02/01/2002 01:10 PM House JUD

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* first hearing in first committee of referral
+ teleconferenced
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ALASKA STATE LEGISLATURE HOUSE JUDICIARY STANDING COMMITTEE February 1, 2002 1:10 p.m. MEMBERS PRESENT Representative Norman Rokeberg, Chair Representative Scott Ogan, Vice Chair Representative Jeannette James Representative John Coghill Representative Kevin Meyer Representative Ethan Berkowitz MEMBERS ABSENT Representative Albert Kookesh COMMITTEE CALENDAR HOUSE BILL NO. 329 "An Act requiring that a chemical test be administered to determine the presence of alcohol or a controlled substance after the commission of an offense while operating a motor vehicle, aircraft, or watercraft." - HEARD AND HELD HOUSE JOINT RESOLUTION NO. 30 Relating to an amendment to the Constitution of the United States prohibiting desecration of the Flag of the United States. - MOVED HJR 30 OUT OF COMMITTEE PREVIOUS ACTION BILL: HB 329 SHORT TITLE:CHEMICAL TESTS FOR AUTO ACCIDENTS SPONSOR(S): JUDICIARY BY REQUEST Jrn-Date Jrn-Page Action 01/16/02 1980 (H) READ THE FIRST TIME - REFERRALS

01/16/02 1980 (H) JUD, FIN

01/16/02 1980 (H) REFERRED TO JUDICIARY 02/01/02 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HJR 30 SHORT TITLE:DESECRATION OF U.S. FLAG SPONSOR(S): REPRESENTATIVE(S)KOTT Jrn-Date Jrn-Page Action

01/14/02 1947 (H) READ THE FIRST TIME - REFERRALS

01/14/02 1947 (H) STA, JUD

01/22/02 2025 (H) STA RPT 5DP 1NR

01/22/02 2025 (H) DP: WILSON, STEVENS, JAMES, FATE,

01/22/02 2025 (H) COGHILL; NR: HAYES

01/22/02 2026 (H) FN1: ZERO(H.STA/LAA)

01/22/02 2026 (H) REFERRED TO JUDICIARY

01/22/02 2034 (H) COSPONSOR(S): COGHILL

01/22/02 (H) STA AT 8:00 AM CAPITOL 102

01/22/02 (H) MINUTE(STA) WITNESS REGISTER HEATHER M. NOBREGA, Staff to Representative Norman Rokeberg House Judiciary Standing Committee Alaska State Legislature Capitol Building, Room 118 Juneau, Alaska 99801 POSITION STATEMENT: Presented 329 JULIA P. GRIMES, Lieutenant Division of Alaska State Troopers Department of Public Safety (DPS) Anchorage, Alaska 99507 POSITION STATEMENT: During discussion of ACTION NARRATIVE TAPE 02-7, SIDE A Number 0001 CHAIR NORMAN ROKEBERG called the House Judiciary Standing Committee meeting to order at 1:10 p.m. Representatives Rokeberg, Ogan, Coghill, Meyer, and Berkowitz were present at the call to order. Representative James arrived as the meeting was in progress. HB Number 0052 CHAIR ROKEBERG announced that the first order of business would be HOUSE BILL NO. 329, "An Act requiring that a chemical test be administered to determine the presence of alcohol or a controlled substance after the commission of an offense while operating a motor vehicle, aircraft, or watercraft." Number 0098 HEATHER M. NOBREGA, Staff to Representative Norman Rokeberg, House Judiciary Standing Committee, Alaska State Legislature, presented HB Committee, sponsor. She explained that the current law says that if a person who was driving a vehicle is under arrest for suspicion of intoxication after being in an accident, then the arresting officer has discretion regarding when a chemical test can be administered. She added that the chemical test could be administered for either the presence of alcohol or a controlled substance. MS. NOBREGA relayed that Blank v. State, the implied consent statute, AS A person who operates ... a motor vehicle ... shall be considered to have given consent to a chemical test ... if the person is involved in a motor vehicle accident that causes death or serious physical injury to another person. The test ... may be administered at the discretion of the law enforcement officer .... MS. NOBREGA pointed out that in this subsection, there is no requirement that an arrest take place first. However, the Blank decision, she noted, found subsection (g) to be unconstitutional because, in that case, since there was no arrest and there was no "articulable" suspicion that this person had been drinking, the search was illegal. She indicated that in the Blank case there was no probable cause to test because "it was just too general that every driver be tested." In Blank, she was also decided that, "our Supreme Court requires the formality of an arrest before a search like this can be administered." She noted that the proposed change to AS 28.35.035(a), 329, defendant is searched. Number 0612 REPRESENTATIVE OGAN asked whether a search warrant would still be needed after a person is arrested. He also asked whether being arrested waives a person's rights regarding unreasonable searches and seizures as stated in Article I, Section 14, of the Alaska State Constitution, or the right of privacy as stated in Section 22. MS. NOBREGA, in response, relayed that in the Blank decision, the court said that while the Fourth Amendment of the U.S. Constitution may not require an arrest before a search is performed, the Alaska State Constitution does require that formality. She noted that according to her recollection, there are two times a search can be conducted: A search can be preformed after an arrest, and a search can be performed after a warrant is issued. She added, however, that there are certain searches that are allowed after an arrest that do not require a warrant. REPRESENTATIVE OGAN asked, "Like ... they can search the person for weapons and immediately secure the area and that kind of thing, but bodily invasions like a ... blood test, ... did they delineate that in the [court] decision?" MS. NOBREGA replied that the court addressed the issue of "warrantless" searches and when they are allowed; the court said that having the arrest take place first did ensure that the person suspected is protected from any arbitrary denial of the right to privacy. Thus, according to the court with regard to the Blank case, the arrest was really the important requirement before the search was performed. She added that she did not recall the court specifically saying that there must be an arrest and a warrant issued before the search is performed. REPRESENTATIVE BERKOWITZ said that he wished he could recall more regarding implied consent. He acknowledged that the Blank case clearly involved alcohol, but noted that HB assault and then draw blood, even if there is no indication that alcohol was a factor," which, he added, raises some Fourth Amendment questions. Number 0997 CINDY CASHEN, Juneau Chapter, Mothers Against Drunk Driving (MADD), said that MADD supports 329 and she urged members to pass it. Number 1020 LARRY HOULE testified via teleconference and said that while he supports the intent of HB 329. Number 1715 MARK MEW, Deputy Chief, Anchorage Police Department (APD), Municipality of Anchorage, testified via teleconference. He said that in addition to speaking on behalf of the APD, he is also speaking as the secretary for the Alaska Association of Chiefs of Police (AACP). He said that "all of us in law enforcement took a look at [HB perhaps it is to allow for tests to be conducted for substances other than alcohol. He noted, however, that as Lieutenant Grimes has indicated, if someone is under arrest for committing a crime and there has been an accident and APD believes the person is intoxicated, APD is going to get a search warrant; "we're going to get the sample, either way." MR. MEW then posited that perhaps that is not the issue; that perhaps the issue is that the person has been arrested for some crime other than drinking while intoxicated (DWI) [after having] gotten in a wreck. But if that is the case, he asked, what is the need for mandating the chemical test. He added that if law enforcement has the discretion - via "may" - to get the sample and test for other drugs if necessary, "then I guess we're getting someplace" because then law enforcement wouldn't have to collect samples in situations where somebody has a fender bender and commits a theft of his/her passenger, for example. "But I'm not sure if we're there yet," he noted. By keeping opposed to "shall", it eases some of law enforcement's he remarked. CHAIR ROKEBERG said that although he considers it appropriate to remove "while intoxicated" from current statute, as is proposed in HB also remarked that if a sample has been taken, there is still the issue of whether that information can be revealed in any forthcoming civil action. Number 1871 MR. MEW said that although it appears to him that everybody wants to get to some resolution and thereby improve current law, he also has the feeling that everyone is attempting to rewrite HB language] will really mean. CHAIR ROKEBERG remarked that although MADD brought this idea forth and is not happy "with where we're at legislature is struggling with some constitutional issues. REPRESENTATIVE OGAN said that although there are certain searches that are allowed without probable cause, including obtaining a blood test if someone is intoxicated, generally there has to be probable cause before a chemical test can be performed. He said that by removing "while intoxicated" and mandating that a test be performed on anybody who gets in an accident, he wondered "where we're going on the probable cause issue." He asked Mr. Mew to explain "the procedures [regarding] when you can search and how much you can do before and after an arrest." MR. MEW noted that the general requirement is for law enforcement to have a warrant, and a warrant requires that probable cause be established before a judge. The law provides several exceptions to that search warrant requirement, however, and one is consent, and another is "plain view"; also there are a variety of exigent circumstances that allow for a search to be performed without a warrant, one of which is imminent destruction of the evidence, and one is "hot pursuit." Consent, he noted, is one of the exceptions that officers use as their first avenue; "you ask a person and if they give you consent to search [his/her] person or ... home or whatever," then it's a legal search. He said that it seems to him that implied consent is just that: when a person gets a driver's license, he/she is implying that consent is given for searches. MR. MEW said, "We need probable cause to make the arrest, regardless of the search and seizure issues." So if a person is being arresting for driving while intoxicated or assault or disorderly conduct, law enforcement still has to meet the threshold of probable cause in order for the arrest to take place. According to his understanding of HB REPRESENTATIVE OGAN asked if Mr. Ford's constitutional concerns center around the removal of "while intoxicated". MR. FORD said yes. [Without that language] when someone is stopped for an accident and then arrested, it could be for something as simple as having a taillight out - something that has nothing to do with being intoxicated - and yet the driver would be tested. He noted, however, that the accident would also involve a death or serious physical injury, so those elements may create justification for the test - a special exception to the rule requiring a warrant before testing. Notwithstanding this possibility, he said, "I am not convinced of that at this point." CHAIR ROKEBERG posited that because an accident occurred, the arrest wouldn't stem simply from a taillight being out. MR. FORD clarified that his point in using that example is that the arrest could be for something completely unrelated to intoxication. CHAIR ROKEBERG explained that the objective is to ensure that regardless of the reason for the arrest, the test is administered if an accident occurred and resulted in the death or serious physical injury of someone. MR. FORD mentioned that a number of cases "point that out: that the purpose of this is not simply to convict someone, but to exonerate them." CHAIR ROKEBERG said, "Right." MR. FORD added: "The fact is that there may be no appearance of intoxication from someone who is impaired." Number 2335 CHAIR ROKEBERG said that's true; "I think that's exactly point here: we want to make sure that person has had that chemical test to make sure that that is the case, one way or the other, because many people can conceal their use of intoxicating spirits and/or substances." MR. FORD said that's correct, and that that's been pointed out by some judges. He added that the evidence may be disappearing while law enforcement is "standing there trying to figure out what to do." He offered that "those all may be good reasons to justify another exception to the warrant requirement." CHAIR ROKEBERG asked Mr. Ford if he considers the issuance of a citation the equivalent of an arrest. MR. FORD said no; an arrest is a defined process. CHAIR ROKEBERG surmised, then, that a speeding citation wouldn't "tripwire this provision." MR. FORD said that is correct. REPRESENTATIVE BERKOWITZ asked for an explanation of why [a search/chemical test] is constitutionally permissible under the implied consent statute. MR. FORD said that [that search/chemical test] is tied to an arrest for driving while intoxicated, which the courts have held is justifiable; a person can be tested, and even though the test is a search, it is justified. REPRESENTATIVE BERKOWITZ noted that in subsection (b) of the implied consent [law], which allows for a preliminary breath test (PBT), he does not see an arrest requirement. He asked whether there would be any difficulty in extending the implied consent [statute] to include other substances. MR. FORD said that returns to the question of how broad the search exception can be made. As [Blank decision, and that petition has been granted, briefed, and argued. Hence, there is another court waiting to look at these same issues. In the Blank case, in which [the defendant] was not arrested for driving while intoxicated and the police went to her home and talked to her, the police testified that there was no reason to take a breath test in that case because the officer didn't have any reason to believe she was impaired. The court held that the implied consent statute - specifically subsection (g) - failed because it didn't require an arrest and because there was no nexus between the arrest and any kind of evidence that alcohol or another substance impaired her driving. MS. CARPENETI said that although HB 329 one too." MS. CARPENETI noted that she also has to echo what the troopers and the police have said: "we get this evidence in most cases." She said that the DOL has been trying to figure out what cases the committee was looking at as the genesis for HB REPRESENTATIVE OGAN noted that basically, regardless of whether there is probable cause to believe that the driver is intoxicated, the legislature would be mandating that a chemical test be administered simply because there is an accident in which someone gets hurt. "Is that a major constitutional hurdle ... in your opinion?" Number 1788 MS. COOK said: "I think that's right, and I think thrust of what is trying to be achieved with this bill; I think that's ... deliberate. REPRESENTATIVE OGAN asked: So the fact that the person got in an accident and someone was seriously hurt - that isn't probable cause enough for a chemical test? MS. COOK said that that is obviously the issue that members are wrestling with. As far as she could tell, she added, there is a fair chance that a court will find that it isn't [probable cause enough]. CHAIR ROKEBERG asked: Even with the arrest? He indicated that he viewed the arrest as grounds for probable cause. MS. COOK pointed out that the arrest may be for behavior that isn't necessarily joined with the use of alcohol per se; that's the problem with trying to say that the arrest constitutes probable cause. CHAIR ROKEBERG noted that in certain cases, such as those described, chemical tests were not administered to the surviving drivers even though the results from such testing "could have established the nexus" for additional charges. Tests were only done on the individuals who died but not on the drivers who may have caused the accident. MS. COOK said she can appreciate members' frustration. She offered that perhaps a solution would be to alter the implied consent statute, as Representative Berkowitz has suggested, so that rather than having a mandatory test, refusal to take a test would result in other consequences, which is what the current implied consent statute does. CHAIR ROKEBERG remarked that there is a good deal of case law pertaining to the implied consent statute. Number 1678 REPRESENTATIVE JAMES noted that the arrest does not necessarily mean that there is any probable cause for any kind of "chemical activity," and that it seems to her that unless there is some sort of "activity, or action, or behavior" which indicates that someone is under the influence of something, there is no probable cause for a test regardless of whether there has been an arrest. She pointed out, however, that the language in Version C specifies that the arrest result from an accident, so there is a connection between the arrest and the accident. So it seems to her, she added, that the thing to do, then, would be to ask the driver if he/she would be willing to take a test, and if he/she refuses, charge that person with refusal. CHAIR ROKEBERG said that since reckless driving is an "arrestable" offense, it could "tripwire test." He noted that he does have concerns with the issue raised by Lieutenant Grimes regarding the feasibility of mandating the chemical test. He asked Ms. Cook whether that provision could be altered so that "shall" was modified by "where feasible" or something similar. He asked whether that would just weaken "any constitutional test" or whether it would it give a "defense counsel" a way to wiggle through. MS. COOK said: Well ... as far as that goes, ... I think your problem there probably doesn't get involved in constitutional issues so much as administrative burden. Basically, if you add "where feasible", you've built in some discretion - some wiggle room; how much - would be the source of argument, I suppose, on case-by-case basis. That alone could become a bone of contention, but it might be that even doing that much would give enforcement personnel a level of comfort that if they could demonstrate a radical enough set of facts, they could avoid having to administer the test - such as the lack of cooperation on the part of the person being tested. CHAIR ROKEBERG asked of Lieutenant Grimes: "In the rural areas, even if you had a DWI situation ... and no breathalyzer, do you take a blood test now? What if you can't take a blood test? What do you do?" LIEUTENANT GRIMES explained that the DWI cases that come out of the remote areas are based largely on the observations of the officer, which are all articulated and documented in the report; many times there is no intoximeter reading and those cases go to trial with just the officer's observations. She noted that although most of the officers have portable breath testers, which are also known as PBTs, [the results from] those are not admissible in court. The portable breath testers are simply used to help establish probable cause so that arrests can be made on the scene. She noted that many of the cases that are based solely on the observations of the officers are successfully prosecuted. Number 1388 CHAIR ROKEBERG announced that he would keep the public hearing open, and that HB CHAIR ROKEBERG called an at-ease from 2:20 p.m. to [2:31] p.m. HJR Number 1375 CHAIR ROKEBERG announced that the last order of business would be HOUSE JOINT RESOLUTION NO. 30, Relating to an amendment to the Constitution of the United States prohibiting desecration of the Flag of the United States. Number 1345 LINDA SYLVESTER, Staff to Representative Pete Kott, Alaska State Legislature, sponsor, gave the following presentation on behalf of Representative Kott: I wanted to first just [read] some of the core elements of the resolution that deals with the constitutional amendment for flag desecration: "WHEREAS certain actions, although arguably related to one person's free expression, nevertheless raise issues concerning public decency, public peace, and the rights of expression and sacred values of others; ... WHEREAS there are symbols of our national soul, such as the Washington Monument, the United States Capitol Building, and memorials to our greatest leaders, that are the property of every American and are therefore worthy of protection from desecration and dishonor; ..." Continuing on page 2, [line] 18: "WHEREAS the American Flag to this day is a most honorable worthy banner of a nation that is thankful for its strengths and committed to curing its faults and remains the destination of millions of immigrants attracted by the universal power of the American ideal; ..." Page 3, Line 1: "WHEREAS it is only fitting that people everywhere should lend their voices to a forceful call for restoration to the Stars and Stripes of a proper station under law and decency; BE IT RESOLVED by the Alaska State Legislature that the Congress of the United States is requested to pass House Joint Resolution 36 or Senate Joint Resolution 7, or comparable legislation, and present to the legislatures of the several states an amendment to the Constitution of the United States that would specifically provide the Congress power to prohibit the physical desecration of the Flag of the United States; ...." Number 1270 MS. SYLVESTER continued: Until being overturned by a 1989 decision of the [United States] Supreme Court, on a five to four vote, the American flag was consistently afforded protections under state law. These laws survived five various challenges in the Supreme Court until finally falling in Texas v. Johnson. Writing for the majority, Justice Brennan held that Johnson's conviction for flag desecration, under a Texas statute, was inconsistent with the First Amendment; Johnson could not be punished for burning the flag as a part of a public demonstration. The law as interpreted by the United States Supreme Court, we believe, no longer accords to our nation's precious banner the reverence and respect befitting the symbol of our noble experiment of a nation state, which President Lincoln called, "our last, best hope of mankind." This resolution supports Congressional [House Joint Resolution] 36 and Senate Joint Resolution 7. Both resolutions ask Congress to send an amendment to the states for ratification. If agreed [to] by three- fourths of the states, the amendment would empower Congress to prohibit the physical desecration of the flag. No other issue on Capitol Hill has the endorsement of 80 percent of the American people, ... the overwhelming majority of the U.S. House of Representatives and the [U.S.] Senate, and, as of August 2001, 100 percent of the state legislatures. U.S. Senator Ted Stevens issued a news release on a similar resolution, quote: "Noting Alaskans are strong in their belief that our flag should not be desecrated, the power to amend the Constitution demands a cautious respect. It is a considerable power - one that has helped to chart the course of our history. We should not jump headlong into amendments. But we should not be afraid to act on our beliefs, either." He continues: "The U.S. Supreme Court has given us a choice. We can accept that the First Amendment allows the desecration of America's flag, or we can change the law to prevent it," end quote. Number 1134 MS. SYLVESTER went on to say: The citizens of the United States have set in motion a grassroots campaign of unprecedented success, and it is with great respect that we ask the members of the Alaska State Legislature to affirm the efforts [to] change the law to protect the monument that is our nation's flag. As I said, until 1989, 48 out of 50 states had statutes prohibiting the burning of the flag. Most of the state statutes were patterned after the Uniform Flag Act [of] 1917. In that Act, Section 3 provides that: "no person shall publicly mutilate, deface, defile, trample upon, or by word or act, cast contempt upon such flag, standard, color, ensign or shield." Most of these laws were passed by the states at the time of World War I. The American flag, then, throughout our history, has come to be the very symbol embodying our nation. It does not represent the views of any political party; it does not represent any particular political philosophy. In fact, veterans of the Viet Nam War, upon returning home to a rejecting nation, found singular comfort and solace in the symbol of the American flag. This [was] distinct and separate from the citizens and the political leaders that had sent them there to fight. The flag is not another idea or "point of view" that filters to the top of pop culture. Millions and millions of Americans regard it with an almost mystical reverence, regardless of their divergent political, social, and philosophical beliefs. We maintain that the American flag is a national monument, a special kind of personality. It is the symbol of our nationhood and unity. The mystical status that inspires loyalty and intense devotion is "rooted in those who gave their lives that our nation might live. The brave men and women, living and dead who have struggled in its defense have consecrated it far and above our poor power to add or detract." Number 1032 MS. SYLVESTER concluded: The dissenting opinion in Texas v. Johnson, authored by Chief Justice Rehnquist, argued that it was Johnson's use of this particular symbol and not the idea that he sought to convey by it or by his many other expressions, for which he was punished. The fact is that Mr. Johnson was convicted for his use of the American flag - for its desecration. Similar to the desecration of American soldiers who were dragged through the streets of Mogadishu, burning or trampling the American flag carries an air of villainy, treachery, and barbarism. With respect, the sponsor requests that the [House Judiciary Standing Committee] pass [HJR their joint resolution and send an amendment to the states for their consideration and ratification. This resolution has no fiscal impact on the state, as it is a communication to the Congress. CHAIR ROKEBERG asked for an update on the status of [congressional] SJR MS. SYLVESTER confirmed that HJR MS. SYLVESTER said that Texas v. Johnson, those [codes] were [found] unconstitutional but have not been excised from statute. She explained that Title 18, as amended in 1989, replaces those outmoded codes. She relayed that Title 18, Part 1, Chapter 33, Section 700(a)(1) says: "Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both." She also remarked that Section 700(b) had been revised to say: "As used in this section, the term 'flag of the means any flag of the United States, or any part thereof, made of any substance, of any size, in a form that is commonly displayed". She added, however, that this, too, has been found unconstitutional as a result of the 1990 United States v. Eichman case. She then noted: "That's not the issue is, because if an amendment were to be put to the congress and ratified by the states, then those issues would have to be readdressed for the definition." REPRESENTATIVE BERKOWITZ, referring to a letter from Colin Powell on this subject, mentioned that the letter concludes by saying: "I shudder to think [of] the legal morass we'll create trying to implement the body of law that will emerge from such an amendment." Representative Berkowitz relayed that Mr. Powell also says: "If I were a member of Congress, I would not vote for the proposed amendment and would fully understand and respect the views of those who would." Representative Berkowitz went on to emphasize that, "for or against [this amendment], we all love our flag with equal devotion." Number 0433 REPRESENTATIVE JAMES, in response to the aforementioned concerns, said: I've thought a lot about this issue, and what we currently do with the flag. ... I know that backing up is very, very difficult to do, but the way I look at it is this: I do believe that our flag is certainly a representative of who we are, the freedoms that we have, and the Forefathers that came before us that set up a government that is not perfect but is the best there is .... REPRESENTATIVE JAMES continued, saying she believes that when people desecrate the flag, it is indicative of disrespect for this country and yet the flag bears the brunt of this disrespect. She implied that she considers this sort of behavior to be treasonous because one act incites another. She remarked that she is distressed to note that foreigners, who come to the United States to live and work, love this country more than some of the people who are born here. She said she supports HJR discussion about the issues it raises. REPRESENTATIVE COGHILL said he supports HJR vehemently disagree with you." He specified, "I think the best way of protecting the flag is for us to have this kind of conversation and for people to live up to the ideals that the flag represents. And I thank you, sir, for doing just that." CHAIR ROKEBERG acknowledged that the debate and discussion of this legislation has been going on for decades. He remarked, "I find myself really torn and in a conflict on this." For the record, Chair Rokeberg announced, "I am a great supporter of our First Amendment rights in this country and this state, but I'm also a veteran of the armed forces of this country, and I feel so strongly about this that I can't do anything other than ... vote to pass it." Number 0492 REPRESENTATIVE COGHILL moved to report HJR ADJOURNMENT Number 0556 There being no further business before the committee, the House Judiciary Standing Committee meeting was adjourned at 3:00 p.m.

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