03/19/2007 01:30 PM Senate JUDICIARY
| Audio | Topic | 
|---|---|
| Start | |
| SB36 | |
| Adjourn | 
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 48 | TELECONFERENCED | |
| += | SB 36 | TELECONFERENCED | |
| + | TELECONFERENCED | 
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                         March 19, 2007                                                                                         
                           1:34 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Hollis French, Chair                                                                                                    
Senator Charlie Huggins, Vice Chair                                                                                             
Senator Bill Wielechowski                                                                                                       
Senator Gene Therriault                                                                                                         
Senator Lesil McGuire                                                                                                           
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
SENATE BILL NO. 48                                                                                                              
"An Act  amending Rule  62, Alaska Rules  of Civil  Procedure, to                                                               
limit the  amount of  the bond  required to  stay execution  of a                                                               
judgment in  a civil litigation  during an appeal or  review; and                                                               
amending Rules 204 and 205,  Alaska Rules of Appellate Procedure,                                                               
to limit the  amount of the bond required to  stay execution of a                                                               
judgment in a civil litigation during an appeal."                                                                               
     BILL HEARING CANCELLED                                                                                                     
                                                                                                                                
SENATE BILL NO. 36                                                                                                              
"An  Act relating  to sentencing  for the  commission of  certain                                                               
offenses influenced by alcohol and  to the offense of consumption                                                               
of alcohol in violation of sentence."                                                                                           
     MOVED CSSB 36(JUD) OUT OF COMMITTEE                                                                                        
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: SB  36                                                                                                                  
SHORT TITLE: SENTENCING FOR ALCOHOL-RELATED CRIMES                                                                              
SPONSOR(s): SENATOR(s) THERRIAULT                                                                                               
                                                                                                                                
01/16/07       (S)       PREFILE RELEASED 1/5/07                                                                                
01/16/07       (S)       READ THE FIRST TIME - REFERRALS                                                                        
01/16/07       (S)       STA, JUD, FIN                                                                                          
01/23/07       (S)       STA AT 9:00 AM BELTZ 211                                                                               
01/23/07       (S)       Heard & Held                                                                                           
01/23/07       (S)       MINUTE(STA)                                                                                            
01/25/07       (S)       STA AT 9:00 AM BELTZ 211                                                                               
01/25/07       (S)       Scheduled But Not Heard                                                                                
01/30/07       (S)       STA AT 9:00 AM BELTZ 211                                                                               
01/30/07       (S)       PEACE OFFICER CONVICTED OF MURDER                                                                      
02/01/07       (S)       STA AT 9:00 AM BELTZ 211                                                                               
02/01/07       (S)       -- Rescheduled from 01/30/07 --                                                                        
02/22/07       (S)       STA AT 9:00 AM BELTZ 211                                                                               
02/22/07       (S)       Moved CSSB  36(STA) Out of Committee                                                                   
02/22/07       (S)       MINUTE(STA)                                                                                            
02/23/07       (S)       STA RPT CS  1DP 2NR   SAME TITLE                                                                       
02/23/07       (S)       LETTER OF INTENT WITH STA REPORT                                                                       
02/23/07       (S)       DP: FRENCH                                                                                             
02/23/07       (S)       NR: MCGUIRE, GREEN                                                                                     
03/05/07       (S)       JUD AT 1:30 PM BELTZ 211                                                                               
03/05/07       (S)       Scheduled But Not Heard                                                                                
03/15/07       (S)       JUD AT 3:30 PM BUTROVICH 205                                                                           
03/15/07       (S)       Heard & Held                                                                                           
03/15/07       (S)       MINUTE(JUD)                                                                                            
03/19/07       (S)       JUD AT 1:30 PM BELTZ 211                                                                               
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
Rick Svobodny, Deputy Attorney General                                                                                          
Criminal Division                                                                                                               
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, AK  99811-0300                                                                                                          
POSITION STATEMENT:  Responded to a question  related to SB 36                                                                
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
CHAIR  HOLLIS   FRENCH  called  the  Senate   Judiciary  Standing                                                             
Committee meeting to order at 1:34:33  PM. Present at the call to                                                             
order  were  Senator  Therriault, Senator  Wielechowski,  Senator                                                               
Huggins,  and  Chair  French.  Senator  McGuire  arrived  shortly                                                               
thereafter.                                                                                                                     
                                                                                                                                
          SB  36-SENTENCING FOR ALCOHOL-RELATED CRIMES                                                                      
                                                                                                                                
1:34:40 PM                                                                                                                    
CHAIR  FRENCH announced  the consideration  of  CSSB 36(STA).  He                                                               
recapped  that  the  committee  heard an  overview  at  the  last                                                               
meeting and considered some of the provisions.                                                                                  
                                                                                                                                
SENATOR THERRIAULT,  Sponsor of  SB 36,  said his  staff informed                                                               
him of  the discussion  that took place  and he  understands that                                                               
the  Department  of  Law  (DOL) has  proposed  language  that  is                                                               
relevant to  that discussion. Page  3, subparagraph  (B) contains                                                               
language about protecting the public  and basically the amendment                                                               
proposes to insert similar language  in subparagraph (A). Barring                                                               
opposition  from the  committee  he would  support the  amendment                                                               
because it appears to make sense.                                                                                               
                                                                                                                                
CHAIR FRENCH  said the  discussion was  about policy  and whether                                                               
language about protecting  the public should be  included in both                                                               
subsections  (A)  and (B).  Currently  the  language is  only  in                                                               
subsection (B). The question was  whether the additional language                                                               
would make  the bill better or  create a hurdle that  some courts                                                               
would  have   difficulty  overcoming.   He  noted   the  proposed                                                               
amendment  and  highlighted  the   rationale  for  including  the                                                               
language. It reads as following:                                                                                                
                                                                                                                                
     In  CSSB  36  under  proposed  AS  12.55.015(a)(13)(B),                                                                    
     before a court can order  the defendant to refrain from                                                                    
     drinking for up  to a lifetime, if the  person has been                                                                    
     convicted  of drunk  driving for  a third  time or  the                                                                    
     drunk driving  resulted in a death  or serious physical                                                                    
     injury  to another  person, the  court  must find  that                                                                    
     imposing such  a sentence is  necessary to  protect the                                                                    
     public.                                                                                                                    
                                                                                                                                
     Under  the proposed  AS  12.55.015(a)(13)(A) the  court                                                                    
     may also  order a person  convicted of a  first offense                                                                    
     felony under AS 11.41  if the offense was substantially                                                                    
     influenced  by   alcohol,  to  refrain   from  drinking                                                                    
     alcohol  for  up  to  a   lifetime.  This  offense  may                                                                    
     include, for  example, assault in  the third  degree, a                                                                    
     class  C  felony, which  can  consist  of causing  only                                                                    
     physical  injury by  means  of  a dangerous  instrument                                                                    
     such as a  car. There is no requirement  that the court                                                                    
     find  that imposing  such a  sentence  is necessary  to                                                                    
     protect the  public under AS  12.55.015(a)(13)(A). This                                                                    
     doesn't make sense.                                                                                                        
                                                                                                                                
     Ordering  a  person,  including a  person  who  may  be                                                                    
     addicted  to  alcohol,  to  refrain  from  drinking  as                                                                    
     either  part  of  a  sentence  or  as  a  condition  of                                                                    
     probation or  parole for up to  the rest of his  or her                                                                    
     life  is not  an  inconsequential part  of a  sentence.                                                                    
     This  is  particularly  true if  the  person  has  been                                                                    
     convicted of  misdemeanor drunk driving as  is possible                                                                    
     under  proposed  AS  12.55.015(a)(13)(B), which  has  a                                                                    
     maximum  term  of  incarceration  of one  year,  or  of                                                                    
     assault  in  the third  degree  under  the proposed  AS                                                                    
     12.55.015(a)(13)(A),  which  has   a  maximum  term  of                                                                    
     incarceration  of five  years. Litigation  over whether                                                                    
     such a sentence or  condition would involve a violation                                                                    
     of due process  of law or cruel  and unusual punishment                                                                    
     may be avoided  if, under both scenarios,  the court is                                                                    
     required to  find that the  prohibition of  drinking is                                                                    
     necessary to protect the public.                                                                                           
                                                                                                                                
1:37:19 PM                                                                                                                    
SENATOR McGUIRE joined the meeting.                                                                                             
                                                                                                                                
CHAIR FRENCH motioned to adopt Amendment 1.                                                                                     
                                                                                                                                
                          AMENDMENT 1                                                                                           
                                                                                                                                
     Page 3, line 17:                                                                                                           
          Following "alcohol":                                                                                                  
          Insert:                                                                                                               
          "and that, based on the defendant's history,                                                                          
     there is reason to  believe that imposing a requirement                                                                    
     that the  defendant refrain  from consuming  alcohol is                                                                    
     necessary to protect the public"                                                                                           
                                                                                                                                
SENATOR  WIELECHOWSKI objected  to the  provision reasoning  that                                                               
there shouldn't  be a requirement  that a  judge find that  it is                                                               
necessary to  protect the public.  Under many  circumstances that                                                               
finding would be challengeable, he  stated. The entire section is                                                               
at a  judge's discretion and  if someone commits a  heinous crime                                                               
while under the  influence of alcohol, the judge  should have the                                                               
option to impose  a ban on alcohol as part  of the punishment, he                                                               
stated.                                                                                                                         
                                                                                                                                
1:40:00 PM                                                                                                                    
SENATOR THERRIAULT  revealed that he  would like to make  all the                                                               
statutes as  anti-alcohol as possible.  The idea behind  the bill                                                               
is to deal  with those people who have shown  a pattern of losing                                                               
control and becoming a danger  to themselves and others when they                                                               
consume alcohol.  If adding the  language avoids problems  at due                                                               
process then he supports the amendment.                                                                                         
                                                                                                                                
SENATOR  WIELECHOWSKI argued  that it  will likely  lead to  more                                                               
litigation and appeals.  Instead of giving a  judge carte blanche                                                               
to make  a finding on what  is best, this will  require the judge                                                               
to go  through the analysis that  it is necessary to  protect the                                                               
public. He maintained his objection.                                                                                            
                                                                                                                                
1:42:04 PM                                                                                                                    
CHAIR FRENCH asked Mr. Svobodny to comment on the debate.                                                                       
                                                                                                                                
RICK  SVOBODNY,  Deputy   Attorney  General,  Criminal  Division,                                                               
Department of Law,  said there will be litigation  either way and                                                               
he doesn't know which would result in more.                                                                                     
                                                                                                                                
SENATOR WIELECHOWSKI asked if adding  the language will require a                                                               
judge to  make a finding  that this  is necessary to  protect the                                                               
public.                                                                                                                         
                                                                                                                                
MR.  SOVOBDNY said  yes  and  that finding  would  be subject  to                                                               
appeal by a defendant.                                                                                                          
                                                                                                                                
CHAIR FRENCH asked if the  amendment was prepared by an assistant                                                               
district attorney.                                                                                                              
                                                                                                                                
MR. SOVOBDNY said it was prepared  by Ms. Carpeneti who works for                                                               
the criminal division. Commenting on  the rationale he added that                                                               
it is possible  to commit assault in the third  degree by causing                                                               
no injury. That is, placing a  person in fear of imminent serious                                                               
physical injury even though they don't sustain any injury.                                                                      
                                                                                                                                
A  roll call  vote was  taken. The  motion to  adopt Amendment  1                                                               
prevailed  4  to  1 with  Senator  Therriault,  Senator  Huggins,                                                               
Senator  McGuire and  Chair French  voting in  favor and  Senator                                                               
Wielechowski voting against.                                                                                                    
                                                                                                                                
1:45:38 PM                                                                                                                    
CHAIR FRENCH asked if there was more discussion on the bill.                                                                    
                                                                                                                                
SENATOR  THERRIAULT summarized  the original  idea, which  was to                                                               
provide a tool  to deal with people who have  a proven history of                                                               
becoming  a danger  to themselves  and others  when they  consume                                                               
alcohol. The possibility of a  lifetime alcohol ban could be used                                                               
to  get a  person's  attention  and get  them  to  agree to  seek                                                               
treatment. This  is one more  tool for prosecutors and  the court                                                               
system to  use to  help control the  serious alcohol  problems in                                                               
the state.                                                                                                                      
                                                                                                                                
CHAIR FRENCH referenced  the letter of intent that  came from the                                                               
Senate State Affairs Standing Committee, which reads as follows:                                                                
                                                                                                                                
     The  legislature recognizes  that  laws  alone may  not                                                                    
     achieve the  same level  of behavioral  correction that                                                                    
     counseling and  treatment are  designed to  provide. It                                                                    
     is  therefore the  intent of  the legislature  that the                                                                    
     courts,  when  addressing  those  who  are  first  time                                                                    
     violators of AS 12.55.015(a)(13) in this act, use when                                                                     
       available, Therapeutic Court in lieu of a standard                                                                       
     sentencing.                                                                                                                
                                                                                                                                
     If   openings  in   the  Therapeutic   Court  are   not                                                                    
     available,  the   legislature  intends   that  standard                                                                    
     sentencing for a class A  misdemeanor be carried out as                                                                    
     set out in AS 11.56.768(b)(d) of this Act.                                                                                 
                                                                                                                                
1:48:32 PM                                                                                                                    
CHAIR FRENCH found no further questions or discussion and asked                                                                 
the will of the committee.                                                                                                      
                                                                                                                                
SENATOR THERRIAULT motioned to report  CSSB 36(JUD), the attached                                                               
fiscal note(s)  and the Senate  State Affairs  Standing Committee                                                               
Letter of Intent from  committee with individual recommendations.                                                               
There being no objection, it was so ordered.                                                                                    
                                                                                                                                
There being nothing further to come before the committee, Chair                                                                 
French adjourned the meeting at 1:49:45 PM.                                                                                   
                                                                                                                                
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