04/06/2008 03:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB323 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 323 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 6, 2008
4:00 p.m.
MEMBERS PRESENT
Representative Jay Ramras, Chair
Representative Nancy Dahlstrom, Vice Chair
Representative John Coghill
Representative Bob Lynn
Representative Ralph Samuels
Representative Max Gruenberg
MEMBERS ABSENT
Representative Lindsey Holmes
COMMITTEE CALENDAR
HOUSE BILL NO. 323
"An Act relating to the crimes of assault in the fourth degree
and of resisting or interfering with arrest; relating to the
determination of time of a conviction; relating to offenses
concerning controlled substances; relating to issuance of search
warrants; relating to persons found incompetent to stand trial
concerning criminal conduct; relating to probation and to
restitution for fish and game violations; relating to
aggravating factors at sentencing; relating to criminal
extradition authority of the governor; removing the statutory
bar to prosecution of certain crimes; amending Rule 37(b),
Alaska Rules of Criminal Procedure, relating to execution of
warrants; and providing for an effective date."
- MOVED CSHB 323(JUD) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 323
SHORT TITLE: CRIMINAL LAW/PROCEDURE: OMNIBUS BILL
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
01/17/08 (H) READ THE FIRST TIME - REFERRALS
01/17/08 (H) JUD, FIN
01/30/08 (H) JUD AT 1:00 PM CAPITOL 120
01/30/08 (H) Heard & Held
01/30/08 (H) MINUTE(JUD)
03/28/08 (H) JUD AT 1:00 PM CAPITOL 120
03/28/08 (H) Heard & Held
03/28/08 (H) MINUTE(JUD)
03/31/08 (H) JUD AT 1:00 PM CAPITOL 120
03/31/08 (H) <Bill Hearing Canceled>
04/04/08 (H) JUD AT 1:00 PM CAPITOL 120
04/04/08 (H) Heard & Held
04/04/08 (H) MINUTE(JUD)
04/06/08 (H) JUD AT 3:00 PM CAPITOL 120
WITNESS REGISTER
ANNE CARPENETI, Assistant Attorney General
Legal Services Section
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 323.
RODNEY DIAL, Lieutenant, Deputy Commander
A Detachment
Division of Alaska State Troopers
Department of Public Safety (DPS)
Ketchikan, Alaska
POSITION STATEMENT: Testified in support of HB 323.
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 323.
ACTION NARRATIVE
CHAIR JAY RAMRAS called the House Judiciary Standing Committee
meeting, which had been recessed on 4/4/06, back to order at
4:00:37 PM. Representatives Samuels, Lynn, Dahlstrom, Coghill,
and Ramras were present at the call to order. Representative
Gruenberg arrived as the meeting was in progress.
Representative Holmes was excused.
HB 323 - CRIMINAL LAW/PROCEDURE: OMNIBUS BILL
4:00:52 PM
CHAIR RAMRAS announced that the only order of business would be
HOUSE BILL NO. 323, "An Act relating to the crimes of assault in
the fourth degree and of resisting or interfering with arrest;
relating to the determination of time of a conviction; relating
to offenses concerning controlled substances; relating to
issuance of search warrants; relating to persons found
incompetent to stand trial concerning criminal conduct; relating
to probation and to restitution for fish and game violations;
relating to aggravating factors at sentencing; relating to
criminal extradition authority of the governor; removing the
statutory bar to prosecution of certain crimes; amending Rule
37(b), Alaska Rules of Criminal Procedure, relating to execution
of warrants; and providing for an effective date." [Before the
committee was the proposed committee substitute (CS) for HB 323,
Version 25-GH2038\K, Luckhaupt, 4/2/08, which had been adopted
as the work draft on 4/4/08.]
4:00:58 PM
REPRESENTATIVE DAHLSTROM moved [to adopt] the proposed committee
substitute (CS) for HB 323, Version 25-GH2038\L, Luckhaupt,
4/6/08, [as the work draft]. There being no objection, Version
L was before the committee.
CHAIR RAMRAS indicated that Sections 1 and 2 of Version L will
change AS 04.16.051(a) and AS 04.16.052, respectively, such that
a licensee or an agent or employee of a licensee who - while
working on the licensed premises - furnishes or delivers an
alcoholic beverage to someone under the age of 21 will be
subject to a class A misdemeanor instead of a class C felony.
He offered his belief that this change will provide a
distinction between those who accidentally serve alcohol to
someone under the age of 21 and those who do it "with malicious
intent."
REPRESENTATIVE GRUENBERG, pointing out that Section 2 uses the
phrase, "may not with criminal negligence", asked what level of
crime it would be when the licensee or agent or employee of the
licensee - while working on the licensed premises -
"intentionally" or "knowingly" serves alcohol to a person under
the age of 21. He opined that if someone is knowingly or
intentionally furnishing alcohol to a person under the age of
21, it shouldn't make a difference whether he/she is a
licensee/agent/employee or just another customer of the
establishment. He surmised that the change proposed by Sections
1 and 2 will let someone off the hook for serving alcohol to a
minor just because he/she happens to be an employee.
CHAIR RAMRAS said that that person would still be charged with a
class A misdemeanor. In response to a question, he offered his
understanding that the same would be true if the person was not
[a licensee/agent/employee] unless it was his/her second or
subsequent offense. He acknowledged, though, that the change
proposed by Sections 1 and 2 will create a gap through which
licensees/agents/employees who continue to intentionally serve
alcohol to minors can fall through - such a person would still
only be charged with a class A misdemeanor [regardless of how
many times he/she breaks the law].
REPRESENTATIVE GRUENBERG asked how they should deal with that
gap.
REPRESENTATIVE SAMUELS said he is assuming that that person
would lose his/her job.
REPRESENTATIVE GRUENBERG said he is merely considering this gap
from a criminal-law point of view, and asked Chair Ramras
whether he wants to address repeat offenders who continue to
offend in their capacity as a licensee/agent/employee.
CHAIR RAMRAS said he doesn't want to.
REPRESENTATIVE DAHLSTROM said her view is that the legislature
is simply setting up the guidelines with regard to what the
consequences will be when a person makes certain choices.
4:11:48 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), in response
to a question, explained that under Sections 1 and 2, a
licensee/agent/employee who - while working on the licensed
premises - serves alcohol to a minor would only be subject to a
class A misdemeanor regardless of whether he/she does it with
criminal negligence, or knowingly, or intentionally, and that's
because the culpable mental state of "criminal negligence" also
includes "knowingly" and "intentionally." In response to
questions, she said that a repeat offender who is not a
licensee/agent/employee would be subject to a class C felony,
whereas a repeat offender who is a licensee/agent/employee would
only be subject to a class A misdemeanor.
REPRESENTATIVE GRUENBERG asked why shouldn't repeat offenders be
subject to the same penalty regardless of where they work.
CHAIR RAMRAS - characterizing the penalties associated with a
class A misdemeanor as not insignificant - opined that because a
licensee/agent/employee has far more opportunity to serve
alcohol to a minor, the licensee/agent/employee shouldn't be
subject to a class C felony.
REPRESENTATIVE GRUENBERG said he doesn't see why the
consequences should be different just because the repeat
offender committed the offense while on the job. Why should a
repeat offender be protected just because he/she is an employee
of an establishment that serves alcohol?
4:17:29 PM
REPRESENTATIVE SAMUELS asked who determines that the
licensee/agent/employee should have known that he/she was being
presented with a fake identification (ID).
MS. CARPENETI explained that the State would have to decide
whether there is enough evidence to prove criminal negligence,
which means being so unaware as to not recognize the risk that
is there. One reason the DOL is happy with [the change proposed
by Sections 1 and 2], she relayed, is that it will help servers
make "that" decision even when they're busy, and the State will
have a better chance of proving criminal negligence or at least
recklessness because a fake ID was seen by the
licensee/agent/employee but then ignored.
REPRESENTATIVE SAMUELS indicated that the penalty should be a
class C felony if it is obvious that the person being served
alcohol is underage.
REPRESENTATIVE GRUENBERG offered his understanding that in order
for the State to prove a mens rea of "knowing," the state would
have to show that that particular person knew something - not
just that a reasonable person would know something.
MS. CARPENETI clarified that in proving "knowingly," the State
merely has to show either that one did know or that one should
have known. Particularly when a circumstance is so obvious that
one should have known, the State doesn't have to prove that that
particular person did know.
REPRESENTATIVE GRUENBERG posited that borderline situations
wouldn't be prosecuted.
CHAIR RAMRAS disagreed.
REPRESENTATIVE GRUENBERG surmised, then, that if the State were
to prosecute a licensee/agent/employee in a borderline
situation, then the State would also prosecute someone in a
borderline situation who isn't a licensee/agent/employee. He
said his concern is that there might be an equal protection
issue raised if the average person is subject to a felony for
knowingly or willfully serving alcohol to an underage person but
a licensee/agent/employee isn't. What societal interest is
there that's compelling, or under any constitutional standard,
to protect the licensee/agent/employee, since normally the
licensees/agents/employees are held to a higher standard?
Doesn't that raise a constitutional problem?
4:22:55 PM
MS. CARPENETI said she's not yet researched that issue, but
could do so. She added that although the change proposed by
Sections 1 and 2 would treat people differently, it recognizes
that the circumstances would be different as well, depending on
who the person is, because the existing provisions of law use
different culpable mental states. Under the bill, the mens rea
for a licensee/agent/employee would be criminally negligent,
whereas currently the mens rea for a licensee/agent/employee is
knowingly. She said she is not sure whether the change proposed
via Sections 1 and 2 would raise a constitutional issue.
CHAIR RAMRAS said that the distinction he is making is that for
a licensee/agent/employee, the behavior is occurring in a
licensed premise, where there is more oversight by the Alcoholic
Beverage Control Board ("ABC Board"). He said he is questioning
whether someone who serves alcohol as part of his/her job should
be held to the same level of culpability as one who doesn't.
REPRESENTATIVE GRUENBERG said it seems to him, however, that
when speaking about a second willful or knowing offense, the
higher penalty ought to apply regardless of where the person
works; it's not about where the offense occurs, but about who is
committing the offense.
CHAIR RAMRAS argued that where the offense occurs creates a
different dynamic.
REPRESENTATIVE GRUENBERG said he thinks the penalty should be
the same - a class C felony - adding that he still hasn't heard
any good reason for [the penalty to be different based on where
one works].
CHAIR RAMRAS said he doesn't want to hold someone who serves
alcohol as part of his/her job to the same standard as a member
of the general public.
REPRESENTATIVE GRUENBERG pointed out that Section 2 only applies
to someone who is acting with criminal negligence, whereas he is
speaking about the licensee/agent/employee who willfully - for a
second or subsequent time - serves alcohol to a minor. He
indicated that he might offer an amendment to address a
licensee/agent/employee who is willfully/knowingly - while
working on the licensed premises - serving alcohol to a minor
for a second or subsequent time. He said he has a problem with
only charging a repeat offender who is a licensee/agent/employee
with a class A misdemeanor but charging a repeat offender who is
not a licensee/agent/employee with a class C felony - both types
of willful/knowing, repeat offenders should be charged with a
class C felony.
4:33:00 PM
RODNEY DIAL, Lieutenant, Deputy Commander, A Detachment,
Division of Alaska State Troopers, Department of Public Safety
(DPS), said the DPS supports Version L of HB 323, particularly
those provisions dealing with search warrants, because they will
increase the DPS's productivity, and the mandatory minimum
sentencing provisions pertaining to the importation of alcohol,
because they will assist the DPS's efforts to keep alcohol out
of communities that prohibit it.
MS. CARPENETI explained that Sections 3 and 4 would change the
statutes pertaining to bootlegging. Currently the crime of
bootlegging is a felony if a person brings alcohol in excess of
certain amounts into a community in violation of a local option,
and a misdemeanor if the amounts are less than those certain
amounts. Under Section 3 of the bill, it would be a felony if
the amount of alcohol being brought in is less than those
certain amounts but it is the person's third or subsequent
conviction within the last 10 years. She explained that Section
4 would impose mandatory minimum sentences and fines for
bootleggers that are almost the same as the mandatory minimum
sentences and fines pertaining to driving under the influence
(DUI) crimes and the crime of refusing to take a chemical test
for purposes of establishing blood alcohol concentration (BAC);
the only difference is that under Section 4, the look-back
period for bootlegging crimes is 10 years, whereas the look-back
period for DUI crimes is 15 years.
REPRESENTATIVE SAMUELS referred to Section 4's proposed
subsection (g)(1)(B), said he is assuming that bootlegging is a
lucrative business, and asked what the DOL would think of making
the mandatory minimum fine for a second offense $10,000 or
$20,000 instead of just $3,000, which he characterized as not
being very much money and perhaps an amount that's just viewed
as part of the cost of doing business.
MS. CARPENETI said that the DOL considers the sentences and
fines listed in Section 4 as a really good start, particularly
given that currently it is very difficult to get a significant
sentence applied to bootlegging convictions, and given that the
mandatory minimum sentences and fines proposed in Section 4 are
much greater than what they currently are. She added, though,
that she doesn't have any philosophical disagreement with the
suggestion to increase the fines to $10,000 or $20,000, and does
agree that deciding to be a bootlegger is an economic decision
whereas deciding to drive drunk is not.
4:39:08 PM
REPRESENTATIVE SAMUELS, in response to a question, indicated
that he would be willing to raise the fines listed in proposed
subsection (g)(1) to $10,000.
CHAIR RAMRAS asked Representative Samuels whether he is thinking
to leave the sentences listed in proposed subsection (g)(1) as
they are.
REPRESENTATIVE SAMUELS characterized raising the fines as a
commercial disincentive, and bootlegging as just a business out
to make money.
REPRESENTATIVE GRUENBERG sought clarification that the
suggestion to increase the fines would not apply to proposed
subsection (g)(1)(A) - which pertains to a first offense - but
would instead start with changing proposed subsection (g)(1)(B)
- which pertains to a second offense.
REPRESENTATIVE SAMUELS concurred.
MS. CARPENETI reminded members that Section 4 is only proposing
mandatory minimum sentences and fines, and so the fines and
sentences a judge orders could actually end up being higher. In
response to a question, she said that currently the maximum fine
is $10,000 for a class A misdemeanor and $50,000 for a class C
felony.
4:41:09 PM
REPRESENTATIVE GRUENBERG referred to Section 4's proposed
subsection (h), and suggested that the committee might wish to
look at the $10,000 fine outlined on line 6. He then referred
to Section 4's proposed subsections (i), (j), and (k) and asked
what the difference is between subsections (i) and (j).
MS. CARPENETI said that subsection (i) defines what is meant by
the term "previously convicted" with regard to subsection (g) -
the misdemeanor provisions - and that subsection (j) defines
what is meant by that same term with regard to subsection (h) -
the felony provisions.
REPRESENTATIVE GRUENBERG asked what the consequences are for a
person who is convicted of a felony for the first time but has a
previous misdemeanor conviction.
MS. CARPENETI offered her understanding that one wouldn't be
convicted of a felony unless he/she already has two prior
misdemeanor convictions; so if one has not yet been convicted of
a felony, then only the misdemeanor provisions of [subsection
(g)] would apply.
REPRESENTATIVE GRUENBERG asked how Section 4's subsection (k)
would work.
MS. CARPENETI said subsection (k) simply tells the court what
standard to use when determining whether a third felony
conviction within the 10 preceding years has a occurred; the
court would look at the sentencing date of prior convictions as
the conviction date.
REPRESENTATIVE GRUENBERG asked why the court shouldn't consider
the date the offense occurred instead.
MS. CARPENETI explained that under common law in Alaska, the
court generally - for future consequences - counts the
conviction as occurring on the date of sentencing. Court
decisions have held that that is the date that the judge looks
the defendant in the face and says, "You have violated our laws,
now is the time to accept the consequences of it." Setting this
standard out in subsection (k) will ensure that the courts
understand that this is what the legislature intends.
4:46:31 PM
REPRESENTATIVE SAMUELS offered a hypothetical example in which a
person throws a party at which several underage persons consume
alcohol, and asked whether each instance of an underage person
consuming alcohol at that party would be considered a separate
offense for purposes of constituting a prior conviction.
MS. CARPENETI indicated that they would not because the person
would have had to have been convicted and sentenced for a first
offense prior to having committed the current offense.
CHAIR RAMRAS pointed out that that hypothetical example has no
bearing on the change proposed by Sections 1 and 2 of Version L.
REPRESENTATIVE GRUENBERG referred to serial arsonists, and
offered his understanding that even though they've generally set
three or four fires before they're charged for a first offense,
they can't be charged with a felony until after they've been
previously convicted, and surmised that Section 4 is merely
outlining a similar standard.
MS. CARPENETI concurred, and added, "Generally these statutes
say, 'on two or more separate occasions' when you're looking at
prior strikes." In response to questions about the crime of
theft, she said that theft of $500 [or more] on one occasion is
a felony, and that theft of $100 is a misdemeanor. In response
to a question about whether a series of thefts would warrant a
felony charge, she said that although it would depend on whether
the DOL - under the circumstances of the particular case - could
prove the behavior constituted a course of conduct, a series of
thefts [for amounts under $500] would simply be misdemeanors.
REPRESENTATIVE GRUENBERG said he would not be offering an
amendment addressing Sections 1 and 2 at this time, but would
research the issue raised by those sections further and let
members know if he develops something.
4:51:56 PM
MS. CARPENETI - referring to Section 11, which establishes the
crime of criminally negligent burning in the first degree -
suggested that the words, "on two separate occasions" be added
after the word, "convicted" on page 6, lines 11. Such a change
would ensure that the proposed enhancement of a misdemeanor to a
felony-level crime would occur for a third offense instead of a
second offense.
REPRESENTATIVE GRUENBERG indicated that although such a change
would not be his first choice, he recognizes that it could be
helpful to those who must enforce Section 11.
REPRESENTATIVE GRUENBERG then made a motion to adopt Conceptual
Amendment 1, such that the words, "on two separate occasions,"
be added after the word, "convicted" on page 6, lines 11. There
being no objection, Conceptual Amendment 1 was adopted.
REPRESENTATIVE SAMUELS referred to Section 4, and asked whether
someone convicted of proposed AS 04.16.200 would be subject to
forfeiture of the equipment used to transport bootleg alcohol.
MS. CARPENETI explained that such equipment would be subject to
forfeiture under AS 04.16.220(a)(3).
4:56:23 PM
REPRESENTATIVE SAMUELS made a motion to adopt Conceptual
Amendment 2, which read [original punctuation provided]:
pg 3 line 3
line 13 delete 3000,
insert 10,000
line 15 delete 4000
insert 15,000
line 18 delete 5000
insert 20,000
line 21 delete 6000
insert 25,000
line 13 delete 7000,
insert 30,000
REPRESENTATIVE COGHILL objected for the purpose of discussion.
REPRESENTATIVE SAMUELS offered his belief that if a person has
been convicted of bootlegging once and has therefore already
forfeited the equipment used, already paid a minimum fine of
$1,500, and already spent a minimum of three days in jail but
still chooses to engage in bootlegging, it must still be worth
the person's while to be bootlegging as a business.
CHAIR RAMRAS offered his understanding, though, that the maximum
fine for a misdemeanor is $10,000.
MS. CARPENETI clarified that Title 12 actually allows for higher
fines as long as they are specified in statute; the maximum fine
is $10,000 only if no other amount is specified.
REPRESENTATIVE SAMUELS opined that if someone has previously
been convicted of bootlegging [more than] four times and still
chooses to engage in bootlegging, the fine "probably can't get
high enough for me."
REPRESENTATIVE COGHILL asked whether Conceptual Amendment 2
would make prosecution more difficult, and, if so, whether they
should instead just [decrease] the amount of alcohol that
warrants only a misdemeanor charge, as opposed to increasing the
fines.
CHAIR RAMRAS asked whether [Conceptual Amendment 2] would place
an additional burden on the court system.
4:59:14 PM
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,
Office of the Administrative Director, Alaska Court System
(ACS), said he didn't know whether Conceptual Amendment 2 would
make bootlegging crimes more difficult to prosecute, since
issues related to prosecution fall under the purview of the DOL.
and that the ACS merely imposes whatever penalty the legislature
mandates. He noted, however, that under Conceptual Amendment 2,
only the misdemeanor fines [proposed under subsection (g)] would
be increased, whereas the felony fine [proposed under subsection
(h)] would stay at $10,000; if that remains the case, then
conceivably under Conceptual Amendment 2, there could be a
$30,000 misdemeanor fine but only a $10,000 felony fine.
MS. CARPENETI said that Conceptual Amendment 2 shouldn't impede
the DOL's prosecution of bootlegging cases, since the fine
amount is not an element of the offense - it's not something
that has to be proven in order to get a conviction. She added,
however, that she would like to discuss this issue with the
DOL's prosecutors.
CHAIR RAMRAS expressed a preference for amending Conceptual
Amendment 2 such that the fines listed on page 3, lines 13, 15,
18, 21, and 24 all be raised to $10,000. He characterized a
fine of $10,000 as a significant deterrent, and said he is not
sure that having the fine escalate as Conceptual Amendment 2
currently proposes would be that much more of a deterrent,
particularly given that the terms of imprisonment [outlined in
subsection (g)] are still increasing with each subsequent
conviction.
REPRESENTATIVE SAMUELS indicated that he is unsure whether a
fine of only $10,000 will be sufficient to deter repeat
offenders.
REPRESENTATIVE DAHLSTROM relayed that when the House Community
and Regional Affairs Standing Committee heard legislation with
provisions similar to Sections 3 and 4, some members from the
Bush had expressed a strong desire for having the fines and
periods of imprisonment for bootlegging crimes increased, as
well as for having bootleggers forfeit absolutely anything and
everything that they use in the commission of their crimes. She
offered her belief that an increase in the fines will act as a
deterrent for those who bootleg as a business.
REPRESENTATIVE COGHILL offered his understanding that even a
fourth bootlegging conviction warrants a felony charge and thus
he isn't sure why they should be including subparagraphs (E) and
(F) in Section 4's subsection (g)(1).
MS. CARPENETI, in response to comments, acknowledged that the
maximum amounts of alcohol that only warrant a misdemeanor
bootlegging charge are still large amounts of alcohol. Beyond
those amounts, the charge becomes a felony and there is then
also the presumption that the person is intending to sell the
alcohol. Furthermore, [under Section 3], a third conviction
within 10 years warrants a felony charge, and subparagraphs (C)-
(F) of Section 4's subsection (g)(1) addresses previous
convictions that occur outside of [Section 3's] 10-year look-
back period.
5:05:42 PM
MS. CARPENETI, in response to questions, said that currently
bootlegging amounts of alcohol under 10.5 liters of distilled
spirits, or 24 liters of wine, or 12 gallons of malt beverage
warrants a class A misdemeanor charge with a maximum of one year
of imprisonment and a $10,000 fine; that bootlegging amounts of
alcohol over the aforementioned limits warrants a class C felony
charge with a maximum of five years of imprisonment and a
$50,000 fine; that currently there are no mandatory minimum
sentences or fines set out in statute; and that the bill is
setting out those mandatory minimum sentences and fines.
REPRESENTATIVE DAHLSTROM offered her understanding that under
Version L, particularly if Conceptual Amendment 2 is adopted,
the bootlegging provisions of statute will become much stronger,
something many people want to see happen. The amounts of
alcohol being bootlegged is of secondary concern compared to the
fact that that bootlegged alcohol is being transported into
communities that have voted themselves "damp" or "dry."
CHAIR RAMRAS expressed an interest in seeing an amendment that
would make bootlegging a felony sooner; that would provide for
greater fines; and that would ensure that bootlegging offenses
are prosecutable.
MS. CARPENETI suggested providing for a longer look-back period
- perhaps a 15-year look-back as is the case with DUI crimes;
this would ensure that more prior convictions are being counted
towards a third conviction, which would warrant a felony charge.
She said she doesn't have any philosophical objections to
raising the fines, but wants to ask the DOL's prosecutors to
consider that issue.
5:10:30 PM
REPRESENTATIVE SAMUELS made a motion to amend Conceptual
Amendment 2 such that the fines listed on page 3, lines 13, 15,
18, 21, and 24 would all be raised to $10,000. There being no
objection, Conceptual Amendment 2 was amended.
REPRESENTATIVE COGHILL withdrew his objection.
CHAIR RAMRAS announced that Conceptual Amendment 2, as amended,
was adopted.
5:12:25 PM
REPRESENTATIVE COGHILL made a motion to adopt Amendment 3, to
delete subparagraphs (E) and (F) from page 3, lines 21-26.
CHAIR RAMRAS objected for the purpose of discussion.
REPRESENTATIVE COGHILL asked whether Amendment 3 would allow
someone to be charged with a felony sooner.
MS. CARPENETI said she doesn't think it would because there are
some prior convictions that would have occurred outside of
[Section 3's] proposed 10-year look-back period, [and
eliminating Section 4's subparagraphs (E) and (F) would simply
result in some fifth and subsequent misdemeanor convictions not
being subject to the proposed escalating mandatory minimum terms
of imprisonment]. Again, changing the look-back period to 15
years would gather more misdemeanor convictions that could be
applied towards a third, and therefore felony, conviction.
REPRESENTATIVE COGHILL withdrew Amendment 3.
5:13:43 PM
REPRESENTATIVE COGHILL again questioned whether they should
decrease the quantity of alcohol that warrants only a
misdemeanor charge. He asked the DOL to consider this issue
further as the bill moves through the process.
MS. CARPENETI, in response to a comment, clarified that
bootlegging amounts of alcohol lower than the amounts currently
outlined in statute still warrants prosecution as a class A
misdemeanor.
REPRESENTATIVE COGHILL concurred, but added, "I also understand
how misdemeanors get treated in so many rural areas."
MS. CARPENETI agreed to research the issue further. In response
to a question, she explained that [under Section 3], bootlegging
amounts of alcohol lower than the amounts currently outlined in
statute is a class A misdemeanor if it is a first or second
offense within 10 years.
CHAIR RAMRAS asked what the minimum amount of alcohol is that
would result in a class A misdemeanor bootlegging charge.
REPRESENTATIVE COGHILL offered his understanding that very small
amounts would be acceptable. His concern, he relayed, is that
the behavior of bootlegging only misdemeanor-level amounts of
alcohol will simply continue because misdemeanors aren't
prosecuted as vigorously as felonies. He characterized the
maximum amounts warranting only a misdemeanor charge as enough
to supply a whole village in some cases.
MS. CARPENETI again agreed to research the issue further.
CHAIR RAMRAS expressed a preference for addressing this issue
before the bill moves to its next committee of referral.
REPRESENTATIVE COGHILL, in response to comments and a question,
offered his belief that lowering the maximum amounts of alcohol
that warrant only a misdemeanor charge would result in more
felony charges and thus more prosecutions.
CHAIR RAMRAS said he is amenable to that concept, and surmised
that such a change would address the concerns of those who spoke
on this issue in the House Community and Regional Affairs
Standing Committee. He asked what the amounts currently listed
in statute translate to in terms of commonly referenced amounts.
REPRESENTATIVE SAMUELS offered his understanding that 24 liters
of wine would be two cases of wine assuming that there are 12
bottle of wine to a case; that 10.5 liters of distilled spirits
would be roughly a case of distilled spirits; and that 12
gallons of malt beverage would perhaps be three-fourths of a keg
but he is not sure how many cans of beer that would be. He
surmised that bootleggers aren't going to be transporting kegs
of beer, but will instead be transporting cans of beer.
CHAIR RAMRAS, after attempting to calculate how many cases of
beer 12 gallons would result in, asked what the threshold
amounts listed in statute should be changed to.
5:24:47 PM
REPRESENTATIVE COGHILL suggested changing the amounts to half of
what they currently are. He surmised that the issue of
enforcement also needs to be addressed.
REPRESENTATIVE COGHILL then made a motion to adopt Conceptual
Amendment 4 such that [throughout proposed AS 04.16.200(e)],
10.5 liters of distilled spirits be changed to 5 liters of
distilled spirits, 24 liters of wine be changed to 12 liters of
wine, and 12 gallons of malt beverage be changed to 6 gallons of
malt beverage.
CHAIR RAMRAS objected for the purpose of discussion. He
surmised that Conceptual Amendment 4 will address the concern
that misdemeanors [are sometimes not prosecuted as often as
felonies].
REPRESENTATIVE COGHILL concurred.
CHAIR RAMRAS removed his objection. After ascertaining that
there were no further objections, he relayed that Conceptual
Amendment 4 was adopted.
5:26:53 PM
REPRESENTATIVE SAMUELS drew attention to Section 3's 10-year
look-back period outlined on page 3, line 5. He asked why a
period of 10 years was chosen.
MS. CARPENETI said that some look-back periods, such as for
theft and furnishing alcohol to a minor, are for 5 years, and
some, such as for DUI, are for 15 years. So when considering HB
323, the DOL viewed a 10-year look-back period as being good
middle ground; furthermore, there are 10-year look-back periods
for other crimes as well.
REPRESENTATIVE GRUENBERG added that the bill's proposed crime of
criminally negligent burning in the first degree has a 10-year
look-back period.
MS. CARPENETI noted that at one point in time there was no look-
back period for DUI but then the legislature decided to
establish a 15-year look-back period. The longer the look-back
period is, she offered, the harsher it is because there is "more
time to gather up your misdemeanors."
REPRESENTATIVE COGHILL said he objects to changing the look-back
period because they've already increased the minimum mandatory
penalties and have decreased the amounts alcohol that warrant a
felony charge, and he is not sure what ramifications even just
those changes will have on prosecution efforts.
REPRESENTATIVE SAMUELS asked how often the bootleg
transportation of just one bottle of alcohol is prosecuted. He
said he is assuming that only commercial bootlegging enterprises
get prosecuted.
MS. CARPENETI said that that is her understanding as well.
MR. WOOLIVER added:
When I look back at our prosecutions, all I see from
our numbers is how many times ... the crime [was]
charged, and, absent looking at the details of each
individual case, that's not something that we gather.
Although these could be in conjunction with another
prosecution, too - you [could get] prosecuted for
assault and they find that you've got the alcohol, so
that can be an add-on - so even small amounts of
alcohol can become part of a prosecution even when
it's not the primary underlying [crime].
5:30:58 PM
REPRESENTATIVE SAMUELS made a motion to adopt Conceptual
Amendment 5, to delete "10" on page 3, line 5, and insert "15".
REPRESENTATIVE COGHILL objected. He said he is just not sure
what the ramifications of such a change, in addition to the ones
already made, will be.
REPRESENTATIVE GRUENBERG noted that he'd once defended a person
engaged in a commercial bootlegging operation.
A roll call vote was taken. Representatives Lynn, Dahlstrom,
Samuels, and Ramras voted in favor of Conceptual Amendment 5.
Representatives Gruenberg and Coghill voted against it.
Therefore, Conceptual Amendment 5 was adopted by a vote of 4-2.
CHAIR RAMRAS asked Representative Gruenberg whether he is
satisfied with the bill's 10-year look-back provision regarding
[criminally negligent burning in the first degree].
REPRESENTATIVE GRUENBERG said he is, but is somewhat concerned
about [Conceptual Amendment 1's] requirement that there be two
previous convictions instead of just one, because that might
result in some serial arsonists not getting charged with a
felony when they should be.
MS. CARPENETI said she thinks that it is a reasonable approach
to make a third class A misdemeanor conviction within a 10-year
period a felony.
REPRESENTATIVE GRUENBERG indicated that he is now satisfied with
that provision as well.
5:34:50 PM
REPRESENTATIVE DAHLSTROM moved to report the proposed CS for HB
323, Version 25-GH2038\L, Luckhaupt, 4/6/08, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 323(JUD) was
reported from the House Judiciary Standing Committee.
CHAIR RAMRAS [made a motion to adopt] the letter of intent dated
April 6, 2008. There being no objection, the letter of intent
was adopted.
[CSHB 323(JUD) was reported from committee.]
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 5:36 p.m.
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