HELD; ASSIGNED TO SUBCOMMITTEE
HOUSE BILL NO. 77
"An Act allowing certain motor vehicles to be operated while
unattended."
- HEARD AND HELD
HOUSE BILL NO. 83
"An Act adopting a version of the Revised Uniform Arbitration
Act; relating to the state's existing Uniform Arbitration Act;
amending Rules 3, 18, 19, 20, and 21, Alaska Rules of Civil
Procedure, Rule 601, Alaska Rules of Evidence, and Rule 402,
Alaska Rules of Appellate Procedure; and providing for an
effective date."
- MOVED CSHB 83(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 49
"An Act relating to the DNA identification registration system;
and providing for an effective date."
- MOVED CSHB 49(JUD) OUT OF COMMITTEE
PREVIOUS ACTION
BILL: HB 114
SHORT TITLE:ISSUANCE OF SEARCH WARRANTS
SPONSOR(S): RLS BY REQUEST
Jrn-Date Jrn-Page Action
02/19/03 0253 (H) READ THE FIRST TIME -
REFERRALS
02/19/03 0253 (H) JUD
02/19/03 0253 (H) REFERRED TO JUDICIARY
03/07/03 (H) JUD AT 1:00 PM CAPITOL 120
03/07/03 (H) Meeting Postponed to 03/10/03
03/10/03 (H) JUD AT 1:00 PM CAPITOL 120
03/10/03 (H) <Bill Hearing Postponed to
3/12>
03/12/03 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 77
SHORT TITLE:RIGHT TO LEAVE CAR RUNNING
SPONSOR(S): REPRESENTATIVE(S)LYNN
Jrn-Date Jrn-Page Action
02/05/03 0131 (H) READ THE FIRST TIME -
REFERRALS
02/05/03 0131 (H) JUD
02/05/03 0131 (H) REFERRED TO JUDICIARY
02/07/03 0155 (H) COSPONSOR(S): CROFT
03/12/03 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 83
SHORT TITLE:REVISED UNIFORM ARBITRATION ACT
SPONSOR(S): REPRESENTATIVE(S)BERKOWITZ
Jrn-Date Jrn-Page Action
02/07/03 0148 (H) READ THE FIRST TIME -
REFERRALS
02/07/03 0148 (H) JUD
02/07/03 0148 (H) REFERRED TO JUDICIARY
02/10/03 0174 (H) COSPONSOR(S): MOSES
03/07/03 (H) JUD AT 1:00 PM CAPITOL 120
03/07/03 (H) Meeting Postponed to 03/10/03
03/10/03 (H) JUD AT 1:00 PM CAPITOL 120
03/10/03 (H) Heard & Held
MINUTE(JUD)
03/12/03 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 49
SHORT TITLE:EXPAND DNA DATABASE
SPONSOR(S): REPRESENTATIVE(S)ANDERSON, HAWKER
Jrn-Date Jrn-Page Action
01/21/03 0044 (H) PREFILE RELEASED (1/17/03)
01/21/03 0044 (H) READ THE FIRST TIME -
REFERRALS
01/21/03 0044 (H) JUD, FIN
01/21/03 0044 (H) REFERRED TO JUDICIARY
01/31/03 0107 (H) COSPONSOR(S): HOLM, SAMUELS
02/12/03 0201 (H) COSPONSOR(S): LYNN, KOOKESH,
WOLF,
02/12/03 0201 (H) WILSON
02/14/03 0219 (H) COSPONSOR(S): WEYHRAUCH
02/18/03 0232 (H) COSPONSOR(S): GATTO
02/21/03 0274 (H) COSPONSOR(S): SEATON
02/28/03 (H) JUD AT 1:00 PM CAPITOL 120
02/28/03 (H) Heard & Held
MINUTE(JUD)
03/05/03 0451 (H) COSPONSOR(S): HEINZE
03/12/03 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
DOUG WOOLIVER, Administrative Attorney
Administrative Staff
Office of the Administrative Director
Alaska Court System (ACS)
Anchorage, Alaska
POSITION STATEMENT: Presented HB 114 on behalf of the
administration.
MATTHEW C. LEVEQUE, Lieutenant
Field Operations Coordinator
Division of Alaska State Troopers
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
114.
LINDA WILSON, Deputy Director
Public Defender Agency (PDA)
Department of Administration
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
114.
WILLIAM MOFFATT, Staff
to Representative Bob Lynn
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 77 on behalf of the sponsor,
Representative Lynn.
RON G. KING, Program Manager
Air Non-Point & Mobile Sources
Division of Air & Water Quality
Department of Environmental Conservation (DEC)
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
77.
JENNIFER RUDINGER, Executive Director
Alaska Civil Liberties Union
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to HB 49.
THERESA WILLIAMS, President
Parents of People (POP)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 49.
LAUREE HUGONIN, Executive Director
Alaska Network on Domestic Violence & Sexual Assault (ANDVSA)
Juneau, Alaska
POSITION STATEMENT: Suggested amendments and responded to
questions during discussion of HB 49.
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
HB 49.
CHRIS BEHEIM, Director
Scientific Crime Detection Laboratory ("Crime Lab")
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: Testified on HB 49, Version I, and answered
questions.
JUANITA HENSLEY, Special Assistant
Office of the Commissioner
Department of Public Safety (DPS)
Juneau, Alaska
POSITION STATEMENT: Testified on HB 49, Version I, and answered
questions.
ACTION NARRATIVE
TAPE 03-19, SIDE A
Number 0001
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:04 p.m. Representatives
McGuire, Holm, Coghill, Samuels, Gara, and Gruenberg were
present at the call to order. Representative Anderson arrived
as the meeting was in progress.
HB 114 - ISSUANCE OF SEARCH WARRANTS
Number 0099
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 114, "An Act relating to the issuance of a
search warrant."
Number 0122
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,
Office of the Administrative Director, Alaska Court System
(ACS), explained that HB 114 was requested by the Alaska Supreme
Court in order to clear up a technical problem with the way in
which police officers are allowed to petition the court for the
issuance of a search warrant. Right now, a police officer who
needs a search warrant has a couple of options. He or she can
either submit an affidavit to the court that explains the
reasons for the warrant, or he/she can appear in person. And
that system works just fine as long as the police officer and
the judge are in the same community. It doesn't work so well
when they're not in the same community. The current statute
allows officers to fax in affidavits in support of search
warrants and [to provide] telephonic testimony in support of
search warrants, but only under very narrow circumstances:
neither can be done unless the item to be searched is in danger
of being lost or destroyed.
MR. WOOLIVER relayed that this current standard is one that is
simply unmet in lots of circumstances. A common situation
involves bootleg liquor in villages. In Togiak, for example,
village police seized a container they had reason to believe
contained bootleg alcohol. However, since they had seized it -
they had it in their possession - it was no longer in danger of
being lost or destroyed; therefore, the officers could neither
fax in their application nor testify telephonically in support
of a search warrant. The current practice in such situations,
he relayed, is for the officer in the field to phone in to an
Alaska State Trooper (AST) office in a larger community - for
example, Dillingham - and relay the circumstances of the
situation to a trooper there, whereupon that trooper either
fills out an affidavit and submits it to a court or testifies in
person before the court.
MR. WOOLIVER said that another situation which occurs frequently
involves the road system. He offered the following as an
example. In a situation involving a drug case in Talkeetna, a
couple of Alaska State Troopers will be called to a residence at
night, and when they arrive, they detect the distinct odor of a
"marijuana grow," perhaps in a shed by the house. Since the
troopers are there on location, the evidence in the shed is no
longer in danger of being lost or destroyed. The common
practice in such situations has been for one Trooper to stay at
the site - in Talkeetna, in this example - while the other
trooper drives all the way into Anchorage - because [in this
example] that's where a magistrate is available at night -
testifies before the court, gets a search warrant, and drives
all the way back to Talkeetna to serve it. In the meantime, the
other officer, and, if necessary, perhaps other officers as
well, must stay on site all this time to ensure that nothing
happens to the evidence. Mr. Wooliver characterized this delay
as a pointless waste of time for both the officer driving into
Anchorage and for the officer waiting at the site "for four
hours."
Number 0362
MR. WOOLIVER explained that HB 114 does two things. One, it
would allow faxed affidavits unconditionally. He relayed that
according to one judge, a fax is just another way to get the
mail, and whether the affidavit that's sitting on the judge's
desk arrived because someone delivered it in person through the
court clerk or because the court clerk picked it up off the fax
machine is simply irrelevant for the judge's purposes. He
opined that this feature would "help solve the Togiak
situation"; the officers in Togiak could directly fax the court,
rather than having to go through the AST office in Dillingham.
The other change proposed by HB 114 would expand the
circumstances under which a court could accept telephonic
testimony. This change would affect cases in which the delay
that would otherwise occur, if they weren't to do that, would
interfere with an ongoing investigation. The purpose of that
change, he remarked, is to alleviate the need for the troopers
in the Talkeetna example to drive all the way into Anchorage.
MR. WOOLIVER characterized the changes created by HB 114 as,
"Two fairly small, common-sense fixes to what is admittedly not
a huge problem, but it seems like a needless inefficiency in the
system." He relayed that in talking with the AST and the
Department of Law (DOL), there is one change that has been
suggested for HB 114: on page 1, line 11, after "in", delete "a
significant". He suggested that the term, "a significant" is
unnecessary, and that it might possibly add more confusion. In
closing, he pointed out that HB 114 does not, in any way, change
the standard that must be met before a judge can issue a search
warrant. All HB 114 does is allow a more efficient way to get
the question before the judge so that he/she can rule on the
merits of the application, he opined.
REPRESENTATIVE GRUENBERG asked what the term "or other
appropriate means" refers to.
MR. WOOLIVER replied that that term is part of existing language
and has been in place since 1982.
Number 0556
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1,
which reads [original punctuation provided]:
Page 1, line 11:
Following first "in"
Delete "a significant"
CHAIR McGUIRE asked whether there were any objections. There
being no objection, Amendment 1 was adopted.
REPRESENTATIVE COGHILL asked whether there are protocols in
place to ensure that only authorized personnel provide
telephonic testimony.
MR. WOOLIVER said that there are procedures in place, adding,
"You have to be sworn in by the court, and it is on the record."
He pointed out that this method is already allowed under current
statute, though only in narrow circumstances.
The committee took an at-ease from 1:15 p.m. to 1:17 p.m.
REPRESENTATIVE GARA said he had thought that in order to get a
search warrant, a law enforcement officer had to either present
himself/herself personally to a judicial officer "or do it by
telephone." "I didn't realize that you could get a search
warrant with just a paper affidavit," he added. He offered his
observation that HB 114 doesn't appear to be "changing that rule
any."
MR. WOOLIVER confirmed that currently, a law enforcement officer
can get a search warrant with an affidavit without having to
present in-person testimony before the court.
REPRESENTATIVE GARA opined that the more checks there are to
ensure that a search warrant is valid, the better. He also
opined that the current system which requires an Anchorage
police officer to come before the court to ask for a search
warrant is a good one. He said that he did not want to make it
easier for police officers in urban areas to avoid "the
testimony part." The way HB 114 is currently written, he noted,
a telephonic application is acceptable if it can be shown that
testifying in person will cause delay." But since testifying in
person will always cause delay, he remarked, the only thing
further that needs to be done is for the officer to prove that
it might also interfere with an ongoing investigation, which
could conceivably be claimed if the officer is forced to wait in
court for a half hour.
Number 0783
REPRESENTATIVE GARA made a motion to adopt Amendment 2, on page
1, line 14, after "might", to insert "materially". He explained
that this change would force the officer seeking a search
warrant to show that the delay "might materially interfere with
an ongoing investigation". Merely because an officer has to sit
in court for a half hour is not sufficient, he opined.
REPRESENTATIVE SAMUELS objected.
MR. WOOLIVER remarked that Amendment 2 might create the same
potential problems that the term "a significant" posed. He
offered that judges tend to prefer in-person testimony whenever
possible, and suggested that they will use their discretion to
ensure that officers in urban areas do not abuse the new
provisions of HB 114.
REPRESENTATIVE SAMUELS agreed with Mr. Wooliver. Additionally,
he suggested that "materially" would be open to each individual
judge's interpretation.
REPRESENTATIVE GARA said that his concern is that they are
relaxing the standards that apply when the government is being
given the authority to obtain a search warrant to go into
somebody's home. He relayed that he did not want the court to
be able to interpret HB 114 as a "green light" to start doing
"facsimile search-warrant requests," which, he opined, could be
the way the bill will be interpreted, since neither "a
significant" nor "materially" is included in the language. He
elaborated:
I think it's a good thing to require somebody to stare
somebody in the eye and prove that they're not
flinching when they ask for something. It works very
well throughout the criminal [justice] system. So,
... I would request that the term "materially" be put
in there. I would certainly state on the record that
the Talkeetna situation - the out-of-town situation
that the [ACS] mentioned - would constitute a material
interference. And to the extent the [ACS] were
comforted with ... the sponsor of the amendment's
intention, that we do intend to allow the Talkeetna
folks and folks from out of town who are trying to get
search warrants in a more expeditious way, that we
agree with that, and that even with the term
"materially" in the bill, we agree that that's an
appropriate way to get a search warrant. But I'm not
thrilled about going any further than that.
Number 1084
REPRESENTATIVE COGHILL said that although he tended to agree
with the discussion, he didn't know that "putting it in the
language of this bill will be important." He asked, if a court
were to see an increase in faxed requests within an urban area,
whether that would create enough of a red flag within a district
that the court could then start requiring in-person requests
instead. He said that he wants assurance that the ability to
fax in search warrant requests will not be abused.
MR. WOOLIVER said that under HB 114, faxed requests would always
be allowed, in the same way that written affidavits are always
allowed without the need for personal testimony; it makes no
difference to the court whether an affidavit is dropped off or
faxed in. He explained that oftentimes, there is no personal
testimony on an affidavit, even under current law, and to the
extent that the court wants personal testimony, HB 114 would
allow that to occur via the telephone in more cases, though
still not in all cases.
REPRESENTATIVE ANDERSON remarked that he agrees with Mr.
Wooliver's comments regarding the possible effects of Amendment
2, and with Representative Samuels's comments regarding
interpretation.
Number 1230
MATTHEW C. LEVEQUE, Lieutenant, Field Operations Coordinator,
Division of Alaska State Troopers, Department of Public Safety
(DPS), on the issue of Amendment 2, said:
At this point, a Trooper can simply present a search
warrant affidavit and never see the judge, and [there
are] a number of cases I can remember where I never
got to see the judge. So the eyeball-to-eyeball
scrutiny doesn't happen ..., in many cases, even when
a trooper or a police officer is collocated - as our
courthouse in Palmer, for example, and the Trooper
post are - virtually within a couple of blocks of one
another. So I don't believe ... that the eyeball-to-
eyeball issue is significant from the Troopers'
perspective.
It does seem that Representative Gruenberg's amendment
that passed with respect to deleting the words "a
significant" is somewhat put aside by adding back in
"materially". And I don't believe that any law
enforcement agency is interested in trying to abuse a
judge's discretion, in particular because we're just
going to find that if there are issues with the search
warrant, that they'll come up at evidentiary hearings
later. And as a matter of fact, we would prefer to
find judges who will closely scrutinize our search
warrant applications to find flaws so that we don't
run down directions that ... are inappropriate.
Number 1353
LINDA WILSON, Deputy Director, Public Defender Agency (PDA),
Department of Administration, said:
As previously testified, this bill would loosen the
circumstances under which a judge or magistrate could
grant a search based on telephonic testimony, and also
fully allow all faxed affidavits sent in application
of a search warrant, without any special findings
whatsoever. A police officer in Anchorage could fax
an affidavit, and do no more than that, and let the
application lie on the faxed affidavit - no other
showing required. Under current law, the norm is that
you require a police officer or a Trooper seeking a
search warrant to deliver an original sworn affidavit
or mail it, or appear personally to testify in
application for a search warrant. This is because
under our constitution, we require that a search
warrant not issue but on probable cause and that it's
supported by oaths or affirmation. This is based on
our constitution - Alaska and federal constitutions;
in ours it's Article I, Section 14.
An exception was carved out in the current statute
that is sought to be amended by this bill, to allow
faxed affidavits and telephonic testimony. So, under
current law, you can submit a faxed affidavit and
telephonic testimony instead of personal testimony or
an original affidavit, but only when the delay in
appearing personally or presenting an original
affidavit will result in the loss or destruction of
the evidence that is sought to be searched or
destroyed. Now this bill seeks to eliminate any
restriction whatsoever on the use of faxed affidavits
in seeking a search warrant. This will likely result
in faxes becoming the norm, not the exception, even in
urban communities, not just in the targeted rural
situations identified, where the officer seeking the
warrant and the magistrate are in different
communities.
Number 1452
MS. WILSON continued:
In our [Alaska Rules of Criminal Procedure] governing
grand jury proceedings ... -- and the reason I bring
them up is because they are similar to search warrant
proceedings in that they are one-sided; there's no
right for the defendant or the owner of the property
to be searched to participate in the proceedings or to
present his or her arguments or evidence .... In a
grand jury situation, telephonic testimony is allowed
only when the witness that is speaking - to testify -
telephonically would be required to travel more than
50 miles to the location where the grand jury is
sitting, or they live in a place from which people
customarily travel by air to the place where the grand
jury is sitting.
Limiting the acceptance of both faxed affidavits and
telephonic testimony in support of a search warrant to
a similar situation as presented in a grand jury
context - with the added requirements that the delay
in obtaining a search would otherwise result if the
officer had to appear personally or send an original
affidavit, and that that delay would result in the
loss or destruction of property or interference with
an ongoing investigation - would certainly keep a
tighter rein on the process for obtaining a search
warrant than suggested in this bill.
Now, why is the Public Defender Agency concerned? And
why should there be concern, on your part, with the
process for obtaining a search warrant? [It's]
because it's very difficult to suppress evidence
seized pursuant to a search warrant. They are given
preference of validity, and a great deference is given
to a magistrate's determination of probable cause for
the issuance of a search warrant. A search warrant
will not be overturned unless there is an abuse of the
magistrate's discretion, and the evidence is always
viewed in a light most favorable to upholding the
search warrant. So there's definitely a deference
given to a search warrant.
Number 1569
MS. WILSON went on to say:
Now, the [PDA] has a concern with the scope of this
bill because it seems to be broader than the problem
that was identified specific to Bush areas, and it may
not be that serious of a problem, and the scope of
this bill may be larger than that needed. ... There is
also a concern that if it were so serious, we
certainly probably would have heard and had proposed
legislation from [the Department of Public Safety
(DPS)] representing the Troopers and the police
officers involved, [rather than from just the ACS].
Would there be more challenges under this proposed
bill if it were to pass? Possibly, yes, but the
challenges would certainly be difficult.
Under this exact same statute, to suppress evidence
seized or searched under a search warrant issued under
these special circumstances proposed, which would be a
fax or one telephonically, the statute requires there
has to be a finding of bad faith. And that's under
[subsection] (f) of this statute, ... [AS 12.35.015,
which] provides that absent a finding of bad faith,
evidence obtained under a search warrant issued under
this section is not subject to a motion to suppress on
the ground that the circumstances did not support its
issuance under (a) of this section. And (a) is the
[subsection] that's being proposed to be amended.
But there certainly may be situations where, in a fax,
let's say, where let's say one or more pages of a
faxed affidavit that wasn't paginated are not received
by the courts, but yet the search warrant is issued
based upon the pages received. It may not have been,
had all the pages been received. But if there was no
finding of bad faith, does the search warrant stand?
... An original affidavit has that seal of the notary
that is very obvious and visible. A faxed [affidavit]
would not have that authenticity. So there may be
challenges to the authenticity of the faxed affidavit
on the question of who prepared it, [and] whether ...
the original matches the one that was sent.
There also may be ... challenges to the circumstances
that supported the testimony ... - the special
procedures of the telephonic testimony. For example,
would the personal testimony have really resulted in a
delay in obtaining or executing a search warrant? And
would the delay really have interfered with an ongoing
investigation? And from the description of wanting to
modify it by the word ["materially"], it certainly
raises questions to having most applications for
search warrants, even in Anchorage, submitted
telephonically, because, arguably, any inconvenience
in going to the courthouse could arguably result in
interfering with an ongoing investigation. So that
language, also, is pretty broad.
Number 1703
MS. WILSON concluded:
So while the [PDA] recognizes that it may be difficult
and challenging, sometimes, for an officer to obtain a
search warrant in a remote location when the community
is away from the magistrate, this proposed legislation
... seems too broad for the narrow problem identified,
and may not be necessary, especially in light of the
overarching constitutional rights and protections that
are involved in protecting people from unreasonable
searches and seizures. I thank you very much for
allowing me to testify ....
REPRESENTATIVE GARA withdrew Amendment 2. He offered that it
does not do what he intended it to do. In addition, he said
that he no longer supports the bill because it doesn't do what
it's intended to do. He elaborated:
I think the bill could be much better drafted, where
the perceived problem relates to out-of-town police
officers and the inconvenience or sometimes
impossibility of getting into town in time. And I'm
sympathetic to that, and I think we could deal with
that problem, but I don't think this bill does it.
This bill is written too broadly. So my amendment
doesn't solve the problem, but I don't think the bill
solves the problem.
CHAIR McGUIRE asked Mr. Wooliver to comment on the language used
with regard to grand juries as mentioned by Ms. Wilson. She
said she likes that language, and opined that perhaps it might
be a better solution to the problem.
MR. WOOLIVER remarked that he has not looked "at the grand jury
language" and thus does not know what such an amendment might
necessarily look like. He reiterated that since affidavits can
currently be mailed in, from the court's perspective it makes no
difference whether an affidavit has been mailed in or faxed in.
The constitutional standard for issuing a search warrant doesn't
change; probable cause must still be shown. He said that he is
not aware that lost fax pages are a problem, and indicated that
he does not see the possibility of not having the final page
with the signature and the notary as being a significant
problem.
CHAIR McGUIRE asked: "Is the bill designed to get at the
problem that you stated? Or is it really designed to open up
the law to allow for faxes within an urban area?" She opined
that this should be decided, adding that it is either one way or
the other.
Number 1874
MR. WOOLIVER said that HB 114 would do both. It would allow any
faxed affidavit, just as any affidavit can be mailed. He
suggested that when technology improves, [the ACS] will be back
before the legislature petitioning for the allowance of
electronic transmissions. He noted that the provision in HB 114
regarding telephonic testimony is a minor change to the current
statute, which is more narrowly tailored to accept other
circumstances.
CHAIR McGUIRE, on the issue of faxed affidavits, remarked that
the concern of many revolves around the fact that an affidavit
involves minimal steps. The question being raised, she
observed, is, as a policy, does the legislature want to
eliminate that extra step of testifying in person, which some
believe is one more check to ensure that people are not abusing
the system. Chair McGuire said that she agrees with Ms. Wilson
with regard to the difficulty of suppressing evidence obtained
by a search warrant. Chair McGuire said that her original
understanding of the bill was that it would address a problem
encountered in rural areas; she did not understand that it would
open up, to urban areas, a method of faxing in affidavits. She
opined that faxing in affidavits will become the norm, not the
exception: "Why would you take the time to go down to the
courthouse with the original affidavit when you don't have to?"
REPRESENTATIVE SAMUELS said that to him, there would be no
difference between faxing in an affidavit and mailing it.
REPRESENTATIVE GRUENBERG said that although he generally
supports HB 114, he does see some problems with it. He
recommended that the bill be worked on a bit and changed so that
there is one provision dealing with affidavits and another
provision dealing with oral testimony. With regard to
affidavits, he relayed that he has had a lot of experience in
his civil practice dealing with faxed documents, "and it's quite
an issue." There can be problems with faxed documents, he said,
adding that "you can have a lengthy affidavit of 25 pages or
[more] ... and [with] somebody just leafing through it very
quickly for the purpose of ... an emergency search warrant,
which often have to be done quickly, they could miss a page."
REPRESENTATIVE GRUENBERG also relayed that he has litigated the
issue of the validity of a signature. Sometimes the signature
is light, or is written in blue or red ink, and it doesn't come
through very well. So on this point, with regard to a provision
dealing with affidavits, he said that he would like the bill
redrafted to require the judge to make some findings on the
acceptance of the faxed affidavit in place of the original, and
to require that the original affidavit be filed as well. In
this way, it can later be verified by the attorneys or during a
review in court that the faxed affidavit is in fact a true and
complete copy of the original and that the signature is genuine.
He remarked that he has had a trial regarding whether a
signature was forged.
REPRESENTATIVE GRUENBERG, on the issue of oral testimony,
explained that the time constraints regarding a grand jury are
much different; in a grand jury, jurists are determining whether
there is probable cause to indict a person. On the other hand,
with a search warrant, there can be a real emergency. "So I see
the time exigencies being somewhat different," he concluded.
Number 2197
CHAIR McGUIRE announced that for the purpose of creating
acceptable substitute language, HB 114 would be [held over and]
assigned to a subcommittee consisting of Representative Coghill,
Samuels, and Gruenberg.
HB 77 - RIGHT TO LEAVE CAR RUNNING
Number 2237
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 77, "An Act allowing certain motor vehicles to be
operated while unattended."
Number 2248
WILLIAM MOFFATT, Staff to Representative Bob Lynn, Alaska State
Legislature, said on behalf of Representative Lynn, sponsor,
that HB 77 was introduced in response to a January 29, 2003,
Anchorage Daily News article titled "REMOTE CONTROL Starting car
from afar is just the ($40) ticket." He relayed that the
article describes how a lady received a traffic ticket for
starting her unattended car with a remote starter. He said that
the violation is based on a 1978 Anchorage municipal code.
However, he added, current state law also prohibits people from
leaving unattended vehicles running. He opined that this state
prohibition is obsolete.
MR. MOFFATT referred to a legislative research report dated
February 18, 2003, which relayed [that the Consumer Electronics
Association estimates] that approximately one million remote car
starters were sold [industry-wide] in 2002, with a typical
increase in sales of 10 to 15 percent per year. He mentioned
that General Motors Corporation has announced plans to offer
remote starters as a factory option on certain 2004 automobile
models. He said that according to six dealers in Anchorage,
11,000 remote starters were sold in 2002; and according to three
dealers in Fairbanks, 4,400 were sold in 2002. He posited that
these numbers probably represent only 40 to 50 percent of remote
starter sales statewide. He offered his estimation that
approximately 10 to 15 percent of all Alaskan vehicles have
remote starters.
MR. MOFFATT observed that due to extremely cold climates in
several areas of Alaska, it has long been common practice for
drivers to leave automobiles running unattended, while business
is conducted indoors nearby. He suggested that failure to leave
an automobile running during extremely cold whether might result
in the car not restarting. Thus, he opined, the law should make
allowances for Alaska's weather conditions. In closing, he
said, "HB 77 will repair the current obsolete law, and permit an
automobile to have its engine running, so long as the vehicle is
locked and is not occupied by a child under 14 or by a disabled
person."
CHAIR McGUIRE questioned whether HB 77 is merely a proposed
state law that would essentially throw out all the municipal
policy decisions on this issue.
MR. MOFFATT opined that if a municipality has developed policy
that prohibits people from running their vehicles unattended,
then the policy is improper and should be corrected.
CHAIR McGUIRE asked which other municipalities have such policy.
MR. MOFFATT said he only knew that Anchorage did.
CHAIR McGUIRE relayed that she strongly favors local control;
she said she would feel more comfortable with "permissive
language" as opposed to "mandating." She suggested that in a
state as big as Alaska, certain policy decisions have to made at
the local level.
TAPE 03-19, SIDE B
Number 2382
REPRESENTATIVE GRUENBERG remarked that Chair McGuire's
statements have a lot of merit. He then turned to the language
on page 1, line 14, which says, "or that is occupied by a
disabled person". He said:
Let's say that you have a person who is disabled
because they're paralyzed from the waist down, and
they may be fully capable of operating that car with
special controls. ... For the purpose of this
legislation, they should not be treated any
differently than any other fully capable driver. And
I really want to protect those people.
REPRESENTATIVE GRUENBERG surmised that HB 77 needs a little work
regarding that issue.
CHAIR McGUIRE asked Mr. Moffatt whether he has done any research
to ensure that HB 77 complies with the [Americans with]
Disabilities Act (ADA).
MR. MOFFATT, in response, said that he and the sponsor were
largely concerned [instead] "with the remote starter" [issue].
He recalled that the law prohibiting people from leaving their
vehicles running was originally developed in an effort to help
prevent auto theft. He relayed that it would be his and
Representative Lynn's preference to simply repeal all [such
restrictions]. He said that according to the aforementioned
newspaper article, the state law is more restrictive than the
municipal ordinance. He mentioned that he would be willing to
remove from HB 77 the reference to disabled persons.
CHAIR McGUIRE remarked that from a constitutional standpoint,
when making reference to disabled persons in statute, one needs
to be very clear what that definition entails, adding that some
folks are disabled in ways that don't have anything to do with
driving. She mentioned that the committee would be seeking
information from him on the issue of compliance with the ADA.
Number 2253
REPRESENTATIVE ANDERSON noted that HB 77 does not actually
delete anything from statute; rather, the restrictions under
discussion are located in the Alaska Administrative Code as a
regulation. Alaska statute does not prohibit someone from
leaving a vehicle running, only the state regulation does. He
suggested that perhaps the sponsor should consider a solution
involving a change of regulation, rather than a change of
statute. He then mentioned that he, too, views local control as
important, and prefers permissive language. He asked how many
tickets have been issued for violating the state regulation.
MR. MOFFATT said that he has not researched that information,
adding that the sponsor holds the conviction that "one is
enough."
REPRESENTATIVE ANDERSON, turning to language on page 1, line 14,
asked why the age of 14 was chosen.
REPRESENTATIVE SAMUELS remarked that 14 is the age at which one
can get a driver's permit.
MR. MOFFATT noted that 14 was the age chosen by the drafter, and
suggested that perhaps it was chosen for that very reason.
REPRESENTATIVE COGHILL mentioned that several communities "get
levied" by the Department of Environmental Conservation (DEC)
for "air-quality issues." He remarked that perhaps leaving
vehicles running could be problematic during certain times of
the year.
MR. MOFFATT relayed that the DEC has conducted research on this
issue.
Number 2095
RON G. KING, Program Manager, Air Non-Point & Mobile Sources,
Division of Air & Water Quality, Department of Environmental
Conservation (DEC), confirmed that the DEC has performed tests
and found that the emissions from a car that has been idling and
then driven are not significantly different than the emissions
from a car that is simply started up and driven off, as long as
the idling vehicle has been doing so for less than an hour. He
stated that the Department of Conservation has no position on HB
77.
CHAIR McGUIRE asked Mr. Moffatt to provide the committee with
information regarding how many municipalities currently have
codes that prohibit leaving a vehicle running; how many tickets
have been issued - she remarked that one is probably not enough;
whether HB 77 as written complies with the ADA, how "disabled"
is being defined, and what the link is with operating a vehicle;
and why the age of 14 was chosen. She asked Mr. Moffatt to talk
with the sponsor regarding the committee's concern about local
control.
REPRESENTATIVE GRUENBERG remarked that since this [restriction]
is currently a regulation, the committee should give thought to
the issue of whether it wants to establish a precedent by
addressing a regulatory concern via statute.
MR. MOFFATT asked whether the committee would be amenable to a
committee substitute that simply voids the regulation.
CHAIR McGUIRE remarked that that would be one way of doing it.
She asked Mr. Moffatt to consider the whole issue from a policy
standpoint, to provide the committee with the information it has
requested, and to consider the possibility of coming back with a
committee substitute that addresses the committee's concerns.
REPRESENTATIVES COGHILL and GRUENBERG, on the issue of a
potential conflict of interest, noted that they have remote
starters for their vehicles.
[HB 77 was held over.]
HB 83 - REVISED UNIFORM ARBITRATION ACT
Number 1942
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 83, "An Act adopting a version of the Revised
Uniform Arbitration Act; relating to the state's existing
Uniform Arbitration Act; amending Rules 3, 18, 19, 20, and 21,
Alaska Rules of Civil Procedure, Rule 601, Alaska Rules of
Evidence, and Rule 402, Alaska Rules of Appellate Procedure; and
providing for an effective date."
REPRESENTATIVE GARA recounted that at the last hearing on HB 83,
a sticking point arose regarding the language, "and whether a
contract containing a valid agreement to arbitrate is
enforceable", found on page 3, lines 9-10. He relayed that a
proposed amendment has been developed to alleviate this sticking
point, adding that he, Representative Berkowitz, and Mr.
Lessmeier [approve] of the amendment. The proposed amendment
[labeled 23-LS0047\H.1, Bannister, 3/11/03], which later became
known as Amendment 1, read:
Page 2, line 17, following "09.43.330(a)":
Insert "or (b)"
Page 3, line 5, following "contract":
Insert ", and except as provided by (b) of this
section"
Page 3, following line 5:
Insert a new subsection to read:
"(b) To the extent an agreement that contains an
arbitration provision is invalidated on the grounds
that a party was induced into entering into the
agreement by fraud, the arbitration provision in the
agreement is not enforceable, and the party is not
required to prove that the party was induced into
entering into the arbitration provision by fraud."
Reletter the following subsections accordingly.
Page 3, lines 9 - 10:
Delete "and whether a contract containing a valid
agreement to arbitrate is enforceable"
Number 1901
REPRESENTATIVE GARA explained that [Amendment 1] would delete
the aforementioned controversial language, and would effectively
adopt the dissenting opinion in Prima Paint Corp. v. Flood &
Conklin Manufacturing Co., 388 U.S. 395 (1967). He elaborated:
We have ... two ways to go on this arbitration Act.
With most contracts, a contract is void if a person
was defrauded into entering into it. That's the law
in Alaska .... Prima Paint said, in the area of
federal arbitrations, if you enter into a contract
because you were duped into it by fraud, you still
can't get out of the arbitration provision itself
unless you can show that you were specifically duped
into the arbitration provision of the contract. ...
The committee aide has sent out some material
explaining that rule to you: On one side is the Prima
Paint court's philosophy that they want to do
everything they can to uphold arbitration provisions;
on the other side is the philosophy that if a contract
is entered into by fraud, it just is invalid, and to
pretend that somebody would really read the specific
... arbitration part of the contract and get duped
into the arbitration part of the contract is sort of a
fiction - that just doesn't happen in real life.
So, [Amendment 1] ... adopts the rule that says if ...
you're duped into a contract by fraud, the contract's
just void and you don't have to, then, go to the
second level of proving that not only were you duped
into the contract, but you were specifically duped
into the arbitration provision as well. ... I've got
to tell you, I don't have the strongest feelings in
the world about it, [but] I feel that this is the
right way to go. ... I'll tell you, just so everybody
knows, if we do this, our arbitration law will be
different than the Federal Arbitration Act [FAA] ....
Number 1778
REPRESENTATIVE GARA continued:
The courts will be able to deal with this. ... There
are areas where the state arbitration Act applies -
those are in-state contracts, generally; there are
areas where the [FAA] applies - those have to do with
interstate commerce; [and] there are some joint areas,
where they intersect. [And] by us following a
different law than the [FAA], the courts are going to
have to decide ..., in those joint areas where both
acts could apply, whether we're allowed to differ from
the federal law, and that will be a constitutional
question for the courts. ... We'll know for ... state
arbitrations, our law applies; for clearly federal
arbitrations, their law will apply; and in this area
where they intersect, where either law could apply,
we're going to have to leave it for the courts to
decide whether or not, if we adopt ... [Amendment 1],
we're allowed to.
Number 1739
REPRESENTATIVE GARA made a motion to adopt Amendment 1 [text
provided previously].
CHAIR McGUIRE objected for the purpose of discussion.
REPRESENTATIVE SAMUELS asked what percentage of cases would be
affected by both state law and federal law, and do other states
differ from the [FAA] as well.
REPRESENTATIVE GARA said that although he could not answer the
specifics regarding differences in law that other states might
have as they relate to the Revised Uniform Arbitration Act
(RUAA), it is common for states to adopt uniform laws that
contain differences from the original uniform laws. In response
to the question of how many cases might be affected by a
difference in Alaska law, he said that he did not know, but
offered the following observation:
The state law will clearly apply among two local
people; if they have a contract - two local people
enter into a contract, it's just a local in-state
contract - the state law will apply. If there's some
impact on interstate commerce, if it's with an out-of-
state company - the contract - then [either] the
federal or the state law could apply. So, maybe the
litigation will arise over a contract like that. And
then, in federal government contracts and things
having a very clear federal nature, only the Federal
Arbitration Act applies. There will be some cases, I
suppose, where [Era Aviation, Inc. ("Era"), for
example,] enters into a supply contract with a fuel
distributor in Washington, and in those, either law
could apply, ... but I don't know numbers.
REPRESENTATIVE GRUENBERG turned members attention to the
"federal pre-emption issue," and said, "We are doing something
that may be unconstitutional under the supremacy clause." He
said that under Title 1, there is a general severability statute
which says that if part of an act can be construed
unconstitutional and the rest of it can be construed separately,
the rest shall remain constitutional. He asked Representative
Gara whether he would consider adding to the end of the new
subsection (b), as proposed in Amendment 1, something to the
effect of, "If this subsection is declared unconstitutional, the
remainder of the Act shall not be".
Number 1562
REPRESENTATIVE GARA replied, "It's a thorny question for not
such a big change in the law." In large part, he opined, there
is not a constitutional problem; in the areas for which the
Alaska Act applies and the FAA doesn't, Alaska can do what it
wishes. Thus the only point at which the constitutional issue
will arise is when either the FAA or the state arbitration Act
could be followed. In that area of intersection, he remarked,
the courts will look to our current statute, which says
essentially that if a part of a statute is held
unconstitutional, the court should strive to hold as much of the
rest of the statute as valid as possible. He opined that the
current statute on this issue will be adequate; it will tell the
courts that if only a portion of HB 83 is found to be
unconstitutional, the rest of the Act would still be
enforceable. Thus the courts would leave [HB 83] in effect with
regard to Alaska arbitrations.
REPRESENTATIVE GRUENBERG said that this information comforts
him, and noted that AS 01.10.030 reads:
Any law heretofore or hereafter enacted by the Alaska
legislature which lacks a severability clause shall be
construed as though it contained the clause in the
following language: "If any provision of this Act, or
the application thereof to any person or circumstance
is held invalid, the remainder of this Act and the
application to other persons or circumstances shall
not be affected thereby."
CHAIR McGUIRE remarked that there are a variety of reasons that
companies do business in Alaska, and that a large part of how
Alaskans do business is via contracts; thus it is important to
consider the practical implications of HB 83. She offered the
comment that businesses generally prefer arbitration as a means
of resolving differences because it is easier, cheaper, and less
time consuming. She relayed that one view of the issue raised
by the language in question holds that "if there is fraud in the
inducement of the contract as a whole, [then] you ought not get
to hold in one part of it." She surmised that many companies
draft contracts under the assumption that arbitration will be
available, and said she wonders whether companies will change
the way they do business based upon the knowledge that federal
law is "more favorable toward keeping arbitration clauses in."
Number 1407
REPRESENTATIVE GARA said:
As we stand here today - I can tell you this because
I've litigated the issue - nobody in this state knows,
in state arbitrations, whether or not the Prima Paint
rule applies or doesn't; or at least they didn't as of
about four years ago when I litigated this issue. So
people weren't fleeing from the state based on this
uncertainty; nobody knew, nobody really cared. The
reality of this situation is, you get form contracts
drafted by a larger, more powerful party, [and] the
other side signs on. If the bigger, more powerful
party includes an arbitration provision, dupes you
into a contract, why give them the benefit of saying,
"Okay, well, I duped [you] into it and at least I get
to take you to arbitration"? ... So, they sort of have
unclean hands, and I don't think that anybody who ...
engages in fraud would have any expectation that they
should get any benefit out of what they did.
REPRESENTATIVE GARA then paraphrased from a portion of Justice
Black's dissent in the Prima Paint case:
Fraud, of course, is one of the most common grounds
for revoking a contract. If the contract was procured
by fraud, then, unless the defrauded party elects to
affirm it, there is absolutely no contract, nothing to
be arbitrated.
REPRESENTATIVE GARA relayed that Justice Black called the
majority's view, "fantastic," adding that he feels the same way.
CHAIR McGUIRE said she did not disagree, mentioning that
particularly with adhesion contracts, it is a bigger, more
powerful party that gets to set the terms. Remarking that she
is inclined to support [Amendment 1], she cautioned that the
committee also needs to consider the ramifications, particularly
with regard to interstate/federal issues.
REPRESENTATIVE GRUENBERG, referring to a brief written by
Representative Gara, mentioned that there is some question
regarding whether Prima Paint has been overruled. "So, I
gather, ... it may no longer even be good law."
REPRESENTATIVE GARA offered that there is probably a 75 percent
chance that the U.S. Supreme Court has not overruled Prima
Paint.
Number 1266
REPRESENTATIVE GRUENBERG sought confirmation that the dissenting
opinion agrees with the [American Law Institute's Restatement
(Second) of Contracts ("Restatement")], noting that Restatements
of Law are general doctrines that many attorneys and courts
refer to as the rule of law regarding certain issues.
REPRESENTATIVE GARA replied that according to the Restatement
and common law in other states, including Alaska, if there is
fraud in entering into a contract, the contract is simply
invalid. "That's what the dissent relied upon in Prima Paint,
that's the basis for my view, why we should adopt this rule in
our arbitration Act," he added, noting, however, that there are
other states which follow the Prima Paint rule. He posited that
this issue is merely a policy call for the legislature to make.
REPRESENTATIVE GRUENBERG asked whether the language in Amendment
1 "closely tracks" the language in the Restatement.
REPRESENTATIVE GARA relayed that the Restatement does not
address the issue of arbitration; it merely addresses contracts
in general.
CHAIR McGUIRE mentioned that some have referred to arbitration
as a lesser form of justice. In contrast to this view, she
added, arbitrators take what they do very seriously and view
arbitration as a fair and equitable way to work out a dispute.
She suggested the possibility that going contrary to Prima Paint
might imply "something other than that."
REPRESENTATIVE SAMUELS asked whether it would be possible to
insert a clause in HB 83 to the effect that if there is a
conflict between state and federal law, that the state would
defer to federal law.
REPRESENTATIVE GARA said that although that would be possible,
his intention is to have the courts determine, on a case-by-case
basis, when either federal law or state law could apply, whether
following the state law would undermine a federal policy and is
therefore unconstitutional; if it is determined so, then the
federal law would apply. He surmised that doing as
Representative Samuels suggests would essentially "give up the
farm" in that area without even asking the courts to make a
determination. "My intention is not to give in, in that area of
joint jurisdiction, because I think there's a fair chance the
courts would say we're allowed to have a different law than the
federal law," he said, adding that the courts haven't decided
this issue yet.
Number 0988
REPRESENTATIVE GRUENBERG added:
There's a very, very significant development in the
U.S. Supreme Court today, called state's rights, and
they are giving much greater deference to the state's
right to enact legislation in areas that the feds have
... recently occupied. And it is a very fast-evolving
area, and it may be that the current [U.S.] Supreme
Court would uphold Alaska, where the court five, ten
years ago wouldn't. And we can't predict what's going
to happen and ..., in this particular case, I think
it's something that might very well help Alaska.
REPRESENTATIVE COGHILL surmised that [Amendment 1] would "kick"
the question into the courts sooner.
REPRESENTATIVE GARA replied:
It will only kick it into the courts if this issue
arises: whether or not somebody was defrauded into a
contract. If that issue arises, just that one issue
goes to the court .... So if the court finds, "No,
you weren't defrauded into the contract," it goes back
to the arbiter. If the court finds, "Yes, you were
defrauded into the contract," then it never gets to
the arbiter because there's no arbitration agreement.
But you're right: by giving somebody this additional
right to get out of the contract because of fraud,
you're giving them the right to go to court to do
that.
REPRESENTATIVE COGHILL raised the issue of "discovery," and said
he was trying to envision "what that would look like."
REPRESENTATIVE GARA replied:
It would be more expensive. Under Alaska law, ... if
you really were defrauded into a contract, well, I
think you should have that right to go to court and
say, "I don't want to be bound by this arbitration
agreement." If you weren't defrauded by a contract,
and you run to the court and ... say, "I was
defrauded, I was defrauded," ... you're taking the
risk that you're going to have [attorney] fees ...
[and] costs imposed against you. I think it would be
a pretty dumb thing for somebody to do, but they might
do it. Hopefully, that will keep some of those folks
out of court. And then there's the rule that says if
you make a frivolous claim in court, you have to pay
the other side's full [attorney] fees. Those are the
only protections we have ....
Number 0822
REPRESENTATIVE COGHILL said that if there was at least some hope
that going to court would bring swift action, he would tend to
favor [Amendment 1].
CHAIR McGUIRE turned members' attention to page 17 of the
Uniform Arbitration Act (UAA), which contains the following
commentary regarding the Prima Paint case:
There the plaintiff filed a diversity suit in federal
court to rescind an agreement for fraud in the
inducement and to enjoin arbitration. The alleged
fraud was in inducing assent to the underlying
agreement and not to the arbitration clause itself.
The Supreme Court, applying the FAA to the case,
determined that the arbitration clause was separable
from the contract in which it was made. So long as no
party claimed that only the arbitration clause was
induced by fraud, a broad arbitration clause
encompassed arbitration of a claim alleging that the
underlying contract was induced by fraud. Thus, if a
disputed issue is within the scope of the arbitration
clause, challenges to the enforceability of the
underlying contract on grounds such as fraud,
illegality, mutual mistake, duress, unconscionability,
ultra vires and the like are to be decided by the
arbitrator and not the court.
CHAIR McGUIRE remarked that Representative Gara makes a
compelling argument to the contrary, that if a contract is found
to be invalid, then there is no contract and, thus, no
arbitration clause.
Number 0666
CHAIR McGUIRE then withdrew her objection to adopting Amendment
1. There being no further objection, Amendment 1 was adopted.
Number 0634
REPRESENTATIVE SAMUELS moved to report HB 83, as amended, out of
committee with individual recommendations and the accompanying
[zero] fiscal notes. There being no objection, CSHB 83(JUD) was
reported from the House Judiciary Standing Committee.
HB 49 - EXPAND DNA DATABASE
Number 0608
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 49, "An Act relating to the DNA identification
registration system; and providing for an effective date."
Number 0572
REPRESENTATIVE ANDERSON moved to adopt the proposed committee
substitute (CS) for HB 49, Version 23-LS0132\I, Luckhaupt,
3/3/03, as the work draft. There being no objection, Version I
was before the committee.
Number 0523
JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties
Union (AkCLU), informed the committee that the AkCLU opposes HB
49 and urges the [legislature] to put an end to the progressive
expansion of DNA (deoxyribonucleic acid) collection by the
government. She pointed out that DNA collected from one person
reveals personal information about that individual, much of
which has nothing to do with the needs of law enforcement, as
well as personal information about the individual's blood
relatives. Unlike fingerprinting, which only reveals
information that can be used for identification purposes, DNA
gives the government control over a great deal of personal and
private information about anyone related to the sample source.
Therefore, expansion of governmental power to collect DNA from
its citizens should not be taken lightly.
MS. RUDINGER recalled the testimony of Chris Beheim, Director of
the Scientific Crime Detection Laboratory ("Crime Lab") in the
Department of Public Safety. She recalled that Mr. Beheim
pointed out that DNA testing is becoming increasingly more
common across the nation. At the same time, the scientific
knowledge regarding the content of DNA is growing incredibly.
She informed the committee that in 1988, the FBI opened a
national database that gathers the DNA records from all 50
states and the federal government into the centralized system
known as the Combined DNA Index System (CODIS). Initially,
these DNA storehouses were created to house information about
convicted sex offenders, who, it was argued, were especially
prone to recidivism and typically left DNA evidence at the crime
scene. Therefore, there was the promise at the time that only
convicted sex offenders would be tested and the information
obtained from these tests would be used by law enforcement
strictly for identification purposes. However, it's often the
case that information initially collected for one limited
purpose is ultimately used for many other purposes, which has
been the case with DNA testing.
MS. RUDINGER pointed out that in less than a decade, law
enforcement officials across the country have gone from
advocating for collection of DNA only from convicted sex
offenders, to wanting it from all violent offenders, then to
wanting it from all burglars, and now to wanting it from all
persons, including juvenile offenders, convicted of any [felony]
crime. She pointed out that in many states, the DNA samples are
maintained even when the conviction is overturned. She noted
that in Louisiana, DNA is collected from everyone arrested for a
felony crime. She informed the committee that former U.S.
Attorney General Janet Reno asked the National Commission on the
Future of DNA Evidence to review the possibility of taking DNA
from arrestees across the country. The 1998 New York City
police commissioner proposed the same idea, and Rudy Giuliani
voiced his support for the aforementioned proposal as well as
for taking DNA samples from all babies at birth.
Number 0215
MS. RUDINGER said:
The collection of DNA samples and the creation of DNA
databanks have legitimate and vital medical,
scientific, and forensic purposes; that can hardly be
argued. Research can lead to treatment and even cures
for many genetic diseases. DNA can prove that an
individual was at the scene of a crime. It can also
prove the innocence of a suspect, preventing terrible
miscarriages of justice. DNA can even be used to
correct wrongful convictions based on an erroneous
identification, although law enforcement and
prosecutors seem decidedly less enthusiastic about
this use. But as we look at the good uses of DNA, it
is equally clear there is tremendous potential for
abuse. The vast amount of information to be gleaned,
the incredible longevity of DNA samples, and the ease
with which DNA databases can be shared and accessed
raise grave privacy, equality, and due process
[concerns].
Although DNA has been touted as a high-tech equivalent
of fingerprints, this comparison is dangerously
misleading. Where fingerprints can be used only for
identification purposes, DNA samples can provide
insight into [a] breathtaking wealth of singularly
private information: information about a person's
ethnicity, family relationships, family history, and
the likelihood of getting ... some 4,000 different
genetic diseases and conditions. This information
belongs to the individual, not the government.
Further, geneticists are constantly increasing the
database of information that can be gleaned from DNA.
Some geneticists even claim that there are genetic
markers for criminal tendencies, sexual orientation,
substance abuse. The possibilities are endless, and
therefore the dangers are endless.
Today the growing law enforcement databases raise the
immediate specter of widespread discrimination. Given
the overtargeting of Alaska Natives, African
Americans, Latinos, and other minorities within the
criminal justice system nationwide, the government
will have the disproportionate power to track millions
of people of color. Now the sponsors of HB 49 want
the Alaska legislature to expand DNA sampling to
include all convicted felons, including felony
shoplifting, DWI, perjury, providing alcohol to
minors, forgery, writing a bad check, as well as some
misdemeanors. This will help identify more violent
criminals in the future, proponents say. Claiming
that this is a minor and necessary expansion of the
present system, proponents are [asking, "Well, What's
the harm?"] [The previous bracketed portion was not
on tape, but was taken from the Gavel to Gavel
recording on the Internet.]
TAPE 03-20, SIDE A
Number 0001
MS. RUDINGER continued:
The harm is this: because genetic information
pertains not only to the individual whose DNA is
sampled, but to every person who shares in that
person's bloodline, potential threats to genetic
privacy posed by the collection of the DNA extend well
beyond the millions of Americans whose samples are
currently on file. Moreover, there is no requirement
in House Bill 49 or in the Alaska Statutes or in
federal law that the DNA sample - the drop of blood,
the drop of saliva - ... from which the genetic
information is taken, [will] ever be destroyed. It is
precisely the availability of these samples laying
around that sparks ingenious ideas about new ways to
use the information contained in the samples, thus
prompting new legislation authorizing ever-increasing
numbers of permissible uses for Alaskans' DNA.
At the last hearing, Representative Gara [asked] the
AkCLU [to] take a look at the current restrictions in
law. We've looked at those; they appear to limit the
use of the DNA, they appear to make it clear that this
is not a public record, but, as I just pointed out,
there are always examples of the government finding
neat new ways to use information once it becomes able
to do so. For example, social security numbers were
initially intended only for use as [a way to] track
social security payments, and the law had very strict
controls to prevent other uses, but now social
security numbers are universal identifiers. There is
a long and unfortunate history of government using
personal information about its citizen in ways that we
did not consent to, in ways that go beyond what the
law initially allowed for.
Number 0270
MS. RUDINGER added:
Another example: census records created for general
statistical purposes were used to round up innocent
Japanese Americans and put them in internment camps
during World War II. Bottom line, to sum up, your
constituents throughout Alaska are concerned about the
government's ever increasing control over their
personal information, and their concerns cross party
and ideological lines. The [AkCLU] fields inquiries
virtually every week regarding the government's demand
for personal information: social security numbers,
background checks, DNA substance information, other
genetic information; almost every week Alaskans voice
concerns that government cannot be trusted to keep
this information confidential or to limit its use to
the initial purpose for which it was collected.
And we agree. Your constituents are right. So, in
conclusion, please keep in mind [that] this bill does
not only affect the person from whom the DNA sample is
taken. It affects their relatives, who are law-
abiding citizens innocent of any crime, and the
government's proposed justification for collecting DNA
just doesn't fly. There needs to be a much tighter
fix between means and ends.
Number 0327
THERESA WILLIAMS, President, Parents of People (POP), after
explaining that POP advocates for the rights of children as
individuals and people, relayed an example of man who had been
abusing his 15-year-old daughter for two years. That man "has
plead out," and at this time does not have to register his DNA.
Under HB 49, he would be required to provide a sample. She
noted that this man has spent many years working around other
children. She remarked that there are many individuals, just
like this man, who have plead down and currently do not have to
provide a DNA sample. She characterized the current situation
as a loophole that needs to be corrected. She said that POP is
in support of HB 49 because it will include all sex offenders in
the group that must provide a DNA sample.
Number 0550
LAUREE HUGONIN, Executive Director, Alaska Network on Domestic
Violence & Sexual Assault (ANDVSA), said:
We appreciate the sponsors' wanting to make more
information available to law enforcement, to ease
their investigations in being able to capture
criminals. ... In trying to figure out what our
concern was, I think what it came down to was more of
practical nature with ... the possibility of so many
more samples coming into the Crime Lab. We would
appreciate some discussion on the record from the
Crime Lab, talking about the ways in which they keep
current with processing the samples, and the ways in
which they keep current and intend to continue to keep
current [with] processing rape exam kits.
Our interest, of course, is in catching sex offenders.
And when somebody goes through the additional trauma
and invasion of a having a rape exam kit completed, we
would want to know that there is an emphasis placed on
processing those kits and getting information back to
law enforcement as quickly as possible. That there is
a commitment to making sure that you're looking at sex
offender DNA first, before you go to the person who's
written the bad check, and that they can keep current.
We supported the original DNA databank; we supported
adding burglars into the DNA database ....
So, I think that's our problem: We want to hear that
there's a mechanism in place to be able [to] handle
these and handle them expeditiously and not have rape
exam kits fall in the cracks, not have sex offender
DNA not done because they have 50 other samples that
came in ahead of that. We have supported the Crime
Lab in trying to catch up on their backlog. A few
years ago, for two years in a row, through the
Violence Against Woman Act, we supplied funding to
bring in a person to help catch the backlog up. So,
our experience is that they do have backlogs, that
they are slow, and we're concerned with the influx of
... [additional samples].
Number 0720
MS. HUGONIN continued:
And, then, if I might make a quick comment on the work
draft, I noticed on page 3, [lines] 2-5, you're giving
the department permission to collect, for inclusion
into the registration system, samples that are
collected from crime scene evidence. And I have not
had a chance to talk to the [ANDVSA] about this, but
my feeling is that we would want to have some
discussion about exactly what that means. If it's a
sex offense, and it was committed against me, I'm the
crime scene. So you're going to be collecting my DNA
evidence, and I don't know how we feel about a
victim's DNA being adding into the registry. I would
think we would have a problem with that. So I realize
that that was not part of the original bill, and would
appreciate some discussion on that, and maybe some
consideration of either better defining it or taking
it out. ... So, thank you for the opportunity to
testify; we appreciate the sponsor's intent and want
to do what we can to help make it work, but we do have
those practical concerns.
CHAIR McGUIRE remarked: "Very good point, and we will have that
discussion. I'm going to have [staff] do an amendment on that,
that we can discuss, regarding the victim's DNA. I don't think
that's the intent, but we should make it clear."
REPRESENTATIVE GARA said he would like to echo one concern,
which he acknowledged might be dealt with via a forthcoming
amendment. He elaborated on his concern:
Nationwide, law enforcement agencies collect rape
kits, the rape kits they collect are from victims of a
traumatic crime, and the rape kits require that the
victim then undergo a pretty intrusive process to help
law enforcement agencies ... maybe track the person
who committed the rape. It's an intrusive process ...
but, nationwide, ... law enforcement agencies are up
to a year behind on processing these rape kits. And I
guess I'm sympathetic to the proposal that we make
sure that by adopting this law, we don't push back our
time lag any further on processing rape kits.
REPRESENTATIVE GARA opined that at some point, the legislature
should do what it can to make sure that law enforcement agencies
get caught up with its rape-kit processing. "It's a huge burden
we put [victims] through, and the benefits should follow the
burden pretty quickly," he added.
MS. HUGONIN said that the ANDVSA also appreciates the inclusion
of misdemeanor crimes against a person. Stalking is a
misdemeanor crime, and that seems to be pretty closely aligned
to sexual assault; if people are committed to stalking someone,
they don't have a good end in mind. Therefore, as the committee
discusses which crimes to include and which crimes to leave out,
she asked that it remember that crimes against a person, if not
limited to felonies, include stalkers.
Number 0961
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL),
offered to explain the changes in Version I. She said that the
first difference is that Version I includes legislative
findings. The second difference is that Version I expands the
crime of violating an order to submit to DNA testing to include
the crime of failing to give a sample if one is required to do
so because he/she is registered as a sex offender. She noted
that this language can be found of page 2, line 12, of Version
I. Also, the crime of violating an order to submit to DNA
testing has been raised from a class A misdemeanor to a class C
felony. Ms. Carpeneti also noted that the original version of
HB 49 clarified that it also included a juvenile adjudicated as
delinquent for an act that would have required DNA testing had
the individual been an adult.
MS. CARPENETI relayed that Version I also proposes making it a
class C felony to knowingly, without authorization, possess or
allow another person to possess a tissue sample or a blood or
oral sample that is collected and stored at the Crime Lab.
REPRESENTATIVE ANDERSON suggested that the latter should allay
the concerns of the AkCLU with regard to the possibility that
DNA samples will be abused.
MS. CARPENETI confirmed that this new crime is intended to
address the possibility of such abuse. The Crime Lab tests 14
loci on the DNA strand that addresses identification, and this
testing provides what is known as a DNA fingerprint. The other
material is saved because, if there is a hit or a match, the
Crime Lab wants to be able to go back and confirm it. It is the
keeping of these samples that raises concerns, but Version I
would make it a class C felony to misuse the samples stored at
the Crime Lab. She turned to [Section 5] of Version I and noted
that it specifies what can be included in the databank. New to
the list is the inclusion of DNA samples from those committing
misdemeanor crimes against a person, such as stalking, fourth
degree assault, and reckless endangerment. This list will also
include samples from volunteers such as those with missing
relatives, and samples taken from crime scene evidence, and from
unidentified bodies or body parts.
MS. CARPENETI assured members that in drafting the provision
that allows for the inclusion of samples from crime scene
evidence, the intent was that a crime scene would be a place
rather than a person. She remarked that if there is any
confusion on that point, it should be clarified with additional
language, since there is no intention to include a victim's DNA.
She also noted that Version I specifies that tissue samples can
be included in the database; sometimes when collecting samples
from body parts, for example, tissue samples have to be taken
rather than blood or oral samples. Version I also specifies
that samples can be taken from those who are currently in jail
or a juvenile facility for the crimes listed in the bill, and
from those who are on active probation or parole for those same
crimes, as well as from those who are on interstate probation or
parole for those same crimes. In conclusion, she confirmed that
Version I includes many of the DOL's suggestions.
CHAIR McGUIRE announced, at 3:07 p.m., that the committee would
recess to a call of the chair.
Number 1346
CHAIR McGUIRE called the meeting back to order at 4:45 p.m.
Present were Representatives McGuire, Anderson, Samuels, Gara,
Gruenberg, Holm, and Coghill.
Number 1425
CHRIS BEHEIM, Director, Scientific Crime Detection Laboratory
("Crime Lab"), Department of Public Safety (DPS), addressing
questions brought up earlier, said that expanding the DNA
database will have no effect on the Crime Lab because it
currently uses federal grant money to outsource all convicted
offender samples. He said that he anticipates that this federal
grant money will be available in the future for this purpose.
With regard to Ms. Hugonin's concern regarding victims' DNA
profiles, he said that entering a victim's DNA profile into the
system is strictly prohibited by the National DNA Index System's
(NDIS's) guidelines, as is the inclusion of "elimination
samples" that are tested during the course of an investigation.
He concluded by saying, "Those are two non-issues."
Number 1516
JUANITA HENSLEY, Special Assistant, Office of the Commissioner,
Department of Public Safety (DPS), relayed that the DPS has
placed a priority on sexual-assault-kit DNA sampling, and feels
very strongly about that issue. The commissioner, she added, is
very committed to domestic violence and sexual assault issues.
Even though DNA samples for convicted offenders are sent out,
she explained, the DPS has a technician and criminologist on
staff at the Crime Lab that handle all of the rape kits coming
into the department. "So, we are working on making sure that
... any backlog that's there is caught up, and that it doesn't
have a backlog," she added.
REPRESENTATIVE GARA asked for an estimate of the time lag
between when a rape kit is completed and when its results are
available.
MR. BEHEIM replied that there are many factors involved,
depending on the nature of the case and its urgency. It takes a
while to screen the case; if there are a lot of clothing items,
for example, it can take several days just to go through those
items. The DNA typing generally takes about three weeks.
CHAIR McGUIRE closed public testimony on HB 49.
Number 1677
The committee began discussion of Conceptual Amendment 1, which
read [original punctuation provided but formatting changed]:
Page 2, lines 20 and 22:
Delete all material and insert:
"tissue sample collected for inclusion in the DNA
identification registration system.
(b) In this section "DNA identification
registration system" means the deoxyribonucleic acid
identification registration system established under
AS 44.41.035.
(c) Unlawful use of DNA samples is a class C
felony."
Page 4, line 3:
Delete "subsection" and insert "subsections"
Page 4, after line 7:
Insert the following:
"(m) The Department of Public Safety may not
include in the DNA registration system a blood sample,
oral sample, or tissue sample of the victim of a
crime, unless that person would otherwise be included
under (b)(1)-(b)(5) of this section."
REPRESENTATIVE GRUENBERG reported that during the recess, Ms.
Carpeneti had brought up a technical point. He asked her to
speak on that issue.
MS. CARPENETI explained that she'd noticed what she believes to
be a typographical error in Version I, which she'd discussed
with [the committee aide]. She indicated she'd drafted an
amendment [which became the first portion of Conceptual
Amendment 1, relating to page 2, lines 20-22].
CHAIR McGUIRE, addressing the last portion of Conceptual
Amendment 1, explained that she and Representative Samuels had a
concern regarding victims. She offered her understanding that
Ms. Carpeneti had worked with [Vanessa Tondini, the committee
aide] during the recess and had come up with the language
relating to page 4, line 3, and page 4, after line 7.
MS. CARPENETI said the amendment to page 4 [line 3] just makes
"subsections" plural. Reporting that she'd spoken with Ms.
Hugonin about the provision [proposed on page 4, after line 7],
who thought it was okay, she noted that Mr. Beheim had said it
is a nonissue; she therefore questioned its necessity.
CHAIR McGUIRE said she'd rather keep it in just to be 100
percent clear about the intent. She stated, "We do not want
tissue, blood, oral sample, and so on from the victim of a
crime; we don't want them to have to go through another process
on top of all ... they've been through before."
Number 1784
CHAIR McGUIRE [moved to adopt] Conceptual Amendment 1 [text
provided previously]. She clarified that the intent [with
regard to the insertion on page 4, after line 7] is to not
include the victim's DNA in the database.
MS. CARPENETI, after noting that she'd typed the amendment,
suggested there should be a hyphen on the first line, rather
than "and". Thus it would read "20-22".
CHAIR McGUIRE acknowledged that as a friendly amendment. [It
was treated as adopted.]
Number 1833
CHAIR McGUIRE asked whether there was any objection to adopting
Conceptual Amendment 1 [as amended]. There being no objection,
it was so ordered.
Number 1860
REPRESENTATIVE GARA moved to adopt [Conceptual] Amendment 2,
which read [original punctuation provided but some formatting
changed]:
page 3, line 19, insert a new section:
Sec.?. AS 44.41.035(f) is amended to read:
(f) The DNA identification registration system is
confidential, is not a public record under AS
40.25.110-40.25.140, and may be used only for
(1) providing DNA or other blood grouping
tests for identification analysis;
(2) law enforcement purposes including
criminal investigations and prosecutions;
(3) exoneration of the wrongfully convicted;
(4) statistical blind analysis; or
(5)[4]
There being no objection, [Conceptual] Amendment 2 was adopted.
The committee took an at-ease from 4:54 p.m. to 4:59 p.m.
Number 1929
REPRESENTATIVE GARA moved to rescind the committee's action in
adopting [Conceptual] Amendment 2.
CHAIR McGUIRE asked whether there was any objection. There
being no objection, it was so ordered.
Number 1938
REPRESENTATIVE GARA moved to adopt a new Conceptual Amendment 2,
which would [read like Conceptual Amendment 2] except that
"wrongfully convicted" would be replaced by "innocent" [in
paragraph (3)].
REPRESENTATIVE GARA explained that Ms. Carpeneti had suggested
using the phrase "exoneration of the innocent" to ensure that
exoneration remains a purpose of this Act. He added, "We will
want to exonerate people who haven't maybe yet [been] convicted;
the point is to exonerate innocent people."
CHAIR McGUIRE asked whether there was any objection to adoption
of new Conceptual Amendment 2. There being no objection,
Conceptual Amendment 2 was adopted.
Number 1995
REPRESENTATIVE GARA moved to adopt Amendment 3, which read
[original punctuation provided]:
page 1, line 14, following "repeat offenders,":
Insert "the exoneration of innocent persons,"
There being no objection, it was so ordered.
The committee took an at-ease from 5:02 p.m. to 5:10 p.m.
Number 2009
REPRESENTATIVE GRUENBERG moved to adopt new Amendment 4 [which
had begun as a document labeled 23-LS0132\I.3, Luckhaupt,
3/7/03, but which had been crossed through in places, with some
handwritten words inserted, before the copies were made]. New
Amendment 4, with the handwritten changes, read:
Page 1, line 6:
Delete "FINDINGS."
Insert "FINDINGS AND INTENT. (a)"
Page 1, line 12, following "offenders;":
Delete "and"
Page 2, line 1, following "remains":
Insert "; and
(4) the federal government is paying most
of the costs of the DNA identification registration
system and will reimburse the state for most of the
costs of the DNA identification registration system.
(b) The legislature may reexamine the DNA
identification registration system and its expansion
by this Act if the federal government eliminates or
reduces the level of funding it provides."
Page 4, following line 24:
Insert a new bill section to read:
"* Sec. 13. The uncodified law of the State of
Alaska is amended by adding a new section to read:
INSTRUCTION TO COMMISSIONER OF PUBLIC SAFETY.
The commissioner of public safety shall notify the
president of the senate and the speaker of the house
of representatives if, at any time after the effective
date of sec. 1 of this Act, the federal government
fails to [sic] the costs of the DNA identification
registration system."
Renumber the bill sections accordingly.
REPRESENTATIVE GRUENBERG pointed out that the word "pay" had
been eliminated [in the second to last line of the amendment
before the renumbering], and that it should read "government
fails to pay the costs of the DNA identification". [The
addition of "pay" was treated as adopted.]
Number 2087
CHAIR McGUIRE objected [to new Amendment 4] for discussion
purposes.
REPRESENTATIVE GRUENBERG explained that when legislation is
largely dependent on federal funding, he believes it is a good
policy for the legislature to be informed when the federal
funding goes away. Therefore, this instructs the agency
administering the program to provide a report notifying the
presiding officers when the federal government reduces or
eliminates the funding mechanism. He noted that it would
provide in the findings that the legislature finds that the
government is currently paying most of the costs of the program,
and that there is intent stated that the legislature may - he
emphasized the word "may" - reexamine the program if the federal
government eliminates or reduces the level of funding in the
future. He told members, "I strongly support the program; this
is just sort of ... keeping track of federal money so we're not
left with unfunded mandates that we know nothing about."
Number 2149
CHAIR McGUIRE withdrew her objection. She asked whether there
were any other objections.
REPRESENTATIVE HOLM offered his understanding that [the DPS] had
indicated [the federal government] pays all of the costs of DNA
identification registration, with no charge whatsoever to the
state. He highlighted the zero fiscal note.
MS. HENSLEY explained that [the DPS] has a federal grant through
NIJ [National Institute of Justice] that pays for the cost of
all the samples it sends out, as well as a grant that pays for a
criminologist to do rape kits for sexual assaults. She added:
President Bush, yesterday, and [U.S.] Attorney General
Ashcroft just announced that they have added another
232.6 million in federal funding for fiscal year '04,
and then over the next five years adding another $1
billion for DNA. That's going to be given [in] grants
to the states, and it's strictly for the DNA sampling
and things of this nature. ... And it's over a five-
year period. So we fully expect all this to be
covered over a five-year period with the large
expansion.
REPRESENTATIVE GARA remarked:
We anticipate that the funding will be available for
the next few years, but at some point all of these
federal mandates, and federal funds for federal
mandates, tend to change. And we just don't know five
years from now whether or not we'll receive the
federal funding. And if that happens, if ... all of a
sudden the federal funding disappears, it will be good
for the legislature to be alerted, so that ... if
we're faced with a decision of whether or not to fund
the DNA database or to fund troopers on the streets,
or to fund both, we can make that decision. So ...
the amendment would just require that [the] DPS alert
us, ... just in case we want to take action at that
point. But ... it does nothing to take the law off
the books or anything like that. It just deals with
the problem of always-disappearing federal money.
REPRESENTATIVE HOLM, noting that new Amendment 4 says "paying
most of" [in paragraph (4)], offered a friendly amendment, to
say "all" if it is all [of the costs].
REPRESENTATIVE SAMUELS objected for discussion purposes.
CHAIR McGUIRE asked Ms. Hensley whether, indeed, [the federal
government] pays all of the costs.
MS. HENSLEY answered:
It is only all of those samples that we have told the
federal government we were going to send to the lab.
What happens in these circumstances is, we ... get
this grant given to the state. We tell the federal
government how many samples we're going to send out.
They tell us what labs ... they contracted with. We
send the sample to the lab. Then the lab actually
sends the bill to the federal government and they pay
it. The state is not involved in any of the money
transfers or anything like that, which is really
great, and it's kind of unique under the circumstance.
...
When the original law was passed ... several years
ago, we did have a large fiscal note on it, but it was
start-up cost. And we do have ongoing cost, but [it]
pays for the sexual-assault kits, ... and we still
have some federal grants for that as well. So we do
have ongoing costs to the Crime Lab that's in our
budget, and its ongoing cost, but it also pays for the
criminologist to do other duties, other than just the
... DNA stuff.
REPRESENTATIVE HOLM again expressed concern about the zero
fiscal note because the amendment says "most" of the costs,
which indicates to him that at some point there will be a fiscal
note that isn't being identified at this point. He asked,
"They'll pay for what you give them, but we don't know what else
we may have with this law that will have costs to us?" He
pointed out that these aren't all sexual offenses, and offered
his understanding that if they aren't rape cases, [evidence]
won't be sent to a lab for rape purposes; rather, there would be
blood samples sent for DNA [determination]. He said they aren't
the same, and asked whether that is correct.
Number 2347
MS. HENSLEY replied:
What we do is, in-house, take the rape kits, and we do
the DNA sampling in-house on those rape kits. It's
all of the other crimes ... where we get the DNA
sampling ... from the convicted offender already that
... we contract out to the labs. This is not going to
be any additional cost to us because the federal
government has said, "Give us an estimation on the
early basis [of] how many samples you're going to send
to the lab." And if we need to adjust that, we
certainly can, based on the number of cases that we're
going to be sending to the lab.
TAPE 03-20, SIDE B
Number 2378
REPRESENTATIVE HOLM surmised, then, that those numbers are
already in the general budget for rape kits. He said that the
word "most" indicates, to him, that something else might come in
and have to be funded. Therefore, he questioned why there isn't
a fiscal note that addresses it.
REPRESENTATIVE ANDERSON asked if it's true that currently the
DNA program that Mr. Beheim directs is covered by federal grants
and will be covered by federal grants for the next five years.
He also asked if it's true that Representative Gruenberg's
amendment says "if or when there is a reduction in the grant, so
that the state has to pay for some of the DNA program, then the
Department of Public Safety will notify the legislature." He
said that's how he reads it.
MS. HENSLEY said that is correct. Unless there are major
changes to this legislation, Ms. Hensley didn't expect there to
be any fiscal impact.
REPRESENTATIVE SAMUELS asked, "Aren't we going to find this out
once you look at the budget anyway?" He posed a situation in
which eight years from now the commissioner doesn't tell. He
asked if the commissioner would be punished.
REPRESENTATIVE GRUENBERG agreed that it would appear somewhere
in the budget. He suggested that there should be a mechanism by
which the legislature is notified that the federal funding is
going away. Furthermore, it should be done in advance of the
budget.
REPRESENTATIVE COGHILL pointed out that the aforementioned is
done in many cases with repealers. He noted his objection to
saying that the federal government is going to pay for a program
that the legislature is willfully installing in statute. He
expressed the need to take care when doing such. He said,
"We're really surrendering ourselves, I think, at this point and
I don't know if that's wise."
REPRESENTATIVE GRUENBERG clarified that was not his intent and
pointed out that the language uses "may". He explained that
this is to ensure that the federal government realizes that [the
state] isn't giving them a blank check.
REPRESENTATIVE COGHILL acknowledged that the "may" language is
utilized. However, there is a lot of other language that
discusses what [the state] will or will not do. Therefore,
Representative Coghill begged the committee to reconsider
because he felt that it's not appropriate to place in statute.
The language could be put in a letter of intent or the bill
could include a sunset. He relayed his belief that this is a
poor policy call.
Number 2193
CHAIR McGUIRE commented that perhaps this conversation would be
more appropriate in the House Finance Committee. She mentioned
that she did like having advance notice when funding is running
out for a program so that the legislature can plan for it.
However, she said she also understood Representative Coghill's
concern that there may be impacts that aren't known at this
time. Therefore, she asked if Representative Gruenberg would be
willing to offer this through a House Finance Committee member.
REPRESENTATIVE GRUENBERG said he could. However, if the
language of concern for Representative Coghill is subsection (b)
of new Amendment 4 as amended, that language can be removed.
Representative Gruenberg related his preference, if the
committee is so inclined, to put in the language and point it
out to the House Finance Committee so that it can determine
whether to delete it or not.
REPRESENTATIVE COGHILL said that would probably address his
concern.
REPRESENTATIVE COGHILL moved that the committee delete
subsection (b) from new Amendment 4 as amended. [No objection
was stated and the amendment to new Amendment 4 deleting
subsection (b) was treated as adopted.]
REPRESENTATIVE ANDERSON pointed out that the new Amendment 4, as
amended, specifies in paragraph (4) "that the federal government
is paying most of the costs" while the committee has said on
record that the federal government is paying the cost.
Therefore, he asked if the words "most of" should also be
deleted.
REPRESENTATIVE GRUENBERG noted his acceptance of Representative
Anderson's suggestion. [Therefore, the amendment to new
Amendment 4, as amended, to delete from paragraph (4) the words
"most of" was treated as adopted.]
CHAIR McGUIRE clarified, then, that new Amendment 4, as amended,
would request that the federal government tell us when the money
isn't available.
Number 2078
REPRESENTATIVE GARA asked if there is any objection to also
notifying the Minority leaders of each body.
REPRESENTATIVE COGHILL remarked that leadership is usually
trusted to handle procedural items correctly, adding that
anything that is read across House Floor is available to all
members. Therefore, he indicated, his inclination would be to
leave the notification provision as is.
REPRESENTATIVE ANDERSON noted his agreement.
REPRESENTATIVE GARA withdrew his suggestion.
CHAIR McGUIRE said that new Amendment 4, as amended, is before
the committee. New Amendment 4, with the handwritten changes,
as amended, read:
Page 1, line 6:
Delete "FINDINGS."
Insert "FINDINGS AND INTENT. (a)"
Page 1, line 12, following "offenders;":
Delete "and"
Page 2, line 1, following "remains":
Insert "; and
(4) the federal government is paying the
costs of the DNA identification registration system
and will reimburse the state for most of the costs of
the DNA identification registration system.
Page 4, following line 24:
Insert a new bill section to read:
"* Sec. 13. The uncodified law of the State of
Alaska is amended by adding a new section to read:
INSTRUCTION TO COMMISSIONER OF PUBLIC SAFETY.
The commissioner of public safety shall notify the
president of the senate and the speaker of the house
of representatives if, at any time after the effective
date of sec. 1 of this Act, the federal government
fails to pay the costs of the DNA identification
registration system."
Renumber the bill sections accordingly.
REPRESENTATIVE SAMUELS withdrew his objection.
CHAIR McGUIRE noted that there were no further objections to
adopting new Amendment 4, as amended. Therefore, Amendment 4,
as amended, was adopted.
Number 1973
REPRESENTATIVE HOLM said:
I move that we adopt Amendment 5. That we remove
under Section 7, line 21 and 22, [AS] 11.41.230 -
Assault in the fourth degree, 11.41.330 - Custodial
Interference in the second degree, 11.41.250 -
Reckless Endangerment, and 11.41.270 - Stalking in the
second degree.
CHAIR McGUIRE objected for purposes of discussion.
REPRESENTATIVE HOLM explained that he wanted to delete those
statutes because of his concern that class A misdemeanors are
treated as felonies.
REPRESENTATIVE SAMUELS inquired as to how Amendment 5 would work
for the Department of Public Safety and the Department of Law.
MS. CARPENETI clarified that the only folks from whom there will
be samples taken are those who are convicted.
MS. HENSLEY relayed that the DPS would have difficulty with
Amendment 5 because those [statutes deleted by Amendment 5]
relate to crimes against a person. She relayed specific concern
with the deletion of AS 11.41.230 and AS 11.41.270.
MS. HUGONIN reminded members that the committee has previously
heard legislation that allows for a civil remedy for victims of
stalking because the criminal statute is so difficult to prove.
She emphasized that it's difficult to even have someone charged
with stalking in the second degree much less obtain a
conviction. Therefore, when [such a conviction] happens, it's
appropriate to have the DNA sample taken. Of the four statutes
cited, Ms. Hugonin encouraged the committee to leave in [AS
11.41.270] stalking in the second degree. She explained that in
order for stalking to rise to the first degree, there has to be
some added elements such as the stalking occurring in violation
of the protective order, or against a child under the age of 16.
Therefore, stalkers should be included if the intent is to
capture DNA from those persons most likely to repeat crimes or
commit sex offenses.
Number 1743
REPRESENTATIVE GARA said he appreciated and agreed with the
intent behind Amendment 5. He recalled earlier discussion
regarding the existence of some crimes, that if committed, have
no bearing on whether the individual will commit a violent crime
in the future. Therefore, he understood Amendment 5 to [delete]
crimes that may have no bearing on whether someone would commit
a violent crime in the future. However, Representative Gara
announced that he didn't support Amendment 5 because the four
crimes specified do have an aspect of violence or attempted
violence. He relayed his belief that many people convicted of
the crimes [being deleted by Amendment 5] are people with a
propensity for violence.
REPRESENTATIVE ANDERSON acknowledged that there is the question
of how many samples should be taken and from which crimes. He
recalled Mr. Beheim's testimony regarding taking DNA samples
from folks who write bad checks. The statistics showed that 12
of the folks who wrote bad checks murdered someone.
MR. BEHEIM specified that those statistics were from Virginia.
The latest statistics show that 82 percent of the hits in the
database would've been missed if it had been limited to violent
offenses. In the case of forgery, statistics show that those
who have committed forgery have committed other crimes including
sexual assault and homicide.
REPRESENTATIVE ANDERSON said that illustrates that those are
white-collar crimes that don't suggest any propensity for
violence. He indicated that he was in a quandary with regard to
what to include or not to include.
Number 1571
REPRESENTATIVE HOLM withdrew Amendment 5. However, he offered
that if there are going to be laws that allow people to plea
down such that there is no meaning [to the laws], then perhaps
those laws should be reviewed. He emphasized that the penalty
for a class A misdemeanor is completely different than a class C
felony.
REPRESENTATIVE GRUENBERG noted that he supports [DNA sampling]
extended to felonies. He informed the committee that the
following felonies that appear to be nonviolent include:
issuing a bad check of $500 or more, third degree criminal
mischief - that's $500 damage to property - forgery, falsifying
business records, deceptive business practices, defrauding
creditors, perjury, interference with official proceedings,
misconduct by a juror, possession of gambling records, and third
conviction for DWI. Representative Gruenberg announced that he
supported the legislation as written. He expressed his desire
for this committee to discuss and address the issues within its
jurisdiction.
REPRESENTATIVE GARA agreed with Representative Gruenberg that
they should make sure that the legislation says what the
committee wants before passing it out. Representative Gara
noted his support of HB 49 as written.
REPRESENTATIVE GARA highlighted that Representative Anderson
narrowed the definition of the crimes that will result in
someone being placed in the DNA database to all crimes against a
person. Therefore, Representative Gara asked if the list read
by Representative Gruenberg included crimes against a person.
REPRESENTATIVE GRUENBERG replied no.
MS. CARPENETI explained that the legislation includes all
felonies in Title 11 and crimes against a person. The crimes
against a person that are in Title 11 include those read by
Representative [Gruenberg], some misdemeanors, and sex offenses.
REPRESENTATIVE ANDERSON opined that Mr. Beheim has made the
case, with the forgery example, that there is a need for DNA
sampling to be taken for all felonies.
Number 1334
REPRESENTATIVE GARA reiterated his support of the legislation as
written. However, he said he disagrees with Representative
Anderson's analysis of Mr. Beheim's statistics. Representative
Gara said the statistics show that there are a certain number of
people who committed nonviolent crimes that also committed
violent crimes. He pointed out that Mr. Beheim provided no
statistical analysis saying those who commit nonviolent crimes
have any more propensity than anyone else to commit violent
crimes in the future. He remarked that the statistics show
[only] that if DNA from everyone in the world were taken, more
crimes would be solved.
REPRESENTATIVE COGHILL noted that he has struggled with this
legislation. Representative Coghill turned to AS
44.41.035(b)(3), which in part says, "(3) a minor 16 years of
age or older, adjudicated as a delinquent for an act that would
be a crime against a person, a burglary, or a felony attempt to
commit burglary, if committed by an adult." He asked if
adjudication is the same as conviction.
MS. CARPENETI answered that in the juvenile justice system,
adjudication is similar to a conviction.
REPRESENTATIVE COGHILL asked if that would be consistent for a
crime against a person.
MS. CARPENETI replied yes.
REPRESENTATIVE COGHILL relayed his belief that the barrier has
to be high, which he indicated was achieved through conviction.
Representative Coghill said that this is an interesting path of
how to identify people without it becoming problematic for an
overzealous government.
CHAIR McGUIRE said that she didn't disagree, but she pointed out
that the legislature has the ability to change this if there are
problems.
REPRESENTATIVE HOLM remarked that this legislation carries a bit
more gravity than most because this issue involves a database.
The database doesn't have a way in which [it can be] stopped,
similar to the situation with social security numbers.
Therefore, he opined, personal protection should be upheld.
Number 1071
REPRESENTATIVE GRUENBERG moved to report the proposed CS for HB
49, Version 22-LS0132\I, Luckhaupt, 3/3/03, as amended, out of
committee with individual recommendations and the accompanying
zero fiscal note. There being no objection, CSHB 49(JUD) was
reported from the House Judiciary Standing Committee.
ADJOURNMENT
Number 1021
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 5:50 p.m.
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