02/29/2008 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB185 | |
| SB234 | |
| SB164 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 234 | TELECONFERENCED | |
| + | SB 164 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 185 | ||
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
February 29, 2008
1:32 p.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Charlie Huggins, Vice Chair
Senator Bill Wielechowski
Senator Gene Therriault
MEMBERS ABSENT
Senator Lesil McGuire
COMMITTEE CALENDAR
SENATE BILL NO. 185
"An Act relating to sex offenders and child kidnappers."
MOVED CSSB 185(STA) OUT OF COMMITTEE
SENATE BILL NO. 234
"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."
HEARD AND HELD
SENATE BILL NO. 164
"An Act relating to disclosures required for the sale of a used
motor vehicle, including a trailer, by a motor vehicle dealer."
HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 185
SHORT TITLE: SEX OFFENDER/CHILD KIDNAPPER REGISTRATION
SPONSOR(s): SENATOR(s) WIELECHOWSKI
01/16/08 (S) PREFILE RELEASED 1/4/08
01/16/08 (S) READ THE FIRST TIME - REFERRALS
01/16/08 (S) STA, JUD, FIN
02/07/08 (S) STA AT 9:00 AM BELTZ 211
02/07/08 (S) Heard & Held
02/07/08 (S) MINUTE(STA)
02/12/08 (S) STA AT 9:00 AM BELTZ 211
02/12/08 (S) Scheduled But Not Heard
02/19/08 (S) STA RPT CS 3DP 2NR NEW TITLE
02/19/08 (S) DP: MCGUIRE, FRENCH, STEVENS
02/19/08 (S) NR: GREEN, BUNDE
02/19/08 (S) STA AT 9:00 AM BELTZ 211
02/19/08 (S) Moved CSSB 185(STA) Out of Committee
02/19/08 (S) MINUTE(STA)
02/27/08 (S) JUD AT 1:30 PM BELTZ 211
02/27/08 (S) Heard & Held
02/27/08 (S) MINUTE(JUD)
BILL: SB 234
SHORT TITLE: CRIMINAL LAW/PROCEDURE: OMNIBUS BILL
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
01/18/08 (S) READ THE FIRST TIME - REFERRALS
01/18/08 (S) JUD, FIN
02/22/08 (S) JUD AT 1:30 PM BELTZ 211
02/22/08 (S) -- MEETING CANCELED --
02/29/08 (S) JUD AT 1:30 PM BELTZ 211
BILL: SB 164
SHORT TITLE: USED MOTOR VEHICLE SALES
SPONSOR(s): SENATOR(s) MCGUIRE
04/27/07 (S) READ THE FIRST TIME - REFERRALS
04/27/07 (S) TRA, JUD
02/12/08 (H) TRA AT 1:00 PM CAPITOL 17
02/12/08 (S) Moved SB 164 Out of Committee
02/12/08 (S) MINUTE(TRA)
02/15/08 (S) TRA RPT 3DP 1NR
02/15/08 (S) DP: KOOKESH, WILKEN, OLSON
02/15/08 (S) NR: WIELECHOWSKI
02/29/08 (S) JUD AT 1:30 PM BELTZ 211
WITNESS REGISTER
RICK SVOBODNY, Deputy Attorney General
Criminal Division
Department of Law
Juneau, AK
POSITION STATEMENT: Provided sectional analysis for SB 234.
ANDREW PETERSON, Assistant Attorney General
Criminal Division
Office of Special Prosecutions & Appeals (OSPA)
Department of Law
Anchorage, AK
POSITION STATEMENT: Provided information related to SB 234.
JED WHITTAKER
Anchorage, AK
POSITION STATEMENT: Spoke in opposition to Section 4 of SB 234.
RON ADLER, CEO/Director
Alaska Psychiatric Institute (API)
Anchorage, AK
POSITION STATEMENT: Testified that some provisions in SB 234
could cause capacity issues at API.
STEVE WEST, District Attorney
Ketchikan, AK
POSITION STATEMENT: Spoke in opposition to some provisions of
SB 234.
TREVOR FULTON, Staff
to Senator McGuire
Alaska State Capitol
Juneau, AK
POSITION STATEMENT: Introduced SB 164 on behalf of the sponsor.
ED SNIFFEN, Assistant Attorney General
Civil Division
Department of Law (DOL)
Anchorage, AK
POSITION STATEMENT: Provided background information related to
SB 164.
JOHN COOK, Legislative Director
Alaska Auto Dealers Association (AADA)
Anchorage, AK
POSITION STATEMENT: Spoke in support of SB 164.
ACTION NARRATIVE
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing
Committee meeting to order at 1:32:55 PM. Present at the call to
order were Senators French, Therriault, Huggins, and
Wielechowski.
SB 185-SEX OFFENDER/CHILD KIDNAPPER REGISTRATION
1:33:15 PM
CHAIR FRENCH announced the consideration of SB 185. Before the
committee was CSSB 185(STA). He summarized that the bill was
heard when the committee last met, public testimony was taken,
and committee discussion took place. The Department of Public
Safety has and the Department of Law will submit an updated
fiscal note to reflect that notice of electronic address changes
must be given within one day rather than five days. The fiscal
impact did not change. Finding no further discussion or debate,
he asked for a motion.
SENATOR WIELECHOWSKI motioned to report SB 185 from committee
with individual recommendations and attached fiscal note(s).
1:34:10 PM
CHAIR FRENCH announced that without objection CSSB 185(STA) is
moved from committee.
SB 234-CRIMINAL LAW/PROCEDURE: OMNIBUS BILL
1:34:17 PM
CHAIR FRENCH announced the consideration of SB 234.
RICK SVOBODNY, Deputy Attorney General, Criminal Division,
Department of Law, told the committee that the theme for this
bill is that, "Small changes make big differences." Although SB
234 doesn't make any major changes with respect to creating new
crimes, redrafting sentencing provisions or dealing with
criminal procedure, it does make small changes in each of those
areas. Hopefully the small changes will have a big affect for
crime victims, police officers investigating crimes, and
prosecutors who are prosecuting crimes, he said. The bill is
divided into three areas: new crimes, criminal proceedings, and
sentencing.
1:36:32 PM
MR. SVOBODNY said that Sections 1 and 2 have a new way of
looking at assault in the fourth degree, which is an A
misdemeanor offense. This bill would change certain fourth
degree assault offenses, if committed twice before in the
preceding 10 years, from an A misdemeanor to a C felony. It
would only be fourth degree assaults where there has been
physical contact between the offender and the victim. It does
not include fear assaults, which are those where the victim is
in fear of imminent physical injury. "This includes the
situation where a person has beat their spouse once [and] been
convicted, twice [and] been convicted, and then the third time
it would change from an A misdemeanor to a C felony."
1:37:56 PM
SENATOR WIELECHOWSKI asked if any thought had been given to
increasing the penalties for multiple first, second, and third
degree assaults. He also asked if pleading to a crime would be
considered a conviction.
MR. SVOBODNY said that DOL has always believed that the
legislature's intent is that a conviction is counted at the
point of sentencing, but that should be clarified in the bill.
With respect to increasing the penalty for other offenses, he
told members that the predicate crimes-the two prior offenses-
could be murder in the first or second degree, manslaughter, or
assault in the first or second degree. That's why there's a 10-
year look back, he said. If someone was convicted of criminally
negligent homicide and received a 5-year sentence, they'd be
half way through that time period before they got out of jail.
So DOL did think about broadening the scope to include other
crimes against people like stalking and reckless endangerment,
but decided it was better public policy to limit it to offenses
where there was actual physical force impacted on the body of
another.
1:40:35 PM
CHAIR FRENCH asked if fear assaults can be a predicate prior.
MR. SVOBODNY said yes.
CHAIR FRENCH summarized that an assault in the fourth degree
fear assault or an assault in the third degree fear assault
could count as priors but it has to be a pain assault for a
misdemeanor to become a felony.
MR. SVOBODNY said that's correct. He added that getting too
specific potentially raises the issues of Blakely with respect
to what should have been tried to a jury before. Saying any
previous assault wouldn't require figuring out specifically what
those elements were in the assault in the third degree - whether
it was a fear assault or actual physical injury assault.
SENATOR WIELECHOWSKI asked if there are ex post facto issues for
assaults committed before this law is implemented.
MR. SVOBODNY said no; the issue has been litigated often with
respect to the third DWI being a felony or the third theft being
a felony. This doesn't create a new offense; it simply
establishes that from this point forward someone who commits a
third time assault is committing a felony assault.
1:42:36 PM
MR. SVOBODNY noted that Sections 12, 13, and 14 are conforming
amendments to the assault in the fourth degree provisions.
Section 3 addresses prior convictions. It clarifies in statute
that for the third theft to count as a felony theft, the date of
the prior conviction is considered to occur on the date that the
individual starts receiving the benefit of the sentence. The
court of appeals has reviewed the legislative history in that
regard and believes that is what the legislature intended.
CHAIR FRENCH pointed out that frequently there's a gap between
the date of a guilty plea and the imposition of a sentence. It'd
be during that time that a person might pick up a third theft
charge, but it wouldn't be a felony under this statute since
it's the day of sentencing that's the trigger.
MR. SVOBODNY agreed. Continuing, he said that Section 4 adds a
new provision to the existing crime of resisting arrest. Now it
can be committed three ways: 1) use of force, 2) any degree of
criminal mischief, or 3) creating a substantial risk of serious
physical injury.
SENATOR WIELECHOWSKI observed that a serial assaulter who is
finally caught couldn't be punished under the provisions in
Sections 1, 2, and 3.
MR. SVOBODNY agreed; there'd have to be two prior convictions
within the time period that the legislature set.
CHAIR FRENCH said the committee will ponder that as it considers
the bill. Returning to Section 4, he asked the genesis for
adding disobeying a peace officer as a way of resisting arrest.
MR. SVOBODNY explained that what sometime happens when police
try to make an arrest is that a person will lie down and
passively resist. That escalates the danger to the police
because they have to pick the person up and haul them away. The
Municipality of Anchorage and the City and Borough of Juneau
both have passed ordinances identifying that behavior as
resisting arrest. The Alaska State Troopers asked that this
section conform to the ordinances from those municipalities.
1:47:46 PM
SENATOR WIELECHOWSKI asked if the presumption is that the order
from the police officer is lawful. For example, when people are
exercising their First Amendment right by legally protesting,
it's wrong for a police officer to tell them to disperse.
MR. SVOBODNY said he believes the phrase "lawful order" would
concern law enforcement officers because they don't want to be
second-guessed six months later as to whether a person was
resisting arrest. A person must intend to resist arrest and in
so doing they disobey the police officer's order so the issue of
the hypothetical demonstration wouldn't come up. A person who is
exercising a free speech right and doesn't obey an order to move
along isn't resisting arrest.
1:49:49 PM
MR. SVOBODNY explained that Section 5 adds Ambien and Soma
[carisprodol and zolpidem] to the list of controlled substances
so that under the DUI statutes the police can charge people for
driving under the influence of these substances. Responding to a
question, he explained that these are sleeping pills. He
believes that Lunestra should also be added to the list of
Schedule IV controlled substances.
1:51:26 PM
SENATOR WIELECHOWSKI commented that it must be difficult to
prove these cases.
MR. SVOBODNY agreed it is a difficult problem. Oftentimes it's
necessary for a toxicologist to explain whether the drug in a
person's system is a therapeutic amount. Alaska has a contract
with the Washington State crime lab to provide expert testimony
in those sorts of cases. It's not like alcohol where it's fairly
definitive at which point a person's ability is impaired. These
tests can't be run at the state crime lab, he said.
SENATOR WIELECHOWSKI asked if he anticipates taking blood or
other samples to verify the drug use.
1:54:23 PM
MR. SVOBODNY explained that police officers with special
training look for things that indicate impaired driving. They
look harder when the preliminary breath test (PBT) gives a .00
result yet there was erratic driving. They can take blood only
after establishing sufficient probable cause to get a search
warrant for blood. It's not the same as giving a breath test to
test for alcohol, he said.
MR. SVOBODNY said Section 6 deals with the application of search
warrants. He explained that when Internet providers that are
headquartered outside Alaska are asked to provide subscriber
information, they want a subpoena or some type of documentation
before providing the information. In dealing with sexual
offenses against children by online enticement or child
pornography, the recent trend is for the court to say it doesn't
have jurisdiction to grant a search warrant for that
information. Judges are saying the same thing for white collar
crimes when the documents are produced in Delaware, he said. The
practical issue is that a company will provide those documents
and even if they don't, Alaska has the opportunity to go to a
Delaware court with a search warrant issued by an Alaska court
and ask for full faith and credit.
1:58:05 PM
MR. SVBODNY explained that several years ago the legislature
expanded the extraterritorial ability of the courts to grant
search warrants on state ferries outside state boundaries. Case
law was clear, but if a local jurisdiction didn't want to help
then this state would make a decision about going into another
state's court saying that Alaska courts be given full faith and
credit and that an order allowing the search warrant be
executed. It's a technical issue but it's one that deals with
child pornography, child enticements, and white collar crime, he
said.
MR. SVOBODNY said Section 7 is also a search warrant issue.
Currently a police officer can obtain a search warrant by
telephone if he or she can show that: 1) presenting the
affidavit or testimony in person would result in a delay in the
execution of the search warrant, and 2) that the evidence would
be destroyed in the time it would take the officer to get to the
court in person. He said a case recently came to his attention
where the police were 8 hours up river at a marijuana growing
operation. The police used a satellite phone to call the court
and get a search warrant. "We lost because we weren't able to
show that within the 8 hours to get down river to get the search
warrant that the evidence wouldn't be destroyed in that period
of time," he said.
CHAIR FRENCH asked if his use of the term "lost" meant that the
evidence was suppressed.
MR. SVOBODNY replied that's correct, and he believes the court
followed the statute.
2:00:41 PM
SENATOR WIELECHOWSKI commented he's in favor of providing law
enforcement with all the tools it needs, but he also wants to
protect individuals' rights. This essentially gives law
enforcement carte blanche. He questioned why it's not possible
to call a judge on the telephone and give a short presentation
about what would be lost and why. The judge would then make a
finding. "We're taking away citizens' rights here and that
concerns me when we do that," he said.
MR. SVOBODNY agreed that citizens' rights shouldn't be limited,
but this isn't asking for anything more than modern methods for
transacting business. The police still have to gather evidence
and convince a judge that there is probable cause to believe
that evidence of a crime or fruits of a crime are at a
particular and specific location. That provision only applies
for telephonic search warrants. This just changes the technique
of getting the information to the judge, he said.
2:03:04 PM
CHAIR FRENCH said regardless of whether it's in person or by
telephone or facsimile, the evidence has to convince the judge
that there's probable cause that a crime has been committed and
that evidence is being hidden.
MR. SVOBODNY agreed; the only change is the mechanics for
getting the information in front of a judge.
CHAIR FRENCH opined that there will be instances where a search
warrant won't be issued because the facts aren't sufficient or
they can't be elucidated further through questioning by the
judge. This may be the weakest form of an application for a
search warrant, but it's a tool in the toolbox, he said.
SENATOR WIELECHOWSKI asked if the purpose for including Sections
1 and 2 is that there have been abuses historically.
MR. SVOBODNY surmised that the legislature took the conservative
approach. At the time that this was enacted most states didn't
allow search warrants by telephone or facsimile. That is still
true today. Most states require written application for a search
warrant and many states, including Alaska, allow live testimony.
In Alaska, one court of appeals judge has said repeatedly that
it's better to have the officer physically present. He said he'd
buy into that if the officer were testifying, but in applying
for a search warrant the law says the officer can submit a
written affidavit. "It seems that you would have a better feel
for the evidence if you actually had the person on the phone and
could ask questions and get answers and you could hear how their
voice is…," he said.
2:07:19 PM
SENATOR WIELECHOWSKI offered the view that because of the size
of the state and the difficulty of getting to a court house or
magistrate's office, it's appropriate that Alaska allow search
warrants by phone. All this says is the delay might result in
loss or destruction of evidence or might interfere with an
investigation. His worry centers on an individual's privacy
rights. Before a police officer enters a home or business he
wants to make sure that officer has gone through Fourth
Amendment procedures. This seems to be reasonably written and he
doesn't see the difficulty in picking up the phone and making a
case to the judge. If the officer can't provide proof, then he
or she probably doesn't deserve to get a search warrant, he
said.
MR. SVOBODNY pointed out that the officer would get the search
warrant now if he or she personally appeared before the judge.
Search rules aren't being changed. An officer who walks across
the street and writes out an affidavit doesn't have to say that
it's likely that the evidence will be destroyed in order to get
the search warrant. That is only a requirement if the officer
applies for a search warrant by calling the judge or magistrate
on the telephone. That is a statutory requirement, not a
constitutional requirement, he said.
2:09:40 PM
CHAIR FRENCH said it's a good policy debate and there's likely
to be more. He asked Mr. Svobodny to continue the sectional
analysis.
MR. SVOBODNY explained that Sections 8, 9, 10, 11, 19, and 20
deal with the circumstance where a person has been found
incompetent to stand trial. He cited examples. Under these
provisions, before a person who is incompetent to stand trial is
released back to the community the district attorney is supposed
to be given notice that the release will occur within 10 days.
If a person is found incompetent to stand trial, an evaluation
is to be done for a determination of whether he or she should be
committed and treated at API. If counsel proves that a person is
found incompetent to stand trial, there is a rebuttable
presumption that he or she is mentally ill and a danger to him
or herself or the community. That's the standard for a
determination of whether the person should or should not be
committed, he said.
2:12:46 PM
CHAIR FRENCH asked what the legal difference is between a
finding of incompetent to stand trial and a verdict of not
guilty by reason of insanity. He said it seems that with one
you're pushed out of the system at the start and the other you
go through the system and get pushed out at the end. Both seem
to have a similar mental state.
MR. SVOBODNY said if a person is found guilty but mentally ill
they're sent to API for evaluation but if a person is not guilty
by reason of insanity they're sent home.
CHAIR FRENCH observed that it's about the same because they both
go home.
MR. SVOBODNY said he believes that present law says that if a
person is found not guilty by reason of insanity there has to be
an evaluation.
CHAIR FRENCH said he'd hold that issue for a future hearing.
2:14:24 PM
MR. SVOBODNY relayed that Ms. Carpeneti, Department of Law
(DOL), has worked with the Office of Public Advocacy (OPA) and
the Public Defender Agency (PDA) to address the concern that
this is too broad. They have worked on a proposed amendment to
limit court involvement to felony offenses as opposed to all
offenses and he believes it's a good approach. The limitation
makes sense for minor offenses such as trespassing, but the
community needs protection from people who have convinced a
court they aren't competent to stand trial yet they've committed
arson, murder or other serious crimes.
2:16:12 PM
MR. SVOBODNY said Section 11 clarifies that the court can put a
person who has been convicted of a violation on probation.
Currently there is no provision for that. Section 18 allows the
court to order a person who is convicted of violating laws or
regulations under Title 16 for unlawful taking of game to pay
restitution for the unlawful taking.
2:17:51 PM
ANDREW PETERSON, Assistant Attorney General, Criminal Division,
Office of Special Prosecutions & Appeals (OSPA) explained that
for hunting and fishing violations the troopers generally like
to see small violation fines and restitution for the animal,
which is often donated to charity. Current law doesn't allow for
restitution for the animal, but the change in Section 18 would
allow that.
SENATOR HUGGINS, noting that the restitution for unlawful taking
of a moose is $1,000, questioned whether that might not keep
some people for self reporting an unintended but unlawful
taking.
MR. PETERSON said a number of factors figure into charging
decisions. When it's an honest mistake we like the discretion to
reduce the fine from a misdemeanor to a small violation, he
said. The statute says the court may impose restitution, it's
not mandatory.
2:20:43 PM
SENATOR HUGGINS asked what a small fine might be for taking an
undersize moose.
MR. PETERSON replied it'd probably be $250. Some fines have gone
lower and some higher. Generally on a 49.5 inch moose there
isn't a fine, but if no fine is imposed it essentially becomes
legal. Even though it's forfeit there's no real risk to the
hunter and that becomes a slippery slope, he said.
2:22:23 PM
MR. SVOBODNY said Section 15 begins the sentencing provisions.
It clarifies in statute that "aggravated assaultive behavior" is
a felony offense.
Section 16 defines in statute what the U.S. Supreme Court said
in the Blakely decision with respect to what has to be tried to
a jury. This says that repeated sexual assaults as an
aggravating factor is not something that needs to be tried to a
jury. The court can make the determination if there are
convictions. If they aren't convictions they'd have to be
decided by a jury. This conforms statutory language to case law
language, he said.
2:23:54 PM
SENATOR THERRIAULT asked if there's been a particular problem
with the prosecution that highlighted the need for this
clarification.
MR. SVOBODNY replied there has been that problem and the court
of appeals has given that definition. Putting it into statutory
form makes it easier to reference, particularly in court.
Section 17 provides statutory authority for the governor to
delegate his or her extradition responsibilities to a staff
member. Alaska is the only state where the governor actually
signs extradition warrants. This establishes that the
appointment must be in writing and filed with the lieutenant
governor.
2:26:00 PM
MR. SVOBODNY said Section 21 repeals AS 11.71.310 and AS
12.20.010. Those prohibit state prosecutions for violations of
state law if the federal government has prosecuted the same act
under a federal violation. For example, Alaska currently could
not prosecute an oil company for a criminal law violation if the
federal government made a charge first. That applies throughout
criminal law, he said.
SENATOR HUGGINS asked about double jeopardy.
MR. SVOBODNY explained that the state is a separate sovereign.
As long as there are elements of the crime and there's a
territorial connection, there is no double jeopardy issue.
2:30:27 PM
SENATOR HUGGINS said he certainly believes that the state should
have the ability to recover corrosion damage from an oil
company, but there was some rationale for putting this provision
in statute and for it lasting such a long time. He'd like to
know what the rationale might have been.
MR. SVOBODNY suggested that it's the visceral reaction to double
jeopardy. Someone shouldn't be penalized twice for the same
conduct even though the victims may have substantially different
and competing interests. For example, in drug prosecutions the
federal government, as a victim, may be looking at forfeiture of
drug dealer assets and the state, as a victim, may simply want
the dealer off the street.
SENATOR HUGGINS asked how this might impact the ordinary person.
MR. SVOBODNY explained that in the last several years the
federal government has cherry-picked, leaving the more difficult
drug and child pornography cases to the state.
2:33:16 PM
SENATOR WIELECHOWSKI asked if passing this provision puts Alaska
in line with other states.
MR. SVOBODNY replied he doesn't have that information, but it's
a one-way street with respect to the state versus the federal
government. The federal government has always maintained that if
the state charges first it still has authority to bring charges
later on.
CHAIR FRENCH highlighted the Rodney King trial. The state
prosecution failed and the federal government followed up with a
prosecution.
2:35:30 PM
SENATOR WIELECHOWSKI questioned the repeal of AS 12.35.015(f) in
Section 21. He read the following:
(f) Absent a finding of bad faith, evidence
obtained under a warrant issued under this section is
not subject to a motion to suppress on the ground that
the circumstances did not support its issuance under
(a) of this section.
MR. SVOBODNY explained that repealing subsection(f) conforms to
the amendment in Section 7 that allows a court to issue search
warrants by telephone and other electronic means. Subsection (f)
won't be needed any longer if you're saying the police officer
is going to get search warrants by telephone, he said.
2:38:11 PM
CHAIR FRENCH suggested postponing an in-depth discussion of that
point to a later time.
MR. SVOBODNY said Section 22 changes a court rule to allow a
judge more discretion in timing for the return of a search
warrant.
CHAIR FRENCH thanked Mr. Svobodny and said he'd be invited back
when the bill was heard next.
2:39:18 PM
JED WHITTAKER, Anchorage resident testifying on his own behalf,
said he wants to speak against the amended language in Section 4
that adds disobeying an order of a police officer to resisting
arrest. Referring to the saying that the U.S. Constitution is
only as good as the corner policeman, he noted over the last 20
years police have become militarized and prison populations have
doubled. Police officers have changed attitude and it borders on
paranoia and sometimes belligerence, he said. If a police
officer tells a person they're under arrest it's fairly
straightforward. But under this new provision if a person isn't
put under arrest and the police issue an order that isn't
followed, then that person would be resisting arrest. "I don't
think that's good," he said. The second reason he has a problem
with the language is if a person is taking picture of an arrest
and the police want to seize the camera, that person is guilty
of resisting arrest. Citizens have an obligation to prevent
police brutality, which means they must be able to observe and
take pictures of the police whether the police want that or not.
The final reason he doesn't support the change is because the
cost of incarceration is astronomical. "How many people need to
go to prison so that everybody feels safe?" he asked.
2:43:39 PM
RON ADLER, CEO/Director, Alaska Psychiatric Institute (API),
said although the Department of Health and Social Services
(DHSS) supports the intent of this legislation, he would point
out that the sections relative to sending to API individuals who
are incompetent to stand trial and presumably mentally ill could
cause capacity issues at the hospital in the future. The number
of people that could be sent to API as a result of this bill is
undetermined and the forensic unit at the hospital is typically
at capacity with a waiting list. "This could result in
additional planning for changes in the facility or additional
facilities in the state," he said.
CHAIR FRENCH asked what the forensic unit is and what capacity
it has.
MR. ADLER explained that it's a medium-security 10-bed unit. Two
beds are permanently occupied by (NGRIs). Those are individuals
who have been found not guilty by reason of insanity. A lot of
restoration-to-competency and culpability exams are done within
the unit because the only licensed forensic specialist in the
state works there.
2:46:18 PM
STEVE WEST, District Attorney, Ketchikan, said his testimony
relates to Sections 8, 9, and 10 and persons who are found
incompetent to stand trial. He explained that this issue arose
in Ketchikan in 2003 and 2004 when a man committed five arsons.
In 2004 he was charged with the arsons and admitted to starting
all the fires. He was found incompetent to stand trial. As
district attorney he asked API to commit the arsonist. API
interviewed the man and did not commit him because the man told
the interviewers that he wouldn't start any more fires. He was
released and within six months he was charged with arson in a
nearby community. According to his record he's been setting
fires since he was a teenager and he has no doubt that he'll do
it again. It's interesting that he wouldn't have an insanity
defense, but he isn't competent to understand court proceedings
so he isn't competent to stand trial. This bill will correct
that type of problem, he said.
CHAIR FRENCH announced he would hold SB 234 for a subsequent
hearing.
SB 164-USED MOTOR VEHICLE SALES
2:50:57 PM
CHAIR FRENCH announced the consideration of SB 164.
TREVOR FULTON, staff to Senator McGuire, introduced SB 164 on
behalf of the sponsor. He explained that the bill removes from
statute outdated language governing the sale of used motor
vehicles without reducing consumer protections. The bill repeals
AS 45.25.464(c), which says that dealers must post three
disclosures on used vehicles they intend to sell: 1) the vehicle
is not subject to Alaska's "lemon law," 2) the vehicle is not
covered under a manufacturer warranty, and 3) the vehicle was
not manufactured for sale in a foreign country.
MR. FULTON said the disclosures were mandated in response to an
influx of Canadian vehicles that were sold as new. He
understands that was occurring up until about 2000. Industry and
the Department of Law agree that this is no longer an issue. In
fact, all three disclosures are information that's readily
available to consumers. These mandated postings are an
inconvenience and they may be leaving dealers exposed to legal
suit because failure to post the information in subsection (c)
amounts to unfair trade practices. Unfair trade practices allows
lawsuits demanding treble damages and reimbursement of legal
costs even though the consumer may have suffered no actual harm
or damage. "When the state starts unnecessarily burdening
Alaskan businesses while providing no additional consumer
protection, the sponsor believes it's time to reevaluate."
CHAIR FRENCH asked Mr. Sniffen to give his view of the bill.
2:54:22 PM
ED SNIFFEN, Assistant Attorney General, Civil Division,
Department of Law (DOL) said he's responsible for enforcing the
Alaska Consumer Protection Act and the antitrust statute with a
particular emphasis on regulating auto dealers in Alaska. He
said that Mr. Fulton accurately described how this legislation
came about, but he'd like to highlight information that DOL has
received since it sent a letter to the sponsor. Initially DOL
didn't understand how the statute was passed with reference to a
disclosure requirement that extended to all used vehicles as
opposed to just "current model" used vehicles. DOL has since
communicated with Representative Gruenberg who recalls adding
that language because he wanted to extend the protection to all
used cars. DOL will speak to the Representative about his
concerns to make sure they are addressed but, as Mr. Fulton
said, the protections in subsection (c) are already required in
a number of other ways. He noted that when the "current model"
vehicle language was removed from Title 8 several years ago it
created an issue with this statute. But for the most part
industry has self-corrected in the sense that the harms caused
by selling current model vehicles without the required
disclosures have been removed. He offered to go into further
detail.
2:57:07 PM
CHAIR FRENCH referred to two documents in the packet. The first
has a "little sticker" and the next has a "big sticker." He
asked if the little sticker is being affected.
MR. SNIFFEN said yes; the big sticker has the disclosures that
are required under federal law. It has boxes for the dealer to
check stating the vehicle will be sold as is with no warranty or
with either a full or limited warranty. It's the little sticker
that would no longer be required under this bill.
CHAIR FRENCH recapped that the little sticker says three things
about the vehicle: 1) it's not subject to the lemon laws; 2)
it's not covered under a warranty; and 3) it's not built Canada.
And the big sticker is pretty clear about "no warranty" versus
"warranty." He asked what part of that big sticker tells a
consumer that the vehicle wasn't built in Canada.
MR. SNIFFEN replied he's unaware of any part of the big sticker
that has that information, but the requirement wouldn't change.
"Auto dealers would still have to post a requirement on the car
if the vehicle was manufactured for sale in Canada or another
foreign country." That requirement comes from AS 45.25.470 so
they're duplicative. Removing the requirement from one section
doesn't remove it from the other.
2:59:21 PM
CHAIR FRENCH asked what part of the big sticker would tell a
consumer that the car isn't subject to Alaska's lemon law
protections.
MR. SNIFFEN replied it's not explicit so it's not as clear. The
lemon law protections are in fact warranty protections that
apply only to new cars. When the "no warranty" box is checked on
the big sticker, by assumption that is telling the consumer that
the lemon law would not apply. He isn't aware of any state that
requires that specific kind of disclosure.
CHAIR FRENCH asked if he's comfortable with that.
MR. SNIFFEN said he is comfortable because he doesn't know that
consumers rely on that kind of information when they decide to
buy or not buy a vehicle. The lemon laws have a very specific
application. Consumers have certain rights when they buy a new
vehicle and manufacturers are required to include that
information in the owner's manual. "When it comes to used cars,
that bit of information is just not that harmful to consumers to
not have because it wouldn't apply anyway," he said.
3:01:37 PM
CHAIR FRENCH questioned why the bill is retroactive.
MR. SNIFFEN explained that DOL understands that when this
provision passed it wasn't meant to apply to all used vehicle
sales. It was intended to apply only to "current model" used
cars. Some dealers though that was the correct application of
the law and so they didn't make those disclosures. They started
doing it once they realized the disclosures had to be put on
every use car, but there was a period of time before that
information got around. As a result a lot of dealers are exposed
to significant liability for having failed to disclose properly.
This law would provide protection to those dealers if a claim
isn't already pending.
CHAIR FRENCH asked if the State of Alaska has brought action to
enforce this law as it stood.
MR. SNIFFEN said one action is pending in the state supreme
court on appeal. It was a case DOL brought against Lithia
Dealerships that centered on different issues. As part of the
settlement DOL recognized that Lithia failed to make some of the
disclosures and asked for injunctive relief. They need to make
these disclosures going forward until the law changes or it's no
longer necessary, he said.
CHAIR FRENCH acknowledged that he's suggesting a retroactive
clause and asked if the state envisions further actions against
other dealerships.
MR. SNIFFEN said that's correct. Even in the current case
against Lithia Dealerships, very little consumer harm was
assigned to the failure to make the disclosures. DOL didn't
identify any transactions where consumers wouldn't have gone
forward with the vehicle purchase had they had that information.
If DOL does come across information that indicates that
consumers would have relied on information had the disclosures
been made, it would consider taking action. If the bill is
applied retroactively and no suit is pending he believes there
would still be good grounds to proceed because "all of these
things are probably required by something else." Failure to
disclose that the vehicle is manufactured for sale in Canada or
a foreign country is the provision that can cause the most harm
because warranty is affected. Most manufacturers have addressed
that problem by extending coverage, but for a time it was an
issue for Alaskans who purchased vehicles in Canada. "But that
requirement is already required and will continue to be
required," he said.
3:05:38 PM
JOHN COOK, Legislative Director, Alaska Auto Dealers Association
(AADA), reiterated that all the disclosures that are required on
the small sticker are either unnecessary or redundant. The lemon
law applies only to new vehicles so putting that disclosure on
the vehicle is negative and necessary. The warranty disclosure
is covered in the FTC sticker that every used vehicle in the
U.S. is required to display. Also, AS 45.25.470 requires that
all vehicles manufactured for sale in Canada have that
disclosed. With regard to retroactivity, he agrees with Mr.
Sniffen. Most used car dealers had no idea when the legislation
passed [in 2004] that it contained a requirement for a second
sticker on all used cars. They learned about it when a lawsuit
was filed. Because it's an unfair trade practice there's a two-
year look back period. It leaves dealers exposed yet there is no
tangible benefit to anyone. A company like Lithia can probably
withstand a class action suit, but the majority of the AADA
membership would have difficulty withstanding a suit of this
nature.
3:09:57 PM
CHAIR FRENCH announced he would hold SB 164 for a subsequent
hearing.
There being no further business to come before the committee,
Chair French adjourned the meeting at 3:10:15 PM.
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