CSHB 245(RLS) AM: "An Act relating to assault in the fourth degree; relating to the definition of 'crime involving domestic violence' in AS 11; relating to unlawful contact with a victim or witness; relating to rehabilitation programs for perpetrators of domestic violence; amending Rule 5(b), Alaska Rules of Criminal Procedure and Rule 404(b), Alaska Rules of Evidence; and providing for an effective date."
00CS FOR HOUSE BILL NO. 245(RLS) am 01 "An Act relating to assault in the fourth degree; relating to the definition of 02 'crime involving domestic violence' in AS 11; relating to unlawful contact with a 03 victim or witness; relating to rehabilitation programs for perpetrators of domestic 04 violence; amending Rule 5(b), Alaska Rules of Criminal Procedure and Rule 05 404(b), Alaska Rules of Evidence; and providing for an effective date." 06 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 07 * Section 1. AS 11.56 is amended by adding a new section to read: 08 Sec. 11.56.750. Unlawful contact in the first degree. (a) A person commits 09 the crime of unlawful contact in the first degree if the person 10 (1) has been ordered not to contact a victim or witness of the offense 11 as 12 (A) part of a sentence imposed under AS 12.55.015; or 13 (B) as a condition of 14 (i) release under AS 12.30;
01 (ii) probation under AS 12.55.101; or 02 (iii) parole under AS 33.16.150; and 03 (2) either directly or indirectly, knowingly contacts or attempts to 04 contact the victim or witness in violation of the order. 05 (b) Unlawful contact in the first degree is a class A misdemeanor. 06 * Sec. 2. AS 11.56 is amended by adding a new section to read: 07 Sec. 11.56.755. Unlawful contact in the second degree. (a) A person 08 commits the crime of unlawful contact in the second degree if 09 (1) the person is arrested for a crime against a person under AS 11.41 10 or a crime involving domestic violence; and 11 (2) before the person's initial appearance before a judge or magistrate 12 or before dismissal of the charge for which the person was arrested, whichever occurs 13 first, the person initiates communication or attempts to initiate communication with the 14 alleged victim of the crime that was the basis for the person's arrest. 15 (b) Unlawful contact with crime victim is a class B misdemeanor. 16 * Sec. 3. AS 11.56 is amended by adding a new section to read: 17 Sec. 11.56.756. Definitions. In AS 11.56.750 and 11.56.755, 18 (1) "victim" has the meaning given in AS 12.55.185; and 19 (2) "witness" has the meaning given in AS 12.61.900. 20 * Sec. 4. AS 11.81.900(b) is amended by adding a new paragraph to read: 21 (60) "crime involving domestic violence" has the meaning given in 22 AS 18.66.990. 23 * Sec. 5. AS 12.25.150(b) is amended to read: 24 (b) Immediately after an arrest, a prisoner shall have the right to telephone or 25 otherwise communicate with the prisoner's attorney and any relative or friend, and any 26 attorney at law entitled to practice in the courts of Alaska shall, at the request of the 27 prisoner or any relative or friend [FRIENDS] of the prisoner, have the right to 28 immediately visit the person arrested. This subsection does not provide a prisoner 29 with the right to initiate communication or attempt to initiate communication 30 under circumstances proscribed under AS 11.56.755. 31 * Sec. 6. AS 12.55.015(a) is amended to read:
01 Sec. 12.55.015. Authorized sentences; forfeiture. (a) Except as limited by 02 AS 12.55.125 - 12.55.175, the court, in imposing sentence on a defendant convicted 03 of an offense, may singly or in combination 04 (1) impose a 05 (A) fine when authorized by law and as provided in 06 AS 12.55.035; or 07 (B) day fine when authorized by law and as provided in 08 AS 12.55.036 [,] if the court does not impose a term of periodic or continuous 09 imprisonment or place the defendant on probation; 10 (2) order the defendant to be placed on probation under conditions 11 specified by the court that may include provision for active supervision; 12 (3) impose a definite term of periodic imprisonment; 13 (4) impose a definite term of continuous imprisonment; 14 (5) order the defendant to make restitution under AS 12.55.045; 15 (6) order the defendant to carry out a continuous or periodic program 16 of community work under AS 12.55.055; 17 (7) suspend execution of all or a portion of the sentence imposed under 18 AS 12.55.080; 19 (8) suspend imposition of sentence under AS 12.55.085; 20 (9) order the forfeiture to the commissioner of public safety or a 21 municipal law enforcement agency of a deadly weapon that was in the actual 22 possession of or used by the defendant during the commission of an offense described 23 in AS 11.41, AS 11.46, AS 11.56, or AS 11.61; 24 (10) order the defendant, while incarcerated, to participate in or comply 25 with the treatment plan of a rehabilitation program that is related to the defendant's 26 offense or to the defendant's rehabilitation if the program is made available to the 27 defendant by the Department of Corrections; 28 (11) order the forfeiture to the state of a motor vehicle, weapon, 29 electronic communication device, or money or other valuables, used in or obtained 30 through an offense that was committed for the benefit of, at the direction of, or in 31 association with a criminal street gang ;
01 (12) order the defendant to have no contact, either directly or 02 indirectly, with a victim or witness of the offense until the defendant is 03 unconditionally discharged . 04 * Sec. 7. AS 12.55.101(a) is amended to read: 05 (a) Before granting probation to a person convicted of a crime involving 06 domestic violence, the court shall consider the safety and protection of the victim and 07 any member of the victim's family. If a person convicted of a crime involving 08 domestic violence is placed on probation, the court may order the conditions 09 authorized in AS 12.55.100 and AS 18.66.100(c)(1) - (7) and (11), and may 10 (1) require the defendant to participate in and complete to the 11 satisfaction of the court one or more programs for the rehabilitation of perpetrators of 12 domestic violence that meet the standards set by, and that are approved by , the 13 Department of Corrections under AS 44.28.020(b) [,] if the program is available in the 14 community where the defendant resides; the court may not order a defendant to 15 participate in or complete a program for the rehabilitation of perpetrators of 16 domestic violence that does not meet the standards set, and that is not approved, 17 by the Department of Corrections under AS 44.28.020(b); 18 (2) require the defendant to refrain from the consumption of alcohol; 19 and 20 (3) impose any other condition necessary to protect the victim and any 21 members of the victim's family, or to rehabilitate the defendant. 22 * Sec. 8. AS 12.55.135(c) is amended to read: 23 (c) A defendant convicted of assault in the fourth degree that is a crime 24 involving domestic violence committed in violation of the provisions of an order 25 issued or filed under AS 12.30.027 or AS 18.66.100 - 18.66.180 and not subject to 26 sentencing under (g) of this section [OR ISSUED UNDER FORMER AS 25.35.010 27 OR 25.35.020] shall be sentenced to a minimum term of imprisonment of 20 days. 28 * Sec. 9. AS 12.55.135 is amended by adding new subsections to read: 29 (g) A defendant convicted of assault in the fourth degree that is a crime 30 involving domestic violence shall be sentenced to a minimum term of imprisonment 31 of
01 (1) 30 days if the defendant has been previously convicted of a crime 02 against a person or a crime involving domestic violence; 03 (2) 60 days if the defendant has been previously convicted two or more 04 times of a crime against a person or a crime involving domestic violence, or a 05 combination of those crimes. 06 (h) If a defendant is sentenced under (g) of this section, 07 (1) execution of sentence may not be suspended and probation or parole 08 may not be granted until the minimum term of imprisonment has been served; 09 (2) imposition of sentence may not be suspended; 10 (3) the minimum term of imprisonment may not otherwise be reduced. 11 (i) In this section, 12 (1) "crime against a person" means a crime under AS 11.41, or a crime 13 in this or another jurisdiction having elements similar to those of a crime under 14 AS 11.41; 15 (2) "crime involving domestic violence" has the meaning given in 16 AS 18.66.990. 17 * Sec. 10. AS 12.55.145(a) is amended to read: 18 (a) For purposes of considering prior convictions in imposing sentence under 19 (1) AS 12.55.125(c), (d)(1), (d)(2), (e)(1), (e)(2), or (i), 20 (A) a prior conviction may not be considered if a period of 10 21 or more years has elapsed between the date of the defendant's unconditional 22 discharge on the immediately preceding offense and commission of the present 23 offense unless the prior conviction was for an unclassified or class A felony; 24 (B) a conviction in this or another jurisdiction of an offense 25 having elements similar to those of a felony defined as such under Alaska law 26 at the time the offense was committed is considered a prior felony conviction; 27 (C) two or more convictions arising out of a single, continuous 28 criminal episode during which there was no substantial change in the nature of 29 the criminal objective are considered a single conviction unless the defendant 30 was sentenced to consecutive sentences for the crimes; offenses committed 31 while attempting to escape or avoid detection or apprehension after the
01 commission of another offense are not part of the same criminal episode or 02 objective; 03 (2) AS 12.55.125(l), 04 (A) a conviction in this or another jurisdiction of an offense 05 having elements similar to those of a most serious felony is considered a prior 06 most serious felony conviction; 07 (B) commission of and conviction for offenses relied on as prior 08 most serious felony offenses must occur in the following order: conviction for 09 the first offense must occur before commission of the second offense, and 10 conviction for the second offense must occur before commission of the offense 11 for which the defendant is being sentenced ; 12 (3) AS 12.55.135(g), 13 (A) a prior conviction may not be considered if a period of 14 five or more years has elapsed between the date of the defendant's 15 unconditional discharge on the immediately preceding offense and 16 commission of the present offense unless the prior conviction was for an 17 unclassified or class A felony; 18 (B) a conviction in this or another jurisdiction of an offense 19 having elements similar to those of a crime against a person or a crime 20 involving domestic violence is considered a prior conviction; 21 (C) two or more convictions arising out of a single, 22 continuous criminal episode during which there was no substantial change 23 in the nature of the criminal objective are considered a single conviction 24 unless the defendant was sentenced to consecutive sentences for the crimes; 25 offenses committed while attempting to escape or avoid detection or 26 apprehension after the commission of another offense are not part of the 27 same criminal episode or objective . 28 * Sec. 11. AS 12.55.145(c) is amended to read: 29 (c) The defendant shall file with the court and serve on the prosecuting 30 attorney notice of denial, consisting of a concise statement of the grounds relied upon 31 and that may be supported by affidavit or other documentary evidence, no later than
01 10 days before the date set for the imposition of sentence if the defendant 02 (1) denies 03 (A) the authenticity of a prior judgment of conviction; 04 (B) that the defendant is the person named in the judgment; 05 (C) that the elements of a prior offense committed in this or 06 another jurisdiction are similar to those of a 07 (i) felony defined as such under Alaska law; 08 (ii) most serious felony, defined as such under Alaska 09 law; 10 (iii) crime against a person or a crime involving 11 domestic violence; 12 (D) that a prior conviction occurred within the period specified 13 in (a)(1)(A) or (3)(A) of this section; or 14 (E) that a previous conviction occurred in the order required 15 under (a)(2)(B) of this section; or 16 (2) alleges that two or more purportedly separate prior convictions 17 should be considered a single conviction under (a)(1)(C) or (3)(C) of this section. 18 * Sec. 12. AS 12.55.145(d) is amended to read: 19 (d) Matters alleged in a notice of denial shall be heard by the court sitting 20 without a jury. If the defendant introduces substantial evidence that the defendant is 21 not the person named in a prior judgment of conviction, that the judgment is not 22 authentic, that the conviction did not occur within the period specified in (a)(1)(A) or 23 (3)(A) of this section, that a conviction should not be considered a prior felony 24 conviction under (a)(1)(B) of this section , [OR] a prior most serious felony conviction 25 under (a)(2)(A) of this section, or a prior crime against a person or a crime 26 involving domestic violence conviction under (a)(3)(B) of this section, or that a 27 previous conviction did not occur in the order required under (a)(2)(B) of this section, 28 then the burden is on the state to prove the contrary beyond a reasonable doubt. The 29 burden of proof that two or more convictions should be considered a single conviction 30 under (a)(1)(C) or (3)(C) of this section is on the defendant by clear and convincing 31 evidence.
01 * Sec. 13. AS 12.55.145 is amended by adding a new subsection to read: 02 (g) In this section, 03 (1) "crime against a person" has the meaning given in AS 12.55.135(i); 04 (2) "crime involving domestic violence" has the meaning given in 05 AS 18.66.990. 06 * Sec. 14. AS 18.66.100(c)(15) is amended to read: 07 (15) order the respondent, at the respondent's expense, to participate in 08 (A) a program for the rehabilitation of perpetrators of domestic violence that meets the 09 standards set by, and that is approved by , the Department of Corrections under 10 AS 44.28.020(b), or (B) treatment for the abuse of alcohol or controlled substances, 11 or both; a protective order under this section may not require a respondent to 12 participate in a program for the rehabilitation of perpetrators of domestic 13 violence unless the program meets the standards set by, and that is approved by, 14 the Department of Corrections under AS 44.28.020(b); 15 * Sec. 15. AS 33.16.150(f) is amended to read: 16 (f) In addition to other conditions of parole imposed under this section, the 17 board may impose as a condition of special medical, discretionary, or mandatory parole 18 for a prisoner serving a term for a crime involving domestic violence (1) any of the 19 terms of protective orders under AS 18.66.100(c)(1) - (7); (2) a requirement that, at 20 the prisoner's expense, the prisoner participate in and complete, to the satisfaction of 21 the board, a program for the rehabilitation of perpetrators of domestic violence that 22 meets the standards set by, and that is approved by , the department under 23 AS 44.28.020(b); and (3) any other condition necessary to rehabilitate the prisoner. 24 The board shall establish procedures for the exchange of information concerning the 25 parolee with the victim and for responding to reports of nonattendance or 26 noncompliance by the parolee with conditions imposed under this subsection. The 27 board may not under this subsection require a prisoner to participate in and 28 complete a program for the rehabilitation of perpetrators of domestic violence 29 unless the program meets the standards set by, and is approved by, the 30 department under AS 44.28.020(b). 31 * Sec. 16. AS 44.28.020(b) is amended to read:
01 (b) The department shall, with the approval of the Council on Domestic 02 Violence and Sexual Assault, adopt standards, by regulation, for rehabilitation 03 programs for perpetrators of domestic violence as defined in AS 18.66.990 and for the 04 approval of those programs . For purposes of AS 12.55.101, AS 18.66.100(c), and 05 AS 33.16.150(f), the department shall approve a program if the department 06 determines that the [DETERMINE WHETHER A] program meets the standards. 07 Upon application of a program, the department may waive one or more standards 08 and approve the program if the department determines 09 (1) there is good cause for the waiver; 10 (2) the safety of victims and children is not compromised by the 11 waiver; 12 (3) an acceptable alternative is provided by the program. 13 * Sec. 17. Rule 5(b), Alaska Rules of Criminal Procedure, is amended to read: 14 (b) Rights of Prisoner to Communicate With Attorney or Other Person. 15 Immediately after arrest, the prisoner shall have the right forthwith to telephone or 16 otherwise to communicate with both an attorney and any relative or friend. Any 17 attorney at law entitled to practice in the courts of Alaska, at the request of either the 18 prisoner or any relative or friend of the prisoner, shall have the right forthwith to visit 19 the prisoner in private. This subsection does not provide a prisoner with the right 20 to initiate communication or attempt to initiate communication under 21 circumstances proscribed under AS 11.56.755. 22 * Sec. 18. Rule 404(b)(3), Alaska Rules of Evidence, is amended to read: 23 (3) In a prosecution for a crime of sexual assault in any degree , 24 evidence of other sexual assaults or attempted sexual assaults by the defendant 25 against the same or another person is admissible if the defendant relies on a 26 defense of consent. In a prosecution for a crime of [OR] attempt to commit sexual 27 assault in any degree, evidence of other sexual assaults or attempted sexual assaults 28 by the defendant against the same or another person is admissible [IF THE 29 DEFENDANT RELIES ON A DEFENSE OF CONSENT]. 30 * Sec. 19. Rule 404(b)(4), Alaska Rules of Evidence, is amended to read: 31 (4) In a prosecution for a crime involving domestic violence or of
01 interfering with a report of a crime involving domestic violence, evidence of other acts 02 of [CRIMES INVOLVING] domestic violence by the defendant against the same or 03 another person or of interfering with a report of a crime involving domestic violence 04 is admissible. In this paragraph, "domestic violence" and "crime involving domestic 05 violence" have the meanings given in AS 18.66.990. 06 * Sec. 20. AS 11.56.745(b) is repealed. 07 * Sec. 21. AS 12.25.150(b), as amended by sec. 5 of this Act, amends Rule 5(b), Alaska 08 Rules of Criminal Procedure, by limiting the people with whom a prisoner may communicate 09 immediately after arrest. 10 * Sec. 22. Sections 2, 5, and 17 of this Act take effect only if secs. 17 and 21 of this Act 11 receive the two-thirds majority vote of each house required by art. IV, sec. 15, Constitution 12 of the State of Alaska. 13 * Sec. 23. APPLICABILITY. (a) The changes made by secs. 5, 17, and 21 of this Act 14 apply to persons arrested for offenses occurring before, on, or after the effective date of this 15 Act. 16 (b) Sections 18 and 19 of this Act apply to a criminal or juvenile proceeding held on 17 or after the effective date of secs. 18 and 19 of this Act regardless of whether the criminal 18 offense occurred before, on, or after the effective date of secs. 18 and 19 of this Act. 19 (c) References to previous convictions in this Act apply to all convictions occurring 20 before, on, or after the effective date of this Act. 21 * Sec. 24. Sections 7 and 14 - 15 of this Act take effect on the later of (1) January 1, 22 1999, or (2) six months after the effective date of the regulations adopted by the Department 23 of Corrections under AS 44.28.020(b), as amended by sec. 16 of this Act, relating to the 24 approval of rehabilitation programs for perpetrators of domestic violence. The lieutenant 25 governor and the commissioner of corrections shall notify the revisor of statutes when the 26 regulations are filed. 27 * Sec. 25. Except for secs. 7 and 14 - 15, this Act takes effect immediately under 28 AS 01.10.070(c).