Legislature(2005 - 2006)BUTROVICH 205

04/21/2005 08:30 AM JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ HB 131 ACCESS DEVICE & I.D. DOCUMENT CRIMES TELECONFERENCED
Moved HB 131 Out of Committee
+ HB 132 CRIMES AGAINST ELDERLY TELECONFERENCED
Moved SCS CSHB 132(JUD) Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
= HB 136 DRUNK DRIVING TREATMENT PROGRAM
Moved HB 136 Out of Committee
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                         April 21, 2005                                                                                         
                           8:38 a.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Ralph Seekins, Chair                                                                                                    
Senator Charlie Huggins, Vice Chair                                                                                             
Senator Hollis French                                                                                                           
Senator Gretchen Guess                                                                                                          
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Senator Gene Therriault                                                                                                         
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
HOUSE BILL NO. 136                                                                                                              
"An  Act  restricting  the  authority   of  a  court  to  suspend                                                               
execution of  a sentence or  grant probation in  prosecutions for                                                               
driving while  under the influence  and prosecutions  for refusal                                                               
to submit to a chemical test;  and allowing a court to suspend up                                                               
to 75  percent of  the minimum fines  required for  driving while                                                               
under the influence and for refusal  to submit to a chemical test                                                               
if   the  defendant   successfully   completes  a   court-ordered                                                               
treatment program."                                                                                                             
                                                                                                                                
     MOVED HB 136 OUT OF COMMITTEE                                                                                              
                                                                                                                                
HOUSE BILL NO. 131                                                                                                              
"An Act  increasing the  criminal classification  of theft  of an                                                               
access   device   and   of  obtaining   an   access   device   or                                                               
identification  documents  by  fraudulent means;  increasing  the                                                               
criminal classification  for certain  cases of fraudulent  use of                                                               
an access device; and providing for an effective date."                                                                         
                                                                                                                                
     MOVED HB 131 OUT OF COMMITTEE                                                                                              
                                                                                                                                
CS FOR HOUSE BILL NO. 132(JUD)                                                                                                  
"An  Act  relating  to  certain   crimes  committed  against  the                                                               
elderly; and providing for an effective date."                                                                                  
                                                                                                                                
     MOVED SCS CSHB 132(JUD) OUT OF COMMITTEE                                                                                   
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: HB 136                                                                                                                  
SHORT TITLE: DRUNK DRIVING TREATMENT PROGRAM                                                                                    
SPONSOR(s): REPRESENTATIVE(s) ROKEBERG                                                                                          
                                                                                                                                
02/09/05       (H)       READ THE FIRST TIME - REFERRALS                                                                        
02/09/05       (H)       JUD, FIN                                                                                               
03/21/05       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/21/05       (H)       Moved Out of Committee                                                                                 
03/21/05       (H)       MINUTE(JUD)                                                                                            
03/22/05       (H)       JUD RPT 7DP                                                                                            
03/22/05       (H)       DP:    ANDERSON,     GRUENBERG,    KOTT,                                                               
                         DAHLSTROM, COGHILL, GARA, MCGUIRE                                                                      
03/22/05       (H)       LETTER OF INTENT WITH JUD REPORT                                                                       
04/07/05       (H)       FIN AT 1:30 PM HOUSE FINANCE 519                                                                       
04/07/05       (H)       Moved Out of Committee                                                                                 
04/07/05       (H)       MINUTE(FIN)                                                                                            
04/08/05       (H)       FIN RPT 9DP                                                                                            
04/08/05       (H)       DP: HAWKER, HOLM, FOSTER, STOLTZE,                                                                     
                         MOSES,    WEYHRAUCH,    KELLY,    MEYER,                                                               
                         CHENAULT                                                                                               
04/08/05       (H)       JUD LETTER OF INTENT WITH FIN REPORT                                                                   
04/12/05       (H)       TRANSMITTED TO (S)                                                                                     
04/12/05       (H)       VERSION: HB 136                                                                                        
04/13/05       (S)       READ THE FIRST TIME - REFERRALS                                                                        
04/13/05       (S)       JUD, FIN                                                                                               
04/20/05       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
04/20/05       (S)       Scheduled But Not Heard                                                                                
                                                                                                                                
BILL: HB 131                                                                                                                  
SHORT TITLE: ACCESS DEVICE & I.D. DOCUMENT CRIMES                                                                               
SPONSOR(s): REPRESENTATIVE(s) STOLTZE                                                                                           
                                                                                                                                
02/09/05       (H)       READ THE FIRST TIME - REFERRALS                                                                        
02/09/05       (H)       JUD, FIN                                                                                               
02/23/05       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
02/23/05       (H)       Scheduled But Not Heard                                                                                
03/02/05       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/02/05       (H)       Heard & Held                                                                                           
03/02/05       (H)       MINUTE(JUD)                                                                                            
03/18/05       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/18/05       (H)       Moved Out of Committee                                                                                 
03/18/05       (H)       MINUTE(JUD)                                                                                            
03/21/05       (H)       JUD RPT 4DP 2NR                                                                                        
03/21/05       (H)       DP:   GRUENBERG,    ANDERSON,   COGHILL,                                                               
                         MCGUIRE;                                                                                               
03/21/05       (H)       NR: KOTT, DAHLSTROM                                                                                    
04/01/05       (H)       FIN AT 1:30 PM HOUSE FINANCE 519                                                                       
04/01/05       (H)       <Bill Hearing Postponed to Mon 4/4/05>                                                                 
04/04/05       (H)       FIN AT 1:30 PM HOUSE FINANCE 519                                                                       
04/04/05       (H)       Moved Out of Committee                                                                                 
04/04/05       (H)       MINUTE(FIN)                                                                                            
04/05/05       (H)       FIN RPT 5DP 2NR                                                                                        
04/05/05       (H)       DP: HAWKER, FOSTER, STOLTZE, KELLY,                                                                    
                         MEYER;                                                                                                 
04/05/05       (H)       NR: HOLM, WEYHRAUCH                                                                                    
04/13/05       (H)       TRANSMITTED TO (S)                                                                                     
04/13/05       (H)       VERSION: HB 131                                                                                        
04/14/05       (S)       READ THE FIRST TIME - REFERRALS                                                                        
04/14/05       (S)       JUD, FIN                                                                                               
04/21/05       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
                                                                                                                                
BILL: HB 132                                                                                                                  
SHORT TITLE: CRIMES AGAINST ELDERLY                                                                                             
SPONSOR(s): REPRESENTATIVE(s) STOLTZE                                                                                           
                                                                                                                                
02/09/05       (H)       READ THE FIRST TIME - REFERRALS                                                                        
02/09/05       (H)       JUD, FIN                                                                                               
02/23/05       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
02/23/05       (H)       Heard & Held                                                                                           
02/23/05       (H)       MINUTE(JUD)                                                                                            
03/02/05       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/02/05       (H)       Moved CSHB 132(JUD) Out of Committee                                                                   
03/02/05       (H)       MINUTE(JUD)                                                                                            
03/03/05       (H)       JUD RPT CS(JUD) NT 4DP 1NR                                                                             
03/03/05       (H)       DP:    GRUENBERG,    DAHLSTROM,    GARA,                                                               
                         MCGUIRE;                                                                                               
03/03/05       (H)       NR: COGHILL                                                                                            
04/01/05       (H)       FIN AT 1:30 PM HOUSE FINANCE 519                                                                       
04/01/05       (H)       <Bill Hearing Postponed to Mon 4/4/05>                                                                 
04/04/05       (H)       FIN AT 1:30 PM HOUSE FINANCE 519                                                                       
04/04/05       (H)       Moved CSHB 132(JUD) Out of Committee                                                                   
04/04/05       (H)       MINUTE(FIN)                                                                                            
04/05/05       (H)       FIN RPT CS(JUD) NT 6DP 1NR                                                                             
04/05/05       (H)       DP: HAWKER, HOLM, STOLTZE, KELLY,                                                                      
                         FOSTER, MEYER;                                                                                         
04/05/05       (H)       NR: WEYHRAUCH                                                                                          
04/12/05       (H)       TRANSMITTED TO (S)                                                                                     
04/12/05       (H)       VERSION: CSHB 132(JUD)                                                                                 
04/13/05       (S)       READ THE FIRST TIME - REFERRALS                                                                        
04/13/05       (S)       JUD, FIN                                                                                               
04/21/05       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
Ms. Heather Nobrega                                                                                                             
Staff to Representative Rokeberg                                                                                                
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT:  Introduced HB 136                                                                                        
                                                                                                                                
Judge Jim Wanamaker                                                                                                             
Anchorage District Court                                                                                                        
PO Box 196650                                                                                                                   
Anchorage, AK 99519                                                                                                             
POSITION STATEMENT:  Testified in support of HB 136                                                                           
                                                                                                                                
Ms. Wendy Hamilton, Coordinator                                                                                                 
Juneau Therapeutic Court                                                                                                        
Juneau. AK 99801                                                                                                                
POSITION STATEMENT:  Testified in support of HB 136                                                                           
                                                                                                                                
Ms. Theresa Thompson, Community Development Manager                                                                             
United Way Tanana Valley                                                                                                        
POSITION STATEMENT:  Testified in support of HB 136                                                                           
                                                                                                                                
Representative Bill Stoltze                                                                                                     
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT:  Introduced HB 131 and HB 132                                                                             
                                                                                                                                
Mr. Ben Logan                                                                                                                   
Staff to Representative Stoltz                                                                                                  
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT:  Commented on HB 132                                                                                      
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
CHAIR  RALPH   SEEKINS  called  the  Senate   Judiciary  Standing                                                             
Committee meeting to  order at 8:38:14 AM.  Present were Senators                                                             
Hollis French,  Charlie Huggins, Gretchen Guess,  and Chair Ralph                                                               
Seekins.                                                                                                                        
                                                                                                                                
             HB 136-DRUNK DRIVING TREATMENT PROGRAM                                                                         
8:38:32 AM                                                                                                                    
MS.  HEATHER NOBREGA,  staff to  Representative Norman  Rokeberg,                                                               
introduced HB 136.  She explained HB 136  clarifies minimum fines                                                               
for the  courts, it  increases the amount  of minimum  fines that                                                               
can be waived for successful  graduates of therapeutic court, and                                                               
it expands therapeutic courts for felony DUI cases.                                                                             
                                                                                                                                
8:40:46 AM                                                                                                                    
JUDGE  JIM WANAMAKER  testified HB  136 provides  for therapeutic                                                               
courts  to  be created  by  local  initiatives. Anchorage  has  a                                                               
municipal  wellness court  as  well as  a  state wellness  court.                                                               
Ketchikan  and Juneau  will both  be  in operation  by summer  of                                                               
2005. If wellness  courts could be extended  to include felonies,                                                               
it would help to create a  workable volume of cases. HB 136 would                                                               
be a benefit to addressing  the population of addicted offenders.                                                               
Wellness court is an ideal vehicle to getting sober.                                                                            
                                                                                                                                
8:43:26 AM                                                                                                                    
CHAIR  SEEKINS  asked  Ms.  Nobrega whether  HB  136  would  stop                                                               
suspension of sentences.                                                                                                        
                                                                                                                                
MS. NOBREGA  answered the courts often  pose the 33 day  fine and                                                               
suspend 30 of  them. Technically the hanging sentence  is in case                                                               
of probation violation. HB 136  would allow courts to levy larger                                                               
fines but only suspend up to the minimum.                                                                                       
                                                                                                                                
SENATOR FRENCH  said the  law we  are considering  changing would                                                               
make certain everyone pays the  minimum fine, but HB 136 proposes                                                               
to suspend up  to 75 percent of the minimum  fine upon completion                                                               
of the wellness court.                                                                                                          
                                                                                                                                
MS. NOBREGA  advised the  reason for suspension  is a  carrot for                                                               
people as they go through the  system. They have to pay for every                                                               
aspect of the program so suspension  of 75 percent of the fine is                                                               
an incentive for them to fulfill the program.                                                                                   
                                                                                                                                
8:47:33 AM                                                                                                                    
JUDGE  WANAMAKER  agreed. The  defendant  pleads  guilty but  the                                                               
actual sentencing occurs later after graduation of the program.                                                                 
                                                                                                                                
SENATOR FRENCH  asked whether a second  driving while intoxicated                                                               
(DWI) offense would be considered a  second DWI or a second first                                                               
DWI.                                                                                                                            
                                                                                                                                
JUDGE WANAMAKER responded it would be considered a second DWI.                                                                  
                                                                                                                                
SENATOR FRENCH asked  why HB 136 felt it  necessary to strengthen                                                               
the fine aspect.                                                                                                                
                                                                                                                                
JUDGE WANAMAKER  said it  was merely firming  it up  so offenders                                                               
have to pay the minimum fine.                                                                                                   
                                                                                                                                
8:49:58 AM                                                                                                                    
SENATOR HUGGINS  asked the  process of  people wanting  to attend                                                               
therapeutic  court  when they  lack  the  means  to pay  for  the                                                               
program.                                                                                                                        
                                                                                                                                
JUDGE  WANAMAKER said  the  mechanism  is a  grant  fund where  a                                                               
totally indigent person could obtain up to $1,000.                                                                              
                                                                                                                                
SENATOR HUGGINS asked the total cost for the 18-month program.                                                                  
                                                                                                                                
JUDGE  WANAMAKER replied  it was  $7,000 and  the defendant  pays                                                               
$4,000 of it.                                                                                                                   
                                                                                                                                
8:51:49 AM                                                                                                                    
MS.  WENDY   HAMILTON,  Juneau  Therapeutic   Court  coordinator,                                                               
testified in support of HB 136.  The National Council on Drug and                                                               
Alcohol  Dependents employs  her.  The  Juneau therapeutic  court                                                               
will be  a misdemeanor and felony  court. It is often  the felons                                                               
who  are most  motivated to  attend the  program. It  has been  a                                                               
common practice for judges to  suspend the fine when they believe                                                               
the defendant  cannot afford  to pay.  People need  incentives in                                                               
order to attend wellness courts.                                                                                                
                                                                                                                                
8:53:43 AM                                                                                                                    
SENATOR FRENCH  offered the long-term consequences  of completion                                                               
of the program do not undo the conviction.                                                                                      
                                                                                                                                
MS.  HAMILTON agreed  it would  be  on the  person's record.  She                                                               
asserted chronic alcoholics get a  chance to go into recovery and                                                               
treatment for 18 months. Therapeutic  courts combine the power of                                                               
the court  with the power of  treatment. In the first  six months                                                               
the person  gets sober  and their life  starts to  change. People                                                               
start  getting self-esteem;  families' reunite  and they  support                                                               
each other  through a  support group.  People change  their lives                                                               
and that is a benefit to the public.                                                                                            
                                                                                                                                
8:56:30 AM                                                                                                                    
SENATOR  HUGGINS mentioned  DWI  implications  when traveling  in                                                               
Canada.                                                                                                                         
                                                                                                                                
MS.  HAMILTON  said Canada  is  tightening  up their  borders.  A                                                               
person  with  a   criminal  record  will  have   to  contact  the                                                               
authorities and also pay a fine  if allowed to travel through the                                                               
country.                                                                                                                        
                                                                                                                                
9:02:21 AM                                                                                                                    
MS. THERESA  THOMPSON, community development manager,  United Way                                                               
Tanana  Valley testified  the  United Way  supports  HB 136.  The                                                               
community  needs  wellness  courts.   The  United  Way  staged  a                                                               
campaign  to reduce  alcohol and  drug abuse  in Anchorage.  They                                                               
received  a drug-free  community  support grant  in  the form  of                                                               
$100,000 and  hope to  receive more.  The grant  will be  used to                                                               
create  multiple strategies  across  multiple  sectors to  combat                                                               
substance abuse.                                                                                                                
                                                                                                                                
9:04:17 AM                                                                                                                    
SENATOR  HUGGINS asked  Ms. Hamilton  the timeline  of the  grant                                                               
that was given to the Juneau Therapeutic Courts.                                                                                
                                                                                                                                
MS. HAMILTON explained  the current grant is for  three years. It                                                               
is  a  National   Highway  Safety  Transportation  Administration                                                               
(NHSTA) grant,  which is also  being used to start  the Ketchikan                                                               
and Fairbanks courts. There is  a strong possibly for renewal for                                                               
another three years.  This is NHSTA's approach  to fighting drunk                                                               
driving. Therapeutic courts work.                                                                                               
                                                                                                                                
JUDGE  WANAMAKER added  NHTSA is  actively pushing  federal money                                                               
down to the  states to help build therapeutic courts.  There is a                                                               
lot of  money available in  a discretionary  account so it  is an                                                               
opportune time to get it going.                                                                                                 
                                                                                                                                
9:08:09 AM                                                                                                                    
CHAIR SEEKINS noted the DOL said  this could lead to more trials,                                                               
which could be a fiscal impact.                                                                                                 
                                                                                                                                
SENATOR FRENCH  said it was a  good bill but he  was surprised to                                                               
learn that judges were suspending the fines.                                                                                    
                                                                                                                                
SENATOR  HUGGINS  moved HB  136  from  committee with  individual                                                               
recommendations  and  attached  fiscal note(s).  There  being  no                                                               
objection, the motion carried.                                                                                                  
                                                                                                                                
Chair Seekins announced a brief recess at 9:10:23 AM.                                                                         
Chair Seekins reconvened the meeting at 9:13:57 AM.                                                                           
                                                                                                                                
          HB 131-ACCESS DEVICE & I.D. DOCUMENT CRIMES                                                                       
                                                                                                                              
9:13:57 AM                                                                                                                    
CHAIR SEEKINS announced HB 131 to be up for consideration.                                                                      
                                                                                                                                
9:14:19 AM                                                                                                                    
REPRESENTATIVE BILL  STOLZ introduced HB  131. He pointed  out HB                                                               
131  works  alongside HB  132  to  protect Alaskan  seniors  from                                                               
people who  would target  them through  fraudulent means.  HB 131                                                               
deals  with access.  There  is a  growing  crime against  seniors                                                               
because of their  vulnerability. Though the monetary  loss is not                                                               
always substantial, the hassle of  cleaning up damaged credit and                                                               
the damage to a person's good  name is time consuming. Having the                                                               
crime  increased   to  a  felony  increases   the  likelihood  of                                                               
prosecution.                                                                                                                    
                                                                                                                                
9:17:28 AM                                                                                                                    
REPRESENTATIVE STOLTZE asserted protection  of seniors implores a                                                               
special  elevation of  protection.  The Department  of Law  (DOL)                                                               
supports both HB 131 and HB 132.                                                                                                
                                                                                                                                
9:21:47 AM                                                                                                                    
SENATOR  GUESS asked  whether  the State  of  Alaska has  similar                                                               
penalties for crimes against the mentally disabled.                                                                             
                                                                                                                                
REPRESENTATIVE STOLTZE said he did not know.                                                                                    
                                                                                                                                
9:22:53 AM                                                                                                                    
MR. RANDY  RUARO, attorney, DOL  testified the  criminal division                                                               
supports HB 131. Identity theft is a growing problem in Alaska.                                                                 
                                                                                                                                
SENATOR  GUESS  asked  Mr.  Ruaro for  a  definition  of  "access                                                               
device."                                                                                                                        
                                                                                                                                
MR. RUARO answered it is defined in AS 11.81.900(b)(1).                                                                         
                                                                                                                                
9:24:39 AM                                                                                                                    
SENATOR  GUESS  noted there  were  zero  fiscal notes  and  asked                                                               
whether the DOL anticipated prosecuting more people.                                                                            
                                                                                                                                
MR. RUARO  responded HB 131  elevates current crimes that  are on                                                               
the books. Resources are currently dedicated to the effort.                                                                     
                                                                                                                                
SENATOR  FRENCH offered  most cases  a perpetrator  has to  cause                                                               
$500 minimum damage to qualify for  felony. HB 131 sets the level                                                               
at $50. He asked Mr. Ruaro to comment.                                                                                          
                                                                                                                                
MR. RUARO deferred the question to John Skidmore.                                                                               
                                                                                                                                
9:26:42 AM                                                                                                                    
MR. JOHN  SKIDMORE, supervisor,  felony property  unit, Anchorage                                                               
District Attorney's office, advised  forgery in the second degree                                                               
includes the identity crime of  check stealing. The amount of the                                                               
written  check does  not  matter.  It is  still  a felony.  Fifty                                                               
dollars is the median used by other states.                                                                                     
                                                                                                                                
9:30:03 AM                                                                                                                    
MS.  MICHELE  LOGAN,   detective,  Anchorage  Police  Department,                                                               
testified in support of HB  131. Identity theft reports have been                                                               
increasing.  Unauthorized  use of  credit  cards  is what  police                                                               
officers   most  commonly   see.  Many   stores  don't   ask  for                                                               
identification  to match  the credit  card. She  feels that  1978                                                               
statutes are out of date with today's monetary transactions.                                                                    
                                                                                                                                
9:35:22 AM                                                                                                                    
SENATOR FRENCH asked Ms. Logan whether  a bank check is an access                                                               
device.                                                                                                                         
                                                                                                                                
MS.  LOGAN responded  yes. A  bank  account number  is an  access                                                               
device.                                                                                                                         
                                                                                                                                
MR. SKIDMORE concurred.                                                                                                         
                                                                                                                                
9:40:21 AM                                                                                                                    
MS.  MARIE DARLEN  testified  the AARP  Capitol  City Task  Force                                                               
fully supports  HB 131.  They operate  an educational  program on                                                               
identity theft throughout the state.                                                                                            
                                                                                                                                
CHAIR SEEKINS closed public testimony.                                                                                          
                                                                                                                                
SENATOR  HUGGINS  moved HB  131  from  committee with  individual                                                               
recommendations  and  attached  fiscal note(s).  There  being  no                                                               
objection, the motion carried.                                                                                                  
                                                                                                                                
Chair Seekins announced a brief recess at 9:43:35 AM.                                                                         
Chair Seekins reconvened the meeting at 9:49:36 AM.                                                                           
                                                                                                                                
              CSHB 132(JUD)-CRIMES AGAINST ELDERLY                                                                          
9:49:36 AM                                                                                                                    
CHAIR SEEKINS announced HB 132 to be up for consideration.                                                                      
                                                                                                                                
REPRESENTATIVE  BILL  STOLTZ introduced  HB  132  and advised  it                                                               
increases  fines for  offenses  against the  elderly. Elderly  is                                                               
defined  as 65  or  older.  It is  meant  for  people who  target                                                               
seniors.                                                                                                                        
                                                                                                                                
9:49:49 AM                                                                                                                    
MR.  RANDY RUARO,  attorney, Department  of  Law (DOL)  expressed                                                               
support for HB 132.                                                                                                             
                                                                                                                                
SENATOR GUESS  asked Mr.  Ruaro whether the  State of  Alaska has                                                               
similar enhanced penalties for the mentally disabled.                                                                           
                                                                                                                                
MR. RUARO  advised there is  an aggravator in statute  for people                                                               
who are particularly vulnerable. He  is not sure how routinely it                                                               
is applied.                                                                                                                     
                                                                                                                                
SENATOR  GUESS asked  the reason  HB 132  is looking  at enhanced                                                               
penalties versus aggravators.                                                                                                   
                                                                                                                                
MR. RUARO admitted he found one  case where the court ignored the                                                               
aggravator and  fashioned the sentence  within the  normal range.                                                               
HB 132 elevates the attention of the court.                                                                                     
                                                                                                                                
SENATOR  FRENCH  advised  the aggravator  for  the  "particularly                                                               
vulnerable"  singles  out  age and  infirmity  and  possibly  the                                                               
mentally  challenged. There  are prongs  in sex  assault statute,                                                               
which makes it a separate crime to rape a vulnerable victim.                                                                    
                                                                                                                                
9:52:22 AM                                                                                                                    
SENATOR  FRENCH asked  Mr. Ruaro  how  HB 132  ties into  Blakely                                                               
versus Washington.  He asked whether  the elements would  have to                                                               
be alleged in the complaint and proven to the jury.                                                                             
                                                                                                                                
MR. RUARO said yes.                                                                                                             
                                                                                                                                
SENATOR  FRENCH  noted the  jury  would  have  to find  that  the                                                               
defendant either  knew or should  have known that the  victim was                                                               
over 65.                                                                                                                        
                                                                                                                                
MR. RUARO agreed.                                                                                                               
                                                                                                                                
SENATOR FRENCH  asked whether he  paraphrased the  mental element                                                               
correctly.                                                                                                                      
                                                                                                                                
MR.  RUARO   clarified  the  element  was   actually  "recklessly                                                               
disregard."  He  did not  know  whether  that was  equivalent  to                                                               
"known or should have known."                                                                                                   
                                                                                                                                
SENATOR  FRENCH asked  Mr. Ruaro  to tell  the committee  how the                                                               
court would define "recklessly disregard."                                                                                      
                                                                                                                                
MR.  RUARO said  the definition  of reckless  conduct was  in the                                                               
statutes. The  jury would be  given an instruction and  told they                                                               
would have to  find beyond a reasonable doubt  that the defendant                                                               
acted with that mental state in committing the crime.                                                                           
                                                                                                                                
9:54:16 AM                                                                                                                    
MR.  BEN   LOGAN,  staff  to   Representative  Stoltz   read  the                                                               
definition  for "recklessly  disregard"  under  AS 11.81.900  (a)                                                               
(3).                                                                                                                            
                                                                                                                                
CHAIR SEEKINS  noted there was  no one slated to  testify against                                                               
HB 132. He closed public testimony.                                                                                             
                                                                                                                                
SENATOR  GUESS suggested  the committee  look at  the intent  and                                                               
findings  section. She  noted Senator  Therriault would  normally                                                               
strike the intent and findings  section when not needed for legal                                                               
reasons.                                                                                                                        
                                                                                                                                
CHAIR SEEKINS agreed.                                                                                                           
                                                                                                                                
MR. RUARO admitted the intent  and findings language in Section 1                                                               
was not a  critical part of HB 132. However  the courts in Alaska                                                               
do look  at intent and  findings. In  this case the  findings are                                                               
short and the  judge looking back would see  what legislature was                                                               
concerned with.                                                                                                                 
                                                                                                                                
SENATOR FRENCH said the people  reviewing HB 132 would understand                                                               
the  Legislature's intent  is to  penalize more  severely because                                                               
elderly   victims  suffer   disproportionately   to  the   normal                                                               
individual.                                                                                                                     
                                                                                                                                
SENATOR GUESS moved Amendment 1.                                                                                                
     Strike Section 1.                                                                                                          
Hearing no objections, the motion carried.                                                                                      
                                                                                                                                
9:59:53 AM                                                                                                                    
SENATOR  HUGGINS  moved SCS  CSHB  132(JUD)  from committee  with                                                               
individual  recommendations and  attached  fiscal note(s).  There                                                               
being no objection, the motion carried.                                                                                         
                                                                                                                                
There being no further business  to come before the committee, he                                                               
adjourned the meeting at 10:01:09 AM.                                                                                         
                                                                                                                                

Document Name Date/Time Subjects