Legislature(1999 - 2000)
03/07/2000 08:07 AM House STA
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE STATE AFFAIRS STANDING COMMITTEE
March 7, 2000
8:07 a.m.
MEMBERS PRESENT
Representative Jeannette James, Chair
Representative Joe Green
Representative Jim Whitaker
Representative Bill Hudson
Representative Beth Kerttula
Representative Hal Smalley
Representative Scott Ogan
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CONFIRMATION HEARINGS:
Personnel Board
Charles T. Borg - Anchorage
- CONFIRMATION ADVANCED
Alaska Public Offices Commission
Andrea Jacobson - Ketchikan
- CONFIRMATION ADVANCED
HOUSE BILL NO. 367
"An Act providing for the revocation of driving privileges by a
court for a driver convicted of a violation of traffic laws in
connection with a fatal motor vehicle or commercial motor vehicle
accident; and amending Rules 43 and 43.1, Alaska Rules of
Administration."
- MOVED HB 367 OUT OF COMMITTEE
HOUSE BILL NO. 292
"An Act adopting the National Crime Prevention and Privacy
Compact; making criminal justice information available to
interested persons and criminal history record information
available to the public; making certain conforming amendments;
and providing for an effective date."
- HEARD AND HELD
HOUSE BILL NO. 324
"An Act requiring written consent by the person who is the
subject of the information before releasing personal information
contained in motor vehicle records, to comply with 18 U.S.C.
2721; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 153
"An Act relating to leave for certain state employees; and
repealing terminal leave."
- SCHEDULED BUT NOT HEARD
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 379
"An Act relating to credited service under the public employees'
retirement system for peace officers and fire fighters on leave
without pay or receiving workers' compensation benefits because
of certain on-the-job injuries."
- SCHEDULED BUT NOT HEARD
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 270
"An Act relating to sexual assault and sexual abuse and to
payment for certain examinations in cases of alleged sexual
assault or sexual abuse."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 317
"An Act relating to recruitment, selection, appointment, and
promotion of state employees and the duties of the Department of
Administration concerning those and other related functions; and
providing for an effective date."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 299
"An Act relating to rates charged in a Pioneers' Home."
- SCHEDULED BUT NOT HEARD
PREVIOUS ACTION
BILL: HB 367
SHORT TITLE: REVOCATION OF DRIVING PRIVILEGES
Jrn-Date Jrn-Page Action
2/11/00 2180 (H) READ THE FIRST TIME - REFERRALS
2/11/00 2180 (H) STA, JUD, FIN
2/11/00 2180 (H) INDETERMINATE FISCAL NOTE (ADM)
2/11/00 2180 (H) 2 ZERO FISCAL NOTES (LAW, DPS)
2/11/00 2180 (H) GOVERNOR'S TRANSMITTAL LETTER
2/22/00 (H) STA AT 8:00 AM CAPITOL 102
2/22/00 (H) Scheduled But Not Heard
2/29/00 (H) STA AT 8:00 AM CAPITOL 102
2/29/00 (H) Scheduled But Not Heard
3/02/00 (H) STA AT 8:00 AM CAPITOL 102
3/02/00 (H) Scheduled But Not Heard
3/07/00 (H) STA AT 8:00 AM CAPITOL 102
BILL: HB 292
SHORT TITLE: DISCLOSURE OF CRIMINAL HISTORY RECORDS
Jrn-Date Jrn-Page Action
1/21/00 1954 (H) READ THE FIRST TIME - REFERRALS
1/21/00 1954 (H) STA, JUD
1/21/00 1955 (H) ZERO FISCAL NOTE (DPS)
1/21/00 1955 (H) GOVERNOR'S TRANSMITTAL LETTER
1/21/00 1955 (H) REFERRED TO STATE AFFAIRS
2/22/00 (H) STA AT 8:00 AM CAPITOL 102
2/22/00 (H) Scheduled But Not Heard
2/29/00 (H) STA AT 8:00 AM CAPITOL 102
2/29/00 (H) Scheduled But Not Heard
3/02/00 (H) STA AT 8:00 AM CAPITOL 102
3/02/00 (H) Scheduled But Not Heard
3/07/00 (H) STA AT 8:00 AM CAPITOL 102
WITNESS REGISTER
CHARLES T. BORG, Appointee
to the Personnel Board
Anchorage, Alaska
POSITION STATEMENT: Testified as appointee to the Personnel
Board.
ANDREA JACOBSON, Appointee
to the Alaska Public Offices Commission
Ketchikan, Alaska
POSITION STATEMENT: Testified as appointee to the Alaska Public
Offices Commission.
ANNE CARPENETI, Assistant Attorney General
Criminal Division, Department of Law
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Provided department's position and answered
questions regarding HB 367.
KEN BISCHOFF, Director
Division of Administrative Services
Department of Public Safety
PO Box 111200
Juneau, Alaska 99811-1200
POSITION STATEMENT: Provided department's position and answered
questions regarding HB 292
ACTION NARRATIVE
TAPE 00-16, SIDE A
Number 0001
CHAIR JEANNETTE JAMES called the House State Affairs Standing
Committee meeting to order at 8:07 a.m. Members present at the
call to order were Representatives James, Green, Hudson,
Kerttula, Smalley and Ogan. Representative Whitaker arrived as
the meeting was in progress.
Number 0182
CONFIRMATION HEARINGS
CHAIR JAMES announced the committee would consider one nominee
for the Personnel Board and one nominee for the Alaska Public
Offices Commission. They would not vote for the nominees but
would pass them out of committee for full consideration of the
House and Senate.
Personnel Board
Number 0277
CHARLES T. BORG, Appointee to the Personnel Board, came forward
to testify, saying he was 61 years old with 30 years of residency
in the state of Alaska. Born and raised in Washington State, he
went to college at Eastern Washington University. He noted that
after graduating from college in 1960, he entered the Army and
spent a career there with various assignments in Europe, Vietnam,
the Lower 48 and Alaska. He commented that he had retired from
the Army in 1980 and entered state government, serving in the
Department of Military and Veteran's Affairs. He mentioned he
had left that assignment in 1990, and in 1991 he entered the
health care field, serving as a health care administrator for the
Department of Defense medical facilities in the Veteran's
Administration in Anchorage. He indicated he had retired in May
1999, and soon after retirement was asked to serve on the state
Personnel Board. He had accepted, and his acceptance had brought
him before the committee for confirmation.
MR. BORG informed the committee that he would like to serve
because he thinks he can bring his experience, professional
background and long number of years in Alaska to the board. He
emphasized that one of his strengths is the ability to hear both
sides of an issue and make impartial decisions. He remarked
that he has a history of serving the people of Alaska and he
wants to continue.
Number 0536
REPRESENTATIVE GREEN said that according to Mr. Borg's dossier,
from 1970-1976 and 1982-1991 Mr. Borg had planned and coordinated
certain operations. Representative Green asked to how those
operations fit with duties germane to the Personnel Board.
MR. BORG answered that from 1970-1976 he was on active military
duty stationed in Alaska and was responsible for all army
recruiting in the state. Because he had to travel so much in the
state, he felt he had grasped a good feel for the people of
Alaska.
Number 0660
REPRESENTATIVE GREEN said he was looking for a tie between
military experience and Personnel Board work. He asked how Mr.
Borg's background will fit "people problem" responsibilities that
would be incurred as a member of the Personnel Board.
MR. BORG answered that from 1970-1976 and 1982-1991 he dealt with
many people who were involved in issues ranging from grievances
to ethics problems, and he felt that he had dealt fairly with
those personnel matters.
Number 0745
REPRESENTATIVE HUDSON commented that the two qualities of ethics
and fairness are appropriate for a candidate seeking to serve on
the Personnel Board.
REPRESENTATIVE SMALLEY mentioned that Mr. Borg's work-related
services say a great deal in Mr. Borg's favor.
REPRESENTATIVE OGAN asked if Mr. Borg had worked in the private
sector.
Number 0838
MR. BORG replied in the affirmative. He said between 1980 and
1982, before he entered state government, he had worked in the
private sector for Robinson Millwork in Wasilla.
Number 0862
REPRESENTATIVE HUDSON moved to forward the confirmation of Mr.
Borg. There being no objection, it was so ordered.
Alaska Public Offices Commission
Number 0900
ANDREA JACOBSON, Appointee to the Alaska Public Offices
Commission (APOC), testified via teleconference from Ketchikan.
She said she has been a police officer with the Ketchikan Police
Department for 19 years and had moved to Ketchikan in 1981. She
explained that she would like to be a board member because it is
challenging and she believes in making politics fair for
everyone. She noted that improving regulations sounds like a
real challenge to her.
REPRESENTATIVE OGAN said that during the last [gubernatorial]
election he and many other people felt frustration at the
inability of the APOC Board to make a decision regarding a
certain gubernatorial candidate. He asked Ms. Jacobson if she
would deal expeditiously with a glaring problem concerning a
candidate's forthrightness or would wait until after an election
was finished.
Number 1070
MS. JACOBSON replied that the APOC Board is mandated to deal with
problems expeditiously, but in the case which Representative Ogan
cites, the candidate himself had requested delays because the
candidate's attorney lived out of state. She stated that those
delays caused the case before the board to drag.
REPRESENTATIVE OGAN emphasized that from his perception it seemed
like a lot of foot-dragging on the part of the board, and he
would hope for a different performance from the board.
Number 1141
MS. JACOBSON observed that everybody is treated the same way, and
the Office of the Attorney General speaks for delay requests.
She informed the committee that the board itself had rejected
several requests for delay, and one time when the board did meet
to discuss issues, the candidate did not come before the board
as scheduled. She acknowledged that the process is slower than
people want it to be.
REPRESENTATIVE OGAN reiterated that the people were very poorly
served by the APOC Board in that instance.
Number 1203
REPRESENTATIVE GREEN inquired as to what her feeling is about the
review made by APOC of the filings, some of which become quite
lengthy during campaigns or conflicts of interest. He asked if
she thinks the APOC Board should review for completeness and
accuracy or should merely act as a filing agency.
MS. JACOBSON replied that the APOC Board has been working hard to
revise some regulations to make them clearer and define things.
She stated that the APOC people do catch quite a few filing
errors and correct them before the errors reach the filing stage.
She noted that the agency now has a new computerized filing
system that allows for more disclosure in a shorter time period.
She commented that with technology and stricter regulations she
thinks things will improve a lot.
Number 1320
CHAIR JAMES asked whether Ms. Jacobson could see any obvious
changes that might be implemented.
Number 1360
MS. JACOBSON replied that in terms of disclosure regulations
there are some things that trouble the board regarding client
privacy for attorneys and things like that. The APOC Board is
working on that to try to come up with something better. She
noted that for some fields of work, source-of-income
confidentiality could pose a different standard for the candidate
than it would for someone else.
MS. JACOBSON explained that she has noticed that the legislature
cut the budget for the agency, which has affected APOC's ability
to have certain kinds and number of meetings. She commented that
APOC is supposed to meet four times a year but now meets three
times due to budget cuts.
Number 1428
CHAIR JAMES observed that Ms. Jacobson's reference to client
privilege was interesting since that also troubles Chair James.
In addition, it troubles her that people who are honorable,
interested, and willing to work as a legislator simply will not
submit to the many rules they must abide by to become elected.
She stated that there should be some way to identify people as
being honorable without requiring them to divulge so much of
their personal information, but she does not know how to fix the
problem.
MS. JACOBSON said that is a problem that APOC has been working
on, but she recognized that once APOC comes up with an idea, it
will take a while before it is enacted. She said that she also
would like to see the average person be able to run for office.
Number 1636
REPRESENTATIVE HUDSON asked how the time allocation to this board
fits with her daytime job. He asked if she was able to do both
jobs handily.
MS. JACOBSON answered in the affirmative. She noted that the
benefit now is that she has been a police officer for so long
that she accrues plenty of vacation time and uses some of her
vacation days to care for APOC business.
Number 1696
REPRESENTATIVE HUDSON asked how many trips to Anchorage Ms.
Jacobson has made to fulfill APOC Board duties.
MS. JACOBSON answered that she had made three trips, in March,
June and November. Typically the meetings are held Wednesday
through Friday, so she misses about four days from police work
for each APOC Board meeting. She noted that she has attended two
half-day teleconference meetings, but since teleconferences fall
on her days off [from police work], it has not been a problem for
her at all to attend to APOC Board duties.
Number 1776
REPRESENTATIVE HUDSON moved to forward the confirmation of Ms.
Jacobson. There being no objection, it was so ordered.
HB 367-REVOCATION OF DRIVING PRIVILEGES
Number 1821
CHAIR JAMES announced the next order of business is HOUSE BILL
NO. 367, "An Act providing for the revocation of driving
privileges by a court for a driver convicted of a violation of
traffic laws in connection with a fatal motor vehicle or
commercial motor vehicle accident; and amending Rules 43 and
43.1, Alaska Rules of Administration."
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Department of Law, said the purpose of HB 367 is to improve the
safety of drivers on our highways. She noted that earlier this
year a gentleman had called and talked to the department about a
situation that caused the department to think about fatal
accidents on Alaska highways. The gentleman's son had been
killed in an automobile accident caused by bad driving on the
part of someone else; however, the driving was not so bad as to
be labeled criminal driving. She commented that the bad driving
did result in a traffic violation citation, but current motor
vehicle laws do not provide for any license revocation under
these circumstances.
MS. CARPENETI indicated that motor vehicle laws do provide for
license revocation if a person is convicted of certain criminal
conduct in connection with driving a motor vehicle, but that is
not the case for traffic violations that result in a death on the
roads. Therefore, HB 367 was drafted to address the problem by
revoking the guilty individual's license for a year's time if the
court finds by a preponderance of evidence that the person was
driving a motor vehicle involved in a fatal accident and that
violation of traffic laws contributed to the fatal accident. She
informed the committee that HB 367 provides for license
revocation concurrent to any other possible revocations that
might apply; it also allows the court to provide a limited
license if the court finds that the person needs a limited
license for earning a livelihood and that granting the limited
license would not endanger the public.
Number 1976
REPRESENTATIVE OGAN asked if the administration supports HB 367.
MS. CARPENETI replied in the affirmative.
REPRESENTATIVE OGAN inquired as to the "lesser included offense"
issue.
MS. CARPENETI answered that she did not know if there would be a
lesser included offense for a traffic violation.
REPRESENTATIVE OGAN said he had introduced a bill very similar to
HB 367 four years ago after a dear friends's two sons were killed
in a traffic accident caused by irresponsible passing on the part
of another young person in a different vehicle. He noted that
the bad driver who had caused two deaths was fined only $300 and
six points off his license. He explained that his bill had died
in the Judiciary Committee because of the lesser included
offense. He commented that the department had told him that if a
jury could not convict a driver on a felony charge, the jury
could not convict because of bad driving, which is a lesser
included offense. He indicated he is mystified as to the
inconsistency of the Department of Law because HB 367 does not
address the issue of lesser included offense, and yet that clause
was the failing factor of his previous bill dealing with the same
subject.
Number 2129
MS. CARPENETI explained that the Department of Law's position
regarding Representative Ogan's bill was that making a crime out
of non-criminal negligence conduct was not viable. She noted
that HB 367 does not establish a new offense but is a license
revocation Act, as a way of addressing bad driving, that does not
require a culpable mental state high enough to justify criminal
prosecution.
REPRESENTATIVE OGAN asked why the Department of Law had not
suggested something that would resolve the problem instead of
testifying against his legislation. He emphasized that he is
sure other people have been killed [because of unpunished bad
driving habits].
Number 2238
MS. CARPENETI replied that she guessed that when Department of
Law was reviewing Representative Ogan's bill, the department was
concerned about the criminal aspects of charging somebody whose
culpable mental state was only civil negligence. She said she
was sorry that the department was not creative enough to think of
a solution at that time.
CHAIR JAMES commented that she is happy with HB 367 but
recognizes that the gentleman whose son was killed might have
received some satisfaction if Representative Ogan's bill had
passed four years ago. She acknowledged that when people are
testifying for or against a bill, they usually are not thinking
about solutions to get the bill passed but are thinking about
their arguments for or against it. She said there have been
times in the eight years she has served in the legislature when
the administration has offered solutions for drafting bills
correctly.
Number 2346
MS. CARPENETI noted that when adopting laws for a crime for
certain conduct it is a different mind set than for a license
revocation.
CHAIR JAMES said she understood that. She surmised that probably
the Department of Law was reviewing specific language in
Representative Ogan's bill and what it was doing, as opposed to
the purpose for filing the bill. She commented that it was
unfortunate that Representative Ogan's bill did not pass, and
suggested that in the future when someone objects to a bill, the
sponsor can ask for suggestions as to ways to fix the bill.
Number 2398
REPRESENTATIVE OGAN asked if the lesser included offense [clause]
will not be a factor in felony cases.
MS. CARPENETI answered that HB 367 does not relate to a crime.
Rather, it is a license revocation for a person who gets
convicted of a traffic violation that results in death.
REPRESENTATIVE OGAN said he wants to make sure, however, that a
judge will not require "lesser included offense" in HB 367.
CHAIR JAMES asked whether license revocation is an administrative
decision or goes to trial.
Number 2477
MS. CARPENETI replied that HB 367 is a court revocation.
CHAIR JAMES asked whether, in a court revocation, there is a
trial or it is the judge who decides about the preponderance of
evidence.
MS. CARPENETI replied that a judge decides by preponderance of
evidence because HB 367 is a court revocation. She acknowledged
that one effect of HB 367 is that a person who contests the
traffic citation will have a right to a jury trial since there is
a possibility of loss of a valuable license. In answer to
Representative Ogan's previous question, she explained that she
personally is not familiar with judges instructing on lesser
included offenses for traffic violations and has never seen that
happen. Usually, she added, lesser included offenses involve
crime, and HB 367 is not talking about crime but about bad
driving and traffic violations that do not rise to the level of
criminal conduct.
Number 2526
REPRESENTATIVE OGAN asked how juries are instructed; for example,
if they cannot convict on (a), then can they go to (b)? He asked
whether that scenario could happen with HB 367.
Number 2541
MS. CARPENETI replied that if a prosecutor believes he/she can
prove that this person committed a crime by evidence beyond a
reasonable doubt, that person is formally charged. That person
enters a plea of not guilty, the trial proceeds, and evidence is
gathered. However, if evidence comes into the trial in a way
that was not anticipated by the prosecution, the prosecution
might ask for instructions on a lesser included offense if
elements of a lesser offense are included within the elements of
the higher offense. She noted that the defense lawyer may
request instructions on "lesser included" because he/she may
believe that the person has a chance of acquittal on a less
serious crime and getting a better result for a lesser crime. If
the judge is willing to give "lesser included offenses," he/she
uses a variety of factors to decide whether there is enough
evidence that would make it logical to give those instructions.
Number 2615
REPRESENTATIVE OGAN said he understood that there is a
possibility that a defense attorney may ask the judge to convict
a person at a lesser charge if the person cannot be charged at
the higher criminal level.
MS. CARPENETI offered her opinion that a defense attorney could
make the argument that his/her client is not guilty of any crime
and that the court should just consider a citation, but that
would be a very unusual case.
REPRESENTATIVE GREEN commented that he had spent time with a
judge one day and heard four driving-without a-license cases, all
associated with driving under the influence of alcohol (DWI); two
of the four cases involved someone caught for the fifth time
driving without a license. All four had plea-bargained to some
lesser offense. He asked what HB 367 will do to ensure that
those kinds of people will not drive without a license, since
drunks are allowed to drive without licenses on multiple
occasions.
Number 2698
MS. CARPENETI answered that HB 367 provides for revocation of a
license. If a person is caught driving with a revoked license,
there is a misdemeanor offense. If a person's license is revoked
for DWI and that person drives again and is caught, then that
person can be charged with driving with a revoked license, which
carries a mandatory minimum of ten days in jail.
REPRESENTATIVE GREEN pointed out that the two people who had been
caught five times obviously are going to drive regardless of what
HB 367 legislates. He asked if anything in HB 367 has teeth in
it other than revocation of a license.
Number 2739
MS. CARPENETI replied that HB 367 does not address DWI situations
because driving with a revoked license is a misdemeanor crime.
Rather, HB 367 deals with driving with traffic violations. If a
person's license is revoked, then one would hope that he/she
would not drive. She noted that a person caught driving with a
revoked license could be charged with a misdemeanor and put in
jail. Therefore, HB 367 does have teeth in essence.
REPRESENTATIVE GREEN reiterated that the person could plea
bargain down. He said he shares Representative Ogan's
frustration and does not believe HB 367 does anything [useful].
Number 2769
REPRESENTATIVE KERTTULA said she thinks HB 367 is an interesting
idea because she had not realized that [bad driving was not
punished] already. She asked if Ms. Carpeneti could give any
other instance where causation is so attenuated because HB 367
characterizes "contribution" as part of the violation, which
seems a really low standard. She wondered if there was any other
violation of such low standard in that it is just a contribution,
not a direct cause of what happened.
MS. CARPENETI answered that HB 367 provides for license
revocation under [bad driving] circumstances, it is not a
causation. She noted that a traffic violation has to be proved
beyond a reasonable doubt, just as for any violation or crime,
and then the court looks to a preponderance standard to ascertain
whether the traffic violation contributed.
Number 2817
REPRESENTATIVE KERTTULA said she understood that, but even in
traffic violations, how can a contributor be held responsible for
what happens? She asked if other traffic violation laws were on
the books wherein a person could be held accountable for a
contribution sufficient enough for license revocation.
MS. CARPENETI answered that HB 367 would apply to any violation
involving a moving vehicle.
REPRESENTATIVE KERTTULA indicated she could foresee
responsibility for an accident getting moved on down the line.
For example, she described a scenario where she had just
contributed to something [an accident] but was not driving the
car that actually hit someone. She again asked if there is some
other traffic violation that is so removed from cause and yet
still charged as a violation.
Number 2860
MS. CARPENETI replied that invocation of HB 367 would require a
citation on the part of a police officer.
REPRESENTATIVE KERTTULA said [that under] HB 367 a very removed
sequence of events can still result in revocation of license.
CHAIR JAMES said she had actually executed a "360" [degrees] in
the middle of an icy road, so she understood what Representative
Kerttula was referring to in regard to contributing to an
accident. Fortunately, no other car was there at the time, so it
did not result in an accident; however, she suspected that if a
policeman had been present she would have received a citation.
She reiterated that purely and simply because of the conditions
of the road a person could be held responsible under HB 367. She
asked if that is the true intent of HB 367.
TAPE 00-16, SIDE B
Number 2969
MS. CARPENETI acknowledged that there are such things as traffic
accidents where no one is cited. However, if a person does get
cited for a traffic violation, the violation must be proven
beyond a reasonable doubt. The person will have notice and
opportunity to be heard, will have a lawyer appointed, and will
have a right to jury trial because of the possibility of loss of
a valuable license. If a person is convicted, the court will
have to find by a preponderance of evidence that the traffic
violation contributed to a death. Therefore, Ms. Carpeneti said,
she thinks a person will be afforded due process of law, and, in
terms of consequences, it is very serious to drive with a revoked
license.
Number 2880
CHAIR JAMES asked whether the penalty would be different if a
person performed a "360" in the road, was observed by a police
officer, and was cited, but no death resulted.
MS. CARPENETI replied in the affirmative. She reiterated that
the point of HB 367 is that traffic fatalities happen sometimes
as the result of bad driving, and not necessarily because of
criminal driving, criminally negligent homicide, DWI, or other
criminal behavior. Nevertheless, for the safety of the driving
public, people who drive badly and cause the death of another
should probably not be driving for a while.
Number 2835
REPRESENTATIVE GREEN reiterated that the two offenders he had
cited earlier were plea-bargained down. He emphasized that the
judge actually admitted that plea bargains are done because the
prosecuting attorney is so busy that the attorney does not have
time to adequately prepare for the cases ahead; therefore, the
attorney plea bargains to something simpler. Representative
Green said that is a travesty to him, and he had even talked to
the judge afterwards about it. He said HB 367 would affect law-
abiding citizens instead of the people who need to be stopped.
He expressed frustration at this kind of "slap on the hand"
[legislation]. In response to Ms. Carpeneti's remark that she
would have to know more about the situation, Representative Green
said he would tell her the judge's name after the committee
meeting.
MS. CARPENETI acknowledged that there are some cases where plea
bargaining can be very frustrating to everybody concerned, and
probably as frustrating to the prosecutor because the court tries
to charge people with the right level of crime and to have them
convicted.
Number 2762
REPRESENTATIVE HUDSON remarked that he is trying to figure out
how HB 367 will make roads safer. Would it serve as a threat of
added punishment, or remove somebody from the roads who did not
commit a crime but who contributed to an accident that resulted
in death? If HB 367 is simply elevating punishment to a law-
abiding citizen who happens to be a contributor to a fatal
accident, he said he is having a hard time finding any public
good in it. He asked what is cured by HB 367 and how people will
know that their licenses can be revoked if they become a
contributor to a fatal accident.
Number 2658
MS. CARPENETI answered that she thinks people will eventually
learn that if they commit a traffic violation, are cited and
convicted of an accident that results in death, they have the
potential of losing their license. That threat is important in
encouraging people to be more careful. She reminded the
committee that HB 367 requires that the cause [which results in
death] of the traffic citation is what results in license
revocation.
REPRESENTATIVE HUDSON quoted from paragraph two of Governor
Knowles' letter to Representative Porter, dated February 10,
2000: "Regardless of whether their conduct is criminal, drivers
whose traffic violations contribute to an accident causing the
death of...." He pointed out that it does not say "causing the
death" but says that even if they "contribute to" it, they could
lose their license and be elevated to this higher penalty.
Number 2593
MS. CARPENETI explained that HB 367 provides for a violation of
traffic laws for which a person had to have a conviction.
Therefore, a person would have to be convicted of a traffic
violation that contributed to the accident.
REPRESENTATIVE HUDSON asked if it is a conviction that triggers
HB 367.
MS. CARPENETI answered that HB 367 requires a conviction beyond a
reasonable doubt.
REPRESENTATIVE SMALLEY asked Ms. Carpeneti if she could identify
situations under which a judge would grant a limited driving
privilege as described in Governor Knowles' letter, previously
cited, in the third paragraph where it says "to grant limited
license privileges if it determines driving is critical to the
person's livelihood and will not pose a danger to the public."
Number 2548
MS. CARPENETI replied that in just about every license revocation
statute, judges do have the authority to grant a limited license
sometimes after a certain period of time. Such a limited license
is usually granted when there is no public transportation to the
person's work and the person would lose his/her job if unable to
get to work. A limited license would allow the person to drive
to and from work during certain hours of the day, and only at
those times.
REPRESENTATIVE SMALLEY asked if the person might be a single
parent or the only parent working.
Number 2514
MS. CARPENETI answered in the affirmative. She said judges would
consider circumstances, for example, if no one else is able to
drive that person to work or if there is no bus service. She
noted that limited licenses are granted because if the person is
left without the ability to work, then their family does not have
an income which, in turn, creates more problems. However, a
judge cannot grant a limited license unless he/she is convinced
that the conditions on the license - to and from work during
certain hours of the day - would still protect the public.
Number 2492
REPRESENTATIVE SMALLEY inquired as to Ms. Carpeneti's perception
regarding decline in revenue to the Public Defender's Office. He
asked if HB 367 would cause difficulty with case flow.
MS. CARPENETI replied that numbers affected by HB 367 are
relatively small. The Department of Law had reviewed the number
of fatal accidents from 1996 to 1998 and found that there were
about six to eight cases where there was a traffic citation and
the traffic violation was the cause of a fatal accident.
Number 2438
REPRESENTATIVE OGAN said he thinks HB 367 does have some public
good. His friends whose two sons were killed were left with the
feeling that their sons' lives were valued at only $300 by the
state. Therefore, maybe the public good is that if the reckless
driver had lost his license, he might have told the driver to
slow down the second time they were out driving recklessly. He
noted that at least HB 367 places some tangible consequences for
reckless driving and taking lives.
Number 2258
REPRESENTATIVE HUDSON asked Representative Ogan if the reckless
driver who caused the death of two boys caused the accident or
contributed to the accident.
REPRESENTATIVE OGAN answered that the reckless driver directly
caused and was cited for the accident.
REPRESENTATIVE HUDSON asked if someone could be penalized under
HB 367 by simply contributing to, not necessarily causing, an
accident.
Number 2208
REPRESENTATIVE GREEN cited page 2, lines 21 and 22, where it says
"limitation can be placed on the license that will enable the
person to earn a livelihood without danger to the public." Since
the person driving only to and from work is very likely doing so
during rush hour, Representative Green asked if there is any
judge who can say that by allowing this person to drive, there is
no danger to the public.
MS. CARPENETI replied that most statutes that allow a limited
license state "without excessive danger to the public." When the
Department of Law was reviewing HB 367, the administration
thought "excessive" was too much danger.
Number 2158
REPRESENTATIVE GREEN reiterated that a judge in all logic cannot
say "there is no danger to the public."
MS. CARPENETI answered that much depends upon the prior driving
record of the person seeking a limited license.
REPRESENTATIVE GREEN emphasized that the prior driving record has
already been established.
MS. CARPENETI replied that she meant a driver who had not
previously had any bad points against his/her driving record.
She indicated that it had seemed to the Department of Law when
they reviewed HB 367 that a judge should be able to say a limited
license does not cause danger to the public under these
circumstances.
Number 2123
CHAIR JAMES mentioned that she found it difficult to understand
why Representative Ogan's accident case was not found to be
criminal, and that she believes that in most fatal accidents
someone is extremely guilty of making a wrong decision in the
driving process. Perhaps the person was driving too fast or
drinking, and sometimes she believes there are two people at
fault. She indicated she would support HB 367 but, like
Representative Hudson, is not sure that HB 367 will make roads
safer.
Number 1960
REPRESENTATIVE OGAN noted that in the case he had been
discussing, there was not enough evidence to prosecute criminally
because the driving was not reckless enough to prove negligent
homicide, and no alcohol was involved. He added that HB 367
would be a message to those kinds of people.
Number 1824
REPRESENTATIVE KERTTULA made a motion to move HB 367 out of
committee with individual recommendations and attached zero
fiscal note.
REPRESENTATIVE HUDSON objected.
A roll call vote was taken. Representatives Kerttula, Ogan,
Smalley and James voted in favor of moving the bill.
Representatives Green and Hudson voted against it.
Representative Whitaker was absent. Therefore, HB 367 moved from
the House State Affairs Standing Committee by a vote of 4-2.
HB 292-DISCLOSURE OF CRIMINAL HISTORY RECORDS
Number 1716
CHAIR JAMES announced the next order of business is HOUSE BILL
NO. 292, "An Act adopting the National Crime Prevention and
Privacy Compact; making criminal justice information available to
interested persons and criminal history record information
available to the public; making certain conforming amendments;
and providing for an effective date."
KEN BISCHOFF, Director, Division of Administrative Services,
Department of Public Safety (DPS), said he was speaking for HB
292 to provide some background. Like many state legislatures, he
added, the Alaska State Legislature over the years has tried to
address sensitive employment and licensing by authorizing
background checks for the protection of children; this occurs for
people working as school bus drivers, school teachers and day
care center providers, and also occurs for the protection of
dependent adults. He noted that AS 12.62 is the primary Alaska
Statute regarding the release of criminal history record
information.
MR. BISCHOFF explained that there are two levels - state and
national - to doing criminal history checks. Thus HB 292
proposes having Alaska adopt a national compact, which all 50
states in the near future plan to adopt to facilitate the
exchange of national criminal history record checks for these
purposes. He commented that the department currently does about
20,000 checks of this nature every year, so this is a fairly
significant business. With adoption of the compact, he envisions
that the department will also get some workload related to other
states, just as those states will get some of Alaska's queries;
therefore, it is a reciprocal exchange and agreement. He
mentioned that it is a standard way of doing business nationally
and will provide for much more complete national criminal history
checks because a significant percentage of state-level
information does not reside at the national level. For example,
40 percent of Oregon's criminal records are not indexed at the
national level, and this compact would allow Alaska to get access
to those additional records.
MR. BISCHOFF indicated the Federal Bureau of Investigation (FBI)
has a rule of thumb that approximately one in five criminals has
a record in more than one state. He informed the committee that
there are 55 million criminal records nationally. This compact,
once adopted by the country, will link all 50 state criminal
history record repositories and the FBI repository. He urged the
committee's support for HB 292.
Number 1560
CHAIR JAMES inquired as to the status of the other states in
joining the compact.
MR. BISCHOFF replied that as of January [2000], Montana, Nevada,
Georgia, and Florida had ratified the compact. Half a dozen
states are introducing legislation this year, and a larger number
of states are slated to introduce legislation in 2001. He
explained that he has personally been involved in this national
compact issue since about 1988, and it has been in the works -
being developed jointly with the FBI and various criminal justice
information groups across the country - since the mid-1970s.
Finally, he added, Congress passed the Crime Identification
Technology Act a couple of years ago, and now some states are
positioning themselves to adopt this national compact.
Number 1490
CHAIR JAMES asked what cooperation Alaska has with Canada.
MR. BISCHOFF replied that this compact will not affect criminal
record checks for civil purposes. However, the department does
have access to the Canadian police information system for law
enforcement or criminal justice purposes, and the department
exchanges motor vehicle, stolen property, missing persons, and
wanted person information.
REPRESENTATIVE GREEN asked how much return for the money the DPS
will realize by joining the national compact. He also asked how
the national compact differs from the parole compact currently
being negotiated.
Number 1411
MR. BISCHOFF answered that he is not familiar with the parole
compact. However, the title indicates to him that it deals with
criminal justice, while HB 292 speaks to a civil purpose;
therefore, the two are not comparable. The DPS is trying to
provide access to criminal history records for regulatory
agencies and employers authorized by statute in order to screen
employees and license applicants.
MR. BISCHOFF pointed out that the department had submitted a zero
fiscal note with HB 292. Already a fair amount of preparatory
work has been done in regard to HB 292, and in the long run, cost
to the agency will be a "wash." He noted that preliminary work
has been necessary because nationally the criminal records data
base is being decentralized. He explained that when the
department receives a first-time arrest, the department submits a
fingerprint card to the FBI; then the FBI runs a search in their
system and a federal identification number will be established.
The Interstate Identification Index (III) referred to by HB 292
will show the federal identification number and Alaska's
identification number for that person. Consequently, if that
person goes to Florida and commits a crime, the same process will
repeat; however, a fingerprint card only has to be submitted once
because the person's identification is in the III system. Anyone
who queries the III system will know there is a record in Alaska
and Florida on that person; therefore, some work will be saved
and the benefit will be more complete, timely information.
Number 1287
REPRESENTATIVE GREEN indicated he disagreed with Mr. Bischoff
that there is no comparison between the parole compact and the
III system because in both cases they are compacts for
information from other states. He emphasized that whether a
parolee is civil or criminal, there is information to be gained
by belonging to a compact, but other states are not supporting
the compact. He asked what kind of information the state is
providing for a prospective employer that is not already
available through the FBI. He said it seems that if the
information is important, the FBI would already have it.
MR. BISCHOFF acknowledged that since the early '60s the FBI has
believed in keeping important information in a national database.
However, the problem that evolved over time was one of workload
and of human nature. Before the electronic age, people who were
arrested went to a booking facility and were fingerprinted. Two
or three sets of fingerprints were required - for the state
system, the national system and the local arresting police
department. He recognized that human beings being what they are,
there were quality assurance problems: sometimes the second and
third set of cards did not get created, and the best set of cards
that came into the state repository was retained at the state
level and often not forwarded to the FBI. As a consequence, the
national repository is not complete. For example, before Oregon
joined the III system, almost half of their records had not been
indexed at the national level. Furthermore, five million
California DWI records are not indexed and would be available
only through a III system query to California. So, if the goal
of HB 292 is to have a regulatory agency or employer make an
informed decision, they need complete information, as provided by
HB 292.
Number 1089
REPRESENTATIVE GREEN said it sounds as if Alaska would provide
all its information but Oregon and California have only half of
their information available; thus Alaska is not getting quid pro
quo.
MR. BISCHOFF said that is exactly why the department wants to
join the compact, because it will allow the department to search
the databases of Washington, Oregon, Virginia and other states -
an ability the department does not currently have.
CHAIR JAMES asked how the department searches databases.
MR. BISCHOFF replied that the department must be a member of the
compact to search other state databases for civil purposes, and
the department is hoping that the majority of states sign on to
the compact because it is very important.
Number 1026
REPRESENTATIVE SMALLEY noticed that certification of teachers is
on the list of queries that could be made to the III system. He
inquired as to the cost of joining the compact and whether there
would be additional licensure fee increases as a result of these
costs.
MR. BISCHOFF answered that the department has submitted a zero
fiscal note with HB 292 because there would be no immediate
change in cost. Once implemented, it would be a break in terms
of future cost increases.
REPRESENTATIVE SMALLEY stated that he has been a certificated
teacher for many years in the state, and when fingerprinting was
required, teacher certification fees increased as a result of
background checks. He asked if Mr. Bischoff was suggesting that
later on there could be an additional increase as a result of
costs.
Number 0937
MR. BISCHOFF replied no, not as a result of implementing HB 292,
because once a majority of the states are signed on to the
national compact, it will allow the nation to process requests
electronically. Currently, the department is required to do
applicant searches for teacher certification, which entails
preparing fingerprint cards, sending the cards by mail, tracking
the cards, and waiting four to eight weeks for turnaround
[results]. The FBI and the department are both upgrading their
computer systems. Two years ago, the legislature had provided
operating funding for the state to join the Western
Identification Network. The department is in the process of
completing that upgrade, which will allow them to electronically
send fingerprints to the FBI; that in itself will be labor
saving. Future cost increases depend on how the law changes, but
information system improvements should dampen the need for cost
increases.
Number 0805
REPRESENTATIVE SMALLEY commented that there is a great deal of
difference between an arrest and a conviction. He mentioned the
book 1984 and said he saw this fear of "Big Brother" out there.
MR. BISCHOFF replied that the key to managing [that fear] and the
individual's right to privacy - which is in statute and the
constitution at both the state and national levels - is carefully
considered by the compact. People have the right to privacy, but
what does the Division of Family and Youth Services (DFYS) do if
a person has four arrests and no conviction? He suggested the
way to guard against the scenario is to establish a body of law
that the legislature passes giving the [DFYS] division access to
private information. The [DFYS] division should only use the
information for the purpose intended and not disseminate it for
any other reason.
MR. BISCHOFF commented that the [DFYS] division has to adopt its
own statutes or regulations that govern that use. He believes
information control should be governed through regulatory
agencies in order to make sure that violations or inappropriate
release of information does not happen and, if it does, there is
a penalty. He reiterated that his department operates under AS
12.62 and there are penalties for inappropriate release.
Number 0615
REPRESENTATIVE KERTTULA asked if the FBI currently tracks
acquittals or accusations.
MR. BISCHOFF answered that the FBI gets whatever the department
provides to them. For example, when the department receives an
arrest from the Anchorage Police Department (APD), the APD enters
that information through its system and it comes to the DPS's
system. Hopefully, the arrested person is taken to a booking
facility where fingerprint cards are taken. Next, he added, the
fingerprint cards are sent to his department so that the
department can confirm the identity of that individual and update
the criminal subsystem for the booking portion. Assuming all
that information is complete, then an electronic message is sent
to the FBI to update its national system; if the person is a
first-timer, a fingerprint card is sent to the FBI also. Then
later, going through the judicial process, the department
receives court judgments in hard-copy form, which are entered
into the [state electronic] system and [sent] on to the FBI to
update its records.
Number 0495
REPRESENTATIVE KERTTULA directed attention to page 4, Section 6,
lines 13-17, saying it looks like the department would receive,
under the compact, reports and accusations. She asked whether
that broadens HB 292.
MR. BISCHOFF replied that Section 6 was a definition to describe
what determines criminal justice actions.
REPRESENTATIVE KERTTULA asked if this is information that the
department would receive.
MR. BISCHOFF replied in the affirmative.
REPRESENTATIVE KERTTULA asked if the department could receive
information about accusations.
Number 0382
MR. BISCHOFF answered that he did not see the word "accusation"
in [Section 6]. However, an "accused person" is a person who has
been arrested for a crime, so there would have to be a specific
arrest and fingerprint card to support that.
REPRESENTATIVE KERTTULA said [Section 6] also says that "criminal
justice" includes activities relating to the detection ... of
accused persons" and she wonders how that will work under HB 292.
MR. BISCHOFF replied that primarily that would be through
biometric identification, principally fingerprints.
Number 0309
REPRESENTATIVE OGAN quoted from Governor Knowles' letter dated
January 18, 2000, to Speaker Porter, as follows: "How do we
achieve the delicate balance when releasing personal information
between individual rights and the need to protect the public?"
He asked for a definition of "individual rights" and how the
department carefully walks the fine line.
MR. BISCHOFF answered that he had prepared a summary of his
remarks and quoted as follows: "House Bill 292 does not: change
who has access to criminal justice information, state or
national. Requestors of this information will still require a
basis authorized in law to receive this information." In other
words, he stated, unless the legislature gives authorization for
release of information, the department will not release the
information.
REPRESENTATIVE OGAN reiterated that individual rights are
guaranteed by the Alaska State Constitution but are not defined
anywhere in statute as far as he knows. He said he believes in
the fundamental civil right that a person is innocent until
proven guilty. Consequently, a few areas in HB 292 trouble him.
For example, he directed attention to page 4, line 2, relating to
definitions of the compact, and quoted: "identifiable
descriptions and notations of arrests, detentions, indictments,
or other formal criminal charges, and any disposition arising
therefrom, including acquittal, sentencing, correctional
supervision, or release ...." He noted that sentencing,
correctional supervision or release means a person has been
adjudicated, now has a record, and has been proven guilty of
something. Nevertheless, under HB 292 a person is considered
guilty just because he/she has been arrested, and Representative
Ogan said he feels paranoia about the government keeping this
long list of anybody who has ever been suspected of doing
anything.
TAPE 00-17, SIDE A
Number 0107
MR. BISCHOFF replied that the only information that will be
available through this compact is fingerprints, meaning that an
arresting officer had to have probable cause to arrest a person,
take them to booking facilities and get his/her fingerprints.
This procedure is not based upon speculation. He noted that a
standard has to be applied in order to make an entry into the
system. It is true that not all arrested people are found
guilty, and the record would reflect the court disposition, the
judgment of "not guilty." Nationally, he explained, all criminal
history systems retain [the court disposition] as a valid piece
of criminal history information. Some states get a little more
sophisticated for employment and licensing purposes in terms of
sealing the record. He envisions that the legislature could
consider sealing the record at some later time, after passing HB
292, but from a national standpoint, all 50 states have
participated in development of the compact. He reiterated that
the department would not be notating records with hearsay because
the standard for HB 292 is fingerprint-based in order for the
department to positively identify an individual.
Number 0276
CHAIR JAMES said she resists having people held responsible for
something for which they were arrested but not found guilty. She
asked if there has ever been an instance when someone was
arrested because of wrong identification.
MR. BISCHOFF responded that in Alaska there are approximately
300,000 criminal records, and nationally there are 55 million.
When discussing numbers like this, there has to have been an
occasion where a misidentification has been made. Nevertheless,
the opportunity in a court proceeding is to require verification,
a new set of fingerprints if that is how the connection is being
made. He commented that there is a path during the adjudication
process to clear oneself of misidentification, and the department
has had instances where relatives - brothers - have used each
others' identifications in order to protect their own records.
He mentioned that fingerprints are desirable because people use
aliases, and the only thing that can bring 14 aliases together to
one person is a common set of fingerprints. Fingerprints
uniquely identify the person just as deoxyribonucleic acid (DNA)
does.
Number 0490
CHAIR JAMES said she was referring to actual skirmishes where
everyone is arrested and it turns out that some in the group were
victims as opposed to being perpetrators - instances where
victims had been arrested but were released because their
innocence had been proven.
Number 0547
MR. BISCHOFF replied that the only way a criminal record will be
updated in accordance with the standards set by this compact is
if someone is arrested and a fingerprint card is submitted. In
the rare instance where the preponderance of evidence is clear
that this person was a passive bystander not involved in the
skirmish, an appeal [for dismissal] has been made to the
commissioner of the DPS. He informed the committee that the DPS
gives the appeal to the Department of Law for review, and
subsequently the DPS is directed to purge the record. He
reiterated that AS 12.62 speaks to that issue.
REPRESENTATIVE OGAN commented that in Mr. Bischoff's overview of
HB 292 it says that this information will be used for civil
purposes. Representative Ogan said he could understand
justification in using electronic information for police officers
to protect themselves from dangerous people, but he does not see
justification for making all that information available for civil
purposes, including [background checks relating to] members of
the Bar [Alaska Bar Association], the Alaska Securities Act,
assisted living homes, certification of teachers, child care,
collection agencies, housing, school bus drivers and hospital
security guards. He concluded that the legislature should just
pass a bill called "The Omnibus Save Ourselves from Ourselves"
and give the administration the authority to pass a regulation on
anything by which people might hurt themselves. He said he
foresees that this is where society is going, and citizens have
constitutional protections against things like that. He agreed
that if someone has been adjudicated and been through the
process, then it is relevant to HB 292; otherwise, HB 292
violates at least the spirit of the constitution and civil
rights.
Number 0763
MR. BISCHOFF answered that the examples that he had illustrated
are current Alaska law that the legislature has specifically
authorized and determined a public need for, to screen
individuals. If the legislature believes that the statutes
continue to be necessary, it would follow that the state would
like to do a complete, thorough check within reason; the compact
allows the department to do this under common national standards.
He reminded the committee that the department is not doing
anything differently than the legislature envisioned but is doing
a better job.
Number 0854
REPRESENTATIVE OGAN remarked that sexual offenders have been
adjudicated and convicted, and that is his point. He quoted from
page 6, Article II(1), lines 20-22, as follows: "provide a legal
framework for the establishment of a cooperative federal-state
system for the interstate and federal-state exchange of criminal
history records for noncriminal justice uses". He mentioned
those civil uses he had just described and said that is where he
has problems with HB 292. He further commented that page 11,
Article VI(1), requires that the legislature appoint someone to
the council. Therefore, he indicated, the fiscal note is wrong
and should reflect the cost of fulfilling Article VI, which says,
"each party state shall appoint a Compact officer who shall ...."
He emphasized that he is tired of the administration producing
bills with zero fiscal notes to avoid a Finance Committee
referral.
MR. BISCHOFF responded to the fiscal note issue by explaining
that since the mid-1960s the department has employed a person to
perform the equivalent function called a Control Terminal Officer
that is associated with the Legacy system, the national crime
information center. This same person will perform the job
required by HB 292 because it is just relabeling and modernizing
an existing system.
Number 0989
REPRESENTATIVE OGAN directed attention to page 13, line 29, and
quoted: "Nothing in this Compact shall diminish or lessen the
obligations, responsibilities, and authorities of any state ...."
Representative Ogan said he has seen similar language in the
Alaska National Interest Lands Conservation Act (ANILCA), yet
these saving clauses are not worth the paper they are written
upon.
CHAIR JAMES announced that HB 292 would be held over.
ADJOURNMENT
Number 1146
There being no further business before the committee, the House
State Affairs Standing Committee meeting was adjourned at 9:55
a.m.
| Document Name | Date/Time | Subjects |
|---|