Legislature(2009 - 2010)BUTROVICH 205
04/15/2010 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB348 | |
| HB381 | |
| HB324 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 36 | TELECONFERENCED | |
| += | HB 324 | TELECONFERENCED | |
| + | HB 348 | TELECONFERENCED | |
| + | HB 381 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 324-FAILURE TO APPEAR; RELEASE PROCEDURES
3:34:06 PM
CHAIR FRENCH announced the consideration of HB 324 and noted
that the committee heard the companion Senate bill, SB 252, [in
February]. [CSHB 324(FIN) was before the committee.]
SUSAN MCLEAN, Director, Criminal Division, Department of Law
(DOL), said HB 324 relates to bail and conditions of release.
She reported that DOL has worked closely with the chair of this
committee, the House, the court system, and the defense bar to
arrive at a consensus. HB 324 is very similar to the companion
bill, SB 252, but there have been changes since the committee
heard the Senate bill. She said she would put the major changes
on the record.
3:35:06 PM
Section 1 pertains to the crime of failure to appear. Page 2,
lines 4-5, provides a mental state for the crime of failure to
appear whereas the Senate version didn't specify a mental state
for failing to appear. HB 324 requires the state to prove that
the person knew that he or she had to appear at a specific time
and place and that the person acted with criminal negligence in
failing to do so.
Section 3 pertains to release procedures. The original version
required the court to prepare a report on previous applications
for bail review when it was considering a subsequent
application. The court thought that was burdensome and DOL
agreed to remove that section.
Section 4 pertains to release before trial. Page 7, line 8,
talks about when the court is making a finding about the amount
of bail or the conditions that are going to be imposed. In
certain circumstances there's a rebuttable presumption that
there are no conditions of release that would assure a person's
appearance. Page 7, lines 13-15 narrows the types of
circumstances to which the rebuttable presumption can apply. The
previous version would have applied to anyone who has a prior
felony conviction and is before the court and charged with a new
felony. The new paragraph (B) is limited to individuals who are
charged with a crime against a person under AS 11.41 and have
been previously convicted of a crime against a person, which is
a significantly smaller universe of people.
Section 5 pertains to third-party custodians. The previous
version said that the court had to personally address the
proposed third-party custodian. That has been changed to make it
clear that the court may also use a telephone or other approved
technology. The previous version also said that anyone who was
convicted of a misdemeanor or felony within the past five years
could not be appointed as a third-party custodian. This was
particularly burdensome for rural courts because it would
critically limit the pool. That was changed so that only
individuals who have been convicted of a crime against a person
within the past three years would be prohibited from serving as
a third-party custodian.
3:39:09 PM
Section 10 pertains to release after conviction pending
sentencing and appeal. The previous version said that a person
previously convicted of a felony who has just been convicted of
a class B or class C felony and is awaiting sentencing or
appeal, could not be released pending sentencing or appeal. That
has been changed to now apply only to a person who has been
convicted of class B felony. Previously the bill provided that
people convicted of class A and unclassified felonies were not
subject to release at the moment that the jury returned a
verdict. This just extends it to class B felonies.
MS. MCLEAN said those are the major changes since the committee
last saw the bill.
CHAIR FRENCH directed attention to a conceptual amendment that
is largely based on provisions in HB 283. It pertains primarily
to Section 4 of HB 324, but changes to Sections 3 and 5 may be
necessary. He asked Mr. Svobodny to comment on the general idea.
3:41:12 PM
RICK SVOBODNY, Deputy Attorney General, Criminal Division,
Department of Law (DOL), said he knows that the committee is
looking primarily at the addition of paragraph (13) from Section
4 of [HB 283]. Although DOL thinks it's a good idea to have a
condition of sentencing or a suspended imposition of sentence
that would prohibit someone from consuming alcohol, the
provision is written in a manner that causes some legal concern.
Basically it says that the court can order the defendant to
refrain from consuming alcohol for a period of time including
the term of the sentence and as a condition of probation. The
judge already has the ability to prohibit somebody from
consuming alcohol as a condition of probation, but that decision
is based on a finding that alcohol provides a nexus to the
crime, not by clear and convincing evidence as subparagraphs (A)
and (B) would require. The legal concern is that including the
word probation takes away the power of the court to do
probation.
3:43:06 PM
SENATOR EGAN joined the committee.
MR. SVOBODNY suggested the committee drop the words "as a
condition of probation" from page 3, lines 16-17.
CHAIR FRENCH said he'd keep that under advisement. He asked if
the matter gets more or less complicated if you consider Section
3 on page 2, which relates to Title 4. [HB 283 Sec. 3. amends AS
04.16.160(a).]
3:44:23 PM
MR. SVOBODNY said he didn't have a conceptual problem with
including Section 3, but he didn't want to make a decision on
the fly.
CHAIR FRENCH said he'd hold it in abeyance.
SENATOR WIELECHOWSKI read Section 3 and observed that it adds AS
12.55.015(a)(13), which is Section 4.
3:46:54 PM
MR. SVOBODNY said he believes that's right.
CHAIR FRENCH said it adds that a judge can order a person not to
consume alcohol as part of a sentence for perhaps another crime.
SENATOR WIELECHOWSKI said it seems eminently reasonable that if
a judge orders a person not to consume alcohol, they shouldn't
be able to buy it either.
MR. SVOBODNY expressed reluctance to shoot from the hip because
this involves working back through several statutes.
3:48:42 PM
CHAIR FRENCH asked what the penalty is for a violation of AS
04.16.160. [An answer was not forthcoming.]
SENATOR COGHILL observed that the court is already doing this to
some degree and it sounds like this would be more rather than
less restrictive. He said he believes that the sponsor was
trying to put in place a mark on a driver's license as an
enforcement mechanism. Section 1, which amends AS 04.16.047(a),
talks about producing your license in order to purchase alcohol,
so these restrictions would probably be more appropriate to the
seller of alcohol than to the enforcer of the provision, he
said.
CHAIR FRENCH reviewed Section 1 and observed that it's in part
aimed at enforcement by the private sector.
MR. SVOBODNY pointed out that AS 04.16.160(b) supports Senator
Coghill's statement.
3:51:41 PM
SENATOR WIELECHOWSKI referenced paragraph (13) on page 3 of HB
283 and suggested that including the phrase "order the defendant
to refrain from consuming or purchasing alcoholic beverages" may
get to the sponsor's intent. That would be a violation of the
court order and the sentence or penalty would be ordered by the
judge.
CHAIR FRENCH highlighted that this changes AS 04.16.160 and he
still didn't know what the penalty is for violating that
section.
MR. SVOBODNY said he believes the penalty is in [subsection (b)]
and it's that you get the letter "A" on your driver's license.
REPRESENTATIVE HARRY CRAWFORD, sponsor of HB 283, chimed in that
the penalty is a red slash on your license and a $1,000 civil
fine.
3:53:07 PM
CHAIR FRENCH asked Mr. Svobodny if he agrees that there's a
civil enforcement to section .160 and there's also the red
slash.
MR. SVOBODNY indicated he wasn't willing to give an answer.
3:53:24 PM
CHAIR FRENCH said he'd hold that thought for the time being. He
then asked Mr. Svobodny his view of Section 5 in HB 283.
MR. SVOBODNY said it appears to be a savings clause for the type
of concern he raised earlier about probation. The problem is
that if you read Section 4 to be anything other than sentencing,
the burden of proof is substantially different - it's by clear
and convincing evidence. The state doesn't have a problem with
it being a condition of the sentence just like the conditions in
paragraphs 1-12, but when you move on to areas where judges
generally already have that authority it restricts the court's
ability to impose alcohol restrictions as a condition of
probation. Suspended imposition of sentence is actually a form
of probation so that is also a concern. DOL wants the court to
have the ability to make restrictions on alcohol a condition of
the sentence. For example, if somebody had a $10,000 fine and no
jail time, the court could impose that as an additional
condition of the sentence.
MR. SVOBODNY summarized that he is concerned about the
probationary types of sentences, like a suspended imposition of
sentence or probation itself.
CHAIR FRENCH said he still didn't have a clear idea of his view
of Section 5.
MR. SVOBODNY said it's a savings clause to allow judges to order
the prohibition against consumption of alcohol as a condition of
sentence.
CHAIR FRENCH asked if he's saying that he would prefer that the
sentence end after the word "sentence" rather than after
"probation."
At ease from 3:56 p.m. to 3:58 p.m.
CHAIR FRENCH reconvened the meeting and asked Mr. Svobodny what
wisdom and insight he and Ms. McLean had gained in the last few
minutes.
MR. SVOBODNY suggested that the language on page 3, line 15 [HB
283] should read, "order the defendant to refrain from consuming
alcoholic beverages during the term of the sentence." He would
delete the remainder of the paragraph, whereas Ms. McLean would
leave that remaining language intact. In subparagraph (A) she
would say, "the defendant was convicted of a felony." and drop
the rest of the language. In subparagraph (B) she would say,
"the defendant was convicted of a misdemeanor." and drop the
rest of the language.
MS. MCLEAN said if she were doing the rewrite it would read as
follows:
(13) order the defendant to refrain from consuming
alcoholic beverages for a period of time, including
during the term of any sentence and as a condition of
probation, suspended sentence, and suspended
imposition of sentence, if
(A) the defendant was convicted of a felony
and the court finds that the defendant's
conduct constituting the offense was
substantially influenced by consumption of
alcoholic beverages.
(B) the defendant was convicted of a
misdemeanor and the court finds, based on
the defendant's history, there is reason to
believe….
She added that although that is what she would suggest, she
would defer to Mr. Svobodny who is her boss.
4:00:47 PM
MR. SVOBODNY pointed out that the problem with that suggestion
is that judges oftentimes want to impose no alcohol as a
condition of probation. Although the person may have been sober
when they committed the crime, they may have a long history
before the court of alcohol-related offenses. As long as there
is a nexus to the person's rehabilitation, the court can do
that. Ms. McLean's suggestion is a nexus to the crime.
4:01:41 PM
SENATOR WIELECHOWSKI described his preference for the amendment
[using page 3, paragraph (13) of HB 283 as a guideline]:
(13) order the defendant to refrain from consuming or
purchasing alcoholic beverages for a period of time if
(A) the defendant was convicted of a felony and
the court finds that the defendant's conduct
constituting the offense was substantially influenced
by the consumption of alcoholic beverages; or
(B) the defendant was convicted of a misdemeanor
and the court finds that, based on the defendant's
history…"
MS. MCLEAN said she now understands what Mr. Svobodny was
saying, which is that there may be a crime where the person was
not drinking but they have a pattern of criminal, often felony,
behavior and that behavior generally involves drinking. Under
current case law it's possible for the court to impose a no
drinking condition even though alcohol wasn't involved this
time. The court wants the person to survive probation and
recognizes that the person probably won't if they drink. Mr.
Svobodny is infinitely quick and he would put the period after
the word "felony" and after the word "misdemeanor," she said.
CHAIR FRENCH asked Mr. Svobodny what his preference would be for
the amendment.
4:03:45 PM
SENATOR MCGUIRE joined the committee.
MR. SVOBODNY said he starts from the premise that the entire
section is about what a judge can do as a sentence - like impose
jail time, a fine, or restitution. He would suggest it say,
"order the defendant to refrain from consuming or purchasing
alcoholic beverages."
SENATOR WIELECHOWSKI said that keeps it simple.
CHAIR FRENCH agreed and asked Senator Wielechowski if he was
ready to state the amendment.
SENATOR WIELECHOWSKI confirmed that he was ready.
CHAIR FRENCH asked Mr. Svobodny if he was comfortable with
Section 3, Section 4 as discussed, and Section 5. He noted that
a title change would be necessary in any event.
Ms. McLean indicated they were comfortable.
MR. SVOBODNY stated for the record that Section 3, Section 4 as
amended, and Section 5 are okay with the state.
4:06:16 PM
SENATOR WIELECHOWSKI moved a conceptual amendment to include
from CSHB 283: Section 3 and Section 5 as currently written and
Section 4 as follows:
AS 12.55.015(a) would have a new paragraph (13) that
says, "order the defendant to refrain from consuming
or purchasing alcoholic beverages."
CHAIR FRENCH found no objection, and announced that conceptual
Amendment 1 was adopted and that there would be a title change
as necessary to conform to the amendment as passed. Finding no
further committee discussion, he asked for a motion.
SENATOR WIELECHOWSKI moved to report CS for HB 324, as
conceptually amended, from committee with individual
recommendations, attached fiscal note, and the recognition that
a title change would be necessary.
CHAIR FRENCH announced that without objection, SCS CSHB 324(JUD)
moved from the Senate Judiciary Standing Committee.
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