HOUSE JUDICIARY STANDING COMMITTEE March 14, 1994 1:15 p.m. MEMBERS PRESENT Rep. Brian Porter, Chairman Rep. Jeannette James, Vice-Chair Rep. Gail Phillips Rep. Pete Kott Rep. Joe Green Rep. Cliff Davidson Rep. Jim Nordlund MEMBERS ABSENT None COMMITTEE CALENDAR HB 349: "An Act providing for the civil commitment of sexually violent predators." CSHB 349 MOVED OUT OF COMMITTEE *HB 445: "An Act relating to operating or driving a motor vehicle, commercial motor vehicle, aircraft, or watercraft." MOVED OUT OF COMMITTEE *HB 460: "An Act relating to bail after conviction for various felonies if the defendant has certain previous felony convictions." MOVED OUT OF COMMITTEE HB 376: "An Act relating to services for and protection of vulnerable adults; and providing for an effective date." NOT HEARD HB 340: "An Act prohibiting the furlough of sex offenders." NOT HEARD WITNESS REGISTER MICHAEL O'CONNOR 9801 Grange, No. 1 Anchorage, AK 99518 344-9557 Position Statement: Testified in support of HB 349 (Spoke via teleconference) REP. SEAN PARNELL Alaska State Legislature State Capitol Juneau, AK 99801-1182 465-2995 Position Statement: Prime Sponsor of HB 349 MARGOT O. KNUTH Assistant Attorney General Criminal Division Department of Law P.O. Box 110300 Juneau, AK 99811-0300 465-4049 Position Statement: Testified on HB 349 C.E. SWACKHAMMER, Deputy Commissioner Department of Public Safety P.O. Box 111200 Juneau, AK 99811-1200 465-4322 Position Statement: Testified on HB 445 JUANITA HENSLEY Chief of Driver Services Division of Motor Vehicles Department of Public Safety P.O. Box 20020 Juneau, AK 99802-0020 465-2650 Position Statement: Testified on HB 445 SERGEANT RANDY CRAWFORD Department of Public Safety P.O. Box 111200 Juneau, AK 99811-1200 465-4322 Position Statement: Testified on HB 445 REP. MIKE NAVARRE Alaska State Legislature State Capitol Juneau, AK 99801-1182 465-3779 Position Statement: Prime Sponsor of HB 460 PREVIOUS ACTION BILL: HB 349 SHORT TITLE: CIVIL COMMITMENT OF SEXUAL PREDATORS SPONSOR(S): REPRESENTATIVE(S) PARNELL,Toohey,Olberg,Sanders, Bunde JRN-DATE JRN-PG ACTION 01/07/94 2019 (H) PREFILE RELEASED 01/10/94 2019 (H) READ THE FIRST TIME/REFERRAL(S) 01/10/94 2019 (H) HES, JUDICIARY, FINANCE 01/13/94 2056 (H) COSPONSOR(S): OLBERG 01/26/94 2160 (H) COSPONSOR(S): SANDERS 02/07/94 (H) HES AT 03:00 PM CAPITOL 106 02/07/94 (H) MINUTE(HES) 02/09/94 2310 (H) HES RPT CS(HES) 5DP 2NR 2AM 02/09/94 2310 (H) DP: KOTT, BUNDE, TOOHEY, B.DAVIS, BRICE 02/09/94 2310 (H) NR: OLBERG, NICHOLIA 02/09/94 2310 (H) AM: VEZEY, G. DAVIS 02/09/94 2311 (H) -3 FISCAL NOTES (DHSS, LAW, ADM) 2/9/94 02/09/94 2311 (H) -ZERO FISCAL NOTE (ADM) 2/9/94 02/09/94 2328 (H) COSPONSOR(S): BUNDE 02/14/94 (H) JUD AT 01:15 PM CAPITOL 120 02/16/94 (H) MINUTE(JUD) 03/09/94 (H) JUD AT 01:15 PM CAPITOL 120 BILL: HB 445 SHORT TITLE: DWI LAWS SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR JRN-DATE JRN-PG ACTION 02/04/94 2261 (H) READ THE FIRST TIME/REFERRAL(S) 02/04/94 2262 (H) JUDICIARY, FINANCE 02/04/94 2262 (H) -3 ZERO FISCAL NOTES (2-ADM, LAW) 2/4/94 02/04/94 2262 (H) -FISCAL NOTE (DPS) 2/4/94 02/04/94 2262 (H) GOVERNOR'S TRANSMITTAL LETTER 03/11/94 (H) JUD AT 01:00 PM CAPITOL 120 BILL: HB 460 SHORT TITLE: NO BAIL FOR FELONS W/PREVIOUS CONVICTIONS SPONSOR(S): REPRESENTATIVE(S) NAVARRE JRN-DATE JRN-PG ACTION 02/11/94 2344 (H) READ THE FIRST TIME/REFERRAL(S) 02/11/94 2345 (H) JUDICIARY, FINANCE 03/11/94 (H) JUD AT 01:00 PM CAPITOL 120 BILL: HB 376 SHORT TITLE: ASSIST & PROTECT VULNERABLE ADULTS SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR JRN-DATE JRN-PG ACTION 01/14/94 2066 (H) READ THE FIRST TIME/REFERRAL(S) 01/14/94 2066 (H) HES, JUDICIARY, FINANCE 01/14/94 2067 (H) -4 FNS (3-DHSS, ADM) 1/14/94 01/14/94 2067 (H) -ZERO FISCAL NOTE (ADM) 1/14/94 01/14/94 2067 (H) GOVERNOR'S TRANSMITTAL LETTER 02/09/94 (H) HES AT 03:00 PM CAPITOL 106 02/09/94 (H) MINUTE(HES) 02/09/94 (H) MINUTE(HES) 02/11/94 2341 (H) HES RPT 4DP 3NR 1AM 02/11/94 2341 (H) DP: BUNDE, TOOHEY, B.DAVIS, NICHOLIA 02/11/94 2341 (H) NR: KOTT, G.DAVIS, OLBERG 02/11/94 2341 (H) AM: VEZEY 02/11/94 2342 (H) -ZERO FISCAL NOTE (DPS) 2/11/94 02/11/94 2342 (H) -4 PREVIOUS FNS (ADM, 3-DHSS) 1/14/94 02/11/94 2342 (H) -PREVIOUS ZERO FISCAL NOTE (ADM) 1/14/94 03/11/94 (H) JUD AT 01:00 PM CAPITOL 120 BILL: HB 340 SHORT TITLE: NO FURLOUGHS FOR CERTAIN SEX OFFENDERS SPONSOR(S): REPRESENTATIVE(S)PARNELL,Phillips,Toohey, Sanders,Olberg JRN-DATE JRN-PG ACTION 01/03/94 2016 (H) PREFILE RELEASED 01/10/94 2016 (H) READ THE FIRST TIME/REFERRAL(S) 01/10/94 2016 (H) HES, JUDICIARY, FINANCE 01/12/94 2043 (H) COSPONSOR(S): TOOHEY, SANDERS 01/13/94 2055 (H) COSPONSOR(S): OLBERG 03/02/94 (H) HES AT 03:00 PM CAPITOL 106 03/02/94 (H) MINUTE(HES) 03/04/94 2603 (H) HES RPT 3DP 4NR 1AM 03/04/94 2603 (H) DP: BUNDE, TOOHEY, BRICE 03/04/94 2603 (H) NR: G.DAVIS, OLBERG, NICHOLIA, KOTT 03/04/94 2604 (H) AM: VEZEY 03/04/94 2604 (H) -FISCAL NOTE (CORR) 3/4/94 03/04/94 2604 (H) -3 ZERO FISCAL NOTES (DPS, 2-ADM) 3/4/94 03/04/94 2604 (H) REFERRED TO JUDICIARY 03/09/94 (H) JUD AT 01:15 PM CAPITOL 120 ACTION NARRATIVE TAPE 94-41, SIDE A Number 000 The House Judiciary Standing Committee was called to order at 1:30 p.m. on March 14, 1994. A quorum was present. Chairman Porter announced that the committee would be hearing HB 349, HB 445 and HB 460. He said HB 376 and HB 340 would be held over and HB 376 would be heard on Wednesday. HB 349 - CIVIL COMMITMENT OF SEXUAL PREDATORS Number 037 MR. MICHAEL O'CONNOR presented testimony via teleconference in support of HB 349. He expressed concerns regarding the need for rehabilitation of dangerous individuals showing sexual tendencies towards children seeking sexual gratification. He felt an urgent need to get this civil commitment bill passed. Number 133 REP. SEAN PARNELL, Prime Sponsor of HB 349, explained the bill, stating that the bill in general requires that the Department of Corrections notify the attorney general's office upon releasing a potentially violent predator from prison. The offender would then be committed to the Department of Health and Social Services for a period of time, becoming subject to procedural protections. Rep. Parnell stated that the committee substitute (CS) work draft incorporates the following amendments: On page 2, line 1, the phrase "among this group" was added. Also, line 7 refers to "this group" of violent offenders, in an attempt to focus in on the "group" of sexually violent predators, who are not immune to existing mental illness treatment methods of the 30, 60, 90 day proceeding under current state law. On page 3, line 29, the clause, "following the judicial determination of probable cause," was added. Rep. Parnell said this was a suggestion from the Department of Law. It was assumed that this was going to take place within 45 days after filing the petition, that there would be a finding of probable cause, but it was made clear through that language. On page 4, line 6, the words "the expert or professional" replaced the word "examiner." On page 5, lines 26-28, it was suggested by committee staff that once they are confined, they would be notified by the department of their right to annual reviews and examinations, so they do not have to wait a year and then find out they have these rights. REP. PARNELL said those are all the changes that the committee adopted last time. CHAIRMAN PORTER drew attention to the page labeled "Proposed Amendments" and stated that page 4, lines 15-18, would be Amendment 1; page 8, lines 2 and 3, would be Amendment 2; page 8, lines 17 and 18, would be Amendment 3; page 8, lines 27-29, would be Amendment 4; and all of the lines on pages 4, 6, and 7 would be Amendment 5. Number 225 REP. PARNELL addressed Amendment 1, explaining that the Washington Supreme Court case requires a person who is to be committed, who has not been in prison, to demonstrate a recent overt act, meaning a crime, such as sexual predatory offense, in order for the person to be civilly committed. That overt act requirement has been incorporated into the bill, as well as having turned the focus onto the conduct rather than on the presence of sexual motivation. On page 4, lines 15-18, in the work draft, are the words "sexual motivation." He said there had been some discussion from MARGOT KNUTH, Department of Law, regarding proof of sexual motivation and instead, throughout these amendments, the committee will see a focus on the actual conduct of a person, rather than on the motivation of a person. Number 264 REP. GAIL PHILLIPS moved Amendment 1. CHAIRMAN PORTER objected for the purpose of discussion. Number 277 MS. MARGOT KNUTH, Assistant Attorney General, Criminal Division, Department of Law, stated her belief that it should not require more than an attempted act, and that some specific language is needed to define what types of conduct would satisfy the legal requirements for "attempt." She said it need not be a sexually related act, but any act showing dangerousness. It could be a traditional assaultive type of behavior; something that says, "Not only are we dealing with somebody who is in need of treatment, but it is a matter of dangerousness as well." Number 294 CHAIRMAN PORTER gave the example of the Chico Rodriguez case, wherein with no establishment of an act, those acts that he may or may not have been involved in during his time in prison have not been documented. Number 316 REP. JIM NORDLUND agreed with Chairman Porter that for those persons already in prison, this recent overt act requirement will not apply to them because they have already been convicted of that act; but, on the other hand, it does indeed apply to those persons already out of prison and those not yet in prison. Number 327 MS. KNUTH said as long as you are in prison, the clock goes back and encompasses your conduct all the way back. Once you are released from prison, then the sense is that previous acts committed cannot be included in a future civil commitment determination; a new act would be required. REP. NORDLUND asked why, if you have proven beyond a reasonable doubt, which is the high standard, that somebody has committed an act of dangerousness, would you just prosecute them under the normal criminal procedures and land them back in jail? He also questioned whether you are given a choice of prosecuting them and putting them into the prison system or putting them into API. Number 360 MS. KNUTH answered that that is another option. The act of dangerous could only amount to reckless endangerment or a car speed misdemeanor offense, or maybe assault where your options are very limited in "misdemeanor-land." This would provide greater control, making this a matter that, in some cases, will not make sense. A felony offense would be the preferred requirement, particularly a Class A or unclassified, providing more control in most instances. Number 380 REP. PARNELL thought this was more in line with a civil commitment philosophy in the sense that these people are being treated as well as confined. The fact that they are in prison, or have not been in prison, may not need be critical to the felony. In terms of the differentiation of the potential outcomes of prosecuting the crime or proceeding under this avenue, the crime does not have to be a serious felony in terms of Class A. It could be a crime for which the sentence would be minimal and the otherwise sexual violent predator would be right back in society. He assumed it could be a crime that is completely unrelated to it. It could be a sexual predator who gets into a barroom fight with another guy; a completely unrelated act. The problem is of more concern to the public. Number 413 CHAIRMAN PORTER asked if there was further discussion or any objection on Amendment 1. Noting that Rep. Phillips had moved the amendment, Chairman Porter declared Amendment 1 passed without objection. Number 415 REP. PARNELL addressed Amendment 2, page 8, lines 2 and 3, the immunity section. He said there was concern over wide open immunity from liability for department people for their actions. The original language stated that they would be immune from liability for any good faith conduct. Instead, it was changed to say this section does not preclude liability for civil damages as a result of gross negligence or reckless intentional misconduct. Number 420 REP. PHILLIPS moved Amendment 2. CHAIRMAN PORTER asked for further discussion or any objection. Hearing none, Amendment 2 passed. Number 421 REP. PARNELL addressed Amendment 3, page 8, lines 17 and 18. He said the lines defining "sexually motivated" were deleted. He explained they would prefer to focus on the conduct of the individual rather than the motivation because conduct is easier to prove than sexual motivation. Number 425 MS. KNUTH commented that this change was in response to the Chairman's insight to get away from sexually motivated. She explained that by taking out .824 (3) they readdressed the problem in 4 (B), which is Amendment 4, and the two amendments dovetail together. She stated that the conduct they proposed using was that the person engaged in or intended to engage in sexual penetration, sexual contact, or sexually gratifying conduct. Number 440 CHAIRMAN PORTER asked for further discussion or any objection to Amendment 3. Rep. Kott moved Amendment 3. Hearing no objections, Chairman Porter declared Amendment 3 passed. Number 445 REP. PARNELL noted that Amendment 4, page 8, lines 27-29, had already been discussed, which described the conduct Ms. Knuth described. Number 455 REP. PHILLIPS moved Amendment 4. CHAIRMAN PORTER asked for discussion or objection. Hearing none, he declared Amendment 4 passed. Number 489 REP. PARNELL addressed Amendment 5. He believed the Office of Public Advocacy or the public defender, rather than the court, should be representing these people. He noted one concern is cost, and the other concern is that this type of hearing not look like a criminal trial. At this point, the Office of Public Advocacy will hear these cases, for that reason. It would then, at least in statute, look more like we are trying to commit these persons, rather than trying to give them a second sentence. Number 529 REP. NORDLUND agreed with the suggestion of delegating this procedure to the agency most able to handle the task effectively. Number 533 CHAIRMAN PORTER asked for further discussion and noted that Amendment 5 had been moved. Without objection, Amendment 5 passed. Number 544 REP. PHILLIPS motioned to move CSHB 349, including amendments, individual recommendations and attached fiscal notes. There was an objection for the purpose of discussion. Discussion ensued on whether a person who was incarcerated could continually request to be reevaluated. REP. PARNELL said that language could be found on page 7, line 17 and line 24, and he basically only gets one shot. MS. KNUTH clarified that the person actually gets as many shots as they want, but there is a mechanism whereby the judge doesn't have to pay quite so much attention after the first shot. They get one considered evaluation and after that it is hoped to be pro forma unless the person presents new evidence to suggest that something significant had happened. Number 580 CHAIRMAN PORTER stated that persons committed under such provisions would be allowed to request periodical re- evaluations of their condition in order to determine the appropriateness of a lengthy sentence. Number 595 REP. NORDLUND said he supported the intent behind HB 349, yet expressed concern over the fiscal note in that the state will have to spend $1.2 million for treatment programs for these people after they have served their time under the purview of the Department of Corrections. He would much rather see that kind of money spent for treatment programs immediately after the person has offended and while they are still in the Department of Corrections. He said he supported the bill, but he thought it was applying the treatment services too late in the process and he would rather see the money spent earlier. Number 616 CHAIRMAN PORTER asked for further discussion and any objections. Hearing none, he declared CSHB 349 moved out of committee. Number 628 HB 445 - DWI LAWS Number 635 DEPUTY COMMISSIONER C.E. SWACKHAMMER, Department of Public Safety, announced that Governor Hickel introduced this bill, based primarily on the high rate of alcohol and drug related vehicle accidents that involve injury and death. Alaska has one of the highest rates of controlled substance related accidents. Implied consent statutes allow testing for drugs, etc., after a person is involved in an accident relating to alcohol or drugs, causing death or serious injury (if a person was not charged with anything). Number 683 REP. NORDLUND questioned the clause inferring that the same persons who would be tested for drugs and/or alcohol would be those not charged with anything after the accident. He was going on the assumption that such persons would usually be charged indeed. DEP. COMM. SWACKHAMMER disagreed. He said arrests are usually avoided in these instances, since those involved usually end up in the hospital. If they are arrested at that time, the Department of Public Safety assumes the liability for that person, which is not financially prudent. Number 720 JUANITA HENSLEY, Chief of Driver Services, Division of Motor Vehicles, Department of Public Safety, clarified the issue by saying that a person who consents to taking a breath test does not have to be arrested until the results are there. If they refuse to take the test, then they are placed under arrest at that time. Number 730 CHAIRMAN PORTER added that in the hospital this would allow the tests to be ordered without their permission because of this implied consent; and physicians, to avoid legal action against themselves, will not perform these tests without the law in place, because they have been sued. Number 745 REP. PHILLIPS questioned why the primary emphasis on the sponsor statement is motor vehicles, and yet the title of the bill is "Motor Vehicle, Aircraft and Watercraft." Number 756 MS. HENSLEY explained to Rep. Phillips that the current statute now includes motor vehicle, aircraft, and watercraft. A person loses his or her driver's license at the time they are convicted of a DWI in a motor vehicle or aircraft, but watercraft is not included. The only provisions that apply to watercraft are jail sentencing and fines. Nobody loses their driver's license for operating a watercraft while intoxicated. Number 779 REP. PETE KOTT asked JUANITA HENSLEY if a definition for "motor vehicle" exists. Number 784 MS. HENSLEY answered affirmatively. She said the statute also defines "commercial vehicle." Two sections of Title 28 deal with commercial motor vehicles. The definitions are based on size and weight of the vehicle. Number 802 SGT. CRAWFORD asked if snow machines fit into that category. MS. HENSLEY told Sgt. Crawford that they do, if they are being operated in a vehicular area; then they are considered vehicles. Number 812 REP. NORDLUND asked what the grounds are for a person "operating a vehicle under the influence?" He questioned, "What would give you cause, under this bill, to impose a test on somebody?" SGT. HENSLEY answered that under this bill it has to do specifically with accidents; the driving, the scene description, the skid marks, and the type of accident. Those types of things would indicate whether this was an icy road accident or someone going through a stop sign. There could be any number of things: pipes in the car, or an empty pill bottle could indicate drug use. Number 831 REP. NORDLUND asked how this type of accident would be handled if the evidence in the car did not seem to have anything to with the accident. Number 835 SGT. HENSLEY answered that that would not necessarily apply, unless some further indication of drugs existed, such as whether or not the driver was able to talk. There would have to be some contributing factor in order to explore the possibility of drug involvement. Number 845 REP. JOE GREEN asked if there was a similar method of indicating the presence of drugs, in a single step, in the same manner that a Breathalyzer indicates the presence of alcohol. Number 851 SGT. HENSLEY said there are indications in the person's behavior, if the officer is trained properly. TAPE 94-41, SIDE B Number 007 REP. CLIFF DAVIDSON asked whether or not we allow for training in drug and alcohol detection, and questions regarding accuracy of drug and alcohol tests. Number 034 DEP. COMM. SWACKHAMMER stated that HB 319 would give an opportunity to enhance the short supply of funding for training. He believes the Intoximeter 3000 to be accurate since these alcohol measuring devices are maintained on a daily basis through a computerized system. Number 091 REP. DAVIDSON asked how quickly you must act in order to ensure an accurate reading. SGT. CRAWFORD explained how and when the different drugs peak in the body's system after ingested. In short, the longer you wait, acquiring search warrants, the less likely you will be able to quantify the drug. The sooner the better. REP. JEANNETTE JAMES questioned HB 445, wondering if it allows blood and urine to be taken from persons involved in a serious accident. Number 160 DEP. COMM. SWACKHAMMER said if they refuse to submit, then they become guilty, just as they would with the implied consent. It would basically transpose the current implied consent for those involved in motor vehicle accidents. He said "implied consent" would be the same as the implied consent if you did not take the intoximeter. He said the revocation and loss of license, and a Class A misdemeanor applies. It does not really get you to the point where you actually draw blood and urine. There still has to be another step. Number 164 REP. JAMES asked whether or not blood and urine could be taken, in a case where the person is hospitalized, as part of the hospital admission, or would permission be required. She was under the impression that if someone was involved in a serious accident, those tests should be able to be taken without going through the arrest procedure. She wondered just what this bill would do. Number 180 DEP. COMM. SWACKHAMMER pointed out that page 8 addresses the person that is unconscious or in the hospital. It is true that blood and urine would be drawn as part of the hospital procedure, but was another matter for the hospital to turn over blood and urine to a law enforcement person, so there would still be other steps to go through. Number 204 DEP. COMM. SWACKHAMMER stated that AS 11.81.900(b), which is incorporated into page 8, line 25, defines serious injury. Number 225 REP. GREEN motioned to pass HB 445 out of committee with attached fiscal notes. The bill was moved with no discretion or objection. HB 460 - NO BAIL FOR FELONS WITH PREVIOUS CONVICTIONS Number 233 CHAIRMAN PORTER introduced REP. MIKE NAVARRE, Prime Sponsor of HB 460, representing District 9. REP. NAVARRE described HB 460 as a companion bill to SB 228, which proposes to provide that if a person has been previously convicted of a sexual offense, in all degrees (not just first degree, as is now the case), they will not be allowed bail if convicted a second time. They will be required to stay in jail through the appeal process. This is a way of getting a little tougher on these types of criminals without costing the state a lot of money. Number 305 REP. GREEN stated that the fiscal notes would be zero, since the person would be going to jail after conviction anyway. Number 320 CHAIRMAN PORTER said that these are all post-bail conviction considerations, not pre-conviction. In post-conviction, credit is given for the time spent in jail, to apply to your sentence. Number 330 REP. NORDLUND added the fact that those types of offenses do not normally result in overturning a sentence through the appeal process, so it is more efficient for the felon to start doing their time right away. Number 352 REP. NAVARRE stated that constitutionally, the burden of proof has already shifted; the person has been found guilty beyond reasonable doubt. Number 356 REP. PHILLIPS asked, if in the event this bill does not pass, would the sex offender registration bill be plugged in just as soon as the ruling was made in the case? Number 360 REP. NAVARRE replied that, yes, that could help, because the felon would be required to register in other states as well. Number 385 REP. JAMES moved that HB 460 be passed out of committee with a zero fiscal note recommendation. The bill passed with no objection. The House Judiciary Committee was adjourned at 2:30 p.m. HB 376 - NOT HEARD HB 340 - NOT HEARD