HOUSE FINANCE COMMITTEE February 19, 1998 1:45 P.M. TAPE HFC 98 - 34, Side 1. TAPE HFC 98 - 34, Side 2. TAPE HFC 98 - 35, Side 1. CALL TO ORDER Co-Chair Therriault called the House Finance Committee meeting to order at 1:45 P.M. PRESENT Co-Chair Hanley Representative Kelly Co-Chair Therriault Representative Kohring Representative J. Davies Representative Martin Representative G. Davis Representative Moses Representative Foster Representative Mulder Representative Grussendorf ALSO PRESENT Representative Fred Dyson; Representative Ethan Berkowitz; Representative Gene Kubina; Eddie Grasser, Staff, Representative Beverly Masek; Anne D. Carpeneti, Assistant Attorney General, Department of Law; Jim Stratton, Director, Division of Parks & Outdoor Recreation, Department of Natural Resources; Barbara Brink, (Testified via Teleconference), Director, Public Defender Agency, Department of Law, Anchorage. SUMMARY HB 231 An Act relating to regulation of snowmobiles. HB 231 was HELD in Committee for further consideration. HB 245 An Act relating to minimum sentences for assault in the fourth degree that is a crime involving domestic violence; providing that a prisoner may not contact the victim of the offense when provided access to a telephone or otherwise immediately after an arrest; and amending Rule 5(b), Alaska Rules of Criminal Procedure. HB 245 was HELD in Committee for further consideration. HOUSE BILL NO. 245 "An Act relating to minimum sentences for assault in the fourth degree that is a crime involving domestic violence; providing that a prisoner may not contact the victim of the offense when provided access to a telephone or otherwise immediately after an arrest; and amending Rule 5(b), Alaska Rules of Criminal Procedure." REPRESENTATIVE FRED DYSON stated that HB 245 would establish two important steps against domestic violation (DV) in the State. It would place into effect graduated minimum sentences for domestic violence offenders. Just as the law recognizes the need to ratchet up penalties for drunk drivers, mandatory minimum sentences for repeat DV offenders delivers the message that Alaska will no longer tolerate this cycle of violence. HB 245 would prevent defendants from using their "one phone call" to contact their victims following their arrest. Victim groups and police departments throughout the State recognize this action as another important step in the fight for victims' rights. Representative Dyson urged members to consider work draft version 0-LS0450\P, Luckhaupt, 1/16/98 the "P" version rather than the 0-LS0450\Q, Luckhaupt, 2/19/98 the "Q" version. Representative Kelly asked if the intent was that the offender not communicate at all with the victim or not engage in threatening speech with the victim. He pointed out that currently, threatening speech is a crime. REPRESENTATIVE ETHAN BERKOWITZ responded that the "P" version contained language addressing Representative Kelly's concern. The "Q" version specifies only domestic violence offenses. He believed that it would be appropriate to preclude any contact between an offender and the victim. That contact could be construed as "witness tampering" conditions which domestic violence are vulnerable too. Co-Chair Therriault noted that the "Q" version would place restrictions on crimes that relate to domestic violence. These crimes are specified only in three sections of the proposed bill. He recommended that there could be other crimes against a person that the restrictions could apply too. Co-Chair Therriault questioned language used on Page 2, Section 4, relating to the minimum terms of imprisonment. He requested additional information to substantiate the recorded numbers. He inquired if they were the average sentences ordered by judges and if they were, would they not then become the minimum. He believed that ultimately, people would be sentenced to the average and that the zero fiscal note would not adequately reflect the impact of such action. Co-Chair Therriault focused on the amendment distributed by the Department of Law. [Copy on file] Representative Berkowitz responded to comments by Representative Therriault. Regarding minimum sentence, an expectation exists that if there were a minimum prison sentence handed down by the judge, there would then become a deterrent for anyone anticipating committing such a crime. He added that the amendment had proposed a minimum fine as clarified by the Department of Law. Currently, there is no easy way to pursue someone who has violated the order once the sentence has been passed down. The legislation would provide clear definition for the prosecution. Co-Chair Hanley questioned the problem, the legislation attempts to address. Representative Dyson replied that it would provide consistency in domestic violence sentencing, with progressive and harsher sentences for the repeat offenders. Co-Chair Hanley asked if it currently was a crime to make a threatening phone call. Representative Berkowitz explained that it could be construed as harassment. ANNE D. CARPENETI, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW, offered to answer some of the questions raised by the Committee. She commented that the phone call made might not be an intentionally threatening call, although any call made to the victim could be threatening if it were made immediately following the arrest. Co-Chair Hanley asked how would it be posted that the offender would be allowed only one call and that call could not be to the victim. Ms. Carpeneti explained that a notice could be posted on the telephone. Representative Kelly asked for the criteria used by the police officer to make the arrest. Ms. Carpeneti explained that the police officer would go to the scene of the crime, observe the damages, talk to the witnesses and then make a determination if there had been a probable cause violation of the law. She advised that many injuries do not surface immediately following the incident. Representative Kelly ascertained that the legislation could be taking away someone's right to communicate with their family. Ms. Carpeneti noted that the prohibition would be made after the decision that there had been probable cause to arrest the offender. The proposed action would not apply to cases before the police officer made that determination. Representative J. Davies voiced concern that the only control used to achieve the goal would be a note on the phone. He elaborated that there must be control over the number dialed. Ms. Carpeneti understood that the police officer would dial the number and would then leave the room. If the person then decided to dial another number, they would be violating the proposed statute, which would then become a further offense. Representative Berkowitz added that the way in which this would be handled would depend on the facility where the offender had been brought. Representative Dyson agreed with Representative J. Davies' concern, noting that to expect an honor system to work with this client population would be a contradiction of terms. He hoped that each jurisdiction would do the necessary things to preclude the call being made to the victim. The purposed law should empower them to do that screening. Representative G. Davis commented that a phone call involves two parties and that the person answering has the power to hang up. He voiced concern with the proposed language "probable cause", and questioned the amount of discretion given to the law enforcement community. BARBARA BRINK,(TESTIFIED VIA TELECONFERENCE), DIRECTOR, PUBLIC DEFENDER AGENCY, DEPARTMENT OF LAW, ANCHORAGE, noted that in current law it is a crime to call a victim and threaten them. There are a wide variety of statutes, which cover the dialed conversation depending on how egregious the content was. She cautioned the Committee in fashioning a rule that was so broad that it would take away the right to communicate with one's family. Ms. Brink noted that not every victim has the same needs. Victims even of domestic violence often want to communicate with their families. She pointed out that in many cases these people live together, have children together, debts, bills and co-mingled assets. She stressed that it is not every victim who wants to preclude communication. Ms. Brink commented that the provision involving probable cause creates a grave concern. In identifying who the people in prison are, it is important to remember that in Alaska, an assault charge could be given for disorderly conduct. In this State, if a police officer investigates a domestic violence complaint, there is a mandatory arrest provision. Passage of such broad language in the bill, would preclude any contact with other people who have been "thrown into this mitt". She pointed out that if a kid went for a "joy ride" in their dad's car and got stopped, he would not be able to call home. Ms. Brink voiced concern with mandatory minimum sentences and that no matter how many cases there are, each individual situation has "quirks" associated with it. A mandatory minimum sentence removes the judges ability to fashion appropriate punishment considering all the circumstances of that case. The criminal code passed in 1982 tried to make a logical and sensible system out of it. Ms. Brink noted that she did not understand the fiscal costs associated with the bill. When a prosecuting attorney represents someone charged with an offense, statistics will conform to the national average. At present time, over 90% of the cases are settled without going to a jury trial. She believed that one reason many cases are settled is that they can make a "pitch" in front of the judge. If a person realized that they were definitely going to go to jail for 30 days, they would be more reluctant to accept responsibility. Ms. Brink advised that domestic violence is a crime with such heated emotions on both sides that a deterring value of a higher sentence would not come into the perpetrator's mind when he is in the middle of the scene. Representative Kelly requested clarification regarding the mandatory arrest provision. Ms. Brink understood that the Victim's Crime Act, passed last session, stipulates that when a police officer is sent to a scene, the police officer is required to make an assessment of that situation and determine who was the principle aggressor. She believed that the police officer was responsible to make an arrest. Ms. Carpeneti countered that the Domestic Violence Act, passed two years ago by the Legislature, did contain a mandatory arrest for domestic violence only upon a determination of probable cause that domestic violence had occurred. She reiterated that police officers are not required to make an arrest at a scene where there is nothing going on. Even under the circumstances of probable cause, a mandatory arrest applies when a police officer, after an investigation determines that probable cause exists. The reasoning is to diffuse very dangerous situations, removing the violator from the home in order that more violence does not occur. Ms. Carpeneti continued response to the testimony given by Ms. Brink. She clarified that there are other crimes that can be committed if a person threatens another person over the telephone. The proposed legislation addresses the telephone call itself, which by itself could be a threat. The expectation is that not many cases will arise from this law and that the proposed legislation would hopefully establish deterred defense. The victims right to communicate with the defendant would not be taken away. Co-Chair Hanley asked how soon would the defendant be given the right to make the initial call and then how much time would need to lapse between that call and the call to the victim. Ms. Carpeneti replied that the first call could be made immediately following the arrest. Representative Berkowitz and Ms. Carpeneti agreed that a person has the right to one phone call; subsequent calls do not fall under the statute. Ms. Carpeneti suggested adding clarifying language regarding concerns and timing of the phone call. Co-Chair Hanley thought that a problem could arise if the victim accompanied the perpetrator to the jailhouse given the proposed language. Ms. Carpeneti advised that the legislation was not intended to cut off communication for married couples sharing accounts and assets in common. (Tape Change HFC 98- 33, Side 2). Representative Berkowitz emphasized that "no contact" means "no contact". If a victim wants to communicate with the defendant, the normal course would be to get the bail conditions released. Also, a judge can lift at anytime the "no contact" order. Ms. Carpeneti thought that the situation could vary throughout the State depending on the facility, which the offender had been taken to. She thought that the victim would not want contact until the defendant had come before the judge and then at that time, the court could make the "no contact" order. Co-Chair Hanley asked if the proposed mandatory minimum sentences would be consistent with those in current domestic violence legislation. He asked if it would be possible to be convicted of two crimes. Ms. Carpeneti replied that currently, presumptive sentencing does exist. Representative J. Davies advised that the right to communication would be exercised through AS 12.25.150(b). Representative Kelly asked at what point would the victim loose the window of time to drop charges. Representative Berkowitz advised that in the State Of Alaska, victims never have that right because if you give the victim the ability to drop charges, the defendant then has leverage over the victim. He stressed that a crime against a person, is a crime against an entire community. Representative Kelly questioned the advantage of the proposed legislation. Representative Berkowitz advised that it could be assessed as "witness tampering" if the defendant tried to manipulate the victim. A conversation would have to be threatening for the legislation to apply. Representative Kelly asked how many hours would need to pass before the defendant could ask the victim about the family. Representative Berkowitz advised that period would extend from immediately after the arrest until the arraignment, less than twenty-four hours. In response to concerns of Representative Kelly, Representative Berkowitz explained that if the victim was in custody, and assuming that there was an order of no contact by the arresting magistrate, there could be a narrow window when the defendant could talk to the victim. Representative Kelly questioned how that could occur as the defendant would be locked up. Representative Berkowitz explained that after the formal arraignment occurs, the victim could indicate that they need to speak with the defendant; the judge would then be in control of that determination. Representative Kelly reiterated his concern with the long-term contact limitation proposed in the legislation. Co-Chair Hanley pointed out that in present law, the judge could issue a "no contact order" or a restraining order. Ms. Carpeneti pointed out that the legislation does not address long-term communication. After the person is arraigned, the Court has the ability to order the defendant not to have any contact with the victim. She stressed that the Court uses common sense in making those determinations, and that the Court can establish procedures in which business can be taken care of between the two people. Co-Chair Hanley spoke to the difference between version "P" and version "Q". The "P" version contains broader language in relationship to the person who commits the crime and the person who is the victim. The "P" version is also more wide spread and is not just crimes against another person. He recommended adopting the version that specifies crimes against a person rather than the "P" version. He requested further information on the proposed amendment. [Copy on File]. Ms. Carpeneti stated that the amendment addresses concerns that once the Court had ordered a person not to have contact with the victim, following the hearing, the defendant would then be ordered again not to contact the victim for safety reasons. She commented that at this time, there is no good way to enforce that order. The amendment would propose that an additional crime be added to implement the order. Co-Chair Hanley pointed out that the amendment would create a different charge. Representative J. Davies questioned if violation of the offense as recommended in the amendment would result in a class A misdemeanor. Ms. Carpeneti noted that the maximum punishment for that offense would be 1 year in jail or a $5 thousand dollar fine. Representative J. Davies created a hypothetical situation in which the defendant is charged with domestic violence and then the complaint withdrawn; if no other contact was violated, would they then be responsible only for the "no contact" charge. Ms. Carpeneti replied that could be possible, although, highly unlikely. Co-Chair Hanley disagreed. He thought that there would be many defendants who would violate the "no contact" order. Co-Chair Hanley recommended that the proposed legislation be held over in order to create a new committee substitute to consolidate concerns of Committee members and incorporate the amendment. HB 245 was HELD in Committee for further consideration. (Tape Change HFC 98- 35, Side 1). HOUSE BILL NO. 231 "An Act relating to regulation of snowmobiles." EDDIE GRASSER, STAFF, REPRESENTATIVE BEVERLY MASEK, noted that HB 231 was the result of work done by the Alaska State Snowmobile Association (ASSA) and the Division of Parks and Outdoor Recreation, Department of Natural Resources (DNR). He believed that the legislation would be an important tool in promoting this activity in Alaska, as well as creating greater opportunities for winter recreation in many areas of the State. Mr. Grasser commented that there has been a statutory requirement for registering snowmobiles since 1968, however, few Alaskans have participated. By allowing dealers to handle registrations at the time of purchase, HB 231 will establish an easier process for users to comply. The legislation also allows dealers and other agents to undertake registration renewal. Mr. Grasser continued, it is important to snowmobile enthusiasts to have a good system in place to provide an accurate accounting of the number of snow machines in Alaska. This information is an integral part of the formula used to acquire trail moneys available from the National Trails Fund. He summarized HB 231 would be a good initial step in developing a system providing for snowmobile registration. The State will benefit with help from the federal government. Representative J. Davies asked if there is a fee charged for registration at this time. Mr. Grasser said there is a $5 dollar fee to register a snow machine, which is collected at the point of sale. The goal would be to establish a point of sale registration in order to determine how many snowmobiles are owned in the State. Representative Kohring echoed Representative Martin's concern in adding an additional public tax. He inquired if the dealers would be doing the work of the Division of Motor Vehicles (DMV). Mr. Grasser replied that dealers have voluntarily been providing this work over the years. In this mandatory registration program, point of sale would require that all dealers in the State become responsible to provide the service. With a new program available through the Department of Administration (DOA) and Internet, it will be easier to register. Representative Kohring asked how this legislation would impact a private transaction. Mr. Grasser replied that the new owner must continue to register with DMV. Representative Kelly expressed concern with the language used in reporting of accidents. Mr. Grasser explained that with this bill, snow machines would be treated the same as boats have been. All transactions are required by the bank and will be reported to the Universal Commercial Code (UCC). When buying from an individual, the buyer could check with the UCC to guarantee there is no lien. Representative Kelly asked how a new owner of a used machine accesses information regarding the previous owner(s). Mr. Grasser explained that would be the responsibility of the purchaser, and that any individual can call UCC and find out if there is a bank lien on the machine. Mr. Grasser pointed out that currently, there is an area on the registration card for lien holder information. DMV has advised that information will be printed off with the Title of Ownership. Representative Martin thought that legislation should achieve a higher public purpose. Mr. Grasser commented that the funds would indicate a certain number of snow machines in the State and could then be used to determine State's qualification for federal monies to help maintain trails. In order to qualify for those funds, there will need to be a complete record of the number of snowmobiles in the State. Representative Martin stated that the legislation would present compliance difficulties for rural Alaskan communities. Mr. Grasser pointed out that the snow mobile association supports passage of the proposed legislation. He reiterated in order to qualify for the federal grant requires snowmobiles be registered. Co-Chair Therriault asked the source of federal funding for trails. Mr. Grasser explained that currently there is a non-highway tax for recreational trail users which has created a pool of funds available to various states through the Department of Transportation and Public Facilities (DOT&PF). JIM STRATTON, DIRECTOR, DIVISION OF PARKS & OUTDOOR RECREATION, DEPARTMENT OF NATURAL RESOURCES, noted that the Department manages the grant program. The funds come to the State Parks office and then those monies are allocated in grants up to $15 thousand dollars to trail clubs. Representative Martin asked the percentage of rural Alaskans that receive that funding. Mr. Stratton did not know the breakdown, however, agreed that most is distributed to urban users. He added that the Department of Transportation and Public Facilities has granted funding to the rural communities to help stake snowmobile trails on the Seward Peninsula. Representative J. Davies suggested that there should be a governmental mechanism to collect the fees. He added, the responsible snow mobile owners are currently paying to provide for the trails that everyone uses. The bill requires that everyone pay their fair share. Representative Foster pointed out that the legislation could only work at the point of sale. He noted that it would not address problems in rural Alaska as the DMV offices are few and far between. Representative Foster advised that there needs to be some system of notification to remind snow machine owners that their registration is due to renew. Mr. Grasser believed that by moving that Division to the Department of Administration will help address this problem by creating a mail out reminder. Mr. Grasser noted that in the original version of the bill, there was an exception for rural Alaska, although, that clause had been removed in the House Judiciary Committee version. HB 231 was HELD in Committee for further consideration. ADJOURNMENT The meeting adjourned at 3:30 P.M. H.F.C. 12 2/19/98