CS FOR SENATE BILL NO. 170(JUD) An Act relating to murder in the second degree, the justification of defense of self or others, immunity from prosecution, sentencing, probation, discretionary parole, and the right to representation in certain criminal proceedings; relating to violation of a custodian's duty; relating to sexual abuse of a minor; relating to release of information concerning certain cases involving a minor; relating to local options regarding alcoholic beverages, the offense of furnishing or delivery of alcoholic beverages to a person under 21 years of age, and forfeiture of property used in, and money or other items of value used in financial transactions derived from, violation of certain laws relating to alcoholic beverages; relating to assault by means of a dangerous instrument; relating to operating or driving a motor vehicle, aircraft, or watercraft while under the influence of an alcoholic beverage, inhalant, or controlled substance, to the refusal to submit to a chemical test, and to the presumptions concerning the chemical analysis of breath or blood; and providing for an effective date. SUSAN PARKS, DEPUTY ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF LAW, spoke on SB 170, the companion bill for HB 244, previously heard and held in the House Finance Committee. Both bills were introduced last year and were worked on extensively over the interim. The Department of Law recommends that the Committee consider amending SB 170 to reflect some of the refinements that the House Judiciary Committee made in the provisions. Ms. Parks pointed out that there are two provisions in SB 170, not contained in HB 244 that address bootlegging. The first area not covered in HB 244 is Sections 5 & 6 of SB 170. Currently, that provision covers a 5-mile radius around the villages, however, in areas where the villages are close together, the 5-mile radius overlaps. When villages have conflicting local options, the courts interpret that to say that no local option could apply in that area. There would then be corridors created outside the areas where bootleggers could act. Provisions in Sections 5 & 6 clarify that the local option of a municipality takes precedence and if it were two villages, it would be the one least restrictive, providing protection around the perimeters of the villages. Ms. Parks continued. The other provisions not contained in HB 244 address forfeiture in bootlegging cases listed in Sections 9, 10 & 11 of SB 170. Those provisions refine the admission procedure. When property has been seized in a bootlegging case, when an innocent third party comes in and makes a showing that the seized property should not be seized, those provisions lay out a refinement of what needs to be shown in order to get the property back. The provisions also comply for a mandatory forfeiture in situations of a prior conviction for bootlegging or felony probation. She reiterated that Sections 9-11 would add forfeiture provisions not included in HB 244. Ms. Parks noted the proposed amendments included in member's packets that would take language from HB 244 and move it to SB 170. She stated that Representative Samuels had recommended a provision that is not supported by the Department, as it would create concerns for attorneys interrupting interviews of the individual in custody. She offered to answer questions of the Committee. LINDA WILSON, (TESTIFIED VIA TELECONFERENCE), DEPUTY DIRECTOR, PUBLIC DEFENDER, DEPARTMENT OF ADMINISTRATION, ANCHORAGE, testified on SB 170, the companion bill to HB 244. She addressed some amendments proposed by the Department of Law for the Senate bill. She acknowledged that the Public Defender does support most of the proposed amendments except the witness immunity section, Page 12, Section 21. That section brings concerns with the Alaska constitutional rights regarding self-incrimination. The bill intends to provide a procedure for when claims are raised of self-incrimination. When the judge determines that a witness has a valid claim, they then let the prosecutor know that information. The prosecutor then has to determine if they want to grant the witness immunity or not. Under the Alaska Constitution, that immunity is called 'transactional immunity' and the person could never be prosecuted for the crimes exposing themselves to that. She reiterated that the Alaska Constitution requires transactional immunity. Ms. Wilson pointed out that the Senate version identifies compliance and stops at the findings by the judge regarding a valid claim. Subsection I, Section 21, shall advise the prosecution of that finding. That area was debated in the Senate Judiciary Committee and that the provisions in the House version would make it unconstitutional. In the House version, Section 21, Page 11, the judge would share some information with the special District Attorney (DA) assigned to make the decision regarding whether to grant witness immunity. The judge would reveal to the prosecutor the level of the felony. Unfortunately, sharing information with any prosecutor defeats the right of self-incrimination and would make the bill unconstitutional. She urged that the Committee leave the Senate version in its current state. Ms. Wilson identified Section 13 in SB 170. She believed that HB 244 was more refined in that section. She spoke to Section 9 in HB 244, regarding the felony murder offense. If a person is charged with a felony, then that person could nd be charged with 2 degree murder. In current law, if a participant in the crime is killed, the other person cannot be fined or charged with their death. That portion of the bill seeks in include a participant's death. There is an exception in the house bill that removes that exposure except when the killing is of a participant and is a direct result of a felony criminal crime by a non-participant. The non-participant would have to do something very significant for it to be an exception in the bill. She suggested that language could be a refinement and that HB 244 offered a better version to that section. Ms. Wilson addressed felonies and the Driving While Intoxicated (DWI) provisions. The language of the house bill is preferred, as it is narrower regarding the challenging evidence. Section 27 of both bills, would allow evidence of alcohol consumption before and after driving. Taking a breath test hours after the driving does not always reflect what the blood alcohol level is during the time of operating the vehicle. HB 244 allows the person to raise a valid defense for a breath test. Ms. Wilson pointed out that Ms. Parks had touched on elements of SB 170 regarding overlapping and local option areas, which is an improvement. Ms. Wilson reiterated that the Public Defender does agree with some proposed amendments: · The assault of the third degree; · Requiring a court to make findings for release on bail; · In a felony DWI, refusal situation, limiting a look back to 20-years for a subsequent felony; · Regarding the local option provision, an "opting out" by local option, and · Does not make it a felony to furnish alcohol to a minor. Ms. Wilson concluded her testimony. Co-Chair Williams stated that SB 170 would be HELD in Committee for further consideration. CS FOR SENATE BILL NO. 170(JUD) An Act relating to murder in the second degree, the justification of defense of self or others, immunity from prosecution, sentencing, probation, discretionary parole, and the right to representation in certain criminal proceedings; relating to violation of a custodian's duty; relating to sexual abuse of a minor; relating to release of information concerning certain cases involving a minor; relating to local options regarding alcoholic beverages, the offense of furnishing or delivery of alcoholic beverages to a person under 21 years of age, and forfeiture of property used in, and money or other items of value used in financial transactions derived from, violation of certain laws relating to alcoholic beverages; relating to assault by means of a dangerous instrument; relating to operating or driving a motor vehicle, aircraft, or watercraft while under the influence of an alcoholic beverage, inhalant, or controlled substance, to the refusal to submit to a chemical test, and to the presumptions concerning the chemical analysis of breath or blood; and providing for an effective date. Co-Chair Williams stated that Representative Samuels asked to be included in further discussions on SB 170. Co-Chair Williams noted that SB 170 would be HELD in Committee for further consideration.