Legislature(2007 - 2008)CAPITOL 120
05/09/2007 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB232 | |
| HB172 | |
| HJR17 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| HJR 17 | |||
| + | HB 172 | TELECONFERENCED | |
| + | HB 232 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 232 - ALCOHOL SALE/PURCHASE/DISTRIBUTION 1:27:59 PM CHAIR RAMRAS announced that the first order of business would be HOUSE BILL NO. 232, "An Act relating to the sale, distribution, and purchase of alcoholic beverages; relating to a state database for records of certain purchases of alcoholic beverages; relating to the relocation of a license to sell alcoholic beverages; relating to procedures for local option elections for control of alcoholic beverages; and providing for an effective date." [Before the committee was CSHB 232(CRA).] 1:28:22 PM MICHAEL PAWLOWSKI, Staff to Representative Kevin Meyer, Alaska State Legislature, said on behalf of Representative Meyer, sponsor, that HB 232 contains recommendations from the Alaska Rural Justice and Law Enforcement Commission (ARJLEC) relating to the clean-up of statutes on bootlegging, as well as two other substantive provisions. He spoke first about proposed AS 04.06.095, the creation of a statewide database to track written alcohol orders that would allow licensees to more easily comply with the law, by ensuring the alcohol shipments going to "wet and damp communities" were consistent with the law. He then commented on the creation of an alcohol beverage delivery pilot project, a central hub for the distribution of alcohol. Finally, he relayed that the sponsor had promised the House Community and Regional Affairs Standing Committee to bring up members' concerns regarding proposed AS 04.16.035, "Possession of ingredients for homebrew ...". Mr. Pawlowski said Representative Salmon was concerned the phrase "with the intent to use" would lead to over reaching by law enforcement officials. CHAIR RAMRAS asked if these named ingredients were viewed as precursors, similar to the perception of ingredients for the manufacture of methamphetamines. MR. PAWLOWSKI responded that these ingredients' being viewed as precursors is the reason for Representative Salmon's concern. 1:31:12 PM ANNE CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), reported that Deputy Attorney General Craig Tillery, State Co- Chair of ARJLEC, had testified to both bodies of the legislature in favor of HB 232. She mentioned that the ARJLEC membership voted unanimously for all the provisions of HB 232. 1:31:45 PM REPRESENTATIVE HOLMES asked for clarification that HB 232 is consistent with the findings of the ARJLEC and that there are no major differences. MS. CARPENETI responded that HB 232 is consistent with those findings. She commented that in a prior house committee meeting, the ARJLEC membership offered their support of the bill. She also noted that the ARJLEC commissioners have testified of their desire to stem the flow of bootleg alcohol into their communities. CHAIR RAMRAS expressed his familiarity with the business of small liquor stores sending pallets of alcohol to rural Alaska. He asked if the DOL agreed that Representative Salmon had a legitimate concern that overzealous DPS [Department of Public Safety] officers or Village Public Safety Officers (VPSOs) might suspect these ingredients [sugar, malt, yeast] as homebrew precursors, and request a [search] warrant. MS. CARPENETI replied that in order to request a search warrant, there must be probable cause that a person has these ingredients with the "specific intent" to make an alcoholic beverage. She pointed out that a "specific intent" crime is particularly difficult to prove and the DOL does not believe that "specific intent" will be used often because of the problems with proof. She said the DOL supported proposed AS 04.16.035 because, as in similar circumstances with precursors for methamphetamine ingredients and burglary tools, it may be useful in certain circumstances. CHAIR RAMRAS asked if the language [in proposed AS 04.16.035] met with Representative Salmon's satisfaction. REPRESENTATIVE DAHLSTROM offered her understanding that should Representative Salmon have a preference, he would want [proposed AS 04.16.035] removed. She had relayed to Representative Salmon that all of these ingredients were found in her home, as well. Representative Salmon, she noted, was concerned that people who live in a rural area often need to purchase in bulk. She said she was satisfied, given the wording "with the intent to use", that overreaching by law enforcement would not be an issue. REPRESENTATIVE HOLMES asked whether a distributor of the ingredients [yeast, sugar, malt] would refuse to ship as a result of the provision. MS. CARPENETI replied that she did not think so, assuming that it must be common for people in rural areas to order in bulk. She reminded the committee of "the intent to use" clause. She allowed there had not been any untoward prosecution for cold medicine, even though they are a precursor ingredient for methamphetamine production. REPRESENTATIVE HOLMES asked whether there had been any problem with rural communities receiving cold medicine or other supplies [deemed precursor ingredients] because suppliers would not ship to them. MS. CARPENETI said she had not heard of any concerns but offered to research the issue further. REPRESENTATIVE DAHLSTROM said the shippers are interested in selling as much food as possible and if they saw an increase in the sale of these ingredients, they would contact the proper authorities. 1:37:38 PM KAREN BITZER, Special Assistant, Alaska Rural Justice and Law Enforcement Commission (ARJLEC), updated the committee on the work of the ARJLEC. She explained that HB 232 contains some of the recommendations from the ARJLEC, which is pleased for the support of these ideas. She relayed that the ARJLEC feels this is an important step to support those communities which have elected to remain dry. CHAIR RAMRAS conveyed that there is broad committee support for the bill. CHAIR RAMRAS, after asking if there was any more testimony, closed public testimony on HB 232. CHAIR RAMRAS moved to adopt Amendment 1, which read [original punctuation provided]: Page 2, following line 5: Insert new bill section to read: "Sec. 2. AS 04.11.010(a) is amended to read: (a) Except as provided in AS 04.11.020, a person may not knowingly manufacture, sell, offer for sale, possess for sale or barter, traffic in, or barter an alcoholic beverage unless under license or permit issued under this title." Renumber the following bill sections accordingly. REPRESENTATIVE DAHLSTROM objected for discussion. CHAIR RAMRAS asked if inserting the word "knowingly" was in response to the concerns of Representative Salmon. MR. PAWLOWSKI specified that this issue had been brought up after the House Community and Regional Affairs Standing Committee heard the bill. He disclosed that the [sponsor] discovered that judges in different parts of the state are inserting a different "mental state" into their interpretation of the statutes. He stated that the DOL suggested [Amendment 1] to clarify that the "mental state" is supposed to be "knowingly". The committee took an at-ease from 1:42 p.m. to 1:44 p.m. 1:44:05 PM MR. PAWLOWSKI, in response to questions, relayed that Amendment 1 does not address language currently in the bill, and cited AS 04.11.010(a) as a blanket provision, "your kind of premise bootleg statute." The language of proposed Amendment 1 will be inserted [after Section 1] of the bill, where it begins referencing AS 04.11. CHAIR RAMRAS asked for a legal definition of the word "knowingly". REPRESENTATIVE HOLMES offered her understanding that existing statute doesn't reference a mental state. She surmised that not all [Alaska] courts are using the same standard, and this is an amendment to make sure they all do. MR. PAWLOWSKI concurred that this is the intent of Amendment 1. MS. CARPENETI, in response to a question, relayed that Title 11 provides that every crime which does not have a culpable mental state specifically provided, allow the implied culpable mental state for action to be "knowingly". She explained that a different standard must be specified, for example, criminally negligent. She indicated that although most judges are interpreting this statute with the mental state of "knowingly", the Bethel area judges are not. The standard of "knowingly" is easier to prove than "intentionally", she remarked and acknowledged that it does not make a lot of difference in this statute, but the difference is critical in other statutes. REPRESENTATIVE GRUENBERG asked where it discusses mental state in Title 4. MS. CARPENETI said that Title 4 defines the mental states of "knowingly" and "criminal negligence" but does not define "intentionally". REPRESENTATIVE GRUENBERG reflected that the standard is not the same in Title 4 as in Title 11. He recalled that a "reckless" element is required if nothing else is defined. MS. CARPENETI responded that that is not correct. MR. PAWLOWSKI offered that [AS 11.81.610(b)] provides that when a mental state is not described, the mental state regarding conduct is "knowingly", and the mental state regarding circumstances [or results] is "recklessly". Therefore, since the issue pertains to conduct, the mental state would be "knowingly". 1:49:33 PM REPRESENTATIVE GRUENBERG, after reading that statute out loud, offered his understanding that under Title 11, the question of whether someone is under license or permit would be a circumstance; therefore, a prosecutor would not have to show that the seller knew he/she did not have a license. If the person acted "recklessly", that action would be sufficient to prove the crime. He projected that this is key, as someone may be selling and could say they did not know, but in a commercial situation, selling alcohol and acting "recklessly" without a license should be criminal. MS. CARPENETI responded that "knowingly" modifies manufacture in this regard. She agreed with Representative Gruenberg that "recklessly" would be the culpable mental state, which would be applied whether or not the individual had a license. However, the conduct of manufacturing alcohol would be "knowingly." REPRESENTATIVE GRUENBERG, in response to a question, surmised that is key to what must be proven by the prosecution. He explained that the individual would have to "knowingly" sell the liquor, but the individual is acting "recklessly" by not checking to see if a license is necessary. He asked if Ms. Carpeneti is certain [of her explanation of the statute, and its application]. MS. CARPENETI responded that she is certain. REPRESENTATIVE DAHLSTROM removed her objection. REPRESENTATIVE GRUENBERG offered his belief that HB 232 should be clarified so that the issue concerning an awareness of a current permit would be defined as "recklessly." MS. CARPENETI expressed satisfaction with the current draft of HB 232. CHAIR RAMRAS again moved to adopt Amendment 1 [text provided previously]. There being no further objection, Amendment 1 was adopted. 1:52:53 PM REPRESENTATIVE DAHLSTROM moved to report CSHB 232(CRA), as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 232(JUD) was moved out of committee.
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