Legislature(2005 - 2006)BELTZ 211
02/22/2005 03:30 PM Senate STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| SB39 | |
| SB95 | |
| SB104 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 39 | TELECONFERENCED | |
| *+ | SB 95 | TELECONFERENCED | |
| *+ | SB 104 | TELECONFERENCED | |
SB 95-COLLECTION OF DNA/USE OF FORCE
SENATOR GENE THERRIAULT announced SB 95 to be up for
consideration. He asked Senator Bunde to introduce the bill.
4:38:24 PM
SENATOR CON BUNDE, prime sponsor, explained that he had the bill
drafted as a result of a conversation with the commissioner of
the Department of Public Safety. He learned that people who are
required to submit to DNA testing may refuse to cooperate and
the authorities may not force compliance. Convicted people often
have quite a resume of another crimes, he said, so matching DNA
can help solve other unsolved crimes. It's logical, he said,
that the state should be able to use reasonable force to collect
a DNA sample if the convicted individual decides not to
cooperate. The procedure isn't invasive it's simply using a
cotton swab on the cheek.
SB 95 is an attempt to clear the backlog of unsolved crimes and
perhaps discourage some people from committing additional
crimes.
CHAIR THERRIAULT asked Senator Bunde to discuss some of the
backup material provided in the packets.
SENATOR BUNDE referenced the letter from the Anchorage Police
Department supporting SB 95 then said the other material is
general background and information on the effectiveness of using
DNA.
CHAIR THERRIAULT remarked the language "forced collection"
sounds harsher than a cotton swab on the cheek. He asked which
other states have implemented DNA collection laws.
LAUREN WICKERSHAM, staff to Senator Bunde, said she didn't know
which states use reasonable force to collect DNA but the
database technology is new and growing quickly.
CHAIR THERRIAULT said his staff found that the State of
Washington uses similar legislation and he was curious whether
the sponsor worked with the drafters to develop model
legislation.
4:43:54 PM
SENATOR BUNDE emphasized this is a relatively new concern and
some in law enforcement were surprised that a convicted
individual could refuse to cooperate. The crime lab and the
Department of Public Safety did provide input, he said.
CHAIR THERRIAULT asked whether this would apply only to people
who were incarcerated and not be retroactive.
SENATOR BUNDE replied he didn't intend it to be retroactive.
MS. WICKERSHAM added the bill doesn't address whom; it addresses
how to collect for those who refuse.
SENATOR CHARLIE HUGGINS suggested the sponsor narrow the scope
of who may collect a DNA sample.
SENATOR BUNDE replied the bill was purposefully drafted to cast
a broad net.
SENATOR KIN ELTON questioned whether the state might incur
liability or obligation once they have collected the DNA sample.
Once the DNA is collected does it go into a databank that is
secure and inviolate, he asked.
SENATOR BUNDE replied his understanding is that DNA is only
collected for identification purposes and testing for extensive
genetic markers wouldn't occur. He assured members the
information is kept secure.
SENATOR ELTON asked what happens to samples collected from
juvenile offenders.
SENATOR BUNDE replied his staff confirmed that privacy would be
maintained.
4:49:48 PM
SENATOR ELTON said he assumed that most felonies were prosecuted
by the state and he wondered which municipalities prosecute
felonies.
SENATOR BUNDE replied none come to mind, but it is in keeping
with the casts a wide net theory.
CHAIR THERRIAULT asked Mr. Giffer to give his testimony.
MR. GIFFER, Alaska State Trooper investigator, spoke via
teleconference to say that this bill would be important in
working old cases. Taking a swab is very non-intrusive and no
one should get hurt in the process.
CHAIR THERRIAULT asked Dean Guaneli to give testimony.
4:54:33 PM
DEAN GUANELI, chief assistant attorney general, Department of
Law, expressed support for the bill for the reasons stated by
Senator Bunde and Investigator Gifford. DNA testing has proven
to be most effective in solving crimes, convicting the guilty,
and clearing the innocent. SB 95 makes it clear that samples may
be collected from municipal offenders who are convicted of
assault. The clarification is good because research shows that
collecting DNA samples from misdemeanor offenders solves a
number of serious offenses.
He emphasized that collecting DNA samples by means of swabbing
the inside of the cheek isn't an intrusive procedure and that
whether force is used or not is entirely within the person's
control. Most people choose to cooperate, but some people who
are under state supervision elect to buck the system at every
opportunity. He suggested that most of those who refuse to
cooperate would change their mind if they were informed that the
law authorizes force.
Technology is advancing quickly and smaller samples are needed
to conduct DNA testing. In fact, the oil in a fingerprint is
getting to be enough to run a DNA test, he said. However,
because prisoner litigation is and will continue to be an issue,
he suggested that an appropriate immunity clause against
prisoner lawsuits is needed.
SENATOR KIM ELTON said he assumes that municipalities often
prosecute misdemeanor assault crimes.
MR. GUANELI said that is correct.
SENATOR ELTON asked where the cutoff point might occur and
questioned whether a DNA sample might be collected if neighbors
got into a scuffle.
5:01:00 PM
MR. GUANELI replied current law requires DNA samples to be
collected from anyone convicted of a crime against a person.
Misdemeanor assault typically occurs in domestic situations, but
it could happen in the situation posited and that would be a
crime against a person.
SENATOR ELTON asked for confirmation that the intent is not to
go to lower level crimes.
MR. GUANELI said that is not the intent; the intent is for more
inclusion. Under current law misdemeanor assaults prosecuted by
a municipality aren't covered so one of the things SB 95 does is
include those and make the system totally comprehensive.
CHAIR THERRIAULT summarized that the expansion is the same type
of crime prosecuted by another jurisdiction.
MR. GUANELI agreed.
CHAIR THERRIAULT asked what happens to DNA data that is
collected from minors once they become adults.
MR. GUANELI replied juvenile fingerprint information is retained
in juvenile justice systems and he thought DNA identification
was retained as well. They are simply identification tools; the
DNA markers checked in an identification system are referred to
as "junk DNA" in the scientific community and provide no useful
information other than identification. Many parts of the DNA
system disclose nothing other than identity and that's what's
saved and analyzed, he said.
SENATOR ELTON made the point that there's nothing in law that
precludes the state from analyzing the DNA for markers that
would relate to medical or other genetic conditions.
MR. GUANELI replied misuse of DNA information became a crime
under previous legislation, but he'd have to review the statutes
to determine whether the state is authorized to run tests for
information other than identification.
CHAIR THERRIAULT asked whether it was Senator Olson's bill that
touched on penalties for improper use and/or distribution of DNA
information.
SENATOR ELTON recalled insurance companies and other interests
were at issue.
SENATOR BUNDE pointed out that SB 95 doesn't expand the tests
for DNA it simply addresses collection.
5:05:51 PM
CHAIR THERRIAULT read the following from the State of Idaho and
asked whether Alaska has a similar requirement.
When the state accepts an offender from another state
under any interstate compact, or any other reciprocal
agreement with any county, state or federal agency, or
any other provision of law whether or not the offender
is confined or released the acceptance is conditional
on the offender providing a DNA sample and thumbprint
impression if the offender was convicted of an offense
that would qualify as a crime described in Section 19.
MR. GUANELI explained that registered sex offenders are required
to give a DNA sample whether they're convicted in Alaska or
elsewhere, but non sex offenders who come in under the
interstate process aren't required to do so. There are two ways
to address that, he said. Although he'd have to check with the
interstate supervision process, his first suggestion is for the
Department of Corrections to adopt an administrative policy
stating they won't accept a prisoner under interstate
supervision without taking a DNA sample. Another way to address
the issue would be to enact a statute to require collection. The
latter would require drafting changes, but it is a possibility.
CHAIR THERRIAULT asked Portia Parker to come forward.
5:08:15 PM
PORTIA PARKER, deputy commissioner, Department of Corrections,
thanked Senator Bunde for introducing the legislation and
expressed departmental support for the bill. Generally
corrections officials don't have difficulty collecting DNA
samples from offenders, but just knowing that reasonable force
could be used would be very helpful. The Department of
Corrections also supports the bill as a way to close other cases
using DNA. This is a real need for law enforcement and for
victims and for public safety, she said.
The collection process and the policies and procedures the
Department of Corrections and the Department of Public Safety
established cooperatively when DNA samples were first collected
is working fairly well, she reported, but "this would be a
definite to the department in fulfilling that statutory
obligation."
CHAIR THERRIAULT asked her to address the interstate compact
issue.
MS. PARKER said she hadn't contacted the compact administrator,
but she thought the department would support that if it didn't
interfere with the interstate compact rules with other states.
"Although if other states are requiring that of offenders going
into their state, we probably won't have a problem requiring
that." It certainly wouldn't be a problem if the requirement
were in statute, she said
5:10:56 PM
CHAIR THERRIAULT questioned why the state would swap prisoners
and asked her to elaborate on what actually happens under the
compact.
MS. PARKER explained that this involves a probationer or parolee
in another state who wants to move to Alaska and typically it's
an Alaskan who wants to return home. Likewise, Alaska has
offenders from outside the state who want to return home once
they are out of prison and on probation or parole. A mechanism
is established whereby every state participating in the compact
must abide by compact rules. Although there are exceptions,
"They pretty much have to take ours who want to go there and we
have to take theirs who want to come here so there is that
movement." Generally it's a good process, she said, because
they're going where they have family support, or a job, or a
school opportunity.
CHAIR THERRIAULT asked Senator Bunde whether he would object to
including language to make it clear that if a convicted offender
were to come to Alaska from another jurisdiction, they would
have to abide by the same rules as people convicted in Alaska.
SENATOR BUNDE said he wouldn't object; it seems logical.
SENATOR THOMAS WAGONER questioned how many people move in and
out of the state under the compact.
5:12:42 PM
MS. PARKER replied she could get the information, but last year
roughly the same number left the state under the compact as
returned home.
SENATOR WAGONER asked if his assumption is correct that the
receiving parole officer is responsible for oversight.
MS. PARKER replied that's the case since the compact adopted new
rules in August 2004. Probation or parole violations here are
subject to Alaska conditions and consequences. The same applies
to offenders sent out of state; they must comply with the
conditions in the jurisdiction in which they reside.
CHAIR THERRIAULT referenced page 1, lines 6 and 7 and questioned
whether we currently collect blood samples or just rely on the
oral swab.
MS.PARKER replied the oral swab is used.
CHAIR THERRIAULT referenced the suggested language "may use
reasonable force to collect" and questioned whether it should be
expanded to say, "use such means as are reasonably necessary to
collect".
MS. PARKER responded the department had no opinion on that.
SCOTT CAULDER testified via teleconference and expressed concern
with the applicability of the bill because it appears to address
an overly broad range of things. Another issue is that although
the bill targets notorious criminals, anybody else might be
eligible. He questioned what might be considered reasonable when
"reasonable force" may be used. This would be particularly
important when you're talking about juveniles, he said.
What this boils down to is "The individual has the choice, but
their choice is no choice and this is our way to get those
people who are bucking the system." He asked the committee to
consider whether that foundation is a good reason for a law even
though it might be a good tool in the toolbox.
5:20:30 PM
CHAIR THERRIAULT asked Mr. Guaneli what standard the court would
allow in determining what is reasonable and if unreasonable
force were used, whether the sample would be invalid.
MR. GUANELI said his view is that if unreasonable force were
used both the state and the officer would be subject to
liability, but the sample wouldn't be jeopardized. In terms of
what is reasonable, it's the same as with any negligence action.
The standard would be what a reasonable officer would do under
the circumstances and an expert would validate the action if
litigation were involved. "It's difficult to envision all the
circumstances that would face an officer who is dealing with a
recalcitrant inmate so the word reasonable was chosen. The whole
concept of reasonableness is reflected throughout the Alaska
statutes - throughout our constitution."
SENATOR ELTON pointed out that inserting the language "in this
state" in two places is a limiting element and that language
seems to apply to felonies under AS 11 or AS 28.35. Then the
language, "or a law or an ordinance" is used. Because the word
"or" is used, he wondered whether "in this state" applies to the
state statutes but not to an ordinance or law elsewhere.
MR. GUANELI said the qualifier "in this state" would mean
Alaska, Alaska statutes, or Alaska municipal statutes. If there
were going to be a provision that talks about interstate
probation supervision, you'd have to add a number 6 to the
classes of people from whom samples would be taken, he said. The
bill was drafted that way so it would include municipal
offences. Standard language used throughout the statutes is "a
law or ordinance with elements similar to a crime". That raises
the question of whether people coming to Alaska who have already
served their time would have to submit a sample. Using the
language, "in this state" would exclude those people from the
reach of this statute, he said.
SENATOR ELTON asked if his reading is that using "or" doesn't
interrupt the predicate "in this state".
MR. GUANELI said it doesn't interrupt.
CHAIR THERRIAULT announced they would work with the sponsor and
look at the interstate compact issue before hearing the bill
again.
5:25:32 PM
SENATOR BUNDE summarized that people who are investigated for
minor crimes frequently have a substantial criminal record so he
would argue for including the broader definition of crimes
against people and that collecting a DNA sample is the 21st
century fingerprint.
SB 95 was held in committee.
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