Legislature(2003 - 2004)
04/02/2004 02:55 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
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 2, 2004
2:55 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Jim Holm
Representative Dan Ogg
Representative Ralph Samuels
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
Representative Tom Anderson, Vice Chair
COMMITTEE CALENDAR
PRESENTATION BY ALASKA JUDICIAL COUNCIL ON THE FELONY PROCESS IN
ALASKA
- HEARD [See the 1:12 p.m. minutes for this date]
HOUSE BILL NO. 244
"An Act relating to the Code of Criminal Procedure; relating to
defenses, affirmative defenses, and justifications to certain
criminal acts; relating to rights of prisoners after arrest;
relating to discovery, immunity from prosecution, notice of
defenses, admissibility of certain evidence, and right to
representation in criminal proceedings; relating to sentencing,
probation, and discretionary parole; amending Rule 16, Alaska
Rules of Criminal Procedure, and Rules 404, 412, 609, and 803,
Alaska Rules of Evidence; and providing for an effective date."
- HEARD AND HELD
HOUSE BILL NO. 438
"An Act relating to motorists moving over or slowing down for
emergency vehicles."
- BILL HEARING POSTPONED TO 4/5/04
PREVIOUS COMMITTEE ACTION
BILL: HB 244
SHORT TITLE: CRIMINAL LAW/SENTENCING/PROBATION/PAROLE
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
04/04/03 (H) READ THE FIRST TIME - REFERRALS
04/04/03 (H) JUD, FIN
04/14/03 (H) JUD AT 1:00 PM CAPITOL 120
04/14/03 (H) Heard & Held
04/14/03 (H) MINUTE(JUD)
04/25/03 (H) JUD AT 1:00 PM CAPITOL 120
04/25/03 (H) -- Meeting Postponed --
05/07/03 (H) JUD AT 1:00 PM CAPITOL 120
05/07/03 (H) Scheduled But Not Heard
05/08/03 (H) JUD AT 3:30 PM CAPITOL 120
05/08/03 (H) Heard & Held
05/08/03 (H) MINUTE(JUD)
05/09/03 (H) JUD AT 1:00 PM CAPITOL 120
05/09/03 (H) Moved CSHB 244(JUD) Out of Committee
05/09/03 (H) MINUTE(JUD)
05/12/03 (H) JUD RPT CS(JUD) NT 1DP 1DNP 4NR
05/12/03 (H) DP: SAMUELS; DNP: GARA; NR: HOLM,
05/12/03 (H) OGG, GRUENBERG, MCGUIRE
05/13/03 (H) FIN AT 1:30 PM HOUSE FINANCE 519
05/13/03 (H) -- Meeting Canceled --
05/14/03 (H) FIN AT 8:30 AM HOUSE FINANCE 519
05/14/03 (H) Heard & Held
05/14/03 (H) MINUTE(FIN)
05/15/03 (H) FIN AT 8:30 AM HOUSE FINANCE 519
05/15/03 (H) Moved CSHB 244(JUD) Out of Committee
05/15/03 (H) MINUTE(FIN)
05/15/03 (H) FIN RPT CS(JUD) NT 2DNP 4NR 4AM
05/15/03 (H) DNP: KERTTULA, FOSTER; NR: MOSES,
05/15/03 (H) CHENAULT, HARRIS, WILLIAMS; AM: HAWKER,
05/15/03 (H) STOLTZE, BERKOWITZ, WHITAKER
05/15/03 (H) RETURNED TO JUD COMMITTEE
05/15/03 (H) IN JUDICIARY
03/19/04 (H) JUD AT 1:00 PM CAPITOL 120
03/19/04 (H) Heard & Held
03/19/04 (H) MINUTE(JUD)
03/24/04 (H) JUD AT 1:00 PM CAPITOL 120
03/24/04 (H) Heard & Held
03/24/04 (H) MINUTE(JUD)
03/30/04 (H) JUD AT 1:00 PM CAPITOL 120
03/30/04 (H) Heard & Held
03/30/04 (H) MINUTE(JUD)
03/30/04 (H) JUD AT 3:00 PM CAPITOL 120
03/30/04 (H) -- Meeting Canceled --
03/31/04 (H) JUD AT 1:00 PM CAPITOL 120
03/31/04 (H) Heard & Held
03/31/04 (H) MINUTE(JUD)
04/02/04 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
DEAN J. GUANELI, Chief Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 244, presented some
proposed amendments on behalf of the administration, and
provided comments on other proposed amendments.
LINDA WILSON, Deputy Director
Central Office
Public Defender Agency (PDA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: During discussion of the proposed
amendments to HB 244, responded to questions and provided
comments.
VANESSA TONDINI, Staff
to Representative Lesil McGuire
House Judiciary Standing Committee
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of the proposed
amendments to HB 244, offered clarifying comments.
SUSAN A. PARKES, Deputy Attorney General
Central Office
Criminal Division
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of the
proposed amendments to HB 244.
ACTION NARRATIVE
TAPE 04-57, SIDE A
Number 0001
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting back to order at 2:55 p.m. Representatives
McGuire, Samuels, and Gruenberg were present at the call back to
order. Representatives Holm, Ogg, and Gara arrived as the
meeting was in progress. [For the presentation by the Alaska
Judicial Council see the 1:12 p.m. minutes for this date.]
HB 244 - CRIMINAL LAW/SENTENCING/PROBATION/PAROLE
Number 0087
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 244, "An Act relating to the Code of Criminal
Procedure; relating to defenses, affirmative defenses, and
justifications to certain criminal acts; relating to rights of
prisoners after arrest; relating to discovery, immunity from
prosecution, notice of defenses, admissibility of certain
evidence, and right to representation in criminal proceedings;
relating to sentencing, probation, and discretionary parole;
amending Rule 16, Alaska Rules of Criminal Procedure, and Rules
404, 412, 609, and 803, Alaska Rules of Evidence; and providing
for an effective date."
[Before the committee, adopted as a work draft on 3/19/04, was a
proposed committee substitute (CS) labeled 04-0033, 1/16/2004.]
CHAIR McGUIRE relayed that the committee would begin discussion
of proposed amendments.
Number 0102
DEAN J. GUANELI, Chief Assistant Attorney General, Legal
Services Section-Juneau, Criminal Division, Department of Law
(DOL), directed attention to Amendment 1, which contained a
handwritten change and read [with original punctuation
provided]:
Pages 15-16, Section 27.
Delete the entire contents of the section and insert
instead:
AS 47.12.310 is amended by adding a new subsection to
read:
(k) A state or municipal agency or authorized
employee, other than a state or municipal law
enforcement agency under (c) of this section, may
disclose to the public information regarding a case as
may be necessary to protect the safety of the public,
provided the disclosure is authorized by regulations
adopted by the department.
Number 0229
REPRESENTATIVE SAMUELS made a motion to adopt Amendment 1.
There being no objection, Amendment 1 was adopted.
MR. GUANELI directed attention to Amendment 2, which read
[original punctuation provided]:
Page 8, after line 18:
Insert the following:
"*Sec. 15. AS 12.25.150(b) is repealed and
reenacted to read:
(b) Immediately after an arrest, a prisoner
has the right to (1) telephone or otherwise
communicate with the prisoner's attorney; (2)
telephone or otherwise communicate with any relative
or friend; (3) an immediate visit from an attorney at
law entitled to practice in the courts of Alaska
requested by the prisoner; and (4) a visit from a
relative or friend requested by the prisoner. This
subsection does not provide a prisoner with the right
to initiate communication or attempt to initiate
communication under circumstances prescribed under AS
11.56.755."
Renumber the following bill sections accordingly.
Number 0252
REPRESENTATIVE SAMUELS made a motion to adopt Amendment 2.
Number 0260
REPRESENTATIVE GRUENBERG objected. He offered his recollection
that the committee addressed this proposed change to statute
last year and rejected it.
Number 0299
REPRESENTATIVE SAMUELS withdrew Amendment 2, but mentioned that
he would offer it again at a later time.
MR. GUANELI directed attention to Amendment 3, which read
[original punctuation provided]:
Page 9, lines 2 and 3: Delete all material.
Page 9, line 4: Delete "(4)" and replace it with
"(2)"
Page 9, line 30 to Page 10, line 1: Delete "and
inform the prosecution of the category of offense to
which the privilege applies: a higher level felony, a
lower level felony, or a misdemeanor"
Number 0417
CHAIR McGUIRE made a motion to adopt Amendment 3. There being
no objection, Amendment 3 was adopted.
MR. GUANELI directed attention to Amendment 4, which read
[original punctuation provided]:
Page 8, line 9 - 13:
Delete all material and insert the following"
"(4) the force applied was the result of
using a dangerous instrument that the person claiming
the defense of justification possessed while
(A) acting alone or with others to
further a felonycriminal [sic] objective of the person
or one or more other persons; or
(B) participating in a felony
transaction or purported transaction, or in immediate
flight from a felony transaction or purported
transaction in violation of AS 11.71.
MR. GUANELI explained that Amendment 4 would narrow the self-
defense provision and conform it to the Senate version.
Number 0476
CHAIR McGUIRE made a motion to adopt Amendment 4.
Number 0480
REPRESENTATIVE GRUENBERG objected. He made a motion to amend
Amendment 4 such that "deadly weapon" replace "dangerous
instrument".
Number 0487
LINDA WILSON, Deputy Director, Central Office, Public Defender
Agency (PDA), Department of Administration (DOA), relayed that
that language change has been made to the Senate version.
MR. GUANELI concurred, and said that the DOL has no objection to
the amendment to Amendment 4.
Number 0569
CHAIR McGUIRE asked whether there were any objections to the
amendment to Amendment 4. There being none, Amendment 4 was
amended.
REPRESENTATIVE GARA observed that Amendment 4, as amended,
appears to affect more than lines 9-13 of page 8.
Number 0600
REPRESENTATIVE GRUENBERG made a motion to adopt a second
amendment to Amendment 4, as amended, such that "9" be changed
to "7"; thus making Amendment 4, as amended, apply to page 8,
lines 7-13. There being no objection, the second amendment to
Amendment 4, as amended, was adopted.
[Following was a brief discussion regarding which version of the
bill was before the committee, and whether Amendment 4, as
amended, pertained to that version.]
Number 0721
VANESSA TONDINI, Staff to Representative Lesil McGuire, House
Judiciary Standing Committee, Alaska State Legislature,
clarified that the version before the committee was the proposed
CS, labeled 04-0033, 1/16/2004, and that Amendment 4, as
amended, did pertain to that version.
Number 0743
CHAIR McGUIRE asked whether there were any further objections to
Amendment 4, as amended. There being none, Amendment 4, as
amended, was adopted.
MR. GUANELI directed attention to Amendment 5, which read
[original punctuation provided]:
Delete Page 13, lines 7-10
Insert in its place:
(s) In a prosecution under (a) of this section, a
person may introduce evidence of having consumed
alcohol before operating or driving the motor vehicle,
aircraft or watercraft, to rebut or explain the
results of a chemical test, but it is not a defense
that the chemical test did not measure the blood
alcohol at the time of the operating or driving.
Add a new section and renumber other sections
accordingly:
*Sec.__. AS 28.35.030(a) is amended to read:
(a) A person commits the crime of driving while
under the influence of an alcoholic beverage,
inhalant, or controlled substance if the person
operates or drives a motor vehicle or operates an
aircraft or a watercraft
(1) while under the influence of an
alcoholic beverage, intoxicating liquor, inhalant, or
any controlled substance;
(2) if [WHEN], as determined by a chemical
test taken within four hours after the alleged offense
was committed, there is 0.08 percent or more by weight
of alcohol in the person's blood or 80 milligrams or
more of alcohol per 100 milliliters of blood, or if
[WHEN] there is 0.08 grams or more of alcohol per 210
liters of the person's breath; or
(3) while the person under the combined
influence of an alcoholic beverage, an intoxicating
liquor, an inhalant, or [AND] a controlled substance.
MR. GUANELI explained that the first part of Amendment 5 is in
response to concerns raised by Representative Gara about the
current language in [Section 22 of the proposed CS], and that
the second part of Amendment 5 "is based on additional research
involving the case that created the problem." He mentioned,
however, that Amendment 5 ought to be amended to address
concerns raised by the drafters in Legislative Legal and
Research Services after review of [changes proposed to the
Senate version].
Number 0821
CHAIR McGUIRE made a motion to adopt Amendment 5.
Number 0854
REPRESENTATIVE GRUENBERG objected [for the purpose of
discussion].
MR. GUANELI suggested amending Amendment 5 such that proposed
subsection (a)(2) include "and" before the first "if", and that
the second "if" be deleted.
Number 0877
CHAIR McGUIRE made a motion to amend Amendment 5 as suggested by
Mr. Guaneli.
Number 0904
REPRESENTATIVE GARA objected for the purpose of discussion. He
asked whether this amendment to Amendment 5 has any substantive
effect.
MR. GUANELI said that although Amendment 5 itself creates a
substantive change, the amendment to Amendment 5 is merely a
technical change.
Number 0948
CHAIR McGUIRE, after noting that there were no further
[objections], announced that the amendment to Amendment 5 was
adopted.
REPRESENTATIVE GARA asked for an explanation of the substantive
change created by Amendment 5, as amended.
MR. GUANELI replied:
The intent of these entire provisions [is] to prevent
the "big gulp" defense, so to speak, and that arose as
a result of [an] Alaska Court of Appeals opinion. And
the opinion specifically focused on the ... two
"when"s in this provision, and it said ..., "We
understand what the legislature may have been getting
to, but the 'when' language creates some ambiguity and
therefore we're going to allow this defense."
And so ... we thought it would be best to directly
address the specific statutory language that the
[Alaska] Court of Appeals focused on in allowing that
defense, and that's why deleting the "when"s was
appropriate. The additional provision, further on up
in this amendment, was to address a concern that you
had raised, that the ... language in the current
version was a little broad in preventing people from
using evidence of consumption of alcohol in their
defense. And I hope that addresses your concern.
REPRESENTATIVE GARA, after noting that he has every intention of
getting rid of the big gulp defense, asked Ms. Wilson whether,
in her opinion, Amendment 5, as amended, does anything other
than that.
Number 1053
MS. WILSON opined that it does. She elaborated:
"The problem is, is I think the language in that first
section of [proposed subsection] (s) is sort of self-
contradictory. It says that a person may introduce
evidence of having consumed alcohol before operating
the vehicle but ... it is not a defense that the
chemical test did not measure the blood at the time of
operating or driving. So, you recall your example you
gave of somebody who had a couple of drinks but then
went home and "pounded 'em back" and got called in?
Well now this person can't put on any evidence about
the ... [fact] that he only had two drinks before he
drove, because this section says it's not a defense.
So he won't be able to present to the jury that he ...
only had two when he was driving and that the ones he
consumed after, which are going to be reflected in the
test, ... [are what] defeats him. So it does more
than get rid of the big gulp [defense]; it limits your
ability to ... present evidence of your drinking
before you drive, which is way more than just a big
gulp [defense] ....
REPRESENTATIVE GARA offered his belief, however, that they all
have the same intention, and according to the way he reads
Amendment 5, as amended, it says that a person can explain to
the jury the amount of alcohol he/she had before getting in a
vehicle in order to rebut the results of the chemical test;
Amendment 5, as amended, seems to just get rid of the big gulp
defense.
MS. WILSON argued, however, that the language which reads, ",
but it is not a defense that the chemical test did not measure
the blood alcohol at the time of the operating or driving."
prevents someone from attacking the chemical test as being
representative of the blood alcohol level at the time of
operating or driving a vehicle. She went on to say:
So you've introduced evidence, but the courts can
instruct the jury that they don't get to consider it
because that blood alcohol measures your blood alcohol
at the time you were driving - whether on not it
really does.
REPRESENTATIVE SAMUELS said he agrees that they were all trying
to get to the same point. However, he opined, if the language
says, "at the time" one could then still argue that the test was
wrong, but could not argue that it was taken three hours later.
Representative Samuels said he reads the language in Amendment
5, as amended, the same way that Representative Gara does.
REPRESENTATIVE GRUENBERG asked what was wrong with the current
language in the proposed CS.
Number 1249
MS. WILSON said that the current language in the proposed CS
limits someone to only being able to explain alcohol being drunk
after the driving or operating. Amendment 5, as amended, she
reiterated, prevents someone from talking about what he/she
drank before or after the driving or operating of a vehicle
because the jury will be instructed to disregard such evidence.
REPRESENTATIVE GRUENBERG surmised, then, that perhaps the
current law should not be altered, adding that the big gulp
defense might just have to be something that gets argued before
a jury.
MS. WILSON concurred.
REPRESENTATIVE GRUENBERG said this makes sense to him because it
would be tough to legislate this area [of law] due to the fact
that there are so many different kinds of defenses that can be
raised and so many factual situations. The big gulp defense
sounds pretty ludicrous, he opined, and suggested that one would
have a tough time selling most juries on it. He asked whether
the big gulp defense is a huge problem, and whether there were a
lot of people getting off because of it.
REPRESENTATIVE GARA, upon further reflection of Amendment 5, as
amended, remarked, "This language is wrong, I think."
MR. GUANELI explained that the current language in the proposed
CS would prevent someone from saying to a jury that he/she only
had one drink and that the test showing a blood alcohol level of
.10 is wrong. Amendment 5, as amended, is intended to say that
a person may offer evidence that he/she drank before, but could
not argue to the jury that, "I was driving at 12 midnight, but
the test wasn't given until 12:30 in the morning and, therefore,
it didn't measure my blood alcohol level." The problem with the
big gulp defense, he opined, is that it allows people to say, "I
had this one big drink ... before I drove," and bring in an
expert witness - at great cost - to dispute the results of the
chemical test in relation to the time the person was actually
driving. So instead of the jury focusing on what the
legislature wants - was a test given and did it measure a
significant amount of alcohol - the jury will look at all the
factors that go into affecting someone's blood alcohol level.
Mr. Guaneli acknowledged that the DOL has struggled with this
issue a lot, and opined that Representative Gara's suggestion -
the first portion of Amendment 5, as amended - is a good one and
does what the legislature has always intended.
Number 1433
REPRESENTATIVE GARA countered that it is probably not what the
legislature intended at the time. Instead, the court was
probably right: the legislature probably wanted to only convict
people who were drunk at the time they were driving. But then,
later on, people started coming up with the big gulp defense,
and this probably wasn't something that the legislature even
considered at the time the current law as enacted. Referring to
"the way it's written," he noted that one can be convicted of
driving under the influence (DUI) if he/she has a blood alcohol
concentration (BAC) of more than .08. So, if the defendant is
guilty if he/she has a BAC of more than .08, what good does it
do a defendant to be able to explain the results of the chemical
test?
MR. GUANELI relayed that there are a number of ways to challenge
the results of the DataMaster cdm (compact datamaster) - and
before that the [Intoximeter 3000] and before that the
breathalyzer. He added, "All of these machines have certain
requirements, that the officer is supposed to observe the person
..."
REPRESENTATIVE GARA interjected to say, "I'm wrong, you don't
need to explain that to me." However, he remarked, it still
seems to him that the last sentence of the first part of
Amendment 5, as amended, causes a problem in that "what we want
to really say is that it's not a defense that the chemical test
includes the effect of alcohol consumed before driving."
"That's what you don't want to do, is let somebody say, 'Yeah, I
consumed it before I drove, but it ... hasn't really registered
in my body therefore you can't use that against me.'" He again
suggested that the wording be changed to say that it's not a
defense that the chemical test includes the effect of alcohol
that was consumed before driving.
MR. GUANELI offered his belief that such language brings them
back closer to what is currently in the proposed CS [and] would
prevent people from raising that defense.
Number 1568
REPRESENTATIVE GRUENBERG said:
It just seems to me that if this [is] a question of
relevance, then the judge determines whether the
evidence is relevant; the parties argue relevance and
the judge makes that determination under the [Alaska]
Rules of Evidence. And the rules already provide
[for] that in this case and every other case. And for
the legislature to determine what is or is not
relevant is going to be very difficult to do because
the facts will vary so greatly.
[Chair McGuire turned the gavel over to Representative Samuels]
REPRESENTATIVE GARA opined that "we're changing the substance of
the crime." He added:
It used to be that it's not a crime if you had so much
to drink that you register as drunk after you get out
of the car - it used to be that it was a defense that
you weren't drunk yet, that all the alcohol hadn't
registered through your system, so that ... even
though you blew a .20 later on, you were really only
at a [.079] at the time you were driving. This isn't
really a relevance issue; we're changing policy here.
REPRESENTATIVE GRUENBERG surmised, then, that with passage of
Amendment 5, as amended, it will be a crime to have a BAC above
the limit even though a person might potentially have not been
behind the wheel at that moment in time.
REPRESENTATIVES GARA and SAMUELS concurred.
REPRESENTATIVE SAMUELS added, "If it's in your stomach, it's as
good as being in your blood, is what we're saying.
REPRESENTATIVE GRUENBERG asked why it would be wrong to allow
such a defense if the aforementioned facts are true.
Number 1672
REPRESENTATIVE GARA replied:
Because you've had way too much to drink, that's
obvious, you've had enough to drink that you're about
to get drunk. We know that you're not a technician
and that you didn't time the amount you had to drink
to get you home before you got drunk - you essentially
just got lucky that you hadn't exceeded .08 at the
time you got in your car, but you had been drinking
irresponsibly. And I think, even though you're not
technically at a .08, we want to punish you for having
that much to drink and getting in your car, because I
think the truth is, even at .05 and .06, you're
putting the public in danger. So I don't want to give
you the benefit of being at only [.079] when you've
had so much to drink that you're endangering the
public.
REPRESENTATIVE SAMUELS reiterated, "[If it's in your] stomach,
it's in your blood."
REPRESENTATIVE GARA said, "I want to do what we just said we
want to do; I'm not comfortable ...
REPRESENTATIVE SAMUELS interjected to suggest changing Amendment
5, as amended, to a conceptual amendment, adopting it, and then
if better language comes forth later, they could adopt that
instead.
MR. GUANELI said he would be happy to work with Representative
Gara in order to arrive at language that everyone is comfortable
with.
[Representative Samuels returned the gavel to Chair McGuire.]
CHAIR McGUIRE indicated that the issue could be addressed again
at the bill's next hearing.
REPRESENTATIVE GARA said that upon further reflection, he thinks
that Amendment 5, as amended, is fine, adding that he will be
voting to adopt it. However, he extended an invitation to Ms.
Wilson to provide substitute language.
MS. WILSON asked the committee to consider where Amendment 5, as
amended, would leave the person who has one drink before
driving, gets home, drinks a lot, and then gets arrested three
hours later and the chemical test shows a high BAC - that person
is going to be without a defense. This is how she reads
Amendment 5, as amended, she remarked, adding that it appears to
reach more people than those just using the big gulp defense.
CHAIR McGUIRE replied, "I think it's clear that generally
speaking, evidence about your drinking after you have been
driving can be offered, and there may be this fine, tiny line of
a couple of people that fall into this, but I'm not convinced."
Number 1987
CHAIR McGUIRE announced that Amendment 5, as amended, would be
set aside. She indicated that the committee would be addressing
Amendment 6.
REPRESENTATIVE GARA directed attention to Amendment 6, which
read [original punctuation provided]:
Insert at p 2
At line 24 after "participants" and at line 28 after
"participants" the following language:
"except that when the killing of the participant is
the direct result of criminal conduct by a non-
participant."
REPRESENTATIVE GARA explained, however, that Amendment 6 should
be altered to reflect that the language is to be inserted on
page 5, not page 2.
Number 2059
REPRESENTATIVE GARA made a motion to adopt Amendment 6, as
amended with regard to the page number.
Number 2062
CHAIR McGUIRE objected for the purpose of discussion.
REPRESENTATIVE GARA relayed that Amendment 6, as amended,
addresses the part of the proposed CS which currently says that
if a person goes on someone else's property to engage in robbery
in any degree, and a killing occurs, then the person could be
[charged with the crime of] murder in the second degree. In
support of Amendment 6, as amended, he offered the following
example:
Five of you go on somebody's property. One person is
the ringleader, he becomes totally out of control,
pulls a gun on a robbery victim. The other four
really hadn't intended on doing anything violent like
that. All the kids start running away, and the
robbery victim shoots one of the non-gun-bearing kids
in the back ...
CHAIR McGUIRE interjected. Noting that this issue had been
discussed at length during a prior hearing on the bill, she
asked Mr. Guaneli whether the DOL has any problems with
Amendment 6, as amended.
MR. GUANELI said that the only concern he has is that [Amendment
6, as amended] will require that in prosecuting somebody else,
the DOL will also have to prove that the victim did not commit a
crime. Generally, he added, the DOL has no problems with
Amendment 6, as amended.
Number 2142
SUSAN A. PARKES, Deputy Attorney General, Central Office,
Criminal Division, Department of Law (DOL), remarked that she'd
not yet received a copy of Amendment 6, as amended
MS. TONDINI relayed that she'd just recently faxed Ms. Parkes
copies of the proposed amendments that she did not get earlier.
CHAIR McGUIRE, for the benefit of Ms. Parkes, read Amendment 6,
as amended. She asked Ms. Parkes to comment.
MS. PARKES said that conceptually, she doesn't have a problem
with Amendment 6, as amended, because she doesn't think the DOL
would actually charge someone under the circumstances described
at a prior hearing on the bill. She said she is concerned,
however, with how Amendment 6, as amended, will work when the
state has to try two murder cases in a trial.
REPRESENTATIVE GRUENBERG opined that even if the state has to
get into a second criminal issue, because a person's life is at
stake, it is certainly worth a little time if there is a valid
defense.
MR. GUANELI said he thinks that Ms. Parks is right in that the
DOL wouldn't ordinarily charge such cases. In a case where the
defense is raised that the victim committed a crime, he said he
would hope that most juries would "see through that" and would
recognize that a victim of a robbery using self defense to
protect himself/herself is committing no crime.
CHAIR McGUIRE surmised that perhaps the DOL's concern is that
Amendment 6, as amended, might be used too broadly.
MR. GUANELI agreed.
Number 2225
REPRESENTATIVE SAMUELS suggested amending Amendment 6, as
amended, [again] to add "felony" before "criminal".
CHAIR McGUIRE asked, "Is that accepted?"
REPRESENTATIVE GARA said, "That's fine. And my intention, Mr.
Guaneli, is [that] ... you wouldn't have to prove this other one
beyond a reasonable doubt ....
[Although no formal motion was made, this suggested second
amendment to Amendment 6, as amended, was treated as adopted.]
MR. GUANELI reiterated his opinion that the DOL would have to
prove that the victim did not commit a crime, adding that it
would have to be proven beyond a reasonable doubt.
Notwithstanding this point, he posited that "it's going to be an
unusual circumstance, and I think we can accept that burden."
Number 2262
CHAIR McGUIRE said she would remove her objection and asked
whether there were any further objections to Amendment 6, as
amended.
REPRESENTATIVE GRUENBERG asked whether the committee still
needed to adopt the second amendment to Amendment 6, as amended.
CHAIR McGUIRE stated, "We already did."
Number 2269
CHAIR McGUIRE noted that there were no further objections to
Amendment 6, as amended. Therefore, Amendment 6, as amended,
was adopted.
Number 2280
REPRESENTATIVE GARA made a motion to adopt Amendment 7, which
read [original punctuation provided]:
Delete page 6, lines 24 and 25.
Number 2283
CHAIR McGUIRE objected.
REPRESENTATIVE GARA opined that the language he is proposing to
delete is troubling because the way it is currently written, it
will make felons out of people who have car accidents that cause
serious physical injury to another person.
CHAIR McGUIRE urged the committee to reject Amendment 7. She
said that there are 6 proposals which have been drafted that
would go toward narrowing the aforementioned language. She
added, "I think that there is clearly a gap in the law [and] we
need to address it somehow; I do think that the arguments
[toward narrowing it] have had merit ..., and we have [several]
... options including defining what we mean by 'serious physical
injury' and including linking it to chemical tests with respect
to blood alcohol levels ...."
Number 2362
A roll call vote was taken. Representative Gara voted in favor
of Amendment 7. Representatives Gruenberg, Samuels, Holm, and
McGuire voted against it. Therefore, Amendment 7 failed by a
vote of 1-4.
Number 2383
REPRESENTATIVE GARA made a motion to adopt Amendment 8, which
read [original punctuation provided]:
Insert at p 6 line 24 after "negligence" the following
language:
"in violation of AS 28.35.030"
Number 2385
CHAIR McGUIRE objected.
REPRESENTATIVE GARA said that Amendment 8 is a more narrow way
to "get at this problem." He said he did not have a problem
saying it's a felony to, while intoxicated, injure someone, and
posited that Amendment 8 would get at the problem described by
the DOL. Amendment 8 would say that if someone is [criminally]
negligent [in violation of AS 28.35.030] and causes serious
[physical] injury to another, then he/she would be guilty of a
felony.
TAPE 04-57, SIDE B
Number 2389
REPRESENTATIVE GARA mentioned that someone who is simply
negligent and causes serious physical injury to another would
still be guilty of only a misdemeanor. Under Amendment 8, "the
thing that makes it a felony is that you violated society's
interest by also being drunk when you did it," he added, noting
that this was the example used by the DOL when explaining the
need for the language on page 6, lines 24-25.
CHAIR McGUIRE, after ascertaining that Mr. Guaneli was in
receipt of and had reviewed all of the proposed amendments
dealing with this issue - including those drafted by the Public
Defender Agency (PDA) - asked him where the DOL would be
amenable to narrowing down this provision.
MR. GUANELI said that the DOL does not believe that any
narrowing ought to be done. With regard to Amendment 8, he
said:
That would be, in essence, only allowing this crime to
be committed if somebody is driving drunk - as I
understand [Amendment 8]. Currently, if you are
driving drunk ..., that is considered reckless
conduct. If you kill somebody and you were driving
drunk ..., that's manslaughter, and the mental state
for manslaughter is recklessness. So what that means
is that under current law, this crime of recklessly
causing serious physical injury by means of a
dangerous instrument, which is what this would be, is
covered under current law under first degree assault,
which is a class A felony.
So, the - and I'm sure unintended - consequence of
[Amendment 8] is to reduce what is now a class A
felony to a class C felony, and so for that reason we
certainly object to Amendment 8. With respect to the
other amendments proposed by the [PDA], one suggestion
is to limit the serious physical injury to ... only
one part of the definition of serious physical injury,
and that is the protracted impairment of bodily
function and that sort thing - essentially putting
someone in a wheelchair. But there's another
important part of the definition of serious physical
injury and that is physical injury under circumstances
which raise a ...
Number 2259
REPRESENTATIVE GRUENBERG interjected to say that if Amendment 8
is not adopted, he would be offering one of the PDA's proposed
amendments, that which contains a "D" in the lower right-hand
corner and which uses AS 11.81.900(b)(55)(B) to define serious
physical injury.
CHAIR McGUIRE asked Mr. Guaneli whether the DOL would have any
objection, if and when Representative Gruenberg offers that
amendment, to also using AS 11.81.900(b)(55)(A) as part of the
definition of serious physical injury.
REPRESENTATIVE GRUENBERG noted he'd meant to add AS
11.81.900(b)(55)(A) as well to that amendment.
MR. GUANELI pointed out that serious physical injury is defined
by both 11.81.900(b)(55)(A) and (B). Therefore, to include
reference to both (A) and (B) in an amendment wouldn't really
change anything in the bill.
REPRESENTATIVE GRUENBERG concurred.
CHAIR McGUIRE mentioned, however, that including reference to
the definition would clarify the bill.
REPRESENTATIVE GRUENBERG relayed that he would not be offering
the aforementioned amendment.
REPRESENTATIVE GARA said that the problem with leaving the
language in the bill as written is that serious physical injury
as defined in the criminal code is not "the kind of serious
injury that you and I would think of." He elaborated:
It's not just putting somebody in a wheelchair, which
would be terrible, it's not just these very heightened
levels of injury. It is also protracted impairment of
the function of a body member. That would be a broken
arm if you were in a cast for six weeks, that would be
other injuries that aren't as debilitating as ones
that we might think of when we hear the term "serious
physical injury". So ... if we're going to say that
people who are negligent, who cause a broken arm, are
felons, I've got a problem with that. So I don't want
to change the criminal law's definition of serious
physical injury. ... It makes sense, I'm sure, in many
other sections of the law, where you're punishing
people for intentional conduct and reckless conduct.
But now that we're doing negligent conduct, there has
to be something that narrows either the kinds of
injuries we're talking about or the kind of conduct
we're talking about, but written as is I can't support
this.
Number 2115
CHAIR McGUIRE said that according to her recollection of past
discussions, "any time you have a vehicle ... barreling at you
at speeds between ... 35 and 75 miles an hour, by definition, if
you injury that person, it's going to be 'under circumstances
that create a substantial risk of death'."
MR. GUANELI replied that although that might be true
theoretically, that's not the way it works as a practical
matter, nor is it the way that prosecutors charge cases
involving a serious physical injury. He went on to say:
I think that the problem with eliminating
[subparagraph] (A) in that definition is that someone
[could], acting with criminal negligence, ... [cause]
a horrendous accident where ... both cars are mangled
and everyone is sure that the occupants have died, and
the victim ..., just out of fortuity, walks away
unharmed or only with bruises and cuts and scratches.
In terms of that person's culpability, in terms of
what could have happened - ... the physical injury
that ... was caused under terrible circumstances and
could have resulted in death - ... that person really
ought to be treated the same as ... a driver who puts
someone in a wheelchair. And in terms of their danger
to the public, they are exactly the same, and it was
just [luck] ... that someone walked away. And that's
what this [subparagraph] (A) definition is designed to
address: those situations that ... by the grace of
God someone lived, but in terms of the culpability of
the driver, ... that driving was as dangerous.
Number 2039
CHAIR McGUIRE responded:
I'm going to argue against it. I just think it's too
broad. I think that in almost any circumstance a good
prosecutor could argue that ... when you're talking
about a vehicle and you're talking about an accident,
... the likelihood of being able to say, "under a
substantial risk of death" is going to be there
regardless of the extreme circumstance that you're
presenting. In point of fact, ... on the other end,
we're trying to do things in this committee to
discourage people from drinking and driving at all,
because, in point of fact, that could happen in any
single case that a person gets into a car drunk. ...
But to raise it to that level, I have concerns about
it.
MR. GUANELI said that the cases that are the most heartrending
for the DOL are the cases wherein family members and victims
come to prosecutors and say: "Isn't there anything more you can
do? Can't this person be charged with a more serious crime?"
He acknowledged, however, that subparagraph (B) does get to the
most egregious cases.
CHAIR McGUIRE said:
I think that [subparagraph] (B) should be in there and
I think that this is a loophole; I think that [Ms.
Parkes] argued that very well, that just because a
person doesn't die we [still] ought to be punishing
the conduct. So I would be supportive of the
amendment that Representative Gruenberg would offer on
[subparagraph] (B) ....
Number 1940
REPRESENTATIVE GARA withdrew Amendment 8.
Number 1927
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 9,
that which was just being discussed and which read [original
punctuation provided]:
Page 6, line24
(4) with criminal negligence causes serious
physical injury under AS 11.81.900(55)(B) [sic] to
another person by means of a dangerous instrument.
Number 0901
CHAIR McGUIRE objected for the purpose of discussion.
REPRESENTATIVE GRUENBERG asked for clarification on why they
should not also include [AS 11.81.900(b)(55)(A)] in Amendment 9.
REPRESENTATIVE GARA reminded members that if Amendment 9 is
altered to include [subparagraph] (A), then it is no different
than what is currently being proposed by the bill.
[Following was a brief discussion referencing some of the other
amendments provided by the PDA.]
MS. WILSON, referring to Amendment 9, concurred that the reason
it only references AS 11.81.900(b)(55)(B) is because if it were
to include both subparagraphs (A) and (B), then it would be no
different than what is currently [proposed in the bill]. She
went on to say:
[Subparagraph] (A) has to do with just physical injury
with a risk of death, which could be caused by any
automobile accident, as you so succinctly said. So
[Amendment 9] takes out [subparagraph] (A) because
anytime you're involved in a vehicular accident there
is the potential or the risk of death. So we're
taking out the bumps, the bruises, the scratches - all
those kinds of thinks that we really don't want to
address .... [Subparagraph] (B) of the definition of
serious physical injury really gets to the targeted
injuries that we're talking about in this case. So
that's why [Amendment 9] has it limited to the second
half of the definition of serious physical injury.
MS. PARKES asked that if the committee is going to limit this
provision of the bill in any way, that it only exclude
[subparagraph] (A).
REPRESENTATIVE GRUENBERG said that he is inclined towards
keeping subparagraph (A), adding that an accident that creates a
substantial risk of death is a serious accident and not just a
fender bender.
Number 1624
REPRESENTATIVE GARA remarked that the problem with including
both subparagraphs (A) and (B) is that it would be looked at as
(A) "or" (B); hence, a person could be thrown in jail as a felon
for being negligent, having a car accident, and breaking
somebody's arm - even that of a passenger. He noted that there
has been just such a case. He opined: "If we're going to make
you a felon for being negligent, I think it's got to be either a
very serious injury - and we don't to have to go through an hour
[of] debate trying to redefine serious injury to make it a very
serious injury - or at least let's say 'permanent'." In other
words, not whiplash, not a broken arm, not a sprained shoulder
that could last someone three months and is therefore
protracted, but a "permanent" serious physical injury. In
response to a question, he offered his belief that "reckless"
[behavior] is already a crime.
MR. GUANELI added that it is already considered assault in the
first degree, which is a class A felony.
CHAIR McGUIRE, to clarify, said:
For the cases of criminal negligence we already say
that if you are criminally negligent and you kill
somebody, you can be charged with manslaughter, and so
what we're trying to say is, for the lesser injury
that comes about, there ought to be a crime that comes
with the "non-mental" intent of criminal negligence.
... So we're in an area that's unaddressed yet, and
we're trying to define how far we go.
REPRESENTATIVE SAMUELS opined that if the actions are the same,
then the penalties should be the same, rather than making
allowances depending on the end result of an accident.
MR. GUANELI, in response to a question, reiterated that
"reckless" behavior can be considered assault in the first
degree if someone is seriously injured "under circumstances that
create a substantial risk of death".
REPRESENTATIVE GRUENBERG remarked, then, that he is dissuaded
from offering [Amendment 9].
Number 1439
CHAIR McGUIRE announced that Amendment 9 was withdrawn, and made
a motion to adopt this same amendment as Amendment 10, which
read [original punctuation provided]:
Page 6, line24
(4) with criminal negligence causes serious
physical injury under AS 11.81.900(55)(B) [sic] to
another person by means of a dangerous instrument.
REPRESENTATIVE GARA said:
The reason we throw people in jail for accidentally
killing somebody is that [he/she] ... killed somebody.
It's the worst thing you could ever do in this world -
is kill somebody. And we're saying we understand it
was an accident, but you killed somebody [so] it's a
felony. That was a pretty big departure from the sort
of historical context of criminal law. We used to ...
want to punish people who did things intentionally,
maybe recklessly, but negligently, we weren't so
thrilled about it. We made the exception for ...
death. Now we're going to the point of making the
same exception for a broken arm. I don't want to do
that, and so one way around that would be to ... say
[that] ... if we're going to make accidental conduct a
felony, then it's got to be at least a permanent
serious physical injury that you've caused. So I
would be willing to go along with that, but no
further.
Number 1370
REPRESENTATIVE GARA made a motion to amend Amendment 10 such
that "permanent" is added between "causes" and "serious". Such
a change would include disfigurement and other injuries that are
permanent, but would exclude injuries that heal.
REPRESENTATIVE OGG pointed out that in the fishing,
construction, mining, agriculture, and medical and dental
industries, people use dangerous instruments all the time, and
that in these industries there is negligence and tort. "And if
they have accidents, then what's the result going to be there?"
he asked.
MR. GUANELI remarked:
We are not talking about negligence, here - not the
kind of negligence that gets you sued in civil court.
We're talking about criminal negligence, which is
defined in our criminal code and it applies to a
number of offenses including criminally negligent
homicide, and ... it's something much more than civil
negligence. There are dozens of car crashes all
across the state of Alaska - and all across the
country - that are the result of negligence, and
people die in those car crashes. And we simply do not
prosecute them; we are not prosecuting every car crash
[wherein] somebody dies. We are prosecuting those car
crashes where the driver was drunk or there was such
... outrageous driving that it rises to the level of
criminal culpability. ...
And it's not that we don't have the resources to
prosecute these cases; it simply isn't part of the
element of the offense. It is not simply careless
conduct that a reasonable person would exercise.
That's the civil context; that's what gets you sued
... for a wrongful death. It's called wrongful death,
and it's an insurance claim, and that's dealt with in
the civil courts. We're talking about something that
rises to the level [of] criminal negligence such that
a jury is willing to find criminal culpability. ...
CHAIR McGUIRE sought confirmation that criminal negligence would
mean acting in careless disregard of a known risk.
Number 1199
MR. GUANELI said that the definition of criminal negligence - AS
11.81.900(a)(4) - is very similar to recklessness, and reads in
part: "the person fails to perceive a substantial and
unjustifiable risk that the result will occur or that the
circumstance exits; the risk must be of such a nature and degree
that the failure to perceive it constitutes a gross deviation
from the standard of care that a reasonable person would observe
in the situation." He noted that in a criminal case, a jury
would have to decide whether the behavior constituted a gross
deviation from reasonable care, and whether it wanted to
criminally punish that behavior. In response to a comment by
Representative Gara, Mr. Guaneli reiterated that the definitions
of "criminal negligence" and "recklessly" are very similar.
MS. WILSON said she disagreed with Mr. Guaneli's assertion that
prosecutors don't prosecute cases wherein the result might not
be a serious physical injury or that they only prosecute the
most serious of cases. She elaborated:
There certainly could be a defendant out there who
would not be popular with the district attorney's
office and might have a passenger in the car who
suffers physical injury which does not rise to the
level of a serious physical injury but yet that person
could be prosecuted. And then there certainly was a
case - the Wally Tetlow case [State v. Tetlow, 3AN 01-
03356] - [wherein] Mr. Tetlow was charged with assault
in the first degree for vehicular assault against his
passenger. My guess is, maybe the unintended purpose
of this section is to get Mr. Tetlow: he was
convicted of a misdemeanor. So to say that they're
only after ones where serious physical injury results
is disingenuous. These cases are overcharged, and for
us to just go along [with] the assumption that we
should trust the prosecutors to only take these cases
[with] the most serious consequences gives them far
too much prosecutorial discretion, and it should be a
serious concern for the committee.
CHAIR McGUIRE said she remembered that case and assured Ms.
Wilson that it is of concern to her.
REPRESENTATIVE GARA relayed his recollection that in the
aforementioned incident, the passenger simply had to get
stitches and it was not a lasting injury.
Number 0951
CHAIR McGUIRE urged the committee to reject the amendment being
offered to Amendment 10, and highlighted that currently,
Amendment 10 proposes to restrict the bill such that the serious
physical injury it refers to would include: "serious and
protracted disfigurement, protracted impairment of health,
protracted loss or impairment of the function of a body member
or organ, or that unlawfully terminates a pregnancy".
REPRESENTATIVE GRUENBERG mentioned that he was troubled by the
Tetlow case because it is an example of things going wrong, and
asked Mr. Guaneli to comment.
MR. GUANELI said that Mr. Tetlow was ultimately convicted of two
misdemeanors, adding that if those two misdemeanors were joined
together they made up the elements of a felony offense.
REPRESENTATIVE GRUENBERG asked how they could guard against this
proposed statute being misused.
MR. GUANELI, in response, continued describing the Tetlow case:
At the beginning of that case, both the driver in that
case and the passenger left the scene; they did not
wait around. It was a case where the car left the
road and, as I recall, got wrapped around a light pole
or a telephone pole or something like that. ... There
were people who stopped to help, and they were met
with some level of hostility, perhaps, and the driver
and the passenger left the scene, and the police were
not able to find them for some period of time
afterwards.
The victim in the case, the person who was injured --
there was indications at the scene of the crime that
he was injured, and he was unable to be found; he
would not cooperate in terms of providing information
about the extent of his injuries. My recollection is,
he was a friend or a [coworker] of the driver, and
under those circumstances, the prosecution was left
with deciding, at a very early point in time, what
[was] the immediate charge to be leveled. And so
based on the elements of the statutes, certain charges
were leveled at the very beginning of the case, and
when the case ultimately went to the grand jury, the
grand jury returned other, lesser charges.
Number 0759
MR. GUANELI went on to say:
But the fact remained that the state was unable to
gather information about the extent of the victim's
injuries because the victim simply refused to
cooperate and, therefore, we were left to use the
elements of the offense that we had. As it turned
out, we found out some time later that [the] victim of
the offense actually had to go to ... some sort of
neurologist or neurosurgeon because ... he had passed
out or something like that, which, again, raises some
concern that there may have been some lasting injury
in [that] case.
So ... I think that we can all talk about that case
forever, but the fact remains that we are trying to
plug what we perceive to be ... a gap in the law,
right now, and we're trying to do it in the best way
that we can. And I think that the particular
amendment limiting it to those kinds of protracted
injuries, the serious injuries, does that without the
risks that Ms. Wilson and Representative Gruenberg are
suggesting exist.
CHAIR McGUIRE asked for a roll call vote on an unamended
Amendment 10.
Number 0673
REPRESENTATIVE GARA said he was withdrawing any objection he
might have had to Amendment 10. [The motion to amend Amendment
10 was not addressed again.]
Number 0660
CHAIR McGUIRE asked whether there were any further objections to
Amendment 10. There being none, Amendment 10 was adopted.
Number 0643
REPRESENTATIVE GARA made a motion to adopt Amendment 11,
although he noted it listed the wrong page and line numbers.
Amendment 11 read [original punctuation provided]:
Insert at p 7 line 13, and renumber remaining sections
accordingly:
Amend AS 12.30.020 by adding a subsection (i) that
reads:
"In the case of a misdemeanor, the court shall issue
written findings to demonstrate why conditions
provided under subsection (b)(1) needed to be
imposed."
REPRESENTATIVE GARA suggested that perhaps the text of Amendment
11 ought to be inserted on line 28.
Number 0601
CHAIR McGUIRE objected for the purpose of discussion.
REPRESENTATIVE GARA suggested amending Amendment 11 to delete,
"In the case of a misdemeanor". Thus the text being inserted by
Amendment 11 would then read: "the court shall issue written
findings to demonstrate why conditions provided under subsection
(b)(1) needed to be imposed." He offered:
This does not do a whole lot in the third-party
custodian realm, but I think it will minimize the
number of sort of lazy third-party custodian orders
that courts issue. This would just say, if you're
going to require third-party custody as a court, you
have to issue written findings to say why you're doing
it. I think this is not a perfect fix to the problem,
[but] my understanding from the [Alaska] Judicial
Council [AJC] is that they and the court system are
going to sit down and talk about the problems of
third-party custody and the over-ordering of it, and I
hope that discussion leads to maybe a long-term
resolution. But in the meantime, ... we just want to
make sure the courts spend some time before they issue
a third-party custody order ....
CHAIR McGUIRE said she is removing her objection, and asked
whether there were any further objections to Amendment 11.
REPRESENTATIVE SAMUELS indicated he had an objection for the
purpose of asking a question. He asked for clarification
regarding the subsection referred to in Amendment 11.
REPRESENTATIVE GRUENBERG offered his belief that Amendment 11
should not be inserted on page 7, line 28; instead, he
suggested, it ought to be inserted elsewhere - perhaps on page
8, line 19.
Number 0471
REPRESENTATIVE GARA withdrew Amendment 11 for the purpose of
restating it. He then restated the motion to adopt Conceptual
Amendment 11, to amend AS 12.30.020 by adding a new subsection
(i) that says, "The court shall issue written findings to
demonstrate why conditions provided under subsection (b)(1)
needed to be imposed."
Number 0439
REPRESENTATIVE SAMUELS withdrew his objection.
Number 0421
CHAIR McGUIRE asked whether there were any further objections to
Conceptual Amendment 1, as restated. There being none,
Conceptual Amendment 1 was adopted.
Number 0316
REPRESENTATIVE GARA, after a brief discussion regarding which of
his proposed changes he wished to offer next, made a motion to
adopt Amendment 12, that which read [original punctuation
provided]:
Delete page 8 lines 7 - 13 all language after
"aggressor".
Number 0241
CHAIR McGUIRE objected.
REPRESENTATIVE GARA said that Amendment 12 would leave intact
the law of self defense, which, he remarked, has a long history
and has been amended in the past to say that a person cannot
claim self defense if the problem is caused as a product of
mutual combat or if he/she provokes the conduct. The language
that Amendment 12 proposes to delete, he remarked, adds what he
considers to be an unprecedented departure from current law by
also saying that a person can't claim self defense if he/she was
participating in criminal conduct, either felony or misdemeanor
criminal conduct. He went on to say that although he
understands and sympathizes with the DOL's argument that gang
crimes are hard to prosecute, he doesn't think that taking away
the right to claim self defense, from a whole class of people,
is the right way to go, adding that he'd like to preserve, as
much as possible, the right to claim self defense.
REPRESENTATIVES SAMUELS and GRUENBERG noted that the language
that Amendment 12 is proposing to delete has already been
amended via Amendment 4.
REPRESENTATIVE GARA concurred, and said, "I think now it just
applies to felonies. He asked whether it would be possible to
charge someone with a felony for buying marijuana for personal
use.
MR. GUANELI said that if someone uses a lot of a particular drug
for personal use, then perhaps it would be possible to charge
him/her with a felony. He opined, however, that the language
that Amendment 12 proposes to delete does not pertain to
possessory offenses; instead, that language pertains to drug
transactions. He also opined that Amendment 4 has already
limited the language in the bill such that it only addresses
core conduct that he thinks they would all like to discourage.
TAPE 04-58, SIDE A
Number 0001
MR. GUANELI added that that behavior consists of bringing a gun
to a dangerous, illegal situation, and opined that such is
analogous to participating in mutual combat or starting a fight
and, therefore, a person doing such should not be allowed to
claim self-defense.
Number 0054
REPRESENTATIVE GRUENBERG suggested amending Amendment 12 to
simply strike Section 13 of the proposed CS. He relayed that
making such a change to Amendment 12 would have the same effect
on the bill.
REPRESENTATIVE GARA indicated that he would accept that
amendment to Amendment 12.
CHAIR McGUIRE said she was maintaining her objection.
Number 0153
A roll call vote was taken. Representatives Gara and Gruenberg
voted in favor of Amendment 12, as amended. Representatives
Ogg, Samuels, Holm, and McGuire voted against it. Therefore,
Amendment 12, as amended, failed by a vote of 2-4.
REPRESENTATIVE GARA asked about the provision in the proposed CS
pertaining to immunity.
REPRESENTATIVE GUANELI relayed that the Senate did amend that
provision in its version, and offered his belief that that
change has the effect of keeping the current law regarding
immunity as is.
Number 0224
REPRESENTATIVE GARA made a motion to adopt Amendment 13, which
read [original punctuation provided]:
At page 9 line 30, delete remainder of sentence after
"finding".
REPRESENTATIVE SAMUELS objected.
REPRESENTATIVE GRUENBERG noted that the change proposed via
Amendment 13 has already been made via [a portion of] Amendment
3.
Number 0260
REPRESENTATIVE GARA withdrew Amendment 13.
Number 0268
REPRESENTATIVE GARA made a motion to adopt Amendment 14, which
read [original punctuation provided]:
At pages 10- 11, delete Section 19.
Number 0275
CHAIR McGUIRE objected.
REPRESENTATIVE GARA explained that Amendment 14 would have the
effect of leaving the current law pertaining to consecutive and
concurrent sentences as is. He said:
Currently, if you commit a class A felony or an
unclassified felony, the presumption is that your
sentence will be consecutive. If you're a second-time
class B felony or class C felony offender, the
presumption is [that] your sentence shall be
consecutive. And we have a number of exceptions in
the rule that let you get out of a consecutive
sentence, right now, but they are in essence that
sentences can run concurrent if the various counts of
your crime are all related. So, you're in a fight
with somebody and you hit them in the head nine times;
that conceivably could be nine counts, but you don't
have to run that sentence consecutively. You get into
a fight with three people, and that could conceivably
be three or more counts, but the court has the
discretion to ... treat that as one event and run
those sentences concurrently.
... We heard from [Larry Cohn, Executive Director,
Alaska Judicial Council]; you can take the statistics
two ways, I think. I think the fair way to take Mr.
Cohn's statistics are that on average, in jail time
served, we do sentence people to longer felony
sentences in this state than on the national average.
I don't think that we've heard enough examples ... to
say that sentences in the areas that this section
[addresses] are too short. This will have a fiscal
impact if we decide to sentence people for longer
periods of time, and frankly that comes out of money
that should be otherwise available to prevent crime,
which would mean, I think, more police on the street
and more prosecutors, at least to put people who we're
already not able to prosecute in jail.
And as folks on this committee know from this summer:
A, we're not investigating serious sexual abuse and
sexual assault cases because we don't have the police
staff, and then B, we're not prosecuting a lot of
these cases because we don't have the prosecution
staff. So, I don't see a compelling reason to divert
resources to additional sentences, that we haven't
heard the crying need for, when those resources will
likely come out of the side that I think would be more
beneficial to our criminal justice system.
REPRESENTATIVE GRUENBERG directed attention to a proposed
amendment provided by the PDA, that which contains an "O" in the
lower right-hand corner and which read [original punctuation
provided]:
Page 10 line 15 through page 11 line 25: omit proposed
new section 19 in its entirety; renumber sections.
Page 14, line 22-30, omit Sec. 25 amendment [AS
12.55.127], renumber sections.
Page 14 line 31 - page 15 line 11, omit sec. 26
amendment [AS 12.55.127, renumber sections.
Page 16, line 26, omit Sec. 28(b).
REPRESENTATIVE GRUENBERG opined that because this language
contains conforming changes, it provides the proper way of going
about what Amendment 14 proposes to do
Number 0448
REPRESENTATIVE GRUENBERG made a motion to amend to Amendment 14
such that its language be substituted by the language in the
amendment labeled "O".
REPRESENTATIVE GARA indicated that he would accept such a
change.
CHAIR McGUIRE relayed that Amendment 14 has been amended as
suggested by Representative Gruenberg.
Number 0537
A roll call vote was taken. Representatives Gara and Gruenberg
voted in favor of Amendment 14, as amended. Representatives
Ogg, Samuels, Holm, and McGuire voted against it. Therefore,
Amendment 14, as amended, failed by a vote of 2-4.
Number 0581
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 15,
that which contains an "A" in the lower right-hand corner and
which read [original punctuation provided]:
Page 2, line 30 - p. 3 line 26
Sec. 4 AS 04.11.491 is amended by adding a new
subsection to read:
(g) If a municipality or established village has
adopted a local option under (a)(1), (2), (3), or (4),
or (b)(1), (2), or (3) of this section, the
municipality or established village, as part of the
local option question or questions placed before the
voters, may
(1) adopt an amount of alcoholic beverages
that may be imported that is less than the
amounts set out in AS 04.11.150(g);
(2) adopt an amount of alcoholic beverages
that would give rise to a presumption that the
person possessed the alcoholic beverages for
sale; the amounts adopted under this paragraph
may be lower than those set out in AS 04.11.010©
[sic];
(3) adopt an increased penalty of a class C
felony for furnishing or delivery of alcoholic
beverages to persons under 21 pursuant to AS
04.16.051(d)(3).
Sec. 5 AS 04.16.051(d) is amended to read:
(d) A person acting with criminal negligence who
violates this section is guilty of a class C felony if
(1) within the five years preceding the
violation, the person has been previously
convicted under
(A) this section; or
(B) a law or ordinance of this or
another jurisdiction with elements substantially
similar to this section; [OR]
(2) the person who receives the alcoholic
beverage negligently causes serious physical
injury to or the death of another person while
under the influence of the alcoholic beverage
received in violation of this section; in this
paragraph,
(A) "negligently" means acting with
civil negligence; and
(B) "serious physical injury" has the
meaning given in AS 11.81.900; or
(3) the violation occurs within the
boundaries of a municipality or the perimeter of an
established village that has adopted a local option
and the increased penalty of a class C felony under AS
04.11.491.
Number 0586
CHAIR McGUIRE said that there is an objection, and offered her
understanding that Amendment 15 affects the provision pertaining
to bootlegging and minor consumption in local option areas.
REPRESENTATIVE GRUENBERG said that Amendment 15 raises the crime
of bootlegging alcohol and selling to minors to a class C felony
if a community chooses to adopt this increased penalty.
MR. GUANELI clarified that Amendment 15 would require that the
municipality or the established village hold a local option
election in order to adopt this higher penalty. He said that
currently, the proposed CS says that furnishing liquor to minors
in an area that has a local option is a felony offense. The
purpose of local options are twofold: one, to deal with the
problems that alcohol consumption by adults causes; two, to send
a message to the children in an effort to protect them against
alcohol abuse. Therefore, he opined, it is a particularly
aggravated offense when someone in a local option area provides
alcohol to the children of that area, adding that he questions
whether they should actually force an area to hold [another]
local option election for the purpose of determining whether the
offense should be considered a felony. The policy of having
this offense be a felony ought to be applied across the board.
REPRESENTATIVE OGG raised the issues of enforcement and
prosecution.
MR. GUANELI offered:
All of these offenses that arise out of local option
elections are prosecuted by the state; it is something
that the municipality or the established village
adopts ... as ... the statement of policy in their
village [or municipality], and that triggers certain
state law violations. So these would be a violation
under Alaska State law, and the [Alaska State]
Troopers would enforce it, and the state prosecutors
would prosecute it.
REPRESENTATIVE GRUENBERG asked if the DOL would be more
comfortable if the language in Amendment 15 were changed to say
that it would normally be the felony, but a municipality or
established village could opt out of the felony penalty. He
indicated that if such a change would make the DOL more
comfortable, then he would consider it as a friendly amendment
to Amendment 15.
MR. GUANELI relayed that such an alternative would be
preferable, but added that he questions whether any villages
will actually vote to say that the higher penalty should not
apply to people who supply alcohol. He cautioned that if any
areas do vote to keep the penalty a misdemeanor, this will
result "in somewhat of a patchwork of enforcement areas around
the state," but went on to acknowledge that this is just what
the local-option system does anyway.
Number 0932
REPRESENTATIVE GRUENBERG [moved to conceptually amend Amendment
15] to make it "an opt out" provision.
Number 0947
CHAIR McGUIRE asked whether there were any objections to the
amendment to Amendment 15. There being none, Amendment 15 was
amended.
REPRESENTATIVE OGG asked whether this provision would
automatically apply to areas that have already voted to become
dry or damp.
REPRESENTATIVE GRUENBERG said that areas that have already voted
to become dry or damp would automatically have a felony penalty
apply to violations unless that village or municipality holds
another election to opt out. For those areas deciding the local
option question for the first time, there would also be a second
question on the ballot regarding whether to opt out of the
felony penalty.
[Following was a brief discussion informing Representative Gara
about Amendment 15, as amended.]
REPRESENTATIVE GARA expressed a preference for the original
version of Amendment 15.
Number 1150
CHAIR McGUIRE, after noting that she was removing her objection,
asked whether there were any further objections to Amendment 15,
as amended. There being none, Amendment 15, as amended, was
adopted.
Number 1237
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 16,
that which contains a "P" in the lower right-hand corner and
which read [original punctuation provided]:
Page 12 line 6 and page 13 line 16.
Add the words, "within the last twenty years."
REPRESENTATIVE GRUENBERG asked Ms. Wilson to explain Amendment
16.
MS. WILSON said that Amendment 16 addresses felony DUI and
refusal to take a chemical test, and puts a twenty-year cap on
the look-back provision.
Number 1371
REPRESENTATIVE GRUENBERG again made the motion to adopt
Amendment 16.
Number 1384
REPRESENTATIVE HOLM objected for the purpose of discussion. He
said that he is not convinced that 20 years is the right number.
REPRESENTATIVE GRUENBERG said he would be amenable to a
different number.
REPRESENTATIVE HOLM suggested 10 years.
REPRESENTATIVE GRUENBERG said he would accept that as a friendly
amendment. He then asked Ms. Wilson whether the PDA would
object to such a change to Amendment 16.
MS. WILSON said the PDA would not have any objection to such a
change
CHAIR McGUIRE said she would.
REPRESENTATIVE GARA noted that language on page 12, line 4, and
page 13, line 14, refers to 10 years. He asked what that
pertains to.
MS. WILSON said that those references to 10 years pertain to
qualifying for that first felony level. She elaborated:
If you get your third [DUI] within 10 years, that
qualifies for a felony. What we're talking about now
is what would be your fourth [DUI], and the bill says,
"Once a felony, always a felony, no matter how much
time falls between the third and the fourth [DUI].
Number 1468
MR. GUANELI added:
In order to get a felony under current law, you have
to have three drunk driving convictions since January
1, 1996, ... but essentially it means within 10 years,
... so that means you've got to get three in, ... in
my mind, relatively quick succession. However, ...
let's say you got ... one the first year, [a] second
one the second year, and then you waited until the
eighth year to get your third one - that third one is
kind of hanging out there - your fourth one may not be
three within 10 years, ... so it ends up being a
misdemeanor offense.
Still, it ends up being your fourth drunk driving
conviction ... and you've already been on felony
probation supervision, so the purpose of this
provision is to say [that] regardless of when you get
your fourth [DUI conviction] if you've already been
convicted once of a felony, ... the public needs that
additional protection of your felony probation again.
And whether it's 10 years or 20 years or 30 years
later, to my mind, you still have a drinking problem
and it's something that the public needs protection
for. But ... this is not a legal issue, this is a
policy call, and I accept that.
REPRESENTATIVE HOLM removed his objection. In response to a
question, he said he would not be offering an amendment to
Amendment 16.
Number 1580
CHAIR McGUIRE asked whether there were any further objections to
Amendment 16. There being none, Amendment 16 was adopted.
REPRESENTATIVE GARA asked whether members had any problems with
Section 17 of the proposed CS.
REPRESENTATIVE GRUENBERG reminded members that Amendment 3
addresses Sections 16 and 17 of the proposed CS.
REPRESENTATIVE GARA clarified that he was referring specifically
to subsections (f)-(h) of Section 17, and asked whether the
language in those subsections is a big departure from current
law and whether members are satisfied with those subsections.
REPRESENTATIVE GRUENBERG replied, "As far as I know."
CHAIR McGUIRE suggested that further discussion regarding those
subsections be held over until the bill's next hearing.
Number 1640
CHAIR McGUIRE announced that although some copies of the
proposed CS were received from the DOL with some handwritten
text on page 8, that text is not intended to be part of the
bill, and she asked members to disregard it.
[HB 244 - the proposed CS, as amended - was held over.]
ADJOURNMENT
Number 1660
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 5:00 p.m.
[For the presentation by the Alaska Judicial Council see the
1:12 p.m. minutes for this date.]
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