Legislature(2003 - 2004)

03/10/2004 08:05 AM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                         March 10, 2004                                                                                         
                           8:05 a.m.                                                                                            
TAPE(S) 04-17,18                                                                                                                
MEMBERS PRESENT                                                                                                               
Senator Ralph Seekins, Chair                                                                                                    
Senator Gene Therriault                                                                                                         
Senator Hollis French                                                                                                           
MEMBERS ABSENT                                                                                                                
Senator Scott Ogan, Vice Chair                                                                                                  
Senator Johnny Ellis                                                                                                            
COMMITTEE CALENDAR                                                                                                            
SENATE BILL NO. 170                                                                                                             
"An Act relating  to the Code of Criminal  Procedure; relating to                                                               
defenses,  affirmative defenses,  and  justifications to  certain                                                               
criminal  acts; relating  to rights  of  prisoners after  arrest;                                                               
relating  to  discovery,  immunity from  prosecution,  notice  of                                                               
defenses,  admissibility  of  certain   evidence,  and  right  to                                                               
representation in  criminal proceedings; relating  to sentencing,                                                               
probation,  and discretionary  parole; amending  Rule 16,  Alaska                                                               
Rules of  Criminal Procedure, and  Rules 404, 412, 609,  and 803,                                                               
Alaska Rules of Evidence; and providing for an effective date."                                                                 
     HEARD AND HELD                                                                                                             
PREVIOUS COMMITTEE ACTION                                                                                                     
BILL: SB 170                                                                                                                  
SHORT TITLE: CRIMINAL LAW/SENTENCING/ PROBATION/PAROLE                                                                          
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR                                                                                    
04/04/03       (S)       READ THE FIRST TIME - REFERRALS                                                                        
04/04/03       (S)       JUD, FIN                                                                                               
04/11/03       (S)       JUD AT 1:30 PM BELTZ 211                                                                               
04/11/03       (S)       <Bill Hearing Postponed to 4/14/03>                                                                    
04/14/03       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
04/14/03       (S)       Scheduled But Not Heard                                                                                
04/15/03       (S)       JUD AT 5:00 PM BELTZ 211                                                                               
04/15/03       (S)       Heard & Held                                                                                           
04/15/03       (S)       MINUTE(JUD)                                                                                            
04/24/03       (S)       JUD AT 4:00 PM BUTROVICH 205                                                                           
04/24/03       (S)       Heard & Held                                                                                           
04/24/03       (S)       MINUTE(JUD)                                                                                            
05/14/03       (S)       JUD AT 0:00 AM BELTZ 211                                                                               
05/14/03       (S)       -- Meeting Postponed to 5/15/03 --                                                                     
05/15/03       (S)       JUD AT 8:45 AM BELTZ 211                                                                               
05/15/03       (S)       -- Meeting Rescheduled from 5/14/03 --                                                                 
05/16/03       (S)       JUD AT 1:00 PM BELTZ 211                                                                               
05/16/03       (S)       <Above Item Removed from Agenda>                                                                       
05/16/03       (S)       MINUTE(JUD)                                                                                            
03/05/04       (S)       JUD AT 8:00 AM BUTROVICH 205                                                                           
03/05/04       (S)       <Bill Hearing Postponed>                                                                               
03/10/04       (S)       JUD AT 8:00 AM BUTROVICH 205                                                                           
WITNESS REGISTER                                                                                                              
Ms. Susan Parkes                                                                                                                
Deputy Attorney General                                                                                                         
Criminal Division                                                                                                               
Department of Law                                                                                                               
POSITION STATEMENT:  Presented the changes made in version H of                                                               
SB 170                                                                                                                          
Mr. Paul Harris                                                                                                                 
Fairbanks Chief of Police                                                                                                       
800 Cushman St.                                                                                                                 
Fairbanks, AK  99701                                                                                                            
POSITION STATEMENT:  Supports the changes made to SB 170 in                                                                   
version H                                                                                                                       
Mr. Ray Brown                                                                                                                   
Dillon and Findley PC                                                                                                           
350 N Franklin St.                                                                                                              
Juneau, AK                                                                                                                      
POSITION     STATEMENT:    Expressed     caution    about     the                                                             
unconstitutionality of the immunity provision in version H of SB                                                                
170 and expressed concern about Section                                                                                         
Ms. Cindy Cashen                                                                                                                
MADD Juneau Chapter                                                                                                             
211 4 St.                                                                                                                       
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Stated support for version H of SB 170                                                                   
Lt. Al Storey                                                                                                                   
Alaska State Troopers                                                                                                           
Department of Public Safety                                                                                                     
PO Box 111200                                                                                                                   
Juneau, AK  99811-1200                                                                                                          
POSITION STATEMENT:  Stated support for version H of SB 170                                                                   
Ms. Linda Wilson                                                                                                                
Alaska Public Defender Agency                                                                                                   
Department of Administration                                                                                                    
900 W 5                                                                                                                         
Anchorage, AK 99501-2090                                                                                                        
POSITION STATEMENT:   Expressed  concerns about  several sections                                                             
of version H  of SB 170, particularly  the unconstitutionality of                                                               
the immunity provision.                                                                                                         
ACTION NARRATIVE                                                                                                              
TAPE 04-17, SIDE A                                                                                                            
CHAIR  RALPH   SEEKINS  called  the  Senate   Judiciary  Standing                                                             
Committee  meeting to  order at  8:05  a.m. Senators  Therriault,                                                               
French and  Chair Seekins were  present. Senators Ogan  and Ellis                                                               
were excused. The committee took up SB 170.                                                                                     
        SB 170-CRIMINAL LAW/SENTENCING/ PROBATION/PAROLE                                                                    
MS.  SUSAN PARKES,  Deputy Attorney  General, Criminal  Division,                                                               
Department  of Law  (DOL), told  members  she has  been with  DOL                                                               
since 1987.  She has spent  all of  her career, except  2½ years,                                                               
doing  criminal prosecutions.  She  believes  the bill  addresses                                                               
some very real problems facing  the law enforcement community and                                                               
prosecutors by  addressing gaps in  the current law.  She pointed                                                               
out the  committee substitute (CS) before  the committee (version                                                               
H)  is  very different  from  the  version  that was  before  the                                                               
committee  last   year.  The  administration   assessed  concerns                                                               
expressed about SB 170 last  year and tried to balance protecting                                                               
citizens' rights in the criminal  justice process with protecting                                                               
SENATOR  THERRIAULT  moved to  adopt  version  H as  the  working                                                               
document before the committee.                                                                                                  
CHAIR  SEEKINS  announced  that with  no  objection,  the  motion                                                               
MS. PARKES reviewed version H as follows.                                                                                       
The  first  important  provision  of the  bill  pertains  to  the                                                               
consecutive sentencing  provisions (Sections 23, 24,  30 and 31).                                                               
Those  provisions  remain identical  to  the  original bill.  The                                                               
intent of  the original sentencing  provisions in statute  was to                                                               
give judges  discretion to impose consecutive  terms for multiple                                                               
crimes. However,  because of poor  drafting, those  statutes have                                                               
been interpreted to  allow judges to impose  concurrent terms so,                                                               
essentially, a person who is  convicted of assaulting five people                                                               
could end  up with the  same sentence  as a person  who assaulted                                                               
one  person.  Version  H mandates  that  in  certain  situations,                                                               
judges must  impose consecutive terms;  it mandates  a particular                                                               
amount  of time  for very  serious felonies  and gives  the judge                                                               
discretion  to  determine  the appropriate  amount  of  time  for                                                               
lesser felonies.                                                                                                                
The immunity  provision, in  Sections 21,  22, and  25, addresses                                                               
the problem  of prosecutors having  to blindly decide  whether to                                                               
grant  immunity when  witnesses  request  immunity. The  original                                                               
bill contained  a standardized process for  determining whether a                                                               
witness  had  a  valid  Fifth Amendment  claim.  It  allowed  the                                                               
prosecutor to  attend the hearing  where that decision  was made.                                                               
That issue raised a lot of concerns  and is no longer part of the                                                               
proposal.   The   issue   for  prosecutors   is   that   granting                                                               
transactional immunity  for any crime  a person might  testify on                                                               
is  a  powerful responsibility.  Prosecutors  want  to make  that                                                               
decision with as  much knowledge as possible of  whether they are                                                               
granting immunity  for a misdemeanor  or a felony. In  version H,                                                               
an ex  parte hearing will be  held in front of  the judge without                                                               
the prosecutor present.  If the judge determines  the witness has                                                               
a valid Fifth  Amendment claim, the judge  informs the prosecutor                                                               
of such and of the level of  crime to which it applies. That way,                                                               
the prosecutor will  know what level crime he or  she is granting                                                               
immunity for.  She recounted in  a recent case, a  babysitter had                                                               
murdered the  child she was  caring for. The victim's  mother had                                                               
left her other children alone for  a period of time so refused to                                                               
testify against  the babysitter  for fear  of being  charged with                                                               
child neglect.  The prosecutors were  unable to learn  until much                                                               
later  why  the mother  would  not  testify  in a  homicide  case                                                               
involving  her  own child.  She  said  the current  law  disrupts                                                               
prosecutors' ability to prosecute some very serious cases.                                                                      
The  self-defense  provision  in   the  original  version  raised                                                               
serious concerns.  That provision is  now located in  Sections 18                                                               
and 19. Under  current law, a judge is required  to allow a self-                                                               
defense  claim  if  there  is  some  evidence,  even  implausible                                                               
evidence, of a self-defense claim.  The new provision aligns with                                                               
federal  law,  which requires  the  defendant  to produce  enough                                                               
evidence to  support a  self-defense claim  that a  rational jury                                                               
could find that the defendant  acted in self-defense. Sections 18                                                               
and 19 require  that some plausible evidence be  presented that a                                                               
jury could  rely on  to find  that the  defendant acted  in self-                                                               
defense. Once that  evidence is found, the burden  remains on the                                                               
state to prove beyond a  reasonable doubt. She asserted that this                                                               
approach  will weed  out unmerited  claims  of self-defense  that                                                               
only serve to distract a jury and waste resources.                                                                              
The  second part  of the  self-defense provision  is intended  to                                                               
address gang shoot-outs,  in which everyone points  the finger at                                                               
the other guy. Because the  prosecutor cannot prove who fired the                                                               
first shot,  no one is  prosecuted even if an  innocent bystander                                                               
is hurt. The  current statute lists specific  situations in which                                                               
a  self-defense claim  does not  apply,  for example  to a  first                                                               
aggressor. Version  H provides that  a defendant who  is involved                                                               
in  a drug  deal or  is a  member of  a criminal  gang acting  in                                                               
furtherance  of  criminal intent  does  not  get to  claim  self-                                                               
defense.  She  said the  intent  is  to  prevent people  who  are                                                               
involved   in  shoot-outs   on  public   streets  from   skirting                                                               
prosecution by claiming self-defense.                                                                                           
8:16 a.m.                                                                                                                       
SENATOR  THERRIAULT asked  if the  different constituency  groups                                                               
reviewed the new language.                                                                                                      
MS. PARKES said she was told that  it was reviewed by some of the                                                               
different constituency groups and, as  of yesterday, they felt it                                                               
addressed  their   concerns.  Those  groups  intend   to  further                                                               
evaluate  it. She  pointed out  the self-defense  claim exclusion                                                               
would not apply  to a citizen homeowner who is  confronted with a                                                               
situation at home or on the street with his/her family.                                                                         
CHAIR SEEKINS asked, "This does  eliminate John Wayne and the bad                                                               
guy at high noon on Main Street?"                                                                                               
MS. PARKES  said that  would be considered  as mutual  combat and                                                               
under the  current statute that  would not meet muster  for self-                                                               
defense. She continued her explanation of version H.                                                                            
Section 13 is a new provision  that pertains to the felony murder                                                               
provision. Alaska  currently has a felony  murder provision under                                                               
murder  in the  second  degree. That  statute  indicates that  if                                                               
people  attempt to  commit a  serious  felony and  the felony  is                                                               
articulated and, in  the course of the furtherance  of that crime                                                               
someone is killed, all those  involved can be charged with murder                                                               
in the second  degree. The underlying theory is that  if a person                                                               
is willing  to engage  in such dangerous  activity as  robbery or                                                               
sexual assault, it  is a foreseeable consequence  of that conduct                                                               
that someone will  die. Version H would expand  that provision to                                                               
include the  death of  a participant  based on  the logic  that a                                                               
death is a foreseeable consequence so  it should be extended to a                                                               
participant. She advised  that if A and B rob  a liquor store and                                                               
A  shoots the  clerk,  A and  B  will both  be  charged with  the                                                               
murder.  It  will  give  prosecutors the  ability  to  take  very                                                               
dangerous people off of the street for a longer period of time.                                                                 
CHAIR SEEKINS asked  if other state laws were used  to draft that                                                               
MS. PARKES replied:                                                                                                             
     There are.  I did  some research.  It is  the minority.                                                                    
     There are states that have  similar to what we have....                                                                    
     Many states  use felony  murder to get  this type  of a                                                                    
     situation to a murder  one level but California appears                                                                    
     to  have this,  [as does]  Montana, Wisconsin,  and the                                                                    
     Federal  11   Circuit. Interestingly,  Florida has  two                                                                    
     felony  murder  laws  -  one   where  if  it's  a  non-                                                                    
     participant it's a murder in  the first degree, if it's                                                                    
     a  participant it's  murder in  the  second degree,  so                                                                    
     they make that  kind of [distinction] as  to whose life                                                                    
     is worth more. So again, that's a new proposal.                                                                            
MS. PARKES continued with the  description of the changes made in                                                               
version H.                                                                                                                      
Several sections  deal with one  of the critical  problems facing                                                               
Alaska, that being alcohol. Sections  26 and 28 propose that once                                                               
a  person  is  convicted  of   a  felony  DUI,  every  subsequent                                                               
conviction would  be a felony.  Because of the  current look-back                                                               
provision and timing of prior  convictions, a person could have 5                                                               
misdemeanor  convictions and  1 felony  conviction, and  then get                                                               
another  misdemeanor DUI  conviction.  DOL believes  that once  a                                                               
person has been  convicted as a chronic,  dangerous drunk driver,                                                               
each further conviction should be a felony.                                                                                     
Sections  27 and  29 address  a problem  that has  arisen in  DUI                                                               
prosecutions. A recent court opinion,  Conrad v. State, allowed a                                                               
new "big  gulp" defense. Currently,  the "big gulp" defense  in a                                                               
DUI  case  occurs if  the  defendant  can  prove he  drank  after                                                               
driving so his  blood alcohol level did not  apply while driving.                                                               
In the Conrad case, the court  said it was appropriate to allow a                                                               
defendant to argue that he took  a big gulp of alcohol just prior                                                               
to driving  and, when  stopped by the  police, his  blood alcohol                                                               
level (BAC) wasn't  above the legal limit but by  the time he was                                                               
tested at  the station his  BAC rose  above the legal  limit. DOL                                                               
does  not believe  that was  the intent  of the  law and  that it                                                               
encourages a  battle of the  experts at  the trial to  talk about                                                               
rising levels of breath alcohol.                                                                                                
Section 14  addresses the problem  of drivers whose BAC  is below                                                               
the .08  level and get  into a vehicular collision  and seriously                                                               
injure another person.  Because they are not at the  .08 level, a                                                               
prosecutor  cannot  find that  they  acted  recklessly but  might                                                               
prove  they acted  with criminal  negligence. Under  current law,                                                               
such a driver  can be charged with assault in  the fourth degree,                                                               
which is a  misdemeanor. She noted that studies  show that almost                                                               
any amount  of alcohol will  begin to affect a  person's judgment                                                               
and ability to  respond. She related that a person  with a BAC of                                                               
.05  might  drive  on  slippery   roads  and  cause  a  permanent                                                               
disability to someone  else, yet the prosecution  can only charge                                                               
the driver with assault in the  fourth degree. The assault in the                                                               
fourth degree statute  speaks to physical injury  due to criminal                                                               
negligence with  a dangerous  instrument. DOL  would like  to add                                                               
assault  in the  third degree  to  that statute  to address  such                                                               
MS.  PARKES  told members  the  rest  of the  alcohol  provisions                                                               
address  problems  primarily  found in  rural  communities.  Many                                                               
communities  have  banned or  limited  the  use of  alcohol.  The                                                               
provisions in  the bill are  aimed at  strengthening communities'                                                               
ability to  do that. Sections  1 through  4 pertain to  the local                                                               
option statute. Some communities have  chosen to lower the limits                                                               
set in  that statute. Sections 1  through 4 will allow  the state                                                               
to enforce lower limits set by a community.                                                                                     
Sections 5 and  6 will plug a loophole in  local option laws that                                                               
arose in a  Bethel case. Under current local option  laws, when a                                                               
city  chooses to  go with  a local  option, it  applies within  a                                                               
five-mile radius  from the center of  that municipality. However,                                                               
because some  smaller communities  are very close  together, that                                                               
five-mile  radius  overlaps other  communities  that  may have  a                                                               
conflicting or  no local option  law. The Bethel case  brought to                                                               
light that  when local option  areas conflict, none apply  so the                                                               
local option area  would only apply to the village  itself or the                                                               
center  of the  municipality. Sections  5 and  6 provide  that if                                                               
local option laws overlap, the  least restrictive law would apply                                                               
in the overlapping areas. If a  local option area overlaps with a                                                               
community without local option, no law would apply.                                                                             
Section 8 aligns the current  forfeiture law for bootlegging with                                                               
the forfeiture  law for drug  dealing. Under  current bootlegging                                                               
provisions,  cash  and  other   negotiable  instruments  are  not                                                               
forfeited. Section 8  adds cash to the list of  items that can be                                                               
forfeited when the cash is a profit from bootlegging.                                                                           
Section 11  also applies  to forfeiture and  allows the  state to                                                               
share  forfeited items  in bootlegging  cases with  municipal law                                                               
enforcement agencies  that assisted in  the case. DOL  hopes this                                                               
will  encourage cooperation  among law  enforcement agencies.  In                                                               
addition, it is  sometimes not economically feasible  to remove a                                                               
seized item from a rural area.                                                                                                  
Sections 9  and 10  strengthen the  ability to  forfeit vehicles,                                                               
watercraft and aircraft for bootlegging.  Currently a third party                                                               
owner can  claim he or she  didn't know the vehicle  was going to                                                               
be used for bootlegging. This  provision requires the third party                                                               
to show he or she didn't know  and didn't have reason to know, so                                                               
that a third party cannot just turn  a blind eye to what is going                                                               
on. Sections 9  and 10 describe some of the  ways a person should                                                               
be on  notice. For example,  in Section  10, a third  party could                                                               
show  that  the  offender  had   no  prior  criminal  record  for                                                               
bootlegging or had not committed other violations.                                                                              
Section   11  sets   out  aggravated   circumstances  for   which                                                               
forfeiture  becomes  mandatory,  i.e.,  if someone  has  a  prior                                                               
conviction  for  a  similar  offense.   Section  11  contains  an                                                               
exception:  if a  vehicle  is the  sole means  of  support for  a                                                               
family in a village and the  family has no culpability, the judge                                                               
is not required to forfeit the vehicle.                                                                                         
CHAIR SEEKINS asked how the  forfeiture provision applies to lien                                                               
MS. PARKES replied:                                                                                                             
     We're  facing  that in  the  DUI  forfeitures and  lien                                                                    
     holders are  treated as innocent  third parties  and so                                                                    
     they  keep  their  interest  and  we  don't  forfeit  a                                                                    
     vehicle,  for  example, in  the  DUIs.  If we  see  the                                                                    
     vehicle -  that the loan on  it is worth more  than the                                                                    
     car, you know  - we give it back to  the innocent third                                                                    
     party. We  don't forfeit those  kinds of  vehicles. The                                                                    
      intent is not to harm any innocent third party, like                                                                      
     lien holders.                                                                                                              
CHAIR SEEKINS asked  if the intent is to protect  the interest of                                                               
an innocent third party.                                                                                                        
MS. PARKES  affirmed that is  correct. She added  that forfeiture                                                               
is aimed at  the interest of the defendant, or  a third party who                                                               
knew the vehicle would be used for illegal activity.                                                                            
CHAIR  SEEKINS  asked  if  the  bootlegging  offense  involved  a                                                               
$10,000 boat,  how a bank  with a $5,000  lien on the  boat would                                                               
protect its  interests. He questioned  whether the boat  would be                                                               
sold and if the proceeds would be used to pay the lien.                                                                         
MS. PARKES  said DOL works  with the Alaska State  Troopers (AST)                                                               
on those  details. Sometimes, especially  given the  proximity of                                                               
the item,  the state  may choose  not to  forfeit because  of the                                                               
cost  of  moving the  item.  She  deferred  to  the AST  for  the                                                               
CHAIR  SEEKINS  commented  that  Alaska  is  a  deficiency  state                                                               
regarding  repossessions,  and   that  Federal  Trade  Commission                                                               
statutes speak  to how  a repossessed vehicle  would be  sold and                                                               
the interests protected.                                                                                                        
MS.  PARKES continued  with her  description of  version H  of SB                                                               
Section  7 contains  a proposal  that recognizes  how destructive                                                               
alcohol  is to  young people  in local  option areas.  Currently,                                                               
furnishing alcohol to  a minor is a class  A misdemeanor anywhere                                                               
in the state.  This proposal makes that offense a  class C felony                                                               
in  a community  that has  decided to  go local  option. DOL  has                                                               
found that  no only  is alcohol  destructive to  the health  of a                                                               
young  person, it  also makes  he/she more  likely to  become the                                                               
victim of a crime or to commit a crime.                                                                                         
Section  17  deals with  third  party  custodians. Alaska  judges                                                               
release  defendants  on bail  to  the  custody of  third  parties                                                               
frequently.   That  statutory   provision  was   created  as   an                                                               
alternative release option for folks  who cannot provide monetary                                                               
bail.  Third   party  custodians  state  under   oath  that  they                                                               
understand  the  conditions  of release  and  promise  to  report                                                               
violations  of the  conditions of  release. DOL  is finding  that                                                               
some third  parties do  an excellent  job; however,  others thumb                                                               
their noses  at the  court and once  outside the  court building,                                                               
may never see  the defendant again. As an  example, she recounted                                                               
that a  felony DUI defendant  was released  to a third  party and                                                               
was stopped  for to  drunk driving  with the  third party  in the                                                               
passenger seat.  This bill would  create a new  misdemeanor crime                                                               
if a  third party  fails to report  a violation  immediately. The                                                               
Municipality of  Anchorage (MOA)  has a similar  ordinance, which                                                               
works well  and is used  in egregious situations. DOL  would like                                                               
the opportunity  to do the  same. DOL  wants to send  the message                                                               
that third party custody is a serious responsibility.                                                                           
Section  32  pertains  to  disclosure   of  information  about  a                                                               
juvenile adjudicated sex offender.  The Human Services Section of                                                               
DOL proposed this change because  social workers have encountered                                                               
situations  in which  they were  unable  to disclose  information                                                               
when the  safety of  children was at  risk. Current  statute does                                                               
not allow any member of the  public to be told about adjudication                                                               
for a sex offense by a  juvenile. Ms. Parkes said the records are                                                               
not made  public for good reason,  however, when the safety  of a                                                               
child or vulnerable  adult is at stake, the balance  tips and the                                                               
agency should be  able to inform the public  of the adjudication.                                                               
She offered  that releasing  that information  to someone  who is                                                               
considering  hiring  a  babysitter  who  is  an  adjudicated  sex                                                               
offender is a good example.                                                                                                     
CHAIR SEEKINS asked whether the  public or only the person making                                                               
the request would have the right to know.                                                                                       
MS. PARKES said the person making the request.                                                                                  
CHAIR  SEEKINS asked  if there  are any  boundaries on  what that                                                               
person can then disclose.                                                                                                       
MS. PARKES  said that is  a good  question. She does  not believe                                                               
any penalty  provision exists for revealing  that information and                                                               
that is of concern.                                                                                                             
SENATOR  THERRIAULT asked  if  he hired  a  babysitter, could  he                                                               
contact an agency to inquire if that person was adjudicated.                                                                    
MS. PARKES  said DHSS would be  the record keeper and  is looking                                                               
at  how it  would address  some  of these  concerns. The  details                                                               
could  be further  elaborated in  statute or  regulation. Current                                                               
provisions  detail  when  schools   or  law  enforcement  can  be                                                               
8:45 a.m.                                                                                                                       
SENATOR  FRENCH  asked if  the  parent  of an  elementary  school                                                               
student could  obtain that information  on a high  school student                                                               
who  walks  through  the  neighborhood everyday  on  the  way  to                                                               
MS. PARKES  said that is  not the  intent of this  provision. The                                                               
intent  is to  provide the  information  if a  specific child  or                                                               
vulnerable adult  is at  risk. She  repeated those  details would                                                               
have to be fleshed out by the agency.                                                                                           
SENATOR  FRENCH asked  if  the intent  is  to prevent  one-on-one                                                               
contact or contact in very close proximity.                                                                                     
MS. PARKES  said those are the  types of situations she  is aware                                                               
of that  prompted this proposal  but, if others exist,  they need                                                               
to be fleshed  out to assure that all  appropriate situations are                                                               
CHAIR SEEKINS stated:                                                                                                           
     I  could just  see  we could  end up  with  a de  facto                                                                    
     registry put  together by  a community  activist group.                                                                    
     I'm just a  little concerned that we have  to make sure                                                                    
     that  there were  some boundaries  there  I think,  not                                                                    
     that I  want to protect...are sex  offenders from being                                                                    
     able to  practice their craft  in secret, but  just for                                                                    
     normal reasons I'm sure you understand.                                                                                    
MS. PARKES understood and said  DOL believes the balance needs to                                                               
tip for specific situations only.                                                                                               
Sections 15  and 16 also  apply to juvenile sex  offenders. Right                                                               
now, any  sex offense committed  by someone 15 or  under, whether                                                               
that be contact  or penetration, with a child who  is three years                                                               
younger  or  more,  is  a  misdemeanor.  DOL  is  proposing  that                                                               
penetration become  a felony. That  would bring the  existing law                                                               
into parity with adult laws. She  pointed out a 15 year old could                                                               
break into a home  and steal a bike and be  charged with a felony                                                               
but would be charged with  a misdemeanor for sexually penetrating                                                               
a two year old. These cases  would remain in the juvenile system.                                                               
Sections 15 and 16 would  also have ramifications if the juvenile                                                               
committed  an adult  offense because  adjudication as  a juvenile                                                               
would be used as an aggravator. She offered to answer questions.                                                                
SENATOR THERRIAULT  asked for  an explanation  of how  Sections 5                                                               
and 6 would work.                                                                                                               
MS.  PARKES explained  that  right now,  when  a municipality  or                                                               
established village  votes to go  with local option,  a five-mile                                                               
radius from the center of  that village applies. However, current                                                               
statute  is  written so  that  if  the  five-mile radius  of  two                                                               
adjacent  villages overlap  and  the local  option conflicts,  no                                                               
five-mile radius  exists for  the local  option area.  Sections 5                                                               
and  6 would  apply  the  least restrictive  local  option to  an                                                               
overlapping area. If  the five-mile radius overlaps  with an area                                                               
having no  local option law, the  law would not be  enforced onto                                                               
the area with no local option.                                                                                                  
CHAIR SEEKINS  noted for the  record that  his son works  for Ms.                                                               
Parkes at DOL.  He then expressed concern with  the definition of                                                               
an  established village  in AS  04.16.220 because  an established                                                               
village  is  virtually  any  community   that  is  not  within  a                                                               
municipality, a spot  15 miles outside of a  municipality that is                                                               
off the road system,  or 50 miles if it is on  the road system of                                                               
another organized municipality  of 25 people. He  surmised if the                                                               
Pilgrim  family  adds  8  more  members,  it  could  set  alcohol                                                               
importation levels  for that area.  As such,  it is not  really a                                                               
political subdivision of the State  of Alaska yet the group could                                                               
set  a standard  under which  a person  could be  charged with  a                                                               
TAPE 04-17, SIDE B                                                                                                            
CHAIR  SEEKINS questioned  whether  the Legislature  can give  an                                                               
unincorporated group of  25 or more people that  fits within that                                                               
definition  the  ability  to  set  standards  for  which  another                                                               
Alaskan  could unknowingly  become a  felon.  He said  he is  not                                                               
trying  to attack  the  ability  to keep  alcohol  out  of a  dry                                                               
community but questions at what  level the Legislature can assign                                                               
that duty as a state.                                                                                                           
MS.  PARKES responded  that  established  villages are  addressed                                                               
throughout Title 4 but she could  not answer the question and was                                                               
not sure if  case law has addressed  the constitutional question.                                                               
She offered that DOL would continue to research that question.                                                                  
SENATOR THERRIAULT asked about the broad heading of Title 4.                                                                    
MS. PARKES replied it is "Alcoholic Beverages."                                                                                 
CHAIR SEEKINS read AS 04.21.080:                                                                                                
          (9) "established village" means an area that does                                                                     
     not  contain  any  part  of  an  incorporated  city  or                                                                    
     another established village and that is                                                                                    
          (A) an unincorporated community that is in the                                                                        
     unorganized borough  and that has 25  or more permanent                                                                    
     residents; or                                                                                                              
          (B) an unincorporated community that is in an                                                                         
     organized borough, has 25  or more permanent residents,                                                                    
          (i) is on a road system and is located more than                                                                      
     50  miles  outside the  boundary  limits  of a  unified                                                                    
     municipality, or                                                                                                           
          (ii) is not on a road system and is located more                                                                      
     than 15 miles outside the  boundary limits of a unified                                                                    
He repeated that Sections  5 and 6 give a group  of 25 people the                                                               
ability  to   determine  what  constitutes  a   felony  in  their                                                               
community with no public notification or election process.                                                                      
MS. PARKES noted that an election would be required.                                                                            
CHAIR  SEEKINS  pointed  out  that the  state  has  election  law                                                               
standards  for municipalities  and  incorporated communities  but                                                               
they  may not  be in  place for  other communities  that are  not                                                               
incorporated.  He  then  announced  that  he  would  take  public                                                               
testimony at this time.                                                                                                         
9:00 a.m.                                                                                                                       
MR.  PAUL HARRIS,  Director of  the Fairbanks  Police Department,                                                               
stated support for version H of  SB 170. He informed members that                                                               
he  began his  law enforcement  career in  1972 in  Alaska, is  a                                                               
retired Alaska  State Trooper,  and is  involved with  the Alaska                                                               
Police Officers  Association, the Paternal Order  of Alaska State                                                               
Troopers, International Association of  Chiefs of Police, and the                                                               
Police Standards Council.                                                                                                       
MR. HARRIS  said he believes  this legislation addresses  many of                                                               
the loopholes in law enforcement  since the new criminal code was                                                               
enacted. Alaska's  local option  laws have  been used  across the                                                               
United States  as a model.  Those laws  have worked well  but the                                                               
changes in SB 170 will add  to it. Changing the forfeiture law to                                                               
put  alcohol on  the  same level  as other  drugs  will take  the                                                               
profit motive away  from bootleggers and give  the statute teeth,                                                               
as will the ability to  take equipment and cash from bootleggers.                                                               
He  noted that  the  change to  the felony  murder  rule and  the                                                               
changes made  to immunity and  a self-defense claim  will provide                                                               
law enforcement  with tremendous  tools to get  violent offenders                                                               
off the streets.                                                                                                                
He offered  that adding  a new  section to  the criminal  code is                                                               
always hard to  deal with especially when it appears  to put more                                                               
restrictions  on   citizens,  but  in  regard   to  violation  of                                                               
custodial  duty,   often  crime   suspects  have  value   to  the                                                               
community,  especially  when employed.  By  allowing  them to  be                                                               
released to  third party custodians,  they and their  families do                                                               
not  suffer  tremendous  economic impacts.  However,  what  often                                                               
happens is a  loose knit group of people in  which one member has                                                               
no criminal record  becomes the third party  custodian for anyone                                                               
who gets  in trouble. The current  law has no teeth  to get these                                                               
custodians to report violations  correctly. This new section will                                                               
motivate those  people to  live up to  the responsibilities  of a                                                               
third  party. It  will allow  law enforcement  to take  action to                                                               
ensure the third  party is meeting the conditions  imposed by the                                                               
court. Mr.  Harris said this will  provide a great tool  that law                                                               
enforcement has needed for a long time.                                                                                         
MR.  HARRIS  repeated  that  the  legislature  did  a  great  job                                                               
revising  the criminal  code in  the 1970s  but every  once in  a                                                               
while changes are necessary. This  version will add tools for law                                                               
enforcement to made the code work better.                                                                                       
MR. RAY BROWN,  a partner in the law firm  of Dillon and Findley,                                                               
told members he was asked by  the Public Defender Agency to speak                                                               
on this bill. He informed members  that he is the former training                                                               
director of the  Public Defender Agency and  a former prosecutor.                                                               
He is  married to a  retired state  trooper and Susan  Parkes and                                                               
Anne Carpeneti, who  put this bill together, are  his friends. He                                                               
said  he primarily  practices  white-collar  criminal defense  in                                                               
federal court. He  said he has a significant  degree of knowledge                                                               
and expertise in  the area of immunity as he  argued at the state                                                               
and trial court and the supreme  court case of Gonzales v. State.                                                               
The judicial decision  from that case states  that under Alaska's                                                               
Constitution, transactional immunity is required.                                                                               
MR. BROWN said  he has a great deal of  empathy for [prosecutors]                                                               
because  it  is  very  difficult   to  decide  whether  to  grant                                                               
immunity,  particularly  when  multiple offenders  are  involved.                                                               
Alaskans  have chosen,  via  the constitution,  not  to compel  a                                                               
person to give information against him or herself.                                                                              
SENATOR FRENCH clarified  that Sections 20 through  22 pertain to                                                               
immunity sections.                                                                                                              
MR. BROWN continued. Gonzales v.  State requires, before a person                                                               
can   be  compelled   to   provide   information  or   testimony,                                                               
particularly if it provides a  link to the successful prosecution                                                               
of a case, that the  person must be given transactional immunity.                                                               
He firmly believes  that Section [22] violates  Gonzales v. State                                                               
and   would  require   a  constitutional   amendment  to   change                                                               
transactional  immunity  to use  immunity  found  in the  federal                                                               
system. He said  many of the changes to the  immunity section are                                                               
an admirable desire  of the prosecution, but he  does not believe                                                               
they would pass the Gonzales or transactional immunity muster.                                                                  
As an  example, MR. BROWN said  in many of these  cases, multiple                                                               
defendants  are involved  with different  levels of  culpability.                                                               
Perhaps the defendants  included the killer, the  person who sold                                                               
the  gun to  the  killer and  was  present at  the  scene, and  a                                                               
cocaine  dealer who  witnessed the  shooting. If  law enforcement                                                               
officers could not figure out who  the shooter was, they could do                                                               
it through the process of  elimination via the procedure proposed                                                               
in  Section  22 (i),  which  is  unconstitutional. He  hopes  any                                                               
solution  to  this  problem  would   be  gleaned  through  mutual                                                               
discourse between  the defense and prosecution  and would satisfy                                                               
the constitutional  requirements and the prosecution's  needs. He                                                               
understands the prosecution's needs  because the shooter could be                                                               
given immunity  while the  two other less  culpable people  go to                                                               
trial on the  principal offense. He said he does  not know how to                                                               
get around that  and also avoid spending thousands  of dollars of                                                               
state  resources  on a  public  defender,  the Office  of  Public                                                               
Advocacy  and a  private attorney  to  go to  the Alaska  Supreme                                                               
Court to find out this provision is unconstitutional.                                                                           
MR. BROWN said  more importantly, by default,  the worst offender                                                               
may be given transactional immunity  if the offender is compelled                                                               
to  comply with  this statute  and the  case is  appealed to  the                                                               
supreme court.                                                                                                                  
SENATOR FRENCH asked:                                                                                                           
     Mr. Brown, are you saying  this flat can't be done with                                                                    
     the way  our Constitution is  written or is  there some                                                                    
     specific  provision  that  you   think  runs  afoul  of                                                                    
     Gonzales because, the way I  read it, the judge and the                                                                    
     witness's  attorney  go  back  and  have  an  ex  parte                                                                    
     conversation  to which  the  prosecutor  is not  privy.                                                                    
     He's   not  there   or  she's   not   there  when   the                                                                    
     conversation     takes    place.     Assuming    that's                                                                    
     constitutional   -   assuming   they  can   have   that                                                                    
     conversation,   out  of   that  conversation   comes  a                                                                    
     disclosure  to  the  DA that  we're  talking  about  an                                                                    
     unclassified - an  A, a B, a C felony  or a misdemeanor                                                                    
     and at that point the  prosecutor isn't shooting in the                                                                    
     dark when he makes an offer  of immunity. He or she can                                                                    
     decide I'm  not going to  risk an unclassified or  an A                                                                    
     felony, that's up in the  murder range. We're not going                                                                    
     to do an  immunity there and you can go  away with your                                                                    
     Fifth Amendment privilege and I'm  stuck with that. But                                                                    
     if it's  a misdemeanor or a  C felony, it sounds  to me                                                                    
     like  it's  a  marijuana  problem or  a  crack  cocaine                                                                    
     problem, and I'll  risk that. It may  be something more                                                                    
     serious but  I'll risk  that. So I  guess I'm  not sure                                                                    
     whether  it's just  a blanket  unconstitutionality that                                                                    
     you believe is the problem or something specific.                                                                          
MR.  BROWN  said the  first  part  of Senator  French's  question                                                               
relates to what  is referred to as a Kastigar  hearing in federal                                                               
court. Those  hearings are held  to determine whether there  is a                                                               
legitimate exercise of a Fifth  Amendment right, that is, whether                                                               
or  not there  is any  legitimate and  real exposure  to criminal                                                               
prosecution.  He  believes  the first  part  is  constitutionally                                                               
permissible where an  offer of proof is made to  the trial court.                                                               
However, he  knows no way around  the second part because  in the                                                               
example he gave,  the killer would be an  unclassified felon, the                                                               
cocaine dealer would  probably be a class B felon,  and the other                                                               
person a misdemeanant  at the scene. He explained,  "And [if] the                                                               
law  enforcement  officers weren't  sure  who  had done  it,  the                                                               
easiest way to do - would be,  with those three people, is to say                                                               
it's  an unclassified  felony -  they can  target their  focus of                                                               
attention on  that person and  that's the problem with  this." He                                                               
repeated  he believes  that portion  is  unconstitutional and  he                                                               
sees no way around it.                                                                                                          
CHAIR  SEEKINS  asked  whether  that  would  still  constitute  a                                                               
problem if  that process takes  place once  the case is  in court                                                               
and  not  during the  investigation.  He  thought Mr.  Brown  was                                                               
saying the police officer would  use the information to "find the                                                               
ace in  the deck" during  the investigation process but  he reads                                                               
it to apply to  a person who is already in  court and refusing to                                                               
MR. BROWN said he reads it  so that the information could be used                                                               
in conjunction  with a  grand jury  investigation, pre-indictment                                                               
or post-indictment. He  pointed out that even at  the trial court                                                               
level,   if   multiple   defendants   were   being   tried,   the                                                               
investigation would  be ongoing. This provision  would allow more                                                               
focused attention on  a specific defendant. He  believes it would                                                               
be used primarily  in charging decisions or by a  grand jury when                                                               
determining who to prosecute and what to prosecute for.                                                                         
CHAIR SEEKINS asked Ms. Parkes to comment on the intent.                                                                        
MS. PARKES replied:                                                                                                             
     The intent is, as you've  indicated, the intent is once                                                                    
     we get  to court -  or yes, we've subpoenaed  people to                                                                    
     come and  testify to a  grand jury, they then  tell us,                                                                    
     and  at  that point  we've  made  a charging  decision.                                                                    
     We've  determined  who  our  defendant  is.  We've  got                                                                    
     charges  filed.   This  is   not  intended  to   be  an                                                                    
     investigative tool.  It's intended to  be a tool  to be                                                                    
     able to put our case on.                                                                                                   
MR. BROWN said  he still does not think that  satisfies or passes                                                               
constitutional muster.  He added, "It  does alleviate some  of my                                                               
concern. If  they're saying that  they will  never use it  and it                                                               
can't  be used  in an  investigative stage  or at  the indictment                                                               
stage, that  certainly would alleviate  the utility of it  but it                                                               
still doesn't address the constitutional concerns."                                                                             
SENATOR THERRIAULT asked Mr. Brown if  his concern is that it can                                                               
be used  in particular  circumstances of a  crime, or  whether he                                                               
sees it as a blanket problem.                                                                                                   
MR. BROWN  said it  is a  blanket problem, not  as it  applies to                                                               
what he referred  to as the Kastigar hearing, but  as it provides                                                               
that information to  the prosecuting parties at any  level of the                                                               
prosecution.  He repeated  that  once a  person  is compelled  to                                                               
testify and  given transactional immunity, that  person cannot be                                                               
prosecuted for a crime. He advised:                                                                                             
     So,  if you  compel somebody  to give  this information                                                                    
     and they do, and  I'm right that it's unconstitutional,                                                                    
     you  are immunizing  that person  from prosecution.  It                                                                    
     will result in a reversal  of their conviction and they                                                                    
     will go  unprosecuted. That's a  big concern  here. And                                                                    
     again,  I do  think  that people  should  sit down  and                                                                    
     discuss this  because I think  it's the  most important                                                                    
     provision of this bill because  it has the most serious                                                                    
     ramifications   because  it   deals   with  the   Fifth                                                                    
     Amendment  and  the  Alaska Constitution  on  compelled                                                                    
MR. BROWN  said this  is beyond a  technicality. The  people made                                                               
the  choice via  the constitutional  convention by  enacting more                                                               
restriction on  compelled testimony. He  said if use  immunity is                                                               
the goal,  which passes federal  constitutional muster  under the                                                               
Fifth Amendment,  the constitution would  have to be  amended. He                                                               
said he raised  the issue because he believes it  could result in                                                               
a travesty:  the main culprit  going free  because he or  she was                                                               
compelled to give information.                                                                                                  
MR. BROWN said  his last concern deals with making  felons out of                                                               
persons with less than a .08  BAC who are involved in a vehicular                                                               
accident that  causes serious physical  injury. He  believes that                                                               
Alaska's  definition of  "dangerous  instrument"  comes from  the                                                               
Oregon  statutes.  The  definition  first included  a  gun  or  a                                                               
weapon;   it  was   expanded  to   include  feet   under  certain                                                               
circumstances and a  car when coupled with  intoxication. He said                                                               
his concern  is that the intent  is to prosecute people  with any                                                               
amount  of alcohol  in  their  system when  involved  in a  motor                                                               
vehicle accident  that causes serious  physical injury.  He noted                                                               
if he has a glass of wine  with dinner and, while driving home on                                                               
a slippery road, hit someone who  stepped in front of his car, he                                                               
could be charged  with a felony. He  believes restaurateurs would                                                               
share his concern. He  said if that is not the  intent of SB 170,                                                               
he would  like to  hear that on  the record; if  it is,  he hopes                                                               
that full-page ads run in the  newspapers to inform people of the                                                               
change in the law.                                                                                                              
9:25 a.m.                                                                                                                       
MS.  CINDY CASHEN,  Executive Director  of Mothers  Against Drunk                                                               
Drivers  (MADD) Juneau  Chapter, said  she was  representing four                                                               
MADD  chapters throughout  Alaska: Anchorage,  Mat-Su, Fairbanks,                                                               
and Juneau.  In response  to Mr.  Brown's comments  about driving                                                               
while impaired,  MADD encourages people  who choose to  have more                                                               
than one  drink per hour to  get a designated driver.  People who                                                               
choose to  drink more than that  put their own and  others' lives                                                               
at  risk. Alaska's  DUI law  leads other  states in  dealing with                                                               
drunk  driving. The  consecutive jail  time for  each death  in a                                                               
drunk driving accident hits home  with her because a drunk driver                                                               
killed  her  father  and  his   passenger.  Her  family  and  the                                                               
passenger's  family feel  enraged because  although the  driver's                                                               
sentence  was passed  down consecutively,  the judge  decided the                                                               
sentence was too harsh and  made the sentences concurrent so that                                                               
they total 3½ years. She said  when a person chooses to drink and                                                               
drive and takes someone's life,  that person should pay the price                                                               
as Alaskans deserve restorative justice.                                                                                        
MS. CASHEN  told members that  MADD supports a  community's right                                                               
to  adopt lower  limits  of alcohol  possession and  importation.                                                               
That effort falls  under the concept of  community policing where                                                               
larger groups  of community  members are  able to  take ownership                                                               
and deal with  drinking and driving. MADD  also supports stricter                                                               
sanctions  for  habitual drunk  drivers  who  choose to  endanger                                                               
themselves  and others.  MADD also  supports increased  penalties                                                               
for those who  choose to drink and drive and  seriously injure an                                                               
innocent victim.                                                                                                                
MS.  CASHEN told  members, in  response to  earlier testimony,  a                                                               
person's ability to drive is  impacted within a matter of minutes                                                               
of drinking alcohol.  A person who drinks alcohol  and drives has                                                               
chosen  to break  the  law,  even if  driving  while impaired  as                                                               
opposed to driving while intoxicated.  She noted in 2002, between                                                               
500  and 700  people were  killed  [by drivers  with] BAC  levels                                                               
between .01 and  .08. She believes the families  of those victims                                                               
believe those  drivers should be held  accountable. MADD supports                                                               
more consequences  for people  who choose  to contribute  [to the                                                               
delinquency] of minors.  Teenagers who drink are  four times more                                                               
likely to have problems with alcohol later in life.                                                                             
CHAIR SEEKINS affirmed that the  judiciary will no longer be able                                                               
to  decide  that  a  penalty  is too  harsh  and  make  sentences                                                               
concurrent if  this bill is enacted.  He asked Ms. Cashen  if she                                                               
is advocating that  a person who has a glass  of wine with dinner                                                               
and  then  injures   a  person  while  driving   home  should  be                                                               
prosecuted under this bill.                                                                                                     
MS.  CASHEN responded  no. She  clarified that  MADD is  not pro-                                                               
prohibition. Most  of its members  drink responsibly but  they do                                                               
not drink and drive. She pointed out:                                                                                           
     It  takes  approximately  one hour  and  we  won't  say                                                                    
     exactly  because it  depends on  what you've  had, your                                                                    
     body fat,  your height,  your weight and  so on.  So if                                                                    
     you've had a glass of  wine...and at least one hour has                                                                    
     passed, fine -  that's fine. But if you've  had a glass                                                                    
     or two  of wine  and then you  leave within  that hour,                                                                    
     give  someone else  the keys  because after  one drink,                                                                    
     your level of coordination is already impaired....                                                                         
MS. PARKES  interjected that she  was not implying that  a person                                                               
with any amount  of alcohol in their system who  is involved in a                                                               
car accident would  be prosecuted. The prosecution  would have to                                                               
prove a state  of criminal negligence, a mental  standard used in                                                               
criminal  law. Therefore,  a  number of  factors  would play  in;                                                               
alcohol would be just one piece  of the factual puzzle that could                                                               
be used to make a finding of criminal negligence.                                                                               
CHAIR  SEEKINS indicated  he noticed  two  factors, reckless  and                                                               
criminal negligence.                                                                                                            
MS.  PARKES response  was inaudible  but pertained  to putting  a                                                               
person in fear with a dangerous instrument.                                                                                     
CHAIR SEEKINS asked about speeding in a car.                                                                                    
MS. PARKES  said that normally  arises with brandishing a  gun or                                                               
if a person  charges a person with a car.  Criminal negligence is                                                               
an alternative theory,  which is one step down  but would require                                                               
a  dangerous instrument  and serious  physical  injury, not  just                                                               
placing a person  in fear. She repeated that she  did not mean to                                                               
imply that driving after drinking  one glass of wine would result                                                               
in prosecution.                                                                                                                 
SENATOR THERRIAULT asked, "So this  entire statute - it's broader                                                               
than just  DWI. We're focusing  on the DWI  and if [he  reads] 'a                                                               
person commits  a crime of  assault in  the third degree  if that                                                               
person recklessly' - on the  new language, recklessly is not part                                                               
of  the sentence.  You just  jump  from person  down to  criminal                                                               
CHAIR  SEEKINS  said  current  law applies  if  a  person  places                                                               
someone in  fear of  his or  her life  or personal  injury, which                                                               
could  mean speeding.  The new  standard includes  "with criminal                                                               
negligence." He asked Ms. Parkes to define criminal negligence.                                                                 
SENATOR FRENCH  stated, "...I think  criminal negligence  is knew                                                               
or  should  have  known  whereas recklessness  is  aware  of  and                                                               
disregard of  substantial and unjustifiable  risk so it's  just a                                                               
little bit higher."                                                                                                             
MS. PARKES  read the  statutory definition,  "A person  acts with                                                               
criminal negligence, with  respect to a result  or a circumstance                                                               
described  by  a provision  of  law,  when  the person  fails  to                                                               
perceive  a substantial  and unjustifiable  risk that  the result                                                               
will occur or that the circumstance exists."                                                                                    
CHAIR SEEKINS asked  if a person who knew he  had a low tolerance                                                               
for  alcohol  and drove  with  a  BAC  lower  than .08  would  be                                                               
considered as criminally negligent.                                                                                             
MS. PARKES said he would in her judgment.                                                                                       
SENATOR  THERRIAULT questioned  whether talking  on a  cell phone                                                               
while driving would fall under this application.                                                                                
MS. PARKES said it would if  the state could prove the driver was                                                               
taking an unjustifiable risk. She  recalled a current case in the                                                               
court system  in which the  driver may  have been watching  a DVD                                                               
while driving.                                                                                                                  
CHAIR SEEKINS took further testimony.                                                                                           
TAPE 04-18, SIDE A                                                                                                            
LT.  AL  STOREY,  Alaska State  Troopers,  Department  of  Public                                                               
Safety (DPS), stated  support for the Governor's  crime bill. DPS                                                               
is most  interested in the  local option sections  (1-11). During                                                               
his 24  years with the AST,  18 were within the  drug and alcohol                                                               
enforcement area, so  he is very familiar  with specific concerns                                                               
about alcohol  in the western  regions of the state.  He supports                                                               
anything the  state can do  to help rural communities  exercise a                                                               
local  option. Sections  1  through 11  contain  tools that  will                                                               
enhance DPS's  ability to help  those residents  help themselves.                                                               
He noted,  regarding forfeiting money made  from bootlegging, far                                                               
more money  is made per  dollar invested in the  alcohol business                                                               
in  Alaska than  in the  drug business.  A person  can buy  a $10                                                               
bottle of liquor  in Anchorage and sell it in  the far reaches of                                                               
the state  for up to $150.  He repeated this bill  will provide a                                                               
tool to take away the incentive to bootleg.                                                                                     
Regarding  Section 13,  felony murder  charges,  LT. STOREY  said                                                               
that  home  invasions are  becoming  commonplace  in Alaska.  DPS                                                               
believes  the  criminals  involved embolden  and  encourage  each                                                               
other and  that they should be  held culpable for the  death of a                                                               
partner as  well as an  innocent victim. Again, he  believes this                                                               
will provide a good tool to curb home invasions.                                                                                
LT.  STOREY  believes  that  attaching  the  criminal  negligence                                                               
standard  to  accidents  involving drivers  with  alcohol  levels                                                               
below .08 BAC will provide a  good tool so that certain accidents                                                               
can  be  investigated  as  felonies  and  the  offenders  can  be                                                               
prosecuted appropriately.                                                                                                       
DPS  supports the  concept of  Sections  15 and  16, raising  the                                                               
offense of sexual  abuse of a minor  from a class A to  a class C                                                               
felony.  DPS also supports Section 18 (self defense claim).                                                                     
MS. LINDA WILSON,  Deputy Director of the  Alaska Public Defender                                                               
Agency,  reemphasized  Mr.  Brown's  concern  that  the  immunity                                                               
section of the bill is  unconstitutional. Enacting a bill with an                                                               
unconstitutional provision is problematic because  a lot of money                                                               
will   be   spent   on   litigation   to   prove   that   it   is                                                               
unconstitutional.  The offending  section is  Section 22(i).  The                                                               
Alaska   Constitution   guarantees   the  right   against   self-                                                               
incrimination. To  compel a person  to testify,  the constitution                                                               
requires that  person be given  transactional immunity  to ensure                                                               
that  right. When  the judge  tells the  prosecutor the  level of                                                               
offense,  that would  be sharing  information  that violates  the                                                               
right against self-incrimination and is  a link in the chain. She                                                               
surmised that the  level of the offense that was  disclosed was a                                                               
class  A  or B  felony  in  a case  in  a  small village.  If  an                                                               
investigation  is ongoing,  the  prosecution might  not give  the                                                               
witness transactional immunity yet  the offense information could                                                               
be used  to further the  investigation. The Alaska  Supreme Court                                                               
has emphasized that is unconstitutional.                                                                                        
MS. WILSON highlighted the agency's other concerns with SB 170.                                                                 
   · The self-defense provision adds to the list of things that                                                                 
     exclude  a person  from raising  a  self-defense claim.  The                                                               
     additions to  the list  could have  unintended consequences.                                                               
     For example,  a person  cannot claim self-defense  if acting                                                               
     alone  or  with  others   to  further  criminal  objectives.                                                               
     Although  this provision  is aimed  at  gang activity,  many                                                               
     other  situations could  occur that  could prevent  a person                                                               
     from legitimately raising a self-defense  claim. Two 20 year                                                               
     olds who were  drinking alcohol at a home or  a person using                                                               
     a small  amount of  marijuana could  not use  a self-defense                                                               
     claim  because   they  would  be  furthering   the  criminal                                                               
     objective. She  suggested targeting the section  to criminal                                                               
     activities that are felony offenses.                                                                                       
   · Her second concern with the self-defense provision is the                                                                  
     attempt   to   redefine   "some  evidence"   to   "plausible                                                               
     evidence." Questions of credibility  belong to the jury, not                                                               
     the judge.  Adding the  word "plausible"  gives the  judge a                                                               
     lot of room to take that question away from the jury.                                                                      
   · Raising an act that is done with criminal negligence and a                                                                 
     dangerous instrument that causes  physical injury to assault                                                               
     to the third  degree, a class B felony,  could have numerous                                                               
     unintended  consequences. Initially,  it appeared  the focus                                                               
     of  the bill  was directed  toward people  who were  driving                                                               
     under  the   influence  of   alcohol  but   not  necessarily                                                               
     intoxicated.  That  provision  does  not  require  that  any                                                               
     alcohol be involved.  It could apply to a  person talking on                                                               
     a cell phone or  a parent could attend to a  child in a car.                                                               
     Criminal  negligence is  the lowest  level  of the  criminal                                                               
     intent category.                                                                                                           
   · It is often difficult to find third party custodians and                                                                   
     that  is most  often  the  reason people  sit  in jail  much                                                               
     longer,  particularly   indigent  persons.   Increasing  the                                                               
     consequences  for violations  will  deter  many people  from                                                               
     fulfilling that  role. The current penalty  for violation of                                                               
     custodial conditions  is contempt,  with exposure to  a $300                                                               
     fine  or  six months  imprisonment,  which  is a  sufficient                                                               
     consequence.  Raising the  penalty to  a $10,000  fine or  a                                                               
     one-year jail term will result  in fewer custodians and more                                                               
     people being held in jail.                                                                                                 
   · The felony DUI section needs to be targeted to address                                                                     
     chronic  repeat  offenders.  She suggested  placing  a  time                                                               
     limit  of 15  or 25  years on  that provision  so that  if a                                                               
     youth  is convicted  of a  felony  DUI and  is charged  with                                                               
     another  DUI  25  years  later,  the  later  DUI  would  not                                                               
     automatically become a felony.                                                                                             
   · The provision that makes furnishing alcohol to a minor in a                                                                
     local option  area a felony  charge is not  evenhanded since                                                               
     the same  offense elsewhere is a  misdemeanor. She suggested                                                               
     raising the penalty to a felony for a second offender.                                                                     
CHAIR SEEKINS announced that the  committee would have to adjourn                                                               
to attend  the floor session. He  asked Ms. Wilson to  submit the                                                               
remainder  of her  comments  in writing.  He  then adjourned  the                                                               
meeting at 10:02 a.m.                                                                                                           

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