01/27/2006 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB326 | |
| HB321 | |
| HB314 | |
| HB379 | |
| HB343 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 150 | TELECONFERENCED | |
| *+ | HB 379 | TELECONFERENCED | |
| *+ | HB 343 | TELECONFERENCED | |
| += | TELECONFERENCED | ||
| = | HB 326 | ||
| = | HB 321 | ||
| = | HB 314 | ||
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
January 27, 2006
1:07 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative John Coghill
Representative Peggy Wilson
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
Representative Pete Kott
COMMITTEE CALENDAR
HOUSE BILL NO. 326
"An Act relating to harassment."
- RESCINDED ACTION OF 1/18/06; MOVED NEW CSHB 326(JUD)
OUT OF COMMITTEE
HOUSE BILL NO. 321
"An Act relating to high risk operation of a motor vehicle,
aircraft, or watercraft while under the influence of an
alcoholic beverage, inhalant, or controlled substance and to
refusal to submit to a chemical test."
- HEARD AND HELD
HOUSE BILL NO. 314
"An Act relating to defense of self, other persons, and
property."
- HEARD AND HELD
HOUSE BILL NO. 379
"An Act relating to controlled substances."
- HEARD AND HELD
HOUSE BILL NO. 343
"An Act relating to harassment."
- HEARD AND HELD
HOUSE BILL NO. 150
"An Act requiring licensure of occupations relating to
radiologic technology, radiation therapy, and nuclear medicine
technology; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HB 326
SHORT TITLE: POSTING LEWD MATERIAL AS HARASSMENT
SPONSOR(S): REPRESENTATIVE(S) MEYER, LYNN
01/09/06 (H) PREFILE RELEASED 12/30/05
01/09/06 (H) READ THE FIRST TIME - REFERRALS
01/09/06 (H) JUD, FIN
01/18/06 (H) JUD AT 1:00 PM CAPITOL 120
01/18/06 (H) Moved CSHB 326(JUD) Out of Committee
01/18/06 (H) MINUTE(JUD)
01/26/06 (H) FIN AT 1:30 PM HOUSE FINANCE 519
01/26/06 (H) <Bill Hearing Postponed>
01/27/06 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 321
SHORT TITLE: AGGRAVATED DRUNK DRIVING
SPONSOR(S): REPRESENTATIVE(S) RAMRAS
01/09/06 (H) PREFILE RELEASED 12/30/05
01/09/06 (H) READ THE FIRST TIME - REFERRALS
01/09/06 (H) JUD, FIN
01/18/06 (H) JUD AT 1:00 PM CAPITOL 120
01/18/06 (H) Scheduled But Not Heard
01/25/06 (H) JUD AT 1:00 PM CAPITOL 120
01/25/06 (H) Heard & Held
01/25/06 (H) MINUTE(JUD)
01/27/06 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 314
SHORT TITLE: USE OF FORCE TO PROTECT SELF/HOME
SPONSOR(S): REPRESENTATIVE(S) COGHILL, GATTO, LYNN
01/09/06 (H) PREFILE RELEASED 12/30/05
01/09/06 (H) READ THE FIRST TIME - REFERRALS
01/09/06 (H) JUD, FIN
01/25/06 (H) JUD AT 1:00 PM CAPITOL 120
01/25/06 (H) Scheduled But Not Heard
01/27/06 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 379
SHORT TITLE: CONTROLLED SUBSTANCES, INCL. ANALOGS
SPONSOR(S): REPRESENTATIVE(S) MEYER
01/18/06 (H) READ THE FIRST TIME - REFERRALS
01/18/06 (H) JUD, FIN
01/27/06 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 343
SHORT TITLE: HARASSMENT
SPONSOR(S): REPRESENTATIVE(S) LYNN
01/09/06 (H) PREFILE RELEASED 1/6/06
01/09/06 (H) READ THE FIRST TIME - REFERRALS
01/09/06 (H) JUD, FIN
01/27/06 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE KEVIN MEYER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as one of the prime sponsors of
HB 326; testified as the sponsor of HB 379.
MICHAEL PAWLOWSKI, Staff
to Representative Kevin Meyer
House Finance Committee
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Assisted with the presentation of the
proposed CS for HB 326, Version F, on behalf of Representative
Meyer, one of the bill's prime sponsors; assisted with the
presentation of HB 379 on behalf of the sponsor, Representative
Meyer.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: During discussion of the proposed CS for HB
326, Version F, provided comments and responded to questions;
testified in support of HB 379.
JANE PIERSON, Staff
to Representative Jay Ramras
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 321 on behalf of the sponsor,
Representative Ramras, and responded to questions.
RON TAYLOR, Coordinator
Alcohol Safety Action Program (ASAP)
Prevention and Early Intervention Section
Division of Behavioral Health (DBH)
Department of Health and Social Services (DHSS)
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 321.
KAREN LIDSTER, Staff
to Representative John Coghill
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 314 on behalf of one of the
prime sponsors, Representative Coghill.
DEAN J. GUANELI, Chief Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Provided comments and responded to
questions during discussion of HB 314.
MIKE MILLIGAN
Kodiak, Alaska
POSITION STATEMENT: Provided comments and suggested a change
during discussion of HB 314.
TRINKA PORRATA, President
Project GHB
Phoenix, Arizona
POSITION STATEMENT: During the hearing on HB 379, answered
questions.
REPRESENTATIVE BOB LYNN
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 343.
JAMES A. HELGOE, Lieutenant, Legislative Liaison
Division of Alaska State Troopers
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 343.
MAE L. BARNEY, Correctional Officer II
Fairbanks Correctional Center
Division of Institutions
Department of Corrections (DOC)
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of HB 343.
MICHAEL SICA, Staff
to Representative Bob Lynn
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 343, responded to
comments and questions on behalf of the sponsor, Representative
Lynn.
RICHARD SCHMITZ, Public Information Officer
Office of the Commissioner - Juneau
Department of Corrections (DOC)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 343.
SUSAN A. PARKES, Deputy Attorney General
Criminal Division
Office of the Attorney General
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 343 and
responded to questions.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:07:58 PM. Representatives
McGuire, Coghill, Wilson, Gruenberg, and Gara were present at
the call to order. Representative Anderson arrived as the
meeting was in progress.
HB 326 - POSTING LEWD MATERIAL AS HARASSMENT
1:08:16 PM
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 326, "An Act relating to harassment."
[HB 326, as amended, was moved from committee on 1/18/06; in
committee packets was a proposed committee substitute (CS) for
HB 326, Version 24-LS1223\F, Luckhaupt, 1/26/06.]
1:08:39 PM
REPRESENTATIVE COGHILL made a motion to rescind the committee's
action on 1/18/06 in reporting CSHB 326(JUD) [HB 326, as amended
on 1/18/06] from committee. There being no objection, it was so
ordered.
REPRESENTATIVE KEVIN MEYER, Alaska State Legislature, one of the
prime sponsors of HB 326, relayed that the proposed CS,
Version F, corrects some technical aspects of the version of the
bill that moved from committee on 1/18/06.
1:09:40 PM
REPRESENTATIVE COGHILL made a motion to adopt the proposed CS
for HB 326, Version 24-LS1223\F, Luckhaupt, 1/26/06, as a work
draft. There being no objection, Version F was before the
committee.
1:10:07 PM
MICHAEL PAWLOWSKI, Staff to Representative Kevin Meyer, House
Finance Committee, Alaska State Legislature, one of the prime
sponsors of HB 326, relayed on behalf of Representative Meyer
that members' packets contain a memorandum from the sponsor
highlighting comments from Legislative Legal and Research
Services, the Department of Law (DOL), and the Alaska Court of
Appeals case, McKillop v. State; and indicating that [Amendments
1 and 2] to HB 326 would hinder the state's ability to prosecute
someone.
1:10:51 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL),
explained that the words, "sole purpose" would make it much more
difficult to prosecute someone, notwithstanding the court's
ruling in McKillop, because the DOL would have to prove beyond a
reasonable doubt that the person performed the activities listed
in proposed AS 11.61.120(a)(6) for no other reason than to
harass or annoy another person.
MR. PAWLOWSKI indicated that Version F contains the title change
that was incorporated into the original bill via [Amendment 3]
and aside from that change is identical to the original version.
REPRESENTATIVE GRUENBERG said he is concerned that the court's
interpretation in McKillop would make it impossible to prosecute
the type of behavior outlined in proposed AS 11.61.120(a)(6).
He offered his belief that they should make it clear that the
court should reexamine its interpretation of AS 11.61.120(a)(4)
because it failed to note the practical implications of its
decision in McKillop, that being that it will be impossible to
prosecute someone for violating that statute. He asked Ms.
Carpeneti to comment on this issue.
MS. CARPENETI said that the DOL's position is that when statute
includes as an element of the defense that the state has to
prove beyond a reasonable doubt that the defendant's actions
were for the sole purpose of harassing or annoying another
person, then the DOL must prove that fact beyond a reasonable
doubt; this will be difficult because people do things for a
variety of reasons, or, at the very least, can claim that they
had a variety of reasons.
REPRESENTATIVE GRUENBERG asked whether it would help to include
a "purposes" section in the bill, that purpose being that the
legislature is considering the practical implication of the
[ruling in McKillop].
MS. CARPENETI said she has found such statements to be helpful.
REPRESENTATIVE GRUENBERG suggested that "findings and purposes"
language could be drafted in the House Finance Committee; that
language could reflect that they are directly confronting [the
interpretation in McKillop] and are asking the court to consider
the practical consequences of its decisions.
1:16:42 PM
REPRESENTATIVE GARA offered his belief that without stipulating
that the intent to annoy is either a main purpose or a primary
purpose for distributing the types of photographs outlined in
the bill, it would make criminals out of kids who are
distributing photographs of public figures.
MR. PAWLOWSKI said he would argue that even that behavior is
unacceptable if the photographs contain the elements listed in
proposed AS 11.61.120(a)(6); such photographs are not casual
photographs regardless of who the subject is, and the
distribution of them rises to a level of conduct that should be
criminal.
REPRESENTATIVE GARA offered his belief that as written, the bill
also captures behavior that is not meant to be covered.
CHAIR McGUIRE offered her understanding that the committee
doesn't want to be making criminals out of "people who are
pranksters, who are kids, who [are] goofing off"; not that that
conduct is to be condoned, however. This proposed law is for
those serious cases where one is truly harassing somebody, and
stems from a situation in which a constituent of the sponsor was
very upset to have nude photographs of herself being posted in
an offensive manner. She asked whether it would be acceptable
to use the term "primary" or "main" - or perhaps some other term
that is used in another criminal statute - instead of "sole";
some word that will relay that although there may have been
ancillary motivations for the behavior, the main goal was really
to harass someone. She surmised that including something along
those lines would make members more comfortable while also
clarifying the intent of the legislation.
MS. CARPENETI explained that the DOL has to prove, beyond a
reasonable doubt, that when the person did the act, that he/she
did it with intent to annoy or harass. Therefore, the use of
the word "primary" is better than "sole", but the DOL would
rather only have to prove that the person acted as he/she did
with the intent to harass or annoy another person. As
demonstrated in the McKillop case, she pointed out, the courts
are not going to allow broad-ranging prosecutions that punish a
person for a silly prank or a child for behaving in a juvenile
manner.
CHAIR McGUIRE acknowledged that point.
1:23:50 PM
REPRESENTATIVE GARA said he is not comfortable with the concept
of writing a law in a broad fashion and then simply trusting
that all prosecutors won't enforce the law to the full extent of
the words in that law.
MS. CARPENETI pointed out, however, that this same standard must
be used in the prosecution of all the other paragraphs of the
harassment statute. "I think that ... requiring, beyond a
reasonable doubt, proof of intent to harass or annoy another
person ... gets at the crux of what you're looking at; now, if
you want to put "primary", that would be better than "sole",
[but] I think it's not necessary and it might be problematical,"
she added.
REPRESENTATIVE GARA indicated that with regard to "harass", that
is acceptable; however, the language is also making it a crime
to "annoy" someone. Someone may not be forwarding a photograph
of a public figure with the intent to harass the subject, but [a
reasonable person could be expected to assume] that the action
will annoy the subject; thus, even though it needs to be proven
beyond a reasonable doubt, simply annoying someone would also be
against the law. Therefore, he expressed a preference for
including the word "primary" or some other word which will
stipulate that the purpose, regardless that the act was
intentional, has to be a motivating purpose.
MS. CARPENETI argued that by including such language, the DOL
would find itself in a situation wherein the defendant simply
says that in addition to having the intent to annoy or harass,
he/she committed the act for his/her own gratification or for
various other reasons. Again, this could be problematic for the
prosecution, she remarked, and recommended that such language
not be included.
REPRESENTATIVE GARA suggested that using the term, "a main
purpose" would address the DOL's concern. For example, a person
could have three main reasons to commit the act but one of them
was to harass another person.
1:26:29 PM
MS. CARPENETI indicated that the language in subsection (a) -
"with intent to annoy or harass" - demonstrates that a person
already has a main purpose in committing the act. She
suggested, though, that if such words are added, that they apply
only to proposed paragraph (6).
REPRESENTATIVE GARA agreed.
REPRESENTATIVE WILSON concurred that a defendant could always
say, whether true or not, that he/she committed an act for
reasons in addition to harassing or annoying.
MS. CARPENETI said proving such to be false would be very
difficult.
REPRESENTATIVE WILSON surmised, then, that defendants could be
given a "total out."
REPRESENTATIVE GARA said that is why he is suggesting the use of
the term, "a main purpose", rather than, "the main purpose".
CHAIR McGUIRE noted that when paragraph (6) is read in
conjunction with subsection (a), it is clear that one must have
the intent to harass or annoy another person, and therefore her
concern with the current proposed language is alleviated. She
indicated that [the DOL probably] doesn't want to get into
having to measure to what percentage a person has the intent to
harass or annoy. She remarked that she wants the record to
reflect that [the committee does] not want the bill to apply to
school pranks, and that it views harassment as a serious crime.
1:29:57 PM
REPRESENTATIVE GARA suggested that the bill could be changed
such that it wouldn't apply when public figures are the subject
of a photograph. Another option would be to change the bill
such that proposed paragraph (6) only applies when the intent is
to harass, but not when the intent is to annoy.
MS. CARPENETI questioned how [the latter suggested] change would
be drafted.
CHAIR McGUIRE said she is uncomfortable with the concept of
having the intent to annoy not apply to paragraph (6). As for
the suggested change regarding public figures, she pointed out
that the public figure would have to come forward and say that
the publishing, posting, or distributing of the types of
photographs listed in paragraph (6) annoys or harasses him/her;
therefore, a kid in Alaska forwarding on a picture of a public
figure is unlikely to be prosecuted under the proposed statute.
Furthermore, a legislator could be considered a "public figure".
Just because public figures have a higher level of exposure, she
remarked, she doesn't know that they need to be [exempted from
the bill].
REPRESENTATIVE COGHILL pointed out that if public figures were
[exempted from the bill], the question could then become how
much of a public figure was the subject of a photograph. He
surmised that current law already outlines that one has the
right to not be annoyed, and opined that paragraph (6)
stipulates probably the most egregious behavior as compared to
the behavior outlined in the other five paragraphs.
REPRESENTATIVE GRUENBERG noted that paragraph (6) pertains to
more than mere speech, which the court addressed in McKillop, as
did the court in Jones v. Anchorage, which said, "We conclude
that AS 11.61.120(a)(4) must be interpreted to prohibit
telephone calls only when the call has no legitimate
communicative purpose - when the caller's speech is devoid of
any substantial information and the caller's sole intention is
to annoy or harass the recipient." He asked whether the sponsor
wishes to address only paragraph (6) or is willing to take on
the issue raised in McKillop. If it is the latter, he
suggested, they could add to [subsection (a)] some of the
language used in Jones to say, "when the person's communication
is devoid of any substantial information and the [person's]
intention is to annoy or harass the recipient". He also
suggested that they should provide a definition for the word
"anonymous", which is used in paragraph (4) of AS 11.61.120(a);
they could perhaps define it as the court does.
1:38:56 PM
MR. PAWLOWSKI relayed that the sponsor would prefer to simply
address paragraph (6).
MS. CARPENETI concurred.
REPRESENTATIVE GRUENBERG offered his belief that at some point
in the future they should address the remainder of AS 11.61.120
in light of the ruling in McKillop.
REPRESENTATIVE ANDERSON pointed out that McKillop and Jones are
many years old and address the issue of phone calls rather than
photographs, surmised that many public figures will never even
know that kids might be passing around their photographs and
thus won't be harassed or annoyed by that activity, offered his
belief that the courts will have the discretion to ensure that
only legitimate instances of harassment are prosecuted, and
opined that the legislature is correct in making a policy call
and setting a precedent to say that such behavior is
unacceptable. He further opined that there is no need to codify
the court's interpretation of AS 11.61.120(1)(4).
1:43:18 PM
REPRESENTATIVE GARA made a motion to adopt Conceptual Amendment
[1], to insert the words, "with a main purpose being to harass
or annoy the person," on page 1, line 15, after "(6)". He
opined that the addition of this language will satisfy the
intent of the sponsor without making the provision so hard to
prosecute.
REPRESENTATIVE MEYER said he opposes Conceptual Amendment 1 as
being unnecessary and potentially causing problems further down
the road.
REPRESENTATIVE GRUENBERG sought clarification that the amendment
would be conceptual in nature, and offered his belief that a
conforming change, via that amendment, would also be in order on
page 1, lines 4-5.
REPRESENTATIVE GARA indicated that he would be amenable to
having Conceptual Amendment 1 address that portion of the bill
as well.
REPRESENTATIVE ANDERSON mentioned that he doesn't see how
Conceptual Amendment 1 could hurt the bill.
REPRESENTATIVE GRUENBERG suggested that it could be problematic
for the prosecution to have to prove that annoying or harassing
another person is a main purpose for committing an activity, and
said he is not sure how the courts would go about ranking
purposes so as to determine whether a particular purpose was "a
main purpose". He asked whether any other statute makes use of
the term, "a main purpose" with regard to mental intent.
MS. CARPENETI reiterated that the DOL must already prove beyond
a reasonable doubt that when the photograph was published the
person acted with the intent to annoy or harass; therefore, use
of the term, "a main purpose" could create a problem for the
prosecution. She indicated that she is unaware of any other
statute that uses the term, "a main purpose" with regard to
mental intent; specific intent crimes usually are with intent to
cause a certain harm.
REPRESENTATIVE GRUENBERG said he is concerned about forcing the
jury to determine whether a purpose was a main purpose.
MR. PAWLOWSKI reiterated his belief that if the photographs
contain the elements listed in proposed AS 11.61.120(a)(6), it
doesn't matter that the photographs were sent around as part of
a joke; just because something could be viewed as a joke, and
regardless of who the subject is, it shouldn't mean that the
nature of the crime could be limited.
REPRESENTATIVE ANDERSON used an example wherein a person gets
charged with a crime even though the person had not meant to
harass or annoy another person.
CHAIR McGUIRE said she is concerned that layering on the term,
"a main purpose", could result in sort of having a trial within
a trial. Other aspects of the criminal code simply look at
intent, she noted, without having a determination regarding the
percentages that could be attributed to particular purposes.
MS. CARPENETI said that under the harassment statute, the state
has to prove that it was the actor's specific intent to annoy or
harass, not that the subject was actually annoyed or harassed by
the behavior.
1:52:40 PM
A roll call vote was taken. Representatives Anderson and Gara
voted in favor of Conceptual Amendment 1. Representatives
McGuire, Coghill, Wilson, and Gruenberg voted against it.
Therefore, Conceptual Amendment 1 failed by a vote of 2-4.
REPRESENTATIVE GRUENBERG again expressed a desire to deal with
the issues raised by the McKillop case. He asked Ms. Carpeneti
whether she would like to have the issue of including an
"intents or purposes" section addressed by the next committee of
referral.
MS. CARPENETI said she did not think so.
1:53:58 PM
REPRESENTATIVE ANDERSON moved to report the proposed CS for HB
326, Version 24-LS1223\F, Luckhaupt, 1/26/06, out of committee
with individual recommendations and the accompanying fiscal
notes. There being no objection, [new] CSHB 326(JUD) was
reported from the House Judiciary Standing Committee.
HB 321 - AGGRAVATED DRUNK DRIVING
1:54:29 PM
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 321, "An Act relating to high risk operation of a
motor vehicle, aircraft, or watercraft while under the influence
of an alcoholic beverage, inhalant, or controlled substance and
to refusal to submit to a chemical test." [Before the committee
was the proposed committee substitute (CS) for HB 321, Version
24-LS1099\F, Luckhaupt, 1/16/06, which had been adopted as a
work draft on 1/25/06.]
JANE PIERSON, Staff to Representative Jay Ramras, Alaska State
Legislature, sponsor, on behalf of Representative Ramras
answered questions posed on January 25, 2006. She reminded the
committee that Representative Gruenberg had asked why the
committee would want to repeal AS 28.35.032(i) via Section 5.
She explained that for those circumstances outlined in the bill,
there would no longer be a 72-hour sentence as outlined in AS
28.35.032(i) for refusing to take a chemical test to determine a
blood alcohol concentration (BAC) level; instead, the sentence
for refusal would mirror what is in the bill for driving under
the influence (DUI) convictions. She reminded the committee
that Representative Gara had asked for some statistics regarding
the effectiveness of the [current] DUI laws and informed the
committee that the statistics are in the packet.
1:56:33 PM
MS. PIERSON noted that Ron Taylor, Coordinator, Alcohol Safety
Action Program (ASAP), Prevention and Early Intervention
Section, Division of Behavior Health (DBH), Department of Health
and Social Services (DHSS), brought up the question of [a
possible] amendment dealing with increased [fees for reinstating
a person's driver's license]. She stated that although
Representative Ramras didn't want to increase the court fines,
he didn't have a problem with increasing the [fee] for
reinstating a driver's license. In regard to the fiscal notes
and Representative Gruenberg's question about them, she remarked
that she has yet to receive a return email from the Department
of Corrections (DOC). In regard to the available grants, she
relayed that 23 U.S.C. 410 alcohol-impaired driving
countermeasures incentive grants are available if certain
criteria are met, and referred to the criteria for the grants in
committee packets.
MS. PIERSON relayed that one of the things she checked into was
whether a .15 BAC would be a threshold for that and the answer
is no. There are states that have a high BAC law, for example a
.20 BAC, and they are still receiving these grants. [Alaska]
has to meet the criteria and she offered her understanding that
Alaska is qualified under "Basic Grant A" criteria and probably
under "Basic Grant B" criteria. She relayed that Ron Taylor
also asked what it would count as if one were to get a third DUI
and had gotten two previous DUIs with a low BAC but the third
DUI was with a high BAC. She opined that if one gets a high BAC
[DUI] and it is the third one, it falls under DUIs that one is
charged with under [proposed] AS 28.35.030, but acknowledged
that perhaps this is not yet clear in the bill.
REPRESENTATIVE GRUENBERG referred to the "rule of lenity": if a
criminal statute can be interpreted two ways - one way that's
harsher than the other way - the court will have to interpret it
the less-harsh way. Therefore, the statute needs to be clearer,
otherwise the aforementioned rule may be brought to bear.
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1, to
increase the [fee for reinstating a driver's license], after a
second high-risk DUI offense, to $750.
CHAIR McGUIRE suggested that Amendment 1 be conceptual so the
drafter could put it where it's appropriate.
REPRESENTATIVE GRUENBERG then altered Conceptual Amendment 1 so
that it would increase the fee to only $700. In response to a
question and comments, he noted that AS 28.15.271 relates to
driver's license reinstatement fees.
REPRESENTATIVE GARA said he doesn't understand what the purpose
would be of increasing the [fee] by $200.
REPRESENTATIVE GRUENBERG posited that increasing the fee is
creating another aspect of deterrence for this higher-level
crime.
RON TAYLOR, Coordinator, Alcohol Safety Action Program (ASAP),
Prevention and Early Intervention Section, Division of
Behavioral Health (DBH), Department of Health and Social
Services (DHSS), relayed that his suggested increase in the
driver's license reinstatement fee is in response to something
that said at the previous meeting, which is that each time
something is changed in [the DUI statutes] it's going to send a
clear message to a high-risk driver that he/she will have the
distinction of being subject to higher penalties - whether it be
fines, jail time, or reinstatement fees. He remarked that
there's no rhyme or reason for a 50 percent increase across the
board for jail time, fines, and reinstatement fees.
2:06:52 PM
REPRESENTATIVE GRUENBERG, in response to a question, clarified
that if one has a .16 [BAC], [Conceptual Amendment 1] applies,
while if one has a .159 [BAC], it won't.
REPRESENTATIVE GARA offered his understanding that in 2000 there
were 4,686 DUI arrests and the number was the same in 2005. In
the intervening years, the number of DUI arrests have increased
and decreased, but that's not compelling evidence that changes
in DUI laws have caused the number of arrests or convictions to
decrease. He opined that although the fines have been
drastically increased, it seems like increases in jail time is
more important because it is punitive. He expressed his concern
about whether [an increase in fees] is actually needed.
REPRESENTATIVE GRUENBERG said, "We have not increased the
[fines] ... in the bill, so [Conceptual Amendment 1 would be]
... the only additional monetary sanction in it."
MS. PIERSON concurred.
REPRESENTATIVE ANDERSON recalled Representative Ramras stating
that someone affluent can easily pay a fine and that therefore
his intent was to change the jail time, not the fine.
MS. PIERSON concurred with that summation.
2:11:24 PM
A roll call vote was taken. Representative Gruenberg voted in
favor of Conceptual Amendment 1. Representatives McGuire,
Wilson, Anderson, and Gara voted against it. Therefore,
Conceptual Amendment 1 failed by a vote of 1-4.
MS. PIERSON, in response to comments, informed the committee of
the high BAC levels in states which are receiving the
aforementioned grants: .15 in Arizona; .15 in Arkansas; .20 in
California; split .15/.20 in Colorado; .16 in Connecticut;
.16/.20 with a graduated law in Delaware; .20 in Florida; and
.15 in Georgia. In response to a question, she offered her
understanding that this legislation would make it so that [the
State of Alaska] would be able to apply for the grants.
MR. TAYLOR indicated that that issue has not yet been clarified.
He said he was unaware of whether having a high BAC threshold of
.16 would impact [the State of Alaska] for the upcoming fiscal
year (FY).
REPRESENTATIVE GARA relayed that the point to him isn't that one
is half as dangerous with a .159 BAC than if one has a .161 BAC;
"the truth is, you're a fantastic danger at both." He opined
that to pretend that one is twice or half as dangerous simply by
using these numbers is a fiction, and that one's first time DUI
conviction, in a lot of cases, just seems like a "slap on the
wrist" when it should instead have a bigger impact. It seems
reasonable to him, he remarked, that in a more serious case, a
first time DUI should result in six days [in jail], whereas
always making the penalty twice as much, every single time,
doesn't make as much sense. He reiterated his concern that HB
321 sends the message that it's okay to drive with a .10 or .08
BAC, and opined that dong so is not okay.
2:17:31 PM
REPRESENTATIVE GARA moved to adopt Conceptual Amendment 2, to
make a conviction for a first time DUI at the .16 BAC level
result in a minimum of six days [in jail] and enhancing the
sentence for subsequent DUIs by a minimum of a third longer than
it currently is though the court can impose something longer if
it thinks the circumstances justify it.
2:18:58 PM
A roll call vote was taken. Representatives Anderson and Gara
voted in favor of Conceptual Amendment 2. Representatives
McGuire, Wilson, and Gruenberg voted against it. Therefore,
Conceptual Amendment 2 failed by a vote of 2-3.
[Following was a brief discussion regarding what changes to
sentences would have been effected by Conceptual Amendment 2.]
REPRESENTATIVE GRUENBERG suggested replacing "40 days" with "30
days" on page 2, line 26; "80 days" with "70 days" on page 2,
line 28; "140 days" with "130 days" on page 2, line 31; and "280
days" with "260 days" on page 3, line 3.
CHAIR McGUIRE referred to Representative Gruenberg's suggested
changes as Amendment 3.
CHAIR McGUIRE informed the committee that she would hold HB 321
over. She expressed her concern about the bill sponsor's
absence and Amendment 3 being a fairly substantive change to the
legislation, which is intended to double the penalties in the
category of jail sentences. She expressed her desire for a more
definitive answer - in writing - as to whether .15 BAC or .16
BAC makes a difference. In response to questions, she clarified
that HB 321 will be held over with Amendment 3 left pending,
adding that it would be okay if Representative Gruenberg wanted
to withdraw Amendment 3 at the next meeting.
REPRESENTATIVE GARA commented that none of the committee members
should be doing "math on the fly," and asked whether the federal
government has stipulated how much the states have to increase
their sentences by.
MS. PIERSON clarified that [the federal language in part] reads,
"a law that imposes stronger sanctions or additional penalties
for high risk drivers with a BAC of .15 or more".
2:27:56 PM
CHAIR McGUIRE announced that HB 321 [Version F] would be held
over with the question of whether to adopt Amendment 3 left
pending.
HB 314 - USE OF FORCE TO PROTECT SELF/HOME
2:28:07 PM
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 314, "An Act relating to defense of self, other
persons, and property."
2:28:38 PM
KAREN LIDSTER, Staff to Representative John Coghill, Alaska
State Legislature, one of the prime sponsors of HB 314, relayed
on behalf of Representative Coghill that HB 314 will expand the
area in which a person is allowed to stand his/her ground and
[use deadly force to] protect himself/herself when faced with
the threat of death, serious physical injury, kidnapping, sexual
assault, or robbery. Currently one may only use deadly force
while on premises that one owns or leases and is not the initial
aggressor. She noted that members' packets contain an Amendment
1, which, with some formatting changes and explanations, read
[original punctuation provided]:
Page 2, Line 6: after the word "assault" delete:
", SEXUAL ABUSE OF A MINOR"
insert:
in the first degree, sexual assault in the
second degree
We are recommending deleting the proposed
change and staying with the original wording in order
to address the concerns that "sexual abuse of a minor"
could be a loophole for a father to walk in on his 15-
year-old daughter with her 19-year-old boyfriend, and
the father claim "self defense of a child" as
justification for killing the boyfriend.
Line 10: after "to a" insert:
reasonable
In discussions with the AG's office, they
felt that our original language "to a certainty" was
much too broad and could let bad actors get away with
using deadly force. It was agreed that adding in
reasonable was a compromise that we both could live
with.
Line 21: after the word "assault" delete:
", SEXUAL ABUSE OF A MINOR"
insert:
in the first degree, sexual assault in the
second degree
In this new section (b) we recommend staying
with the same language as Line 6 above.
MS. LIDSTER relayed that the Department of Law (DOL) had
expressed concern that one of the proposed changes in Section 2
- that which would replace the words, "in the first degree,
sexual assault in the second degree" with the words, ", sexual
abuse of a minor" - could create a loophole in situations where
a parent is angry that his/her teenager is having a relationship
with someone over the age of majority. Amendment 1 proposes to
leave the language as it currently is in AS 11.81.335(a)(2).
Amendment 1 would also change, in proposed AS 11.81.335(b), the
proposed new wording, "to a certainty" to, "to a reasonable
certainty"; this provision specifies one's duty to retreat.
This change was also requested by the DOL because it felt that
without the word, "reasonable" there could be difficulty proving
that a person really could have retreated instead of using
deadly force. The last alteration Amendment 1 proposes is that
of changing Section 3 of the bill such that the language will
mirror what is currently in AS 11.81.335(a)(2) regarding the
crimes listed.
2:32:51 PM
REPRESENTATIVE GARA suggested that Amendment 1 be incorporated
into a proposed committee substitute (CS).
CHAIR McGUIRE agreed to arrange that.
REPRESENTATIVE GARA indicated that the bill might still have
some unintended consequences. For example, he offered his
belief that the crime of kidnapping includes custodial
interference, and relayed that it's his belief that the sponsor
doesn't intend for the bill to apply in those situations.
Referring to Section 3, he offered his understanding that as
currently written, one could use deadly force simply when one
reasonably believes that a child is in imminent threat of having
one of the things listed occur to him/her, and would not have to
reasonably believe that the use of deadly force is the only way
in which to stop those things from occurring. He suggested that
this also is not the sponsor's intent, particularly with regard
to robbery, and therefore the current language in Section 3
could prove problematic.
MS. LIDSTER agreed to research those issues.
2:37:06 PM
REPRESENTATIVE GRUENBERG suggested that the bill should include
a definition of "carjacking". He asked what the difference is
between "carjacking" - as used in proposed AS 11.81.350(e)(1) -
and "theft of a motor vehicle when another person ... is inside
the vehicle" - as used in proposed AS 11.81.350(e)(2) - adding
that he thought the latter was a carjacking.
MS. LIDSTER indicated that in proposed AS 11.81.350(e)(1), the
person is still in the vehicle, and in proposed AS
11.81.350(e)(2), the person is outside of the vehicle and there
is another person, perhaps even a child, in the car.
REPRESENTATIVE GRUENBERG offered his belief that the activity in
both proposed AS 11.81.350(e)(1) and proposed AS 11.81.350(e)(2)
are simply different forms of carjacking.
MS. LIDSTER said she would research that issue.
CHAIR McGUIRE noted that one of her former staff was the victim
of a carjacking, and briefly described that situation, which she
characterized as very serious.
REPRESENTATIVE GARA indicated that he is amenable to [the
changes proposed via Amendment 1], and reiterated his concern
regarding Section 3; on the latter point, he suggested adding
the phrase, "the person reasonably believes the use of deadly
force is necessary.
MS. LIDSTER acknowledged that point, again offering to research
that issue further.
REPRESENTATIVE GRUENBERG asked whether carjacking is currently
punished as a separate crime.
MS. LIDSTER said she would also research that issue.
2:42:36 PM
DEAN J. GUANELI, Chief Assistant Attorney General, Legal
Services Section-Juneau, Criminal Division, Department of Law
(DOL), relayed that the administration supports having a good,
strong, self-defense law, but at the same time wants it to be a
workable law so that gang members, drug dealers, and other
criminals don't use the justification of self defense as an
excuse for shooting up a neighborhood. He mentioned that he has
been working with the sponsor in an effort to improve the bill
so that it will accomplish both goals. In response to
Representative Gruenberg's question, he noted that carjacking
can include any number of crimes and can also be prosecuted as a
separate crime of vehicle theft - a felony in and of itself - or
as felony theft of property depending on what items were in the
car. Furthermore, depending on what is done to the
driver/passengers, assault charges might also be warranted.
MR. GUANELI, in response to a further question, said he is not
sure how other states treat this behavior.
REPRESENTATIVE GRUENBERG asked whether the administration would
like to see a separate crime for carjacking.
MR. GUANELI indicated that current law is sufficient,
particularly given that a lot of case law involves the merging
of convictions when they relate to one continuous course of
conduct.
CHAIR McGUIRE suggested that what makes the act of carjacking
distinguishable from the act of simply stealing a car is the
mental intent of being willing to endanger someone in order get
the vehicle, and indicated that she would research this issue
further.
REPRESENTATIVE GRUENBERG asked whether there are many incidences
of carjacking in Alaska.
MR. GUANELI said he would have to research that issue.
REPRESENTATIVE GRUENBERG expressed a preference for developing a
statute that would specifically address the issue of carjacking.
He then referred to the interplay between self-defense and gang-
related activity.
[Following was a brief discussion regarding provisions in other
legislation as they pertained to gang-related activities.]
2:51:07 PM
MIKE MILLIGAN relayed that he has submitted written testimony,
shared with the committee some personal experiences regarding
the issue of self defense, said he is very concerned about the
intent of the bill, and opined that that intent should be to
allow people to defend themselves without allowing them to just
simply shoot each other. He noted that Section 1 of the bill
pertains to the civil code, whereas the remaining sections
pertain to the criminal code. He opined that the bill should
emphasize that there are standards [with regard to firearms].
For example, one of the aspects of the original "concealed
carry" legislation was that in order to get a permit, one had
[to pass a handgun safety course], adding that he would like to
see a reference to that requirement included in both the civil
and criminal provisions of the bill. Referring to his written
testimony wherein he'd offered suggested language changes for
HB 314, he acknowledged that perhaps the committee could come up
with better wording for both the civil and criminal provisions
of the bill.
CHAIR McGUIRE offered her understanding that that training
requirement had been eliminated.
REPRESENTATIVE GRUENBERG surmised, then, that if Mr. Milligan's
suggested changes were adopted, one would have an enhanced
ability to [use the provisions of the bill to justify the use of
deadly force] if one had taken the aforementioned safety course
and had a permit.
MR. MILLIGAN concurred, adding that in a civil case, [such
changes] would provide for a preponderance of the evidence
standard in the defendant's favor. He pointed out that he is
advocating for language that would allow the permit to be either
current or expired. He mentioned that the sponsor's staff has
explained to him that the concealed carry permit provisions
remain in place because of the reciprocal laws that would allow
one to take a "concealed carry" permit to another state.
CHAIR McGUIRE surmised, then, that although one doesn't have to
have a permit to carry concealed, one could still opt to obtain
such a permit, and that Mr. Milligan is suggesting that in doing
so one is a more responsible gun owner and thus there ought to
be special considerations given in situations wherein HB 314
comes into play.
MR. MILLIGAN concurred.
REPRESENTATIVE GRUENBERG asked whether the sponsor would look
favorably upon Mr. Milligan's suggested changes. He mentioned
that such language might provide people with incentive to get
the training that would enable them to qualify for a permit.
MS. LIDSTER said she would research that issue.
2:56:12 PM
REPRESENTATIVE GARA asked that the phrase, "any place where the
person has a right to be", be further defined.
MS. LIDSTER listed examples such as one's work place, a
healthcare provider's office, and shopping facilities.
REPRESENTATIVE GARA surmised, then, that that phrase means
"everywhere."
MS. LIDSTER concurred.
CHAIR McGUIRE surmised that Representative Gara's point is
whether the phrase, "any place where the person has a right to
be" would be legally defensible; she suggested that the sponsor
have Legislative Legal and Research Services provide a
definition for that phrase. She said she assumes that there is
a reason for using that phrase as opposed to "anywhere you are";
perhaps the distinction is that one can't be engaged in a
criminal act.
MS. LIDSTER concurred, adding that AS 11.81.330 addresses the
issue of what activities one cannot be engaged in, in order to
be justified in protecting oneself through the use of nondeadly
force.
CHAIR McGUIRE indicated that HB 314 would be held over.
HB 379 - CONTROLLED SUBSTANCES, INCL. ANALOGS
2:58:27 PM
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 379, "An Act relating to controlled substances."
REPRESENTATIVE KEVIN MEYER, Alaska State Legislature, sponsor of
HB 379, relayed that the bill was engendered by an incident
wherein a 16-year-old girl died and an 18-year-old was severely
injured after a group of older men slipped an analog of GHB into
their drinks. This legislation, he explained, elevates gamma-
hydroxybutyric acid (GHB) and its analogs to a schedule IA
controlled substance from its current listing as schedule IVA
controlled substance. He opined that GHB should be elevated to
a schedule IA because the primary purpose of GHB is for use in
date rape. Furthermore, the drug is potent, almost impossible
to detect, and easily slipped into a drink. Specifically, GHB
induces a feeling of severe intoxication and enables others to
take advantage of the vulnerable and incoherent individuals who
are under its influence.
REPRESENTATIVE MEYER highlighted that HB 379 also includes
analogs in the statutory definitions of controlled substance.
He further noted that the legislation does exempt compounds
approved by the Federal Drug Administration (FDA) as well as
those compounds involved in specific medical tests and used for
human consumption. He specified that HB 379 attempts to cleanup
the statutes while sending a message that [use of] the compounds
in GHB are unacceptable and dangerous.
3:01:13 PM
REPRESENTATIVE GRUENBERG asked if the sponsor would be willing
to narrow the title.
REPRESENTATIVE MEYER replied, "Yes."
REPRESENTATIVE GARA opined that the purpose of HB 379 "seems
appropriate." However, the list of chemicals considered illegal
drugs under HB 379 is lengthy, and therefore he expressed the
need to hear from someone that the chemicals listed should be
considered illegal.
REPRESENTATIVE MEYER said that there are individuals available
who can address that question.
3:02:24 PM
TRINKA PORRATA, President, Project GHB, began by noting that she
is a retired Los Angeles police officer. She explained that
Project GHB is a nonprofit organization dedicated to educating
people about GHB, a drug that she has dealt with for the past 10
years. She noted that she is considered the nation's expert on
GHB and thus has worked with some of the top researchers of this
drug. Ms. Porrata said that she is glad that this issue is
being addressed. Furthermore, the analog provision is very
important because GHB has many analogs, even more than the three
listed in the bill. The analog provision provides the [state]
the opportunity to address them without the time required to
pass legislation for each drug. She explained that analogs are
chemical cousins and thus have similar/related chemical
structure and effects.
3:06:41 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL),
relayed that the DOL supports HB 379, although she said she
cannot speak to some of the technical aspects of it.
REPRESENTATIVE GRUENBERG, drew the committee's attention to page
2, lines 1-10, and relayed his reluctance to adopt this language
because it may be subject to a challenge of void for vagueness.
MS. PORRATA pointed out that the language [on page 2, lines 1-
10] is similar to that adopted by both California and the
federal government to address analogs. Ms. Porrata explained
that an analog of a controlled substance would automatically
refer to the controlled substance.
REPRESENTATIVE GRUENBERG clarified that his concern is whether
such language has already been interpreted by the courts. He
questioned how [the public] could be given fair notice that they
may be prosecuted for possessing something that isn't even in
existence or listed [as prohibited].
3:10:29 PM
MS. PORRATA interjected that the point of that language is that
when a comparable drug to one listed is created, it's
automatically covered.
REPRESENTATIVE GRUENBERG reiterated that his concern is whether
such can be done from a constitutional perspective because due
process requires fair notice. He expressed interest in seeing
case law on the aforementioned, though he noted his support of
the legislation.
MS. PORRATA relayed that similar language has been tested in
federal court and has been consistently upheld. She
acknowledged that each time [an analog is added] there has been
a challenge, but the law itself has been upheld.
REPRESENTATIVE GRUENBERG requested that the DOL research his
concerns. He also expressed his desire to hear from the public
defender on this matter.
REPRESENTATIVE WILSON offered her understanding that because the
drug involves chemical formulas, [the bill has been] narrowed to
refer to similar molecular structures.
3:12:48 PM
REPRESENTATIVE GRUENBERG said he is wondering whether the
language "substantially similar" has been upheld by the courts
and, if so, how has it been upheld. He then pointed out that
the language on page 2, lines 7-10, refers to any substance that
has a particular effect on the central nervous system.
3:13:26 PM
MICHAEL PAWLOWSKI, Staff to Representative Kevin Meyer, House
Finance Committee, Alaska State Legislature, surmised, then,
that Representative Gruenberg is concerned about providing
notice when a chemical compound is made illegal without
specifically being mentioned in law.
REPRESENTATIVE GRUENBERG further clarified that he is concerned
because these analogs aren't even referenced in a list that's
established by regulation. He then noted that the bill contains
a provision repealing AS 11.71.170(b)(28), and asked why.
MR. PAWLOWSKI specified that it refers to the chemical name for
GHB as it is currently listed in the schedule IVA controlled
substance statute.
REPRESENTATIVE GARA expressed the need to be reassured be a
chemist that each of the chemicals listed in the legislation is
GHB. The language on page 1, line 6, specifies that also
illegal is any salt or isomer contained in one of the listed
drugs. In regard to that language, he expressed the need for [a
chemist] to specify whether any of these drugs contain a sub-
isomer that may be legitimate.
[HB 379 was held over.]
HB 343 - HARASSMENT
3:16:03 PM
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 343, "An Act relating to harassment."
REPRESENTATIVE BOB LYNN, Alaska State Legislature, sponsor,
mentioning that he has worked as a jailer, relayed that HB 343
was requested by correctional officers and those who want more
protection from inmates and others who would throw bodily fluids
and feces. Currently, such behavior - included in the crime of
harassment - is prosecuted as a class B misdemeanor, engendering
a sentence that can range from "0" days to 90 days; HB 343 would
make such behavior a class A misdemeanor - which can engender a
sentence ranging from "0" days to 1 year - and would
specifically provide for a mandatory minimum sentence of 60 days
if the victim is a uniformed or otherwise clearly identified
peace officer, fire fighter, correctional employee, emergency
medical technician, paramedic, ambulance attendant, or other
emergency responder who was engaged in the performance of
official duties at the time of the assault.
REPRESENTATIVE LYNN noted that a letter provided by the chief
police of the City of Fairbanks Police Department, Daniel P.
Hoffman, says in part, "Being spit upon, having blood or feces
flung at you ..., should never be considered 'just part of our
job'"; that in a portion of a position paper provided by the
Public Safety Employees Association, Inc. (PSEA), John Cyr says,
"Any attempt to increase the penalty for this type of behavior
is [overdue]"; that a letter provided by the president of the
Alaska Association of Chiefs of Police (AACOP), Thomas Clemons,
says in part, "... someone throwing bodily fluids at any
individual is not only repulsive, but should have a penalty
attached to it which will deter the activity, or at least punish
the offender more appropriately than what is currently allowed
under State Law"; and that a letter provided by the president of
the board of directors of the Alaska Correctional Officers
Association (ACOA), Daniel Colang, says in part, "Inmates have
spit in the face of officers, tried to smear them with feces and
in one case sprayed a female employee with a mixture of semen,
urine and saliva. ... we need our leaders to protect us from
the threat and danger of assault by bodily fluids."
REPRESENTATIVE LYNN, in summary, said that HB 343 is aimed at
protecting everyone, but especially those who protect the
public's safety and respond to emergency situations.
3:20:29 PM
JAMES A. HELGOE, Lieutenant, Legislative Liaison, Division of
Alaska State Troopers, Department of Public Safety (DPS), stated
simply that the Alaska State Troopers support HB 343.
3:21:11 PM
MAE L. BARNEY, Correctional Officer II, Fairbanks Correctional
Center, Division of Institutions, Department of Corrections
(DOC), relayed that she is the correctional officer [mentioned
in the letter from the ACOA] that had a mixture of semen, urine,
and saliva sprayed on her, adding that another correctional
officer was also a victim. In response to a question, she went
on to describe that incident.
MICHAEL SICA, Staff to Representative Bob Lynn, Alaska State
Legislature, sponsor, asked, on behalf of Representative Lynn,
that Ms. Barney comment regarding whether the correctional
officers in Fairbanks support the bill.
MS. BARNEY said all the correctional officers support HB 343.
3:24:59 PM
RICHARD SCHMITZ, Public Information Officer, Office of the
Commissioner - Juneau, Department of Corrections (DOC), stated
simply that the DOC supports [HB 343], thinks it's a good bill,
and would like to see it pass.
REPRESENTATIVE WILSON noted that nurses are often subject to
contact with the aforementioned substances. She asked whether
nurses who work in emergency rooms would be covered under the
bill.
MR. SICA relayed that for a violation to occur under the bill, a
person would have to intentionally subject another person to
those substances.
REPRESENTATIVE WILSON asked whether similar behavior by someone
who is drunk or under the influence of drugs [would be covered
by the bill].
MR. SICA suggested that someone else might be better able to
address that question, but proffered that the intent of the bill
is to make this type of behavior fall under the crime of
harassment, which involves someone intentionally harassing or
annoying another person.
3:27:05 PM
REPRESENTATIVE WILSON pointed out that drunken people do things
intentionally.
MR. SICA surmised, then, that such behavior would be covered
under the bill.
REPRESENTATIVE GARA offered his understanding that the bill
differentiates between activity directed at a police officer or
emergency responder and activity directed at a member of the
public.
MR. SICA concurred with that summation.
REPRESENTATIVE GARA suggested that they might want to exempt
saliva and perhaps sweat, and gave an example wherein two kids
start spitting at each other during a schoolyard fight.
MR. SICA indicated that the sponsor had intended for saliva to
be included in the bill but perhaps had not intended for sweat
to be included, and so he will research that issue further.
REPRESENTATIVE GARA acknowledged that when one spits at another
person, the intention is to annoy that person.
MR. SICA concurred, and offered his belief that [spitting at
someone] is already included under the harassment statute as a
class B misdemeanor.
REPRESENTATIVE GRUENBERG noted that AS 11.61.120(a)(5) already
makes subjecting another person to offensive physical contact a
crime of harassment, and surmised that the bill would make that
behavior a class A misdemeanor - as harassment in the first
degree - if the offensive physical contact involves the use of
human or animal bodily fluids or feces.
MR. SICA concurred with that summation.
3:30:28 PM
SUSAN A. PARKES, Deputy Attorney General, Criminal Division,
Office of the Attorney General, Department of Law (DOL), relayed
that the DOL supports HB 343, and that the sponsor did consult
with the DOL in drafting the bill.
REPRESENTATIVE WILSON again asked whether the bill would cover
emergency room nurses who have intoxicated patients spit at them
or throw other items at them.
MS. PARKES said that the DOL would have to prove the factual
question of whether the person took that action with the intent
to harass or annoy, and in the case of an intoxicated person or
a person under the influence of some substance, the level of
intoxication or impairment could also be a factor. If the
person is spewing profanities, looking the victim in the eye, is
coherent enough to engage in other intentional acts, and spits
or throws other bodily fluids on the victim, a jury could easily
make a finding that although the person was intoxicated, he/she
intended his/her conduct.
3:33:08 PM
REPRESENTATIVE GARA offered his understanding that spitting is
not covered under existing law.
REPRESENTATIVE GRUENBERG argued that spitting is covered under
AS 11.61.120(a)(5) in that it would be considered "offensive
physical contact".
MS. PARKES concurred, adding that the concern of correctional
officers is that this behavior is currently only a class B
misdemeanor, which they argue is insufficient. The intent of
the bill, she suggested, is to recognize that throwing bodily
fluids or feces is serious conduct and that protecting those who
ensure the public's safety and respond to emergency situations
is a priority.
CHAIR McGUIRE asked why the bill shouldn't just be limited to
those who protect the public's safety and respond to emergency
situations.
REPRESENTATIVE LYNN opined that no one should be subjected to
having bodily fluids or feces thrown at him/her, and offered his
understanding that this is occurring to people other than those
who protect the public's safety and respond to emergency
situations.
3:35:52 PM
REPRESENTATIVE GRUENBERG indicated that he has a potential
conflict of interest and asked to be excused from voting.
CHAIR McGUIRE objected [thus requiring Representative Gruenberg
to vote should it be necessary].
REPRESENTATIVE GARA asked whether spitting would be considered
"offensive physical contact".
MS. PARKES said, "That is the theory that we prosecute it under,
and ... we've gotten convictions under that theory.
3:37:56 PM
REPRESENTATIVE WILSON referred to page 3, lines 2-4 - which
lists the people against whom an offense would garner a
mandatory minimum sentence - noted that medical personnel are
not included, and suggested that they should be.
REPRESENTATIVE LYNN said he would view such a change to be a
friendly amendment.
REPRESENTATIVE GRUENBERG suggested that such a change may
warrant a title change. He then referred to the Alaska Court of
Appeals case, McKillop v. State, and opined that the ruling in
that case makes the current statute regarding the crime of
harassment virtually unworkable. He asked the sponsor whether
he would be amenable to curing that problem via HB 343.
REPRESENTATIVE LYNN said he would follow the advice of the DOL
on that issue.
MS. PARKES recommended that that issue be taken up with the
drafter.
MR. SICA relayed that the drafter had simply indicated that the
harassment statute was the most appropriate section of statue
with which to address the behavior the sponsor was concerned
about.
3:41:00 PM
REPRESENTATIVE GARA said he is uncomfortable making it a crime
to throw [or project] sweat or saliva at regular people. He
asked the sponsor to consider amending the bill such that it
would only be a crime to throw or project sweat or saliva if the
victim was someone [listed in Section 4].
REPRESENTATIVE LYNN suggested that if someone has taken the time
to collect enough sweat to throw it at another person, that
illustrates real intent.
MS. PARKES pointed out that Section 4 of the bill is merely a
sentencing provision that sets a mandatory minimum sentence for
the behavior listed in Section 2 if the victim is someone listed
in Section 4, and opined that Representative Gara's suggested
change could be problematic.
CHAIR McGUIRE relayed that HB 343 would be held over.
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:44 p.m.
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