Legislature(2005 - 2006)CAPITOL 106
04/16/2005 09:30 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| SB90 | |
| HB34 | |
| HB238 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 90 | TELECONFERENCED | |
| += | HB 34 | TELECONFERENCED | |
| += | SB 141 | TELECONFERENCED | |
| += | HB 238 | TELECONFERENCED | |
HB 34-EXPUNGEMENT OF SET ASIDES 9:48:01 AM CHAIR SEATON announced that the next order of business was HOUSE BILL NO. 34, "An Act relating to the expungement of records relating to conviction set asides granted after suspended imposition of sentence." 9:48:29 AM REPRESENTATIVE GRUENBERG moved to adopt the committee substitute (CS) for HB 34, Version 24-LS0240\Y, Luckhaupt, 4/15/05, as a work draft. There being no objection, Version Y was before committee. 9:49:05 AM LINDA SYLVESTER, Staff to Representative Bruce Weyhrauch, Alaska State Legislature, reintroduced HB 34 on behalf of Representative Weyhrauch, sponsor. She reminded the committee that statute allows judges to suspend imposition of sentences and set aside the conviction following the defendant's completion of the conditions of that suspended sentence. Many, including some judges, have assumed that a "set aside" means that the person walks away form the criminal conviction. However, in 1995, the [Alaska] Supreme Court ruled that that's really not the case. MS. SYLVESTER stated that "criminal convictions are discoverable" on applications for a new job or apartment, or on credit references. She offered an example. The proposed legislation, Ms. Sylvester explained, would enable the set aside to "actually do what we thought it was supposed to do: let somebody ... walk away from their record of their criminal conviction." The expungement statute would breath life into the set aside statute, she said. 9:52:03 AM MS. SYLVESTER highlighted the new language in Section 1, to illustrate how the process would take place; Section 1 of Version Y read as follows: *Section 1. AS 12.55.085(e) is amended to read: (e) Upon the discharge by the court without imposition of sentence, the court may set aside the conviction and issue to the person a certificate [TO] that provides that, under state law, the person has not been convicted of a crime. The person may, within the two-year period following the issuance of the certificate, petition the court for an order sealing the records of the arrest, the judgment, the suspended imposition of sentence, and the set aside. The court shall issue the order if the court finds that the person is not likely to reoffend. The order must state that the effect of the order under state law is that the person has not been arrested, been adjudged, convicted, or received a suspended imposition of sentence or a set aside unless the person reoffends. The person shall provide the order to the Department of Public Safety and the clerk of court along with payment for the cost of sealing the records. The department and the clerk of court shall seal all records pertaining to the arrest, judgment, suspended imposition of sentence, conviction, and set aside. The records sealed may be accessed only by law enforcement or court officers for the purpose of investigating crimes or assisting with criminal prosecutions [EFFECT]. MS. SYLVESTER emphasized the importance of giving judges control over the issuance of an expungement order. She noted that the federal government has an expungement statute for certain federal crimes. When a crime is expunged, a person is able to check "no" where an application asks if he/she has ever been convicted of a crime. 9:54:54 AM MS. SYLVESTER indicated that some states' expungement orders totally erase the conviction, while other states' expungement statutes allow [the record to be readily accessible by the criminal justice system. She said Representative Weyhrauch's position is that Alaska's expungement statute should go far and allow the person to have his/her record totally erased; however, that presents some problems. First, the criminal justice system has an interest in retaining the sealed records. Second, the courts disseminate information by computer on discs and various databases, and it would be "physically impossible for them to collect that information back." MS. SYLVESTER said she has language ready for an amendment to Version Y that would specify that the state could not be held responsible for "information that was disseminated or broadcast in the world prior to the date of the expungement." Ms. Sylvester described [HB 34] as "a little bit of grace that we would like to offer society." 9:59:19 AM MS. SYLVESTER, in response to a question from Representative Gardner, noted that those crimes that would be expunged are tied to those crimes that current statute allows for set asides. She listed those major crimes that would be excluded: drunk driving, any degree of homicide, manslaughter, kidnapping - with the exception of noncustodial interference, reckless endangerment, stalking, robbery, all forms of sexual assault, unlawful exploitation of a minor, indecent exposure, and arson. 10:01:01 AM REPRESENTATIVE LYNN questioned if this would really be in the interest of society. He said he was taught that actions have consequences. 10:01:39 AM MS. SYLVESTER responded that "someone can commit a minor infraction of the law and society will never let them move on from that." She offered an example. 10:02:46 AM REPRESENTATIVE LYNN said there is usually a place on an application that allows for explaining the circumstances of a crime. 10:03:14 AM MS. SYLVESTER replied that it's true; however, most often [a prospective employer, for example] won't look at the circumstances. She reiterated that the current set aside statute leads people to believe that "they walk away from it," but they only get a certificate that leaves out the actual word "expungement." 10:04:41 AM CHAIR SEATON offered clarification. 10:06:46 AM REPRESENTATIVE GRUENBERG said he strongly supports the policy behind the bill, but he sees a lot of problems with the way the bill is currently drafted. He stated his concern that no one from the Department of Law is present to testify. He requested a copy of the citation from the previously mentioned Alaska Supreme Court case. He noted that the fiscal note has "raised a lot of problems," yet no one is present from the Department of Public Safety. 10:07:21 AM CHAIR SEATON emphasized that he would feel uncomfortable moving [HB 34] without giving a copy of [Version Y] to those who generated the fiscal note. 10:07:59 AM REPRESENTATIVE GRUENBERG remarked that usually the defendant has the burden of proof. He referred to page 1, line 11, which read: "The court shall issue the order if the court finds that the person is not likely to reoffend." He noted that the language doesn't specifically say who has the burden of proof on that issue. 10:09:08 AM REPRESENTATIVE GRUENBERG said his second concern is in regard to "the applicability" and effective dates. For example, page 2, line 10, addresses destruction, but he noted, "You don't destroy the records here, all you do is seal them." He expressed his wish that the House State Affairs Standing Committee deal with these issues before moving the bill out of committee. 10:10:12 AM CHAIR SEATON stated his intent to send any amendments to the Alaska State Troopers and the court system for comment and revised fiscal notes. He reviewed that ideas for possible amendments are to address preponderance of evidence, limitation on liability to the state, and applicability. 10:11:10 AM REPRESENTATIVE GRUENBERG said he would like to work with anyone else interested to come up with a new committee substitute. 10:11:53 AM CHAIR SEATON suggested that a word change may be needed on page 2, line 10, regarding the sealing of documents. CHAIR SEATON announced that HB 34 was heard and held.
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