Legislature(2003 - 2004)
04/16/2004 09:09 AM Senate FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CS FOR SENATE BILL NO. 170(JUD)
"An Act relating to murder in the second degree, the
justification of defense of self or others, immunity from
prosecution, sentencing, probation, discretionary parole, and
the right to representation in certain criminal proceedings;
relating to violation of a custodian's duty; relating to
sexual abuse of a minor; relating to release of information
concerning certain cases involving a minor; relating to local
options regarding alcoholic beverages, the offense of
furnishing or delivery of alcoholic beverages to a person
under 21 years of age, and forfeiture of property used in, and
money or other items of value used in financial transactions
derived from, violation of certain laws relating to alcoholic
beverages; relating to assault by means of a dangerous
instrument; relating to operating or driving a motor vehicle,
aircraft, or watercraft while under the influence of an
alcoholic beverage, inhalant, or controlled substance, to the
refusal to submit to a chemical test, and to the presumptions
concerning the chemical analysis of breath or blood; and
providing for an effective date."
This was the first hearing for this bill in the Senate Finance
Committee.
SUSAN PARKS, Deputy Attorney General, Criminal Division, Department
of Law, noted this is a comprehensive bill that covers many areas
of criminal law. She stated it addresses many "problems" that law
enforcement and public safety officers are faced with. She noted
this committee substitute is significantly different than the
original legislation, as a result of concerns raised during
hearings in the Senate Judiciary Committee. She reported that
extensive public testimony was taken on the committee substitute in
the aforementioned committee. She remarked upon the efforts of the
Senate Judiciary Committee to ensure this legislation balances
public safety with the rights of defendants.
Ms. Parks stated that Sections 1 through 11 address "the problem of
alcohol", specifically bootlegging laws. She explained the goal of
these provisions it to provide communities with more options and
greater ability to enforce their local liquor option laws. She
noted Sections 1 through 4 would allow local communities to adopt a
lower threshold standard for possession of alcohol within the
community. She informed that currently State statue contains one
standard, and although some communities have adopted lower limits,
the State does not have the ability to enforce the lower limits.
The provisions in these bill sections she said would grant that
enforcement ability.
Senator Bunde asked whether local communities would retain the
option to adopt local liquor option laws but would not be required
to do so.
Ms. Parks affirmed. She continued that these provisions would
eliminate a loophole, which she explained occurs as a result of
closed communities adoption of conflicting rules, and from
overlapping boundaries. She stated that bootleggers have been able
to take advantage of these discrepancies.
Ms. Parks noted bootlegging statutes currently do not allow for the
confiscation of property and pointed out this legislation would
match provisions for seizure of property used in drug crimes.
Ms. Parks also noted this legislation would create new statutes in
Sections 14 and 17. She described Section 14, to correct an
omission in the current statutes governing assaults. She stated
this provision would create a new Class C felony for crimes in
which criminal negligence causes serious physical injury by means
of a dangerous instrument. She gave as the most common example,
instances in which the driver of a vehicle was not found to be
intoxicated, but who nonetheless inflicted serious injury due to
criminal negligence.
Ms. Parks stated that Section 17 relates to violation of third-
party custodian duties. She informed that currently a judge has the
option of releasing a defendant on bail into the custody of a third
party who promises to report any violations the defendant may
commit. Unfortunately, she reported many of the third party
custodians fail to fulfill these duties and the State only has the
option of pursuing criminal contempt charges. This legislation, she
said would establish a and b misdemeanor crimes depending on
whether the person the third party custodian was supervising was
charged with a felony or a misdemeanor.
Ms. Parks continued that this legislation would also amend some
existing statutes to "make them stronger". Section 13, she said
would modify the felony murder statutes, noting that currently all
participants in a serious felony crime, such as a robbery, in which
someone other than the participant is killed, is held responsible
for that death. She stated this legislation proposes that if the
death of a participant is caused by someone other than a
participant, such as a store clerk shooting one of the robbers, all
participants are held accountable for the death. She remarked this
is because the conduct of the participants in the robbery or other
crime prompted the death.
Ms. Parks informed that Sections 15 and 16 would amend current
statues pertaining to the crime of sexual abuse of a minor, noting
that currently statutes make no distinction between penetration and
touching in offenses perpetrated on a minor by juveniles 15 years
of age or younger. The crimes are all classified as misdemeanors,
she said, despite the disproportion of the harm caused by
penetration. She remarked that this legislation would classify
penetration of victims three or more years of age younger than the
juvenile offender who is 15 years of age or younger, as a C felony
crime. She qualified the case would remain in the juvenile judicial
system, but that the higher classification would be a recognition
of the seriousness of the conduct.
Ms. Parks indicated that Sections 26 and 27 would amend the
statutes relating to felony driving under the influence of drugs or
alcohol.
Ms. Parks informed that currently provisions allow the Department
of Health and Social Services to release identifying information on
juvenile offenders to schools and law enforcement, but not to the
general public. Section 32, she stated would allow the release of
this information in certain circumstances for public safety
reasons, although in such a manner as to protect confidentiality,
Senator Dyson asked if this would allow child care providers who
employ teenagers to obtain this information.
Ms. Parks replied that is the situation that prompted this change.
Ms. Parks then reminded that current statutes are intended for
judges to impose consecutive sentencing for each victim and crime
committed by an offender; however, she stated adequate sentencing
is not occurring. She remarked that Sections 22, 23, 30 and 31
would mandate the legislative intent of the current statute.
Ms. Parks then told the Committee this legislation would establish
procedures for instances in which a witness in a court proceeding
is granted immunity in exchange for testimony but refuses to
testify citing protection under the Fifth Amendment to the US
Constitution.
Ms. Parks next told of situations of gang or drug-related violence
whereby all parties claim self defense when an innocent party is
injured. She remarked that this bill would prohibit a self-defense
plea for anyone who brings a gun to drug or gang activities.
Ms. Parks addressed the "big gulp" defense claim sometimes made in
driving under the influence arrests that the alcohol was consumed
shortly before the driver took the wheel and that the driver would
have reached his or her destination before the alcohol entered the
blood stream had the driver not been stopped.
CINDY CASHEN, victim of drunk driving, and Executive Director,
Mothers Against Drunk Driving (MADD), Juneau Chapter, read
testimony into the record as follows.
MADD supports the committee substitute for House Bill 244. We
support the right for communities to adopt lower limits of
alcohol possession and importation in order to improve the
health and safety of their people. Empowering communities to
take part in dealing with alcohol abuse and the breaking of
the laws is something that MADD supports.
We support stricter drunk driving sanction for high-risk
drivers - these are drunk drivers who have repeatedly chosen
to endanger themselves and everyone else who shares the road
system - must be held accountable for their crimes. About one-
third of all drivers arrested or convicted of driving under
the influence are repeat offenders. These drivers are 40
percent more likely to be involved in a fatal crash than those
without prior DUIs. We support increased penalties for those
who chose to drink and drive, which results in the serious
injury of an innocent victim or victims.
People who drink and drive - referring to the "big gulp"
theory - they're not doctors. They're not experts. They aren't
able to determine if they're sober before arriving at their
destination. If a person chooses to drink and drive, they've
broken the law; they've committed a crime and they should be
held accountable for it. It's that simple.
Ms. Cashen then relayed her story in which the drunk driver was to
receive a sentence for each life taken and a lesser sentence for
the serious injury caused to another. She stated that the victims'
families agreed to this, but the judge "felt sorry" for the
offender and imposed a lesser sentence, combining the crimes.
Ms. Cashen also stressed the need to address the third party
custodian statutes. She told of a drunk driving death that occurred
in Hoonah and her assistance to the mother of the deceased boy.
SFC 04 # 84, Side B 09:56 AM
Ms. Cashen continued that the offender was released to a third
party custodian pending trial and subsequently drank and even
partied in the house of the victim, and yet no action could be
taken against the third party custodian. She predicted this
legislation would provide consequences for third party custodians
who fail to report violations committed by their charge.
Senator Dyson thanked the witness for turning a tragedy into
something useful to others.
Senator Hoffman asked the number of MAAD chapters in Alaska.
Ms. Cashen listed Anchorage, Fairbanks and Juneau with established
chapters, and the June 2004 opening of a chapter in Mat-Su, and the
formation of another in Petersburg.
Ms. Cashen commented that April 19 would be the four-year
anniversary of her father's death and "yet nothing has been done."
Senator Hoffman referenced Ms. Park's testimony that several
communities requested lower alcohol possession limits and he asked
which communities made this request. He also asked the impetus of
the proposed changes to the alcohol possession statutes made to the
bill in the Senate Judiciary Committee. He noted the committee
substitute received only one "do pass" recommendation from that
Committee.
Ms. Parks replied that the community of St. Mary's, plus two
others, has adopted rules providing lower levels of alcohol
possession.
AL STORY, Lieutenant, Alaska State Troopers, Department of Public
Safety, testified via teleconference from an offnet location that
currently troopers are unable to enforce the limited alcohol
possession rules because of current statutory language.
Ms. Parks informed the matter of the alcohol possession provisions
was discussed extensively in the Senate Judiciary Committee.
Senator Hoffman pointed out these provisions were not included in
the original version of the bill and asked why it was included in
the Senate Judiciary committee substitute.
Ms. Parks replied that over the interim, it became a priority of
Governor Murkowski to keep alcohol out of "dry" communities.
Senator Hoffman wanted to know how this provision would keep
alcohol out of communities. He reminded that he sponsored the
original legislation to provide for the establishment of dry
communities and questioned how the proposed provision would be
effective.
Ms. Parks responded that it would provide the State the ability to
better enforce community decisions. She admitted there is no
"silver bullet" for those who want to commit crimes.
Senator Hoffman noted the additional penalties for offenses
involving alcohol.
Ms. Parks explained the proposal to increase to a C felony, the
penalty for supplying alcohol to a minor in an area closed to
alcohol. She noted mandatory forfeiture of seized items if the
offense involved "egregious" circumstances.
Senator Hoffman asked if conviction of a C felony results in
forfeiture of permanent fund dividends.
Ms. Parks answered yes.
Senator Dyson appreciated the efforts made in drafting this
legislation and commented that the bill must also pass the House of
Representatives and that other opportunities would be available to
address concerns.
Senator Dyson offered a motion to report the bill from Committee
with individual recommendations and an accompanying and a new
fiscal note.
There was no objection and CS SB 170 (JUD) MOVED from Committee
with fiscal note #3 for $3,400 from the Department of Corrections,
and a new fiscal note for $90,800 from the Department of
Administration dated 4/8/04.
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