Legislature(1995 - 1996)
03/22/1995 09:20 AM Senate FIN
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
MINUTES
SENATE FINANCE COMMITTEE
March 22, 1995
9:20 a.m.
TAPES
SFC-95, #21, Side 1 (000-end)
SFC-95, #21, Side 2 (575-321)
CALL TO ORDER
Senator Rick Halford, Co-chairman, convened the meeting at
approximately 9:20 a.m.
PRESENT
In addition to Co-chairmen Halford and Frank, Senators
Phillips, Rieger, and Zharoff were present. Senators Donley
and Sharp arrived soon after the meeting began.
ALSO ATTENDING: Senator Taylor; Representative Porter;
Margot Knuth, Assistant Attorney General, Criminal Section,
Dept. of Law; Juanita Hensley, Chief, Driver Services, Dept.
of Public Safety; Joe Ambrose, aide to Senator Taylor; and
aides to committee members and other members of the
legislature.
SUMMARY INFORMATION
HB 21 - DRIVER'S LIC REVOCATION;ALCOHOL/DRUGS
Discussion was had with Representative Porter,
Margot Knuth, and Juanita Hensley. Amendments 1
and 2 were adopted for incorporation within SCS
CSHB 21(Fin) which was then REPORTED OUT of
committee with zero fiscal notes from the Dept. of
Administration, Dept. of Health and Social
Services, Dept. of Public Safety, and Dept. of
Law.
SB 46 - PROSECUTE JUVENILE AS ADULT IN DIST. CT.
Testimony was provided by Senator Taylor and Joe
Ambrose. A draft CSSB 46 dated 3/22/95 was
adopted and subsequently REPORTED OUT of committee
with zero fiscal notes from the Dept. of
Administration, and Dept. of Law, as well as a
$66.9 note from the Court System.
SB 82 - DRIVER'S LIC REVOCATION;ALCOHOL/DRUGS
There was no direct discussion of SB 82. The
substance of this legislation was addressed within
committee review of the House version,
HB 21.
CS FOR HOUSE BILL NO. 21(FIN)
An Act relating to revocation of a driver's license for
illegal possession or use of a controlled substance or
illegal possession or consumption of alcohol by a
person at least 13 but not yet 21 years of age;
relating to revocation of a driver's license for
illegal possession or use of a firearm by a person at
least 13 but not yet 18 years of age; relating to
treatment programs required for issuance or reissuance
of a driver's license; and providing for an effective
date.
REPRESENTATIVE BRIAN PORTER, sponsor of the legislation,
came before committee. He voiced his understanding that
concern previously raised by committee members relates to
language at page 1, line 9, and whether to allow "probable
cause" arrests rather than arrests based on probable cause
and personal observations. Felony arrest may be made based
on probable cause. No personal observation is required.
For misdemeanors, the only way arrest without a warrant can
be made is by personal observation of the offense by an
officer. There are exceptions such as domestic violence
situations where the officer arrives after the assault but
can see that one occurred and has probable cause to believe
that the domestic partner was the perpetrator. The officer
may then make a probable cause arrest. Further, in a DWI
accident case, within a certain length of time after the
accident, an officer may make a probable cause arrest.
The proposed bill seeks an additional exception in instances
where it is necessary to protect minors from drugs and
alcohol. Without ability to arrest based on probable cause,
an officer must actually see the minor drinking the alcohol.
Inability of the officer to arrest when a minor is found in
an intoxicated state places the minor in jeopardy.
Similar legislation was passed by the Senate last year, and
failed to pass the House.
Senator Rieger asked what would happen in a situation where
a juvenile is identified by a third person as "being at a
party where alcohol is present." Representative Porter
advised that that alone would not constitute probable cause.
The officer must actually confront the minor and be able to
determine, through observation, that the minor has been
drinking. Citing AS 14.15.050, Senator Rieger voiced his
understanding that mere possession would trigger the offense
within the proposed bill. He then inquired concerning the
threshold for probable cause that a juvenile is in
possession of alcohol. Representative Porter described the
general probable cause threshold as "that amount of
information that would make a reasonable, prudent person
believe that that in fact happened." The whole intent of
the bill is "not to be able to, without observation, make an
arrest for possession if there isn't an intoxication
element." The intent is to cover situations such as that in
Ketchikan where an intoxicated young man was taken into
custody, but the case was subsequently lost because the
judge determined that the officer had not personally
observed the drinking that caused the intoxication.
Senator Rieger asked if the sponsor would be open to bill
language that reflects that intent rather than current
wording. Representative Porter responded that in areas of
concern raised by Senator Rieger, probable cause "would
probably not be established." Senator Rieger referenced
existing law and noted that it allows for license revocation
for consumption or possession of alcohol. While testimony
from the sponsor indicates that the intent of the bill is to
apply to situations where a minor has been drinking, but the
officer has not observed the drinking, that is not how
proposed language reads. He voiced concern that ambiguity
in enforcement could result, and the bill could be unfairly
used against a young person toward whom an officer has taken
a dislike. Senator Rieger remarked that the legislation is
"riddled with ambiguities about whether the due process
would be followed or not." Representative Porter referenced
a proposed amendment addressing "similar elements" which he
advised he did not oppose. He further referenced an
amendment relating to language adding "adjudicated or
convicted" which he advised he also would not oppose. He
said he would have no problem "taking possession out of
here." The aim of possession was internal rather than
external. There is no hidden intent in the legislation.
Senator Rieger said he was not questioning the sponsor's
intent but the actual language of the bill and whether or
not it reflects the proposed intent.
Co-chairman Halford inquired concerning what would happen if
the order of the sentence were reversed to read that "if a
police officer, based on personal observation, has probable
cause." MARGOT KNUTH, Assistant Attorney General, Dept. of
Law, came before committee to speak to the question. She
advised of concern that "based on personal observation"
means something different to Alaska courts than it does to
members of the committee. Courts construe that wording to
mean that the officer observed the offense being committed
rather than observing that the minor was intoxicated.
Addition of personal observation would confuse the statute
and undermine the intent of the legislation. Representative
Porter suggested addition of "based on personal observation
of the minor." He noted that personal observation is a
"term of art" used in framing probable cause arrest. Co-
chairman Halford advised that he was satisfied with the bill
as it stands. He then asked Ms. Knuth if she had
alternative language. She responded negatively. She
reiterated that the "probable cause to believe" standard is
used for felony cases and in citing for misdemeanors. It is
the proper standard to use.
Senator Zharoff raised a question regarding language
relating to "municipal ordinances." Ms. Knuth explained
that municipal ordinance may criminalize the same conduct as
state statutes. Situations were identified wherein people
prosecuted under state law were treated differently than
those prosecuted under municipal ordinance for the same
offense. The consequence was that individuals were being
cited and prosecuted under state law only in order to
benefit from "this extra procedure here."
Senator Donley suggested that language read: "has probable
cause based on some personal observation and other
evidence." Representative Porter advised that the foregoing
presumes "some other element" would need to be proven,
besides the observation of the officer that the minor was
intoxicated.
Discussion followed among members and Ms. Knuth regarding
application of the phrase "probable cause to believe."
Further discussion followed regarding legislation that would
classify the offense as a violation rather than a
misdemeanor. Representative Porter voiced support for that
approach. The intent is to be able to take an intoxicated
minor into custody so that he or she does not further
endanger himself or herself.
Senator Zharoff asked if the proposed bill would lead to
incarceration. Ms. Knuth responded negatively, saying that
"It's only a suspension of driving privileges for the
offense." Representative Porter advised that the foregoing
presently exists but does not apply to municipal ordinances.
It is equally reasonable to have this sanction available to
municipal ordinance violations.
Co-chairman Halford referenced a conceptual amendment by
Senator Phillips to add "with substantially similar
elements" following the word "ordinance" throughout the
bill. He then called for objections. Senator Rieger
objected. A discussion of backup information dealing with
the number of murder and DWI fatalities in Anchorage
followed between the Senator and Representative Porter.
Senator Rieger voiced support for addition of the above
wording in all sections but Sec. 5. He suggested that
municipalities should have the right to their own firearms'
laws within their borders. He questioned bill provisions
that would suspend a minor's driving license for improper
use of a firearm rather than taking away the gun. He
suggested that the bill provides no symmetry between the
offense and remedy. Representative Porter spoke to
established public policy that it is not appropriate, in
some cases, for minors to possess firearms, and it is not
appropriate, at all, for minors to drink. To further
enhance that position, the legislature passed legislation to
deter minors from doing things they should not do. Because
young people value their driver's license and would not want
to lose it, license suspension was chosen as the deterrent.
The proposed bill seeks to ensure that cities with municipal
ordinances of the same kind, are allowed to use that
sanction when prosecuting under municipal ordinance.
Co-chairman Halford voiced support for adding the above-
noted language throughout the bill. Senator Rieger MOVED to
apply the language to all sections but Sec. 5. Senator
Randy Phillips OBJECTED. The Co-chairman called for a show
of hands. The motion failed on a vote of 2 to 4. Co-
chairman Halford next called for a show of hands on the main
motion to apply the language to all sections of the bill.
The motion CARRIED on a vote of 4 to 2, and the amendment
was ADOPTED.
Senator Donley MOVED to add "or adjudicated" after the word
"convicted" at page 4, lines 4 and 6. No objection having
been raised, the amendment was ADOPTED.
Senator Zharoff inquired concerning the length of time of
license revocation. JUANITA HENSLEY, Chief of Driver
Services, Division of Motor Vehicles, Dept. of Public
Safety, came before committee. She advised of a revocation
of 90 days for a first offense, 1 year for the second, and
3 years for the third offense. Discussion followed between
Mrs. Hensley and Senator Zharoff concerning requirements
that minors must meet before a license is reinstated. Ms.
Knuth noted that existing law allows the department to waive
requirements for those who live in areas where drug
rehabilitation or alcoholism treatment is unavailable.
Senator Zharoff next asked how long a revocation would
remain on an individual's driving record. Mrs. Hensley said
that no violation would appear on the minor's driving
license because revocation may not result from a traffic
offense. Revocation will remain on internal records for ten
years.
Discussion of insurance requirements and the impact of
revocation on insurance costs followed between Senator
Zharoff and Mrs. Hensley. Mrs. Hensley explained that
insurance companies do not have access to the same records
as does the department. She then advised of 5-year records
for revocations and 3 years for other traffic offenses.
Further discussion of insurance followed between Mrs.
Hensley and Senator Rieger. Senator Rieger stressed that
the ultimate penalty under the proposed bill might be not
only license revocation for 30 days but payment of $1,000 a
year in additional insurance costs. Co-chairman Halford
suggested that the higher payment might be a "good
deterrent."
Senator Zharoff voiced his understanding that, under the
proposed bill, a minor would not have to be driving a
vehicle to have his or her license revoked. Co-chairman
Halford noted that the minors "just have to be breaking the
law."
RECESS - 9:55 a.m.
RECONVENE - 10:02 a.m.
Senator Phillips MOVED that CSHB 21 (Fin) pass from
committee with individual recommendations and the
accompanying fiscal notes. Senator Rieger OBJECTED. He
then directed attention to the four qualifiers set forth
under subsection (c) at page 2 and noted that they must be
satisfied before revocation can occur. He then raised a
question concerning whether someone in violation of a
municipal ordinance in 1992 and charged with a subsequent
offense in 1996 would automatically satisfy the second
qualifier because of the prior citation. He referenced
prior testimony that "It wouldn't be interpreted that way by
the courts." Ms. Knuth responded, "It does not seem a
reasonable interpretation, at all, that the statute could be
read as you're suggesting." Mrs. Hensley clarified that
Sec. 2 deals with administrative processes associated with
revocation and the hearing process. A hearing officer
looking at a new case would have to determine that all four
qualifiers are met before a license can be revoked. That
will be based on each individual arrest.
End: SFC-95, #21, Side 1
Begin: SFC-95, #21, Side 2
Co-chairman Halford called for objections to passage of the
bill. No objection having been raised, CSHB 21 (Fin) was
REPORTED OUT of committee with zero fiscal notes from the
Dept. of Law, Dept. of Public Safety, Dept. of Health and
Social Services, and Dept. of Administration.
SENATE BILL NO. 46
An Act revising the provision of law under which a
minor may be charged, prosecuted, and sentenced as an
adult in the district court, and adding to the list of
offenses for which a minor may be prosecuted as an
adult in the district court.
Co-chairman Halford directed that SB 46 be brought on for
discussion. SENATOR TAYLOR, sponsor, came before committee
and referenced a draft committee substitute. Senator
Phillips MOVED for adoption of draft CSSB 46 (9-LS0155\K,
Chenoweth, 3/22/95) for discussion purposes. No objection
having been raised, CSSB 46 was ADOPTED. The sponsor
explained that the proposed bill was introduced at the
urging of parents concerned by the lack of consequences
within the juvenile justice system when a minor is arrested
for an alcohol-related offense. In many instances, the
minor is not arrested.
The new draft incorporates many changes adopted by Senate
Judiciary as well as provisions allowing a law enforcement
officer to arrest a minor on minor consuming charges without
a warrant. The latter is necessary because of a court
ruling that says an officer must witness the actual
consumption to make such an arrest.
Sec. 1 makes "minor consuming" an infraction rather than a
misdemeanor of felony. Upon conviction in district court,
it imposes a fine of not less than $100 and a maximum of
$300.
Sec. 2 includes a technical change that adds minor consuming
alcohol to the list of offenses that constitute violations
under Title 4.
Sec. 3 adds minor consuming alcohol to the list of offenses
for which an officer can arrest without a warrant. The only
change to existing law appears on line 27.
Sec. 4 moves the jurisdiction for minor consuming and
tobacco violations to the district court.
Sec. 5 adds liquor-related offenses committed by minors to
the list of offenses for which minors are already treated as
adults in district court. This section requires that a
parent or guardian appear at all proceedings. The only
change here is addition of alcohol-related offenses. The
drafter took the opportunity to rearrange this section and
make it more clear in statutes.
The intent behind moving alcohol-related offenses to
district court is to remove these cases from the over-
burdened juvenile justice system. Provisions will allow a
district court judge to intervene in cases where alcohol
abuse is a serious problem and not just a youthful
experiment.
Under the current system, minors often must commit a serious
crime in conjunction with drinking before they are diverted
to treatment and counseling. Changing minor consuming from
a misdemeanor to an infraction removes the onus of a
criminal record and provides an opportunity for early
intervention.
Fiscal impact on the court system should be offset by
reductions at the division of family and youth services
within the Dept. of Health and Social Services.
In response to a question from Senator Donley, JOE AMBROSE,
aide to Senator Taylor, explained that minor consuming is
the only misdemeanor that becomes an infraction under the
proposed bill. Other elements involving minors and alcohol
remain misdemeanors.
Senator Zharoff inquired concerning the definition of "a
minor." Senator Taylor noted a variety of definitions
depending upon the activity to be undertaken. In this
instance, "a minor" is a person under twenty-one in terms of
alcohol consumption, and nineteen for tobacco.
In response to a question from Senator Zharoff, Senator
Taylor advised that a class A misdemeanor involves up to one
year in jail and up to a $5,000 fine.
Senator Zharoff asked how the pending legislation would
impact the previously passed CSHB 21 (Fin). Joe Ambrose
explained that the minor consuming offense addressed in the
House bill would move from its current status as a
misdemeanor to an infraction. It would not show up on a
criminal record. It would continue to allow for early
intervention in cases where that is warranted.
In response to a question from Co-chairman Frank, Senator
Taylor reiterated the purpose of the proposed bill. He
explained that in order to pick up intoxicated minors, hold
them until their parents come and get them, and subsequently
compel parents and the juvenile to appear before a district
court judge, it was necessary to change the classification
of offenses for which the minor would be considered an
adult. As sponsor of the legislation, Senator Taylor said
he did not want to impact either the juvenile or the system
with a high fine or high criminal offense. He explained
that, instead of a misdemeanor, he elected to "go with a
violation so that there would be a monetary penalty that
would be exacted by the court." The intent is to
immediately address the problem and involve the parents. At
the present time, nothing happens to these young people or
they merely "get written up." After being written up for
minor consuming several times, the matter is turned over to
a probation officer or the Dept. of Health and Social
Services. Most often, until the juvenile does "something
major," he or she is not brought to court.
Co-chairman Frank referenced past "drunk in public" laws and
asked why they ceased to be applied. Senator Taylor
explained that society determined that alcohol is not always
a matter of choice but is, in some instances, a disease. It
did not seem appropriate to incarcerate individuals because
of an illness.
Discussion of application of laws relating to minors
consuming in various districts of the state followed between
Senator Taylor and Co-chairman Frank. Senator Taylor
explained that the rewrite of drunk in public law under
Title 47 anticipated a network of dry-out centers. Officers
would pick up intoxicated individuals based on the civil
justification that they were a danger to themselves or
others because of their condition. The individual would be
taken to a dry-out center, allowed to sober up, and then go
home. Senator Taylor voiced his belief that there is
adequate jurisdiction for law enforcement officers to do the
same with an intoxicated minor. Questions often arise
regarding whether or not they are truly so intoxicated that
they are a danger to themselves or others.
Other districts handle the problem differently than the
first judicial district because the superior court ruling
that impacted the Ketchikan case was not appealed to the
supreme court. The ruling has thus not been applied
statewide. Rather than await a supreme court ruling, the
proposed bill was introduced.
Senator Sharp noted title references to alcohol and tobacco
and also noted statutory citations relating to fish and game
regulations and park and recreational facilities. Senator
Taylor explained that each area reflects existing law. They
were included within the proposed bill when the whole
section was rewritten by the drafter. In further
discussion, the sponsor advised that questioned areas are
not subject to the minimum fine. It only applies to minor
consuming provisions.
In response to a question from Senator Donley, Mr. Ambrose
advised that under existing statutes for offenses where
juveniles are automatically tried as adults (traffic and
fish and game violations) provisions require an appearance
by a parent, guardian, or legal custodian. The proposed
bill would bring alcohol offenses within that requirement.
Discussion followed between Senator Zharoff and Senator
Taylor regarding parental responsibility for actions of
minors. The sponsor said that the proposed bill seeks to
interfere in the parent and child relationship at an early
stage and provide court system support to the parent.
Referencing fiscal notes accompanying the bill, Co-chairman
Halford asked if warrentless arrest provisions would have
fiscal impact. Mr. Ambrose responded negatively, adding
that similar provisions were passed by the Senate, last
year, with zero notes.
In the discussion of fiscal notes, Co-chairman Frank
inquired concerning the threshold whereafter an individual
is entitled to the services of the public defender. Senator
Taylor responded, "When it's a misdemeanor." The agency
does not have jurisdiction to handle cases covered by the
proposed bill.
Senator Phillips MOVED for passage of CSSB 46 (Fin). No
objection having been raised, CSSB 46 (Fin) was REPORTED OUT
of committee with a $66.9 fiscal note from the Court System
and zero notes from the Dept. of Law and Dept. of
Administration (Public Defender Agency).
ADJOURNMENT
The meeting was adjourned at approximately 10:40 a.m.
| Document Name | Date/Time | Subjects |
|---|