Legislature(1995 - 1996)

03/01/1995 01:34 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                   SENATE JUDICIARY COMMITTEE                                  
                         March 1, 1995                                         
                           1:34 p.m.                                           
  MEMBERS PRESENT                                                              
 Senator Robin Taylor, Chairman                                                
 Senator Lyda Green, Vice-Chairman                                             
 Senator Mike Miller                                                           
 Senator Al Adams                                                              
  MEMBERS ABSENT                                                               
 Senator Johnny Ellis                                                          
  COMMITTEE CALENDAR                                                           
 SENATE BILL NO.  4                                                            
 "An Act relating to arrest of a person under age 21 for illegal               
 possession, consumption, or control of alcohol; to classifying                
 certain offenses related to driving while intoxicated or failure to           
 submit to a chemical test as felonies; and providing for an                   
 effective date."                                                              
 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."                                
 SENATE BILL NO. 14                                                            
 "An Act relating to criminal mischief."                                       
  PREVIOUS SENATE COMMITTEE ACTION                                             
 SB 4 - See State Affairs minutes dated 2/9/95 and 2/21/95.                    
 SB 46 -  See Judiciary minutes dated 2/27/95.                                 
 SB 14 - See Judiciary minutes dated 2/1/95, 2/6/95, 2/8/95,                   
  WITNESS REGISTER                                                             
 Joe Ambrose                                                                   
 Chief of Staff to Sen. Taylor                                                 
 State Capitol                                                                 
 Juneau, Alaska  99811                                                         
  POSITION STATEMENT:  Testified for sponsor of SB 4                           
 Del Smith                                                                     
 Deputy Commissioner                                                           
 Department of Public Safety                                                   
 P.O. Box 111200                                                               
 Juneau, Alaska  99811-1200                                                    
  POSITION STATEMENT:  Testified in support of SB 4                            
 Juanita Hensley                                                               
 Division of Motor Vehicles                                                    
 Dept. of Public Safety                                                        
 P.O. Box 20020                                                                
 Juneau, Alaska  99811-0020                                                    
  POSITION STATEMENT:  Testified on SB 14                                      
 Margot Knuth                                                                  
 Assistant Attorney General                                                    
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, Alaska  99811-0300                                                    
  POSITION STATEMENT:  Testified on SB 4, SB 14, and SB 46.                    
 Jack Chenoweth                                                                
 Division of Legal Services                                                    
 Legislative Affairs Agency                                                    
 130 Seward St., Suite 409                                                     
 Juneau, Alaska  99801-2105                                                    
  POSITION STATEMENT:  Answered questions on SB 46                             
 Jerry Luckhaupt                                                               
 Division of Legal Services                                                    
 Legislative Affairs Agency                                                    
 130 Seward St., Suite 409                                                     
 Juneau, Alaska  99801-2105                                                    
  POSITION STATEMENT:  Answered questions on SB 14                             
  ACTION NARRATIVE                                                             
 TAPE 95-10, SIDE A                                                            
  CHAIRMAN ROBIN TAYLOR  called the Judiciary Committee meeting to             
 order at 1:34 p.m.  The first order of business was SB 4.                     
                         SB 4 DWI LAWS                                        
 JOE AMBROSE, Chief of Staff to Senator Taylor, read a sponsor                 
 statement to the committee.  He explained SB 4 makes drunk driving            
 a felony on the third offense, requires a minimum sentence of 360             
 days, and carries a $1,000 fine upon conviction.   It also requires           
 a sentence of not less than 30 days and a $1,000 fine if a person             
 convicted of a felony DWI later drives a vehicle while their                  
 license is suspended or revoked.  That section was added at the               
 suggestion of law enforcement agencies.  SB 4 provides the court              
 the option of ordering drug therapy as a condition of parole or               
 probation and to order forfeiture of a vehicle or aircraft.  SB 4             
 is aimed to remove repeat offenders from the highways.  Section 1             
 addresses a change needed in state law to overcome a court ruling             
 that a minor cannot be arrested for consuming alcohol unless the              
 police witness the consumption.  The remainder of SB 4 deals with             
 what is necessary to make it a felony to repeatedly drive drunk.              
 Number 092                                                                    
 SENATOR ADAMS asked if SB 4 would cost over $4.2 million, of which            
 $3.7 million would be expended by the Department of Corrections,              
 and  whether more prison space would be required.                             
 MR. AMBROSE responded the fiscal note from the Department of                  
 Corrections totals $3.7 million in the first year.  SENATOR ADAMS             
 questioned whether the Senate Majority has included this amount in            
 their spending plan.  SENATOR TAYLOR noted the Governor's budget              
 was only received the day before.                                             
 SENATOR TAYLOR discussed the policy issue of whether the fiscal               
 notes of the departments should drive legislative policy.  He                 
 stated he felt it was worth the cost to pick up repeat offenders to           
 prevent them from causing deaths.  He noted last year, 48 people              
 were arrested in Anchorage for this offense; he estimated the                 
 number would double if statewide statistics were used.                        
 Number 128                                                                    
 SENATOR ADAMS responded he believes prison is not the answer for              
 every crime committed in the State of Alaska.  He suggested                   
 considering community service as a punishment for some offenses.              
 He commented that teenagers who are first-time offenders should be            
 doing productive community work rather than serving time in                   
 Number 143                                                                    
 DEL SMITH, Deputy Commissioner of the Department of Public Safety             
 (DPS), testified in support of SB 4.  Regarding the fiscal impact,            
 he explained the DPS fiscal note addresses overtime costs generated           
 by court appearances and Grand Jury appearances in felony cases.              
 DPS anticipates 330 people will be charged for this offense                   
 SENATOR ADAMS asked how many people would be put in jail if SB 4              
 passes.  MR. SMITH estimated 100 would be sentenced, based on the             
 Department of Law's projections.                                              
 MARGOT KNUTH, Assistant Attorney General of the Department of Law             
 (DOL), expanded on Mr. Smith's response.  The DOL projects out of             
 400 arrests, 380 would be accepted for prosecution, and 15 percent            
 of those would go to trial.  This would represent a substantial               
 fiscal impact for the DOL, because felony crimes must be presented            
 to the Grand Jury.  She noted DOL anticipates a total of 330                  
 convictions each year.  The costs to the defense would double.  The           
 DOL has looked at other approaches used to address this problem.              
 In Minnesota, license plates are removed from the vehicle when the            
 arrest is made, with the advantage that the government does not end           
 up responsible for storing the vehicles, which are often junk                 
 vehicles.  The owner is responsible for impounding the vehicle                
 since a vehicle without plates cannot be on the street.  If this              
 system was used, the Legislature would have to determine what the             
 offender would need to do to retrieve their license plates.                   
 MS. KNUTH discussed DOL concerns about the sentences set out in SB
 4.  In Alaska, a presumptive sentencing scheme is used, which                 
 states that second class C felony convictions carry two year                  
 sentences, and third offense convictions carry three year                     
 sentences.  The sentences in SB 4 are less with a 360 day mandatory           
 minimum.  Driving with a revoked license would carry a 30 day                 
 mandatory minimum sentence, which would be a second felony offense            
 and usually carries a two year sentence.                                      
 MS. KNUTH emphasized the DOL vigorously supports Section 1 of SB 4,           
 allowing warrantless arrests of minors.  There are two other                  
 circumstances in which warrantless arrests are allowed: domestic              
 violence incidents; and DWI cases.  The justification for                     
 warrantless arrests in those situations is the danger those                   
 offenders pose to the public.  DOL believes the same holds true for           
 minors consuming because when judgement impaired, they may                    
 jeopardize their's and others' safety.                                        
 Number 261                                                                    
 SENATOR TAYLOR asked, in states that are using the license plate              
 removal approach, what the offender must do to obtain his/her                 
 license plates, and what is done when the impaired driver is not              
 the owner of the vehicle.  MS. KNUTH was unaware of the processes             
 SENATOR TAYLOR stated another issue with forfeiture and seizure of            
 vehicles is whether bank loans exist on the vehicle.  He explained            
 discussions over the issue of liability on the part of the loaning            
 institution, who may have had knowledge of previous convictions               
 prior to loaning the money, have occurred.  SENATOR TAYLOR asked              
 Ms. Knuth to look into the approaches she mentioned and provide the           
 committee with recommendations.                                               
 SENATOR GREEN suggested the presumptive sentencing issue be                   
 reviewed.  SENATOR TAYLOR asked what the fiscal impact would be.              
 MS. Knuth replied the impact on the DOL would be negligible,                  
 however it might double the Department of Correction's fiscal note.           
 MR. AMBROSE stated the penalties were seriously considered when               
 drafting the legislation and were purposely designed to be less               
 punitive than what would happen under the normal circumstances.  A            
 repeat offender usually has a serious alcohol problem, and                    
 hopefully a one-year mandatory prison sentence would give him/her             
 time to seek help.  The 30 day prison requirement is also designed            
 to provide additional "cooling off" time.                                     
 SENATOR TAYLOR announced SB 4 would be held until the next hearing            
 (March 8).  The committee took up SB 14.                                      
 SJUD - 3/1/95                                                                 
           SB  14 INCREASED PENALTIES FOR JOYRIDING                           
 SENATOR MILLER moved the adoption of Work Version O, dated 2/28/95,           
 as the new work version.  SENATOR ADAMS objected until the                    
 committee heard a review by the Department of Law.                            
 MARGOT KNUTH stated Version O approaches the issue from a new                 
 angle, but provides more flexibility to the state and has the same            
 finish line.  It changes the sentencing provision under AS                    
 11.46.484(c) by making a second joyriding offense a felony if the             
 offender is 18 years of age or older (line 5).  Two other                     
 conditions already exist in which a joyriding offense can be                  
 classified as a felony: when more than $500 worth of damage to the            
 vehicle occurs; and when the vehicle is a police, or other                    
 emergency, vehicle.  Those two provisions have not been impacted by           
 SB 14 and allow the prosecutor's office the flexibility to put a              
 minor through delinquency proceedings for a felony.  When those               
 circumstances apply, this may be appropriate if the offender's past           
 history warrants detention or monitoring.                                     
 MS. KNUTH explained that in most cases, the principle concern is to           
 deter the person from re-offending and to get restitution for the             
 vehicle owner.  She felt this can be best accomplished in district            
 court, which has the power of supervision over probation.  Version            
 O maintains those offenses as misdemeanors for juveniles in                   
 district court.                                                               
 MS. KNUTH explained Section 2 addresses a technical oversight                 
 regarding emergency vehicles.  Section 3 allows the revocation of             
 driving privileges for joyriding offenses.  Section 4 specifies the           
 length of time for license revocations.  Section 5 requires                   
 juveniles to appear in district court for joyriding offenses.                 
 Number 382                                                                    
 SENATOR ADAMS asked if juveniles appearing in district court would            
 be charged with misdemeanors for the first two offenses, and with             
 a felony on the third offense.  MS. KNUTH stated that is correct.             
 SENATOR ADAMS asked if an adult would be charged with a misdemeanor           
 for the first offense, and with a felony for the second offense.              
 MS. KNUTH clarified that juveniles arrested for joyriding offenses            
 will always be charged with a misdemeanor; the offense could only             
 be charged as a felony after the offender turns 18, unless more               
 than $500 worth of damage is caused, or an emergency vehicle is               
 used (in which case felony charges would be pursued through                   
 juvenile delinquency proceedings which do not result in adult                 
 SENATOR ADAMS questioned whether a first time adult offender is               
 charged with a misdemeanor, and a second time adult offender is               
 charged with a felony.  MS. KNUTH replied affirmatively.  SENATOR             
 ADAMS asked if Version O changes the fiscal notes submitted for the           
 original version of SB 14.  MS. KNUTH was uncertain whether fiscal            
 notes were submitted for the original version.  She noted that                
 approach raised the joyriding offense to a felony which would have            
 had significant fiscal impacts on the Departments of Law and                  
 Corrections.  Version O will have a much smaller fiscal impact.               
 Number 403                                                                    
 SENATOR ADAMS commented many versions of SB 14 have been considered           
 but the fiscal impacts of those changes have not been addressed.              
 SENATOR TAYLOR commented that he understood Version O to raise the            
 second juvenile joyriding offense to a felony.  MS. KNUTH stated              
 the second offense would only be raised to a felony if the offender           
 had turned 18.                                                                
 JUANITA HENSLEY, Division of Motor Vehicles, Department of Public             
 Safety, testified.  She explained the original version of SB 14               
 would have no impact on the Division of Motor Vehicles.  Version O            
 will impact the Division since court ordered license revocations              
 would have to be processed, however the revenue generated from                
 license reinstatement fees would offset processing costs and                  
 provide a source of revenue.                                                  
 SENATOR TAYLOR noted the fiscal note on Version O from the                    
 Department of Corrections should reflect a decrease in costs.                 
 Number 431                                                                    
 MS. KNUTH noted that Version O inadvertently includes a mandatory             
 3 day prison sentence.  JERRY LUCKHAUPT, Division of Legal                    
 Services, explained that when drafting Version O he removed two               
 sections that were in the previous version of SB 14, at the                   
 committee's request.  One of those sections created a new offense             
 specific to juveniles, and made it consistent with other                      
 misdemeanor joyriding offenses.  That provision mandated a 3 day              
 prison sentence, of which 2 days could be served by doing community           
 service.  When that section was removed, the ability to replace               
 prison time with community service was removed.  He suggested                 
 reinstating the community service provision by including a clause             
 that states that AS 12.55.135 (f) would only apply to offenders at            
 least 18 years of age.                                                        
 SENATOR TAYLOR stated that under existing law, juveniles never                
 serve prison time.  MS. KNUTH clarified that if that amendment were           
 made, the 3 day prison sentence would not be mandatory, but would             
 allow the judge to determine whether it is warranted, depending               
 upon the circumstances of the particular offense.                             
 Number 470                                                                    
 SENATOR ADAMS asked if the amendment would provide the judge with             
 the option of imposing the prison sentence.  MS. KNUTH replied                
 affirmatively.  SENATOR ADAMS noted he was not opposed to that                
 provision.  MR. LUCKHAUPT reiterated the mandatory 3 day prison               
 sentence would only apply to offenders over the age of 18.                    
 SENATOR ADAMS removed his objection to the motion to adopt Version            
 O as the working version.  The motion was adopted.                            
 SENATOR TAYLOR moved to adopt the conceptual amendment to be                  
 drafted by Mr. Luckhaupt, to remove the mandatory 3 day prison                
 requirement for offenders under the age of 18.  There being no                
 objection, the motion passed.                                                 
 SENATOR TAYLOR commented SB 14 was originally introduced to raise             
 the penalties for all joyriding violations from a criminal mischief           
 3 class A misdemeanor to a criminal mischief 2 class C felony.  The           
 second joyriding conviction within 7 years would have been raised             
 from a criminal mischief 2 class C felony to a criminal mischief 1            
 class B felony.  After public testimony was taken, the committee              
 has found that over 50 percent of the offenders are juveniles who             
 are not appearing in court because of their juvenile status.  As a            
 consequence, the committee has redrafted the legislation to address           
 the 50 percent of juvenile cases that are not being handled                   
 SENATOR MILLER moved SB 14 (am) with the conceptual amendment out             
 of committee with individual recommendations.  There being no                 
 objection, the motion passed.                                                 
 SJUD - 3/1/95                                                                 
       SB  46 PROSECUTE JUVENILE AS ADULT IN DIST. CT.                       
 JACK CHENOWETH, Division of Legal Services, Legislative Affairs               
 Agency, stated that at the request of the committee, he has                   
 provided an amendment (A.2) to SB 46 to modify the penalty for                
 minors in two situations:  when consuming alcohol; and when in                
 possession of tobacco.  He gave the following description of the              
 amendment.  On page 1, line 2, a title change reflects other                  
 changes in SB 46.  Section 1, AS 04.16.050(b), defines the offense            
 of minor consuming by a person under the age of 18 as a violation,            
 rather than as a misdemeanor.  A violation carries a monetary fine            
 of not more than $300; the amendment sets a minimum fine of $100.             
 Section 2 adds AS 04.16.050(b) to the list of exceptions of                   
 offenses in the alcoholic beverage code, that are otherwise                   
 punishable as class A misdemeanors.  Section 3 specifies that the             
 district court has jurisdiction over violations and specifically              
 identifies the consumption of alcohol and possession of tobacco as            
 violations.  A technical change was made on lines 9-11, and on page           
 2, line 11, the word "minor" was changed to "person under 19 years            
 of age" to conform with other text.                                           
 Number 546                                                                    
 SENATOR ADAMS asked if a judge could require community service in             
 lieu of the monetary fine.  MR. CHENOWETH replied he did not think            
 a judge could do that because the general definition of "violation"           
 speaks only in terms of monetary remuneration.  SENATOR ADAMS                 
 expressed concern that many juveniles may not be able to pay such             
 a fine therefore he suggested community service as an appropriate             
 MS. KNUTH noted under AS 12.55.055(c) a judge may convert a fine              
 into community work service.                                                  
 TAPE 95-10, SIDE B                                                            
 MS. KNUTH explained the DOL believes that by reducing the offense             
 of minor consuming to a violation, more cases will come before the            
 court, as there is some reluctance to charge a minor with a class             
 A misdemeanor because of the penalties and proceedings.  DOL                  
 believes earlier intervention opportunities will occur as a result            
 of the change and will allow for preventive measures rather than              
 punitive measures.                                                            
 SENATOR TAYLOR expressed concern over the differentiation of minors           
 under the age of 18 and minors between the ages of 18 and 21.  MS.            
 KNUTH suggested making the following changes to the amendment: on             
 page 1, lines 5 and 7, change the word "minor's" to "person under             
 21 in"; on line 12, delete the words "who is a minor"; on page 2,             
 line 3, delete the words "a minor"; and on line 5 delete the words,           
 "a person under 19 years of age."                                             
 MS. KNUTH commented that this bill acknowledges district court                
 jurisdiction over these two violations, which could be interpreted            
 to mean it does not have jurisdiction over other violations.                  
 SENATOR TAYLOR agreed with Mr. Chenoweth that it needs to be                  
 stated, and that perhaps a revisor's bill is in order.                        
 SENATOR TAYLOR withdrew his original amendment.  There being no               
 objection, the motion passed.  SENATOR TAYLOR then moved the                  
 adoption of the amendment drafted by Mr. Chenoweth, labeled A.2,              
 dated 3/1/95, with the following changes:  on page 1, lines 5 and             
 7, change the word "minor's" to "person under 21 in", on line 12,             
 delete the words "who is a minor"; on page 2, line 3, delete the              
 words "a minor"; and on line 5 delete the words, "a person under 19           
 years of age."                                                                
 SENATOR MILLER moved SB 46 am out of committee with individual                
 recommendations.  There being no objection, the motion passed.                
 SENATOR TAYLOR adjourned the meeting at 2:30 p.m.                             

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