Legislature(2003 - 2004)

03/31/2004 01:07 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                         March 31, 2004                                                                                         
                           1:07 p.m.                                                                                            
TAPE(S) 04-30,31                                                                                                                
MEMBERS PRESENT                                                                                                               
Senator Ralph Seekins, Chair                                                                                                    
Senator Scott Ogan, Vice Chair                                                                                                  
Senator Gene Therriault                                                                                                         
Senator Johnny Ellis                                                                                                            
Senator Hollis French                                                                                                           
MEMBERS ABSENT                                                                                                                
All members present                                                                                                             
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                                                                           
03/10/04       (S)       Heard & Held                                                                                           
03/10/04       (S)       MINUTE(JUD)                                                                                            
03/12/04       (S)       JUD AT 8:00 AM BUTROVICH 205                                                                           
03/12/04       (S)       Heard & Held                                                                                           
03/12/04       (S)       MINUTE(JUD)                                                                                            
03/24/04       (S)       JUD AT 8:00 AM BUTROVICH 205                                                                           
03/24/04       (S)       Heard & Held                                                                                           
03/24/04       (S)       MINUTE(JUD)                                                                                            
03/29/04       (S)       JUD AT 8:00 AM BUTROVICH 205                                                                           
03/29/04       (S)       -- Meeting Canceled --                                                                                 
03/31/04       (S)       JUD AT 8:00 AM BUTROVICH 205                                                                           
03/31/04       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
WITNESS REGISTER                                                                                                              
Ms. Susan Parkes                                                                                                                
Department of Law                                                                                                               
310 K St., Suite 507                                                                                                            
Anchorage, AK 99501                                                                                                             
POSITION STATEMENT: Answered questions about the sections of SB                                                               
Ms. Linda Wilson                                                                                                                
Public Defender Agency                                                                                                          
Department of Administration                                                                                                    
900 W 5 Ave., Suite 200                                                                                                         
Anchorage, AK  99501-2090                                                                                                       
POSITION STATEMENT:  Expressed concerns about Sections 7, 17 and                                                              
19 and Amendment 5                                                                                                              
Lt. Al Storey                                                                                                                   
Division of Alaska State Troopers                                                                                               
Department of Public Safety                                                                                                     
3700 East Tudor Road                                                                                                            
Anchorage, Alaska  99507                                                                                                        
POSITION STATEMENT:  Answered questions pertaining to Section 11                                                              
Ms. Patricia Ware                                                                                                               
Division of Juvenile Justice                                                                                                    
Department of Health &                                                                                                          
  Social Services                                                                                                               
PO Box 110601                                                                                                                   
Juneau, AK  99801-0601                                                                                                          
POSITION STATEMENT:  Testified on Amendment 8                                                                                 
ACTION NARRATIVE                                                                                                              
TAPE 04-30, SIDE A                                                                                                            
        SB 170-CRIMINAL LAW/SENTENCING/PROBATION/PAROLE                                                                     
CHAIR  RALPH SEEKINS  reconvened  the  Senate Judiciary  Standing                                                             
Committee  meeting to  order  at  1:07 p.m.  for  the purpose  of                                                               
considering  SB 170.  Senators Ogan,  Ellis,  French and  Seekins                                                               
were present. Chair  Seekins said members would  hear a sectional                                                               
review of the bill and asked  Ms. Wilson and Lt. Storey, who were                                                               
listening on-line, to interrupt to ask questions when necessary.                                                                
The committee took a brief at-ease.                                                                                             
CHAIR SEEKINS provided the following sectional review.                                                                          
Regarding Section  1, CHAIR SEEKINS  said he checked to  find out                                                               
whether  or   not  an  established   village,  which  is   not  a                                                               
municipality, has  a constitutional right  to be able to  adopt a                                                               
more  restrictive  option.  He   was  attempting  to  answer  the                                                               
question  of   whether  groups   of  people,   who  are   not  an                                                               
incorporated subdivision  of the  state, can establish  the level                                                               
of importation  that would constitute  a felony. He said  at this                                                               
point, he is  satisfied that this provision is  okay but deserves                                                               
additional  work  down the  road.  He  opined  that in  terms  of                                                               
defense, there  would be a  legitimate question if a  person were                                                               
Section  2 contains  definitions. CHAIR  SEEKINS asked  if anyone                                                               
found problems in Section 2. [No one did.]                                                                                      
Section  3  addresses  adopting  a  lower  amount  [of  alcoholic                                                               
beverages].  CHAIR  SEEKINS asked  if  anyone  had problems  with                                                               
Section 3. [No one did.]                                                                                                        
Section 4  enforces the  lower limits of  alcohol adopted  by the                                                               
locality.  CHAIR  SEEKINS  asked  if  anyone  had  problems  with                                                               
Section 4. [No one did.]                                                                                                        
Section 5  addresses overlapping  local enforcement  areas. CHAIR                                                               
SEEKINS  asked if  anyone had  problems with  Section 5.  [No one                                                               
Section 6  again addresses  overlapping local  enforcement areas.                                                               
CHAIR SEEKINS  asked if anyone  had problems with Section  6. [No                                                               
one did.]                                                                                                                       
Section 7 makes  the act of providing alcohol to  a minor a class                                                               
C  felony.   CHAIR  SEEKINS  asked if  anyone  had problems  with                                                               
Section 7. [No one did.]                                                                                                        
Section  8  addresses  forfeiture   and  adds  cash,  securities,                                                               
negotiable  instruments   or  other  things  of   value  used  in                                                               
financial transactions.                                                                                                         
SENATOR  OGAN   asked  if  forfeiture  would   take  place  after                                                               
MS.  SUSAN PARKES,  Deputy Attorney  General, Criminal  Division,                                                               
Department  of  Law  (DOL),  replied,  "Yes...There  would  be  a                                                               
hearing  where a  judge would  make a  finding that  there was  a                                                               
nexus between  the crime and the  money, in order to  forfeit it.                                                               
Those sections  just aren't in  this bill but there  are sections                                                               
that cover that."                                                                                                               
CHAIR  SEEKINS  noted  no  further  questions  or  objections  to                                                               
Section 8.                                                                                                                      
Section 9  exempts certain things from  forfeiture. [No questions                                                               
or objections were heard.]                                                                                                      
CHAIR SEEKINS asked Lt. Storey  and Ms. Wilson to address Section                                                               
MS.  LINDA  WILSON,  Deputy  Director,  Public  Defender  Agency,                                                               
Department of  Administration (DOA), asked to  comment on Section                                                               
7, which raises  the crime of furnishing alcohol to  a minor in a                                                               
local option  area to a class  C felony. She said  her concern is                                                               
that furnishing  alcohol to a  minor anywhere  in the state  is a                                                               
misdemeanor. She continued:                                                                                                     
     The fact that  it's in a local option area  - it's just                                                                    
     as  bad  here  in  Anchorage  when  somebody  furnishes                                                                    
     alcohol to  a minor  as it  is in  a local  option area                                                                    
     that's dry  and I could  see maybe an older  brother or                                                                    
     somebody giving it  to a relative and  they're going to                                                                    
     be hit with a class  C felony for this. One consequence                                                                    
     I can  see from this  is that you  are going to  have a                                                                    
     lot of  Native people  perhaps getting  a C  felony for                                                                    
     the first  time they've ever done  something like this.                                                                    
     In the other parts of  the statute, it doesn't become a                                                                    
     C felony  unless you've got  a prior violation.  So I'm                                                                    
     worried about [the]  effect [this] is going  to have on                                                                    
     the Bush community.                                                                                                        
MS. PARKES  responded that DOL  spoke with  the head of  the Bush                                                               
caucus about the  issue that this provision will  put more Native                                                               
people  in  jail.  The  Bush   caucus  is  concerned  about  that                                                               
possibility, however  it supports this provision  because alcohol                                                               
is such a problem  in the villages, which is why  they go damp or                                                               
SENATOR   OGAN  questioned   whether  Section   7  raises   equal                                                               
protection issues  by treating people differently  based on where                                                               
they live.                                                                                                                      
CHAIR  SEEKINS said  he would  agree to  raise the  crime to  a C                                                               
felony everywhere.                                                                                                              
SENATOR FRENCH  commented that another piece  of legislation went                                                               
through the  Senate that  treats parts  of the  state differently                                                               
with respect to  what vote is necessary to elect  a mayor. He did                                                               
not  believe Section  7 would  pose an  equal protection  problem                                                               
because the first question that  would be applied is whether that                                                               
section  is aimed  at a  certain race,  and it  is not.  The next                                                               
question is  whether there is  a rational  basis for the  law and                                                               
the  rational basis  is that  that particular  part of  the state                                                               
voted to go dry. He said he  believes there is a reason to punish                                                               
someone more  severely for furnishing  a minor with alcohol  in a                                                               
dry area than in a wet area.                                                                                                    
CHAIR  SEEKINS asked  Lt. Storey  to  describe his  job with  the                                                               
Alaska State Troopers (AST).                                                                                                    
LT. AL  STOREY, AST,  explained that he  is currently  working on                                                               
the  director's  staff on  legislative  matters  but he  was  the                                                               
commander of the  AST's drug and alcohol enforcement  unit in the                                                               
SENATOR  OGAN  thanked Senator  French  for  his counsel  on  the                                                               
rational basis test.                                                                                                            
CHAIR  SEEKINS   continued  with   the  sectional   analysis  and                                                               
explained that  Section 11 applies  to items of  innocent parties                                                               
that are  subject to forfeiture.  He noted he  questioned whether                                                               
or  not the  state  could remand  any portion  of  what has  been                                                               
forfeited to  a municipal law  enforcement agency rather  than to                                                               
the  overriding  local  government,  but his  question  has  gone                                                               
MS. PARKES  noted that subsection  (k) speaks to  forfeited items                                                               
being given to municipal law enforcement agencies.                                                                              
CHAIR  SEEKINS asked  if accepting  funds or  items is  allowable                                                               
within the charters of local  municipalities [for law enforcement                                                               
agencies] versus  giving those funds  or items to  the overriding                                                               
MS. PARKES  deferred to Lt. Storey  for an answer but  noted that                                                               
subsection (k) is  identical to the provision in  the current law                                                               
under the drug forfeiture statute.                                                                                              
LT. STOREY affirmed  that option is currently  available to state                                                               
troopers  under   the  drug  forfeiture  law   and  is  exercised                                                               
frequently with the agencies that  cooperate with the AST in drug                                                               
investigations. The  AST has  not found  any local  agencies that                                                               
are unable to receive forfeited  funds but it has had discussions                                                               
with the heads  of those agencies to ensure  that city ordinances                                                               
do  not require  those funds  be  deposited into  a general  fund                                                               
rather  than be  used for  law enforcement  efforts. He  repeated                                                               
that the AST has never had a  problem with that and has found the                                                               
locals to  be very willing  to receive  those funds and  use them                                                               
for law enforcement purposes.                                                                                                   
CHAIR SEEKINS noted  there were no further  questions or comments                                                               
about Section 11.                                                                                                               
Regarding  Section  12,  SENATOR   OGAN  asked  if  that  section                                                               
basically adds an  "a" and an "and". He asked  for an explanation                                                               
of the effect of those additions.                                                                                               
MS. PARKES told  members that Section 12 is  a conforming section                                                               
to DOL's proposal to make  the violation of third party custodian                                                               
duties  a crime.  Right  now,  DOL can  go  after  a third  party                                                               
custodian for criminal contempt.  Section 12 removes the criminal                                                               
contempt option,  as it  would no  longer be  necessary, assuming                                                               
DOL's proposal is accepted.                                                                                                     
SENATOR OGAN asked if that is tied to Section 17.                                                                               
MS. PARKES affirmed that is correct.                                                                                            
SENATOR  OGAN  clarified  that  Section 12  does  away  with  the                                                               
criminal   contempt  charge,   while  Section   17  makes   those                                                               
violations class A or class B misdemeanors.                                                                                     
MS. PARKES agreed.                                                                                                              
SENATOR  OGAN asked  for  a description  of  the punishments  for                                                               
criminal contempt and class A and B misdemeanors.                                                                               
MS.  PARKES said  criminal contempt  is punishable  by up  to six                                                               
months in jail and a $300 fine. She continued:                                                                                  
     So  by  changing  it  to   a  class  A  misdemeanor,  B                                                                    
     misdemeanor  actually,  upping  the penalties  in  some                                                                    
     situations, lowering  the potential penalty  in others,                                                                    
     what we're really trying to  do is create a cleaner way                                                                    
     to  prosecute   these  cases.  The   criminal  contempt                                                                    
     statute, you have  to reference Section 9,  which is an                                                                    
     unusual  section  to  prosecute   under  and  we  don't                                                                    
     believe  that  the  elements  of  the  offense  are  as                                                                    
     cleanly  laid  out  as  making  it  a  clear  Title  11                                                                    
     offense, which prosecutors are used to dealing with.                                                                       
     Also, when  you charge someone with  criminal contempt,                                                                    
     years  later if  you look  at their  criminal printout,                                                                    
     and you  see criminal  contempt, it's not  clear. There                                                                    
     [are]  lots of  kinds  of criminal  contempt, what  the                                                                    
     actual violation  was. And what  we're trying to  do is                                                                    
     have something  where it  will also  be clear  if years                                                                    
     later  someone proposes  themselves  as  a third  party                                                                    
     custodian, if  that's on their criminal  history, we'll                                                                    
     know  they obviously  didn't do  their job  in a  prior                                                                    
     case and that would be helpful for law enforcement.                                                                        
SENATOR OGAN  expressed concern  about the  change in  Section 17                                                               
because  he believes  it  might create  a  major disincentive  to                                                               
signing up  as a third party  custodian. He said sometimes  it is                                                               
better to  get a person  who has committed  a minor crime  into a                                                               
more  positive  and  structured environment,  such  as  a  family                                                               
environment.  In  addition,  it  is a  lot  less  expensive  than                                                               
keeping people in  jail, an environment that is  not conducive to                                                               
rehabilitation.   He noted that not  all "bad" guys are  evil and                                                               
that sometimes, good people do bad things.                                                                                      
MS.  PARKES said  the court  already  warns potential  custodians                                                               
that they are subject to  criminal prosecution under the criminal                                                               
contempt statute and  the third party custodian  agrees to report                                                               
violations immediately.  In that sense,  SB 170 does  not require                                                               
anything new  of third party  custodians. DOL's position  is that                                                               
the change  to a class A  or B misdemeanor should  not discourage                                                               
anyone from becoming a third  party custodian, unless that person                                                               
does not intend to carry out his or her duties.                                                                                 
1:30 p.m.                                                                                                                       
SENATOR FRENCH echoed Ms. Parkes'  remarks and pointed out that a                                                               
third party custodian who neglects his  or her duties is posing a                                                               
fairly significant  public safety risk.  He said it  is extremely                                                               
frustrating  to  find   a  third  party  custodian   who  is  not                                                               
fulfilling his or  her duties because there has to  be a "hammer"                                                               
to use when dealing with folks  who have been charged with crimes                                                               
such  as  sexual  abuse  of  a  minor  or  a  DUI.  He  said  the                                                               
misdemeanor approach  is the right  approach because no  one will                                                               
go to jail for a first  offense. However, it gives the court, law                                                               
enforcement, and the district attorney some leverage.                                                                           
CHAIR  SEEKINS agreed  the new  criminal penalty  might act  as a                                                               
deterrent to  serving as a  custodian, but  he prefers to  err on                                                               
the side  of creating a  larger deterrent  for people who  do not                                                               
live up to their responsibilities as third party custodians.                                                                    
MS. WILSON  told members that  violating a third  party custodial                                                               
duty is  currently a crime. It  is very difficult to  find people                                                               
to agree to be third party  custodians, and most of them take the                                                               
job  very seriously.  She does  not believe  there is  a need  to                                                               
increase  the punishment  because  of the  threat  of a  criminal                                                               
contempt charge. She  noted that a penalty of a  $10,000 fine and                                                               
one year  in jail would  dissuade many people who  were reluctant                                                               
to become third party custodians in the past.                                                                                   
MS. WILSON said  that Ms. Parke's testimony  about clarifying the                                                               
contempt conviction  in the criminal records  computer system was                                                               
the first she heard of that  concern. She said a less onerous way                                                               
to  address that  concern  is to  make the  violation  a class  B                                                               
misdemeanor. That would expose the  violator to a $2,000 fine and                                                               
90  days  in   jail,  which  will  encourage   people  to  report                                                               
violations  but  not  dissuade them  from  becoming  third  party                                                               
custodians.  She noted  that the  Judicial Council  did a  recent                                                               
study  and reviewed  over 2,000  felonies committed  in 1999.  It                                                               
found that one  of the most significant factors in  the number of                                                               
days a  person spent in jail  was having, as a  bail condition, a                                                               
third  party  custodian  requirement. Therefore,  lack  of  third                                                               
party custodians already  keeps many more people in  jail now, so                                                               
making it harder to get a  third party custodian will keep people                                                               
in  jail  a  lot  longer.  She suggested  making  a  third  party                                                               
custodian  violation a  B misdemeanor  and removing  it from  the                                                               
criminal contempt  world. That  would provide  a higher  fine and                                                               
clarify  the  criminal record  but  will  not deter  people  from                                                               
becoming a third party custodian.                                                                                               
CHAIR  SEEKINS  asked  if  anyone had  a  proposed  amendment  to                                                               
Section 17.  He said his opinion  is that the offense  should not                                                               
be less than a class B misdemeanor.                                                                                             
SENATOR  FRENCH thought  DOL  did  a good  job  of splitting  the                                                               
offense out  to an A  misdemeanor if the  person in custody  is a                                                               
felon  and  a  B  misdemeanor  if the  person  in  custody  is  a                                                               
misdemeanant. He felt  that Section 17 will not  deter good third                                                               
party custodians but  may deter people who do not  intend to do a                                                               
good job.                                                                                                                       
MS. WILSON  suggested another possible amendment  to target those                                                               
people who do not plan  to take their custodial duties seriously,                                                               
that  being  to add  the  word  "intentionally" before  the  word                                                               
"failed" on page 10, line 11.                                                                                                   
CHAIR SEEKINS thought that would be difficult to prove.                                                                         
SENATOR  OGAN moved  to adopt  Ms.  Wilson's suggested  amendment                                                               
[Amendment 4]  for the purpose  of discussion. Amendment  4 reads                                                               
as follows:                                                                                                                     
                      A M E N D M E N T  4                                                                                  
TO:  SB 170                                                                                                                     
        On page 10, line 11, insert the word "knowingly"                                                                        
     before the word "fails"                                                                                                    
SENATOR  OGAN felt  Amendment  4 will  make  the culpable  mental                                                               
state unambiguous.                                                                                                              
CHAIR  SEEKINS  questioned  whether   one  can  ever  negligently                                                               
violate  a condition  set  out by  the court.  He  wondered if  a                                                               
custodian chose  not to report  the disappearance of a  person in                                                               
custody that would be negligent rather than intentional.                                                                        
MS. PARKES said  that an Alaska statute says if  the mental state                                                               
is  not specified,  it  is  knowingly. She  thought  that is  the                                                               
appropriate  mental  state  for  Section   17.  That  way,  if  a                                                               
custodian  is asleep  while  the person  in  custody leaves,  the                                                               
custodian cannot report because he or  she is unaware of it. What                                                               
DOL  is attempting  to do  is clarify  that people  are knowingly                                                               
failing to  act. She expressed  concern that changing  the mental                                                               
state to intentionally  will take it up a notch  and be very hard                                                               
to prove.                                                                                                                       
SENATOR FRENCH clarified that the  mental state of "knowingly" is                                                               
only one  rung lower than  "intentionally" so it's not  as though                                                               
the bar will be set much  lower. He felt "knowingly" is the right                                                               
SENATOR OGAN  moved to  amend Amendment 4  by replacing  the word                                                               
"intentionally" with the word "knowingly."                                                                                      
CHAIR SEEKINS announced that without  objection, Section 17 would                                                               
be  amended to  insert  the word  "knowingly"  between the  words                                                               
"person" and "fails" on page 10, line 11.                                                                                       
CHAIR SEEKINS continued with his  sectional analysis and reminded                                                               
members  that the  committee had  an  extensive discussion  about                                                               
Section 13.                                                                                                                     
SENATOR FRENCH thought  that Section 13 would make  a good change                                                               
to the law.                                                                                                                     
Regarding Section  14, SENATOR  OGAN said  he is  concerned about                                                               
the term "dangerous instrument" and  moved to change that term to                                                               
"deadly weapon" on  page 9, line 16 [Amendment 5].  He noted that                                                               
he had  a lengthy  discussion with Ms.  Wilson about  that change                                                               
and  is concerned  that  a  person who  had  one  drink could  be                                                               
charged with criminal negligence or other similar scenarios.                                                                    
CHAIR  SEEKINS  asked if  the  term  "deadly weapon"  includes  a                                                               
specific list of weapons.                                                                                                       
MS. PARKES told  members that under AS 11.81,  "deadly weapon" is                                                               
defined as  any firearm or  anything designed for and  capable of                                                               
causing death or  serious physical injury, including  a knife, an                                                               
axe, a  club, metal  knuckles or an  explosive. She  then pointed                                                               
out  that a  "dangerous instrument"  includes deadly  weapons and                                                               
any  thing that,  under the  circumstances in  which it  is used,                                                               
attempted to  be used, or  threatened to  be used, is  capable of                                                               
causing death or serious physical injury.                                                                                       
CHAIR SEEKINS asked  if "dangerous instrument" is  limited to the                                                               
logical extension of the definition.                                                                                            
MS. PARKES said that is correct.                                                                                                
CHAIR SEEKINS said a car would not be included.                                                                                 
SENATOR FRENCH noted that a car is not designed to cause death.                                                                 
CHAIR SEEKINS  asked if a  drunk who killed or  seriously injured                                                               
someone while driving a car would fall under this statute.                                                                      
SENATOR  FRENCH  said a  drunk  driver  who killed  or  seriously                                                               
injured a  person could be  prosecuted under, "murder,  murder 2,                                                               
assault 1 and 2."                                                                                                               
MS.  PARKES explained  the difference  is  that a  person who  is                                                               
legally  intoxicated  is acting  recklessly.  Section  14 is  one                                                               
notch lower. Regarding  Amendment 5, she said DOL's  intent is to                                                               
close a loophole  in the law. All current  assault statutes refer                                                               
to  dangerous instruments;  none are  limited to  deadly weapons.                                                               
She explained:                                                                                                                  
     Right now we have an  assault in the fourth degree that                                                                    
     says if someone commits assault  in the fourth degree -                                                                    
     if   with  criminal   negligence  that   person  causes                                                                    
     physical  injury  to  another  person  by  means  of  a                                                                    
     dangerous  instrument.  We  have  criminally  negligent                                                                    
     homicide but  we have  no criminally  negligent assault                                                                    
     statute  where serious  physical injury  is caused  and                                                                    
     that's what  this amendment is  intended to  close that                                                                    
SENATOR OGAN  asked how Section  14 would  apply to a  person who                                                               
violated  a  traffic  ordinance and  caused  a  serious  physical                                                               
MS. PARKES  said a simple  violation of  a traffic law  would not                                                               
raise  the  offense  to criminal  negligence.  According  to  the                                                               
statute, a person  acts with criminal negligence  when the person                                                               
fails to perceive  a substantial and unjustifiable  risk that the                                                               
result  will occur  or that  the circumstance  exists. She  read,                                                               
"The risk  must be of such  a nature and degree  that the failure                                                               
to perceive  it constitutes a  gross deviation from  the standard                                                               
of care that a reasonable  person would observe." She pointed out                                                               
that would not  apply to a person who  was momentarily distracted                                                               
and swerved in the road.                                                                                                        
CHAIR  SEEKINS  asked  if  driving  impaired  would  be  criminal                                                               
MS.  PARKES  thought  driving impaired  would  be  considered  as                                                               
reckless behavior.  She said  she understands  members' concerns,                                                               
but explained  that DOL proposed this  change because prosecutors                                                               
have  been unable  to  prove recklessness  where  someone is  not                                                               
legally impaired but has drugs or  alcohol on board.  She said in                                                               
those cases, when  someone is injured, the factors do  not add up                                                               
to  recklessness,  but  DOL  believes  they add  up  to  a  gross                                                               
deviation. She noted  that Alaska does not have  a situation that                                                               
fits that scenario.                                                                                                             
1:50 p.m.                                                                                                                       
SENATOR FRENCH remarked  that he has seen a lot  of fourth degree                                                               
prosecutions but never  used the criminal negligence  part of it.                                                               
He questioned when it would get used.                                                                                           
MS. PARKES  said the  only time  DOL looked at  using it  was for                                                               
situations  in  which  a vehicular  collision  occurred  but  the                                                               
driver wasn't  legally impaired but  was involved in  bad driving                                                               
or  bad  behavior. She  said  DOL  was  distressed to  find  that                                                               
although  sometimes people  were  seriously  injured, the  driver                                                               
could  only be  charged with  a misdemeanor.  She admitted  it is                                                               
rare that DOL uses it.                                                                                                          
SENATOR FRENCH maintained, "The  more outrageous the driving, the                                                               
easier it  is to  prove recklessness  and then  you just  go with                                                               
that statute...."                                                                                                               
MS. PARKES agreed  but said this will also  allow the prosecution                                                               
to  offer  a lesser  included  to  the  jury. If  the  prosecutor                                                               
believes it is a borderline  case of recklessness, this will give                                                               
the jury  the option to say  the person was not  reckless but was                                                               
perhaps criminally  negligent, rather than  drop the charge  to a                                                               
misdemeanor if a person was injured seriously.                                                                                  
The committee took a brief at-ease.                                                                                             
TAPE 04-30, SIDE B                                                                                                            
CHAIR SEEKINS informed members that  Linda Wilson, Lt. Al Storey,                                                               
Bill Miller of  the Anchorage Police Department  (APD), and Donna                                                               
Garner   from  the   Victims  for   Justice   were  on-line   and                                                               
participating in an  "open mike" arrangement. He  told Mr. Miller                                                               
and Ms.  Garner that his intent  during this hearing is  to allow                                                               
for brief discussion on the sections  of this bill. He asked them                                                               
to comment on any section they had concerns with.                                                                               
CHAIR SEEKINS  asked if a person  who had an accident  because he                                                               
or she  fell asleep at the  wheel would be charged  with criminal                                                               
MS. PARKES  said the question  gets back to whether  the behavior                                                               
was  a gross  deviation. In  such cases  in Anchorage,  DOL never                                                               
charged those drivers because DOL  did not believe it could prove                                                               
gross deviation  just based on  falling asleep. She noted  if the                                                               
sleep  was coupled  with alcohol  or drug  use, that  might occur                                                               
but, again, it would get down  to the mental state and whether it                                                               
could be proved beyond a reasonable doubt.                                                                                      
SENATOR  OGAN commented  that he  has heard  that people  who use                                                               
cell  phones while  driving are  as dangerous  as drivers  with a                                                               
blood alcohol level over .08.                                                                                                   
CHAIR SEEKINS stated that if he  supports this section it is with                                                               
the intention that it not  include anything but a gross deviation                                                               
and not  "a secretary on her  way to work putting  her make-up on                                                               
and distracted for  a moment or someone whose  driving, trying to                                                               
get back and  snoozes, or someone who is using  their cell phone,                                                               
Senator Ogan...."                                                                                                               
SENATOR  OGAN  said  he  has driven  behind  teenagers  who  were                                                               
engaged  in very  distracting  activity, to  the  point where  he                                                               
couldn't tell who was driving.                                                                                                  
MS. PARKES declined to comment.                                                                                                 
CHAIR  SEEKINS  asked  if  there  was  further  discussion  about                                                               
Amendment   5  [changing   "dangerous   instrument"  to   "deadly                                                               
SENATOR FRENCH  said the fact  that there  has been a  statute on                                                               
the books  that parallels this  provision, with the  exception of                                                               
serious physical  injury, tells him  this will not be  subject to                                                               
abuse. This provision will only  put serious physical injury into                                                               
the equation and is not an extravagant expansion of the law.                                                                    
MS. WILSON said  her concern is that she is  hearing the message,                                                               
"Trust the  prosecutor, trust the  prosecutor, they're  not going                                                               
to do  this." However, she  guarantees this provision  will leave                                                               
the  door open  for abuse.  Reckless behavior  can be  charged as                                                               
assault 1. Using  criminal negligence will open the  door "to the                                                               
make-up, to the  cell phone, to the - any  consumption of alcohol                                                               
and I  think there could  be an  argument made that  that's gross                                                               
deviation...." She  submitted that this provision  will leave the                                                               
door open to abuse.                                                                                                             
CHAIR  SEEKINS asked  for a  roll call  vote. Amendment  5 failed                                                               
with  Senator  Ogan  in  favor and  Senators  Ellis,  French  and                                                               
Seekins opposed.                                                                                                                
CHAIR SEEKINS  moved on  to Section 15.  No committee  members or                                                               
members of the public expressed problems with that section.                                                                     
CHAIR SEEKINS asked  if anyone had concerns with  Section 16. [No                                                               
one did.]                                                                                                                       
CHAIR SEEKINS reminded members they  already discussed Section 17                                                               
so moved  on to Section 18  and informed members that  Section 18                                                               
was amended.                                                                                                                    
SENATOR FRENCH asked  if the committee was looking  at an updated                                                               
version that included those amendments.                                                                                         
CHAIR  SEEKINS  said  the  amendments  adopted  at  the  previous                                                               
meeting have not  yet been incorporated into version  H. He noted                                                               
that  the committee  had adopted  four amendments  at a  previous                                                               
meeting [on March 24].                                                                                                          
MS. PARKES  clarified that  the first  amendment was  amended (on                                                               
page  10,  lines 29-31)  and  changed  "dangerous instrument"  to                                                               
"deadly weapon."                                                                                                                
CHAIR SEEKINS moved on to Section 19.                                                                                           
MS. WILSON commented:                                                                                                           
     ...I  don't  think we  need  to  have this  section  in                                                                    
     there. I  think that the  'some evidence' test  is just                                                                    
     fine the  way it  is. I think  you're taking  away from                                                                    
     the  jury. Their  decision on  the  credibility or  the                                                                    
     plausibility  of  the  self-defense claim,  and  that's                                                                    
     where it should  be left, is with the  jury. If there's                                                                    
     evidence to  support self-defense, it should  go to the                                                                    
     jury. It shouldn't  be kept from the jury  by the judge                                                                    
     who  then  is  now  going to  decide  plausibility  and                                                                    
     credibility.  That's  not   the  judge's  function;  it                                                                    
     should be left to the jury.  So, I just wanted to throw                                                                    
     that  comment in,  you know,  that we  still have  some                                                                    
     concerns about that section.                                                                                               
SENATOR OGAN  recalled some discussion about  what evidence would                                                               
be considered as "plausible" and  asked if a statutory definition                                                               
MS. WILSON  said there is  no statutory definition  of "plausible                                                               
evidence."  She explained  that Section  19 will  make the  judge                                                               
decide the  plausibility or the  credibility of the  evidence. If                                                               
the judge  thinks the  evidence presented  does not  constitute a                                                               
convincing self-defense claim, the judge  will not give it to the                                                               
jury when it is actually the  jury's function to decide the issue                                                               
of  factual   determination.  He  said  allowing   the  judge  to                                                               
determine plausibility will show distrust  of the jury because if                                                               
the judge can't be convinced, the  information will not go to the                                                               
SENATOR OGAN asked how the current system works.                                                                                
MS.  WILSON said  if a  defendant  can present  some evidence  to                                                               
support a  self-defense claim, which  means any evidence  that is                                                               
put  before the  judge,  the  jury decides  whether  to buy  that                                                               
claim. Section 19 will make it  harder to get the evidence to the                                                               
jury  because  the  judge  will  have  to  be  convinced  of  its                                                               
plausibility first.                                                                                                             
SENATOR FRENCH  commented that  Section 19 raises  the bar  for a                                                               
self-defense  claim "one  smidgeon." He  is convinced  the judges                                                               
will  construe Section  19  as narrowly  as  possible because  no                                                               
judge wants  to preside over  a trial  in which a  defendant does                                                               
not  get to  present any  plausible evidence.  It is  the judge's                                                               
role to control  the flow of evidence  to a jury so  that a trial                                                               
does  not become  a free-for-all.  He  advised that  self-defense                                                               
claims come with a whole  host of issues, including the character                                                               
of the  people involved, so there  is reason to be  careful about                                                               
letting such  claims in.   He believes that  Section 19 is  not a                                                               
major change  to current law  but it does  move the bar  a little                                                               
bit higher than "any" evidence.                                                                                                 
CHAIR SEEKINS  asked if  Section 19 says  the judge  can instruct                                                               
the jury  if the judge  finds some plausible evidence  to warrant                                                               
that a reasonable jury could  find justification for the elements                                                               
of self-defense.                                                                                                                
SENATOR FRENCH said  that is correct. He explained  that a person                                                               
on trial for  murder may claim self-defense. The  judge would ask                                                               
for  an explanation.  If  the judge  finds  that the  explanation                                                               
contained  some plausible  evidence  of  self-defense, the  judge                                                               
would allow the defendant to  argue the self-defense claim before                                                               
the jury.  He pointed  out that  moreover, the  prosecution would                                                               
have  to  disprove the  self-defense  claim  beyond a  reasonable                                                               
CHAIR SEEKINS  asked if  that would  preclude the  defendant from                                                               
being able  to present the  elements of self-defense,  or whether                                                               
it would go to the instructions to the jury.                                                                                    
SENATOR FRENCH  said both.  The judge  would prevent  the defense                                                               
attorney  from arguing  that the  defendant was  acting in  self-                                                               
defense if there  was no plausible evidence. The  judge would act                                                               
as the gatekeeper of information and the rule maker.                                                                            
MS. WILSON responded  that if the judge believes  the evidence is                                                               
insufficient or  not plausible, then no  evidence of self-defense                                                               
can  come before  the jury  and  no instruction  goes before  the                                                               
SENATOR OGAN said if someone is  charged with a crime, the police                                                               
and prosecutor  have already decided  that no  plausible evidence                                                               
of self-defense  exists or  the person would  not be  charged. He                                                               
recalled the case  at Big Lake and said he  believes the right of                                                               
self-defense is  an unalienable  right. He  then moved  to strike                                                               
Section 19 in its entirety [Amendment 6].                                                                                       
SENATOR FRENCH objected  and said he agrees  that self-defense is                                                               
an  unalienable right  but Section  19 will  not change  that. It                                                               
simply says  that when  a person  is on  trial, that  person must                                                               
provide some evidence. He added:                                                                                                
     I think the Big Lake case is a perfect example. There                                                                      
       is no way a judge is ever going to keep that self-                                                                       
     defense claim  away from a  jury if it  happened inside                                                                    
     the place  where a person  lives, there's  intruders in                                                                    
     there,  it's dark  at night,  and there's  just no  way                                                                    
     under that [circumstance]  and all that guy  has to say                                                                    
     is  I was  afraid and  I  thought they  were armed  and                                                                    
     BOOM, you're going to the jury 'cause of the darkness.                                                                     
     But to  change the situation  a little bit and  make it                                                                    
     into a Wal-Mart parking  lot, it's bright daylight, the                                                                    
     guys  wearing  a  T-shirt  and a  pair  of  shorts  and                                                                    
     someone else shoots  him to death, and he  says well it                                                                    
     was  self-defense,  he  was walking  toward  me.  Well,                                                                    
     that's just out of the  bounds of reality and you don't                                                                    
     get to confuse the jury  with a self-defense claim. So,                                                                    
     I  see the  system working  pretty well  right now  and                                                                    
     this is just raising it a smidgeon.                                                                                        
CHAIR SEEKINS said he has  a problem with affirmative defense and                                                               
this  moves  a  bit  toward  this  but  it  is  not  outside  the                                                               
boundaries of his comfort level.                                                                                                
SENATOR OGAN  said his point  is that  Section 19 lets  the judge                                                               
make  that determination  rather  than the  jury.  He stated,  "I                                                               
guess I'm  a sucker  for erring  on the side  of caution  when it                                                               
comes to self-defense."                                                                                                         
CHAIR SEEKINS  asked for a roll  call vote. The motion  to strike                                                               
Section 19 [Amendment  6] carried with Senators  Ellis, Ogan, and                                                               
Seekins voting yes, and Senator French voting no.                                                                               
CHAIR  SEEKINS asked  for  comments on  Section  20. There  being                                                               
none, he moved to Section 21.                                                                                                   
SENATOR FRENCH  said he  finds Section 21  to be  troublesome. He                                                               
read  the Gonzales  case  and  a few  other  Supreme Court  cases                                                               
related to  self-incrimination after  Mr. Ray Brown  testified on                                                               
this section,  and became  convinced that  allowing the  judge to                                                               
disclose  to a  prosecutor what  level  of crime  the witness  is                                                               
being given  immunity for could become  a "link in the  chain" to                                                               
prosecuting  the  witness.  For   that  reason,  he  proposed  an                                                               
amendment to subsection (i) of Section 21 to read:                                                                              
                      A M E N D M E N T  7                                                                                  
     On  page 12,  lines 22-24,  insert a  period after  the                                                                    
     word  "finding"   and  strike  the  remainder   of  the                                                                    
He explained that the purpose of  Amendment 7 is to not allow the                                                               
judge to inform the prosecution of the category of offense.                                                                     
CHAIR SEEKINS objected for the purpose of discussion.                                                                           
SENATOR FRENCH pointed  out that many states  have struggled with                                                               
this issue and one of the  more interesting cases he read on this                                                               
issue  was the  Oliver North  case.  Mr. North  was compelled  to                                                               
testify before  Congress about the  Iran Contra affair  and given                                                               
immunity but was later prosecuted.                                                                                              
SENATOR  FRENCH noted  that his  point is  that under  the Alaska                                                               
Constitution,  a person  cannot  be compelled  to give  testimony                                                               
unless  the state  has taken  measures  to remove  the hazard  of                                                               
incrimination, which means testimony  can only be compelled after                                                               
immunity has been granted. He furthered:                                                                                        
     And  an  individual  faces a  hazard  of  incrimination                                                                    
     whenever the  answers elicited  for a  conviction might                                                                    
     furnish  a   link  in  the   chain  of   evidence.  Now                                                                    
     frequently  what we're  talking about  here is  kind of                                                                    
     non-testimonial   -  or   non-evidentiary   -  use   of                                                                    
     compelled testimony.  He's not going  to be put  on the                                                                    
     stand to testify but he's  going to be pulled back into                                                                    
     the judge's  chambers and be  forced to tell  the judge                                                                    
     what   he  knows   about  the   crime  and   then  that                                                                    
     information is conveyed to the  prosecutors - the level                                                                    
     of crime. And so I  would call that non-evidentiary use                                                                    
     of   compelled  testimony   and   Gonzales  says   non-                                                                    
     evidentiary  use includes  assistance  in focusing  the                                                                    
     investigation,   deciding   to  initiate   prosecution,                                                                    
     interpreting  evidence,  and otherwise  planning  trial                                                                    
     And  let me  just give  you a  real short  hypothetical                                                                    
     about how  I think this  could be misused.  It involves                                                                    
     murder inside  a drug house  - three people  inside the                                                                    
     drug house  - four people,  one gets shot to  death. So                                                                    
     there are three  people alive. There's a  911 call from                                                                    
     the  neighbor's  house and  they  say  I just  heard  a                                                                    
     shooting  next   door,  you  better  come   quick.  The                                                                    
     neighbor  watches the  door, nobody  comes  or goes  in                                                                    
     between the time  the cops get there and  the cops show                                                                    
     up and there  [are] three people inside.  And let's say                                                                    
     there's a bag of marijuana  in one corner and let's say                                                                    
     there's a bloody gun underneath  the bed and the bag of                                                                    
     marijuana's got some fingerprints  on it and the bloody                                                                    
     gun's got  two sets of prints  on it. And they  run all                                                                    
     of the  prints and  they realize  the prints  belong to                                                                    
     defendant A  on the marijuana  bag and then  the bloody                                                                    
     gun's  got  two  sets  of  prints on  it.  So  you  put                                                                    
     defendant A  on trial for marijuana  possession and you                                                                    
     call  the   other  two  people  inside   the  house  as                                                                    
     witnesses  to  find out  what  he  was doing  with  the                                                                    
     marijuana.  And when  you call  them  as witnesses,  of                                                                    
     course they take the Fifth  Amendment. And then they're                                                                    
     going to go back to  the judge's chambers and the judge                                                                    
     is going to say well what  did you do and one will tell                                                                    
     him I  murdered the guy.  Then he brings the  other guy                                                                    
     and he  says what did you  do? And he says  well I just                                                                    
     took the  gun and threw  it underneath the bed.  So the                                                                    
     judge comes back out after  having talked to these guys                                                                    
     and says  this guy over  here, he's got immunity  for a                                                                    
     high  level  felony.  This  guy  over  here,  he's  got                                                                    
     immunity for  a low  level felony. The  prosecutor goes                                                                    
     oh, okay,  that guy's  the murderer, he's  the shooter,                                                                    
     and that  guy there just  threw the gun  underneath the                                                                    
     bed and away we go.  Neither one gets immunity and they                                                                    
     both get prosecuted.                                                                                                       
     That's, you know, a good  person could shoot holes in a                                                                    
     hypothetical but it's an example,  I think, of how this                                                                    
     law could be  used to prosecute someone  based on their                                                                    
     own testimony.                                                                                                             
MS.  PARKES  disagreed  with  Senator   French  and  Mr.  Brown's                                                               
analysis of the  Gonzales case. The court found,  in the Gonzales                                                               
case,   the    state's   use   derivative   use    immunity   was                                                               
unconstitutional  and  said  the state  must  give  transactional                                                               
immunity. The  court opinion contained strong  language that said                                                               
bad things could  flow from forcing someone to  testify by giving                                                               
that person  transactional immunity.  Therefore, a  person cannot                                                               
be  prosecuted for  the crime  he or  she is  given immunity  for                                                               
using anything  that person  says while  testifying -  period. In                                                               
Section 21,  DOL is asking  for very minor information  about the                                                               
level of offense  the prosecution would be  granting immunity for                                                               
to  get,  what is  often,  very  important  evidence in  a  case.                                                               
Regarding the  scenario that Senator French  described, she noted                                                               
that every law can be misused  so such a scenario of misuse could                                                               
be devised  for any statute  on the  books. In that  example, she                                                               
said that the prosecutor would already  know that of the two sets                                                               
of fingerprints  on the gun, one  set belongs to the  killer. The                                                               
police would have  been investigating that. If a  judge tells the                                                               
prosecutor one witness has immunity  for a high level felony that                                                               
is not  evidence that  can be  used at a  trial. She  thought the                                                               
"link  in the  chain" argument  is very  tenuous and  pointed out                                                               
that a witness may be  concerned about being cross examined about                                                               
drug use while on the witness stand.                                                                                            
She  thought from  a policy  point of  view, it  is irresponsible                                                               
that prosecutors are expected to  be able to make decisions about                                                               
whether or not to grant  immunity with absolutely no information.                                                               
Because  of that,  prosecutors  do not  give  immunity because  a                                                               
person who is given immunity could  take the stand and confess to                                                               
a homicide and that person  could not be prosecuted. For victims,                                                               
that means  important evidence  is not  introduced at  trial. She                                                               
believes  that not  allowing  prosecutors to  know  the level  of                                                               
crime when  granting immunity is  a disservice to victims  and to                                                               
the state.                                                                                                                      
SENATOR FRENCH  said if  he believed  every district  attorney in                                                               
the state  was of Ms. Parkes'  caliber, he would not  be worried,                                                               
but he  knows the Supreme Court  will look at that  provision and                                                               
strike it  down. He said  he wants to vote  for this bill  on the                                                               
Senate floor but does not want to  have to do so when it contains                                                               
a provision he has reservations about.                                                                                          
CHAIR SEEKINS  asked Ms.  Parkes' if  there is  any other  way to                                                               
disclose  information about  the level  of offense  that is  less                                                               
MS. PARKES' said  under the analysis laid out  by Senator French,                                                               
no information could be given.                                                                                                  
SENATOR  OGAN expressed  regret that  this one  subject is  not a                                                               
separate bill  because the  committee could spend  a lot  of time                                                               
discussing that one issue alone.                                                                                                
CHAIR SEEKINS said  he has no problem with it  if DOL believes it                                                               
is constitutional.                                                                                                              
SENATOR OGAN said  his point was that legislators have  a duty to                                                               
put  a constitutional  litmus  test  on the  laws  of the  state,                                                               
rather than giving  the courts the arduous duty of  undoing a job                                                               
done poorly.                                                                                                                    
CHAIR SEEKINS  agreed but said  he tends to believe  that Section                                                               
21  may be  constitutional.  He then  asked for  a  roll call  on                                                               
adopting Amendment  7.  The  motion to adopt Amendment  7 carried                                                               
with  Senators Ellis,  French,  and Ogan  in  favor, and  Senator                                                               
Seekins opposed.                                                                                                                
CHAIR SEEKINS brought up Section 23  but there was no comment. He                                                               
then   explained  that   Section   24   deals  with   consecutive                                                               
SENATOR  FRENCH asked  if  that  applies to  each  count or  each                                                               
victim and whether this entire section is new.                                                                                  
MS. PARKES reminded members that  Section 24 is identical to what                                                               
was  in last  year's crime  bill. Her  understanding is  that the                                                               
consecutive sentence is for each additional offense.                                                                            
SENATOR FRENCH said he had no further concerns with Section 24.                                                                 
No members had concerns with Section 25.                                                                                        
Regarding Section 26, SENATOR FRENCH  commented that this section                                                               
says once a person has been convicted  of a C felony for DWI, the                                                               
next DWI  conviction would automatically  be a felony,  no matter                                                               
how much time  lapsed between the two. He said  he has given this                                                               
section a lot of thought and  is aware of teenagers who have been                                                               
convicted of  3 DWIs  before they become  adults, but  he decided                                                               
the bottom line is that the  core behavior must stop and that the                                                               
need for public  safety overrides the offender being  kept on the                                                               
hook for future DWIs.                                                                                                           
SENATOR OGAN  recounted a scenario  in which a  respectable, hard                                                               
working  type guy  was pulled  over for  a minor  traffic offense                                                               
after attending  a reception. He had  been convicted of a  DWI 20                                                               
years ago so would be looking  at another felony, even though his                                                               
blood alcohol level (BAC) was .08.                                                                                              
SENATOR FRENCH  said the Anchorage Police  Department (APD) gives                                                               
a  class to  teach cadets  how to  detect alcohol  consumption in                                                               
people, which he  attended once. He guaranteed  Senator Ogan that                                                               
a BAC of .08 would require a  person to drink five or six drinks,                                                               
which is not having one or two  drinks at a reception. He felt if                                                               
a person had  a felony DWI as  a young person, it  should be that                                                               
person's lifetime commitment to not  drink and drive. He repeated                                                               
that he prefers to err on the side of public safety.                                                                            
CHAIR  SEEKINS said  he  is aware  of cases  similar  to the  one                                                               
Senator Ogan described  and, in both cases, the  offender pled to                                                               
lesser offenses.                                                                                                                
SENATOR OGAN  asked if a person  could plead to a  lesser offense                                                               
under Section 26.                                                                                                               
MS. PARKES said that is  always possible but the prosecutor could                                                               
not  let  that person  plead  to  a  misdemeanor DWI.  Often  the                                                               
reduction is to a reckless driving offense.                                                                                     
SENATOR OGAN  indicated that he  is not soft on  habitual alcohol                                                               
users in any way.                                                                                                               
CHAIR SEEKINS echoed Senator Ogan's remarks.                                                                                    
MS.  PARKES  reminded  members  that  they  adopted  Amendment  4                                                               
because Section 27 was drafted too broadly.                                                                                     
SENATOR FRENCH expressed concern  that the committee's intent may                                                               
not be reflected  in that language. He  questioned whether anyone                                                               
can attack  the intoxication  test. He  said he  totally supports                                                               
the  intent of  the amendment,  that being  to keep  someone from                                                               
saying they had  four shots of whiskey and drove  home before the                                                               
alcohol had any effect.                                                                                                         
SENATOR OGAN asked what Section 29 does.                                                                                        
TAPE 04-31, SIDE A                                                                                                            
MS.  PARKES  said  Section 29  contains  conforming  language  to                                                               
Amendment  4.  It  references subsection  (s)  to  indicate  that                                                               
except for that subsection, the rest  of the statute is not to be                                                               
construed  to  limit  the introduction  of  any  other  competent                                                               
evidence because subsection (s) does limit it to a degree.                                                                      
Members had no questions about Sections 30 or 31.                                                                               
SENATOR FRENCH asked if Section 32 was amended.                                                                                 
MS. PARKES  said it was but  the Department of Health  and Social                                                               
Services (DHSS) has another amendment  to address a concern about                                                               
whether   regulations  would   be  drafted   to  determine   what                                                               
information  state   or  municipal  authorized   employees  could                                                               
CHAIR SEEKINS  numbered the  DOL proposal  as Amendment  8, which                                                               
reads as follows:                                                                                                               
                      A M E N D M E N T  8                                                                                  
Page 18, lines 5-31, and page 19, lines 1-17:                                                                                   
     Delete all material and insert:                                                                                            
     "Sec.32. AS 47.12.310(c) is amended to read:                                                                             
     (c) A state or municipal law enforcement agency                                                                            
                 (1) shall disclose information                                                                                 
                     regarding  a  case   that  is                                                                              
                     needed  by   the  person   or                                                                              
                     agency charged with  making a                                                                              
                     preliminary investigation for                                                                              
                     the information of  the court                                                                              
                     under this chapter;                                                                                        
                 (2) may disclose to the public                                                                                 
                     information    regarding    a                                                                              
                     criminal offense  in which  a                                                                              
                     minor is  a suspect,  victim,                                                                              
                     or witness  if  the minor  is                                                                              
                     not   identified    by    the                                                                              
              (3) may     disclose    to   school                                                                               
                     officials         information                                                                              
                     regarding a  case  as may  be                                                                              
                     necessary  to   protect   the                                                                              
                     safety of school students and                                                                              
                     staff or to enable the school                                                                              
                     to    provide     appropriate                                                                              
                     counseling   and   supportive                                                                              
                     services to meet the needs of                                                                              
                     a    minor     about     whom                                                                              
                     information is disclosed.                                                                                  
                  (4) Or a state or municipal                                                                               
                     agency or authorized employee                                                                          
                     may  disclose to  the  public                                                                              
                     information regarding  a case                                                                              
                     as   may  be   necessary   to                                                                              
                     protect  the  safety  of  the                                                                              
                     public; and                                                                                                
                (5) May disclose to a victim or                                                                                 
                     to  the   victim's  insurance                                                                              
                     company          information,                                                                              
                     including copies  of reports,                                                                              
                     as   necessary    for   civil                                                                              
                     litigation    or    insurance                                                                              
                     claims pursued by  or against                                                                              
                     the victim.                                                                                                
CHAIR SEEKINS moved Amendment 8 for the purpose of discussion.                                                                  
MS. PATTY  WARE, Director  of the  Division of  Juvenile Justice,                                                               
DHSS, introduced herself.                                                                                                       
MS. PARKES explained  to members that Amendment 8  was drafted to                                                               
say that  this provision would  not apply until  regulations were                                                               
drafted and that  only a state or municipal  agency or authorized                                                               
employee could  release the information to  indicate "it couldn't                                                               
just  be any  employee  willy-nilly letting  information out  may                                                               
disclose to the public information...."  That is a little broader                                                               
than originally  drafted, but it is  not much of an  extension of                                                               
what DHSS can currently do.                                                                                                     
MS. WARE  pointed out that  under AS 47.12.315, DHSS  can already                                                               
release  a  fair amount  of  information  on juveniles  who  have                                                               
committed  certain offenses.  Amendment  8 does  not broaden  the                                                               
scope of  information; it only  allows other DHSS  employees, who                                                               
are not  currently authorized, to  release that  information when                                                               
there are concerns about public safety.                                                                                         
SENATOR FRENCH asked  for examples of when  information would and                                                               
would not be released.                                                                                                          
CHAIR SEEKINS interjected to say  that Amendment 8 is intended to                                                               
replace Amendment 2.                                                                                                            
MS.  WARE told  members  that the  Division  of Juvenile  Justice                                                               
(DJJ) used  to be part  of what is  now the Office  of Children's                                                               
Services (OCS).  When there were concerns  about child protection                                                               
and  both  agencies  were  combined,  the  information  could  be                                                               
released. She said one good example  of the intent of Amendment 8                                                               
is  that it  will allow  OCS  social workers  that have  concerns                                                               
about protection  of the public  to release information  that can                                                               
already be publicly disclosed through a DJJ employee.                                                                           
SENATOR  FRENCH  asked  to whom,  specifically,  the  information                                                               
would be released.                                                                                                              
MS. WARE said the specifics will  be put in regulation. DHSS will                                                               
be very  careful about who  can release the information  and will                                                               
make sure  the regulations are consistent  with existing statute.                                                               
She noted  that under AS  47.12.315 now, information can  only be                                                               
released  if the  offender is  13  years or  older and  committed                                                               
certain  crimes.  In that  case,  the  name,  the nature  of  the                                                               
offense,  and  what  will  be  done about  that  offense  can  be                                                               
released to  the public. Those  parameters would remain  in place                                                               
as  DHSS   is  committed  to   making  sure  it   is  maintaining                                                               
appropriate confidentiality.                                                                                                    
SENATOR FRENCH  maintained that Amendment 8  will not necessarily                                                               
broaden  the  disclosure  provision;  it  will  merely  move  the                                                               
responsibility from one agency to another.                                                                                      
MS. WARE said that is correct.                                                                                                  
CHAIR  SEEKINS asked  if  it already  applies  to municipal  laws                                                               
under current law.                                                                                                              
MS. WARE  said the current  law refers  to "a state  or municipal                                                               
law  enforcement agency"  so Amendment  8 basically  removes "law                                                               
enforcement" and broadens the authorization to other employees.                                                                 
MS.  WILSON said  she  supports  Amendment 8  in  the sense  that                                                               
requiring department  regulations to  be promulgated  tightens it                                                               
up but she still has some  concerns. She noted that it originally                                                               
addressed sexual assault and sexual  abuse cases. Now, it applies                                                               
to  any  case. Right  now  under  AS  47.12.310, only  state  and                                                               
municipal law  enforcement agencies  can release  the information                                                               
for  the  purpose of  protecting  the  public. Amendment  8  will                                                               
expand that  ability to  OCS and no  longer limits  disclosure to                                                               
serious   offenses.   She   appreciates   the   requirement   for                                                               
regulations  but  would  feel  more   comfortable  if  it  didn't                                                               
authorize release of information on any case.                                                                                   
CHAIR SEEKINS noted without further  objection to Amendment 8, it                                                               
was adopted.                                                                                                                    
Members had no concerns with Sections 32.                                                                                       
MS.  PARKES  told members  that  Section  33 contains  conforming                                                               
language for the sentencing provisions.                                                                                         
CHAIR SEEKINS noted that Section  34 contains conforming language                                                               
and Section 35 contains the effective date.                                                                                     
There being  no additional comments, CHAIR  SEEKINS announced his                                                               
intent to  have a final work  draft that incorporates all  of the                                                               
amendments prepared and distributed to  members and that he would                                                               
bring SB  170 up  on Friday for  final consideration.  He thanked                                                               
all members and adjourned the meeting at 2:55 p.m.                                                                              

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