04/25/2005 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB101 | |
| HB54 | |
| HB219 | |
| HB116 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 101 | TELECONFERENCED | |
| + | HB 54 | TELECONFERENCED | |
| + | HB 219 | TELECONFERENCED | |
| + | HB 116 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 25, 2005
8:39 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
COMMITTEE CALENDAR
SENATE BILL NO. 101
"An Act making corrective amendments to the Alaska Statutes as
recommended by the revisor of statutes; and providing for an
effective date."
MOVED CSSB 101(JUD) OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 54(FIN)
"An Act relating to bail review; relating to petitions for
review by crime victims where the defendant has received a
sentence below the sentencing range for the crime; relating to
the qualifications of certain members of the Violent Crimes
Compensation Board; relating to the introduction of the victim
and the defendant or minor to the jury; amending Rule 27, Alaska
Rules of Criminal Procedures, and Rule 21, Alaska Delinquency
Rules; and providing for an effective date."
HEARD AND HELD
CS FOR HOUSE BILL NO. 219(FIN)
"An Act relating to the definition of 'dangerous instrument' as
applied within the criminal code."
MOVED CSHB 219(FIN) OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 116(JUD)
"An Act relating to the liability of certain persons for certain
violations of alcoholic beverages laws."
HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 101
SHORT TITLE: REVISOR'S BILL
SPONSOR(s): RULES BY REQUEST OF LEGISLATIVE COUNCIL
02/14/05 (S) READ THE FIRST TIME - REFERRALS
02/14/05 (S) STA, JUD
02/24/05 (S) STA AT 3:30 PM BELTZ 211
02/24/05 (S) Heard & Held
02/24/05 (S) MINUTE(STA)
03/01/05 (S) STA AT 3:30 PM BELTZ 211
03/01/05 (S) Moved CSSB 101(STA) Out of Committee
03/01/05 (S) MINUTE(STA)
03/03/05 (S) STA RPT CS 3DP 1NR SAME TITLE
03/03/05 (S) DP: THERRIAULT, WAGONER, HUGGINS
03/03/05 (S) NR: ELTON
04/25/05 (S) JUD AT 8:30 AM BUTROVICH 205
BILL: HB 54
SHORT TITLE: BAIL REVIEW
SPONSOR(s): REPRESENTATIVE(s) SAMUELS, STOLTZE
01/10/05 (H) PREFILE RELEASED 1/7/05
01/10/05 (H) READ THE FIRST TIME - REFERRALS
01/10/05 (H) JUD, FIN
03/30/05 (H) JUD AT 1:00 PM CAPITOL 120
03/30/05 (H) Heard & Held
03/30/05 (H) MINUTE(JUD)
04/01/05 (H) JUD AT 1:00 PM CAPITOL 120
04/01/05 (H) Moved CSHB 54(JUD) Out of Committee
04/01/05 (H) MINUTE(JUD)
04/05/05 (H) JUD RPT CS(JUD) NT 4DP
04/05/05 (H) DP: ANDERSON, DAHLSTROM, COGHILL,
MCGUIRE
04/12/05 (H) FIN AT 1:30 PM HOUSE FINANCE 519
04/12/05 (H) Bill Postponed To 4/13
04/13/05 (H) FIN AT 1:30 PM HOUSE FINANCE 519
04/13/05 (H) Moved CSHB 54(FIN) Out of Committee
04/13/05 (H) MINUTE(FIN)
04/14/05 (H) FIN RPT CS(FIN) NT 6DP 3NR
04/14/05 (H) DP: HAWKER, CROFT, HOLM, MOSES, FOSTER,
MEYER;
04/14/05 (H) NR: WEYHRAUCH, KELLY, CHENAULT
04/19/05 (H) TRANSMITTED TO (S)
04/19/05 (H) VERSION: CSHB 54(FIN)
04/20/05 (S) READ THE FIRST TIME - REFERRALS
04/20/05 (S) JUD, FIN
04/25/05 (S) JUD AT 8:30 AM BUTROVICH 205
BILL: HB 219
SHORT TITLE: STRANGULATION CRIMES
SPONSOR(s): REPRESENTATIVE(s) HAWKER
03/15/05 (H) READ THE FIRST TIME - REFERRALS
03/15/05 (H) JUD, FIN
03/23/05 (H) JUD RPT 5DP
03/23/05 (H) DP: GRUENBERG, KOTT, GARA, DAHLSTROM,
MCGUIRE
03/23/05 (H) JUD AT 8:00 AM CAPITOL 120
03/23/05 (H) Moved Out of Committee
03/23/05 (H) MINUTE(JUD)
04/11/05 (H) FIN AT 1:30 PM HOUSE FINANCE 519
04/11/05 (H) Moved CSHB 219(FIN) Out of Committee
04/11/05 (H) MINUTE(FIN)
04/12/05 (H) FIN RPT CS(FIN) NT 8DP 2NR
04/12/05 (H) DP: HAWKER, HOLM, FOSTER, CROFT,
WEYHRAUCH, MOSES, MEYER, CHENAULT;
04/12/05 (H) NR: STOLTZE, KELLY
04/14/05 (H) TRANSMITTED TO (S)
04/14/05 (H) VERSION: CSHB 219(FIN)
04/15/05 (S) READ THE FIRST TIME - REFERRALS
04/15/05 (S) JUD
04/25/05 (S) JUD AT 8:30 AM BUTROVICH 205
BILL: HB 116
SHORT TITLE: LIABILITY FOR ALCOHOL LAW VIOLATIONS
SPONSOR(s): REPRESENTATIVE(s) MEYER
01/28/05 (H) READ THE FIRST TIME - REFERRALS
01/28/05 (H) STA, JUD
03/01/05 (H) STA AT 8:00 AM CAPITOL 106
03/01/05 (H) Moved CSHB 116(STA) Out of Committee
03/01/05 (H) MINUTE(STA)
03/02/05 (H) STA RPT CS(STA) NT 3DP 2DNP 1AM
03/02/05 (H) DP: GARDNER, GATTO, SEATON;
03/02/05 (H) DNP: RAMRAS, ELKINS;
03/02/05 (H) AM: GRUENBERG
03/21/05 (H) JUD AT 1:00 PM CAPITOL 120
03/21/05 (H) Moved CSHB 116(JUD) Out of Committee
03/21/05 (H) MINUTE(JUD)
03/22/05 (H) JUD RPT CS(JUD) NT 7DP
03/22/05 (H) DP: GRUENBERG, ANDERSON, KOTT,
DAHLSTROM, COGHILL, GARA, MCGUIRE
04/01/05 (H) TRANSMITTED TO (S)
04/01/05 (H) VERSION: CSHB 116(JUD)
04/04/05 (S) READ THE FIRST TIME - REFERRALS
04/04/05 (S) STA, JUD
04/14/05 (S) STA AT 3:30 PM BELTZ 211
04/14/05 (S) Moved CSHB 116(JUD) Out of Committee
04/14/05 (S) MINUTE(STA)
04/15/05 (S) STA RPT 4DP
04/15/05 (S) DP: THERRIAULT, ELTON, HUGGINS, DAVIS
04/25/05 (S) JUD AT 8:30 AM BUTROVICH 205
WITNESS REGISTER
Mr. James Crawford, Assistant Revisor
Legislative Legal and Research Services Division
Legislative Affairs Agency
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Introduced SB 101
Representative Ralph Samuels
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Introduced HB 54
Mr. Dean Guaneli, Chief Assistant Attorney General
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Commented on HB 54, HB 219, and HB 116
Ms. Julie Lucky
Staff to Representative Mike Hawker
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Introduced HB 219
Ms. Tara Henry, Forensic Nurse
Anchorage, AK
POSITION STATEMENT: Testified in support of HB 219
Representative Mike Hawker
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Commented on HB 219
Mr. Mike Pawlowski
Staff to Representative Kevin Meyer
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Introduced HB 116
Mr. Doug Griffin, Director
Alcohol Beverage Control Board
th
550 W 7 Ave., Suite 540
Anchorage, AK 99501-3510
POSITION STATEMENT: Testified in support of HB 116
Ms. Cindy Cashen, Former Executive Director
Mothers Against Drunk Driving
Juneau, AK
POSITION STATEMENT: Testified in support of HB 116
ACTION NARRATIVE
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 8:39:48 AM. Present were Senators
Hollis French, Charlie Huggins, and Chair Ralph Seekins.
SB 101-REVISOR'S BILL
Chair Ralph Seekins announced SB 101 to be up for consideration.
8:40:01 AM
Senator Gene Therriault joined the committee.
MR. JAMES CRAWFORD, assistant reviser, Legislative Legal and
Research Services Division, Legislative Affairs Agency, advised
the Revisers Bill is generated annually under the authority of
AS 01.05.036. It commands the revisor to make corrections to the
Alaska Statutes. The corrections fall into three general
categories. They improve the form or substance of the statutes,
they update obsolete provisions, and they correct oversights.
8:43:00 AM
Mr. Crawford directed the committee's attention to Section 94,
which is the Repealer. Two sections being repealed are AS
44.66.020 and 44.66.030 relating to program budgeting. These
sections stopped being used in the late 1970s. However there is
one sentence in one of the sections that has continuing
potential applicability. In order to preserve the piece of that
section the revisors have to pull that part out of the section.
8:46:11 AM
MR. CRAWFORD offered an amendment for the committee's review
that solves the problem.
8:46:47 AM
SENATOR THERRIAULT moved Amendment 1.
24-LS0195\Y.1
Crawford
03/08/05
A M E N D M E N T 1
OFFERED IN THE SENATE BY SENATOR THERRIAULT
TO: CSSB 101(STA)
Page 21, lines 1 - 31:
Delete all material.
Renumber the following bill sections accordingly.
Page 29, line 1, through page 31, line 30:
Delete all material.
Renumber the following bill sections accordingly.
Page 46, line 19:
Delete "AS 44.66.020, 44.66.030;"
CHAIR SEEKINS objected for explanation.
SENATOR THERRIAULT stated Mr. Crawford indicated the auditor has
cleaned up the statutes. The Revisor's Bill should only contain
the items that everyone has agreed is pure cleanup.
CHAIR SEEKINS withdrew his objection. There being no further
objections, Amendment 1 was adopted.
SENATOR THERRIAULT moved CSSB 101(JUD) from committee with
individual recommendations and attached fiscal note(s). There
being no objection, the motion carried.
Chair Seekins announced a brief recess at 8:50:35 AM.
CSHB 54(FIN)-BAIL REVIEW/ CRIME VICTIMS
8:51:27 AM
CHAIR RALPH SEEKINS announced HB 54 to be up for consideration.
REPRESENTATIVE RALPH SAMUELS introduced HB 54. Currently a
person charged with an unclassified crime or a class A felony
may apply for a bail hearing every 24 hours. HB 54 proposes to
change the timeframe to every 48 hours in order to give victims
time to attend the hearing. The bill would also allow for a
victim to be introduced during the opening statement at a trial
or at jury selection.
8:53:59 AM
The bill cleans up language in the Violent Crimes Compensation
Board statute to allow a retired attorney or physician to serve
on the Board. The bill also allows a crime victim the ability to
petition for a review of a defendant's sentence if it falls
below the sentencing range. Convicted criminals have a right to
appeal sentences. Victims should also have that right.
8:57:48 AM
SENATOR HOLLIS FRENCH asked whether it was after the arraignment
in district court that HB 54 would kick in.
REPRESENTATIVE SAMUELS said yes, unless there has been a change
in conditions.
Senator Gretchen Guess joined the committee.
SENATOR FRENCH clarified by the time lawyers get the facts, it
would be 48 hours before the bail review.
REPRESENTATIVE SAMUELS answered correct.
9:00:31 AM
SENATOR CHARLIE HUGGINS asked whether the introduction provision
was for the family.
REPRESENTATIVE SAMUELS advised "victim" is defined in the
statutes. The intent is to have either a representative or the
actual victim being introduced.
CHAIR RALPH SEEKINS asserted the term "victim" could include a
corporation.
9:02:28 AM
CHAIR SEEKINS communicated a petition of review paid for by the
victim could have other ramifications.
REPRESENTATIVE SAMUELS agreed and said if a person were to lose
that appeal there would be case law backing it. It would produce
the opposite result from which the victim aspired.
9:06:49 AM
MR. DEAN GUANELI, chief assistant attorney general, Department
of Law (DOL) expressed support for HB 54. It is difficult to
keep victims notified of all the defendant's court proceedings.
HB 54 would allow the defendant a bail review hearing every 48
hours. This provides an opportunity for the defendant to see the
judge and to acquire an attorney. It also accommodates the
victims and allows them time to attend the bail review hearing.
Additionally, it makes sense to require the defendants to submit
new information that the court has not considered in order to
request another bail review.
9:09:41 AM
MR. GUANELI continued this is intended to stop the daily bail
review request.
Chair Seekins announced a brief recess at 9:13:12 AM.
Chair Seekins reconvened the meeting at 9:15:13 AM.
9:15:13 AM
MR. GUANELI continued he is concerned with regards to Section 4,
which allows for the victim to file a petition for a sentencing
review. If a lenient sentence were to be upheld it sets a
precedent. Other judges may look at that opinion and adopt a
lower sentencing pattern.
9:18:17 AM
There would be very little for a victim to gain by petitioning
for a sentencing review, but there is potentially much to be
lost. The concern is whether the state wants to allow a private
party to challenge sentences.
9:21:54 AM
REPRESENTATIVE SAMUELS maintained his preference to keep Section
4 in HB 54.
SENATOR CHARLIE HUGGINS asked the alternative to ensure proper
sentencing by the judge.
9:23:45 AM
MR. GUANELI detailed under the existing system, judges stand for
reelection and very few judges have not been retained. The
process the Legislature did this year in looking at the Blakely
vs. Washington decision was a good exercise in examining
sentencing ranges.
9:25:40 AM
CHAIR SEEKINS asked Mr. Guaneli whether it was possible for a
sentence to be passed without a trial.
MR. GUANELI responded 95 percent of sentences are imposed
without trial. Prosecutors are not involved in setting
sentences.
CHAIR SEEKINS asked whether prosecutors discuss mitigators with
the defendant's attorney.
MR. GUANELI said yes. Aggravators are discussed as well.
SENATOR FRENCH asked whether the provision would apply to
misdemeanor sentences.
REPRESENTATIVE SAMUELS replied that was not the intent.
SENATOR FRENCH asked whether it was standard for the state to
petition for a review when they felt the sentence handed down
was inadequate.
MR. GUANELI said yes. The state has a right to appeal the
sentence, which forces the court of appeals to issue an opinion.
SENATOR FRENCH posed a scenario of a class C felony assault with
a maximum of five years where the judge imposed 6 months. If the
state were to appeal the sentence and the court of appeals were
to agree, he asked how the re-sentencing would occur.
9:28:45 AM
MR. GUANELI responded the sentence would be disapproved as too
lenient. The opinion would be written and published. There is no
re-sentencing due to the double jeopardy clause.
9:30:33 AM
CHAIR SEEKINS asked Mr. Guaneli to estimate the cost of a review
by the appellate court.
MR. GUANELI estimated 20-30 attorney hours at $150 an hour.
9:33:43 AM
CHAIR SEEKINS held HB 54 in committee.
Chair Seekins announced a brief recess at 9:33:53 AM.
Chair Seekins reconvened the meeting at 9:44:45 AM.
CSHB 219(FIN)-STRANGULATION & SUFFOCATION CRIMES
9:44:45 AM
CHAIR RALPH SEEKINS announced HB 219 to be up for consideration.
MS. JULI LUCKY, staff to Representative Mike Hawker, introduced
HB 219. Currently strangulation assaults cannot be prosecuted as
a felony due to a bar set in statutes that says in order to be
prosecuted as a felony, an assault must have provable serious
physical injury. Often strangulation assaults leave no physical
marks.
9:46:50 AM
MS. TARA HENRY, forensic nurse, testified she has years of
examining strangulation assaults. Perpetrators use strangulation
as a means to control their victims. Strangulation is treated as
a misdemeanor in Alaska. HB 219 would provide the appropriate
language required to allow all strangulation cases to be
prosecuted as felonies.
9:51:58 AM
MR. DEAN GUANELI concurred the intent of HB 219 is to ensure
strangulation assaults are prosecuted as felonies. Injuries that
are created by strangulation can evolve into long term physical
problems for the victim.
9:54:11 AM
CHAIR SEEKINS asked Mr. Guaneli whether the court might consider
that hands are not deadly weapons.
MR. GUANELI stated there is case law in Alaska where hands and
feet have been found to be deadly weapons, based on the manner
in which they were used.
CHAIR SEEKINS asked whether the use of hands in beating or
threatening someone would be considered a dangerous weapon.
9:56:56 AM
MR. GUANELI answered yes. Hands and feet can be characterized as
a dangerous weapon under AS 11.81.900 (b)(15)(A).
CHAIR SEEKINS said it is the intent of the Senate Standing
Judiciary Committee that by including definition (B) under
"dangerous instrument" (AS 11.81.900) that hands can be
dangerous instruments under many circumstances.
MR. GUANELI agreed.
SENATOR HOLLIS FRENCH read the definition of "deadly weapon":
"Any firearm or anything designed for and capable of
causing death or serious physical injury, including an
knife, and ax, a club, metal knuckles, or an
explosive."
9:59:08 AM
MR. GUANELI explained the current code defines "deadly weapon"
exactly as Senator French read. The courts would rule that hands
and feet could be dangerous instruments.
10:01:49 AM
CHAIR SEEKINS asked the reason Page 1, line 8 does not read
"and" rather than "or".
MR. GUANELI detailed the reason for the separate subsection is
due to experience in trials.
REPRESENTATIVE MIKE HAWKER offered a response to the use of the
word "or." The word may be construed either inclusively or
exclusively.
10:07:30 AM
CHAIR SEEKINS closed public testimony.
SENATOR CHARLIE HUGGINS moved CSHB 219(FIN) from committee with
individual recommendations and attached fiscal note(s). There
being no objection, the motion carried.
CSHB 116(JUD)-LIABILITY FOR ALCOHOL LAW VIOLATIONS
10:11:46 AM
CHAIR RALPH SEEKINS announced HB 116 to be up for consideration.
MR. MICHAEL PAWLOWSKI introduced HB 116. Under current statutes,
persons under 21 years of age can be sued by license holders for
assisting law enforcement officers in investigating and
enforcing compliance with the state's alcoholic beverage laws.
HB 116 adds protection for a young person to the statutes.
SENATOR GRETCHEN GUESS asked the difference between peace
officer and law enforcement officer.
MR. PAWLOWSKI voiced he is not certain.
CHAIR RALPH SEEKINS stated peace officers could be members of
the Department of Fish and Game. Police officers have to reach
certain standards.
SENATOR HOLLIS FRENCH read the definition of peace officer:
"A public servant vested by law with a duty to
maintain public order or to make arrests whether the
duty extends to all offenses or is limited to a
specific class of offenses or offenders."
10:16:26 AM
SENATOR FRENCH asked whether anyone has been sued.
MR. PAWLOWSKI said yes.
CHAIR SEEKINS asked the reason HB 116 does not have a
retroactive clause.
MR. PAWLOWSKI explained passing legislation retroactively is
problematic.
10:18:54 AM
SENATOR GENE THERRIAULT commented if the case were still pending
while the law is changed it would nullify the case.
SENATOR FRENCH commented an immediate effective date would shut
any active case down.
SENATOR GUESS asked the statute of limitations.
MR. PAWLOWSKI did not know.
10:20:52 AM
CHAIR SEEKINS expressed concern regarding tying up pending
cases.
SENATOR THERRIAULT suggested the committee put the question to
the drafter.
CHAIR SEEKINS suggested the committee further research options.
10:25:21 AM
SENATOR THERRIAULT asked for a witness to inform the committee
regarding the lawsuit pending.
MR. DOUG GRIFFIN, director, Alcohol Beverage Control Board,
advised the case pending is in Fairbanks. He could not recall
the establishment but the primary licensee is a Mr. Lambert who
owns several businesses with liquor licenses in Fairbanks.
10:28:17 AM
CHAIR SEEKINS asked the number of persons in jeopardy of a
lawsuit if the bill is not made retroactive.
MR. GUANELI could not determine.
10:30:46 AM
MS. CINDY CASHEN, past executive director, Mothers Against Drunk
Driving, testified in support of HB 116. She advised a majority
of their young people volunteer to work with law enforcement
officers to raise awareness of underage drinking and minors
purchasing alcohol. While the compliance check rate has gone up
the establishment owners have developed a phone tree and they
alert other business owners when there is an operation in
effect. In Juneau there are 5 to 6 people who volunteer on
compliance checks. Statewide there are close to 25.
10:33:04 AM
MS. CASHEN detailed the pending case of the teenager in
Fairbanks. The compliance operation was a planned event. Some
business owners found a loophole to challenge the sting. Two of
them in Fairbanks fully intend to take the teenager to court.
CHAIR SEEKINS suggested the committee research to see whether HB
116 could be retroactive. He held HB 116 in committee.
10:34:49 AM
There being no further business to come before the committee,
Chair Seekins adjourned the meeting at 10:35:19 AM.
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