MINUTES SENATE FINANCE COMMITTEE 5 May 1996 10:05 A.M. TAPES SFC-96, #111, Side 1 and 2 SFC-96, #112, Side 1 CALL TO ORDER Senator Rick Halford, co-chair, convened the meeting at approximately 10:05 A.M. PRESENT In addition to co-chairman Halford, co-chairman Frank, Senators Phillips, Sharp, Donley, Rieger and Zharoff were present when the meeting convened. Also Attending: Richard Vitale, staff aide to Representative Parnell; Laurie Otto, Deputy Attorney General, Criminal Division, Department of Law; Chris Christensen, Staff Counsel, Alaska Court System; Anne Carpeneti, Assistant Attorney General, Criminal Division, Department of Law; George Dozier, Jr., staff aide to Representative Pete Kott; John Barnett, Executive Director, Board of Storage Tank Assistance, Division of Spill Prevention, Department of Environmental Conservation; Virginia Stonkus and Dave Tonkovich, Fiscal Analysts, Legislative Finance Division; and aides to committee members. SUMMARY INFORMATION SENATE CS FOR CS FOR HOUSE BILL NO. 314(JUD) "An Act relating to domestic violence and to crime victims and witnesses; amending Rules 3, 4, 65, and 100, Alaska Rules of Civil Procedure, Rules 505 and 613, Alaska Rules of Evidence, and Rule 9, Alaska Rules of Administration; and providing for an effective date." Richard Vitale, staff aide to Representative Parnell testified on behalf of the bill. Laurie Otto was invited to join the committee and answered questions from members. Chris Christensen said the Courts would like to see mediation banned. Senator Donley moved a conceptual amendment and without objection it was adopted. He moved amendment #2 and without objection it was adopted. Senator Rieger moved SCS CSHB 314(FIN) and without objection it was adopted with individual recommendations and fiscal notes of $52.5 Department of Public Safety/AST; $55.0 department of Public Safety/CDVSA; zero Department of Administration/OPA; $55.0 Department of Corrections; zero Department of Public Safety/Criminal Records; and $108.5 Alaska Court System. SENATE CS FOR CS FOR HOUSE BILL NO. 202(JUD) "An Act relating to the participation and accountability of parents and guardians and the enforcement of restitution orders entered in juvenile delinquency proceedings; relating to claims on permanent fund dividends for certain court-ordered treatment in juvenile delinquency proceedings; and amending Alaska Delinquency Rules 3(b) and 8(b); and providing for an effective date." Anne Carpeneti, Assistant Attorney General was invited to join the committee and testified on behalf of the bill. Senator Donley moved revisor amendment and without objection it was adopted. Senator Donley moved SCS CSHB 202(FIN) and without objection it was reported out with individual recommendations and fiscal note of $5.0 from the Alaska Court System. SENATE CS FOR CS FOR HOUSE BILL NO. 204(JUD) "An Act relating to the administrative revocation of a minor's license to drive; creating criminal offenses of minor operating a vehicle after consuming alcohol, a minor's refusal to submit to chemical test, and driving during the 24 hours after being cited for minor operating a vehicle after consuming alcohol or refusal to submit to chemical test; establishing penalties for these offenses; relating to court ordered drug and alcohol screening, evaluation, referral, and programs; relating to implied consent to certain testing if operating a motor vehicle, aircraft, or watercraft; relating to an instrument's working tolerance in a chemical breath test; relating to the authority of a court to impose a suspended sentence after failure to complete a treatment program upon conviction of felony driving while intoxicated or felony refusal to submit to a chemical test; relating to the period of time a court may consider for determining prior convictions in sentencing a person convicted of felony driving while intoxicated or felony refusal to submit to a chemical test; amending Rules 6 and 32.1, Alaska Rules of Criminal Procedure, to allow the use of hearsay evidence before a grand jury in a prosecution for felony driving while intoxicated or felony refusal to submit to a chemical test and to not require a presentence report for a first felony driving while intoxicated or first felony refusal to submit to a chemical test; and providing for an effective date." Anne Carpeneti, Assistant Attorney General was invited to join the committee and testified on behalf of the bill. Laurie Otto was also invited to join the committee and answered questions for members. Senator Donley moved a conceptual amendment and without objection it was adopted. Senator Sharp moved SCS CSHB 204(FIN) and without objection it was reported out with individual recommendations and zero fiscal notes from Department of Health and Social Services/Alcohol Safety Action Program; Department of Public Safety/AST; Department of Public Safety/Driver Services; Department of Law/Criminal; Department of Administration/PDA; Department of Administration/OPA; and the Alaska Court System. CS FOR HOUSE BILL NO. 456(L&C) "An Act relating to the Board of Storage Tank Assistance; and providing for an effective date." George Dozier, Jr., staff aide to Representative Kott testified; John Barnett, Department of Environmental Conservation testified and answered questions by members. Senator Phillips and Senator Sharp moved amendment #1 and without objection it was adopted. Senator Phillips moved CSHB 456(FIN) and without objection it was reported out with individual recommendations and zero fiscal note from Department of Environmental Conservation. SENATE CS FOR CS FOR HOUSE BILL NO. 314(JUD) "An Act relating to domestic violence and to crime victims and witnesses; amending Rules 3, 4, 65, and 100, Alaska Rules of Civil Procedure, Rules 505 and 613, Alaska Rules of Evidence, and Rule 9, Alaska Rules of Administration; and providing for an effective date." Co-chairman Halford introduced the bill and said he wanted to spend enough time to know that the committee was achieving a balance between protecting those in immediate danger and the converse side which in some cases would be punishment before trial and before determination of guilt. That is a difficult area to strike a reasonable balance. By the same token there are people being killed because there is no protection before a determination of guilt because the system does not react that fast. Richard Vitale, staff aide to Representative Parnell was invited to join the committee. He said the major changes to current practice would be that of the protective orders going from 90 days, with a 45 day extension, to six months. Ex parte orders, which were emergency orders under current law, stay at 20 days. There is also a new emergency 3-day order, another model code suggestion. Other points include training for police agencies and other professionals that encounter domestic violence and a central protective order registry system so restraining orders can be tracked. Co-chairman Halford referred to adjustments in the new CS. One was the elimination of defense that the subject of the order was invited back on the premises to fix something or to see children; another was the duration of time. Senator Sharp referred to page 21, lines 18 - 20 and asked if this section expanded the role of the office of the public advocate counsel beyond where they are now. Laurie Otto, Criminal Division, Department of Law was invited to join the committee. She said this was current practice. This section was requested by the office of the public advocate to narrow the circumstances in which they could be appointed and not allow it be expanded further. The Court is presently appointing them very rarely. Further, she said the petitions were civil and not criminal actions. Individuals under eighteen years of age may not file civil actions. Minors are considered incompetent to do that. Senator Sharp further referred to page 23, lines 19 - 21 (e) which says the court may not deny a petition no matter how long the period of time has been since the act of domestic violence happened. He wanted to know what constraints were in place that would enable denial of petition if a considerable lapse of time had occurred since the act of violence. Ms. Otto said this section was the topic of considerable discussion in the judiciary committee. The chair of that committee felt strongly this language should stay in as written. They felt if a limit were put in, it would be artificial. This is better left to the discretion of the court. Co-chairman Halford said this was already left to the discretion of the court. Ms. Otto referred to the problems with rural areas being able to file a petition timely. Senator Sharp said he would be more comfortable if the intent were more specific. He said he would prefer a requirement that the court find the victim was under definite threat, in order to keep retaliation in check. The victim should have to act in a reasonable length of time. In response to discussion between Senators Sharp and Rieger, Ms. Otto said it was better to leave the matter to the court's discretion as the judiciary is better able to weigh all the conditions. Co-chairman Halford referred to a hypothetical dysfunctional couple with alcohol problems. In response to the co- chairman, Ms. Otto said there is a provision that says in getting a protective order the court requires full disclosure of any other matters pending. It is necessary to protect those individuals who need it, but likewise not give others a vehicle for abusing the system. This model code was developed by the National Council on Juvenile and Family Court Judges. They are the ones who see these cases and see the abuses all the time. Senator Donley asked about mediation provisions of the bill. Mr. Vitale said the sponsor liked the original version of the bill which did not included the amendment referred to by Senator Donley. This would allow the court to recommend mediation if three standards were met: the victim agreed to the mediation, a representative was at the mediation, and the mediator was trained in domestic violence cases. The original language, as introduced by the sponsor, only allowed mediation in domestic violence situations when the victim requested it, had a representative present during the mediation, and the mediator was trained in domestic violence. The judiciary adopted an amendment to allow the court to recommend mediation to the parties. The sponsor preferred that amendment not be included but it did not break the bill for him. Ms. Otto said mediation was premised on the parties partaking on equal standing, and the mediator will help the parties reach an agreement. In domestic violence cases the parties do not have equal standing. Both the Canadian and American Society of Mediators have recommended against mediation in domestic violence cases. In many cases, armed guards are present during these mediations due to the possibility of the mediation triggering further assaults or violence. Chris Christensen, Alaska Court System was invited to join the committee. He said the court would like to see mediation banned in domestic violence cases. While a small number of cases are referred for mediation, once the matter reaches the court, mediation is pretty much useless. In response to Senator Donley, Mr. Christensen said he did not think the court system would object to the addition of language providing that if the court suggested mediation, it advise the parties they have the right not to agree to mediation, and their decision will not bias the court. Senator Zharoff referred to sections 33 and 28 regarding if the victim is notified of all rights concerned with filing a petition and if granted the protective order would only be good for six months. Ms. Otto indicated that was correct and the petition could be filed at any time after the commission of the abuse. She said that if there is a significant lapse of time, the court is unlikely to grant anything beyond that indicated on page 21, lines 30 - 31 and page 22, lines 1 - 3. That would be the minimum protection and is adequate for many. In response to a question from Senator Zharoff, Ms. Otto said she did not know if VPSO's were required to be certified as peace officers to handle domestic violence cases. Ms. Anne Carpeneti, Department of Law indicated that they were. (tape SF-96, #111, switch to side 2) Ms. Otto explained that under a civil proceeding 6-month orders give full due process rights. This process is used every day in this state to make fairly significant decisions against people. However, there is a provision for modification of protective orders (page 24, line 27). She explained the language on page 25, line 2 and said it was verbatim current law. She said the court had to schedule a hearing within twenty days. She explained that under an ex parte order the court would have to schedule a hearing within three days. Senator Rieger referred to the restrictions on the perpetrator and asked if the language permitted restriction on the activity of the petitioner. Ms. Otto said there were no restrictions but the respondent could also file a protective order against the petitioner. She further said the court could not issue both parties a restraining order under one petition. She explained why mutual restraining orders were not issued. There also needs to be proof of a crime before an order could be entered. Senator Phillips referred to section 28. Ms. Otto said it referred to the advisement that police officers need to give victims and it was a summary of the bill. Senator Zharoff commented on section 28 and said it was like the victim's Miranda rights. Ms. Otto concurred and said the court had the discretion to order any or all of the things that are listed under this section. However, this does not expand the powers of the Court, and it does not give new rights for the victim. Laurie Hugenin, executive director, Alaska Network on Domestic Violence and Sexual Assault was invited to join the committee. Some of the concerns she addressed were the limitation on protective order time, specifically the first and second elements that could be granted in a protective order, asking respondents to not continue to break the law or commit domestic violence, not harass, stalk or intimidate the victim. Another item she addressed was mediation. As suggested by American Bar Association reports in both 1993 and 1994, mediation in divorce, custody, and domestic violence cases is not appropriate. Mediation was detrimental for the victim and children. She voiced concern over court ordered mediation and said there were other avenues that could be explored. The network concurred with most sections of the bill. She further cited that there were thirteen murders in Anchorage directly related to domestic violence. Senator Phillips asked what the standing of the sponsor was, and Mr. Vitale said they supported the bill without the amendment that was put in judiciary. Co-chairman Halford referred to the orders with extension of time and said he did not disagree with those, however, because they represented a punishment before trial, he asked if they would apply in taking property away. Ms. Otto said the only things that lasted indefinitely were prohibiting the respondent from threatening or committing another act of violence and prohibiting the respondent from stalking or harassing, directing the person to stay away from the residence, school and prohibiting the respondent from entering a propelled vehicle in the possession or control of the petitioner. Co-chairman Halford said his concern was that the propelled vehicle may be that of the respondent. The home may be that of the respondent, The location of these items may be the home of the respondent, and it may have been the respondent's home for twenty years and the home of the victim for six months. He said there was some serious trampling of constitutional rights but as long as it was of short duration and really necessary it was supported. Ms. Hugenin asked if the chairman would consider putting harassing and stalking into the first element that could be asked for and have that element be indefinite. Senator Donley moved that as a conceptual amendment. Co-chairman Halford suggested that number one could be a perpetual order and include stalking and harassing. Senator Phillips opposed the amendment. Co-chairman Halford said they would go back to the version that Representative Parnell had before it came to the Senate Finance Committee. Mr. Vitale said the sponsor would support that. Upon a vote by the committee the conceptual amendment was adopted without objection. Senator Donley moved amendment #1 which would delete the ability to recommend mediation. Senator Phillips objected. Co-chairman Halford said he supported amendment #2 but was willing to go with the Court system on amendment #1 and not support it. Mr. Vitale voiced his concern of a possible bad mediator because, as he pointed out, state mediators have no licenses or regulations. Senator Zharoff opposed the amendment and said the court was only proposing mediation. Upon a vote by the committee amendment #1 failed to be adopted. Senator Donley moved amendment #2 and said it should be inserted wherever appropriate in the bill. Ms. Otto said it would go three places in the bill which referred to mediation. Upon a vote by the committee amendment #2 was adopted without objection. Co-chairman Halford asked for an update on the fiscal note from Department of Public Safety. Senator Rieger moved SCS CSHB 314(FIN) and without objection it was reported out with individual recommendations and fiscal notes of $52.5 Department of Public Safety/AST; $55.0 Department of Public Safety/CDVSA; zero Department of Administration/OPA; $55.0 Department of Corrections; zero Department of Public Safety/Criminal Records; and $108.5 Alaska Court System. SENATE CS FOR CS FOR HOUSE BILL NO. 202(JUD) "An Act relating to the participation and accountability of parents and guardians and the enforcement of restitution orders entered in juvenile delinquency proceedings; relating to claims on permanent fund dividends for certain court-ordered treatment in juvenile delinquency proceedings; and amending Alaska Delinquency Rules 3(b) and 8(b); and providing for an effective date." Anne Carpeneti, Assistant Attorney General was invited to join the committee and testified on behalf of the bill. She said this would make participation of parents at juvenile hearings mandatory. The Court was allowed the discretion to impose a fine that would motivate a parent. In response to Senator Phillips she said a $50 fine would motivate many parents. It would further allow the court to order the parents to participate in treatment and to pay for the treatment. If the court found the parents to be indigent it would allow the department to garnish their permanent fund dividend to pay for the treatment. It would not include treatment for the children. Senator Donley said he supported this bill. Ms. Carpeneti said the bill was very obvious and did not need further study. Parents should be participating if there is any progress to be made in treatment of the child. She advised the committee that there was a $5,000 fiscal note from the court system regarding sending out summonses to parents. Senator Donley asked if there was any provision to confiscate the permanent fund dividend from the juvenile and Ms. Carpeneti said not in this bill. This bill would address the responsibility of parents in connection with juvenile proceedings against their children. She indicated there was a provision for restitution to be made by the juvenile. Senator Donley moved revisor amendment. Ms. Carpeneti said the amendment would give the revisor statutes instructions on how the bill would fit into the code revision of HB 387. If HB 387 becomes law this would be transferred into AS 47.12. Without objection the revisor's amendment was adopted. Senator Donley moved SCS CSHB 202(FIN) and without objection it was reported out with individual recommendations and fiscal note of $5.0 from the Alaska Court System. SENATE CS FOR CS FOR HOUSE BILL NO. 204(JUD) "An Act relating to the administrative revocation of a minor's license to drive; creating criminal offenses of minor operating a vehicle after consuming alcohol, a minor's refusal to submit to chemical test, and driving during the 24 hours after being cited for minor operating a vehicle after consuming alcohol or refusal to submit to chemical test; establishing penalties for these offenses; relating to court ordered drug and alcohol screening, evaluation, referral, and programs; relating to implied consent to certain testing if operating a motor vehicle, aircraft, or watercraft; relating t o a n instrument's working tolerance in a chemical breath test; relating to the authority of a court to impose a suspended sentence after failure to complete a treatment program upon conviction of felony driving while intoxicated o r felony refusal to submit to a chemical test; relating to the period of time a court may consider for determining prior convictions in sentencing a person convicted of felony driving while intoxicated or felony refusal to submit to a chemical test; amending Rules 6 and 32.1, Alaska Rules of Criminal Procedure, to allow the use of hearsay evidence before a grand jury in a prosecution for felony driving while intoxicated or felony refusal to submit to a chemical test and to not require a presentence report for a first felony driving while intoxicated or first felony refusal to submit to a chemical test; and providing for an effective date." Anne Carpeneti, Assistant Attorney General was invited to join the committee and testified on behalf of the bill. She referred to the inexperience of children who drive combined with the use of alcohol results in a deadly combination. This bill would add three new statutes to Title 28 which would provide that children would not be allowed to drive after having had any amount of alcohol. A person who would be arrested for probable cause for drinking and driving, if they would refuse a breath test, they could also be cited for that. It would require a peace officer that arrested a child for drinking and driving or refusal to take a breathalyzer must give them a warning that they would not be allowed to drive within a 24-hour period after they had been cited. The offenses are violations with the provision of maximum of $1,000 fine plus community work service or combination of both. Pending a child's conviction they would be subject to administrative revocation of their driver's license or privilege to drive. First offense would be 90 days under the provisions adopted by the legislature last year. She noted there were four clean-up issues to the felony drunk driver statute passed last year. It would allow computer printouts rather than certified copies of the judgments of prior DWI convictions to be presented to the Grand Jury. (tape change to SF-96, #112, side 1) Senator Sharp asked if this bill only applied to juveniles and Ms. Carpeneti said the zero tolerance provisions in this bill apply to all under 21. She said the felony clean-up provision applied to all felony DWI cases. Senator Donley asked her to explain the zero tolerance level. She said this bill adopted zero tolerance level approach to drinking and driving for juveniles. If a police officer at the time of a stop has probable cause to believe the juvenile has been drinking before driving the officer would take the individual to the nearest police station for a breathalyzer. If the juvenile blows any amount of alcohol in their blood stream they will be cited for driving after drinking. Senator Donley said he supported this bill and he is convinced this is an important step. The medical evidence is overwhelming that alcohol has a much greater impact on the driving ability of young drivers than on experienced drivers. In response to comments by Senator Rieger Ms. Carpeneti said it was already illegal for juveniles to drink but it was far more serious for them to drink and drive. Senator Donley referred to the section dealing with the suspended imposition of sentence. She said the court in sentencing an individual for DWI is required to sentence the person to be screened and may also provide in the court order the treatment suggested by the screening agency, including in-patient treatment. If the individual failed to complete the treatment ordered the statute required the sentencing judge to impose the entire remaining suspended time of incarceration without discretion as to how much time was appropriate. This bill would amend it to allow the court to send the person back to treatment. Alcohol treatment does not usually take on the first try and sometimes it will take two or three times. This would allow the court to send the individual back into treatment and also gives the court the discretion of partial imposition of sentence. Senator Donley felt this was a step backward. Ms. Carpeneti said the sponsor of the bill is in support of this specific provision and MADD supports the bill also. Senator Rieger asked if other hearsay evidence is acceptable to a grand jury and Ms. Carpeneti said generally hearsay evidence is not admissable at a grand jury. This bill would allow an exception for the use of computer print-outs for prior records. She explained what "hearsay" evidence was and that in usual circumstances a document must be authenticated by an individual before it is admissible. She referred to page 11 and the Breath Test Result Validity. Under this test the court would accept the results without having to make adjustments for margin of error or working tolerances. Senator Rieger said .02 was a working threshold but basically meant zero tolerance. Ms. Carpeneti said children need to get the message that the tolerance level is zero. She felt using the .02 would give children the message that it was o.k. to drink if one did not exceed the .02 level. Co-chairman Halford commented on section 17 and Ms. Carpeneti said it was added on the floor. She said this was not in the original bill and did not feel it was necessary to have in. Co-chairman Halford said all violations would be based on a statistical violation that would be beyond the instruments tolerance to zero. Senator Donley said most cases are not prosecuted under .12 because it had been established there was a .02 discrepancy in breathalyzers. It is difficult to obtain convictions if one is below .12 rather than .1. Laurie Otto, Criminal Division, Department of Law was invited to join the committee. She concurred with Senator Donley. She said most cases registering .11 were within the limits and would not be prosecuted. What is needed to be shown now in DWI cases was that the machine was working and was calibrated correctly. Ms. Otto said that since it is known the margin of error is above what the offense level is it would be a logical amendment. This would make a better statute. Senator Donley said he would move that as a conceptual amendment. Discussion took place between Senators Donley and Rieger regarding blood alcohol levels. Co-chairman Halford asked if there was objection to the conceptual amendment that applies the machine tolerance to all statutes on the books currently except the new zero tolerance for minors and there being no objection the conceptual amendment was adopted. Senator Zharoff asked if there would be a message to young people that it would not be o.k. to drink and drive but it would be o.k. to drink at home but Ms. Carpeneti said she did not feel that was the message. There was still a prohibition on minor consuming. Senator Sharp moved SCS CSHB 204(FIN) and without objection it was reported out with individual recommendations and zero fiscal notes from Department of Health and Social Services/Alcohol SAFety Action Program; Department of Public Safety/AST; Department of Public Safety/Driver Services; Department of Law/Criminal; Department of Administration/PDA; Department of Administration/OPA; and the Alaska Court System. CS FOR HOUSE BILL NO. 456(L&C) "An Act relating to the Board of Storage Tank Assistance; and providing for an effective date." George Dozier, staff aide to Representative Kott testified on behalf of the bill. He said this bill was due to sunset this year. Legislative audit recommended the board be extended and that a public member be added to the board. This bill would also take care of those recommendations. John Barnett, executive director, storage tank assistance, DEC was invited to join the committee. He reviewed the legislative history. He explained the amendment co-chairman Halford requested be drafted. The current storage tank assistance program does not limit eligibility for financial assistance. If one has a regulated tank and pays a registration fee, they are able to receive financial assistance without regard to financial need. The board has worked up criteria related to rural locations, number of facilities owned by the oeprator and some other criteria. It will retain the public health threat criteria as the greatest emphasis to be put on sites; and also the inability to demonstrate the financial responsibility requirements as set out by the Federal Government. The financial responsibility requirements require pollution liability insurance or self insurability. Mr. Barnett said the federal government defined small companies through financial responsibility as twelve tanks or less. This would be consistent with the federal requirements. The failure of a tank owner to meet financial responsibility under federal law is a fine of $10,000/day. He said sites would be ranked with six tanks or less with higher points than twelve tanks or less because it is a set criteria the board could consider in ranking. Co-chairman Halford said he felt smaller entities should have a higher priority. Mr. Barnett said the Alaska Underground Tank Owners and Operators supported ten tanks; the department made the suggestion of twelve. He was sure there would be no objection if the committee wanted to initially reduce it to ten on this amendment. Twelve was considered consistent with federal rules. Co-chairman Halford said he has opposed this bill in the past because there are four elements: testing, clean-up, closure and granting individuals money to purchase new tanks. At some point the spill should not be rewarded. The upgrade portion is the one that has the most opposition. Senators Phillips and Sharp moved amendment #1 regarding tank cleanup program. Mr. Dozier said the sponsor would have no objection to the amendment. Without objection the amendment was adopted. Senator Phillips moved SCS CSHB 456(FIN) and without objection it was reported out with individual recommendations and zero fiscal note from Department of Environmental Conservation. ADJOURNMENT Senator Halford recessed at 12:24 P.M. subject to call of the chair.