02/10/2006 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB343 | |
| HB226 | |
| HB190 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 93 | TELECONFERENCED | |
| + | HB 226 | TELECONFERENCED | |
| + | HB 190 | TELECONFERENCED | |
| += | TELECONFERENCED | ||
| += | HB 343 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 10, 2006
1:17 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative John Coghill
Representative Pete Kott
Representative Peggy Wilson
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 343
"An Act relating to harassment."
- MOVED CSHB 343(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 226
"An Act relating to breaches of security involving personal
information; and relating to credit report security freezes."
- MOVED CSHB 226(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 190
"An Act relating to the purchase of alcoholic beverages and to
requiring identification to buy alcoholic beverages; requiring
driver's licenses and identification cards to be marked if a
person is restricted from consuming alcoholic beverages as a
result of a conviction or condition of probation or parole."
- MOVED CSHB 190(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 93
"An Act relating to dentists and dental hygienists and the Board
of Dental Examiners; establishing certain committees for the
discipline and peer review of dentists; excluding the
adjudicatory proceedings of the Board of Dental Examiners and
its committees from the Administrative Procedure Act and from
the jurisdiction of the office of administrative hearings; and
providing for an effective date."
- BILL HEARING CANCELED
PREVIOUS COMMITTEE ACTION
BILL: HB 343
SHORT TITLE: HARASSMENT
SPONSOR(S): REPRESENTATIVE(S) LYNN
01/09/06 (H) PREFILE RELEASED 1/6/06
01/09/06 (H) READ THE FIRST TIME - REFERRALS
01/09/06 (H) JUD, FIN
01/27/06 (H) JUD AT 1:00 PM CAPITOL 120
01/27/06 (H) Heard & Held
01/27/06 (H) MINUTE(JUD)
02/10/06 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 226
SHORT TITLE: PERSONAL INFORMATION BREACH
SPONSOR(S): REPRESENTATIVE(S) GARA
03/21/05 (H) READ THE FIRST TIME - REFERRALS
03/21/05 (H) L&C, JUD
04/06/05 (H) L&C AT 3:15 PM CAPITOL 17
04/06/05 (H) <Bill Hearing Postponed>
04/13/05 (H) L&C AT 3:15 PM CAPITOL 17
04/13/05 (H) Heard & Held
04/13/05 (H) MINUTE(L&C)
04/15/05 (H) L&C AT 3:15 PM CAPITOL 17
04/15/05 (H) Moved CSHB 226(L&C) Out of Committee
04/15/05 (H) MINUTE(L&C)
04/18/05 (H) FIN REFERRAL ADDED AFTER JUD
04/22/05 (H) L&C RPT CS(L&C) 4DP 1NR
04/22/05 (H) DP: LYNN, LEDOUX, GUTTENBERG, KOTT;
04/22/05 (H) NR: ROKEBERG
02/10/06 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 190
SHORT TITLE: REQUIRED ID FOR PURCHASING ALCOHOL
SPONSOR(S): REPRESENTATIVE(S) CRAWFORD
03/01/05 (H) READ THE FIRST TIME - REFERRALS
03/01/05 (H) L&C, JUD
03/22/05 (H) L&C AT 1:00 PM CAPITOL 17
03/22/05 (H) Heard & Held
03/22/05 (H) MINUTE(L&C)
04/20/05 (H) L&C AT 3:15 PM CAPITOL 17
04/20/05 (H) Moved CSHB 190(L&C) Out of Committee
04/20/05 (H) MINUTE(L&C)
04/22/05 (H) L&C RPT CS(L&C) NT 3DP 2NR
04/22/05 (H) DP: CRAWFORD, LYNN, KOTT;
04/22/05 (H) NR: LEDOUX, GUTTENBERG
04/22/05 (H) FIN REFERRAL ADDED AFTER JUD
02/10/06 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
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 343; responded to questions during discussion of HB 190.
REPRESENTATIVE BOB LYNN
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 343.
JOHN L. GEORGE, Lobbyist
for American Council of Life Insurers (ACLI)
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 226, provided
comments and suggested a couple of changes.
LISA J. CORRIGAN, Executive Vice President & Chief Operating
Officer
Alaska Pacific Bank;
President
Alaska Bankers Association
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 226, provided
comments and expressed support of a proposed amendment and hope
that the legislation passes.
REPRESENTATIVE HARRY CRAWFORD
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 190.
DUANE BANNOCK, Director
Division of Motor Vehicles (DMV)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Provided comments and responded to
questions during discussion of HB 190.
DOUG WOOLIVER, Administrative Attorney
Administrative Staff
Office of the Administrative Director
Alaska Court System (ACS)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 190.
BRYAN TALBOTT-CLARK, President
Board of Directors
Anchorage Chapter
Mothers Against Drunk Driving (MADD)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 190.
KERRY HENNINGS, Driver Licensing
Director's Office
Division of Motor Vehicles (DMV)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Responded to a question during discussion
of HB 190.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:17:07 PM. Representatives
McGuire, Coghill, Wilson, Kott, and Gruenberg were present at
the call to order. Representatives Anderson and Gara arrived as
the meeting was in progress.
HB 343 - HARASSMENT
1:18:11 PM
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 343, "An Act relating to harassment."
1:18:43 PM
REPRESENTATIVE WILSON referred to Amendment 1, labeled 24-
LS1002\G.5, Luckhaupt, 2/8/06, which read:
Page 3, line 4, following "responder":
Insert "or medical professional"
Page 3, following line 8:
Insert a new bill section to read:
"* Sec. 5. AS 12.55.135(j) is amended by adding a
new paragraph to read:
(3) "medical professional" means a person
who is an anesthesiologist, dentist, dental hygienist,
health aide, nurse, nurse aid [sic], nurse
practitioner, mental health counselor, physician,
physician assistant, psychiatrist, osteopath,
psychologist, psychological associate, radiologist,
surgeon, or x-ray technician, or who holds a
substantially similar position."
REPRESENTATIVE WILSON explained that Amendment 1 would add
"medical professional" to the list of those people for whom a
violation against would engender a minimum mandatory sentence of
60 days, and would add a definition of "medical professional".
Thus the protection afforded by HB 343 would not stop at the
hospital door. She indicated that the proposed definition was
gleaned, in part, from [the definition of "health care worker"
in] AS 11.41.470, and now also includes dental hygienist and
nurse aide.
REPRESENTATIVE WILSON made a motion to adopt Amendment 1.
REPRESENTATIVE WILSON, in response to questions, indicated that
the definition of "health care worker" in AS 11.41.470 was too
broad for use in HB 343 because it included hypnotists,
religious healing practitioners, and chiropractors; and that
dental hygienists and nurse aides could be in situations where
someone spits on them.
REPRESENTATIVE GRUENBERG said he is concerned that chiropractors
are not included in the proposed definition.
REPRESENTATIVE WILSON remarked that as a rule, chiropractors are
not in hospitals or in emergency situations.
REPRESENTATIVE GRUENBERG made a motion to amend Amendment 1, to
add chiropractors to the proposed definition of "medical
professional".
REPRESENTATIVE COGHILL asked how that would fit in with the
crime of harassment. He then acknowledged that chiropractors do
work very closely with people, and indicated that he would not
object to the amendment to Amendment 1.
1:21:54 PM
CHAIR McGUIRE, indicating that she'd heard no further objection,
announced that the amendment to Amendment 1 was adopted.
REPRESENTATIVE GRUENBERG said he is removing his objection.
CHAIR McGUIRE asked whether there were any further objections to
Amendment 1, as amended. There being none, Amendment 1, as
amended, was adopted.
1:22:16 PM
REPRESENTATIVE GARA made a motion to adopt Conceptual
Amendment 2, to limit the bill, with regard to saliva, to just
those listed in proposed AS 12.55.135(d), so that it won't apply
in cases where two kids in a schoolyard fight spit on each
other.
REPRESENTATIVE GRUENBERG noted that the crimes outlined in the
bill apply to everyone, and that the bill then provides for a
mandatory minimum sentence for those found guilty of the new
crime of harassment in the first degree if the victim is someone
listed in proposed AS 12.55.135(d).
REPRESENTATIVE GARA said that for spitting, he wants to leave
the existing law in place except when it involves the people
listed in proposed AS 12.55.135(d).
1:25:06 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL),
relayed that currently, spitting would be prosecuted under the
crime of harassment, which is a class B misdemeanor. In
response to a question, she said that the crime of fourth degree
assault is a class A misdemeanor.
REPRESENTATIVE GRUENBERG offered his understanding that
[spitting] could be prosecuted as an assault.
MS. CARPENETI said it would depend on the facts.
1:26:09 PM
REPRESENTATIVE BOB LYNN, Alaska State Legislature, sponsor of
HB 343, said he would prefer to leave the bill as is with regard
to saliva.
REPRESENTATIVE GRUENBERG, remarking that he may have a potential
conflict of interest, relayed that his son is in a situation
wherein he is sometimes subjected to being spit upon. He noted
that spit can carry disease.
MS. CARPENETI mentioned that it is unlikely that the DOL would
be able to prosecute spitting as an assault in the fourth degree
unless the circumstances were extreme.
REPRESENTATIVE GRUENBERG surmised, then, that the prosecution
would have to show that the victim was injured from having been
spit upon. He remarked, therefore, that he likes the bill the
way it is [with regard to saliva].
MS. CARPENETI, in response to a comment, indicated that under
the bill, spitting at someone would fall under the proposed
crime of harassment in the first degree, a class A misdemeanor.
In response to a question, she offered her belief that it might
be possible to, in certain situations, have the behavior of
spitting be subject to a class A misdemeanor without having the
proposed mandatory minimum sentence apply.
CHAIR McGUIRE offered her understanding that Conceptual
Amendment 2 proposes to make the crime of harassment in the
first degree when it involves saliva, and the proposed mandatory
minimum sentence, only apply when it involves a victim listed in
proposed AS 12.55.135(d).
REPRESENTATIVE GARA, in response to a question, said that he
wants other instances involving saliva to be a class B
misdemeanor.
MS. CARPENETI sought clarification.
REPRESENTATIVE GARA said, "remain a class B misdemeanor just for
spitting when it doesn't involve the ... professions that are
addressed in this bill."
MS. CARPENETI said that would involve further altering existing
statute.
REPRESENTATIVE COGHILL said he wants to know why they should
exclude other people from the protection [of a class A
misdemeanor]. He said he would speak against Conceptual
Amendment 2, particularly given that everybody might at one
point in their life find themselves being spit upon. He sought
further clarification regarding Conceptual Amendment 2.
REPRESENTATIVE GARA said that under Conceptual Amendment 2,
those not listed in proposed AS 12.55.135(d) would still have
the remedy of charging someone who spit on them with the crime
of harassment. And if the person doing the spitting had an
infectious disease, he surmised, then a victim not listed in
proposed AS 12.55.135(d) could charge the person with a more
serious crime on the basis that the spitting occurred with the
intent to cause serious physical injury.
MS. CARPENETI said, "Or through reckless endangerment."
REPRESENTATIVE GARA said he simply wants to exempt schoolyard-
fight situations.
MS. CARPENETI acknowledged that when giving certain groups of
people more protection than others, it is a policy call as to
who to include.
REPRESENTATIVE COGHILL suggested that the question is, should
they exclude schoolyard fights, and acknowledged that maybe
sometimes a situation involving a such a fight would warrant
prosecution.
1:34:10 PM
A roll call vote was taken. Representatives McGuire, Kott, and
Gara voted in favor of Conceptual Amendment 2. Representatives
Coghill, Wilson, Anderson, and Gruenberg voted against it.
Therefore, Conceptual Amendment 2 failed by a vote of 3-4.
1:34:38 PM
REPRESENTATIVE GARA made a motion to adopt Conceptual
Amendment 3, to alter the bill such that it would allow the
behavior that involves saliva to be a heightened crime unless
the victim is the initial aggressor. He noted that the self-
defense provisions of current law contain a similar caveat, so
that although one generally has the right to self defense, one
loses that right when one is the initial aggressor - the person
starting the fight or altercation.
REPRESENTATIVE WILSON objected, and noted that there is a
tendency to think that spitting is "no big deal." However,
spitting is a big deal because it could lead to the spread of
very serious diseases, even fatal diseases.
REPRESENTATIVE GRUENBERG noted that in gang-related
altercations, the police are tasked with trying to find out who
started an altercation. Therefore, he is concerned about the
practical implications of Conceptual Amendment 3.
MS. CARPENETI said the DOL would prefer that such a caveat not
be put in substantive statute, and would prefer instead that the
committee rely on the current justification statutes. In
response to a question, she said that she is referring to
AS 11.81.330(a)(1) [and (3)], and offered her belief that [those
statutes are] not limited to serious crimes against a person.
REPRESENTATIVE GARA said that if Ms. Carpeneti is convinced that
someone who is provoked into spitting on another person would be
protected from prosecution, then he would be willing to withdraw
Conceptual Amendment 3.
MS. CARPENETI said she would give the issue more thought.
REPRESENTATIVE GRUENBERG suggested that perhaps a letter of
intent might be in order.
1:39:41 PM
MS. CARPENETI, in response to a question, reiterated that she
would prefer that a justification not be put into substantive
statute, and that she would research this issue further.
CHAIR McGUIRE, in response to comments, suggested that perhaps
an amendment addressing Representative Gara's concern could be
crafted before the bill is heard on the House floor.
CHAIR McGUIRE announced that Conceptual Amendment 3 has been
withdrawn.
REPRESENTATIVE GRUENBERG referred to the Alaska Court of Appeals
case, McKillop v. State, thanked [Ms. Carpeneti] for discussing
it with him, and mentioned that he would be willing to pursue
the issues raised in that case further at another time should
the DOL wish.
1:42:31 PM
REPRESENTATIVE KOTT moved to report HB 343, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 343(JUD) was
reported from the House Judiciary Standing Committee.
HB 226 - PERSONAL INFORMATION BREACH
[Contains brief mention that language of proposed amendments to
HB 226 was derived from SB 222.]
1:43:04 PM
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 226, "An Act relating to breaches of security
involving personal information; and relating to credit report
security freezes." [Before the committee was CSHB 226(L&C).]
REPRESENTATIVE GARA, speaking as the sponsor, relayed that
HB 226 is intended to address situations involving security
breaches at financial companies that trade, hold, and supply
individuals' personal and financial information. At the time
the bill was started, only 3 or 4 states were responding to this
issue, but more have responded since then. The bill is in
response to a situation that occurred over a year ago, when a
company called ChoicePoint, Inc. ("ChoicePoint"), experienced a
security breach that affected about 145,000 clients. Because
California law mandated that clients be notified of such
security breaches, ChoicePoint notified its clients located in
California, but didn't notify any of its clients located
elsewhere.
REPRESENTATIVE GARA explained that HB 226 is modeled in part on
two provisions of that California law: one, when a company
releases a person's financial information accidentally because
of theft, that company must notify the person of that security
breach; two, when a person has an indication that his/her
information is no longer secure, the person will have the right
to call the three consumer financial information clearinghouses
and have them put a freeze on releasing his/her credit
information to a third party.
1:47:40 PM
JOHN L. GEORGE, Lobbyist for American Council of Life Insurers
(ACLI), relayed that the ACLI has been working with the sponsor
on this bill and the sponsor has been very accommodating, and
characterized CSHB 226(L&C) as a better version than the
original bill. He indicated that he has two issues to discuss
and both pertain to language in proposed AS 45.48.390 located on
pages 11-12. Proposed subparagraph (A) indicates that "personal
information" consists of a combination of an individual's first
name or first initial, the individual's last name, and one or
more of the following: the individual's social security number;
the number of the individual's driver's license or state
identification card; the individual's account number, or credit
card or debit card account number; or account passwords,
personal identification numbers, or other access codes.
However, he pointed out, proposed subparagraph (B) states that
"personal information" could consist of one of the
aforementioned elements if it would be sufficient to engage in
or attempt to engage in the theft of the individual's identity.
MR. GEORGE opined that as written, this definition is ambiguous;
"personal information" should consist of one or the other,
either what's specified in subparagraph (A) or what's specified
in subparagraph (B). For example, under subparagraph (B), a
social security number would be sufficient, whereas under
subparagraph (A), both the individual's name and social security
number would be required. He suggested that the removal of
subparagraph (B) would improve the bill substantially. He then
referred to the language on page 11, line 23 - which says in
part, "the information elements are not encrypted" - and said he
is unable to find a definition of encryption. He suggested,
therefore, that the words, "or secured by another means
rendering the information unreadable" be added; such a change
would cover both current and future technology without harming
the intent of the bill.
MR. GEORGE, in response to a question, clarified that his
suggested change would be to replace - on page 11, lines 23-24 -
the words, "or redacted" with the words: ", redacted, or
secured by another means rendering the information unreadable".
REPRESENTATIVE GARA offered his belief that neither suggested
change is needed. The term "encrypted" is used in California,
he relayed, and opined that a definition of that term is
unneeded. He indicated that simply saying something is
unreadable is vague, whereas if an encrypted item is released it
won't constitute a security breach. He elaborated:
We want to say that it's a security breach when
certain personal information is released - part of it
has to be the person's name; we don't really want to
regulate it if the person's name is not associated
with the security breach - that's just not really a
big security concern. ... That's why, ... [in
subparagraph (A)], it's two pieces of information that
have been released - your name and then some
identifying information [such as] your bank account
[number or] your social security number - that's a big
concern. The catchall in [subparagraph] (B) says,
however, [that] there might be some circumstances
where even just the release of one piece of this
information is a danger.
And you can imagine where just releasing somebody's
credit card number or bank account number by itself
could be a danger to the consumer. So that's why ...
California put this ... [language in its law] as well.
So I don't know why you would not want to protect a
consumer if a piece of information, standing by
itself, would be sufficient to allow somebody to
engage in or attempt to engage in the theft of the
individual's identity; if it's a piece of information
that endangers the consumer, I think that, standing
alone, is a breach. And, really, again, all [the
company has] ... to do is tell the consumer.
REPRESENTATIVE GARA, in response to a question, opined that it
won't be burdensome for a company to determine whether there has
been a breach. A company should notify an individual if his/her
account number, credit card number, access code, or password has
been released. He pointed out that the bill only applies if the
company knows the information has been breached, and then the
only requirement is that the company notify the consumer. He
added: "I don't think any company's going to have to sort of
sit there and pull there hair out and go, 'Shoot, we released
somebody's social security number, should we tell them?' I
think the answer is yes - it's a courtesy."
1:55:36 PM
LISA J. CORRIGAN, Executive Vice President & Chief Operating
Officer, Alaska Pacific Bank; President, Alaska Bankers
Association, relayed that Alaskan bankers share the concerns of
the sponsor and other members of the committee, and are
dedicated to protecting the privacy and security of sensitive
customer information. In fact, she added, the reputation and
the safety and soundness of the banking industry depends on a
foundation of security and integrity, and the banking industry
knows it has a fiduciary responsibility to its customers, not
only to protect their money, but to also protect their sensitive
personal information. She assured the committee that the
banking industry takes security breaches and all other related
issues very seriously.
MS. CORRIGAN relayed that her comments will pertain to two
provisions located on pages 1 and 2, adding that [her
organizations] think that the remainder of the bill is great.
She offered her belief that the concerns [she is about to
express] will be adequately addressed via a forthcoming proposed
amendment.
1:57:22 PM
MS. CORRIGAN remarked that [subsection (a) of proposed
45.48.010] appears to appropriately require disclosure of a
breach of security if sensitive, personal information is
reasonably believed to have been acquired by an unauthorized
person. However, that language doesn't go further to stipulate
that the information has been accessed for unauthorized
purposes. This [lack] is a bit of a difference from the banking
"guidance" that banks already operate under. Since banks are
already operating under a complicated web of federal and state
regulations, whenever possible [banks] would like to see
legislation that's consistent with [the rules] they must already
comply with.
MS. CORRIGAN referred to the Gramm-Leach-Bliley Act (GLBA),
which required banking regulators to issue guidance, and to
continue issuing guidance, to banks. That guidance requires
banks to create information security systems; complete a
comprehensive risk assessment relating directly to the subject
of HB 226 - the likelihood of, and vulnerability to,
unauthorized access to sensitive customer information; and to
subsequently develop and implement a response program -
basically disaster response in an electronic format - that would
be used any time the bank felt there was reason to believe that
there could be harm to a customer or a customer base.
MS. CORRIGAN explained that the aforementioned response program
requires banks to begin an immediate investigation if they
believe that a security breach may have occurred, and then they
are required to determine the likelihood that the sensitive
information has or will be misused. A concern, she relayed is
that it is possible that an unauthorized individual could
inadvertently come into contact with or come into possession of
sensitive information without meaning any harm, and [her
organizations believe] that it is not the sponsor's intent to
have the bill apply in such situations and so want to ensure
that language in the bill recognizes that, because if a bank
believes that it is reasonably possible that misuse will occur,
then the bank is already required to go through the
aforementioned notification process and notify customers,
banking regulators, federal authorities, et cetera.
MS. CORRIGAN said that the Alaska Banking Association supports a
forthcoming proposed amendment because it believes that the
amendment will clarify that the information would have to have
been accessed for a purpose not authorized by the state
resident; this adds the piece that the Alaska Banking
Association felt was missing - that it is an unauthorized person
who has unauthorized access to sensitive information and is
using it for unauthorized purposes or there is reason to believe
that he/she could.
2:00:51 PM
MS. CORRIGAN then drew members' attention to page 2, lines 7-10
- proposed AS 45.48.020 - which provides that a business may
delay disclosing a security breach to customers if the
Department of Law (DOL) has an ongoing investigation that could
be compromised by that disclosure. The Alaska Banking
Association is asking that that exception be broadened to
include all appropriate law enforcement agencies; banks are
already required to have a lot of contact with federal
authorities in situations involving suspected or ongoing
criminal activity. She offered her understanding that the
forthcoming proposed amendment will address this concern as
well. She concluded by saying that with the inclusion of her
aforementioned proposed changes, [her organizations] think that
HB 226 is good legislation and hope it passes.
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on HB 226.
REPRESENTATIVE GRUENBERG referred to the language on page 12,
lines 3-5, and relayed that his staff is researching whether
that language is identical to the language in California law.
He said he supports the bill, but added that that language
currently seems to read that the crime is a crime if it's a
crime; in other words, it's an identifier if it's sufficient to
cause a crime, which is a circular argument.
2:02:59 PM
REPRESENTATIVE GARA made a motion to adopt Amendment 1, which
read [original punctuation provided]:
Page 5, line 2 following "A"
Delete "consumer"
Insert "credit"
Page 11, line 16
Delete "or conflicts with"
REPRESENTATIVE COGHILL objected for the purpose of discussion.
REPRESENTATIVE GARA explained that the first part of Amendment 1
corrects a typographical error and the second part provides a
cleaner way of dealing with a federal preemption.
REPRESENTATIVE COGHILL removed his objection.
REPRESENTATIVE GRUENBERG said he supports Amendment 1. He
remarked, though, that proposed AS 45.48.300 - which is being
altered by the second portion of Amendment 1 - is not even
necessary because it is always the law that federal law preempts
state law.
REPRESENTATIVE GARA said he would be receptive to taking
[proposed AS 45.48.300] out of the bill on the House floor if
Representative Gruenberg can show that there is already a
general preemption provision.
REPRESENTATIVE GRUENBERG said there isn't one now, and is
pondering whether the committee would consider adding a general
preemption provision to Title 1.
REPRESENTATIVE COGHILL said he'd prefer to consider that
question separately from their debate on HB 226.
2:06:37 PM
CHAIR McGUIRE noted that the issue of severability has been
debated, and that sometimes a specific clause pertaining to
severability is put in legislation and sometimes severability is
viewed as a given. She concurred that the general rule is that
if there is a federal law on a particular subject, it would
preempt state law, but pointed out that this issue can be more
complicated when it pertains to certain areas of the law.
REPRESENTATIVE COGHILL said he would not want to concede
anything [to the federal government] that he did not have to.
CHAIR McGUIRE said she thinks it's appropriate to keep [proposed
AS 45.48.300] in the bill.
CHAIR McGUIRE asked whether there were any further objections to
Amendment 1. There being none, Amendment 1 was adopted.
2:07:51 PM
REPRESENTATIVE GARA made a motion to adopt [Conceptual]
Amendment 2, which read [original punctuation provided]:
Page 1, line 12 following "person,"
Insert "for a purpose not authorized by the state
resident"
Delete "due to the breach"
Page 2 lines 7 following "Enforcement."
Delete all material through page 2, line 10.
Insert "Notice of the breach may be delayed if an
appropriate law enforcement agency determines that
notification will interfere with a criminal
investigation and provides the business or
governmental entity with a written request for the
delay. However, the business or governmental entity
shall notify the state resident as soon as
notification will no longer interfere with the
investigation."
REPRESENTATIVE COGHILL objected for the purpose of discussion.
REPRESENTATIVE GARA indicated that the first part of
[Conceptual] Amendment 2 addresses Ms. Corrigan's first stated
concern, and the second part of [Conceptual] Amendment 2
addresses her second stated concern. With the adoption of
[Conceptual] Amendment 2, if there is a breach but it's a
harmless breach, then the bill won't apply, and a delay in
notifying the customer of a security breach will temporarily be
allowed if the company is told, in writing, by any appropriate
law enforcement agency that such notification will interfere
with a criminal investigation, though once law enforcement is no
longer concerned about notification, then the customer must be
notified.
2:09:59 PM
CHAIR McGUIRE said she would not want the first part of
[Conceptual] Amendment 2 to be used as an excuse [to not provide
notification]. She offered her recollection that in the
ChoicePoint case, the company offered the defense that although
it knew about the security breach, it didn't think that it was
going to cause any harm. She said she wants it to be very clear
that companies have a duty to investigate the reasonableness of
whether the breach would cause harm, and that it isn't an
automatic defense for the company to simply say it didn't think
it would.
REPRESENTATIVE GRUENBERG referred to the last sentence of
[Conceptual] Amendment 2 and suggested that it be changed to say
that the law enforcement agency must notify the company [or
governmental entity] in writing that the customer notification
process will no longer interfere with the criminal investigation
and thus may begin. In response to a comment, he clarified that
he would like the law enforcement agency to also have a duty to
notify.
REPRESENTATIVE GRUENBERG made a motion to conceptually amend
[Conceptual] Amendment 2, to rewrite the final sentence such
that the investigating law enforcement agency shall notify the
business or governmental entity as soon as the investigation is
sufficiently complete that the business can notify the consumer.
At that point, he added, the [business] must notify the
consumer.
CHAIR McGUIRE noted however that investigations can take
decades. Therefore she would prefer the phrase, "will no longer
interfere with the investigation".
REPRESENTATIVE GRUENBERG indicated that he is amenable to such a
change to the conceptual amendment to [Conceptual] Amendment 2,
to have it say, "the investigating law enforcement agency shall
notify the business or governmental entity as soon as
notification will no longer interfere with the investigation and
at that point the business or governmental [entity] must notify
the consumer". There being no objection, [Conceptual]
Amendment 2 was amended.
CHAIR McGUIRE asked whether there were any further objections to
[Conceptual] Amendment 2, as amended. There being none,
[Conceptual] Amendment 2, as amended, was adopted.
2:16:08 PM
REPRESENTATIVE GARA made a motion to adopt [Conceptual]
Amendment 3, which read [original punctuation provided]:
Page 6, line 15 following "than"
Insert a new subsection to read:
" (1) $3 for the first time that the consumer
places a security freeze in a five year period under
AS 45.48.100"
Page 6, line 16 following "each"
Insert "subsequent"
Page 6, line 16
Delete (1)
Insert (2)
Page 6, line 19
Delete (2)
Insert (3)
Page 12 following line 5
Insert a new bill section to read:
"CONTINGENT EFFECT OF AS 45.48.160(a)(1) . If a court
of competent jurisdiction whose decisions are binding
in this state enters a final judgment that the charges
rendered in AS 45.48.160(a)(1) are unconstitutional,
then the charges shall be as stated in AS
45.48.160(a)(2), (a)(3) and AS 45.48.160(b)."
REPRESENTATIVE COGHILL objected for the purpose of discussion.
REPRESENTATIVE GARA said that he took care to mirror
California's comprehensive approach. However, California allows
a credit-reporting agency to charge $10 and $12 to either place
or remove a freeze. That amount seems significant, he remarked,
and so Conceptual Amendment 3 provides for a $3 charge for a
first time request within a five year period, and includes
conditional language which says that if a court finds that it is
unconstitutional to impose the lower charge then it will default
to the $10 and $12 charges. He pointed out that under language
currently in the bill, a person may place or remove a security
freeze without charge if he/she provides a credit reporting
agency with proof that he/she, in good faith, filed a police
report stating that his/her [personal information has been
breached].
REPRESENTATIVE COGHILL removed his objection.
CHAIR McGUIRE asked whether there were any further objections to
Conceptual Amendment 3. There being none, Conceptual
Amendment 3 was adopted.
2:19:06 PM
REPRESENTATIVE GARA made a motion to adopt Conceptual
Amendment 4, which, along with a note, read [original
punctuation provided]:
Page 6, line 14
Insert a new bill section to read:
"Sec. 45.48.150. Prohibition. When dealing with a
third party, a credit reporting agency may not
suggest, state, or imply that a consumer's security
freeze reflects a negative credit score, history,
report, or rating"
Page 7, line 12
Insert a new bill section to read:
"Sec. 45.48.190. Notification after violation.
If a credit reporting agency violates a security
freeze by releasing a consumer's credit report or
information derived from the credit report, the credit
reporting agency shall notify the consumer within five
business days after the release, and the information
in the notice must include an identification of the
information released and of the third party who
received the information."
Renumber following bill sections accordingly.
[Note: Taken from SB222]
CHAIR McGUIRE objected for the purpose of discussion.
REPRESENTATIVE GARA relayed that SB 222 addresses many more
subjects than HB 226, and Conceptual Amendment 4, which contains
language from SB 222, says in the first part that if a third
party contacts a credit reporting agency, the agency may not
suggest, state, or imply that a freeze on a consumer's
information reflects a negative credit score, history, report,
or rating.
CHAIR McGUIRE removed her objection, and asked whether there
were any further objections. There being none, Conceptual
Amendment 4 was adopted.
REPRESENTATIVE GARA, in response to a question regarding
Conceptual Amendment 3, relayed that he doesn't believe that the
lower charge of $3 proposed via Conceptual Amendment 3 will
violate the [federal] commerce clause but he is including the
contingent effect clause just in case the proposed lower charge
raises that issue.
2:22:11 PM
REPRESENTATIVE GARA made a motion to adopt Conceptual
Amendment 5, which, along with a note, read [original
punctuation provided]:
Page 11, line 14
Insert a new article in the bill to read:
"Article 3. Right to File Police Report Regarding
Identity Theft."
Sec. 45.48.300. Right to file police report regarding
identity theft. (a) Even if the local law enforcement
agency does not have jurisdiction over the theft of an
individual's identity, if an individual who has
learned or reasonably suspects the individual has been
the victim of identity theft contacts, for the purpose
of filing a complaint, a local law enforcement agency
that has jurisdiction over the individual's actual
place of residence, the local law enforcement agency
shall make a report of the matter and provide the
individual with a copy of the report. The local law
enforcement agency may refer the matter to a law
enforcement agency in a different jurisdiction.
(b) This section is not intended to interfere with the
discretion of a local law enforcement agency to
allocate its resources to the investigation of crime.
A local law enforcement agency is not required to
count a complaint filed under (a) of this section as
an open case for purposes that include compiling
statistics on its open cases.
Sec. 45.48.390. Definitions. In AS 45.48.300 -
45.48.390
(1) "crime" has the meaning given in AS 11.81.900
(2) "identity theft" means the theft of the
identity of an individual;
(3) "victim" means an individual who is the
victim of identity theft.
Renumber following bill sections accordingly.
[Language taken from SB222]
REPRESENTATIVE GARA mentioned that he'd gotten this language
from SB 222 as well, and that it addresses a person's ability to
file a police report regarding identity theft.
REPRESENTATIVE ANDERSON objected, and asked whether this
language will engender a fiscal note.
REPRESENTATIVE GARA acknowledged that this language might have a
minor fiscal impact, and explained that Conceptual Amendment 5
specifies that law enforcement shall allow a person to file a
report and thereby obtain a free security freeze; he noted that
[under Conceptual Amendment 5] a law enforcement agency will not
be required to investigate a situation outlined in the report.
REPRESENTATIVE ANDERSON said he will be maintaining his
objection because he thinks the proposed requirement to allow
people to file the aforementioned reports will be too burdensome
on law enforcement agencies.
REPRESENTATIVE GARA reiterated that Conceptual Amendment 5
stipulates that law enforcement will not have to take any action
on such reports.
REPRESENTATIVE ANDERSON argued that law enforcement agencies
will still have to fill out the reports.
2:24:56 PM
A roll call vote was taken. Representatives McGuire, Coghill,
Wilson, Gruenberg, and Gara voted in favor of Conceptual
Amendment 5. Representatives Anderson and Kott voted against
it. Therefore, Conceptual Amendment 5 was adopted by a vote of
5-2.
CHAIR McGUIRE encouraged Representative Gara to have someone
from law enforcement available to address this issue when the
bill is heard in the House Finance Committee.
REPRESENTATIVE GARA agreed to do so, and asked Representative
Anderson to contact law enforcement.
REPRESENTATIVE ANDERSON indicated that he would.
2:26:05 PM
REPRESENTATIVE GARA made a motion to adopt Conceptual
Amendment 6, which read [original punctuation provided]:
Page 2, line 16 following "(3)"
Insert "by substitute notice"
Page 2, line 17 following "$250,000,"
Insert "or"
Page 3, line 5-7
Delete "if the employee or agent does not use the
personal information for a purpose unrelated to the
activities of the business or governmental entity and
does not make further unauthorized disclosure of the
personal information."
Insert "provided that the personal information is
not used or subject to further unauthorized
disclosure."
Page 3, line 12 following "recover the"
Insert "actual"
CHAIR McGUIRE objected for the purpose of discussion.
REPRESENTATIVE GARA referred to the portion of Conceptual
Amendment 6 that proposes a change to page 2, line 16.
CHAIR McGUIRE said she doesn't know what the term, "substitute
notice" means.
REPRESENTATIVE COGHILL pointed out that [paragraphs (1)-(3)]
direct how a business or government shall make the disclosure.
REPRESENTATIVE GRUENBERG asked whether the term, "substitute
notices" is defined [in statute], or, if not, who would decide
what it means, or is it defined on lines 20-25 of page 2. If
the latter is the case, he remarked, then he would suggest
dividing Conceptual Amendment 6 into parts and amending it such
that it would add to page 2, line 19, the word, "substitute"
between the words, "provide notice".
REPRESENTATIVE GARA made a motion to amend Conceptual
Amendment 6, to delete the change proposed to page 2, line 16.
There being no objection, Conceptual Amendment 6 was amended.
REPRESENTATIVE GARA referred to the portion of Conceptual
Amendment 6, as amended, that proposes a change to page 2, line
17, and characterized this as a technical change.
2:29:29 PM
REPRESENTATIVE GARA referred to the portion of Conceptual
Amendment 6, as amended, that proposes a change to page 3, lines
5-7, and explained that the new proposed language would track
California statute; although both the current language of the
bill and the new proposed language seem to say the same thing,
as a matter of caution he would prefer to use the language in
California law.
REPRESENTATIVE GRUENBERG asked that Conceptual Amendment 6, as
amended, be divided.
CHAIR McGUIRE suggested instead that Representative Gruenberg
simply state his concerns.
REPRESENTATIVE GRUENBERG, referring to the portion of Conceptual
Amendment 6, as amended, that proposes a change to page 3, line
12, offered his belief that "actual damages" might be read to
mean special damages only as opposed to general damages, and
since an unauthorized disclosure could ruin a person, they
should not limit the damage award to actual damages.
REPRESENTATIVE GARA said his [initial thought] is that both
"damages" and "actual damages" mean "compensatory damages", but
he is willing to [delete that proposed change from Conceptual
Amendment 6, as amended].
REPRESENTATIVE GRUENBERG said he would be more comfortable if
the term, "actual" was not included.
REPRESENTATIVE GRUENBERG made a motion to again amend Conceptual
Amendment 6, as amended, by deleting the portion that proposes a
change to page 3, line 12. There being no objection, the second
amendment to Conceptual Amendment 6, as amended, was adopted.
CHAIR McGUIRE asked whether there were any further objections to
Conceptual Amendment 6, as amended twice. There being none,
Conceptual Amendment 6, as amended twice, was adopted.
REPRESENTATIVE ANDERSON offered his belief that Mr. George's
concern regarding encryption warrants further attention as the
bill moves through the process.
REPRESENTATIVE GARA agreed.
REPRESENTATIVE GRUENBERG, referring to proposed AS 45.48.390,
said it seems to him that anything in subparagraph (A) would
necessarily be in subparagraph (B). Referring to the actual
language in California's law pertaining to this issue, he
characterized that language as quite clear and well drafted. He
asked Representative Gara whether he would be amenable to
replacing the language currently in proposed AS 45.48.390 with
the language in California law, which read:
For purposes of this section, "personal information"
means an individual's first name or first initial and
last name in combination with any one or more of the
following data elements, when either the name or the
data elements are not encrypted:
(1) Social security number.
(2) Driver's license number or California
Identification Card number.
(3) Account number, credit or debit card number,
in combination with any required security code, access
code, or password that would permit access to an
individual's financial account.
REPRESENTATIVE GARA said he thinks that Representative Gruenberg
is correct on this issue and that [Mr. George] has a valid
concern.
2:35:58 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Conceptual
Amendment 7, to replace the language currently in proposed AS
45.48.390 with the language in California law except that Alaska
terms be used in place of California terms. There being no
objection, Conceptual Amendment 7 was adopted.
2:37:01 PM
REPRESENTATIVE WILSON, after noting that she'd had her personal
information stolen in the past, moved to report CSHB 226(L&C),
as amended, out of committee with individual recommendations and
the accompanying fiscal notes. There being no objection, CSHB
226(JUD) was reported from the House Judiciary Standing
Committee.
HB 190 - REQUIRED ID FOR PURCHASING ALCOHOL
2:38:05 PM
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 190, "An Act relating to the purchase of
alcoholic beverages and to requiring identification to buy
alcoholic beverages; requiring driver's licenses and
identification cards to be marked if a person is restricted from
consuming alcoholic beverages as a result of a conviction or
condition of probation or parole." [Before the committee was
CSHB 190(L&C).]
2:38:29 PM
REPRESENTATIVE HARRY CRAWFORD, Alaska State Legislature, sponsor
of HB 190, relayed that during the interim he'd had the
opportunity to consider the question of what can be done to
prevent the sort of situation in which he found himself last
year when his wife was struck by a drunk driver. House Bill 190
is intended to stop people from getting alcohol, from getting
drunk, from getting to the point where they kill and maim
people. Currently, judges will order people who are convicted
of felony driving under the influence (DUI) to not buy or
consume alcohol or enter premises where alcohol is sold;
however, those orders aren't enforced because there is not yet a
way to identify such people.
REPRESENTATIVE CRAWFORD said that HB 190 would require that
driver's licenses or state identification (ID) cards be marked
so that everyone could identify those who've been convicted of
DUI. A prior version of the bill required establishment owners
to be responsible for checking IDs for such marking, but that
concept didn't have statewide support, and so the current
version of HB 190 - CSHB 190(L&C) - makes the checking of IDs by
establishment owners voluntarily. If an establishment owner
does choose to check someone's ID and finds the marking that
indicates the person has been ordered by the court to not buy or
consume alcohol or enter premises where alcohol is sold, the
establishment owner could collect a civil damages award of
$1,000. He noted that he'd borrowed the civil fine concept from
legislation pertaining to minor consuming.
REPRESENTATIVE CRAWFORD relayed that Brown Jug, Inc. ("Brown
Jug"), had expressed a willingness to incorporate the checking
of IDs for court order designations into its current practices.
REPRESENTATIVE ANDERSON asked Representative Crawford whether
he's consulted with the Cabaret Hotel Restaurant & Retailer's
Association (CHARR) regarding this bill.
REPRESENTATIVE CRAWFORD indicated that he had but doesn't yet
have anything in writing. His understanding is that as long as
the proposal is voluntary, CHARR would have no objection to
checking IDs for evidence of court orders.
2:45:31 PM
REPRESENTATIVE CRAWFORD, in response to a question, explained
that the first portion of Section 1 specifies that the person
who has been ordered by the court to not buy or consume alcohol
or enter premises where alcohol is sold may not do so; CSHB
190(L&C) does not require an establishment owner to check IDs
for such court orders.
REPRESENTATIVE ANDERSON expressed favor with the concept
embodied in CSHB 190(L&C), and concern that IDs will soon start
containing more and more information about a person.
REPRESENTATIVE CRAWFORD noted that the strip on the back of
driver's licenses already provides certain information [as
described in AS 28.15.111(a)].
REPRESENTATIVE GRUENBERG said he supports the bill, but he is
questioning whether a stigma will be placed on a person with an
ID marked in the manner being proposed; a stigma, for example,
that could influence a job interview.
CHAIR McGUIRE said she agrees with the goals of the bill, but
questions whether marking one's ID in the fashion proposed would
be considered "cruel and unusual" punishment in that it would
constitute continued punishment - further punishment meted out
after one serves his/her time and pays his/her fines and
penalties.
REPRESENTATIVE CRAWFORD acknowledged that having one's ID marked
in the proposed manner could be somewhat of a stigma, but opined
that people should know that one is not to have alcohol or enter
onto premises that serve alcohol. He offered his understanding
that such a mark can be removed once the court order has been
satisfied/removed.
CHAIR McGUIRE noted that some states mark the license plates of
those who've been convicted of DUI, and asked whether anyone has
looked into the constitutional aspects of marking IDs in the
manner proposed.
2:51:20 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL),
indicated that she's not yet researched that issue, but added
that she would be surprised if there are any constitutional
ramifications given that an ID would only be marked for a
limited period of time.
CHAIR McGUIRE asked what such a mark would look like.
REPRESENTATIVE CRAWFORD said that the Division of Motor Vehicles
(DMV) would resolve that issue.
2:52:12 PM
DUANE BANNOCK, Director, Division of Motor Vehicles (DMV),
Department of Administration (DOA), relayed that he is not
familiar with any state that uses such a mark and so he cannot
answer that particular question. He said that CSHB 190(L&C)
still causes the DMV concern because currently there is not a
direct link of communication between the DMV and the Alaska
Court System, and thus there is no way for the DMV to determine
who has been court ordered to not buy or consume alcohol or
enter premises where alcohol is sold. And even though Section 2
of the bill states in part, "the person has been ordered to
refrain from consuming alcoholic beverages as part of a sentence
for conviction of a crime under AS 28.35.030 or as a condition
of probation or parole", the DMV doesn't have any idea what
would be expected in terms of how many "customers" it could be
dealing with and what would be expected if the court simply
faxes over court orders. For example, would the DMV be expected
to revoke the driver's privilege until the driver came to the
DMV to get another driver's license, and is there a time frame
involved? So although the DMV understands Section 4 of the
bill, the DMV is concerned about how it will get the information
in a timely manner so as to be able to act accordingly.
REPRESENTATIVE ANDERSON asked whether the establishment owner
would be held accountable by the Alcoholic Beverage Control
Board ("ABC Board") if he/she failed to identify someone as
having been ordered by the court to not buy or consume alcohol
or enter premises where alcohol is sold, what the fiscal impact
will be on the DMV, and whether an individual would be held
liable for providing alcohol to someone who has been ordered by
the court to not buy or consume alcohol or enter premises where
alcohol is sold.
2:55:42 PM
REPRESENTATIVE CRAWFORD answered that the establishment owner
would not be liable for failing to identify such individuals,
and that the DMV would be able charge those who must get a
marked ID with the cost associated issuing those IDs.
MR. BANNOCK, in response to a question, said it will be
difficult to determine the bill's fiscal impact on the DMV. He
noted that currently, every dollar the DMV collects is "defined"
by either statutory or regulatory authority, and so he is
presuming that the sponsor and the committee recognize that in
order for the DMV to comply with the bill, there will be a cost
to the DMV. And although the intent might be for the people who
have to get a marked ID to be the ones paying that cost, this
will require a statutory change because currently the cost of
licensure is the same for everyone and the DMV does not get to
raise the rate.
REPRESENTATIVE CRAWFORD, in response to Representative
Anderson's third question, offered his understanding that it is
already against the law for an individual to provide alcohol to
someone who has been ordered by the court to not buy or consume
alcohol or enter premises where alcohol is sold, though that
individual is not responsible for checking someone else's ID;
the bill will not change current law in that regard.
CHAIR McGUIRE asked Representative Crawford whether he's had a
chance to work out the details of cost and expectation with the
DMV.
REPRESENTATIVE CRAWFORD said he'd thought that that issue had
been resolved and so he will take further steps [to ensure that
it is], adding that he would be amenable to an amendment on that
issue. There are people being killed and maimed everyday, he
remarked, adding HB 190 differs from past attempts in that it
establishes a voluntary program that will provide establishment
owners with the financial incentive to check IDs for court
orders; something must be done to stop alcohol from getting into
the hands of those that are causing the most trouble, those that
continue to drink and drive. He explained that the person who
struck his wife had a blood alcohol concentration (BAC) of .38,
and offered his belief that one cannot get to that point of
intoxication without having had a lot of practice; the person
was a "multiple, repeat offender," and this is the type of
person he is targeting.
3:01:02 PM
REPRESENTATIVE GARA suggested that they consider a conceptual
amendment that would provide the DMV with the authority to
charge an enhanced fee for those that must get a marked ID.
CHAIR McGUIRE indicated that another issue for the DMV to
address would be how it will go about putting an appropriate
program in place. She asked Mr. Bannock whether he would like
the legislation to speak to that issue or whether he would
prefer that the details get worked out as the DMV sees fit.
MR. BANNOCK, contrary to an earlier comment, said that the DMV
does have a communication link with the ACS, but pointed out
that probation and parole situations are handled by the
Department of Corrections (DOC), which is not linked at all to
the DMV. One question that will need to be addressed is what
happens to the person referred to in Section 2. For example,
will he/she be required to surrender his/her unmarked ID? He
pointed out that people frequently come into the DMV and sign an
affidavit saying they've lost their ID; therefore, if someone
has to get a marked ID but claims that he/she lost his/her
unmarked ID, he/she will have both IDs and will be able to use
the one that suits him/her.
MR. BANNOCK said that the DMV concurs with the sponsor that
something needs to be done about Alaska's drunk driver problem,
but from the DMV's perspective, the cost/benefit ratio must be
considered. Also, if this bill passes, who, then, won't be
buying alcohol, and what will happen if a person refuses to
obtain a marked ID. Although vendors will have the option of
checking someone's ID for court orders, the bill doesn't speak
to whether a person under a court order will be required to get
a marked ID. The DMV will do as directed, he assured the
committee, but the question remains of how to implement the
proposed program: "exactly how are we going to get the
information, what do we do with it, and is it just as much of a
voluntary program for the person as it is for the vendor."
REPRESENTATIVE CRAWFORD requested that the DMV provide
suggestions for change. He posited that if a person refuses to
get a marked ID, then he/she may be refused service in
establishments that are voluntarily checking IDs for court
orders. He reiterated that the intent of the bill is to cut
down on the number of people who buy alcohol when they have been
ordered not to, and suggested that the $1,000 [civil] fine will
be a good incentive for establishment owners to assist in
stopping problem drinkers. He indicated that he is amenable to
working with the DMV to resolve its concerns, and opined that it
won't be that hard for the DMV to implement the proposed
program.
REPRESENTATIVE GARA asked whether a having a DUI conviction
mandates that one turn in one's license.
REPRESENTATIVE CRAWFORD offered his understanding that a first-
time DUI conviction wouldn't mandate such.
3:10:10 PM
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,
Office of the Administrative Director, Alaska Court System
(ACS), in response to questions, relayed that when an officer
stops someone for DUI, the officer seizes the license [at the
time of arrest], and the person can then get a temporary license
issued by the DMV.
REPRESENTATIVE WILSON surmised, then, that those arrested for
DUI won't have a license; thus such a person won't be able to
have two licenses as suggested by Mr. Bannock.
MR. WOOLIVER concurred that that would be the case at least
initially, but remarked that the situation could become more
complicated if a person is given back his/her license while
litigating the DUI charge. In such a situation, the person
could simply claim that his/her unmarked license was lost, with
the result being as Mr. Bannock predicted: the person would
then have both a marked license and an unmarked license.
REPRESENTATIVE GARA suggested that a solution would be to
require a person to swear under oath before the court that
he/she [has lost the unmarked license]; then, if a person lies
under oath, he/she could be found guilty of perjury. He opined
that a person should be required to have a marked license even
while a case is being litigated; in other words, while a case is
pending, if the person seeks to have his/her license returned,
it should be a license that is marked in the manner proposed by
the bill.
MR. WOOLIVER acknowledged that such a requirement might fill a
[loophole].
REPRESENTATIVE KOTT, referring to Section 2, offered a
hypothetical example in which a judge, as part a person's
probation, tells him/her that he/she can't have alcohol for a
period of time, and noted that Section 1 of the bill specifies
that a person who is not privileged to purchase alcohol cannot
enter or remain in the premises of an establishment that sells
alcohol. He asked whether this language would preclude a judge
from restricting a person's ability to consume or purchase
alcohol in situations where the person is employed by a licensed
premises.
MR. WOOLIVER offered his understanding that judges have, and
would retain, the discretion to set conditions of probation.
For example, a judge could say to the person that he/she can't
enter a licensed premise of any kind with the exception of the
one at which the person works.
REPRESENTATIVE CRAWFORD concurred, adding that the bill is
simply changing the enforcement aspect.
MR. WOOLIVER concurred.
3:14:43 PM
BRYAN TALBOTT-CLARK, President, Board of Directors, Anchorage
Chapter, Mothers Against Drunk Driving (MADD), said MADD
supports [HB 190], though he acknowledged that it will not solve
the problems of drunk drivers, domestic violence, child abuse,
sexual assault, or any of the many social ills that are fueled
by alcohol. He relayed his personal experience involving a dear
friend, Jessie Withrow, who was killed by a drunk driver who'd
been convicted of DUI six times previously and who had been
ordered by the court to not drive and to not buy or consume
alcohol or enter premises where alcohol is sold. He went on to
say:
This is an issue about choices. In this case we're
talking about a choice made by people who are under
orders not to drink, whether they're going to violate
that order. And this is about a way of helping them
to make the right choice, making it easier for them to
make the right choice. Like any choice, you can kind
of imagine a bell curve, where, on one end of it,
you've got people who are going to get around it
anyway they can - whether it's through a fake license,
getting somebody else to the buy the booze, whatever
it's going to be; on the other end, you've got people
who are afraid of any consequences and they're going
to follow it no matter what; [and] most people are
going to be in the middle, where, if they're presented
with temptation, it kind of depends on how much
temptation is it, what are the consequences, [and] how
hard it is to get around it.
And when we can set up an obstacle like this, we know
that we're going to move a few people from barely
making the wrong choice to barely making the right
choice. And so maybe we only save a few lives, but
the question I have to ask is, do we waste an
opportunity to save even a few lives with just a
little effort? This bill gives us that opportunity,
and I urge you not to waste it. On behalf of Mothers
Against Drunk Driving, and of myself, and for Jessie,
I urge you to support this bill. And thank you very
much for your attention.
3:18:33 PM
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on HB 190.
REPRESENTATIVE GARA made a motion to adopt Conceptual
Amendment 1, which, with handwritten corrections, read:
1) While a prosecution for a DWI, other than a first
DWI, is pending, and until restrictions on the right
to consume alcohol remain in effect, the State shall
only issue a license or State ID with markings as
provided by this statute.
2) The State has the authority to charge an enhanced
fee for a license or ID under this statute.
CHAIR McGUIRE objected for the purpose of discussion.
REPRESENTATIVE GARA posited that Conceptual Amendment 1 will
address the two concerns raised, the one pertaining to having
possession of an unmarked ID while a DUI case is pending, and
the one pertaining to fees. He asked whether it is a common
condition of probation in a DUI case that one not consume
alcohol, or whether is it a common condition that one not
consume alcohol while driving.
MS. CARPENETI said it depends, and while either of those
conditions is common, it is a more common condition that one not
consume alcohol or enter establishments that serve alcohol.
REPRESENTATIVE GARA surmised that they would only want the
marked-license provision to apply when the condition is to not
consume alcohol.
3:21:07 PM
REPRESENTATIVE GRUENBERG made a motion to amend Conceptual
Amendment 1 such that "shall" will become "may". There being no
objection, Amendment 1 was amended.
CHAIR McGUIRE removed her objection to Conceptual Amendment 1,
as amended. She asked whether there were any further objections
to Conceptual Amendment 1, as amended. There being none,
Conceptual Amendment 1, as amended, was adopted.
REPRESENTATIVE GRUENBERG noted that the bill currently doesn't
contain a mechanism requiring the ACS to notify the DMV when
such conditions are set by the court, and pondered whether the
bill should include such a mechanism.
REPRESENTATIVE CRAWFORD indicated that he would amenable to a
conceptual amendment to that effect, and surmised that such a
change will engender a fiscal note.
MR. WOOLIVER explained that right now the ACS transmits to the
DMV any judgment that affects a driver's license.
REPRESENTATIVE GRUENBERG asked whether this transmittal is
required by statute.
MR. WOOLIVER said he is not sure. Currently the judgments are
in paper form and there is a time delay, although the ACS hopes
to soon have everything done electronically.
MR. BANNOCK concurred that that is the case with regard to court
orders, but noted that Section 2 of the bill references both
court orders and conditions of probation and parole, and, again,
that the DMV has zero communication with the DOC.
REPRESENTATIVE GRUENBERG asked how long it takes for the DMV to
receive notification [of the aforementioned judgments].
KERRY HENNINGS, Driver Licensing, Director's Office, Division of
Motor Vehicles (DMV), Department of Administration (DOA), said
that although such judgments are received in about 10 days, it
can take up to two more weeks to manually enter the information
into the DMV's system.
MR. WOOLIVER, in response to a question, reiterated that the ACS
hopes to eventually be able to transfer everything
electronically.
3:25:25 PM
REPRESENTATIVE GRUENBERG asked the sponsor whether he would be
amenable to an amendment "that would be consistent with current
practice" but that didn't engender a fiscal note.
REPRESENTATIVE CRAWFORD indicated that he would be amenable to
such a change.
REPRESENTATIVE WILSON asked whether one can be ordered to not
drink and yet still be allowed to drive.
REPRESENTATIVE GRUENBERG offered his understanding that limited
licensure provides for such circumstances.
REPRESENTATIVE WILSON asked whether a limited license would
specify that the person could not drink.
REPRESENTATIVE GRUENBERG offered his understanding that it
would.
MR. WOOLIVER clarified that a lot judges impose drinking
restrictions on people who've committed crimes, crimes unrelated
to driving, while under the influence of alcohol.
REPRESENTATIVE WILSON asked how the DMV would know to change a
person's ID to reflect that although the person cannot drink,
he/she can still drive.
MR. WOOLIVER said that currently, under such an order for a
crime unrelated to driving, a person's driver's license isn't
affected and therefore it isn't changed; under HB 190, however,
the ACS would have to begin sending such information to the DMV
so that a person's ID could be marked.
CHAIR McGUIRE offered her understanding that this would require
additional processing [of information] by the DMV, and surmised
that it would be up to the DMV to decide how court-ordered
limitations will be designated on the licenses.
3:29:11 PM
REPRESENTATIVE GARA remarked that he might have created a
constitutional problem via Conceptual Amendment 1, as amended.
He elaborated: "My belief is that ... if you've already had a
[DUI] and you're on to your second [DUI], even when the case is
pending we should be able to mark a license, but I don't know
that constitutionally we can mark somebody's license if they
haven't been convicted just because the case is pending." He
suggested that the sponsor simply seek a way, before the bill is
heard in its next committee of referral, to close the loophole
wherein someone might be able to have possession of both a
marked license and an unmarked license.
REPRESENTATIVE GARA asked that the committee rescind it action
in adopting Conceptual Amendment 1, as amended. There being no
objection, the committee rescinded it action.
REPRESENTATIVE GARA, in response to a question, made a motion to
adopt Amendment 2, "which would say that the state has the
authority to charge a higher fee for a state ID or license that
contains the markings required by this bill". There being no
objection, Amendment 2 was adopted.
REPRESENTATIVE GRUENBERG, referring to Conceptual Amendment 1,
as amended, remarked, "I'm sure that the judge could do that as
a condition of bail."
CHAIR McGUIRE suggested that Representative Gruenberg pursue
that issue further with the sponsor.
REPRESENTATIVE KOTT reiterated his concern that the language in
Sections 1 and 2 will preclude a judge from placing a drinking
restriction on someone who works in licensed premise because
then that person wouldn't be able to go to work.
MR. WOOLIVER acknowledged that his earlier response to that
concern might have been in error. While it is true that a judge
can tailor conditions of probation, once a license that has an
alcohol restriction is issued, Section 1 of the bill will
preclude a person from entering or remaining in a licensed
premise regardless of what the conditions of probation say.
What one can do if one has a marked license is spelled out in
Section 1 of the bill, not in the conditions of probation.
Therefore, Representative Kott is correct in his concern.
3:33:20 PM
REPRESENTATIVE CRAWFORD offered his belief, though, that the
judge still has the discretion to specify that a person may not
drink but may enter his place of employment.
CHAIR McGUIRE surmised that Representative Kott's concern is
that the bill states that if a judge says one can't drink, then
one can't enter or remain in a licensed premise. She suggested
that the sponsor didn't intend for this to be the case, and
therefore perhaps [Section 1 of] the bill could be changed such
that one may not knowingly enter or remain in licensed premises
for the purposes of consuming alcohol.
REPRESENTATIVE CRAWFORD maintained his argument that the judge
can specify whether a person who has been ordered to not drink
may enter into a licensed premise for a purpose other than
consuming alcohol, adding his belief that the license could be
marked to reflect this distinction.
CHAIR McGUIRE opined that it would be better to clarify that
point in the bill. For example, currently under the bill, if a
restaurant had an alcohol license, then someone who'd been
ordered by a judge to not consume alcohol could not go to that
restaurant for a meal without violating Section 1.
REPRESENTATIVE CRAWFORD offered his belief that the only
possible penalty for such a violation would be the
aforementioned civil penalty should the establishment choose to
pursue it.
CHAIR McGUIRE surmised, then, that the bill would allow a
restaurant to seek a $1,000 civil fine from someone who had no
intention of drinking while in the restaurant.
REPRESENTATIVE CRAWFORD concurred.
CHAIR McGUIRE said she completely rejects that [concept].
REPRESENTATIVE CRAWFORD argued that currently, that person would
be violating the law anyway because he/she is violating his/her
court order if that order says that he/she may not enter or
remain in a licensed premise. What a judge may order of a
person is not being changed by HB 190; instead the bill merely
proposes to institute an enforcement mechanism for such orders.
CHAIR McGUIRE questioned whether there are really judges in this
state that are issuing orders precluding someone from even
entering premises that are licensed to serve alcohol. She said
she agrees that there are people who should not be drinking, and
that she is compelled by the arguments in favor of instituting
marked IDs, but she pointed out that it is tremendous leap to
then say that establishments with alcohol licenses would be off
limits to those people even if they are just there to eat, or to
gather for a social function, or to secure employment.
MR. WOOLIVER said it is not uncommon for a court to issue a
condition of probation that the person not consume alcohol or
enter a premise that serves alcohol; this is typically done in
more serious cases, though not all judges do so.
3:39:21 PM
REPRESENTATIVE GARA suggested amending page 1, line 10, to say,
"enter or remain on a premise that's licensed in this title to
obtain alcohol for personal consumption". Such a change would
allow a person to still eat or work in such a premise.
REPRESENTATIVE KOTT indicated that such a change would address
his concern.
REPRESENTATIVE WILSON remarked that a judge may make a
determination that a person shouldn't even enter an
establishment that is licensed to serve alcohol, and pointed out
that there are plenty of places for that person to eat or work.
Therefore she is not that concerned that a person may not be
able to enter certain establishments.
CHAIR McGUIRE pointed out that in small communities, the few
restaurants there are may well all be licensed to serve alcohol,
and so such an order would in effect preclude someone from going
out to eat.
REPRESENTATIVE GARA suggested that in such a situation the
license could simply be marked to indicate that a person may not
be in such an establishment for the purpose of obtaining alcohol
for personal consumption, though for some people the judge might
even go so far as to say a person can't go into such an
establishment for any purpose - the judge's discretion in that
regard would not be altered via the bill.
REPRESENTATIVE WILSON said she'd forgotten that some communities
may not have many restaurants.
REPRESENTATIVE KOTT offered the City of Kake as an example.
REPRESENTATIVE CRAWFORD, in response to questions, offered his
understanding that the bill provides that either a driver's
license or a state identification card could be marked, and said
that he didn't want someone's ID to be marked until he/she has
been convicted, and then only if that conviction is for a DUI
crime.
REPRESENTATIVE GARA made a motion to adopt Conceptual
Amendment 3, to insert after the word, "title", on page 1, line
10, the words, "to obtain alcohol for personal consumption".
There being no objection, Conceptual Amendment 3 was adopted.
3:44:45 PM
REPRESENTATIVE GARA moved to report CSHB 190(L&C), as amended,
out of committee with individual recommendations and the
accompanying fiscal notes. There being no objection, CSHB
190(JUD) was reported from the House Judiciary Standing
Committee.
ADJOURNMENT
3:45:04 PM
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:45 p.m.
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