Legislature(2009 - 2010)
04/02/2009 03:06 PM House FIN
| Audio | Topic |
|---|---|
| Start | |
| HB199 | |
| HB161 | |
| HB3 | |
| HB98 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE BILL NO. 98
"An Act relating to minor consuming and repeat minor
consuming; and providing for an effective date."
4:49:02 PM
Co-Chair Hawker noted that there would be two amendments to
the bill.
JANE PIERSON, STAFF, REPRESENTATIVE JAY RAMAS, SPONSOR,
provided history regarding HB 98, explaining that HB 359,
legislation amending minors consuming statutes, had been
passed the previous year, but had created a new problem
related to convictions.
Co-Chair Hawker clarified that new language would provide a
technical correction.
Representative Gara MOVED Amendment 1, 26-LS005\A.4,
Luckhaupt, 4/1/09 (copy on file):
Page 1, line 1, following both occurrences of
"consuming":
Insert "or in possession or control"
Page 1, following line 3:
Insert a new bill section to read:
"*Section 1. AS 04.16.050(b) is amended to read:
(b) A person who violates (a) of this section
and who has not been previously convicted or
received a suspended imposition of sentence under
(1) of this subsection is guilty of minor
consuming or in possession or control. Minor
consuming or in possession or control is a
violation. Upon conviction in the district court,
the court
(1) may grant a suspended imposition of
sentence under AS 12.55.085 and place the person
on probation for up to one year if the person has
not been convicted of a violation of this section
previously; among the conditions of probation, the
court shall, with the consent of a community
diversion panel, refer the person to the panel,
and require the person to comply with conditions
set by the panel, including counseling, education,
treatment, community work, and payment of fees; in
this paragraph, "community diversion panel" means
a youth court or other group selected by the court
to serve as a sentencing option for a person
convicted under this section; or
(s) shall impose a fine of at least $200
but not more than $600, shall require the person
to attend alcohol information school if the school
is available, and shall place the person on
probation for up to one year under (e) of this
section; the court may suspend a portion of the
fine imposed under this paragraph that exceeds
$200 if the person is required to pay for
education or treatment required under (e) of this
section."
Page 1, line 4:
Delete "Section 1"
Insert "Sec. 2"
Renumber the following bill sections accordingly.
Page 1, line 9, following "section.":
Insert "Repeat minor consuming or in possession or
control is a violation."
Page 2, following line 15:
Insert new bill sections to read:
"*Sec. 4. AS 04.16.050(l) is amended by adding a new
paragraph to read:
(4) "violation" has the meaning given in AS
11.81.900 and the penalties that are provided in this
section.
*Sec. 5. The uncodified law of the State of Alaska is
amended by adding a new section to read:
LEGISLATIVE RECOGNITION OF EFFECT OF DEFINITION.
The legislature recognizes that
(1) the definition of "violation" in AS
11.81.900(b)(63) provides that persons charged with a
violation are not entitled to counsel or a trial by
jury; and
(2) notwithstanding the definition of
"violation" in AS 11.81.900(b)(63), persons charged
with a first offense minor consuming or in possession
or control or with repeat minor consuming or in
possession or control under AS 04.16.050 are entitled
to counsel and a trial by jury under the decision of
the Alaska Court of Appeals in State v. Auliye, 57 P.3d
711 (Alaska App. 2002)."
Renumber the following bill sections accordingly.
Co-Chair Hawker OBJECTED for DISCUSSION.
Representative Gara explained that the amendment would clear
up whether the first two convictions would be considered a
crime. He did not want a young person to be charged with a
crime for the first two violations. He expressed
frustration.
4:52:23 PM
Co-Chair Hawker queried the position of the sponsor on the
amendment. Ms. Pierson stated that Representative Ramras did
not support the amendment. She spoke to the sponsor's desire
to keep the bill clean regarding the minor consuming statute
and his feeling that the amendment could cloud the issue.
4:53:17 PM
DOUG WOOLIVER, ADMINISTRATIVE ATTORNEY, ALASKA COURT SYSTEM,
understood the desire to have the statute clear so that the
courts would understand that the first two offenses are not
criminal offenses. He stated that the law itself is not
unclear and that the court will not count the first two
offenses as crimes. He acknowledged that the defendants do
not always know that.
Mr. Wooliver declared that the concern about adding the word
"violation" is its definition in statute; this offense is
contrary to that definition in almost all respects. He
pointed out that adding the word "violation" would not be a
simple fix and judges agree that an additional layer of
confusion would be added. The definition of "violation" is a
crime that is punishable only by a fine, which does not
apply to the statute. The definition also includes an
offense for which the defendant does not get counsel, which
also does not apply. Another definition is an offense for
which the defendant is not entitled to a jury trial, which
also does not apply.
Mr. Wooliver stated that the courts were concerned about
adding a definition that in all respects is contrary to what
the bill actually does. He agreed with the drafter that
technically the offense would be a violation, but calling it
a violation creates a lot of confusion because of the
definition. He pointed out that the courts have been dealing
with minor consuming issues in the legislation for some time
and thought the statute was close to working.
Co-Chair Hawker asked for clarification regarding what was
meant by the "host of judges" who had been consulted. Mr.
Wooliver replied that he routinely asked for comments from
judges regarding the possible impact of legislation.
Comments regarding HB 98 had indicated concerns about adding
confusion.
Co-Chair Hawker asked whether he meant that seated members
of the Alaska bench have confided that they have examined
the language and expressed concerns regarding their ability
to implement the language. Mr. Wooliver responded in the
affirmative.
4:56:54 PM
Representative Gara admitted frustration in not having the
judges present to be questioned. Mr. Wooliver replied that
the judges disagreed with him from time to time.
Representative Gara wondered how the language of the bill
was developed. He felt that the statute language should be
clearer. He opined that the issue was simple.
Representative Joule wondered whether using language about
intent would clarify the issue.
Co-Chair Hawker MAINTAINED his OBJECTION to Amendment 1. He
felt that the court system should speak to Representative
Gara's office about his concerns.
Representative Kelly asked for clarification. He felt that
the language needed revisiting. He suggested that minors
might misinterpret the law upon reading it, but summarized
that he did not have a problem with the existing language.
5:00:35 PM
Representative Gara emphasized that the law is not clear. He
reiterated concerns that a minor would think they had
committed a crime. He asked whether the following language
would work: "Minor consuming or in possession or in control
is not a crime." Ms. Pierson pointed out that the language
should make it clear that only first and second minor
consuming was meant.
Representative Gara referred to the language regarding the
first and second convictions; he queried his suggested
language: "Minor consumer or in possession or in control is
not a crime." Mr. Wooliver stated his willingness to work on
the language with counsel. Representative Gara requested
viable language that could be used on the floor. Ms. Pierson
stated that the sponsor would not have a problem with
language that would work for everyone.
Mr. Wooliver noted that he would continue to work with
counsel on the language.
5:03:26 PM
Co-Chair Hawker MAINTAINED his OBJECTION to Amendment 1.
Representative Gara WITHDREW Amendment 1.
Co-Chair Hawker MOVED to ADOPT Amendment 2, 6-LS0051\A.5,
Luckhaupt, 4/2/092 (copy on file):
Page 1, line 1, following "consuming;":
Insert "relating to penalties for violations of limitations
on possessing, sending, shipping, transporting, or bringing
alcoholic beverages to, soliciting or receiving orders for
delivery of alcoholic beverages to, and the manufacture,
sale, offer for sale, barter, traffic, or possession of
alcoholic beverages in, a local option area;"
Page 2, following line 15:
Insert new bill sections to read:
"* Sec. 3. AS 04.16.200(h) is amended to read:
(h) Upon conviction of a class C felony under (b)
or (e)(2) or (3) of this section, the court
(1) shall impose a fine of not less than
$10,000 and a minimum sentence of imprisonment of
(A) 120 days if the person has not been previously
convicted [ONCE];
(B) 240 days if the person has been previously
convicted once [TWO TIMES];
(C) 360 days if the person has been previously
convicted two [THREE] or more times;
(2) may not
(A) suspend execution of sentence or grant
probation except on the condition that the person
(i) serve the minimum imprisonment under (1) of
this subsection; and
(ii) pay the minimum fine required under (1) of
this subsection; or
(B) suspend imposition of sentence.
* Sec. 4. The uncodified law of the State of Alaska is
amended by adding a new section to read:
APPLICABILITY. AS 04.16.200(h), as amended by sec.
3 of this Act, applies to an offense occurring on or
after the effective date of this Act. References to
previous convictions in sec. 3 of this Act apply to
convictions occurring before, on, or after the
effective date of this Act."
Renumber the following bill section accordingly.
Vice-Chair Thomas OBJECTED.
Co-Chair Hawker shared that the language in the amendment is
linked to another bill in committee related to limitations
on alcohol importation. He reported that he had spoken with
the co-chair of the committee, who indicated that he had no
problem with the amendment as long as legal counsel could
provide assurances.
ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES
SECTION-JUNEAU, CRIMINAL DIVISION, DEPARTMENT OF LAW,
testified that the amendment attempts to address previous
mistakes in SB 265. The intent of the legislation was to
adopt mandatory minimum penalties for bootlegging that were
the same as mandatory minimums for drunk driving.
Unfortunately, the definition of "previously convicted for
bootlegging" is different than for the term "previously
convicted for drunk driving." In terms of felony bootlegging
at least, the legislation passed did not do what it was
intended to do.
Ms. Carpeneti stated that Amendment 2 would make the repair.
She reported that she had spoken with Representative Herron
and assured him regarding the language.
5:07:19 PM
Representative Gara wondered about a concern with the
underlying bill related to rural Alaska. He asked whether
Representative Herron objected to a portion of the bill. Co-
Chair Hawker answered yes. He reiterated that Representative
Herron was not concerned about the provisions in the
amendment.
Representative Gara asked for clarification regarding how
the amendment corrects the bill. Ms. Carpeneti replied that
the amendment adopts the same mandatory minimum penalty for
first-time felony bootlegging and first-time felony drunk
driving.
Representative Gara felt that the crimes were not equal in
weight. He felt that the first-time $10,000 penalty plus 120
days in jail might not be appropriate for a bootlegging
offense. Ms. Carpeneti replied that bootlegging has had
negative consequences in rural communities that have voted
to be dry or damp. She stressed that both issues have large
effects on communities.
5:11:55 PM
Representative Joule agreed with the language with
reservations. He expressed concern regarding the
disproportionate amount of rural Alaskan males in the prison
system. He shared that his community (Kotzebue) is a damp
community, but bootlegging is not legal. Alcohol can be
imported and consumed, but not sold. He described a
community less than 200 miles away that can import, consume,
and sell alcohol legally. He stated concerns about pushing
communities into going wet. He understood the complexity of
the problems, but worried that at some point people could
figure out that voting to go wet would release the males in
prison.
5:14:44 PM
Representative Gara deferred to rural legislators regarding
the scope of the problem and the penalties and questioned
the felony level for first-time bootlegging. Ms. Carpeneti
explained how the current law works. The state has to prove
that the alcohol was brought in for the purposes of sale.
There is also a presumption that can be rebutted that
bringing in more than 10.5 liters of distilled spirits, 24
liters of wine, or 12 gallons of malt liquor amounts to
transporting with the intent to sell.
5:16:39 PM
Ms. Carpeneti continued that SB 265 included that a third
conviction of bootlegging would be a Class C felony and
smaller amounts would be a Class A misdemeanor. She
indicated that past support for the measure by rural
representation had prompted submission of the bill by the
department.
Representative Foster thought there was not disincentive to
bootleg because of high profits.
Vice-Chair Thomas spoke to past support from rural members
for the provision.
Co-Chair Hawker queried the sponsor's position regarding
Amendment 2. Ms. Pierson replied that the sponsor did not
have a problem with the amendment.
Vice-Chair Thomas WITHDREW his OBJECTION. There being NO
further OBJECTION, it was so ordered. Amendment 2 was
ADOPTED.
5:20:17 PM
Representative Gara asked if his proposed language "minor
consuming or in possession or control is not a crime" would
successfully say that the first and second violations are
not a crime.
JERRY LUCKHAUPT, LEGISLATIVE COUNCIL, DIVISION OF LEGAL
SERVICES, testified that he agreed with the concept that the
offense should be denominated. He pointed out that the
legislature identifies every type of criminal statute.
However, the offenses are violations; the word is used in
Title IV for any non-criminal offense dealt with in the
criminal justice system. He did not understand why the
magistrates had a problem. He stated concerns about saying
the offense is not a crime, including that they would be
considered a civil offense, necessitating litigation of all
the issues again.
Representative Gara noted that there are only two offenses
in the state, civil and criminal. He asked if there was
statute language that the offense was a violation. Mr.
Luckhaupt responded that it does not say the offense is a
violation.
Representative Gara asked whether the offenses were being
interpreted as a violation even though the statute does not
say it that way. Mr. Luckhaupt responded in the affirmative.
5:23:59 PM
Representative Gara stated that he only wanted to say that
minor consuming is not a crime, which does not add or take
away the word. He queried objections to saying "not a
crime."
Co-Chair Hawker questioned the productiveness of the
conversation.
5:26:02 PM
Representative Kelly stated that he was comfortable with the
amendment.
Co-Chair Hawker agreed that he would support an amendment
with both Representative Gara and the sponsor's name on it.
Co-Chair Hawker noted the zero fiscal notes.
Vice-Chair Thomas MOVED to report CSHB 98 (FIN) out of
Committee with individual recommendations and the
accompanying fiscal notes. There being NO OBJECTION, it was
so ordered.
CSHB 98 (FIN) was REPORTED out of Committee with a "no
recommendation" and with a new zero fiscal note from the
Department of Public Safety and two previously published
fiscal notes: FN1 (CRT), FN2 (LAW).
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