Legislature(2001 - 2002)
04/10/2001 05:30 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 179 - OFFENSES RELATING TO UNDERAGE DRINKING Number 0234 CHAIR ROKEBERG announced that the first order of business would be HOUSE BILL NO. 179, "An Act relating to underage drinking and drug offenses; and providing for an effective date." CHAIR ROKEBERG mentioned that there were amendments he'd numbered according to the order in which they would be taken up. He offered that the amendments could mesh well together. Number 0346 CHAIR ROKEBERG made a motion to adopt Amendment 1, 22- LS0564\L.4, Ford, 4/5/01, which reads: Page 1, line 8, following "of": Insert "at least $200 but not more than" Page 1, line 9: Delete "shall suspend the full amount of the fine and" Insert "may suspend a portion of the fine imposed under this subsection that exceeds $200 if the court requires the person to pay for education or treatment recommended by the court and shall" CHAIR ROKEBERG explained that Amendment 1 would provide the courts with flexibility by setting a base of $200, and would allow for a suspension of a portion of that fine if it exceeds $200. He clarified that the fine would be at least $200 and not more than $600. Number 0406 CHAIR ROKEBERG noted that there were no objections. Therefore, Amendment 1 was adopted. [It was clarified later that the amendments pertained to Version L, not yet adopted. Following the adoption of Version L, the adoption of Amendments 1 and 2 was reconfirmed.] Number 0414 CHAIR ROKEBERG made a motion to adopt Amendment 2, 22- LS0564\L.3, Ford, 4/6/01, which reads: Page 2, lines 19 - 21: Delete "The following conditions of probation apply: (1) the person shall pay for and enroll in a juvenile alcohol safety action program; (2)" Insert "The court may require the person to pay for and enroll in a juvenile alcohol safety action program. The court shall impose the following conditions of probation: (1)" Renumber the following paragraphs accordingly. Page 7, line 15: Delete "has enrolled" Insert ", if required to participate" Page 7, line 16: Delete "and" Insert "has" Page 9, line 22: Delete "has enrolled" Insert ", if required to participate" Page 9, line 23: Delete "and" Insert ", has" CHAIR ROKEBERG explained that Amendment 2 would provide flexibility to the court by allowing the judge to be the "gatekeeper" with regard to attendance by the offender in any Juvenile Alcohol Safety Action Program (JASAP) that may be established. Number 0501 CHAIR ROKEBERG made a motion to adopt the proposed committee substitute (CS) for HB 179, version 22-LS0564\L, Ford, 4/4/01, as a work draft. Number 0531 REPRESENTATIVE BERKOWITZ objected for the purpose of discussion. Number 0555 HEATHER M. NOBREGA, Staff to Representative Norman Rokeberg, House Judiciary Standing Committee, Alaska State Legislature, presented the proposed CS, Version L, on behalf of the committee. She explained that Version L incorporates the recommendations made by the Department of Law (DOL), deletes the JASAP requirements for first-time offenders, and requires education courses for first-time offenders. These changes originally took the form of amendments adopted on 3/31/01. Number 0643 CHAIR ROKEBERG noted that there were no further objections to the adoption of the proposed CS as a work draft. Therefore, Version L was before the committee. Number 0660 CHAIR ROKEBERG renewed the motion to adopt Amendment 1. There being no objection, Amendment 1 was adopted. MS. NOBREGA confirmed that Amendment 1 creates a minimum [fine] of $200, leaves the maximum [fine] at $600, and allows the judge to suspend between $200 and $600 in order that the defendant pay for the alcohol information safety school, as well as any JASAP fees. CHAIR ROKEBERG expressed concern over the term "treatment" being added by Amendment 1. MS. NOBREGA noted that another amendment yet to be discussed would add the possibility of requiring JASAP treatment for first-time offenders, and paying for treatment is already encompassed in HB 179 under a probation requirement provision. Number 0776 CHAIR ROKEBERG renewed the motion to adopt Amendment 2. Number 0787 REPRESENTATIVE COGHILL objected for the purpose of discussion. He asked: If the provision for mandatory payment were being taken out, would it be included elsewhere in the form of discretionary language? He clarified that he was referring to the first portion of Amendment 2. REPRESENTATIVE JAMES pointed out that the language to be substituted in that portion of Amendment 2 still includes a mandatory payment provision should the judge require enrollment. Number 903 CHAIR ROKEBERG noted that there were no further objections. Therefore, Amendment 2 was adopted. Number 0912 CHAIR ROKEBERG made reference to Amendment 3, 22-LS0564\L.2, Ford, 4/5/01, which reads: Page 1, line 10, following "section": Insert ". The court may require a person convicted under this subsection to comply with treatment recommended by a community diversion panel. In this subsection, "community diversion panel" means a group approved for treatment of alcoholism in persons under 21 years of age by the Department of Health and Social Services" CHAIR ROKEBERG said he wanted to delete "treatment recommended [by]" and insert "[the] jurisdiction [of]", and delete "treatment of alcoholism [in]" and insert "adjudication [of]". Thus, the amended version of Amendment 3 reads: Page 1, line 10, following "section": Insert ". The court may require a person convicted under this subsection to comply with the jurisdiction of a community diversion panel. In this subsection, "community diversion panel" means a group approved for adjudication of persons under 21 years of age by the Department of Health and Social Services" CHAIR ROKEBERG explained that the intention of Amendment 3 was to set up a community diversion panel, similar to a "youth court" or a small-community restorative-justice panel; it was not intended to provide treatment. REPRESENTATIVE JAMES asked who is going to pay for it and how much it is going to cost. Number 0975 CHAIR ROKEBERG responded that it was his intention that the individual offender would pay the cost. REPRESENTATIVE JAMES clarified that she was referring to the community diversion panel; that there must be some cost to that. REPRESENTATIVE BERKOWITZ said it depends. CHAIR ROKEBERG responded, "It depends; ... there certainly should be no fiscal note attached to it in this bill." He explained that the intent was to try and broaden the scope of the judiciary. REPRESENTATIVE JAMES said she understood that [concept], but countered that every time the scope is broadened, it costs money. CHAIR ROKEBERG inquired if Representative James wanted to amend that provision so that it would be self-supporting. REPRESENTATIVE JAMES said she did not want to do so; she only wanted to know, for the record, what [the creation of a community diversion panel] would do to the cost, because she had no idea and there was not any definition of [a community diversion panel]. It was simply a title of something that was not listed anywhere else. Number 1031 CHAIR ROKEBERG made a motion to adopt Amendment 3 [as amended]. REPRESENTATIVE BERKOWITZ said it seemed Amendment 3 would reduce the overall burden on the court system, and would allow alternative sentencing through community programs. He noted, for example, that the youth court is primarily funded through other means, and most restorative justice is done in a manner similar to community patrols; [Amendment 3] would reduce government burden and allow for more citizen participation. CHAIR ROKEBERG confirmed that it was his intention [with Amendment 3] to reduce the court system's burden. He noted that any formal [community diversion panel] approved in the future by the [Department of Health and Social Services (DHSS)], is already addressed in Amendment 3. REPRESENTATIVE JAMES said her concern centered around the fact that if there is never a community diversion panel, this whole section wouldn't do anything. CHAIR ROKEBERG noted that there already are [community diversion panels]. Number 1120 ROBERT BUTTCANE, Legislative & Administrative Liaison, Division of Juvenile Justice, Department of Health & Social Services (DHSS), explained that "community diversion panel" is a term [the DHSS] is trying to incorporate into its process. Current statute has a section, under the delinquency chapter, that relates specifically to youth courts. But as [the DHSS] has developed other types of panels around the state such as elders courts and community diversion panels, [the DHSS] has been trying to use a more inclusive term for the concept that was developed as a youth court. Thus community diversion panels are part of the delinquency process; they are part of the scheme that relates to the diversion of young offenders from the formal court process into community response processes. MR. BUTTCANE said to his knowledge, [the DHSS] has not applied [community diversion panels] to persons outside of the delinquency system; therefore, all references in statute to community diversion panels relate to offenses committed [by] delinquents, and [community diversion panels] are the informal programs. He added that conceptually, [the DHSS] supports the idea [of Amendment 3], but has some problems with the wording. REPRESENTATIVE JAMES asked whether the term "community diversion panel" is used elsewhere in statute or regulations. MR. BUTTCANE responded that the term is not elsewhere in statute. Only the term "youth court" is used in statute, but as [the DHSS] negotiates with community groups, [the DHSS] favors the language of ["community diversion panel"], which will appear in individual negotiated agreements. Thus the elder's court in Togiak, for instance, is referred to as a community diversion panel. He added that it is a commonly used term. REPRESENTATIVE JAMES noted that for her, that was the problem: "community diversion panel" is in Amendment 3 in quotations, even though the term has not yet been defined. She offered that every statute should have the benefit of having its terms defined. Number 1268 CHAIR ROKEBERG argued that there are two safeguards: First, the court has to make the decision on whether to make the referral [to a community diversion panel]. And second, the [community diversion panel] has to be approved by the [DHSS]. He added that although he, too, preferred to have definitions included in statute, he recognized that the area of [community diversion panels] seemed to be growing. REPRESENTATIVE JAMES commented that she was not opposed to the concept, just that she had concerns over the language being inserted. Number 1338 CHAIR ROKEBERG agreed to review the specific language of [community diversion panel] further as the bill goes through the process. CHAIR ROKEBERG noted there were no further objections. Therefore, Amendment 3, as amended, was adopted. Number 1366 REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 4, which reads: (b) Upon probable cause of a violation of (a) of this section by a person who has not been previously convicted of such violation or previously subject to an order under this section, a peace officer shall apply to the district court for an injunction against the person. Such injunction shall restrain the person from violating section (a) and may (1) order the subject to participate in or comply with the treatment plan of a rehabilitation program; (2) prohibit the subject from consuming alcohol, inhalants, or intoxicating substances; (3) prohibit the subject from driving or seeking a driver's license; (4) order the subject to pay court costs. (c) Violation of this order may be punishable by a fine of [$]1,000 and 40 hours of community work. Number 1375 REPRESENTATIVE COGHILL objected. He asked what portion of Version L Amendment 4 addresses. REPRESENTATIVE BERKOWITZ explained that Amendment 4 would replace Sections 1 and 2; although it is more applicable to the original version of HB 179, he didn't have [Version L] in his possession at the time of drafting it. He went on to say that the bill has a scheme whereby at the first offense, a person has a violation; at the second offense, a person is guilty of repeat minor consuming, and at that point, real penalties are incurred. On the first offense (when the offender has slipped "under the radar screen"), there are no costs involved; and on a third offense, there are additional penalties imposed. REPRESENTATIVE BERKOWITZ said he fundamentally thinks that is a flawed scheme. Trying to get under the radar screen the first time would work if everyone were just a first-time offender; in using the first offense to create the second and third offenses, however, the penalties of the second and third offenses depend on the conviction of the first offense. And if the first offense conviction can be attacked because there was no attorney, or if some other doubt can be cast on "how good a conviction it was," then there is the potential for constitutional problems with the "habitual minor consuming" and other penalties. Number 1456 REPRESENTATIVE BERKOWITZ offered that with Amendment 4, instead of having a first offense thought of the way it currently is, when an offender is caught for the first time, he/she is taken to the judge/magistrate, who then places the offender under a court order. Clearly, such an order - in addition to perhaps including some of the items listed in [Version L] - should tell the minor he/she could not drink again. Also, the court would have the discretion to order participation in alcohol information safety courses, restrict driving privileges, and require payment of court costs. And while these items may not normally be considered "penalties," there are costs associated with them. REPRESENTATIVE BERKOWITZ continued. In this way, he said, because there would not be any criminal charge, there would not be any requirement for an attorney to become involved. It would be a civil order, similar to a domestic violence restraining order. If a person commits a second offense, not only would he/she enter into the minor-in-possession criminal world, he/she would also be in violation of the order imposed on the first offense, and thus be subject to the penalties of $1,000 and 40 hours of community work service. Representative Berkowitz said he was trying to get around the cost problem by not making the first offense criminal, but civil. Number 1599 CHAIR ROKEBERG inquired if the idea was that there would be no fine or punishment unless there was a violation of the order. REPRESENTATIVE BERKOWITZ responded that there would be no fine in the sense of what is normally thought of as a fine; it would not show up [as such]. But the court can order the individual to pay court costs. If someone is 16, he posited that it would not make much difference to that person if he/she had to pay a $200 fine or pay $200 in court costs. "The message of having to shell something out for something you did should be there," he said. Also, the provisions [of Amendment 4] would have an immediate impact; one of the problems with criminal cases, he added, was that the offense occurs but then it is a while before anything happens. In contrast, a court order goes into effect right away. CHAIR ROKEBERG responded that he would be more comfortable with that theory if the fines and suspensions and the "EIS" educational school were mandated. He inquired, "Can we have a violation and a fine, as well as a requirement to attend school, and still make this work?" REPRESENTATIVE BERKOWITZ said, "No. You can't have a violation and make it work with the first offense." CHAIR ROKEBERG asked whether Representative Berkowitz believed, from a constitutional standpoint, that [the solution presented by Amendment 4] would hold up better. REPRESENTATIVE BERKOWITZ answered that he thought it was more palatable, and although subject to some criticism, it would draw less criticism from a constitutional standpoint. CHAIR ROKEBERG said he thought if there were an attempt to have a "look-back" at previous convictions - which, to his understanding, HB 179 did not have - it "wipes the slate clean." REPRESENTATIVE BERKOWITZ countered that this did not wipe the slate clean. Number 1699 DEAN J. GUANELI, Chief Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), said he appreciated Representative Berkowitz's efforts to craft a solution to the problem - stemming from supreme court case law - of not being able to base a later crime on a prior offense in which the defendant did not have a right to counsel or to a jury trial. [The DOL] does not want to provide a right to counsel or a jury trial for first-offense minor consuming because of costs. MR. GUANELI said the solutions posed by Representative Berkowitz [via Amendment 4] and the proposed CS are similar in that, as part of some proceeding, the offender is put under a court order and a violation of that order triggers additional penalties. With Version L, it is a criminal proceeding for a violation; with Amendment 4, it is a civil proceeding of a restraining order. He believes both solutions are effective ways of dealing with the aforementioned supreme court case law, he said. MR. GUANELI added, however, that he thought the solution offered by Version L would be more favorable to the courts because the decision, in terms of a criminal [proceeding] for a violation, will be based on proof beyond a reasonable doubt. By contrast, a decision in terms of a civil [proceeding] for of a violation of a restraining order will be based on proof by a preponderance of the evidence. The latter, a civil standard, is a much lower standard. Thus if courts have to make later decisions because of [repeat offenses], they would be more comfortable basing those decisions on [the higher standard of] proof beyond a reasonable doubt. Number 1812 MR. GUANELI noted that another problem the civil standard of proof raises is that it is much more likely that minors would be subjected to a protective order. For example, if there is a party, the police arrive, and the kids scatter, then the police would not have to prove beyond a reasonable doubt that the kids were drinking; they would just need to find out the names of the kids and prove by a preponderance of the evidence - such as running away from the party - that they were guilty of minor consuming. He suggested the frequency of the kinds of complaints that arise now with the minor-consuming law would increase under a civil standard [as posed by Amendment 4]. MR. GUANELI referred to the point raised by Chair Rokeberg regarding an inability to impose a fine in a civil restraining order context. He said he thought it was an important aspect to have an amount of money suspended that the minor knows he/she will have to pay if he/she does not comply with the court's conditions. CHAIR ROKEBERG surmised from Mr. Guaneli's testimony that the administration did not support Amendment 4. REPRESENTATIVE BERKOWITZ remarked, "Anything we work on is going to butt us up against that problem of trying to not pay for some constitutional protections or right to counsel." He added that what he was trying to do [with Amendment 4] was to say that it is not criminal problem the first time around; it is a civil problem. He suggested that the flaw of not providing counsel was present in [Version L] as well, because those later convictions are dependent on the earlier convictions, which under [Version L] would be done without benefit of counsel. CHAIR ROKEBERG suggested the legislature needs to set the policy in such a way that the courts recognize that certain restraints need to be put on the administration of justice. For a first- time offense to mandate counsel and incur the whole panoply of the judicial system is not well-founded. He added that in this day and age of high costs, increasing efficiencies have to be kept in mind. REPRESENTATIVE BERKOWITZ noted that "we keep telling people that our rights are priceless." Number 1987 CHAIR ROKEBERG responded, "Their rights are priceless; that's why a judge is making this decision. They'll be before the bench." He noted that there had been previous testimony that said a district court jury trial would be 1 percent or 3.7 percent, depending on which study is referenced. He asked whether that was worth the protections offered by a jury trial for a first offense. He answered that it seemed to him to not be warranted in terms of the administration of justice. Number 2001 MR. GUANELI added that the [expense of the] jury trial was one thing, but he thought that the Public Defender Agency (PDA) constituted the much bigger expense. He explained that a wide range of offenses under Alaska law subject someone to fines but don't carry a right to a jury trial or a right to counsel. Examples are speeding, which has a potential $300 fine; running a red light; any number of driving offenses; possession of alcohol in a local-option area, which can have a $1,000 fine; and commercial fishing violations, with fines ranging much higher than $1,000. Alaska law has a number of precedents where fines have been imposed without carrying a right to counsel/jury trial; therefore, it is a matter of determining what rights are at stake and what social stigma is attached. MR. GUANELI said he does not believe minor consuming, at least for the first offense, carries the social stigma of being labeled a criminal. He noted that the legislature determined a number of years ago to decriminalize minor consuming. Although "we're" taking a step away from that because of the problem of minors who habitually consume alcohol, Mr. Guaneli said he thinks the record is clear that the legislature does not label that a crime; thus it does not carry with it the right to counsel or a jury trial. Number 2087 REPRESENTATIVE BERKOWITZ said "we" issue points for traffic violations, and if a certain number of points are aggregated, then the license is lost. He asked whether there are other penalties [imposed] if there are too many points. MR. GUANELI responded that loss of license is the only one. It carries with it some mandatory insurance requirements and so forth, he added. REPRESENTATIVE BERKOWITZ asked why [the committee] couldn't do some kind of "point scheme" for minors in possession [of alcohol]. MR. GUANELI replied that there are probably a lot of ways to address problems, and in the point system context there is an administrative process that leads to the revocation of a license. The reason no jury trial or right to counsel is associated with it is because there is a clear connection between the driving violations - and the points that one assesses - and one's fitness to drive; therefore, the state has a right to take one's license. MR. GUANELI said what isn't present in the minor consuming situation, and isn't present in most instances, is that nexus between simply drinking and driving. While a scheme could be conceived whereby points could be assessed, there still has to be a connection made to driving, in order to take a license, unless there is a right to a jury trial and a right to counsel. MR. GUANELI said it is a subject worth discussing, but this problem needs to be fixed now. Number 2175 REPRESENTATIVE JAMES remarked that she'd said almost the same thing when [the legislature] passed the "Use It, Lose It" law. REPRESENTATIVE BERKOWITZ withdrew Amendment [4]. CHAIR ROKEBERG asked Mr. Lindstrom whether he'd had a chance to look at [Amendment 1]. He asked if that discretionary "treatment" [language] should be left in or removed, and whether Mr. Lindstrom was going to add a fiscal note to it. Number 2214 ELMER LINDSTROM, Special Assistant, Office of the Commissioner, Department of Health and Social Services, replied that [the department] didn't object to the amendment, and it hadn't occurred to him that this might "drive" a fiscal note. He said there are no added costs. CHAIR ROKEBERG announced that [HB 179] would be held over. He asked Mr. Guaneli and Mr. Buttcane to work on it, and indicated he would be working on it as well. REPRESENTATIVE COGHILL asked about the possibility of getting the (JASAP) up and running by June 1. CHAIR ROKEBERG commented that he has another amendment that limits the JASAP program to a pilot area. Number 2273 MR. LINDSTROM said [the department] assumed JASAP programs would be "rolling out" in six to eight communities based on the requested funding, both in the budget and on the fiscal note before the committee. The communities not listed in this amendment include Juneau, the Matanuska-Susitna area, Kenai, and maybe Bethel and Dillingham. He said "we" would still like the flexibility to get in as many communities as possible with the existing resources. MR. LINDSTROM noted that previously, the committee had a truly "pilot project" bill, the therapeutic court bill, which is doing something new and has an evaluation component and so forth. Frankly, he said, the JASAP program is new technology. "We've" had the alcohol safety action program running successfully in many communities for a number of years; the courts love it, and wish there were more, in different places. MR. LINDSTROM explained that the JASAP program is essentially the same technology, and Fairbanks already had some experience with it. He said, "It will work. It does work. ... So the notion of a sunset or ... treating these as a pilot project ... doesn't make a lot of sense to us. It has proven technology." [The department] would hope to have as much flexibility to go into as many communities as possible with the resources available. CHAIR ROKEBERG stated that he was not offering an amendment because Anchorage was incorrectly added, which was an [unintended mistake]. REPRESENTATIVE JAMES said she thought she heard Mr. Lindstrom say he has enough money to do what he wants, and she asked if [the committee] wants him to do that much or not. REPRESENTATIVE BERKOWITZ pointed out that this is a question for the House Finance Committee. Number 2360 CHAIR ROKEBERG announced that HB 179 would be held over, awaiting an amendment tomorrow.
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