04/04/2011 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing|| Parole Board | |
| HB116 | |
| SB78 | |
| SB30 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | HB 116 | TELECONFERENCED | |
| += | SB 30 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 78 | ||
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 4, 2011
1:33 p.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Bill Wielechowski, Vice Chair
Senator Joe Paskvan
Senator Lesil McGuire
Senator John Coghill
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CONFIRMATION HEARING
Parole Board
Sarah J. Possenti
- CONFIRMATION ADVANCED
HOUSE BILL NO. 116 AM
"An Act making corrective amendments to the Alaska Statutes as
recommended by the revisor of statutes by correcting the
spellings of 'oxymorphone' and 'lorazepam' and providing an
applicability section; and providing for an effective date."
- MOVED HB 116 AM OUT OF COMMITTEE
SENATE BILL NO. 78
"An Act relating to liability of certain limited liability
organizations holding liquor licenses."
- MOVED CSSB 78(JUD) OUT OF COMMITTEE
SENATE BILL NO. 30
"An Act providing for the release of certain property in the
custody of a law enforcement agency to the owner under certain
conditions."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 78
SHORT TITLE: LIQUOR LICENSE HOLDER LIABILITY
SPONSOR(s): SENATOR(s) MCGUIRE BY REQUEST
02/04/11 (S) READ THE FIRST TIME - REFERRALS
02/04/11 (S) L&C, JUD
03/22/11 (S) L&C AT 2:00 PM BELTZ 105 (TSBldg)
03/22/11 (S) Heard & Held
03/22/11 (S) MINUTE(L&C)
03/29/11 (S) L&C AT 2:00 PM BELTZ 105 (TSBldg)
03/29/11 (S) Moved SB 78 Out of Committee
03/29/11 (S) MINUTE(L&C)
03/30/11 (S) L&C RPT 5DP
03/30/11 (S) DP: EGAN, GIESSEL, DAVIS, PASKVAN,
MENARD
04/01/11 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/01/11 (S) Heard & Held
04/01/11 (S) MINUTE(JUD)
04/04/11 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: HB 116
SHORT TITLE: CORRECT SPELLING OF LORAZEPAM/OXYMORPHONE
SPONSOR(s): RULES BY REQUEST OF LEGISLATIVE COUNCIL
01/21/11 (H) READ THE FIRST TIME - REFERRALS
01/21/11 (H) JUD
02/16/11 (H) JUD AT 1:00 PM CAPITOL 120
02/16/11 (H) Moved Out of Committee
02/16/11 (H) MINUTE(JUD)
02/18/11 (H) JUD RPT 5DP
02/18/11 (H) DP: LYNN, THOMPSON, PRUITT, KELLER,
GATTO
03/25/11 (H) TRANSMITTED TO (S)
03/25/11 (H) VERSION: HB 116 AM
03/28/11 (S) READ THE FIRST TIME - REFERRALS
03/28/11 (S) JUD
04/04/11 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SB 30
SHORT TITLE: RETURN OF SEIZED PROPERTY
SPONSOR(s): DYSON
01/19/11 (S) PREFILE RELEASED 1/7/11
01/19/11 (S) READ THE FIRST TIME - REFERRALS
01/19/11 (S) STA, JUD
02/03/11 (S) STA AT 9:00 AM BUTROVICH 205
02/03/11 (S) Heard & Held
02/03/11 (S) MINUTE(STA)
02/17/11 (S) STA AT 9:00 AM BUTROVICH 205
02/17/11 (S) Moved CSSB 30(STA) Out of Committee
02/17/11 (S) MINUTE(STA)
02/21/11 (S) STA RPT CS 4DP 1NR NEW TITLE
02/21/11 (S) DP: KOOKESH, PASKVAN, MEYER, GIESSEL
02/21/11 (S) NR: WIELECHOWSKI
02/28/11 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/28/11 (S) Heard & Held
02/28/11 (S) MINUTE(JUD)
03/18/11 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/18/11 (S) Heard & Held
03/18/11 (S) MINUTE(JUD)
03/21/11 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/21/11 (S) Moved CSSB 30(JUD) Out of Committee
03/21/11 (S) MINUTE(JUD)
03/22/11 (S) JUD RPT CS 2DP 2NR NEW TITLE
03/22/11 (S) DP: FRENCH, COGHILL
03/22/11 (S) NR: WIELECHOWSKI, PASKVAN
03/22/11 (S) FIN REFERRAL ADDED AFTER JUD
03/25/11 (S) RETURNED TO JUD COMMITTEE
04/04/11 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
WITNESS REGISTER
SARAH POSSENTI, Appointee
Parole Board
Anchorage, AK
POSITION STATEMENT: Testified as appointee to the Parole Board
JERRY LUCKHAUPT, Assistant Revisor of Statutes
Alaska Legal Services
Legislative Affairs Agency
POSITION STATEMENT: Introduced HB 116 on behalf of Rules by
request of Legislative Council.
DOUGLAS MOODY, Deputy Public Defender
Public Defender Agency
Anchorage, AK
POSITION STATEMENT: Suggested a change to SB 30.
CHARLES KOPP, Staff
Senator Fred Dyson
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Explained the amendment that DOL suggested
to SB 30.
ANNE CARPENETI, Assistant Attorney General
Criminal Division
Department of Law (DOL) said Attorney General Burns believes
that the language in subsection
POSITION STATEMENT: Testified that the language in subsection
(d) of version D for SB 30 is too restrictive.
DOUGLAS MOODY, Assistant Public Defender
Public Defender Agency
said he believes that
POSITION STATEMENT: Offered his belief that the language in
subsection (c)(2) of SB 30 will breed problems.
ACTION NARRATIVE
1:33:37 PM
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing
Committee meeting to order at 1:33 p.m. Senators Coghill,
Wielechowski, Paskvan, McGuire, and French were present at the
call to order.
^CONFIRMATION HEARING
^PAROLE BOARD
1:34:12 PM
CHAIR FRENCH announced the first order of business would be a
confirmation hearing. He asked Ms. Possenti to tell the
committee about her interest in serving on the Parole Board.
1:34:32 PM
SARAH POSSENTI, Appointee, Parole Board, stated that she was
born and raised in Fairbanks and received bachelors' degrees in
criminal justice and social work at UAF. She was a
probation/parole officer for 11 years and after she reduced her
work hours she became interested in serving on the parole board.
CHAIR FRENCH asked if she has attended Parole Board hearings in
the capacity of a member.
MS. POSSENTI replied she has observed hearings.
CHAIR FRENCH asked if all her time as a probation/parole officer
was spent in the Fairbanks area.
MS. POSSENTI said yes; she specialized in supervising sex
offenders for eight years when she was in the field office and
she worked in an institution as a probation officer the last
three years.
CHAIR FRENCH asked if she made recommendations for and against
granting parole or simply provided information when she appeared
before the Parole Board as a probation officer.
MS. POSSENTI replied she made recommendations both when she
worked in the field office and when she worked in the
institution. When she was in the field office she went before
the Parole Board primarily for parole violations. She would make
recommendations about release, treatment, halfway houses, or
some combination. As an institutional parole officer she would
write reports and make recommendations about granting
discretionary parole.
1:38:05 PM
CHAIR FRENCH said he's pleased that she has extensive experience
working with sex offenders and can bring insight into their
behavior.
MS. POSSENTI added that when she worked in the sex offender unit
she co-facilitated the treatment groups and attended numerous
trainings. When polygraphs were implemented in Fairbanks she
worked with the Colorado unit and learned about wraparound
services that ensure that all areas of a sex offender's life are
being watched.
CHAIR FRENCH noted that Senator McGuire was an early proponent
of the containment model and spent considerable time educating
others to its benefits. Finding no further questions, he asked
for a motion.
1:39:54 PM
SENATOR WIELECHOWSKI moved to forward the name Sarah Possenti to
the full body for consideration. There being no objection, it
was so ordered.
CHAIR FRENCH noted that Senator Coghill asked to speak to the
previous name that the committee forwarded.
1:40:28 PM
SENATOR COGHILL said he wanted to apologize to the committee for
voting "Yes" on the appointment of Don Haase when the motion was
for the committee to vote "No" on the appointment. He said he
removed his objection thinking that the motion was for
individual recommendations. He extended apologizes to the
committee and to Mr. Haase who he does support.
CHAIR FRENCH said no apology is necessary and everyone is free
to vote as they like on the floor.
HB 116-CORRECT SPELLING OF LORAZEPAM/OXYMORPHONE
1:41:47 PM
CHAIR FRENCH announced the consideration of HB 116 and asked Mr.
Luckhaupt to tell the committee why this needs to be a bill.
1:42:12 PM
JERRY LUCKHAUPT, Assistant Revisor of Statutes, Alaska Legal
Services, Legislative Affairs Agency, explained that these drugs
were misspelled in the initial 1981 drafting request. He
intended to correct the misspellings in the regular revisor's
bill, but he had to insert an applicability section and decided
it was better to address the issue separately. The intention is
to do no harm to the criminal law and express that the
Legislature did not intend to criminalize the possession of
something that doesn't exist. It appears that the Legislature
intended to include these other drugs back then, he stated.
CHAIR FRENCH asked Mr. Moody if anyone was prosecuted under
these misspellings or if it was grounds for dismissal.
1:44:07 PM
DOUGLAS MOODY, Deputy Public Defender, Public Defender Agency,
said he doesn't recall the misspellings being an issue, but he
can't say with 100 percent certainty that no case was ever
dismissed because of the misspelling. "I certainly would have
argued it if I'd had a lorazepam case and realized that the
statute was misspelled," he added.
CHAIR FRENCH asked Mr. Luckhaupt if he's absolutely certain that
lorazepam and oxymorphone are spelled correctly this time.
MR. LUCKHAUPT answered yes and added that oxymorphone is spelled
both ways on the DEA website so it took more than a little
research to get that one straight.
1:45:44 PM
SENATOR WIELECHOWSKI referenced the applicability section on
page 4 and questioned the legality of applying it to crimes
committed before, on, or after the effective date.
MR. LUCKHAUPT explained that this attempts to clarify that this
is what the Legislature meant when it added the drugs to the
statutes in 1982. Both lorazepam and oxymorphone were part of
the federal schedules at the time and this clarification is an
attempt to avoid calling into question anyone who may have been
prosecuted under the misspellings. It states the intent then,
the intent now, and the intent in the future.
CHAIR FRENCH asked to what oxymorphone refers.
MR. LUCKHAUPT replied it's a semi-synthetic opioid that is often
used intravenously as a pain medication. Lorazepam is marketed
under the name "Ativan" and is used to relieve anxiety.
CHAIR FRENCH commented that in high doses it's a tranquilizer.
CHAIR FRENCH found no further questions, discussion, or concern
and asked for a motion.
1:49:02 PM
SENATOR WIELECHOWSKI moved to report HB 116 am from committee
with individual recommendations and attached fiscal note(s).
CHAIR FRENCH announced that without objection, HB 116 am moved
from the Senate Judiciary Standing Committee.
At ease from 1:49 p.m. to 1:50 p.m.
SB 78-LIQUOR LICENSE HOLDER LIABILITY
1:50:33 PM
CHAIR FRENCH announced the consideration of SB 78 and noted that
Senator Paskvan had an amendment to offer. He removed his
objection to the adoption of the CS that was pending from the
previous hearing and announced that version B was before the
committee.
1:51:12 PM
SENATOR PASKVAN moved to adopt Amendment 1, labeled 27-
LS0282\B.1.
CHAIR FRENCH objected for discussion purposes.
SENATOR PASKVAN explained that the purpose of the amendment is
to limit the liability exposure to the owner's insurance policy
and/or the taxicab or limousine company's insurance policy under
SB 78. The service doesn't fall entirely under the Good
Samaritan concept because the professional company is being paid
for the service it provides. Professional drivers are engaged
and it makes sense that the company's insurance coverage should
respond if their drivers hurt someone.
CHAIR FRENCH summarized that this puts the taxicab company's
insurance in place if the vehicle owner's insurance isn't in
place when a driver delivers the vehicle home.
SENATOR PASKVAN clarified that it's potentially both policies.
CHAIR FRENCH asked Senator McGuire if she'd looked at the
amendment.
1:52:48 PM
SENATOR MCGUIRE said she doesn't know the implications for the
program, but at this stage she's willing to accept it and move
forward.
CHAIR FRENCH said he'd like to know if it jeopardizes the
program. He added that he initially wasn't aware that the
companies are paid to drive these cars home. Because they are
being paid and these are professional drivers, it seems less
likely that the taxicab company would object to having their
insurance in place.
CHAIR FRENCH removed his objection and announced that with no
further objection Amendment 1 is adopted. Finding no further
discussion, he asked for a motion.
1:54:06 PM
SENATOR WIELECHOWSKI moved to report CS for SB 78, version B as
amended, from committee with individual recommendations and
attached fiscal note(s).
CHAIR FRENCH announced that without objection, CSSB 78(JUD)
moved from the Senate Judiciary Standing Committee.
At ease from 1:54 p.m. to 1:56 p.m.
SB 30-RETURN OF SEIZED PROPERTY
1:56:04 PM
CHAIR FRENCH announced the consideration of SB 30 and asked for
a motion to adopt the proposed committee substitute (CS).
SENATOR WIELECHOWSKI moved to adopt the proposed CS for SB 30,
labeled 27-LS0344\E, as the working document.
CHAIR FRENCH objected for discussion purposes and asked the
sponsor to tell the committee what the new CS does.
1:56:47 PM
SENATOR FRED DYSON, sponsor of SB 30, stated that the committee
reported the bill from committee on 3/21/11 and subsequent to
that the Department of Law (DOL) contacted him to suggest a
change in language. He agreed and the bill was returned to this
committee to potentially adopt the proposed amendment.
1:57:21 PM
CHARLES KOPP, staff to Senator Fred Dyson, explained that the
amendment makes the following changes to version D:
Page 2, line 6, insert the following sentence at the beginning
of subsection (c): "At the hearing, a party that objects to the
return of the property shall state the reason on the record."
Page 2, line 11, delete the words "is authorized" and insert the
word "needs"
Page 2, line 12, following the word "property" insert the phrase
"for evidentiary purposes as authorized in this chapter."
Page 2, lines 13-18, delete the language in subsection (d) and
insert the following language:
If the court orders the return of the property to
the crime victim, the court may impose reasonable
conditions on the return. Those conditions may include
an order that the crime victim retain and store the
property so that the property is available for future
court hearings, requiring photographs of the property
to be taken, or any other condition the court
considers necessary to maintain the evidentiary
integrity of the property.
1:59:45 PM
CHAIR FRENCH asked Ms. Carpeneti to discuss DOL's reasoning in
suggesting the changes.
2:00:09 PM
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Department of Law (DOL) said Attorney General Burns believes
that the language in subsection (d) of version D is too
restrictive. DOL agreed and suggested a redraft to give the
court more discretion in ordering conditions for the return of
evidence in individual cases.
CHAIR FRENCH noted a letter of support from the National
Federation of Independent Businesses. He asked Mr. Moody if he
had reviewed the bill and had any suggestions to offer.
DOUGLAS MOODY, Assistant Public Defender, Public Defender
Agency, said he believes that the language in subsection (c)(2)
on page 2 will breed problems because the law enforcement agency
and the defense are frequently are at odds as to whether the
evidence should be retained. The defense should be able to make
its own case at the hearing.
CHAIR FRENCH asked what he is suggesting.
MR. MOODY suggested the following language:
the law enforcement agency for the defendant in
a criminal case fails to prove by a preponderance of
the evidence that the agency, the defendant, or
another interested party …
We don't want DOL to carry our water, he said. It's our need and
our burden and it should fall on us.
2:05:10 PM
CHAIR FRENCH asked the sponsor to respond.
MR. KOPP said he hasn't discussed this with the sponsor, but the
suggested language seems to be consistent with the language in
subsection (b) on page 1 as to who gets notice.
SENATOR DYSON said he sees no harm listing the defense in the
first paragraph on page 1.
2:07:53 PM
CHAIR FRENCH called an at ease from 2:07 p.m. to 2:10 p.m.
2:10:57 PM
CHAIR FRENCH said there's a suggestion to add both the
prosecution and the defense on page 2, line 11.
MR. KOPP pointed out that page 2, line 6, says that anyone who
objects to the return of the evidence shall state the reason on
the record. The inference is that it's coming before the court.
CHAIR FRENCH said he believes it needs to be redrafted to say
that the court has found that in the interest of justice it's
appropriate to release the property. It seems odd to say all
three have to overcome their own burden.
2:12:11 PM
SENATOR WIELECHOWSKI said another suggestion is to replace "the
law enforcement agency" with "the party that objects" to put the
burden of the preponderance of the evidence onto that party.
CHAIR FRENCH said that makes it clear.
SENATOR PASKVAN said he agrees with that.
CHAIR FRENCH asked Ms. Carpeneti what she thinks about Senator
Wielechowski's suggested language. It keeps non interested
parties from having to do anything.
MS. CARPENETI said she'd prefer it says, "a party that objects"
because there could be two parties.
SENATOR WIELECHOWSKI asked about adding "and a court finds that
it is in the best interest to return…" because the judge may
believe that the evidence should be retained even if no one came
forward.
CHAIR FRENCH said subsection (d) takes care of that when it says
the court may impose reasonable conditions.
SENATOR WIELECHOWSKI asked if this gives the court sufficient
latitude. For example, if a pro se defendant doesn't show up for
the hearing they haven't proved by a preponderance of the
evidence but the court may still believe that it's in the best
interest to retain the evidence.
CHAIR FRENCH said judges aren't supposed to do that and the law
enforcement agency will be present in any case.
SENATOR DYSON reminded the committee that the bill relates to
property crimes and it seeks to keep the victim from being
victimized a second time. If there's a disagreement as to
whether the property is returned, the judge decides.
2:16:03 PM
CHAIR FRENCH announced he would hold SB 30 in committee awaiting
a new draft.
2:16:53 PM
There being no further business to come before the committee,
Chair French adjourned the meeting at 2:16 p.m.
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