Legislature(2005 - 2006)BUTROVICH 205
03/01/2005 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| SB87 | |
| Start | |
| SB87 | |
| SB95 | |
| SB104 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 87 | TELECONFERENCED | |
| + | SB 95 | TELECONFERENCED | |
| + | SB 104 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 1, 2005
8:35 a.m.
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Charlie Huggins, Vice Chair
Senator Gene Therriault
Senator Hollis French
Senator Gretchen Guess
MEMBERS ABSENT
All members present
OTHER LEGISLATORS PRESENT
Senator Con Bunde
COMMITTEE CALENDAR
SENATE BILL NO. 87
"An Act relating to motor vehicle safety belt violations."
MOVED SB 87 OUT OF COMMITTEE
SENATE BILL NO. 95
"An Act relating to the collection of, and the use of reasonable
force to collect, a deoxyribonucleic acid sample from persons
convicted of or adjudicated delinquent for certain crimes."
MOVED CSSB 95(JUD) OUT OF COMMITTEE
SENATE BILL NO. 104
"An Act relating to the crime of misrepresenting permanent fund
dividend eligibility; requiring the establishment of a permanent
fund dividend fraud investigation unit in the Department of
Revenue; and providing for an effective date."
HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 87
SHORT TITLE: SEAT BELT VIOLATION AS PRIMARY OFFENSE
SPONSOR(s): SENATOR(s) BUNDE
02/02/05 (S) READ THE FIRST TIME - REFERRALS
02/02/05 (S) STA, JUD
02/17/05 (S) STA AT 3:30 PM BELTZ 211
02/17/05 (S) Moved SB 87 Out of Committee
02/17/05 (S) MINUTE (STA)
02/18/05 (S) STA RPT 2DP 2NR
02/18/05 (S) NR: THERRIAULT, HUGGINS
02/18/05 (S) DP: ELTON, WAGONER
03/01/05 (S) JUD AT 8:30 AM BUTROVICH 205
BILL: SB 95
SHORT TITLE: COLLECTION OF DNA/USE OF FORCE
SPONSOR(s): SENATOR(s) BUNDE
02/07/05 (S) READ THE FIRST TIME - REFERRALS
02/07/05 (S) STA, JUD
02/22/05 (S) STA AT 3:30 PM BELTZ 211
02/22/05 (S) Heard & Held
02/22/05 (S) MINUTE (STA)
02/24/05 (S) STA AT 3:30 PM BELTZ 211
02/24/05 (S) Moved SB 95 Out of Committee
02/24/05 (S) MINUTE (STA)
02/28/05 (S) STA RPT 2DP 2NR
02/28/05 (S) DP: THERRIAULT, DAVIS
02/28/05 (S) NR: ELTON, HUGGINS
03/01/05 (S) JUD AT 8:30 AM BUTROVICH 205
BILL: SB 104
SHORT TITLE: PERMANENT FUND DIVIDEND FRAUD
SPONSOR(s): SENATOR(s) SEEKINS
02/14/05 (S) READ THE FIRST TIME - REFERRALS
02/14/05 (S) STA, JUD
02/22/05 (S) STA AT 3:30 PM BELTZ 211
02/22/05 (S) Heard & Held
02/22/05 (S) MINUTE (STA)
02/24/05 (S) STA AT 3:30 PM BELTZ 211
02/24/05 (S) Moved CSSB 104(STA) Out of Committee
02/24/05 (S) MINUTE (STA)
02/28/05 (S) STA RPT CS 4DP SAME TITLE
02/28/05 (S) DP: THERRIAULT, ELTON, HUGGINS, DAVIS
03/01/05 (S) JUD AT 8:30 AM BUTROVICH 205
WITNESS REGISTER
Senator Con Bunde
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of SB 87 and SB 95
Ms. Lauren Wickersham, staff to Senator Bunde
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Commented on SB 87 and SB 95
Lt. Todd Sharp
Division of Alaska State Troopers
Department of Public Safety
3700 East Tudor Road
Anchorage, Alaska 99507
POSITION STATEMENT: Supports SB 87
Ms. Joan Dimond
City of Anchorage
Department of Health
Anchorage, AK
POSITION STATEMENT: Supports SB 87
Ms. Anne Carpeneti
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Supports SB 95
Ms. Portia Parker
Department of Corrections
431 N. Franklin, Suite 400
Juneau, AK 99801
POSITION STATEMENT: Supports SB 95
Mr. Tony Newman
Division of Juvenile Justice
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Supports SB 95
Mr. Michael Macleod-Ball, Executive Director
Alaska Civil Liberties Union
419 Barrow St.
Anchorage, AK 99520
POSITION STATEMENT: Opposes SB 95
Mr. Brian Hove, staff to Senator Seekins
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Introduced SB 104
Ms. Sharon Barton, Director
Permanent Fund Dividend Division
Juneau, AK 99801
POSITION STATEMENT: Supports SB 104
ACTION NARRATIVE
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 8:35:40 AM. Present were Senators
Hollis French, Gene Therriault, Gretchen Guess, Charlie Huggins
and Chair Ralph Seekins.
SB 87-SEAT BELT VIOLATION AS PRIMARY OFFENSE
8:35:40 AM
CHAIR SEEKINS announced SB 87 up for review. He called Senator
Con Bunde and Ms. Lauren Wickersham to introduce SB 87.
SENATOR CON BUNDE introduced SB 87. Over 20 years ago federal
law passed requiring the use of seatbelts. SB 87 addresses
enforcement of that law. Currently Alaska has a secondary
seatbelt law, meaning one can be stopped for not wearing a
seatbelt only if their passenger is 16 years or younger. One can
be issued a ticket for not wearing a seatbelt only if stopped by
an officer for another offense.
SB 87 proposes a seatbelt violation could be probable cause for
an officer to stop a vehicle. Research shows the majority of
Alaskans wear seatbelts. Failure to use seatbelts cost Alaskans
thousands because insurance rates are negatively impacted.
Monetary losses also impact Medicaid. In states where a primary
seatbelt law is in effect, seatbelt usage has gone up. Had last
year's bill passed it would have delivered a positive monetary
impact and seven people would still be alive.
8:41:57 AM
MS. LAUREN WICKERSHAM, staff to Senator Con Bunde, referenced a
survey of 586 people. The survey indicated most people favor a
law requiring seatbelt use.
8:43:36 AM
CHAIR SEEKINS commented he spoke with a national highway traffic
safety officer and statistics show that seven Alaskans would be
alive had the previous bill passed. Damages, loss of income,
hardships, and economic and sociological impact also should be
considered.
8:46:46 AM
SENATOR BUNDE concluded with reference to a news article. SB 87
will save lives. Others' rights stop when they impact other
people. 87 percent of accidents cost Alaskans money in some
form.
8:50:06 AM
MS. JOAN DIMOND, municipality of Anchorage, Department of Health
and Social Services (DHSS), testified SB 87 is a priority of the
city of Anchorage. SB 87 will save lives and reduce medical
costs.
8:52:34 AM
LT. TODD SHARP, Alaska State Troopers, offered to answer
questions.
SENATOR CHARLIE HUGGINS asked Lt. Sharp the cause and effect of
SB 87.
LT. SHARP said the data shows when SB 87 passes, more people
will wear seatbelts through education efforts.
CHAIR SEEKINS asked Lt. Sharp if he anticipated troopers would
stop vehicles more frequently.
LT. SHARP answered no.
SENATOR HOLLIS FRENCH asked Lt. Sharp if a trooper would make a
stop if s/he were unsure whether someone was wearing a seatbelt.
LT. SHARP answered that would not be a probable cause. The
trooper has to be certain.
8:55:05 AM
SENATOR GRETCHEN GUESS made a motion to move SB 87 out of
committee with individual recommendations and zero fiscal notes.
There being no objections, it was so ordered.
SB 95-COLLECTION OF DNA/USE OF FORCE
9:00:48 AM
SENATOR CON BUNDE introduced SB 95. Current law allows people
who are incarcerated to refuse to provide a deoxyribonucleic
acid (DNA) sample. He offered a committee substitute (CS).
MS. LAUREN WICKERSHAM, staff to Senator Bunde, advised the CS
was in front of committee members.
SENATOR GENE THERRIAULT made a motion to use version \F as the
working document. With no opposition, the motion carried.
SENATOR BUNDE referenced Section 2, subsection (p) and advised
it addressed immunity for a person using reasonable force to
collect DNA.
9:03:14 AM
SENATOR GUESS asked Senator Bunde why the language was changed
from reasonable force to "for actions arising out of DNA
collection."
SENATOR BUNDE replied it was due to advice from Dean Guaneli and
the Department Of Law (DOL). He deferred Senator Guess's
question to the DOL.
SENATOR GUESS asked Senator Bunde to expand on the reference to
misdemeanors in the fiscal notes.
SENATOR BUNDE answered crimes against a person can also fall
within the misdemeanor statute of assault.
SENATOR THERRIAULT said the new subsection (p) does not contain
the word reasonable but it appears in subsection (o) so the
verbiage appears more succinct.
CHAIR SEEKINS commented as long as they use reasonable force
they are indemnified.
9:06:25 AM
SENATOR BUNDE offered "reasonable force" is well established in
the law.
MS. ANNE CARPENETI, criminal division, Department Of Law (DOL),
testified that Section 2 includes municipal prosecutions for
crimes against a person, and addresses problems with people who
refuse to provide a DNA sample. DNA samples could solve crimes.
The procedure is a Q-tip swab inside the mouth, which doesn't
take much force. DOL experts in civil liability suggested the
language change. SB 95 addresses people who have already been
convicted.
9:10:16 AM
SENATOR THERRIAULT asked Ms. Carpeneti if the rewording in
Section 2 was merely a structural change.
MS. CARPENETI answered instead of saying a person has immunity;
Section 2 says a person cannot bring a cause of action for
reasonable actions taken to obtain a DNA sample.
SENATOR THERRIAULT asked how it was different.
MS. CARPENETI answered the purpose is to stop a frivolous
lawsuit in the early stages, but DOL didn't want to immunize
anyone who was using unreasonable force.
9:12:15 AM
SENATOR THERRIAULT asked Ms. Carpeneti if she views the new
suggested language as more broad.
MS. CARPENETI answered yes in the sense of civil liability. The
purpose of Section 2 is due to tort liability.
SENATOR THERRIAULT asked if the criminal part was separated.
MS. CARPENETI answered yes. Section 2 is less broad in the
criminal sense but more broad in the civil sense.
SENATOR THERRIAULT commented he wants to understand why Ms.
Carpeneti views the language as broader.
MS. CARPENETI said that it attaches at a different period of
litigation. Protection kicks in earlier.
SENATOR THERRIAULT asked if that was the only change, or whether
Section 2 gives broader protection under civil liability. He
commented that it seems like it is all attached to "reasonable"
so the standard is the same.
MS. CARPENETI answered yes.
9:14:00 AM
SENATOR FRENCH said most people would cooperate if advised it's
a class C felony to refuse to give a DNA sample.
CHAIR SEEKINS said the swab would be taken during booking.
MS. CARPENETI advised most DNA swabs would be taken at
conviction, not during booking.
SENATOR FRENCH asked whether maximum-security inmates often
refuse to cooperate.
MS. CARPENETI answered yes.
SENATOR FRENCH commented a claim could be filed in the case of
an injury. The judge will have to decide.
MS. CARPENETI replied as currently drafted, yes.
SENATOR FRENCH clarified a claim wouldn't be automatically
rejected due to SB 95, but that a hearing would be held with a
motion to dismiss. Then either a judge or jury would decide. He
asked Ms. Carpeneti if that is how she sees the process.
MS. CARPENETI agreed.
SENATOR FRENCH commented that corrections officers work in
stressful situations and may not always get along well with
life-long inmates. A Q-tip swab could be used to hurt someone.
9:16:41 AM
SENATOR FRENCH referred to subsection (o) and the use of
reasonable force compared with non-deadly force. He asked Ms.
Carpeneti to explain the difference between the terms.
MS. CARPENETI explained people are comfortable with the language
of reasonable force. The concept of reasonable force is in the
constitution and throughout Alaska state law. Non-deadly force
has a broad connotation.
SENATOR FRENCH asked if non-deadly force allows more force than
reasonable force.
MS. CARPENETI said that is the way she interprets it. The person
receiving the swab sets the parameters. It depends on the
circumstances but the purpose is to use as little force as
necessary.
MS. PORTIA PARKER, Department of Corrections (DOC), explained
reasonable force. Force elevates through the response of a
person. The DOC has to apply different levels of force every day
depending on the situation. Officers are trained to use the
least amount of force possible to accomplish the lawful end. The
definition is ambiguous. It is the amount of lawful force that
is used to reach a lawful end. The DOC doesn't anticipate having
to use force to take a DNA sample.
9:21:06 AM
CHAIR SEEKINS asked Ms. Parker how hard it is to get a DNA
sample.
MS. PARKER replied that it generally takes a few officers to
hold the prisoner and one to take the swab.
CHAIR SEEKINS commented unless severe injury occurred, the
person could not bring a nuisance lawsuit.
MS. PARKER agreed.
SENATOR THERRIAULT commented reasonable force is considered on a
sliding scale.
MS. PARKER said the least amount of force is used but it depends
on the response of the offender.
9:22:25 AM
CHAIR SEEKINS asked Ms. Parker whether the DOC uses force in its
daily activities.
MS. PARKER answered yes.
SENATOR THERRIAULT asked Ms. Parker to describe the swab.
MS. PARKER replied the Department of Public Safety (DPS)
provides DNA kits. It is a small oral swab rubbed along the
cheek. It then goes into a special container, which is sent to
the crime lab.
9:23:48 AM
SENATOR HUGGINS commented the correctional system is a
controlled environment. He recognized that it was part of a
normal daily process for the DOC to maintain control, which, if
SB 95 passes, will be another part of the job.
MS. PARKER agreed. The DOC recently went to Arizona to help
collect 45 DNA samples and experienced no refusals.
MICHAEL MACLEOD, executive director, Alaska Civil Liberties
Union (ACLU) opposed SB 95. The ACLU opposes most all systems
where the government is collecting identifiable information on
individual citizens. He is concerned with privacy rights,
recognizing that offenders forego many of their rights. He
disputed an earlier reference to fingerprinting saying that DNA
collection is invasive. He questioned any direct link with the
collection of DNA to resolving crimes. He questioned probable
cause to suspect a link to other crimes. He has concerns about
due process and the need to use an independent decision maker to
resolve whether or not a DNA sample should be taken from an
individual.
9:28:35 AM
MR. MACLEOD asked whether the information could constitutionally
be used in any future proceedings if forcibly taken without
probable cause.
SENATOR THERRIAULT asked Mr. Macleod whether that ground wasn't
already covered by the use of fingerprinting for identification
purposes.
MR. MACLEOD agreed there are two identification systems with
distinctions between the methods. The invasiveness of swabbing
is greater than taking fingerprints.
9:30:28 AM
CHAIR SEEKINS asked Ms. Carpeneti whether the question of what
offenses would apply is already set into law.
MS. CARPENETI replied yes. SB 95 refers only to those people
convicted of crimes.
CHAIR SEEKINS asked whether SB 95 changes current law regarding
who is tasked with taking the DNA sample.
MS. CARPENETI said no. The judge, at the time of conviction,
orders the person to give a DNA sample. It is not a decision
made by a correctional officer, it is pursuant to a court order.
9:31:37 AM
SENATOR HUGGINS asked Mr. Macleod whether he has any court cases
pending on this issue.
MR. MACLEOD answered no.
SENATOR BUNDE commented the DNA database has generated 30 hits
and has aided in 38 different investigations. That makes Alaska
one of the most successful per capita in the nation.
MS. CARPENETI commented the connection to DNA and solving crimes
is significant.
9:33:29 AM
CHAIR SEEKINS asked Ms. Carpeneti whether taking a swab from
someone's mouth is considered to be extremely invasive.
MS. CARPENETI replied no. Blood draws are considered more
invasive.
CHAIR SEEKINS asked Ms. Parker whether the DOC performs any
other normal procedures that are considered more invasive than
taking a DNA sample.
MS. PARKER answered yes. The DOC does not view taking a DNA
sample to be invasive. The booking procedure and medical
examinations are more invasive. Taking a DNA sample is a
forensic collection of evidence.
9:35:10 AM
CHAIR SEEKINS asked which booking procedures are invasive.
MS. PARKER replied inmates are required to submit their clothing
and possessions. They are given a full medical and sometimes
mental health exam. They are watched very closely initially.
CHAIR SEEKINS asked Ms. Parker if she was aware of any other
jurisdictions that have ruled DNA sampling to be
unconstitutional.
MS. PARKER answered no.
SENATOR HUGGINS commented DNA testing could be used to accuse or
to clear someone of a crime. He observed the accuracy of DNA
testing favors the innocent person.
MS. PARKER agreed.
MS. CARPENETI commented she does not consider a Q-tip swab to be
invasive.
9:37:28 AM
CHAIR SEEKINS asked Ms. Carpeneti if she knew of any
jurisdiction that has found DNA sampling to be in violation of
fundamental rights.
MS. CARPENETTI answered no.
MR. TONY NEWMAN, program officer, Division of Juvenile Justice
testified probation officers have never had to use force while
collecting DNA in the juvenile system.
SENATOR GUESS asked Senator Bunde why SB 95 has no effective
date.
9:39:59 AM
SENATOR BUNDE answered inmates generally serve a long-term
incarceration. He didn't see a need for an immediate law.
CHAIR SEEKINS asked Senator Bunde if he wanted to add an
amendment for an effective date.
SENATOR BUNDE said he was not sure it was necessary, but he
recognized it could speed up an investigation.
SENATOR GUESS made a motion to amend SB 95 to include an
immediate effective date. Hearing no objections, the motion
carried.
9:43:01 AM
SENATOR THERRIAULT moved CSSB 95(JUD) from committee with
individual recommendations and accompanying fiscal notes. With
no objection, the motion carried.
9:43:25 AM
SB 104-PERMANENT FUND DIVIDEND FRAUD
9:50:54 AM
MR. BRIAN HOVE, staff to Senator Seekins, introduced SB 104. SB
104 establishes a Permanent Fund Dividend (PFD) investigation
unit. SB 104 would make submission of a fraudulent PFD
application a class C felony. In 2004 the Department of Revenue
(DOR) examined over 1,600 fraud tips and audited over 1,700 PFD
applications suspected of being fraudulent. This resulted in
$1.4 million in denied or assessed dividends. There were three
federal indictments and one conviction for crimes involving PFD
fraud.
The most common PFD fraud offense involves persons who forge
signatures with the intent to receive a dividend to which they
are not entitled. SB 104 is not intended to capture cases where
spouses sign for each other. Current law (AS 11.46.500-510)
describes three separate degrees of forgery - the two most
serious offenses are punishable as class B and C felonies, but
are limited to cases involving various types of financial
instruments.
Forgery in the third degree covers instances where a person
intentionally makes a false statement on a written instrument
such as a PFD application. This offense is punishable as a class
A misdemeanor. The DOR's proposal to elevate PFD fraud from a
misdemeanor to a Class C felony is expected to provide a more
effective deterrent for theft. SB 104 aids in identifying and
curing instances of PFD fraud by codifying in statute a fraud
investigation unit within the DOR. This unit will assist the
Department of Law (DOL) in investigating instances of PFD fraud.
9:53:37 AM
SENATOR THERRIAULT said that Section 1 separates dividend fraud
out of the statute. By doing so it creates too many categories
of fraud. He suggested the committee rework the overall
structure.
9:55:50 AM
SENATOR FRENCH asked Senator Therriault if he was suggesting a
list of fraudulent activities and the punishment that relates to
them.
SENATOR THERRIAULT replied yes. It would make it more of a
standard format.
CHAIR SEEKINS agreed.
SENATOR THERRIAULT added that if one were looking for
falsification it would be all in one section.
9:57:01 AM
CHAIR SEEKINS announced that committee substitute version \Y was
before the committee as the working document. He asked Sharon
Barton to clarify the changes.
MS. SHARON BARTON, director, Permanent Fund Dividend Division
agreed that Senator Therriault's proposal had merit. To explain
the \Y draft, it made the language simpler. The PFD division was
looking at going after falsification written and orally. The
drafters trimmed three sections down to two and identified the
class C felony.
9:59:55 AM
CHAIR SEEKINS suggested SB 104 might have a title change since
it would be setting up new section of law.
SENATOR THERRIAULT disagreed saying it would be putting together
a framework.
CHAIR SEEKINS liked Senator Therriault's suggestion.
SENATOR FRENCH did as well.
CHAIR SEEKINS said he would ask his staff to meet with the
drafters to accommodate Senator Therriault's suggestion.
10:02:11 AM
SENATOR THERRIAULT said page 1, line 14, which is the section
title, would be lost in the new draft.
CHAIR SEEKINS offered it wouldn't impact the functionality. He
said he would refer the issue to the drafters and hold SB 104
over to the next committee meeting.
There being no further business to come before the committee,
Chair Seekins adjourned the meeting at 10:03:37 AM.
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