05/05/2004 08:24 AM Senate JUD
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ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
May 5, 2004
8:24 a.m.
TAPE(S) 04-63, 64
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Scott Ogan, Vice Chair
Senator Gene Therriault
Senator Hollis French
MEMBERS ABSENT
Senator Johnny Ellis
COMMITTEE CALENDAR
SENATE BILL NO. 97
"An Act relating to public interest litigants and to attorney
fees; and amending Rule 82, Alaska Rules of Civil Procedure."
MOVED CSSB 97(JUD) OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 334(RLS)
"An Act relating to unlawful exploitation of a minor and to
distribution of child pornography."
MOVED CSHB 334(RLS) OUT OF COMMITTEE
CS FOR SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 273(JUD) am
"An Act relating to the right of a parent to waive an
unemancipated child's claim of negligence against a provider of
sports or recreational activities."
MOVED SCS CSSSHB 273(JUD)am OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 549(JUD) am
"An Act relating to unsolicited communications following an
aircraft accident."
HEARD AND HELD
CS FOR HOUSE BILL NO. 342(FIN) am
"An Act relating to driving while under the influence, to the
definition of 'previously convicted,' to alcohol-related
offenses, to ignition interlock devices, and to the issuance of
limited driver's licenses; and providing for an effective date."
MOVED CSHB 342(FIN)am OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: SB 97
SHORT TITLE: ATTY FEES: PUBLIC INTEREST LITIGANTS
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
03/03/03 (S) READ THE FIRST TIME - REFERRALS
03/03/03 (S) RES, JUD
03/28/03 (S) RES AT 3:30 PM BUTROVICH 205
03/28/03 (S) Heard & Held
03/28/03 (S) MINUTE(RES)
04/03/03 (S) RES AT 8:00 AM BELTZ 211
04/04/03 (S) JUD AT 1:30 PM BELTZ 211
04/04/03 (S) <Pending Referral>
04/07/03 (S) RES AT 3:30 PM BUTROVICH 205
04/07/03 (S) Moved Out of Committee
04/07/03 (S) MINUTE(RES)
04/08/03 (S) RES RPT 2DP 2DNP 1NR 1AM
04/08/03 (S) DP: WAGONER, SEEKINS;
04/08/03 (S) DNP: ELTON, LINCOLN;
04/08/03 (S) NR: DYSON; AM: STEVENS B
04/09/03 (S) JUD AT 1:30 PM BELTZ 211
04/09/03 (S) Scheduled But Not Heard
04/23/03 (H) JUD AT 1:00 PM CAPITOL 120
04/23/03 (S) Heard & Held
04/23/03 (S) MINUTE(JUD)
04/28/03 (H) JUD AT 1:00 PM CAPITOL 120
04/28/03 (S) Moved SB 97 Out of Committee
04/28/03 (S) MINUTE(JUD)
04/29/03 (S) JUD RPT 3DP 2DNP
04/29/03 (S) DP: SEEKINS, OGAN, THERRIAULT;
04/29/03 (S) DNP: ELLIS, FRENCH
05/01/04 (S) RETURNED TO JUD COMMITTEE
05/04/04 (S) JUD AT 8:00 AM BUTROVICH 205
05/04/04 (S) Heard & Held
05/04/04 (S) MINUTE(JUD)
05/05/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: HB 334
SHORT TITLE: UNLAWFUL EXPLOITATION OF MINOR/CHILD PORN
SPONSOR(s): REPRESENTATIVE(s) MEYER
01/12/04 (H) PREFILE RELEASED (1/2/04)
01/12/04 (H) READ THE FIRST TIME - REFERRALS
01/12/04 (H) JUD
01/30/04 (H) JUD AT 1:00 PM CAPITOL 120
01/30/04 (H) <Bill Hearing Postponed>
02/20/04 (H) JUD AT 1:00 PM CAPITOL 120
02/20/04 (H) Scheduled But Not Heard
02/23/04 (H) JUD AT 1:00 PM CAPITOL 120
02/23/04 (H) Heard & Held; Assigned to Subcommittee
02/23/04 (H) MINUTE(JUD)
03/01/04 (H) JUD AT 1:00 PM CAPITOL 120
03/01/04 (H) <Bill Hearing Postponed Wed. 3/3/04>
03/03/04 (H) JUD AT 1:00 PM CAPITOL 120
03/03/04 (H) Scheduled But Not Heard
03/05/04 (H) JUD AT 1:00 PM CAPITOL 120
03/05/04 (H) -- Meeting Postponed to 3/16/04 --
03/16/04 (H) JUD AT 1:00 PM CAPITOL 120
03/16/04 (H) Moved CSHB 334(JUD) Out of Committee
03/16/04 (H) MINUTE(JUD)
03/18/04 (H) JUD RPT CS(JUD) NT 5DP 1NR 1AM
03/18/04 (H) DP: SAMUELS, HOLM, ANDERSON, OGG,
03/18/04 (H) MCGUIRE; NR: GARA; AM: GRUENBERG
04/15/04 (H) RLS AT 9:00 AM FAHRENKAMP 203
04/15/04 (H) Moved CSHB 334(RLS) Out of Committee
04/15/04 (H) MINUTE(RLS)
04/19/04 (H) RLS RPT CS(RLS) NT 2DP 4NR
04/19/04 (H) DP: COGHILL, ROKEGERG; NR: BERKOWITZ,
04/19/04 (H) MORGAN, KERTTULA, MCGUIRE
04/19/04 (H) TRANSMITTED TO (S)
04/19/04 (H) VERSION: CSHB 334(RLS)
04/20/04 (S) READ THE FIRST TIME - REFERRALS
04/20/04 (S) STA, JUD
04/27/04 (S) STA AT 3:30 PM BELTZ 211
04/27/04 (S) Moved CSHB 334(RLS) Out of Committee
04/27/04 (S) MINUTE(STA)
04/28/04 (S) STA RPT 3DP 1NR
04/28/04 (S) DP: STEVENS G, COWDERY, STEDMAN;
04/28/04 (S) NR: GUESS
05/05/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: HB 273
SHORT TITLE: PARENTS' WAIVER OF CHILD'S SPORTS CLAIM
SPONSOR(s): REPRESENTATIVE(s) MCGUIRE
04/16/03 (H) READ THE FIRST TIME - REFERRALS
04/16/03 (H) TRA, JUD
05/07/03 (H) TRA REFERRAL WAIVED
02/16/04 (H) SPONSOR SUBSTITUTE INTRODUCED
02/16/04 (H) READ THE FIRST TIME - REFERRALS
02/16/04 (H) JUD
03/22/04 (H) JUD AT 1:00 PM CAPITOL 120
03/22/04 (H) Moved CSSSHB 273(JUD) Out of Committee
03/22/04 (H) MINUTE(JUD)
03/29/04 (H) JUD RPT CS(JUD) NT 4DP 1NR
03/29/04 (H) DP: SAMUELS, HOLM, OGG, MCGUIRE;
03/29/04 (H) NR: GRUENBERG
04/15/04 (H) TRANSMITTED TO (S)
04/15/04 (H) VERSION: CSSSHB 273(JUD) AM
04/16/04 (S) READ THE FIRST TIME - REFERRALS
04/16/04 (S) STA, JUD
04/29/04 (S) STA AT 3:30 PM BELTZ 211
04/29/04 (S) Moved CSSSHB 273(JUD)am Out of
Committee
04/29/04 (S) MINUTE(STA)
05/01/04 (S) STA RPT 3NR
05/01/04 (S) NR: STEVENS G, STEDMAN, GUESS
05/03/04 (S) JUD AT 8:00 AM BUTROVICH 205
05/03/04 (S) Heard & Held
05/03/04 (S) MINUTE(JUD)
05/05/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: HB 549
SHORT TITLE: UNSOLICITED COMMUNICATION:AIRCRAFT CRASH
SPONSOR(s): JUDICIARY
03/29/04 (H) READ THE FIRST TIME - REFERRALS
03/29/04 (H) JUD
04/05/04 (H) JUD AT 1:00 PM CAPITOL 120
04/05/04 (H) -- Meeting Postponed to Tues. 4/6/04 --
04/06/04 (H) JUD AT 1:00 PM CAPITOL 120
04/06/04 (H) Moved CSHB 549(JUD) Out of Committee
04/06/04 (H) MINUTE(JUD)
04/07/04 (H) JUD RPT CS(JUD) NT 4DP 1NR 1AM
04/07/04 (H) DP: SAMUELS, HOLM, ANDERSON, MCGUIRE;
04/07/04 (H) NR: GARA; AM: OGG
04/21/04 (H) TRANSMITTED TO (S)
04/21/04 (H) VERSION: CSHB 549(JUD) AM
04/22/04 (S) READ THE FIRST TIME - REFERRALS
04/22/04 (S) L&C, JUD
04/27/04 (S) L&C AT 1:30 PM BELTZ 211
04/27/04 (S) Moved SCS CSHB 549(L&C) Out of
Committee
04/27/04 (S) MINUTE(L&C)
05/01/04 (S) L&C RPT SCS 1DNP 3NR SAME TITLE
05/01/04 (S) NR: BUNDE, SEEKINS, STEVENS G;
05/01/04 (S) DNP: FRENCH
05/03/04 (S) JUD AT 8:00 AM BUTROVICH 205
05/03/04 (S) Heard & Held
05/03/04 (S) MINUTE(JUD)
05/05/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: HB 342
SHORT TITLE: DRIVING UNDER INFLUENCE/ALCOHOL OFFENSES
SPONSOR(s): REPRESENTATIVE(s) GATTO
01/12/04 (H) PREFILE RELEASED (1/2/04)
01/12/04 (H) READ THE FIRST TIME - REFERRALS
01/12/04 (H) JUD
02/02/04 (H) JUD AT 1:00 PM CAPITOL 120
02/02/04 (H) Heard & Held
02/02/04 (H) MINUTE(JUD)
02/04/04 (H) JUD AT 1:00 PM CAPITOL 120
02/04/04 (H) -- Meeting Canceled --
02/09/04 (H) JUD AT 1:00 PM CAPITOL 120
02/09/04 (H) <Bill Hearing Postponed>
02/20/04 (H) JUD AT 1:00 PM CAPITOL 120
02/20/04 (H) Heard & Held
02/20/04 (H) MINUTE(JUD)
02/27/04 (H) JUD AT 1:00 PM CAPITOL 120
02/27/04 (H) Heard & Held
02/27/04 (H) MINUTE(JUD)
03/01/04 (H) JUD AT 1:00 PM CAPITOL 120
03/01/04 (H) Moved CSHB 342(JUD) Out of Committee
03/01/04 (H) MINUTE(JUD)
03/08/04 (H) JUD RPT CS(JUD) NT 3DP 4NR
03/08/04 (H) DP: ANDERSON, GRUENBERG, MCGUIRE;
03/08/04 (H) NR: HOLM, GARA, SAMUELS, OGG
03/08/04 (H) FIN REFERRAL ADDED AFTER JUD
04/13/04 (H) FIN AT 3:00 PM HOUSE FINANCE 519
04/13/04 (H) Heard & Held
04/13/04 (H) MINUTE(FIN)
04/26/04 (H) FIN AT 1:30 PM HOUSE FINANCE 519
04/26/04 (H) Continuation of Meeting Canceled 6:39
PM
04/27/04 (H) FIN AT 8:30 AM HOUSE FINANCE 519
04/27/04 (H) -- Meeting Canceled --
04/27/04 (H) FIN AT 1:30 PM HOUSE FINANCE 519
04/27/04 (H) Moved CSHB 342 (FIN) Out of Committee
04/27/04 (H) MINUTE(FIN)
04/28/04 (H) FIN RPT CS(FIN) NT 2DP 3NR 5AM
04/28/04 (H) DP: FOSTER, WILLIAMS; NR: JOULE, FATE,
04/28/04 (H) HARRIS; AM: MEYER, HAWKER, STOLTZE,
04/28/04 (H) CROFT, CHENAULT
05/01/04 (H) MOVED TO BOTTOM OF CALENDAR
05/01/04 (H) TRANSMITTED TO (S)
05/01/04 (H) VERSION: CSHB 342(FIN) AM
05/02/04 (S) READ THE FIRST TIME - REFERRALS
05/02/04 (S) JUD, FIN
05/05/04 (S) JUD AT 8:00 AM BUTROVICH 205
WITNESS REGISTER
Mr. Craig Tillery
Assistant Attorney General
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Explained the changes made in version X of
SB 97
Mr. Joe Balash
Staff to Senator Therriault
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Answered questions about SB 97
Representative Kevin Meyer
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of HB 334
Ms. Linda Wilson
Public Defender Agency
Department of Administration
th
900 W 5 Ave., Suite 200
Anchorage, AK 99501-2090
POSITION STATEMENT: Supports CSHB 334(RLS)
Ms. Vanessa Tondini
Staff to Representative McGuire
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented CSSSHB 273(JUD)am and answered
questions about HB 549
Ms. Amanda Wilson
Staff to Representative Rokeberg
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Answered questions about HB 342
Representative Carl Gatto
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Prime sponsor of HB 342
Mr. Cody Rice
Staff to Representative Gatto
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented HB 342 for the sponsor
Ms. Cindy Cashen
MADD Juneau Chapter
Juneau, AK
POSITION STATEMENT: Supports HB 342
ACTION NARRATIVE
TAPE 04-63, SIDE A
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 8:24 a.m. Senators Ogan,
Therriault, French and Chair Seekins were present.
SB 97-ATTY FEES: PUBLIC INTEREST LITIGANTS
CHAIR SEEKINS informed members that a new proposed committee
substitute (CS), labeled version X, was before the committee.
SENATOR THERRIAULT moved to adopt version X for the purpose of
discussion. Without objection, the motion carried.
SENATOR THERRIAULT asked how the issues of sovereignty and the
preservation of the rights to appeal the recent court decision
have been addressed in version X.
CHAIR SEEKINS said that according to Section 6 on page 5,
Sections 2 through 5 of the act apply to civil action appeals
filed on or after the effective date of the bill, therefore it
would not affect the current lawsuit.
SENATOR FRENCH noted that according to Section 8, Sections 5(a)
and (c) are retroactive to September 11, 2003.
CHAIR SEEKINS took an at-ease from 8:25 a.m. to 8:30 a.m. He
then stated that according to Section 8, the retroactivity
clause would apply to the court rules. Section 4 of Version G-2,
which applied to sovereign immunity, was removed from version X.
SENATOR THERRIAULT said he did not feel that using the sovereign
immunity approach to say that the legislature shall not pay the
court ruling for fees, discussed the previous day, was the
preferable way to go out because it would set up a potential
constitutional conflict between the legislature with its
appropriation powers, and the judicial branch.
CHAIR SEEKINS agreed.
SENATOR FRENCH asked if the provisions of Section 2(f) through
(i) are identical to legislation passed the previous year.
SENATOR THERRIAULT said that is his understanding.
SENATOR FRENCH noted according to the recent court decision,
subsection (f) and (g) are unconstitutional. He asked Mr.
Tillery to respond to that concern.
MR. CRAIG TILLERY, Assistant Attorney General, Department of Law
(DOL), said version X would still contain a two-thirds vote
requirement for a court rule change, which was the primary leg
upon which the court decision was based. He noted the court
decision, with respect to fees against a public interest
litigant, was also based on due process and equal protection
grounds. He continued:
And to a large extent, that was responding to the
court's understanding that the legislature - of a
disconnect between the legislature's - what they do -
the legislature's focus on natural resource cases and
the fact that the bill affected a broader range of
cases. I haven't seen the bill but at least some
versions have made it clear that the legislature
understands that this does affect a broader range of
cases other than just natural resource cases. I don't
know if that's in there.
CHAIR SEEKINS interjected to say that those sections in version
X are the same as those in version G-2.
MR. TILLERY replied:
Then there was something in [version] G-2 that did
make sure that connection was there so that would have
to go back to the court for it to do that. Okay, with
that understanding now, is it constitutional? So it
would present the court with a different concern. Also
... part of those statutes was the attorneys' fees to
a public interest litigant. The court ... indicated
that they were not raised. In the G-2 version, that
was split out and a severability clause was added to
make clear that the legislature was treating those as
separate - the fees to a public interest litigant and
the fees against so that if one of those proved to be
constitutionally infirm, the other could still stand.
And again, I haven't seen the version so I don't know
if that survived or not.
CHAIR SEEKINS asked where that provision was located in version
G-2.
MR. TILLERY said that was in Section 2 (f) and (g). Subsection
(f) of the version last year said the court or the state could
not discriminate the award of attorneys' fees to or against. In
version G-2, (f) was made to a party and (g) was made against a
party.
CHAIR SEEKINS asked if that was in Section 2 of version G-2.
MR. TILLERY said what was originally combined into one section
was divided into subsections (f) and (g) of Section 2 in version
G-2.
MR. TILLERY said this version, as opposed to HB 145, clarifies
that should the court determine that the award of attorneys'
fees against a public interest litigant is constitutionally
defective, the legislature's decision regarding fees to a public
interest litigant may still stand.
SENATOR FRENCH pointed to Section 4 on page 4 of version X,
regarding attorneys' fees and costs.
CHAIR SEEKINS interjected to say that Section 4 was Section 5 in
version G-2.
SENATOR FRENCH asked if everyone is operating on the premise
that section 4 is aimed at subsistence cases and what the
drafter's intent was.
SENATOR THERRIAULT said his understanding is that section is
aimed at subsistence cases.
SENATOR FRENCH asked Mr. Tillery if he agrees that language
creates a far weaker standard than the one the state has been
operating under for some time. He noted:
The standard here is that you'll get your attorneys'
fees if you do not otherwise have an economic
incentive to bring the case. That seems to imply that
if you have any economic incentive to bring the case,
then you can't be a public interest litigant, but the
standard we've been working under is quite different.
The standard we've been working under says your
economic incentive must be sufficient incentive to
file a suit in order to fail. So, that is, you've got
to have a sufficient economic incentive to bring it
for money reasons, and if you have that sufficient
incentive, then you're not a public interest litigant.
Mr. Tillery, I'd be interested in hearing your
comments on that change in standards.
MR. TILLERY commented that he believes a court would construe
that similarly to the way it now considers an economic incentive
with regard to public interest litigant criteria. He stated:
In fact, this provision is actually more beneficial to
a public interest litigant than the current court-made
policy in that it does not require the other three
factors. It doesn't require a large number of people
to be affected and it doesn't require an issue of
great public importance and so forth. It only really -
if you fit within - if it's an appeal from this kind
of a case, and if you don't have an economic incentive
- and I certainly agree, you could construe - it could
be argued that that is a tougher standard but - and I
don't know what the drafter's intentions were but I
don't believe a court would construe it as tougher. I
think the court would view it as too extensive with
its public interest litigant criteria.
SENATOR FRENCH then questioned whether the drafter's intent is
to weaken or maintain the standard.
SENATOR THERRIAULT deferred to the drafter to answer that
question.
CHAIR SEEKINS agreed to contact the drafter. He then asked Mr.
Tillery whether he sees this provision as creating a tougher or
weaker standard to award attorneys' fees.
MR. TILLERY said it comes down to a question of intent and noted
that the constitutional exception uses different language: it
says the claimant does not have sufficient economic incentive to
bring the action or appeal regardless of constitutional claims
involved. The language [in version X] is drafted differently. He
explained that if the drafter's intent is to use the same
standard, using the same language would be useful.
CHAIR SEEKINS asked if subsistence is not an economic interest
but is an interest of meeting the protein needs of one's family.
MR. TILLERY replied, "Mr. Chairman ... this section is not, as I
read it, is not directed solely at subsistence so it would
include any actions of the Board of Fisheries or the Board of
Game."
SENATOR FRENCH asked why Sections 5(a) and (c) need to be made
retroactive to September 11, 2003.
CHAIR SEEKINS asked Mr. Tillery if there is any reason from
DOL's perspective.
MR. TILLERY said he was again at a disadvantage as he was
looking at an older version of the bill.
CHAIR SEEKINS announced an at-ease from 8:43 a.m. to 8:48 a.m.
He then asked the drafter, Jerry Luckhaupt, to walk members
through the bill.
MR. JERRY LUCKHAUPT, legal counsel, Legal and Research Services
Division, asked that Mr. Balash address the first question.
MR. JOE BALASH, staff to Senator Therriault, told members:
In looking at the provision on Title 16, what we were
attempting to do was allow for the appeal of the Board
of Game, Board of Fish decisions for individual
subsistence and personal use users. We wanted to
cleave away those who had a large economic incentive,
like a commercial fish harvester or processor or a big
game guide and sort of take those folks out of the
equation. And so, while the intent may not have been
to create a necessarily weaker standard for a litigant
to qualify for full fees, that's how it came back and,
after thinking about it a little bit, I guess the
question is for the committee - do you want, in order
to protect subsistence users, do you want to give them
a little bit lower bar because you find that the
benefits and the privilege and right for subsistence
users who depend on their food to be a little bit
lower?
CHAIR SEEKINS said he had no problem with that as long as it is
done on an individual basis, so that the bill will not create a
lower bar for a whole new class of people. He said that would
allow those people who depend on the resource to challenge the
ability of their families to do so. He asked Mr. Luckhaupt if
the bill was drafted clearly enough so that it addresses
individual cases and not class action lawsuits.
MR. LUCKHAUPT said it will not preclude groups of people from
gathering together to challenge those decisions. He continued:
And nominally even in a class action, you're going to
have nominal plaintiffs - you're going to have to go
out and find a plaintiff, a particular person that's
affected and name them and then you certify your class
action afterwards so, you know, it doesn't preclude
those types of actions but to the extent that it
involves groups or organizations or corporations that
have an economic incentive either in the fishery or in
harvesting the resource, then it should be precluded
under this.
CHAIR SEEKINS asked if the bill could be drafted to clarify that
it is intended for those people who depend on the resource for
sustenance as part of that process.
MR. LUCKHAUPT assumed he could be more specific but cautioned
the more specific the language, the more potential for problems
such as equal protection because it would create benefits for
one smaller group that are denied to others. He advised that
sufficient justification would have to be provided for that
decision. He added, "That may be that, you know, these are
people that you've decided depend upon the resource for
sustenance and that may be a good enough reason. I don't know. A
court will decide that based upon the sliding scale approach,
the equal protection approach."
CHAIR SEEKINS responded that in looking at how Title 16 applies
right now, as far as game is concerned, almost every resident is
considered to be a subsistence user because of the tier system
that applies to all residents on an equal basis. He said he
would have no problem saying that those people who depend on the
resource to feed their families should be entitled to the full
award of fees for actions taken by the Board of Game as he
believes that is consistent with what is considered to be
subsistence. The Boards of Game and Fisheries have, under the
current system, a primary responsibility to provide for
subsistence uses. He commented, "We do have the highest priority
for the uses of the resource to be subsistence and for those
people who are using the courts to be able to protect that
right, that they have the ability to recover full attorneys'
fees. Now would that make it easier to justify it in terms of
equal protection under the Constitution?"
MR. LUCKHAUPT said that providing for people's basic sustenance
would be a fairly substantial justification.
CHAIR SEEKINS referred to page 4 and asked Mr. Luckhaupt to
provide a conceptual amendment for the committee's
consideration.
SENATOR THERRIAULT asked for an answer to the question [about
retroactivity] in Section 8.
SENATOR FRENCH reiterated his question of why Sections 5(a) and
(c) would be retroactive to September 11, 2003.
MR. BALASH replied that he could not remember the exact
effective date of HB 145 but he believed it was sometime after
September 11. He explained that the litigation that Judge
Collins ruled on was filed in Superior Court the day before that
law [HB 145] went into effect. Therefore, September 11 was prior
to the date that case was filed.
SENATOR FRENCH asked if the intent of Section 8 is to cure the
defects Judge Collins found in the law by making this bill take
effect before HB 145 went into effect.
MR. BALASH believed that was correct.
MR. LUCKHAUPT responded:
...That's sort of that view - while the legislature
did not agree that there was a defect with a change to
the court rule affecting attorneys' fees was
procedural, if it was, basically the legislature in
portions of this bill is attempting to go back and say
the time that bill was passed - here's a two-thirds
vote.... And so it's up to the court to decide whether
they can relate back or not. I'm doubtful that that
could occur. I'm doubtful that any new provisions we
enact now, that we could somehow relate those back. In
fact I'm pretty sure that wouldn't happen.
SENATOR THERRIAULT pointed out that the committee discussed a
section that stripped out the old statute, which precluded the
legislature and administration's right to continue to appeal a
lower court's ruling. That section was removed so that right has
been preserved. Therefore, if the legislature and administration
want to further litigate that issue, that right has been
preserved.
CHAIR SEEKINS asked Mr. Luckhaupt and Mr. Balash to draft an
amendment to Section 4 to make sure it applies to subsistence
users on an individual basis, which he would introduce later in
the process. He then closed public testimony, as there were no
more participants.
SENATOR THERRIAULT pointed out that he requested a new fiscal
note from the Administration, which was delivered that morning.
CHAIR SEEKINS stated the new fiscal note is a zero fiscal note.
SENATOR FRENCH asked how much has been spent to date defending
the previous law in court.
CHAIR SEEKINS indicated that Mr. Marcus [of DOL] was unaware of
the cost.
SENATOR THERRIAULT moved CSSB 97(JUD) from committee with
individual recommendations and its attached zero fiscal note.
SENATOR FRENCH objected.
The motion to move CSSB 97(JUD) carried with Senators Ogan,
Therriault and Seekins in favor, and Senator French opposed.
The committee took up HB 334.
CSHB 334(RLS)- UNLAWFUL EXPLOITATION OF MINOR/CHILD PORN
REPRESENTATIVE KEVIN MEYER, sponsor of HB 334, told members that
this legislation increases the penalty for unlawful exploitation
of a minor, basically the production of child pornography. It
will increase the penalty from a class B to a class A felony for
a second offense. He thanked Senator French for his input on
this bill during its early stages. His initial intent was to
concentrate on the actual production of child pornography and
unlawful exploitation of a minor. However, as the bill moved
through the committee process, discussions ensued about how, if
there was no demand for the product, the product would not be
made. He disagrees with that argument. He said he believes the
distribution is also a problem so agreed to also raise the
penalty to a class A felony.
REPRESENTATIVE MEYER said his concern about this issue stems
from his service for three years on the Stand Together Against
Rape (STAR) board, where he saw pornographic activities lead to
more serious offenses, such as sexual abuse of a minor. In
addition, he is the father of two young daughters. He believes
that young juveniles are very vulnerable and can often be
enticed to participate in pornographic activities for drugs or
money and later regret that participation. Once a pornographic
video is made, it could be circulated or put on the Internet
forever.
He pointed out the presumptive sentence for a class B felony is
one to four years in prison. Research shows that most people
convicted of that crime spend only one to two years in prison.
He is concerned that convicts can be out on the street after one
year, reoffending the same crime. That is the reason he believes
a long prison sentence for a second offense is appropriate. This
legislation will more closely align Alaska's penalty with the
federal penalty, which applies to interstate activity. He said
he has heard from various groups that because Alaska's law is so
liberal compared to the federal law, it is often difficult to
get federal grants.
CHAIR SEEKINS asked for the definition of "unlawful exploitation
of a minor."
REPRESENTATIVE MEYER defined it as the making of a video or
taking a photograph. He explained that no touching is involved;
touching falls under sexual abuse of a minor.
CHAIR SEEKINS asked if anything in the bill would apply to a
parent who takes a photograph of his infant in the bathtub for a
family photo album.
REPRESENTATIVE MEYER said nothing in the bill would apply.
CHAIR SEEKINS said he wanted to affirm for the record that is
not the intent of this legislation.
REPRESENTATIVE MEYER noted that he has done some research on the
type of people being convicted for this crime and found they are
not parents taking photos of their naked infants.
MS. LINDA WILSON, Public Defender Agency, commended
Representative Meyer for the hard work he has done on this bill.
She noted the current version of the bill targets predatory
pedophiles. The language in the existing statute of unlawful
exploitation is fairly broad; it addresses anyone under the age
of 18 and applies to someone who intends to produce a single
photo. There have been concerns expressed that the original law
makes the penalty a class A felony, and could be applied to just
that one offense. It could also apply to juveniles or two people
engaged in consensual sex who took a picture. HB 334 is more
targeted toward the people it should apply to.
CHAIR SEEKINS noted no one else wished to testify, so he closed
public testimony.
SENATOR OGAN thanked Ms. Wilson for her input on this bill,
especially in light of her huge workload.
CHAIR SEEKINS also thanked Ms. Wilson.
SENATOR OGAN moved CSHB 334(RLS) from committee with individual
recommendations and its attached fiscal note. There being no
objection, the motion carried.
CSSSHB 273(JUD)am -PARENTS' WAIVER OF CHILD'S SPORTS CLAIM
MS. VANESSA TONDINI, staff to Representative Lesil McGuire,
sponsor of HB 273, explained to members that this legislation
gives the legal right to a parent to release a child's claim of
negligence against a provider of a sports or recreational
activity. She recalled at the last meeting on this legislation,
members raised very good points about what portions of an
activity the waiver should cover. She discussed that issue with
committee members' staff and the legislative drafter and
explained:
What this bill does is to give the parent the right to
sign a waiver for their child and the specifics of the
waiver in this bill were envisioned to be left up to
the private parties contracting. We didn't want to
interfere with the right of a private company or with
an adult to contract however they see fit in regards
to what a waiver might contain. So we sort of
envisioned, depending on the activity, whether it be
playing baseball or skiing, the waiver itself would
contain the details of what was included, whether it
be transportation or not. This bill just says as an
adult, you can contract to whatever you want to - sign
a waiver releasing your claim of negligence, and you
could also do the same for your child. So that's sort
of one issue and that's what we sort of envisioned
this bill as doing, as just recognizing the parents'
right to do that.
If we then wanted to delineate what a company or a
recreational provider could waive - or what claims of
negligence would cover or not, saying we don't think
that you should be able to waive a claim of negligence
regarding transportation, only the activity itself,
then that would have to be - I don't mean to say a
different bill, but we just need to make sure how we
amend that. It doesn't say the parents have the
authority to waive with regard to participation in the
activity but they don't have the authority with the
ancillary activities. So we wouldn't be opposed to
specifically laying out which activities or the
portions of the activity a waiver would be given for
or valid for but, to the extent it is addressed in
this bill, on page 2, line 24, the clause is added to
the bill which just reads, 'to the extent the waiver
is otherwise valid'. So I believe this bill as
written...says that a waiver as it's drawn up to fit
that particular activity and as the parties choose to
contract is valid unless we as a legislature wanted to
say what couldn't be included in that waiver, such as
transportation or other ancillaries....
CHAIR SEEKINS said that is how he read the bill, to give the
parent the right to waive on behalf of the minor child but does
not constrict the content of the waiver. He noted the law
already waives the sponsor for gross negligence for harm caused
by the inherent risk of the activity. He asked if this bill will
allow a parent to waive negligence, but not gross negligence or
reckless behavior.
MS. TONDINI said that is correct.
CHAIR SEEKINS said the parent would have to determine exactly
what he or she is willing to waive in the content of the
contract. He said he believes parents should have the right to
act on behalf of their minor children.
SENATOR THERRIAULT referred to the language on page 2, line 24,
and commented that a subsequent piece of legislation could carve
those things out. He said his concern is that parents understand
that some activities are inherently dangerous and would sign a
waiver with that in mind but would not know that the waiver
applies to everything else.
CHAIR SEEKINS suggested saying in the bill that to the extent
that the activities waived are included in the waiver form and
to the extent the waiver is otherwise valid so that those
activities being waived would be specified in the contract so
that the parent is aware of exactly what he or she is waiving.
SENATOR FRENCH liked that idea and said he read the cases Ms.
Tondini cited at the last meeting. The rule is very strict.
TAPE 04-63, SIDE B
He explained that those cases are always resolved against the
party that is seeking "to get off the hook." To be enforced, the
intent to release a party for future negligence must be
conspicuously and unequivocally expressed. He said the waiver
must be broken down to on-field, off-field activities, travel,
nighttime activities, and etcetera.
CHAIR SEEKINS proposed a conceptual amendment [Amendment 1] to
insert, after the word "extent", a statement that says the
waived activities are clearly and conspicuously set forth in the
form of the waiver and to the extent that the waiver is
otherwise valid.
SENATOR FRENCH felt such language comports with the cases he has
read.
MS. TONDINI did not believe the sponsor would oppose such an
amendment as it is within the intent of the legislation.
CHAIR SEEKINS pointed out that to be conspicuous, the language
would have to be in a different font or bolded to set it off.
CHAIR SEEKINS repeated his proposed amendment and moved for its
adoption.
There being no objection, Amendment 1 was adopted.
There being no further discussion, SENATOR THERRIAULT moved SCS
CSHB 273(JUD) and its accompanying zero fiscal note from
committee with individual recommendations.
CHAIR SEEKINS announced that without objection, the motion
carried.
HB 549-UNSOLICITED COMMUNICATION:AIRCRAFT CRASH
MS. VANESSA TONDINI, staff to Representative McGuire, chair of
the House Judiciary Committee, which sponsored HB 549, reminded
members she presented the bill at a previous hearing and was
available to answer questions.
CHAIR SEEKINS noted that with no one wishing to testify, public
testimony was closed and the bill was under consideration by
committee members.
SENATOR FRENCH said he had been hoping to hear from someone who
has been badgered by a lawyer during a time of personal family
grieving or other emotional turmoil, in relation to this bill.
Instead, he has only heard from businesses that have said that
attorneys continue to file lawsuits against them. He stated:
With all due respect to the folks who brought us this
bill, it's been brought to us under the guise of
perspective clients who maybe feel overwhelmed by the
circumstances, giving rise to the need for legal
services - you know, the families of the deceased or
injured are vulnerable to the external pressures of
others. And we've heard absolutely zero testimony
about that - none, not a bit. For that reason I think
this bill is more about giving some kind of a break to
the small aviation operators in Bush Alaska - and they
may need a break - but that's not the reason that the
bill came to us under - the auspices. And so I look at
section (d), which would make it a crime to send a
postcard or make a phone call to someone offering them
legal services 30 days after an accident. It would
fine them $100,000 for having done so and indeed, the
cases that have been brought to our attention are head
bump cases - they're not serious cases, they're cases
where the aviation operator feels aggrieved because
someone's chasing after someone with a head bump. And
I just see something that's going to get tossed out of
court and it's going to be found to be wildly out of
proportion to the harm that's done by someone making a
phone call or signing up a client.
SENATOR FRENCH then moved [Amendment 2] to strike section (d)
and to make it a civil penalty. He explained that if the
attorney general wants to file a civil case against a lawyer and
pursue a reasonable fine, he feels that would be acceptable. He
argued that if a person is unwilling to bring a bar complaint
against one of these attorneys, the person is unlikely to want
to testify in a criminal case.
CHAIR SEEKINS asked Senator French if Amendment 2 is a
conceptual amendment.
SENATOR FRENCH said it is.
SENATOR OGAN objected for the purpose of discussion and asked if
Amendment 2 is to strike section (d). He said if so, that is not
a conceptual amendment.
SENATOR FRENCH said his intent is to strike section (d) and to
replace it with language that authorizes the attorney general to
bring an action to enforce and pursue a civil penalty up to
$100,000 for such activity. He said that would put some
sideboards on the amount the attorney general could pursue.
MS. TONDINI said the sponsor would oppose Amendment 2 because
she feels strongly that a criminal penalty is appropriate and
necessary and is the reason for the bill. She furthered that the
federal law contains a very weak civil penalty of $1,000, which
is not enforced. She also cautioned that it is possible that the
bar association would not take notice of civil enforcements,
therefore Representative McGuire wanted to have a criminal
conviction on the person's record to make it noticeable. She
said the $100,000 fine is designed to get people's attention and
indicated that the awards in these cases can be very large so a
large fine is necessary to deter such behavior.
SENATOR OGAN asked if there are sanctions for this same activity
in other areas.
MS. TONDINI said the Senate State Affairs Committee members
asked why this same penalty hasn't been put into law for other
types of accidents. She said the large penalty in this bill is
due to the fact that aviation accidents receive a lot of media
attention, are usually of a tragic nature and involve large
amounts of money.
SENATOR THERRIAULT asked Ms. Tondini to review the federal law.
MS. TONDINI said under the federal law, the violation is a civil
penalty and carries a $1,000 fine. It requires the Civil
Aeronautics Board or the U.S. Attorney General to take action to
be enforced. She noted it has not been enforced much but the
other issue is that it does not apply to intrastate flights; it
only applies to interstate flights, so, for example, it would
not cover flights between Anchorage and Bethel.
SENATOR THERRIAULT asked if the owner of an aviation service can
only file a bar complaint on an interstate flight based on the
federal law.
MS. TONDINI recalled the testimony of Marsha Davis, who said the
aviation companies would have the ability to file a bar
complaint but that is not an advantageous thing to do during a
settlement agreement. She said people are hesitant to file bar
complaints for that reason and because they are reluctant to
pursue a bar complaint while grieving over a family loss.
SENATOR THERRIAULT asked if the person who has that available as
a remedy is the person who was injured or lost a loved one.
MS. TONDINI said she believes anyone can file the bar complaint.
SENATOR THERRIAULT asked if that would apply to the owner of the
aircraft.
MS. TONDINI said she did not see why not.
SENATOR THERRIAULT asked if that also applies to intrastate
flights.
SENATOR FRENCH said if the attorney was operating in Alaska and
a member of the bar, a bar complaint could be filed.
SENATOR THERRIAULT asked what the basis of the claim would be
involving an intrastate flight if the federal law does not apply
to them.
MS. TONDINI said the claim would be brought under the Alaska
Rules of Professional Conduct, namely Rule 7.3(a). She read:
An attorney shall not solicit by in person or live
telephone contact professional employment from a
perspective client with whom the lawyer has no family
or prior professional relationship when a significant
motive for the lawyer's doing so is the lawyer's
pecuniary gain.
SENATOR THERRIAULT asked why no one is filing claims under that
rule now.
SENATOR FRENCH said that is his point. He said the rationale he
has heard from the lawyers representing the airline companies
is, "Well that's just too inflammatory, that's too combative,
we'll get all beat up, they'll be mean to us if we do that. It's
too aggressive." He said his response is that is no more
aggressive than asking a district attorney to file a criminal
complaint on someone and brand them with a criminal action with
a $100,000 fine. That is simply passing on one's obligation to
do what's right to somebody else.
CHAIR SEEKINS said in his opinion, the issue goes back to
whether the activity was done knowingly, since rules of conduct
exist.
SENATOR FRENCH argued that the same can be said about any
profession.
MS. TONDINI said it is her understanding that if a culpable
mental state is not specifically described, the standard is
knowingly, so that would apply in HB 549.
SENATOR FRENCH said if an attorney made contact 43 days after an
accident instead of 45 days, due to a miscalculation, that would
not be a defense.
CHAIR SEEKINS announced an at-ease. Upon reconvening, he said he
would bring HB 549 up during the afternoon to give Ms. Tondini
time to talk to the sponsor about some of the concerns expressed
by committee members. He thanked Ms. Tondini for her time.
SENATOR THERRIAULT noted that bar complaints are a huge problem
for attorneys so he is trying to balance the fact that there is
a system available that the public may not know how to avail
itself of but when a bar complaint is filed, it gets the
attention of the attorneys. He said if an attorney had a number
of these complaints filed against him, the bar association would
definitely take notice.
CHAIR SEEKINS announced the committee would take up HB 342.
HB 342-DRIVING UNDER INFLUENCE/ALCOHOL OFFENSES
MR. CODY RICE, staff to Representative Carl Gatto, co-sponsor of
HB 342, said this legislation addresses several issues related
to driving under the influence (DUI), limited licenses, and
look-back provisions. HB 342 sets up a situation where, based on
blood alcohol content (BAC), the most egregious offenders will
be required to have ignition interlocks for six months to one
year. It also contains provisions that allow a 15-year look-back
for misdemeanor DUI offenses. Currently, the law provides for a
lifetime look-back. Felony DUIs would have a 10-year window. HB
342 also contains provisions for the granting of limited
licenses and requires the offender to go through a series of
steps. He offered to answer questions.
SENATOR THERRIAULT asked for further explanation of the look-
back provisions.
MR. RICE explained that under current law, the felony look-back
provision requires that a third offense within eight years
qualifies as a felony. In 2006, the look-back time period will
increase to ten years. The misdemeanor look-back is unlimited.
This bill would limit that window to 15 years.
SENATOR FRENCH asked how the 15-year time limit was arrived at.
MR. RICE said that was a provision of HB 175, which was
Representative Rokeberg's bill.
MS. AMANDA WILSON, staff to Representative Rokeberg, explained
in looking at other states' provisions, 15 years is the longest
look-back provision, except in Massachusetts. The only other
state with a lifetime look-back provision is Massachusetts but
the consequences for subsequent offenses are less harsh than
Alaska's. Currently, Alaska has one of the harshest punishments
for subsequent offenses in the nation. She noted the intent is
not to go easy on subsequent offenders but to find some number
to make the law more just.
SENATOR THERRIAULT asked if an intoximeter works in extremely
cold temperatures.
MR. RICE said he believes Senator Therriault is questioning how
the ignition interlock works, and answered that ignition
interlocks have been used in Canada and Poland and have been
approved for use in Alaska since 1996. They have not been widely
used because they are not commercially viable, since people are
not required to use them. He noted that judges do not want to
impose their use because they are not easily available and
manufacturers do not want to market them here since they are not
widely used. This bill will solve that problem by requiring the
most egregious offenders to use them. He said his data suggests
that about 50 percent of the DUIs in Alaska are double the legal
limit. People in that range would be required to use an ignition
interlock for six months after the offense.
He informed members that he has talked to an ignition interlock
distributor who has expressed a willingness to make them
available in Alaska if this bill passes.
CHAIR SEEKINS asked about the reliability and effectiveness of
interlock devices.
MR. RICE said while researching that question, he learned that
what these companies are selling is their reputations because
their devices cannot be bypassed. Part of the reason they
require a minimum pool of ignition interlock users is that they
must do background checks on installers and make sure they are
well trained. He said they have been proven, according to
journal articles, to reduce recidivism. MADD is on record in
support. He explained that ignition interlocks are located near
the steering column. The driver must blow into the device before
the car will start. They are fairly complex to prevent someone
other than the driver to activate them. They also require
retests while the car is being driven and will log whether the
retest was performed. The cost is about $3 per day; the offender
would lease the device and pay for its installation.
SENATOR OGAN questioned how such a device could ensure that the
driver was activating it, not someone else.
MR. RICE said no device could assure that but the fact is that
it is highly unlikely that a sober passenger would activate the
device for a drunk driver, which is a crime in existing statute.
SENATOR OGAN commented that it appears the only way to get a
limited license under the bill is to have an interlock device
installed.
MR. RICE said a person could receive a limited license for a
first offense without an interlock device. The bill also
contains a separate provision from HB 175 that addresses the
wellness court program.
MS. WILSON explained that the wellness court program currently
has about 40 participants. That court only takes misdemeanants
and provides an intensive outpatient treatment program.
Participants must report to the court regularly and are required
to take naltrexone. Upon graduation after 18 months of
successful treatment, participants are provided a limited
license without an ignition interlock device. An offender who
does not participate is able to get a limited license within 90
days but must use an interlock device.
SENATOR FRENCH referred to lines 6-7 on page 1, and asked what
prompted that language.
MR. RICE said the legal drafter used that language to allow the
court to impose the use of an interlock device as part of the
sentence. Initially, ignition interlocks were only assigned as
part of probation requirements.
CHAIR SEEKINS furthered that the judge could require the
offender to use the device for a certain time period even if the
offender was not on probation.
MR. RICE agreed.
SENATOR FRENCH asked how that would be enforced.
MR. RICE said in all cases, the offender's license is revoked,
either judicially or administratively. To reinstate the license,
the offender would have to provide proof of certain actions to
DMV personnel. That might include showing a letter from an
interlock device company saying the device had been installed.
CHAIR SEEKINS asked Ms. Cashen to testify.
10:08 a.m.
MS. CINDY CASHEN, representing four MADD chapters in Alaska,
stated support for this legislation and the use of interlock
devices. According to the studies conducted in Maryland,
California, and Alberta, Canada, they have worked in other
states. The use of the devices resulted in a 50 to 90 percent
reduction of subsequent offenses compared to offenders who were
not required to use them. She said that MADD supports the
wellness court provision in the bill. The wellness court has
been successful. She commented, "We've seen that by helping
wellness court clients get back on the road quicker, they become
a contributor to our community as opposed to draining our
community of many things, among them resources."
MS. CASHEN said the amendment is of concern to MADD because [the
bill] as written, will make it easier for drunk drivers to get
their licenses back and continue to drink and drive. MADD
believes that the first and second time a person makes a mistake
a look-back of 15 years is appropriate but not for a third
offense. Studies show that a drunk driver drives between 200 and
2,000 times before being caught and, according to the National
Transportation Safety Board, it takes 10 years to catch an
offender the second time. She said the amendment is a reasonable
request. If a person is caught three or more times, the court
should be able to look-back in the records forever. She pointed
out that some of the people that want the amendment that
shortens the look-back provision to 15 years is a multiple DUI
offenders, one an 8-time offender. This bill will allow that
person to get his license back sooner. She cautioned that many
high-risk DUI offenders have been caught more than twice, so
this amendment is very dangerous. She asked members to consider
the MADD amendment.
SENATOR FRENCH asked Ms. Cashen if she was saying that 15 years
is an acceptable look-back time period for a first or second
offense, but a lifetime look-back period should apply to a third
offense.
MS. CASHEN said that is not MADD's official position. She
explained, "With MADD national and MADD chapters, we are able to
work within our states - we are given a certain amount of
freedom and this is one that we've come up with within the
state."
REPRESENTATIVE CARL GATTO, prime sponsor of HB 342, expressed a
concern that if the bill is amended, it will have to go back to
the House for concurrence and, due to time constraints, that
could prevent passage of the bill. He said the goal of the bill
is to prevent drunk drivers from driving. He said with that goal
in mind, he asked whether the amendment will further that goal.
He does not believe there is enough evidence to prove that
extending the look-back time period will be beneficial. He said
his intent is to provide motivation and encouragement for people
who "have been on the wrong side" and to give them an
opportunity to correct their actions. If indeed they are out of
the loop, they will drive drunk regardless of anything.
He said he believes 15 years is a good, long time and he
questioned whether records will exist in some instances for a
longer time period. He said this bill needs some restrictions.
He said he believes this bill is an excellent one that has wide
support and he does not want it to be jeopardized. He noted that
extending the look-back provision could be considered next year.
He repeated that his goal is to "get the drunks out of the cars"
and not to look-back to get anyone who has ever been guilty of
anything.
SENATOR FRENCH noted that he had a schedule conflict.
TAPE 04-64, SIDE A
CHAIR SEEKINS felt Representative Gatto's argument was
compelling even though he agrees with the intent of the
amendment. He expressed concern about the late date of the
session and said he would like to see the concept of the bill
embodied in law this year. He also pointed out that a very long
look-back period could encourage offenders to plead to other
offenses that would not go on their records as DUIs. He asked
the will of the committee.
SENATOR OGAN expressed support for Amendment 1, which reads as
follows, and moved to adopt it.
A M E N D M E N T 1
IN THE SENATE JUDICIARY COMMITTEE
TO CS HB 342(FIN)AM
Page 4, lines 4-7 Delete all material and insert:
"(e) In (d)(2) of this section, "previously
convicted" means having been convicted in this or
another jurisdiction within the 15 years preceding the
date of the present offense, of any of the following
offenses; however, convictions for any of these
offenses, if arising out of a single transaction and
single arrest, are considered one previous conviction:
(1) operating a motor vehicle, aircraft, or
watercraft in violation of AS 28.35.030 or in
violation of another law or ordinance with similar
elements, except that the other law or ordinance may
provide for a lower level of alcohol in the person's
blood or breath than imposed under AS 28.35.030;
(2) refusal to submit to a chemical test in
violation of AS 28.35.032 or in violation of another
law or ordinance with similar elements; or
(3) operating a commercial motor vehicle in
violation of AS 28.33.030 or in violation of another
law or ordinance with similar elements, except that
the other law or ordinance may provide for a lower
level of alcohol in the person's blood or breath than
imposed under AS 28.33.030."
Section 4 of the bill (page 4, lines 8-26): Delete all
material.
Add two new sections to the bill as shown on the
following two pages.
"*Sec.___. AS 28.35.030(b) is amended to read:
(b) Except as provided under (n) of this section,
driving while under the influence of an alcoholic
beverage, inhalant, or controlled substance is a class
A misdemeanor. Except as provided under (p) of this
section, upon conviction,
(1) the court shall impose a minimum
sentence of imprisonment of
(A) not less than 72 consecutive hours
and a fine of not less than $1,500 if the person has
not been previously convicted;
(B) not less than 20 days and a fine of
not less than $3,000 if the person has been previously
convicted once within the 15 years preceding the date
of the present offense;
(C) not less than 60 days and a fine of
not less than $4,000 if the person has been previously
convicted twice and is not subject to punishment under
(n) of this section;
(D) not less than 120 days and a fine
of not less than $5,000 if the person has been
previously convicted three times and is not subject to
punishment under (n) of this section;
(E) not less than 240 days and a fine
of not less than $6,000 if the person has been
previously convicted four times and is not subject to
punishment under (n) of this section;
(F) not less than 360 days and a fine
of not less than $7,000 if the person has been
previously convicted more than four times and is not
subject to punishment under (n) of this section;
(2) the court may not
(A) suspend execution of sentence or
grant probation except on condition that the person
serve the minimum imprisonment under (1) of this
subsection;
(B) suspend imposition of sentence;
(3) the court shall revoke the person's
driver's license, privilege to drive, or privilege to
obtain a license under AS 28.15.181, and may order
that the motor vehicle, aircraft, or watercraft that
was used in commission of the offense be forfeited
under AS 28.35.036; and
(4) the court may order that the person,
while incarcerated or as a condition of probation or
parole, take a drug or combination of drugs intended
to prevent the consumption of an alcoholic beverage; a
condition of probation or parole imposed under this
paragraph is in addition to any other condition
authorized under another provision of law."
"*Sec.___. AS 28.35.032(g) is amended to read:
(g) Except as provided under (r) of this section,
upon conviction,
(1) the court shall impose a minimum
sentence of imprisonment of
(A) not less than 72 consecutive hours
and a fine of not less than $1,500 if the person has
not been previously convicted;
(B) not less than 20 days and a fine of
not less than $3,000 if the person has been previously
convicted once within the 15 years preceding the date
of the present offense;
(C) not less than 50 days and a fine of
not less than $4,000 if the person has been previously
convicted twice and is not subject to punishment under
(r) of this section;
(D) not less than 120 days and a fine
of not less than $5,000 if the person has been
previously convicted three times and is not subject to
punishment under (r) of this section;
(E) not less than 240 days and a fine
of not less than $6,000 if the person has been
previously convicted four times and is not subject to
punishment under (r) of this section;
(F) not less than 360 days and a fine
of not less than $7,000 if the person has been
previously convicted more than four times and is not
subject to punishment under (r) of this section;
(2) the court may not
(A) suspend execution of sentence or
grant probation except on condition that the person
serve the minimum imprisonment under (1) of this
subsection;
(B) suspend imposition of sentence;
(3) the court shall revoke the person's
driver's license, privilege to drive, or privilege to
obtain a license under AS 28.15.181, and may order
that the motor vehicle, aircraft, or watercraft that
was used in commission of the offense be forfeited
under AS 28.35.036; and
(4) the court may order that the person,
while incarcerated or as a condition of probation or
parole, take a drug or combination of drugs intended
to prevent the consumption of an alcoholic beverage; a
condition of probation or parole imposed under this
paragraph is in addition to any other condition
authorized under another provision of law; and
(5) the sentence imposed by the court under
this subsection shall run consecutively with any other
sentence of imprisonment imposed on the person."
Renumber bill sections accordingly.
SENATOR THERRIAULT said he prefers that amendments be prepared
by the Legal and Research Services Division and did not know
whether he would support the amendment without knowing what the
final product would be.
SENATOR OGAN withdrew his motion to adopt Amendment 1.
MS. CASHEN informed members that the bill has a Senate Finance
Committee referral. She cautioned that the amended bill would
have to move out of that committee by Thursday for it to pass
the legislature. She noted that MADD wants to see this
legislation enacted.
CHAIR SEEKINS proposed that the Senate Judiciary Committee take
action on the bill today and that the sponsor and Ms. Cashen
speak with the drafter to make sure there are no problems with
the amendment and let the Senate Finance Committee address it.
SENATOR OGAN moved CSHB 342(FIN)am from committee with
individual recommendations.
CHAIR SEEKINS announced that without objection, the motion
carried. He then recessed the meeting at 10:25 a.m. and said his
intent was to reconvene after the Senate floor session.
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