Legislature(2011 - 2012)BELTZ 105 (TSBldg)

04/04/2011 01:30 PM JUDICIARY


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01:33:37 PM Start
01:34:12 PM Confirmation Hearing|| Parole Board
01:41:47 PM HB116
01:50:33 PM SB78
01:56:04 PM SB30
02:16:53 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Board Confirmations: Parole Board TELECONFERENCED
+ HB 116 CORRECT SPELLING OF LORAZEPAM/OXYMORPHONE TELECONFERENCED
Moved HB 116 am Out of Committee
+= SB 30 RETURN OF SEIZED PROPERTY TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
= SB 78 LIQUOR LICENSE HOLDER LIABILITY
Moved CSSB 78(JUD) Out of Committee
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                         April 4, 2011                                                                                          
                           1:33 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                              
                                                                                                                                
Senator Hollis French, Chair                                                                                                    
Senator Bill Wielechowski, Vice Chair                                                                                           
Senator Joe Paskvan                                                                                                             
Senator Lesil McGuire                                                                                                           
Senator John Coghill                                                                                                            
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
CONFIRMATION HEARING                                                                                                            
     Parole Board                                                                                                             
          Sarah J. Possenti                                                                                                     
                                                                                                                                
     - CONFIRMATION ADVANCED                                                                                                    
                                                                                                                                
HOUSE BILL NO. 116 AM                                                                                                           
"An Act  making corrective  amendments to  the Alaska  Statutes as                                                              
recommended  by   the  revisor  of  statutes  by   correcting  the                                                              
spellings  of  'oxymorphone'  and  'lorazepam'  and  providing  an                                                              
applicability section; and providing for an effective date."                                                                    
                                                                                                                                
     - MOVED HB 116 AM OUT OF COMMITTEE                                                                                         
                                                                                                                                
SENATE BILL NO. 78                                                                                                              
"An Act relating to liability of certain limited liability                                                                      
organizations holding liquor licenses."                                                                                         
                                                                                                                                
     - MOVED CSSB 78(JUD) OUT OF COMMITTEE                                                                                      
                                                                                                                                
SENATE BILL NO. 30                                                                                                              
"An Act providing for the release of certain property in the                                                                    
custody of a law enforcement agency to the owner under certain                                                                  
conditions."                                                                                                                    
                                                                                                                                
     - HEARD & HELD                                                                                                             
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: SB  78                                                                                                                  
SHORT TITLE: LIQUOR LICENSE HOLDER LIABILITY                                                                                    
SPONSOR(s): SENATOR(s) MCGUIRE BY REQUEST                                                                                       
                                                                                                                                
02/04/11       (S)       READ THE FIRST TIME - REFERRALS                                                                        
02/04/11       (S)       L&C, JUD                                                                                               
03/22/11       (S)       L&C AT 2:00 PM BELTZ 105 (TSBldg)                                                                      
03/22/11       (S)       Heard & Held                                                                                           
03/22/11       (S)       MINUTE(L&C)                                                                                            
03/29/11       (S)       L&C AT 2:00 PM BELTZ 105 (TSBldg)                                                                      
03/29/11       (S)       Moved SB  78 Out of Committee                                                                          
03/29/11       (S)       MINUTE(L&C)                                                                                            
03/30/11       (S)       L&C RPT 5DP                                                                                            
03/30/11       (S)       DP: EGAN, GIESSEL, DAVIS, PASKVAN,                                                                     
                         MENARD                                                                                                 
04/01/11       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
04/01/11       (S)       Heard & Held                                                                                           
04/01/11       (S)       MINUTE(JUD)                                                                                            
04/04/11       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
                                                                                                                                
BILL: HB 116                                                                                                                  
SHORT TITLE: CORRECT SPELLING OF LORAZEPAM/OXYMORPHONE                                                                          
SPONSOR(s): RULES BY REQUEST OF LEGISLATIVE COUNCIL                                                                             
                                                                                                                                
01/21/11       (H)       READ THE FIRST TIME - REFERRALS                                                                        
01/21/11       (H)       JUD                                                                                                    
02/16/11       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
02/16/11       (H)       Moved Out of Committee                                                                                 
02/16/11       (H)       MINUTE(JUD)                                                                                            
02/18/11       (H)       JUD RPT 5DP                                                                                            
02/18/11       (H)       DP: LYNN, THOMPSON, PRUITT, KELLER,                                                                    
                         GATTO                                                                                                  
03/25/11       (H)       TRANSMITTED TO (S)                                                                                     
03/25/11       (H)       VERSION: HB 116 AM                                                                                     
03/28/11       (S)       READ THE FIRST TIME - REFERRALS                                                                        
03/28/11       (S)       JUD                                                                                                    
04/04/11       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
                                                                                                                                
BILL: SB  30                                                                                                                  
SHORT TITLE: RETURN OF SEIZED PROPERTY                                                                                          
SPONSOR(s): DYSON                                                                                                               
                                                                                                                                
01/19/11       (S)       PREFILE RELEASED 1/7/11                                                                                
01/19/11       (S)       READ THE FIRST TIME - REFERRALS                                                                        
01/19/11       (S)       STA, JUD                                                                                               
02/03/11       (S)       STA AT 9:00 AM BUTROVICH 205                                                                           
02/03/11       (S)       Heard & Held                                                                                           
02/03/11       (S)       MINUTE(STA)                                                                                            
02/17/11       (S)       STA AT 9:00 AM BUTROVICH 205                                                                           
02/17/11       (S)       Moved CSSB  30(STA) Out of Committee                                                                   
02/17/11       (S)       MINUTE(STA)                                                                                            
02/21/11       (S)       STA RPT CS  4DP 1NR    NEW TITLE                                                                       
02/21/11       (S)       DP: KOOKESH, PASKVAN, MEYER, GIESSEL                                                                   
02/21/11       (S)       NR: WIELECHOWSKI                                                                                       
02/28/11       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
02/28/11       (S)       Heard & Held                                                                                           
02/28/11       (S)       MINUTE(JUD)                                                                                            
03/18/11       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
03/18/11       (S)       Heard & Held                                                                                           
03/18/11       (S)       MINUTE(JUD)                                                                                            
03/21/11       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
03/21/11       (S)       Moved CSSB  30(JUD) Out of Committee                                                                   
03/21/11       (S)       MINUTE(JUD)                                                                                            
03/22/11       (S)       JUD RPT CS  2DP 2NR    NEW TITLE                                                                       
03/22/11       (S)       DP: FRENCH, COGHILL                                                                                    
03/22/11       (S)       NR: WIELECHOWSKI, PASKVAN                                                                              
03/22/11       (S)       FIN REFERRAL ADDED AFTER JUD                                                                           
03/25/11       (S)       RETURNED TO JUD COMMITTEE                                                                              
04/04/11       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
SARAH POSSENTI, Appointee                                                                                                       
Parole Board                                                                                                                    
Anchorage, AK                                                                                                                   
POSITION STATEMENT:  Testified as appointee to the Parole Board                                                               
                                                                                                                                
JERRY LUCKHAUPT, Assistant Revisor of Statutes                                                                                  
Alaska Legal Services                                                                                                           
Legislative Affairs Agency                                                                                                      
POSITION STATEMENT:  Introduced HB 116 on behalf of Rules by                                                                  
request of Legislative Council.                                                                                                 
                                                                                                                                
DOUGLAS MOODY, Deputy Public Defender                                                                                           
Public Defender Agency                                                                                                          
Anchorage, AK                                                                                                                   
POSITION STATEMENT:  Suggested a change to SB 30.                                                                             
                                                                                                                                
CHARLES KOPP, Staff                                                                                                             
Senator Fred Dyson                                                                                                              
Alaska State Legislature                                                                                                        
Juneau, AK                                                                                                                      
POSITION STATEMENT:   Explained  the amendment that  DOL suggested                                                            
to SB 30.                                                                                                                       
                                                                                                                                
ANNE CARPENETI, Assistant Attorney General                                                                                      
Criminal Division                                                                                                               
Department  of Law  (DOL)  said  Attorney General  Burns  believes                                                              
that the language in subsection                                                                                                 
POSITION  STATEMENT:  Testified  that the  language in  subsection                                                            
(d) of version D for SB 30 is too restrictive.                                                                                  
                                                                                                                                
DOUGLAS MOODY, Assistant Public Defender                                                                                        
Public Defender Agency                                                                                                          
said he believes that                                                                                                           
POSITION  STATEMENT:   Offered  his belief  that  the language  in                                                            
subsection (c)(2) of SB 30 will breed problems.                                                                                 
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
1:33:37 PM                                                                                                                    
CHAIR  HOLLIS   FRENCH  called   the  Senate  Judiciary   Standing                                                            
Committee  meeting  to  order  at   1:33  p.m.  Senators  Coghill,                                                              
Wielechowski,  Paskvan, McGuire,  and French  were present  at the                                                              
call to order.                                                                                                                  
                                                                                                                                
                                                                                                                              
                     ^CONFIRMATION HEARING                                                                                  
                         ^PAROLE BOARD                                                                                      
                                                                                                                              
1:34:12 PM                                                                                                                  
CHAIR  FRENCH announced  the first  order of  business would  be a                                                              
confirmation  hearing.   He  asked   Ms.  Possenti  to   tell  the                                                              
committee about her interest in serving on the Parole Board.                                                                    
                                                                                                                                
1:34:32 PM                                                                                                                    
SARAH  POSSENTI,  Appointee, Parole  Board,  stated  that she  was                                                              
born and  raised in Fairbanks  and received bachelors'  degrees in                                                              
criminal   justice   and  social   work   at   UAF.  She   was   a                                                              
probation/parole officer  for 11 years  and after she  reduced her                                                              
work hours she became interested in serving on the parole board.                                                                
                                                                                                                                
CHAIR FRENCH  asked if she has  attended Parole Board  hearings in                                                              
the capacity of a member.                                                                                                       
                                                                                                                                
MS. POSSENTI replied she has observed hearings.                                                                                 
                                                                                                                                
CHAIR FRENCH asked  if all her time as a  probation/parole officer                                                              
was spent in the Fairbanks area.                                                                                                
                                                                                                                                
MS.  POSSENTI  said  yes;  she   specialized  in  supervising  sex                                                              
offenders for  eight years  when she was  in the field  office and                                                              
she  worked in  an institution  as  a probation  officer the  last                                                              
three years.                                                                                                                    
                                                                                                                                
CHAIR FRENCH  asked if  she made  recommendations for  and against                                                              
granting parole  or simply provided information when  she appeared                                                              
before the Parole Board as a probation officer.                                                                                 
                                                                                                                                
MS.  POSSENTI  replied  she made  recommendations  both  when  she                                                              
worked  in   the  field  office   and  when  she  worked   in  the                                                              
institution.  When she  was in the  field office  she went  before                                                              
the Parole Board  primarily for parole violations.  She would make                                                              
recommendations  about  release,  treatment,  halfway  houses,  or                                                              
some combination.  As an  institutional parole  officer she  would                                                              
write   reports   and   make   recommendations    about   granting                                                              
discretionary parole.                                                                                                           
                                                                                                                                
1:38:05 PM                                                                                                                    
CHAIR FRENCH said  he's pleased that she has  extensive experience                                                              
working  with  sex offenders  and  can  bring insight  into  their                                                              
behavior.                                                                                                                       
                                                                                                                                
MS. POSSENTI added  that when she worked in the  sex offender unit                                                              
she  co-facilitated the  treatment  groups  and attended  numerous                                                              
trainings.  When  polygraphs  were implemented  in  Fairbanks  she                                                              
worked  with  the  Colorado  unit  and  learned  about  wraparound                                                              
services that ensure  that all areas of a sex  offender's life are                                                              
being watched.                                                                                                                  
                                                                                                                                
CHAIR FRENCH  noted that  Senator McGuire  was an early  proponent                                                              
of the  containment model  and spent  considerable time  educating                                                              
others to  its benefits.  Finding no  further questions,  he asked                                                              
for a motion.                                                                                                                   
                                                                                                                                
1:39:54 PM                                                                                                                    
SENATOR WIELECHOWSKI  moved to forward the name  Sarah Possenti to                                                              
the  full body  for consideration.  There being  no objection,  it                                                              
was so ordered.                                                                                                                 
                                                                                                                                
CHAIR  FRENCH noted  that Senator  Coghill asked  to speak  to the                                                              
previous name that the committee forwarded.                                                                                     
                                                                                                                                
1:40:28 PM                                                                                                                    
SENATOR COGHILL said  he wanted to apologize to  the committee for                                                              
voting "Yes" on  the appointment of Don Haase when  the motion was                                                              
for the  committee to  vote "No"  on the  appointment. He  said he                                                              
removed   his  objection   thinking  that   the  motion   was  for                                                              
individual   recommendations.  He   extended  apologizes   to  the                                                              
committee and to Mr. Haase who he does support.                                                                                 
                                                                                                                                
CHAIR FRENCH  said no  apology is necessary  and everyone  is free                                                              
to vote as they like on the floor.                                                                                              
                                                                                                                                
        HB 116-CORRECT SPELLING OF LORAZEPAM/OXYMORPHONE                                                                    
                                                                                                                                
1:41:47 PM                                                                                                                    
CHAIR FRENCH announced  the consideration of HB 116  and asked Mr.                                                              
Luckhaupt to tell the committee why this needs to be a bill.                                                                    
                                                                                                                                
1:42:12 PM                                                                                                                    
JERRY  LUCKHAUPT,  Assistant  Revisor of  Statutes,  Alaska  Legal                                                              
Services, Legislative  Affairs Agency, explained that  these drugs                                                              
were  misspelled   in  the  initial  1981  drafting   request.  He                                                              
intended  to correct  the misspellings  in  the regular  revisor's                                                              
bill, but  he had to insert  an applicability section  and decided                                                              
it was  better to address the  issue separately. The  intention is                                                              
to  do  no  harm  to  the  criminal   law  and  express  that  the                                                              
Legislature  did  not  intend to  criminalize  the  possession  of                                                              
something  that doesn't  exist.  It appears  that the  Legislature                                                              
intended to include these other drugs back then, he stated.                                                                     
                                                                                                                                
CHAIR  FRENCH  asked Mr.  Moody  if  anyone was  prosecuted  under                                                              
these misspellings or if it was grounds for dismissal.                                                                          
                                                                                                                                
1:44:07 PM                                                                                                                    
DOUGLAS  MOODY, Deputy  Public Defender,  Public Defender  Agency,                                                              
said he  doesn't recall  the misspellings being  an issue,  but he                                                              
can't  say  with 100  percent  certainty  that  no case  was  ever                                                              
dismissed  because of  the misspelling.  "I  certainly would  have                                                              
argued  it if  I'd had  a  lorazepam case  and  realized that  the                                                              
statute was misspelled," he added.                                                                                              
                                                                                                                                
CHAIR FRENCH asked  Mr. Luckhaupt if he's absolutely  certain that                                                              
lorazepam and oxymorphone are spelled correctly this time.                                                                      
                                                                                                                                
MR. LUCKHAUPT answered  yes and added that oxymorphone  is spelled                                                              
both  ways on  the  DEA website  so  it took  more  than a  little                                                              
research to get that one straight.                                                                                              
                                                                                                                                
1:45:44 PM                                                                                                                    
SENATOR  WIELECHOWSKI  referenced  the  applicability  section  on                                                              
page  4 and  questioned  the legality  of  applying  it to  crimes                                                              
committed before, on, or after the effective date.                                                                              
                                                                                                                                
MR. LUCKHAUPT  explained that this  attempts to clarify  that this                                                              
is  what the  Legislature meant  when it  added the  drugs to  the                                                              
statutes  in 1982.  Both lorazepam  and oxymorphone  were part  of                                                              
the federal  schedules at  the time and  this clarification  is an                                                              
attempt to  avoid calling into question  anyone who may  have been                                                              
prosecuted  under the  misspellings.  It states  the intent  then,                                                              
the intent now, and the intent in the future.                                                                                   
                                                                                                                                
CHAIR FRENCH asked to what oxymorphone refers.                                                                                  
                                                                                                                                
MR. LUCKHAUPT replied  it's a semi-synthetic opioid  that is often                                                              
used intravenously  as a  pain medication.  Lorazepam is  marketed                                                              
under the name "Ativan" and is used to relieve anxiety.                                                                         
                                                                                                                                
CHAIR FRENCH commented that in high doses it's a tranquilizer.                                                                  
                                                                                                                                
CHAIR FRENCH  found no further  questions, discussion,  or concern                                                              
and asked for a motion.                                                                                                         
                                                                                                                                
1:49:02 PM                                                                                                                    
SENATOR  WIELECHOWSKI moved  to report  HB 116  am from  committee                                                              
with individual recommendations and attached fiscal note(s).                                                                    
                                                                                                                                
CHAIR FRENCH  announced that  without objection,  HB 116  am moved                                                              
from the Senate Judiciary Standing Committee.                                                                                   
                                                                                                                                
At ease from 1:49 p.m. to 1:50 p.m.                                                                                             
                                                                                                                                
             SB  78-LIQUOR LICENSE HOLDER LIABILITY                                                                         
                                                                                                                              
1:50:33 PM                                                                                                                    
CHAIR FRENCH announced  the consideration of SB 78  and noted that                                                              
Senator  Paskvan  had  an  amendment  to  offer.  He  removed  his                                                              
objection  to the adoption  of the  CS that  was pending  from the                                                              
previous  hearing and  announced  that version  B  was before  the                                                              
committee.                                                                                                                      
                                                                                                                                
1:51:12 PM                                                                                                                    
SENATOR  PASKVAN   moved  to  adopt   Amendment  1,   labeled  27-                                                              
LS0282\B.1.                                                                                                                     
                                                                                                                                
CHAIR FRENCH objected for discussion purposes.                                                                                  
                                                                                                                                
SENATOR PASKVAN  explained that  the purpose  of the amendment  is                                                              
to limit  the liability exposure  to the owner's  insurance policy                                                              
and/or the taxicab  or limousine company's insurance  policy under                                                              
SB  78.  The   service  doesn't  fall  entirely   under  the  Good                                                              
Samaritan concept  because the professional company  is being paid                                                              
for  the service  it provides.  Professional  drivers are  engaged                                                              
and it  makes sense that the  company's insurance  coverage should                                                              
respond if their drivers hurt someone.                                                                                          
                                                                                                                                
CHAIR  FRENCH summarized  that  this  puts the  taxicab  company's                                                              
insurance  in place  if  the vehicle  owner's  insurance isn't  in                                                              
place when a driver delivers the vehicle home.                                                                                  
                                                                                                                                
SENATOR PASKVAN clarified that it's potentially both policies.                                                                  
                                                                                                                                
CHAIR  FRENCH  asked  Senator  McGuire  if  she'd  looked  at  the                                                              
amendment.                                                                                                                      
                                                                                                                                
1:52:48 PM                                                                                                                    
SENATOR MCGUIRE  said she  doesn't know  the implications  for the                                                              
program, but  at this stage  she's willing  to accept it  and move                                                              
forward.                                                                                                                        
                                                                                                                                
CHAIR  FRENCH  said  he'd  like  to know  if  it  jeopardizes  the                                                              
program.  He  added  that  he  initially  wasn't  aware  that  the                                                              
companies  are paid  to drive these  cars home.  Because they  are                                                              
being  paid and  these  are professional  drivers,  it seems  less                                                              
likely  that the  taxicab  company would  object  to having  their                                                              
insurance in place.                                                                                                             
                                                                                                                                
CHAIR  FRENCH removed  his objection  and announced  that with  no                                                              
further  objection  Amendment 1  is  adopted. Finding  no  further                                                              
discussion, he asked for a motion.                                                                                              
                                                                                                                                
1:54:06 PM                                                                                                                    
SENATOR WIELECHOWSKI  moved to report  CS for SB 78, version  B as                                                              
amended,  from  committee  with   individual  recommendations  and                                                              
attached fiscal note(s).                                                                                                        
                                                                                                                                
CHAIR  FRENCH  announced  that  without  objection,  CSSB  78(JUD)                                                              
moved from the Senate Judiciary Standing Committee.                                                                             
                                                                                                                                
At ease from 1:54 p.m. to 1:56 p.m.                                                                                             
                                                                                                                                
                SB  30-RETURN OF SEIZED PROPERTY                                                                            
                                                                                                                                
1:56:04 PM                                                                                                                    
CHAIR FRENCH  announced the consideration  of SB 30 and  asked for                                                              
a motion to adopt the proposed committee substitute (CS).                                                                       
                                                                                                                                
SENATOR WIELECHOWSKI  moved to  adopt the proposed  CS for  SB 30,                                                              
labeled 27-LS0344\E, as the working document.                                                                                   
                                                                                                                                
CHAIR  FRENCH  objected  for discussion  purposes  and  asked  the                                                              
sponsor to tell the committee what the new CS does.                                                                             
                                                                                                                                
1:56:47 PM                                                                                                                    
SENATOR FRED  DYSON, sponsor of  SB 30, stated that  the committee                                                              
reported  the bill  from committee  on 3/21/11  and subsequent  to                                                              
that  the Department  of  Law (DOL)  contacted  him  to suggest  a                                                              
change in  language. He agreed and  the bill was returned  to this                                                              
committee to potentially adopt the proposed amendment.                                                                          
                                                                                                                                
1:57:21 PM                                                                                                                    
CHARLES  KOPP, staff  to Senator  Fred Dyson,  explained that  the                                                              
amendment makes the following changes to version D:                                                                             
                                                                                                                                
Page 2,  line 6, insert  the following  sentence at  the beginning                                                              
of subsection  (c): "At the hearing,  a party that objects  to the                                                              
return of the property shall state the reason on the record."                                                                   
                                                                                                                                
Page 2, line 11,  delete the words "is authorized"  and insert the                                                              
word "needs"                                                                                                                    
                                                                                                                                
Page 2, line  12, following the word "property"  insert the phrase                                                              
"for evidentiary purposes as authorized in this chapter."                                                                       
                                                                                                                                
Page 2,  lines 13-18,  delete the language  in subsection  (d) and                                                              
insert the following language:                                                                                                  
       If  the court  orders the  return of  the property  to                                                                   
     the  crime  victim,  the  court  may  impose  reasonable                                                                   
     conditions on  the return. Those conditions  may include                                                                   
     an  order that  the crime  victim retain  and store  the                                                                   
     property so  that the property  is available  for future                                                                   
     court  hearings, requiring  photographs of the  property                                                                   
     to  be   taken,  or  any   other  condition   the  court                                                                   
     considers   necessary   to  maintain   the   evidentiary                                                                   
     integrity of the property.                                                                                                 
                                                                                                                                
1:59:45 PM                                                                                                                    
CHAIR FRENCH  asked Ms.  Carpeneti to  discuss DOL's reasoning  in                                                              
suggesting the changes.                                                                                                         
                                                                                                                                
2:00:09 PM                                                                                                                    
ANNE  CARPENETI, Assistant  Attorney  General, Criminal  Division,                                                              
Department  of Law  (DOL)  said  Attorney General  Burns  believes                                                              
that  the  language  in  subsection   (d)  of  version  D  is  too                                                              
restrictive.  DOL  agreed and  suggested  a  redraft to  give  the                                                              
court more  discretion in  ordering conditions  for the  return of                                                              
evidence in individual cases.                                                                                                   
                                                                                                                                
CHAIR  FRENCH  noted  a  letter   of  support  from  the  National                                                              
Federation  of Independent Businesses.  He asked  Mr. Moody  if he                                                              
had reviewed the bill and had any suggestions to offer.                                                                         
                                                                                                                                
DOUGLAS  MOODY,   Assistant  Public   Defender,  Public   Defender                                                              
Agency, said  he believes that  the language in  subsection (c)(2)                                                              
on page 2 will  breed problems because the law  enforcement agency                                                              
and  the defense  are frequently  are at  odds as  to whether  the                                                              
evidence should  be retained. The  defense should be able  to make                                                              
its own case at the hearing.                                                                                                    
                                                                                                                                
CHAIR FRENCH asked what he is suggesting.                                                                                       
                                                                                                                                
MR. MOODY suggested the following language:                                                                                     
           the law enforcement agency for the defendant in                                                                      
     a criminal  case fails  to prove  by a preponderance  of                                                                   
     the  evidence   that  the  agency,  the   defendant,  or                                                                   
     another interested party …                                                                                                 
                                                                                                                                
We don't want DOL  to carry our water, he said.  It's our need and                                                              
our burden and it should fall on us.                                                                                            
                                                                                                                                
2:05:10 PM                                                                                                                    
CHAIR FRENCH asked the sponsor to respond.                                                                                      
                                                                                                                                
MR. KOPP said he  hasn't discussed this with the  sponsor, but the                                                              
suggested language  seems to  be consistent  with the  language in                                                              
subsection (b) on page 1 as to who gets notice.                                                                                 
                                                                                                                                
SENATOR DYSON  said he  sees no  harm listing  the defense  in the                                                              
first paragraph on page 1.                                                                                                      
                                                                                                                                
2:07:53 PM                                                                                                                    
CHAIR FRENCH called an at ease from 2:07 p.m. to 2:10 p.m.                                                                      
                                                                                                                                
2:10:57 PM                                                                                                                    
CHAIR  FRENCH   said  there's  a   suggestion  to  add   both  the                                                              
prosecution and the defense on page 2, line 11.                                                                                 
                                                                                                                                
MR. KOPP  pointed out that  page 2, line  6, says that  anyone who                                                              
objects to  the return of the  evidence shall state the  reason on                                                              
the record. The inference is that it's coming before the court.                                                                 
                                                                                                                                
CHAIR FRENCH  said he  believes it  needs to  be redrafted  to say                                                              
that the  court has  found that  in the  interest of justice  it's                                                              
appropriate  to release  the property.  It  seems odd  to say  all                                                              
three have to overcome their own burden.                                                                                        
                                                                                                                                
2:12:11 PM                                                                                                                    
SENATOR WIELECHOWSKI  said another  suggestion is to  replace "the                                                              
law enforcement agency"  with "the party that objects"  to put the                                                              
burden of the preponderance of the evidence onto that party.                                                                    
                                                                                                                                
CHAIR FRENCH said that makes it clear.                                                                                          
                                                                                                                                
SENATOR PASKVAN said he agrees with that.                                                                                       
                                                                                                                                
CHAIR FRENCH  asked Ms.  Carpeneti what  she thinks about  Senator                                                              
Wielechowski's  suggested   language.  It  keeps   non  interested                                                              
parties from having to do anything.                                                                                             
                                                                                                                                
MS. CARPENETI  said she'd prefer  it says, "a party  that objects"                                                              
because there could be two parties.                                                                                             
                                                                                                                                
SENATOR WIELECHOWSKI  asked about adding  "and a court  finds that                                                              
it  is in  the best  interest to  return…" because  the judge  may                                                              
believe that the  evidence should be retained even  if no one came                                                              
forward.                                                                                                                        
                                                                                                                                
CHAIR FRENCH said  subsection (d) takes care of that  when it says                                                              
the court may impose reasonable conditions.                                                                                     
                                                                                                                                
SENATOR  WIELECHOWSKI asked  if  this gives  the court  sufficient                                                              
latitude. For example,  if a pro se defendant doesn't  show up for                                                              
the  hearing  they  haven't  proved  by  a  preponderance  of  the                                                              
evidence but  the court may  still believe  that it's in  the best                                                              
interest to retain the evidence.                                                                                                
                                                                                                                                
CHAIR FRENCH  said judges aren't supposed  to do that and  the law                                                              
enforcement agency will be present in any case.                                                                                 
                                                                                                                                
SENATOR  DYSON reminded  the committee  that the  bill relates  to                                                              
property  crimes  and it  seeks  to  keep  the victim  from  being                                                              
victimized a second time. If there's a disagreement as to                                                                       
whether the property is returned, the judge decides.                                                                            
                                                                                                                                
2:16:03 PM                                                                                                                    
CHAIR FRENCH announced he would hold SB 30 in committee awaiting                                                                
a new draft.                                                                                                                    
                                                                                                                                
2:16:53 PM                                                                                                                    
There being no further business to come before the committee,                                                                   
Chair French adjourned the meeting at 2:16 p.m.                                                                                 

Document Name Date/Time Subjects