Legislature(2003 - 2004)
05/04/2004 09:21 AM House 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.
SUSAN PARKS, DEPUTY ATTORNEY GENERAL, CRIMINAL DIVISION,
DEPARTMENT OF LAW, spoke on SB 170, the companion bill for
HB 244, previously heard and held in the House Finance
Committee. Both bills were introduced last year and were
worked on extensively over the interim. The Department of
Law recommends that the Committee consider amending SB 170
to reflect some of the refinements that the House Judiciary
Committee made in the provisions.
Ms. Parks pointed out that there are two provisions in SB
170, not contained in HB 244 that address bootlegging. The
first area not covered in HB 244 is Sections 5 & 6 of SB
170. Currently, that provision covers a 5-mile radius
around the villages, however, in areas where the villages
are close together, the 5-mile radius overlaps. When
villages have conflicting local options, the courts
interpret that to say that no local option could apply in
that area. There would then be corridors created outside
the areas where bootleggers could act. Provisions in
Sections 5 & 6 clarify that the local option of a
municipality takes precedence and if it were two villages,
it would be the one least restrictive, providing protection
around the perimeters of the villages.
Ms. Parks continued. The other provisions not contained in
HB 244 address forfeiture in bootlegging cases listed in
Sections 9, 10 & 11 of SB 170. Those provisions refine the
admission procedure. When property has been seized in a
bootlegging case, when an innocent third party comes in and
makes a showing that the seized property should not be
seized, those provisions lay out a refinement of what needs
to be shown in order to get the property back. The
provisions also comply for a mandatory forfeiture in
situations of a prior conviction for bootlegging or felony
probation. She reiterated that Sections 9-11 would add
forfeiture provisions not included in HB 244.
Ms. Parks noted the proposed amendments included in member's
packets that would take language from HB 244 and move it to
SB 170. She stated that Representative Samuels had
recommended a provision that is not supported by the
Department, as it would create concerns for attorneys
interrupting interviews of the individual in custody. She
offered to answer questions of the Committee.
LINDA WILSON, (TESTIFIED VIA TELECONFERENCE), DEPUTY
DIRECTOR, PUBLIC DEFENDER, DEPARTMENT OF ADMINISTRATION,
ANCHORAGE, testified on SB 170, the companion bill to HB
244. She addressed some amendments proposed by the
Department of Law for the Senate bill. She acknowledged
that the Public Defender does support most of the proposed
amendments except the witness immunity section, Page 12,
Section 21. That section brings concerns with the Alaska
constitutional rights regarding self-incrimination. The
bill intends to provide a procedure for when claims are
raised of self-incrimination. When the judge determines
that a witness has a valid claim, they then let the
prosecutor know that information. The prosecutor then has
to determine if they want to grant the witness immunity or
not. Under the Alaska Constitution, that immunity is called
'transactional immunity' and the person could never be
prosecuted for the crimes exposing themselves to that. She
reiterated that the Alaska Constitution requires
transactional immunity.
Ms. Wilson pointed out that the Senate version identifies
compliance and stops at the findings by the judge regarding
a valid claim. Subsection I, Section 21, shall advise the
prosecution of that finding. That area was debated in the
Senate Judiciary Committee and that the provisions in the
House version would make it unconstitutional. In the House
version, Section 21, Page 11, the judge would share some
information with the special District Attorney (DA) assigned
to make the decision regarding whether to grant witness
immunity. The judge would reveal to the prosecutor the
level of the felony. Unfortunately, sharing information
with any prosecutor defeats the right of self-incrimination
and would make the bill unconstitutional. She urged that
the Committee leave the Senate version in its current state.
Ms. Wilson identified Section 13 in SB 170. She believed
that HB 244 was more refined in that section. She spoke to
Section 9 in HB 244, regarding the felony murder offense.
If a person is charged with a felony, then that person could
nd
be charged with 2 degree murder. In current law, if a
participant in the crime is killed, the other person cannot
be fined or charged with their death. That portion of the
bill seeks in include a participant's death. There is an
exception in the house bill that removes that exposure
except when the killing is of a participant and is a direct
result of a felony criminal crime by a non-participant. The
non-participant would have to do something very significant
for it to be an exception in the bill. She suggested that
language could be a refinement and that HB 244 offered a
better version to that section.
Ms. Wilson addressed felonies and the Driving While
Intoxicated (DWI) provisions. The language of the house
bill is preferred, as it is narrower regarding the
challenging evidence. Section 27 of both bills, would allow
evidence of alcohol consumption before and after driving.
Taking a breath test hours after the driving does not always
reflect what the blood alcohol level is during the time of
operating the vehicle. HB 244 allows the person to raise a
valid defense for a breath test.
Ms. Wilson pointed out that Ms. Parks had touched on
elements of SB 170 regarding overlapping and local option
areas, which is an improvement. Ms. Wilson reiterated that
the Public Defender does agree with some proposed
amendments:
· The assault of the third degree;
· Requiring a court to make findings for release on
bail;
· In a felony DWI, refusal situation, limiting a look
back to 20-years for a subsequent felony;
· Regarding the local option provision, an "opting
out" by local option, and
· Does not make it a felony to furnish alcohol to a
minor. Ms. Wilson concluded her testimony.
Co-Chair Williams stated that SB 170 would be HELD in
Committee for further consideration.
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.
Co-Chair Williams stated that Representative Samuels asked
to be included in further discussions on SB 170.
Co-Chair Williams noted that SB 170 would be HELD in
Committee for further consideration.
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