Legislature(2003 - 2004)
03/10/2004 08:05 AM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 10, 2004
8:05 a.m.
TAPE(S) 04-17,18
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Gene Therriault
Senator Hollis French
MEMBERS ABSENT
Senator Scott Ogan, Vice Chair
Senator Johnny Ellis
COMMITTEE CALENDAR
SENATE BILL NO. 170
"An Act relating to the Code of Criminal Procedure; relating to
defenses, affirmative defenses, and justifications to certain
criminal acts; relating to rights of prisoners after arrest;
relating to discovery, immunity from prosecution, notice of
defenses, admissibility of certain evidence, and right to
representation in criminal proceedings; relating to sentencing,
probation, and discretionary parole; amending Rule 16, Alaska
Rules of Criminal Procedure, and Rules 404, 412, 609, and 803,
Alaska Rules of Evidence; and providing for an effective date."
HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 170
SHORT TITLE: CRIMINAL LAW/SENTENCING/ PROBATION/PAROLE
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
04/04/03 (S) READ THE FIRST TIME - REFERRALS
04/04/03 (S) JUD, FIN
04/11/03 (S) JUD AT 1:30 PM BELTZ 211
04/11/03 (S) <Bill Hearing Postponed to 4/14/03>
04/14/03 (H) JUD AT 1:00 PM CAPITOL 120
04/14/03 (S) Scheduled But Not Heard
04/15/03 (S) JUD AT 5:00 PM BELTZ 211
04/15/03 (S) Heard & Held
04/15/03 (S) MINUTE(JUD)
04/24/03 (S) JUD AT 4:00 PM BUTROVICH 205
04/24/03 (S) Heard & Held
04/24/03 (S) MINUTE(JUD)
05/14/03 (S) JUD AT 0:00 AM BELTZ 211
05/14/03 (S) -- Meeting Postponed to 5/15/03 --
05/15/03 (S) JUD AT 8:45 AM BELTZ 211
05/15/03 (S) -- Meeting Rescheduled from 5/14/03 --
05/16/03 (S) JUD AT 1:00 PM BELTZ 211
05/16/03 (S) <Above Item Removed from Agenda>
05/16/03 (S) MINUTE(JUD)
03/05/04 (S) JUD AT 8:00 AM BUTROVICH 205
03/05/04 (S) <Bill Hearing Postponed>
03/10/04 (S) JUD AT 8:00 AM BUTROVICH 205
WITNESS REGISTER
Ms. Susan Parkes
Deputy Attorney General
Criminal Division
Department of Law
POSITION STATEMENT: Presented the changes made in version H of
SB 170
Mr. Paul Harris
Fairbanks Chief of Police
800 Cushman St.
Fairbanks, AK 99701
POSITION STATEMENT: Supports the changes made to SB 170 in
version H
Mr. Ray Brown
Dillon and Findley PC
350 N Franklin St.
Juneau, AK
POSITION STATEMENT: Expressed caution about the
unconstitutionality of the immunity provision in version H of SB
170 and expressed concern about Section
Ms. Cindy Cashen
MADD Juneau Chapter
th
211 4 St.
Juneau, AK
POSITION STATEMENT: Stated support for version H of SB 170
Lt. Al Storey
Alaska State Troopers
Department of Public Safety
PO Box 111200
Juneau, AK 99811-1200
POSITION STATEMENT: Stated support for version H of SB 170
Ms. Linda Wilson
Alaska Public Defender Agency
Department of Administration
th
900 W 5
Anchorage, AK 99501-2090
POSITION STATEMENT: Expressed concerns about several sections
of version H of SB 170, particularly the unconstitutionality of
the immunity provision.
ACTION NARRATIVE
TAPE 04-17, SIDE A
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 8:05 a.m. Senators Therriault,
French and Chair Seekins were present. Senators Ogan and Ellis
were excused. The committee took up SB 170.
SB 170-CRIMINAL LAW/SENTENCING/ PROBATION/PAROLE
MS. SUSAN PARKES, Deputy Attorney General, Criminal Division,
Department of Law (DOL), told members she has been with DOL
since 1987. She has spent all of her career, except 2½ years,
doing criminal prosecutions. She believes the bill addresses
some very real problems facing the law enforcement community and
prosecutors by addressing gaps in the current law. She pointed
out the committee substitute (CS) before the committee (version
H) is very different from the version that was before the
committee last year. The administration assessed concerns
expressed about SB 170 last year and tried to balance protecting
citizens' rights in the criminal justice process with protecting
communities.
SENATOR THERRIAULT moved to adopt version H as the working
document before the committee.
CHAIR SEEKINS announced that with no objection, the motion
carried.
MS. PARKES reviewed version H as follows.
The first important provision of the bill pertains to the
consecutive sentencing provisions (Sections 23, 24, 30 and 31).
Those provisions remain identical to the original bill. The
intent of the original sentencing provisions in statute was to
give judges discretion to impose consecutive terms for multiple
crimes. However, because of poor drafting, those statutes have
been interpreted to allow judges to impose concurrent terms so,
essentially, a person who is convicted of assaulting five people
could end up with the same sentence as a person who assaulted
one person. Version H mandates that in certain situations,
judges must impose consecutive terms; it mandates a particular
amount of time for very serious felonies and gives the judge
discretion to determine the appropriate amount of time for
lesser felonies.
The immunity provision, in Sections 21, 22, and 25, addresses
the problem of prosecutors having to blindly decide whether to
grant immunity when witnesses request immunity. The original
bill contained a standardized process for determining whether a
witness had a valid Fifth Amendment claim. It allowed the
prosecutor to attend the hearing where that decision was made.
That issue raised a lot of concerns and is no longer part of the
proposal. The issue for prosecutors is that granting
transactional immunity for any crime a person might testify on
is a powerful responsibility. Prosecutors want to make that
decision with as much knowledge as possible of whether they are
granting immunity for a misdemeanor or a felony. In version H,
an ex parte hearing will be held in front of the judge without
the prosecutor present. If the judge determines the witness has
a valid Fifth Amendment claim, the judge informs the prosecutor
of such and of the level of crime to which it applies. That way,
the prosecutor will know what level crime he or she is granting
immunity for. She recounted in a recent case, a babysitter had
murdered the child she was caring for. The victim's mother had
left her other children alone for a period of time so refused to
testify against the babysitter for fear of being charged with
child neglect. The prosecutors were unable to learn until much
later why the mother would not testify in a homicide case
involving her own child. She said the current law disrupts
prosecutors' ability to prosecute some very serious cases.
The self-defense provision in the original version raised
serious concerns. That provision is now located in Sections 18
and 19. Under current law, a judge is required to allow a self-
defense claim if there is some evidence, even implausible
evidence, of a self-defense claim. The new provision aligns with
federal law, which requires the defendant to produce enough
evidence to support a self-defense claim that a rational jury
could find that the defendant acted in self-defense. Sections 18
and 19 require that some plausible evidence be presented that a
jury could rely on to find that the defendant acted in self-
defense. Once that evidence is found, the burden remains on the
state to prove beyond a reasonable doubt. She asserted that this
approach will weed out unmerited claims of self-defense that
only serve to distract a jury and waste resources.
The second part of the self-defense provision is intended to
address gang shoot-outs, in which everyone points the finger at
the other guy. Because the prosecutor cannot prove who fired the
first shot, no one is prosecuted even if an innocent bystander
is hurt. The current statute lists specific situations in which
a self-defense claim does not apply, for example to a first
aggressor. Version H provides that a defendant who is involved
in a drug deal or is a member of a criminal gang acting in
furtherance of criminal intent does not get to claim self-
defense. She said the intent is to prevent people who are
involved in shoot-outs on public streets from skirting
prosecution by claiming self-defense.
8:16 a.m.
SENATOR THERRIAULT asked if the different constituency groups
reviewed the new language.
MS. PARKES said she was told that it was reviewed by some of the
different constituency groups and, as of yesterday, they felt it
addressed their concerns. Those groups intend to further
evaluate it. She pointed out the self-defense claim exclusion
would not apply to a citizen homeowner who is confronted with a
situation at home or on the street with his/her family.
CHAIR SEEKINS asked, "This does eliminate John Wayne and the bad
guy at high noon on Main Street?"
MS. PARKES said that would be considered as mutual combat and
under the current statute that would not meet muster for self-
defense. She continued her explanation of version H.
Section 13 is a new provision that pertains to the felony murder
provision. Alaska currently has a felony murder provision under
murder in the second degree. That statute indicates that if
people attempt to commit a serious felony and the felony is
articulated and, in the course of the furtherance of that crime
someone is killed, all those involved can be charged with murder
in the second degree. The underlying theory is that if a person
is willing to engage in such dangerous activity as robbery or
sexual assault, it is a foreseeable consequence of that conduct
that someone will die. Version H would expand that provision to
include the death of a participant based on the logic that a
death is a foreseeable consequence so it should be extended to a
participant. She advised that if A and B rob a liquor store and
A shoots the clerk, A and B will both be charged with the
murder. It will give prosecutors the ability to take very
dangerous people off of the street for a longer period of time.
CHAIR SEEKINS asked if other state laws were used to draft that
provision.
MS. PARKES replied:
There are. I did some research. It is the minority.
There are states that have similar to what we have....
Many states use felony murder to get this type of a
situation to a murder one level but California appears
to have this, [as does] Montana, Wisconsin, and the
th
Federal 11 Circuit. Interestingly, Florida has two
felony murder laws - one where if it's a non-
participant it's a murder in the first degree, if it's
a participant it's murder in the second degree, so
they make that kind of [distinction] as to whose life
is worth more. So again, that's a new proposal.
MS. PARKES continued with the description of the changes made in
version H.
Several sections deal with one of the critical problems facing
Alaska, that being alcohol. Sections 26 and 28 propose that once
a person is convicted of a felony DUI, every subsequent
conviction would be a felony. Because of the current look-back
provision and timing of prior convictions, a person could have 5
misdemeanor convictions and 1 felony conviction, and then get
another misdemeanor DUI conviction. DOL believes that once a
person has been convicted as a chronic, dangerous drunk driver,
each further conviction should be a felony.
Sections 27 and 29 address a problem that has arisen in DUI
prosecutions. A recent court opinion, Conrad v. State, allowed a
new "big gulp" defense. Currently, the "big gulp" defense in a
DUI case occurs if the defendant can prove he drank after
driving so his blood alcohol level did not apply while driving.
In the Conrad case, the court said it was appropriate to allow a
defendant to argue that he took a big gulp of alcohol just prior
to driving and, when stopped by the police, his blood alcohol
level (BAC) wasn't above the legal limit but by the time he was
tested at the station his BAC rose above the legal limit. DOL
does not believe that was the intent of the law and that it
encourages a battle of the experts at the trial to talk about
rising levels of breath alcohol.
Section 14 addresses the problem of drivers whose BAC is below
the .08 level and get into a vehicular collision and seriously
injure another person. Because they are not at the .08 level, a
prosecutor cannot find that they acted recklessly but might
prove they acted with criminal negligence. Under current law,
such a driver can be charged with assault in the fourth degree,
which is a misdemeanor. She noted that studies show that almost
any amount of alcohol will begin to affect a person's judgment
and ability to respond. She related that a person with a BAC of
.05 might drive on slippery roads and cause a permanent
disability to someone else, yet the prosecution can only charge
the driver with assault in the fourth degree. The assault in the
fourth degree statute speaks to physical injury due to criminal
negligence with a dangerous instrument. DOL would like to add
assault in the third degree to that statute to address such
situations.
MS. PARKES told members the rest of the alcohol provisions
address problems primarily found in rural communities. Many
communities have banned or limited the use of alcohol. The
provisions in the bill are aimed at strengthening communities'
ability to do that. Sections 1 through 4 pertain to the local
option statute. Some communities have chosen to lower the limits
set in that statute. Sections 1 through 4 will allow the state
to enforce lower limits set by a community.
Sections 5 and 6 will plug a loophole in local option laws that
arose in a Bethel case. Under current local option laws, when a
city chooses to go with a local option, it applies within a
five-mile radius from the center of that municipality. However,
because some smaller communities are very close together, that
five-mile radius overlaps other communities that may have a
conflicting or no local option law. The Bethel case brought to
light that when local option areas conflict, none apply so the
local option area would only apply to the village itself or the
center of the municipality. Sections 5 and 6 provide that if
local option laws overlap, the least restrictive law would apply
in the overlapping areas. If a local option area overlaps with a
community without local option, no law would apply.
Section 8 aligns the current forfeiture law for bootlegging with
the forfeiture law for drug dealing. Under current bootlegging
provisions, cash and other negotiable instruments are not
forfeited. Section 8 adds cash to the list of items that can be
forfeited when the cash is a profit from bootlegging.
Section 11 also applies to forfeiture and allows the state to
share forfeited items in bootlegging cases with municipal law
enforcement agencies that assisted in the case. DOL hopes this
will encourage cooperation among law enforcement agencies. In
addition, it is sometimes not economically feasible to remove a
seized item from a rural area.
Sections 9 and 10 strengthen the ability to forfeit vehicles,
watercraft and aircraft for bootlegging. Currently a third party
owner can claim he or she didn't know the vehicle was going to
be used for bootlegging. This provision requires the third party
to show he or she didn't know and didn't have reason to know, so
that a third party cannot just turn a blind eye to what is going
on. Sections 9 and 10 describe some of the ways a person should
be on notice. For example, in Section 10, a third party could
show that the offender had no prior criminal record for
bootlegging or had not committed other violations.
Section 11 sets out aggravated circumstances for which
forfeiture becomes mandatory, i.e., if someone has a prior
conviction for a similar offense. Section 11 contains an
exception: if a vehicle is the sole means of support for a
family in a village and the family has no culpability, the judge
is not required to forfeit the vehicle.
CHAIR SEEKINS asked how the forfeiture provision applies to lien
holders.
MS. PARKES replied:
We're facing that in the DUI forfeitures and lien
holders are treated as innocent third parties and so
they keep their interest and we don't forfeit a
vehicle, for example, in the DUIs. If we see the
vehicle - that the loan on it is worth more than the
car, you know - we give it back to the innocent third
party. We don't forfeit those kinds of vehicles. The
intent is not to harm any innocent third party, like
lien holders.
CHAIR SEEKINS asked if the intent is to protect the interest of
an innocent third party.
MS. PARKES affirmed that is correct. She added that forfeiture
is aimed at the interest of the defendant, or a third party who
knew the vehicle would be used for illegal activity.
CHAIR SEEKINS asked if the bootlegging offense involved a
$10,000 boat, how a bank with a $5,000 lien on the boat would
protect its interests. He questioned whether the boat would be
sold and if the proceeds would be used to pay the lien.
MS. PARKES said DOL works with the Alaska State Troopers (AST)
on those details. Sometimes, especially given the proximity of
the item, the state may choose not to forfeit because of the
cost of moving the item. She deferred to the AST for the
details.
CHAIR SEEKINS commented that Alaska is a deficiency state
regarding repossessions, and that Federal Trade Commission
statutes speak to how a repossessed vehicle would be sold and
the interests protected.
MS. PARKES continued with her description of version H of SB
170.
Section 7 contains a proposal that recognizes how destructive
alcohol is to young people in local option areas. Currently,
furnishing alcohol to a minor is a class A misdemeanor anywhere
in the state. This proposal makes that offense a class C felony
in a community that has decided to go local option. DOL has
found that no only is alcohol destructive to the health of a
young person, it also makes he/she more likely to become the
victim of a crime or to commit a crime.
Section 17 deals with third party custodians. Alaska judges
release defendants on bail to the custody of third parties
frequently. That statutory provision was created as an
alternative release option for folks who cannot provide monetary
bail. Third party custodians state under oath that they
understand the conditions of release and promise to report
violations of the conditions of release. DOL is finding that
some third parties do an excellent job; however, others thumb
their noses at the court and once outside the court building,
may never see the defendant again. As an example, she recounted
that a felony DUI defendant was released to a third party and
was stopped for to drunk driving with the third party in the
passenger seat. This bill would create a new misdemeanor crime
if a third party fails to report a violation immediately. The
Municipality of Anchorage (MOA) has a similar ordinance, which
works well and is used in egregious situations. DOL would like
the opportunity to do the same. DOL wants to send the message
that third party custody is a serious responsibility.
Section 32 pertains to disclosure of information about a
juvenile adjudicated sex offender. The Human Services Section of
DOL proposed this change because social workers have encountered
situations in which they were unable to disclose information
when the safety of children was at risk. Current statute does
not allow any member of the public to be told about adjudication
for a sex offense by a juvenile. Ms. Parkes said the records are
not made public for good reason, however, when the safety of a
child or vulnerable adult is at stake, the balance tips and the
agency should be able to inform the public of the adjudication.
She offered that releasing that information to someone who is
considering hiring a babysitter who is an adjudicated sex
offender is a good example.
CHAIR SEEKINS asked whether the public or only the person making
the request would have the right to know.
MS. PARKES said the person making the request.
CHAIR SEEKINS asked if there are any boundaries on what that
person can then disclose.
MS. PARKES said that is a good question. She does not believe
any penalty provision exists for revealing that information and
that is of concern.
SENATOR THERRIAULT asked if he hired a babysitter, could he
contact an agency to inquire if that person was adjudicated.
MS. PARKES said DHSS would be the record keeper and is looking
at how it would address some of these concerns. The details
could be further elaborated in statute or regulation. Current
provisions detail when schools or law enforcement can be
notified.
8:45 a.m.
SENATOR FRENCH asked if the parent of an elementary school
student could obtain that information on a high school student
who walks through the neighborhood everyday on the way to
school.
MS. PARKES said that is not the intent of this provision. The
intent is to provide the information if a specific child or
vulnerable adult is at risk. She repeated those details would
have to be fleshed out by the agency.
SENATOR FRENCH asked if the intent is to prevent one-on-one
contact or contact in very close proximity.
MS. PARKES said those are the types of situations she is aware
of that prompted this proposal but, if others exist, they need
to be fleshed out to assure that all appropriate situations are
encompassed.
CHAIR SEEKINS stated:
I could just see we could end up with a de facto
registry put together by a community activist group.
I'm just a little concerned that we have to make sure
that there were some boundaries there I think, not
that I want to protect...are sex offenders from being
able to practice their craft in secret, but just for
normal reasons I'm sure you understand.
MS. PARKES understood and said DOL believes the balance needs to
tip for specific situations only.
Sections 15 and 16 also apply to juvenile sex offenders. Right
now, any sex offense committed by someone 15 or under, whether
that be contact or penetration, with a child who is three years
younger or more, is a misdemeanor. DOL is proposing that
penetration become a felony. That would bring the existing law
into parity with adult laws. She pointed out a 15 year old could
break into a home and steal a bike and be charged with a felony
but would be charged with a misdemeanor for sexually penetrating
a two year old. These cases would remain in the juvenile system.
Sections 15 and 16 would also have ramifications if the juvenile
committed an adult offense because adjudication as a juvenile
would be used as an aggravator. She offered to answer questions.
SENATOR THERRIAULT asked for an explanation of how Sections 5
and 6 would work.
MS. PARKES explained that right now, when a municipality or
established village votes to go with local option, a five-mile
radius from the center of that village applies. However, current
statute is written so that if the five-mile radius of two
adjacent villages overlap and the local option conflicts, no
five-mile radius exists for the local option area. Sections 5
and 6 would apply the least restrictive local option to an
overlapping area. If the five-mile radius overlaps with an area
having no local option law, the law would not be enforced onto
the area with no local option.
CHAIR SEEKINS noted for the record that his son works for Ms.
Parkes at DOL. He then expressed concern with the definition of
an established village in AS 04.16.220 because an established
village is virtually any community that is not within a
municipality, a spot 15 miles outside of a municipality that is
off the road system, or 50 miles if it is on the road system of
another organized municipality of 25 people. He surmised if the
Pilgrim family adds 8 more members, it could set alcohol
importation levels for that area. As such, it is not really a
political subdivision of the State of Alaska yet the group could
set a standard under which a person could be charged with a
felony.
TAPE 04-17, SIDE B
CHAIR SEEKINS questioned whether the Legislature can give an
unincorporated group of 25 or more people that fits within that
definition the ability to set standards for which another
Alaskan could unknowingly become a felon. He said he is not
trying to attack the ability to keep alcohol out of a dry
community but questions at what level the Legislature can assign
that duty as a state.
MS. PARKES responded that established villages are addressed
throughout Title 4 but she could not answer the question and was
not sure if case law has addressed the constitutional question.
She offered that DOL would continue to research that question.
SENATOR THERRIAULT asked about the broad heading of Title 4.
MS. PARKES replied it is "Alcoholic Beverages."
CHAIR SEEKINS read AS 04.21.080:
(9) "established village" means an area that does
not contain any part of an incorporated city or
another established village and that is
(A) an unincorporated community that is in the
unorganized borough and that has 25 or more permanent
residents; or
(B) an unincorporated community that is in an
organized borough, has 25 or more permanent residents,
and
(i) is on a road system and is located more than
50 miles outside the boundary limits of a unified
municipality, or
(ii) is not on a road system and is located more
than 15 miles outside the boundary limits of a unified
municipality;
He repeated that Sections 5 and 6 give a group of 25 people the
ability to determine what constitutes a felony in their
community with no public notification or election process.
MS. PARKES noted that an election would be required.
CHAIR SEEKINS pointed out that the state has election law
standards for municipalities and incorporated communities but
they may not be in place for other communities that are not
incorporated. He then announced that he would take public
testimony at this time.
9:00 a.m.
MR. PAUL HARRIS, Director of the Fairbanks Police Department,
stated support for version H of SB 170. He informed members that
he began his law enforcement career in 1972 in Alaska, is a
retired Alaska State Trooper, and is involved with the Alaska
Police Officers Association, the Paternal Order of Alaska State
Troopers, International Association of Chiefs of Police, and the
Police Standards Council.
MR. HARRIS said he believes this legislation addresses many of
the loopholes in law enforcement since the new criminal code was
enacted. Alaska's local option laws have been used across the
United States as a model. Those laws have worked well but the
changes in SB 170 will add to it. Changing the forfeiture law to
put alcohol on the same level as other drugs will take the
profit motive away from bootleggers and give the statute teeth,
as will the ability to take equipment and cash from bootleggers.
He noted that the change to the felony murder rule and the
changes made to immunity and a self-defense claim will provide
law enforcement with tremendous tools to get violent offenders
off the streets.
He offered that adding a new section to the criminal code is
always hard to deal with especially when it appears to put more
restrictions on citizens, but in regard to violation of
custodial duty, often crime suspects have value to the
community, especially when employed. By allowing them to be
released to third party custodians, they and their families do
not suffer tremendous economic impacts. However, what often
happens is a loose knit group of people in which one member has
no criminal record becomes the third party custodian for anyone
who gets in trouble. The current law has no teeth to get these
custodians to report violations correctly. This new section will
motivate those people to live up to the responsibilities of a
third party. It will allow law enforcement to take action to
ensure the third party is meeting the conditions imposed by the
court. Mr. Harris said this will provide a great tool that law
enforcement has needed for a long time.
MR. HARRIS repeated that the legislature did a great job
revising the criminal code in the 1970s but every once in a
while changes are necessary. This version will add tools for law
enforcement to made the code work better.
MR. RAY BROWN, a partner in the law firm of Dillon and Findley,
told members he was asked by the Public Defender Agency to speak
on this bill. He informed members that he is the former training
director of the Public Defender Agency and a former prosecutor.
He is married to a retired state trooper and Susan Parkes and
Anne Carpeneti, who put this bill together, are his friends. He
said he primarily practices white-collar criminal defense in
federal court. He said he has a significant degree of knowledge
and expertise in the area of immunity as he argued at the state
and trial court and the supreme court case of Gonzales v. State.
The judicial decision from that case states that under Alaska's
Constitution, transactional immunity is required.
MR. BROWN said he has a great deal of empathy for [prosecutors]
because it is very difficult to decide whether to grant
immunity, particularly when multiple offenders are involved.
Alaskans have chosen, via the constitution, not to compel a
person to give information against him or herself.
SENATOR FRENCH clarified that Sections 20 through 22 pertain to
immunity sections.
MR. BROWN continued. Gonzales v. State requires, before a person
can be compelled to provide information or testimony,
particularly if it provides a link to the successful prosecution
of a case, that the person must be given transactional immunity.
He firmly believes that Section [22] violates Gonzales v. State
and would require a constitutional amendment to change
transactional immunity to use immunity found in the federal
system. He said many of the changes to the immunity section are
an admirable desire of the prosecution, but he does not believe
they would pass the Gonzales or transactional immunity muster.
As an example, MR. BROWN said in many of these cases, multiple
defendants are involved with different levels of culpability.
Perhaps the defendants included the killer, the person who sold
the gun to the killer and was present at the scene, and a
cocaine dealer who witnessed the shooting. If law enforcement
officers could not figure out who the shooter was, they could do
it through the process of elimination via the procedure proposed
in Section 22 (i), which is unconstitutional. He hopes any
solution to this problem would be gleaned through mutual
discourse between the defense and prosecution and would satisfy
the constitutional requirements and the prosecution's needs. He
understands the prosecution's needs because the shooter could be
given immunity while the two other less culpable people go to
trial on the principal offense. He said he does not know how to
get around that and also avoid spending thousands of dollars of
state resources on a public defender, the Office of Public
Advocacy and a private attorney to go to the Alaska Supreme
Court to find out this provision is unconstitutional.
MR. BROWN said more importantly, by default, the worst offender
may be given transactional immunity if the offender is compelled
to comply with this statute and the case is appealed to the
supreme court.
SENATOR FRENCH asked:
Mr. Brown, are you saying this flat can't be done with
the way our Constitution is written or is there some
specific provision that you think runs afoul of
Gonzales because, the way I read it, the judge and the
witness's attorney go back and have an ex parte
conversation to which the prosecutor is not privy.
He's not there or she's not there when the
conversation takes place. Assuming that's
constitutional - assuming they can have that
conversation, out of that conversation comes a
disclosure to the DA that we're talking about an
unclassified - an A, a B, a C felony or a misdemeanor
and at that point the prosecutor isn't shooting in the
dark when he makes an offer of immunity. He or she can
decide I'm not going to risk an unclassified or an A
felony, that's up in the murder range. We're not going
to do an immunity there and you can go away with your
Fifth Amendment privilege and I'm stuck with that. But
if it's a misdemeanor or a C felony, it sounds to me
like it's a marijuana problem or a crack cocaine
problem, and I'll risk that. It may be something more
serious but I'll risk that. So I guess I'm not sure
whether it's just a blanket unconstitutionality that
you believe is the problem or something specific.
MR. BROWN said the first part of Senator French's question
relates to what is referred to as a Kastigar hearing in federal
court. Those hearings are held to determine whether there is a
legitimate exercise of a Fifth Amendment right, that is, whether
or not there is any legitimate and real exposure to criminal
prosecution. He believes the first part is constitutionally
permissible where an offer of proof is made to the trial court.
However, he knows no way around the second part because in the
example he gave, the killer would be an unclassified felon, the
cocaine dealer would probably be a class B felon, and the other
person a misdemeanant at the scene. He explained, "And [if] the
law enforcement officers weren't sure who had done it, the
easiest way to do - would be, with those three people, is to say
it's an unclassified felony - they can target their focus of
attention on that person and that's the problem with this." He
repeated he believes that portion is unconstitutional and he
sees no way around it.
CHAIR SEEKINS asked whether that would still constitute a
problem if that process takes place once the case is in court
and not during the investigation. He thought Mr. Brown was
saying the police officer would use the information to "find the
ace in the deck" during the investigation process but he reads
it to apply to a person who is already in court and refusing to
testify.
MR. BROWN said he reads it so that the information could be used
in conjunction with a grand jury investigation, pre-indictment
or post-indictment. He pointed out that even at the trial court
level, if multiple defendants were being tried, the
investigation would be ongoing. This provision would allow more
focused attention on a specific defendant. He believes it would
be used primarily in charging decisions or by a grand jury when
determining who to prosecute and what to prosecute for.
CHAIR SEEKINS asked Ms. Parkes to comment on the intent.
MS. PARKES replied:
The intent is, as you've indicated, the intent is once
we get to court - or yes, we've subpoenaed people to
come and testify to a grand jury, they then tell us,
and at that point we've made a charging decision.
We've determined who our defendant is. We've got
charges filed. This is not intended to be an
investigative tool. It's intended to be a tool to be
able to put our case on.
MR. BROWN said he still does not think that satisfies or passes
constitutional muster. He added, "It does alleviate some of my
concern. If they're saying that they will never use it and it
can't be used in an investigative stage or at the indictment
stage, that certainly would alleviate the utility of it but it
still doesn't address the constitutional concerns."
SENATOR THERRIAULT asked Mr. Brown if his concern is that it can
be used in particular circumstances of a crime, or whether he
sees it as a blanket problem.
MR. BROWN said it is a blanket problem, not as it applies to
what he referred to as the Kastigar hearing, but as it provides
that information to the prosecuting parties at any level of the
prosecution. He repeated that once a person is compelled to
testify and given transactional immunity, that person cannot be
prosecuted for a crime. He advised:
So, if you compel somebody to give this information
and they do, and I'm right that it's unconstitutional,
you are immunizing that person from prosecution. It
will result in a reversal of their conviction and they
will go unprosecuted. That's a big concern here. And
again, I do think that people should sit down and
discuss this because I think it's the most important
provision of this bill because it has the most serious
ramifications because it deals with the Fifth
Amendment and the Alaska Constitution on compelled
testimony.
MR. BROWN said this is beyond a technicality. The people made
the choice via the constitutional convention by enacting more
restriction on compelled testimony. He said if use immunity is
the goal, which passes federal constitutional muster under the
Fifth Amendment, the constitution would have to be amended. He
said he raised the issue because he believes it could result in
a travesty: the main culprit going free because he or she was
compelled to give information.
MR. BROWN said his last concern deals with making felons out of
persons with less than a .08 BAC who are involved in a vehicular
accident that causes serious physical injury. He believes that
Alaska's definition of "dangerous instrument" comes from the
Oregon statutes. The definition first included a gun or a
weapon; it was expanded to include feet under certain
circumstances and a car when coupled with intoxication. He said
his concern is that the intent is to prosecute people with any
amount of alcohol in their system when involved in a motor
vehicle accident that causes serious physical injury. He noted
if he has a glass of wine with dinner and, while driving home on
a slippery road, hit someone who stepped in front of his car, he
could be charged with a felony. He believes restaurateurs would
share his concern. He said if that is not the intent of SB 170,
he would like to hear that on the record; if it is, he hopes
that full-page ads run in the newspapers to inform people of the
change in the law.
9:25 a.m.
MS. CINDY CASHEN, Executive Director of Mothers Against Drunk
Drivers (MADD) Juneau Chapter, said she was representing four
MADD chapters throughout Alaska: Anchorage, Mat-Su, Fairbanks,
and Juneau. In response to Mr. Brown's comments about driving
while impaired, MADD encourages people who choose to have more
than one drink per hour to get a designated driver. People who
choose to drink more than that put their own and others' lives
at risk. Alaska's DUI law leads other states in dealing with
drunk driving. The consecutive jail time for each death in a
drunk driving accident hits home with her because a drunk driver
killed her father and his passenger. Her family and the
passenger's family feel enraged because although the driver's
sentence was passed down consecutively, the judge decided the
sentence was too harsh and made the sentences concurrent so that
they total 3½ years. She said when a person chooses to drink and
drive and takes someone's life, that person should pay the price
as Alaskans deserve restorative justice.
MS. CASHEN told members that MADD supports a community's right
to adopt lower limits of alcohol possession and importation.
That effort falls under the concept of community policing where
larger groups of community members are able to take ownership
and deal with drinking and driving. MADD also supports stricter
sanctions for habitual drunk drivers who choose to endanger
themselves and others. MADD also supports increased penalties
for those who choose to drink and drive and seriously injure an
innocent victim.
MS. CASHEN told members, in response to earlier testimony, a
person's ability to drive is impacted within a matter of minutes
of drinking alcohol. A person who drinks alcohol and drives has
chosen to break the law, even if driving while impaired as
opposed to driving while intoxicated. She noted in 2002, between
500 and 700 people were killed [by drivers with] BAC levels
between .01 and .08. She believes the families of those victims
believe those drivers should be held accountable. MADD supports
more consequences for people who choose to contribute [to the
delinquency] of minors. Teenagers who drink are four times more
likely to have problems with alcohol later in life.
CHAIR SEEKINS affirmed that the judiciary will no longer be able
to decide that a penalty is too harsh and make sentences
concurrent if this bill is enacted. He asked Ms. Cashen if she
is advocating that a person who has a glass of wine with dinner
and then injures a person while driving home should be
prosecuted under this bill.
MS. CASHEN responded no. She clarified that MADD is not pro-
prohibition. Most of its members drink responsibly but they do
not drink and drive. She pointed out:
It takes approximately one hour and we won't say
exactly because it depends on what you've had, your
body fat, your height, your weight and so on. So if
you've had a glass of wine...and at least one hour has
passed, fine - that's fine. But if you've had a glass
or two of wine and then you leave within that hour,
give someone else the keys because after one drink,
your level of coordination is already impaired....
MS. PARKES interjected that she was not implying that a person
with any amount of alcohol in their system who is involved in a
car accident would be prosecuted. The prosecution would have to
prove a state of criminal negligence, a mental standard used in
criminal law. Therefore, a number of factors would play in;
alcohol would be just one piece of the factual puzzle that could
be used to make a finding of criminal negligence.
CHAIR SEEKINS indicated he noticed two factors, reckless and
criminal negligence.
MS. PARKES response was inaudible but pertained to putting a
person in fear with a dangerous instrument.
CHAIR SEEKINS asked about speeding in a car.
MS. PARKES said that normally arises with brandishing a gun or
if a person charges a person with a car. Criminal negligence is
an alternative theory, which is one step down but would require
a dangerous instrument and serious physical injury, not just
placing a person in fear. She repeated that she did not mean to
imply that driving after drinking one glass of wine would result
in prosecution.
SENATOR THERRIAULT asked, "So this entire statute - it's broader
than just DWI. We're focusing on the DWI and if [he reads] 'a
person commits a crime of assault in the third degree if that
person recklessly' - on the new language, recklessly is not part
of the sentence. You just jump from person down to criminal
negligence."
CHAIR SEEKINS said current law applies if a person places
someone in fear of his or her life or personal injury, which
could mean speeding. The new standard includes "with criminal
negligence." He asked Ms. Parkes to define criminal negligence.
SENATOR FRENCH stated, "...I think criminal negligence is knew
or should have known whereas recklessness is aware of and
disregard of substantial and unjustifiable risk so it's just a
little bit higher."
MS. PARKES read the statutory definition, "A person acts with
criminal negligence, with respect to a result or a circumstance
described by a provision of law, when the person fails to
perceive a substantial and unjustifiable risk that the result
will occur or that the circumstance exists."
CHAIR SEEKINS asked if a person who knew he had a low tolerance
for alcohol and drove with a BAC lower than .08 would be
considered as criminally negligent.
MS. PARKES said he would in her judgment.
SENATOR THERRIAULT questioned whether talking on a cell phone
while driving would fall under this application.
MS. PARKES said it would if the state could prove the driver was
taking an unjustifiable risk. She recalled a current case in the
court system in which the driver may have been watching a DVD
while driving.
CHAIR SEEKINS took further testimony.
TAPE 04-18, SIDE A
LT. AL STOREY, Alaska State Troopers, Department of Public
Safety (DPS), stated support for the Governor's crime bill. DPS
is most interested in the local option sections (1-11). During
his 24 years with the AST, 18 were within the drug and alcohol
enforcement area, so he is very familiar with specific concerns
about alcohol in the western regions of the state. He supports
anything the state can do to help rural communities exercise a
local option. Sections 1 through 11 contain tools that will
enhance DPS's ability to help those residents help themselves.
He noted, regarding forfeiting money made from bootlegging, far
more money is made per dollar invested in the alcohol business
in Alaska than in the drug business. A person can buy a $10
bottle of liquor in Anchorage and sell it in the far reaches of
the state for up to $150. He repeated this bill will provide a
tool to take away the incentive to bootleg.
Regarding Section 13, felony murder charges, LT. STOREY said
that home invasions are becoming commonplace in Alaska. DPS
believes the criminals involved embolden and encourage each
other and that they should be held culpable for the death of a
partner as well as an innocent victim. Again, he believes this
will provide a good tool to curb home invasions.
LT. STOREY believes that attaching the criminal negligence
standard to accidents involving drivers with alcohol levels
below .08 BAC will provide a good tool so that certain accidents
can be investigated as felonies and the offenders can be
prosecuted appropriately.
DPS supports the concept of Sections 15 and 16, raising the
offense of sexual abuse of a minor from a class A to a class C
felony. DPS also supports Section 18 (self defense claim).
MS. LINDA WILSON, Deputy Director of the Alaska Public Defender
Agency, reemphasized Mr. Brown's concern that the immunity
section of the bill is unconstitutional. Enacting a bill with an
unconstitutional provision is problematic because a lot of money
will be spent on litigation to prove that it is
unconstitutional. The offending section is Section 22(i). The
Alaska Constitution guarantees the right against self-
incrimination. To compel a person to testify, the constitution
requires that person be given transactional immunity to ensure
that right. When the judge tells the prosecutor the level of
offense, that would be sharing information that violates the
right against self-incrimination and is a link in the chain. She
surmised that the level of the offense that was disclosed was a
class A or B felony in a case in a small village. If an
investigation is ongoing, the prosecution might not give the
witness transactional immunity yet the offense information could
be used to further the investigation. The Alaska Supreme Court
has emphasized that is unconstitutional.
MS. WILSON highlighted the agency's other concerns with SB 170.
· The self-defense provision adds to the list of things that
exclude a person from raising a self-defense claim. The
additions to the list could have unintended consequences.
For example, a person cannot claim self-defense if acting
alone or with others to further criminal objectives.
Although this provision is aimed at gang activity, many
other situations could occur that could prevent a person
from legitimately raising a self-defense claim. Two 20 year
olds who were drinking alcohol at a home or a person using
a small amount of marijuana could not use a self-defense
claim because they would be furthering the criminal
objective. She suggested targeting the section to criminal
activities that are felony offenses.
· Her second concern with the self-defense provision is the
attempt to redefine "some evidence" to "plausible
evidence." Questions of credibility belong to the jury, not
the judge. Adding the word "plausible" gives the judge a
lot of room to take that question away from the jury.
· Raising an act that is done with criminal negligence and a
dangerous instrument that causes physical injury to assault
to the third degree, a class B felony, could have numerous
unintended consequences. Initially, it appeared the focus
of the bill was directed toward people who were driving
under the influence of alcohol but not necessarily
intoxicated. That provision does not require that any
alcohol be involved. It could apply to a person talking on
a cell phone or a parent could attend to a child in a car.
Criminal negligence is the lowest level of the criminal
intent category.
· It is often difficult to find third party custodians and
that is most often the reason people sit in jail much
longer, particularly indigent persons. Increasing the
consequences for violations will deter many people from
fulfilling that role. The current penalty for violation of
custodial conditions is contempt, with exposure to a $300
fine or six months imprisonment, which is a sufficient
consequence. Raising the penalty to a $10,000 fine or a
one-year jail term will result in fewer custodians and more
people being held in jail.
· The felony DUI section needs to be targeted to address
chronic repeat offenders. She suggested placing a time
limit of 15 or 25 years on that provision so that if a
youth is convicted of a felony DUI and is charged with
another DUI 25 years later, the later DUI would not
automatically become a felony.
· The provision that makes furnishing alcohol to a minor in a
local option area a felony charge is not evenhanded since
the same offense elsewhere is a misdemeanor. She suggested
raising the penalty to a felony for a second offender.
CHAIR SEEKINS announced that the committee would have to adjourn
to attend the floor session. He asked Ms. Wilson to submit the
remainder of her comments in writing. He then adjourned the
meeting at 10:02 a.m.
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