Legislature(2019 - 2020)BUTROVICH 205
04/16/2019 03:30 PM Senate STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing(s) | |
| SB32 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | SB 32 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 32-CRIMES; SENTENCING;MENT. ILLNESS;EVIDENCE
4:00:22 PM
CHAIR SHOWER reconvened the meeting and announced the
consideration of SENATE BILL NO. 32 "An Act relating to criminal
law and procedure; relating to controlled substances; relating
to probation; relating to sentencing; relating to reports of
involuntary commitment; amending Rule 6, Alaska Rules of
Criminal Procedure; and providing for an effective date."
He recapped that the bill was last heard 4/15/19 and public
testimony was heard and closed. He noted the proposed committee
substitute (CS) that makes technical and conforming changes.
4:00:54 PM
SENATOR COGHILL moved to adopt the CS for SB 32, work order 31-
GS1029\U, as the working document.
SENATOR REINBOLD objected for discussion purposes.
CHAIR SHOWER asked Mr. Ogan to review the Legislative Legal
Services memo that highlights the changes from version A to
version U of SB 32.
4:01:58 PM
SCOTT OGAN, Staff, Senator Mike Shower, Alaska State
Legislature, Juneau, explained that the memo first talks about a
drafting error [in AS 12.55.125(d)]. Second, [AS 11.56.760(c)]
was added to the applicability section. The memo also discusses
a number of drafting considerations the first of which relates
to electronic monitoring. If a prisoner tampers with an
electronic monitoring device, the punishment is a class C
felony. If the same prisoner charged with a misdemeanor escapes
from official detention other than a correctional facility, the
penalty is a class A misdemeanor. He deferred further
explanation to Mr. Henderson.
4:03:28 PM
ROBERT HENDERSON, Deputy Attorney General, Criminal Division,
Department of Law, Juneau, said the CS steps up the penalty for
escaping from official detention on a class A misdemeanor charge
to a class C felony if an electronic monitoring device is either
disabled or tampered with or if the person removes him/herself
from custody during lawful movement or activity. He also pointed
out that escape in the second degree, which is the class B
felony, is removing oneself from official detention from a
secure detention facility.
SENATOR MICCICHE commented that the memorandum is a confusing
way to explain the CS because it doesn't refer to the bill
sections. He asked if this was the only document available.
MR. OGAN answered yes.
4:05:14 PM
At ease
4:12:20 PM
CHAIR SHOWER reconvened the meeting and asked Mr. Ogan to
address the question raised during the at ease about the deleted
section.
MR. OGAN explained that it was a technical change. The original
version unnecessarily included a lot of criminal rule 6(r)
regarding admissibility of evidence to the grand jury when just
the amendment in paragraph 6(r)(6) was needed.
CHAIR SHOWER asked Senator Reinbold if anything else was covered
during the at ease.
SENATOR REINBOLD said she wanted to make sure that the
Department of Law agreed that the changes in the CS are
technical and conforming.
CHAIR SHOWER stated for the record that the Department of Law
agreed that the CS makes technical and conforming changes.
MR. OGAN added that the Department of Law agreed to provide a
more detailed analysis by the next hearing.
CHAIR SHOWER asked him to continue to review the memo.
4:14:31 PM
MR. OGAN directed attention Section 26 of the CS that amends AS
11.56.810(a) regarding terroristic threatening by removing the
phrase, "dangerous to human life exists or is about to exist,".
He said the issue is that if person A says they are going to
blow up a building and person B hears and reports the threat
person B could be charged with the offense of communicating a
threat.
MR. OGAN said Legislative Legal Services has agreed that joining
subparagraph (A) with (B) on page 14, line 1 with "and" is a
possible solution. He deferred further explanation to the
Department of Law.
4:16:59 PM
MR. HENDERSON expressed concern with the proposal to tie the
phrases with an "and" at the end of subparagraph (A) because
that would require the state to prove (A), through (D) for the
crime of terroristic threatening as opposed to the current
drafting that has an "or." He said he'd be happy to discuss
another solution to change from the passive to active voice in
subsection (a) on page 13, line 25.
CHAIR SHOWER asked him to provide additional explanation because
one of the concerns is that this might be interpreted too
broadly. He used the example of young men in a bar getting into
a disagreement and one threatening to kill the other when it was
a heat of the moment statement and not the real intent.
MR. HENDERSON said there are two issues. The point in the
legislative legal memo is what happens if person A makes a
threat and person B reports it to law enforcement. He described
that as an extraordinary stretch of the law that would not occur
for three reasons. First, "communicates a threat" must be read
together with "to commit a crime against a person." You commit a
crime when you tie that to the communication which is what
prevents person B from being held criminally liable for
reporting that offense. Second, a person has to act with
reckless disregard, which means they have to consciously
disregard a substantial and unjustifiable risk that they are
causing that fear. The person who reports that threat is not
acting recklessly under the law. Third, if the appellate court
were faced with that factual scenario, it would recognize the
absurdness of that result and revert to the legislative intent,
which is capturing the threat surrounding school shootings, bomb
threats, or shooting at a public facility. Under the rules of
statutory construction, it is unlikely that a court of appeals
would hold somebody criminally liable for reporting that threat
because it would go against the legislative intent of the
statute.
MR. HENDERSON said the factual scenario where somebody makes a
threat to kill when they're in a bar is more realistic and the
question is how to put bumpers on that scenario. He said this
section needs to be clear as to what the legislature intends to
protect against and making sure that law enforcement has the
ability to intervene in scenarios like school shootings. The
person also has to recklessly disregard that they are placing a
person in reasonable fear. The threat must be more realistic
than hubristic talk.
4:22:01 PM
SENATOR REINBOLD asked Mr. Ogan where he suggested placing the
"and."
MR. OGAN replied it would be after "serious physical injury to a
person;" on page 14, line 1.
CHAIR SHOWER warned that he was considering Mr. Henderson's
concern about joining the phrases with "and" and he may decide
against it.
4:22:59 PM
MR. OGAN continued to discuss the memo. He said the change in
Section 31 [sec. 11.71.040] talks about marijuana but it does
not envision industrial hemp or licensed establishments.
Amendments to address this oversight are forthcoming, he said.
Section 41, [sec. 12.55.135(q)] is a new subsection that talks
about personal use marijuana. It clarifies that the definition
of "permanent and temporary residence" does not include a
vehicle or tent which may have an unintended effect of indigent
people being charged more frequently than other demographics. He
suggested the committee look at that issue.
Section 45 amends AS 28.35.032(o) by repealing language about a
24-hour community service requirement. The memo asks if that
provision should be added to SB 32.
4:26:16 PM
SENATOR MICCICHE reiterated that it is cumbersome to move back
and forth between the memo and the bill. He suggested limiting
the discussion to the memo itself.
4:26:51 PM
At ease
4:30:02 PM
CHAIR SHOWER reconvened the meeting and asked Mr. Ogan to
continue.
4:30:10 PM
MR. OGAN said Section 50 talks about the court's 38-year
lookback for a person who has been involuntarily committed. He
noted an amendment on this section is forthcoming.
Section 51 addresses whether or not the legislature needs a two-
thirds vote to pass a court rule change.
SENATOR MICCICHE asked if there is any way to avoid the court
rule change and the associated two-thirds vote requirement.
MR. OGAN deferred the question.
4:31:47 PM
NANCY MEADE, General Counsel, Administrative Offices, Alaska
Court System, Anchorage, said she believes this type of court
rule change would require a two-thirds vote. The prior draft had
that vote in it and she didn't believe it was as big an issue as
legislative legal indicated.
SENATOR REINBOLD asked if that section could be removed.
MS. MEADE said the court rule change is the only part of a bill
that needs a two-thirds vote. If a bill passes with that level
of support, a motion on the floor is to accept the vote on the
bill as the vote on the court rule change. If the bill passes
with less than two-thirds support, a separate vote is needed for
the court rule change.
SENATOR REINBOLD commented that she was saying the same thing in
a different way.
CHAIR SHOWER asked Senator Reinbold if she maintained her
objection.
4:34:14 PM
SENATOR REINBOLD removed her objection.
CHAIR SHOWER found no further objection and version U was
adopted. He asked if there were questions.
4:35:01 PM
SENATOR KAWASAKI asked Mr. Henderson if there was a way, other
than administratively, to compel someone to submit their DNA at
the time of arrest.
MR. HENDERSON answered yes; if officers have probable cause that
somebody's DNA would be evidence of a crime, they can seize that
person's DNA through a buccal swab once they have obtained a
warrant from the court.
4:36:09 PM
SENATOR KAWASAKI asked how long it takes to get a warrant in
that circumstance and if the person usually stays in jail until
it's issued.
MR. HENDERSON replied it depends on the availability of a
magistrate or judge, but his experience is that each of the two
ways to obtain a warrant can take several hours. One way is to
draft an affidavit for the court to sign that establishes
probable cause for needing the evidence. The other way is to
obtain a warrant through oral testimony. Whether or not the
person remains in custody is a factual determination that
depends on the charge.
SENATOR REINBOLD asked if it would be more efficient to obtain
the evidence on the spot instead of going to court to get a
warrant.
MR. HENDERSON answered yes. He added that since the DNA arrest
provisions for specific types of crimes went into effect in
December 2008, there have been 357 arrestee hits under CODIS. He
said this speaks to its power as a law enforcement tool.
SENATOR REINBOLD asked if he agrees that this could be a
powerful tool to prevent wrongful convictions and ensure that
the right person is convicted.
MR. HENDERSON said yes. He noted that DOL is preparing a memo to
explain the DNA process. It cites two examples where the DNA
seized after arrest exonerated two individuals.
SENATOR REINBOLD voiced full support for this important tool and
thanked the administration for putting it in the bill.
4:41:18 PM
CHAIR SHOWER said his concerns about the use of DNA are about
protecting people's rights. Thus he is very interested in
safeguards to ensure this isn't abused or raises constitutional
challenges. Another concern is that someone who hasn't done
anything wrong but refuses to submit their DNA when they're
pulled over could potentially be charged for not complying. He
noted that his staff is a former trooper and he, too, has some
concerns.
SENATOR REINBOLD asked if DNA is collected in rape kits.
MR. HENDERSON confirmed that sexual assault kits collect DNA. He
added that under AS 11.56.762 it is a class C felony to
unlawfully collect or use DNA samples and it's also a crime to
misuse information in CODIS.
SENATOR REINBOLD asked if there is also a $250,000 fine for the
misuse of this data.
MR. HENDERSON said yes, and both state and federal law
criminalize the unauthorized disclosure of DNA evidence.
4:45:22 PM
SENATOR MICCICHE asked if it is common for somebody to refuse to
submit to a buccal swab upon arrest. He noted there is no
sanction for refusing.
MR. HENDERSON replied it's not frequent... [communication lost].
4:46:31 PM
At ease
4:49:16 PM
CHAIR SHOWER reconvened the meeting and asked Senator Micciche
to restate the question.
4:49:21 PM
SENATOR MICCICHE noted there is no sanction for refusing to
submit to a buccal swab upon arrest and asked how this next step
would benefit law enforcement.
MR. HENDERSON replied the benefit to law enforcement is that the
enforcement mechanism will incentivize people to follow the law.
He acknowledged that the majority of individuals comply with the
law.
SENATOR MICCICHE asked what percentage do not comply.
MR. HENDERSON said he would try to get the information from the
Department of Public Safety (DPS) but he wasn't sure if it could
be quantified.
CHAIR SHOWER asked him to also provide a list of the crimes that
that are subject to a buccal swab upon arrest.
MR. HENDERSON agreed to try to provide that information.
SENATOR MICCICHE commented that it looks like all arrestees are
subject to the collection of DNA. He said he'd like that on the
record, now if possible.
4:52:19 PM
MR. HENDERSON clarified that DNA is only required from those
individuals arrested for qualifying offenses. That is all crimes
against a person under Title 11, which includes violent
misdemeanors and violent felonies; felony arrests under Title
11; and arrest for a felony DUI. Somebody who is arrested for
such things as disorderly conduct, shoplifting, or reckless
driving is not required to submit their DNA upon arrest.
CHAIR SHOWER asked him to describe felony DUI.
MR. HENDERSON explained that felony DUI applies to somebody who
has been convicted of DUI twice before within the last 10 years.
CHAIR SHOWER asked if that information is immediately available
to the arresting officer.
MR. HENDERSON replied if the prior convictions were in Alaska
that information is part of APSIN (Alaska Public Safety
Information Network) and is available on the spot. If the prior
convictions are out of state, the officer may have immediate
access to that information under the national database on
criminal history, NCIC. But if the information is not in NCIC
the prosecutor's office would file the felony DUI charges later.
SENATOR MICCICHE said he struggles with the idea that this
creates a crime for a person who may not be a criminal. He asked
what he thinks about an amendment that says a person who is
found not guilty of the original qualifying crime is also not
guilty of refusing to submit to the buccal swab.
MR. HENDERSON said he'd like to give it some thought because
gives law enforcement an enforcement mechanism to encourage
people who are arrested for a qualifying offense to submit their
DNA without a more involved process. An existing safeguard is
that the DNA can be expunged from the system if the person who
is ultimately acquitted of the underlying charge or the
prosecution decides, for whatever reason, not to file criminal
charges.
CHAIR SHOWER asked if he would consider an amendment that drops
the secondary charge if the person is not guilty of the initial
crime.
MR. HENDERSON said at first blush it makes sense, but he wants
time to consider unintended collateral consequences.
CHAIR SHOWER asked him to get back to his office once he's had
time to give it consideration.
4:57:11 PM
SENATOR REINBOLD questioned the provision in Section 12 on page
7, line 29 that says it's vehicle theft in the first degree if
the owner does not have their vehicle for seven days or more.
She stressed that it's theft if the vehicle is gone for just an
hour.
MR. HENDERSON said he'd look at it more closely but the
intention is to ensure that somebody who is joyriding is not
charged with vehicle theft.
SENATOR REINBOLD stated her intention to have a follow-up, off-
line discussion with him or Ms. Schroeder before she asked
Legislative Legal Services to prepare an amendment. She also
asked why the term "propelled vehicle" is used in Section 15 on
page 9, line 26. She said she is focusing on vehicle theft
because it is such a problem and she's trying to identify all
loopholes.
MR. HENDERSON read the definition for "propelled vehicle," which
includes automobiles, vessels, airplanes, motorcycles, snow
machines, and all-terrain vehicles. He explained that other than
cars, trucks, and motorcycles, the most typical vehicles are
ATVs and snow machines.
SENATOR REINBOLD restated her intention to close all loopholes
and get to the bottom of vehicle theft.
5:00:33 PM
SENATOR KAWASAKI referenced the direct court rule change dealing
with a prior conviction as an element of an offense and asked if
information about somebody's Title 11 crime against a person
conviction would be admissible to a grand jury.
MR. HENDERSON said the change to Rule 6(r), Alaska Rules of
Criminal Procedure, is to expand an existing rule such that
anytime somebody is accused of a felony and a predicate offense
exists, the state would be entitled to use the person's
electronic rap sheet to prove that predicate offense at grand
jury. Those crimes include felon in possession, recidivist
felony theft, and recidivist felony assault.
CHAIR SHOWER stated he would hold SB 32 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SSTA OFFICIAL AGENDA MEMO.pdf |
SSTA 4/16/2019 3:30:00 PM |
agenda |
| SSTA Gov. Appointee Human Rights - Fullenwider Resume.pdf |
SSTA 4/16/2019 3:30:00 PM |
Debbie Fullenwider - Resume |
| SSTA Gov. Appointee Human Rights - Erickson Resume.pdf |
SSTA 4/16/2019 3:30:00 PM |
Cynthia Erickson - Resume |
| SB 32 Transmittal Letter.pdf |
SFIN 4/24/2019 1:30:00 PM SJUD 2/9/2019 1:00:00 PM SSTA 4/4/2019 1:30:00 PM SSTA 4/9/2019 3:30:00 PM SSTA 4/15/2019 6:00:00 PM SSTA 4/16/2019 3:30:00 PM SSTA 4/18/2019 1:30:00 PM |
SB 32 |
| CS for SB 32 - Ver. U.pdf |
SSTA 4/16/2019 3:30:00 PM SSTA 4/18/2019 1:30:00 PM |
SB 32 |
| SB 32 - Classification and Sentencing Highilghts.pdf |
SJUD 2/6/2019 1:30:00 PM SSTA 3/5/2019 3:30:00 PM SSTA 4/4/2019 1:30:00 PM SSTA 4/9/2019 3:30:00 PM SSTA 4/11/2019 3:30:00 PM SSTA 4/15/2019 6:00:00 PM SSTA 4/16/2019 3:30:00 PM SSTA 4/18/2019 1:30:00 PM |
SB 32 |
| SB 32 - Classification and Sentencing Sectional.pdf |
SJUD 2/6/2019 1:30:00 PM SSTA 3/5/2019 3:30:00 PM SSTA 4/4/2019 1:30:00 PM SSTA 4/16/2019 3:30:00 PM SSTA 4/18/2019 1:30:00 PM |
SB 32 |
| SB 32 - Leg. Legal Memo.pdf |
SSTA 4/11/2019 3:30:00 PM SSTA 4/15/2019 6:00:00 PM SSTA 4/16/2019 3:30:00 PM SSTA 4/18/2019 1:30:00 PM |
SB 32 |
| SB 32 - Committee Questions.pdf |
SSTA 4/16/2019 3:30:00 PM SSTA 4/18/2019 1:30:00 PM |
SB 32 |
| SB91-GOA Bills Matrix 2-22-19 - DRAFT STA CS.pdf |
SSTA 4/9/2019 3:30:00 PM SSTA 4/11/2019 3:30:00 PM SSTA 4/15/2019 6:00:00 PM SSTA 4/16/2019 3:30:00 PM SSTA 4/18/2019 1:30:00 PM |
SB 32 |
| SB 32 - FN#1 - DPS.pdf |
SSTA 4/4/2019 1:30:00 PM SSTA 4/9/2019 3:30:00 PM SSTA 4/11/2019 3:30:00 PM SSTA 4/15/2019 6:00:00 PM SSTA 4/16/2019 3:30:00 PM |
SB 32 |
| SB 32 - FN#2 - DOL.pdf |
SSTA 4/4/2019 1:30:00 PM SSTA 4/9/2019 3:30:00 PM SSTA 4/11/2019 3:30:00 PM SSTA 4/15/2019 6:00:00 PM SSTA 4/16/2019 3:30:00 PM |
SB 32 |
| SB 32 - FN#5 - DHSS.pdf |
SSTA 4/4/2019 1:30:00 PM SSTA 4/9/2019 3:30:00 PM SSTA 4/11/2019 3:30:00 PM SSTA 4/15/2019 6:00:00 PM SSTA 4/16/2019 3:30:00 PM |
SB 32 |
| SB 32 - FN#6 - DOC.pdf |
SSTA 4/4/2019 1:30:00 PM SSTA 4/9/2019 3:30:00 PM SSTA 4/11/2019 3:30:00 PM SSTA 4/15/2019 6:00:00 PM SSTA 4/16/2019 3:30:00 PM |
SB 32 |
| SB 32 - FN - DOA - Public Advocacy.pdf |
SSTA 4/4/2019 1:30:00 PM SSTA 4/9/2019 3:30:00 PM SSTA 4/11/2019 3:30:00 PM SSTA 4/15/2019 6:00:00 PM SSTA 4/16/2019 3:30:00 PM |
SB 32 |
| SB 32 - FN - Court System.pdf |
SSTA 4/4/2019 1:30:00 PM SSTA 4/9/2019 3:30:00 PM SSTA 4/11/2019 3:30:00 PM SSTA 4/15/2019 6:00:00 PM SSTA 4/16/2019 3:30:00 PM |
SB 32 |
| SB 32 - FN - DOA - Public Defender Agency.pdf |
SSTA 4/4/2019 1:30:00 PM SSTA 4/9/2019 3:30:00 PM SSTA 4/11/2019 3:30:00 PM SSTA 4/15/2019 6:00:00 PM SSTA 4/16/2019 3:30:00 PM |
SB 32 |