04/06/2009 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB148 | |
| SB85 | |
| SB110 | |
| SB176 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| = | SB 148 | ||
| += | SB 85 | TELECONFERENCED | |
| += | SB 110 | TELECONFERENCED | |
| *+ | SB 176 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 6, 2009
1:40 p.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Bill Wielechowski, Vice Chair
Senator Lesil McGuire
Senator Gene Therriault
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 148
"An Act relating to limitation of state liability on certain
federal highway programs; and providing for an effective date."
MOVED CSSB 148(JUD) OUT OF COMMITTEE
SENATE BILL NO. 85
"An Act relating to limitations on possessing, sending,
shipping, transporting, or bringing alcoholic beverages to a
local option area and to penalties for violations of those
limitations; relating to probation for minor consuming or in
possession or control of alcoholic beverages; relating to civil
fines for liquor licensees whose agents or employees furnish
alcoholic beverages to a person under 21 years of age; and
providing for an effective date."
MOVED CSSB 85(JUD) OUT OF COMMITTEE
SENATE BILL NO. 110
"An Act relating to the preservation of evidence."
MOVED CSSB 110(JUD) OUT OF COMMITTEE
SENATE BILL NO. 176
"An Act relating to an interstate compact on educational
opportunity for military children; amending Rules 4 and 24,
Alaska Rules of Civil Procedure; and providing for an effective
date."
HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 148
SHORT TITLE: LIABILITY FOR TRIBAL ROAD CONSTRUCTION
SPONSOR(s): TRANSPORTATION BY REQUEST
03/13/09 (S) READ THE FIRST TIME - REFERRALS
03/13/09 (S) TRA, JUD
03/24/09 (S) TRA AT 1:00 PM BUTROVICH 205
03/24/09 (S) Moved SB 148 Out of Committee
03/24/09 (S) MINUTE(TRA)
03/25/09 (S) TRA RPT 4DP 1NR
03/25/09 (S) DP: KOOKESH, MENARD, DAVIS, MEYER
03/25/09 (S) NR: PASKVAN
03/30/09 (S) JUD AT 1:30 PM BELTZ 211
03/30/09 (S) Heard & Held
03/30/09 (S) MINUTE(JUD)
04/06/09 (S) JUD AT 1:30 PM BELTZ 211
BILL: SB 85
SHORT TITLE: ALCOHOL: LOCAL OPTION/LICENSING/MINORS
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
01/26/09 (S) READ THE FIRST TIME - REFERRALS
01/26/09 (S) CRA, JUD, FIN
02/03/09 (S) CRA AT 3:30 PM BELTZ 211
02/03/09 (S) Heard & Held
02/03/09 (S) MINUTE(CRA)
02/17/09 (S) CRA AT 3:30 PM BELTZ 211
02/17/09 (S) Moved CSSB 85(CRA) Out of Committee
02/17/09 (S) MINUTE(CRA)
02/19/09 (S) CRA RPT CS 2DP 2NR NEW TITLE
02/19/09 (S) DP: MENARD, KOOKESH
02/19/09 (S) NR: OLSON, FRENCH
02/23/09 (S) JUD AT 1:30 PM BELTZ 211
02/23/09 (S) Heard & Held
02/23/09 (S) MINUTE(JUD)
03/20/09 (S) JUD AT 1:30 PM BELTZ 211
03/20/09 (S) PRESERVATION OF EVIDENCE
04/01/09 (S) JUD AT 1:30 PM BELTZ 211
04/01/09 (S) PRESERVATION OF EVIDENCE
04/06/09 (S) JUD AT 1:30 PM BELTZ 211
BILL: SB 110
SHORT TITLE: PRESERVATION OF EVIDENCE
SPONSOR(s): FRENCH
02/17/09 (S) READ THE FIRST TIME - REFERRALS
02/17/09 (S) JUD, FIN
02/25/09 (S) JUD AT 1:30 PM BELTZ 211
02/25/09 (S) Heard & Held
02/25/09 (S) MINUTE(JUD)
03/20/09 (S) JUD AT 1:30 PM BELTZ 211
03/20/09 (S) -- MEETING CANCELED --
04/01/09 (S) JUD AT 1:30 PM BELTZ 211
04/01/09 (S) -- MEETING CANCELED --
04/06/09 (S) JUD AT 1:30 PM BELTZ 211
BILL: SB 176
SHORT TITLE: COMPACT: EDUCATION OF MILITARY CHILDREN
SPONSOR(s): HUGGINS
04/01/09 (S) READ THE FIRST TIME - REFERRALS
04/01/09 (S) JUD, FIN
04/06/09 (S) JUD AT 1:30 PM BELTZ 211
WITNESS REGISTER
PETER PUTZIER, Senior Assistant Attorney General
Civil Division
Opinions, Appeals, & Ethics
Department of Law
Anchorage,
POSITION STATEMENT: Commented on SB 148.
DOROTHY SHOCKLEY, Staff
to Senator Albert Kookesh
Alaska Capitol Building
Juneau AK
POSITION STATEMENT: Provided information related to SB 148.
ANNE CARPENETI, Attorney
Criminal Division
Department of Law
Juneau, AK
POSITION STATEMENT: Provided information on SB 85 and explained
amendments to SB 110.
DIANE CASTO, Project Manager
Prevention and Early Intervention Services
Division of Behavioral Health
Department of Health and Social Services,
POSITION STATEMENT: Testified in support of SB 110.
MICHELLE COLLINS, DNA Unit Supervisor
Statewide Crime Laboratory
Department of Public Safety
Anchorage, AK
POSITION STATEMENT: Provided information about the Statewide
Crime Laboratory as it relates to SB 110.
ORIN DYM, Forensic Laboratory Manager
Statewide Crime Lab
Department of Public Safety
Anchorage, AK
POSITION STATEMENT: Stated support for Amendment 3 to SB 110.
JEFFERY MITTMAN, Executive Director
ACLU of Alaska
Anchorage, AK
POSITION STATEMENT: Testified that the ACLU generally supports
SB 110 but has some concerns with Amendment 2.
BILL OBERLY, Interim Director
Alaska Innocence Project
Anchorage, AK
POSITION STATEMENT: Expressed some concern with Amendment 2 to
SB 110 to the extent that it deals with intentional conduct.
JOSH TEMPLE, Staff
to Senator Huggins
Alaska Capitol Building
Juneau, AK
POSITION STATEMENT: Introduced SB 176 on behalf of the sponsor.
RICK MASTERS, Special Council
Interstate Compacts
Council of State Governments
POSITION STATEMENT: Testified in support of SB 176.
THOMAS HINTEN, Senior State Liaison
Office of the Undersecretary of Defense
Department of Defense
Washington, D.C.
POSITION STATEMENT: Provided supporting testimony to SB 176.
CAROL COMEAU, Superintendant
Anchorage School District
Anchorage, AK
POSITION STATEMENT: Testified in support of SB 176.
ACTION NARRATIVE
1:40:30 PM
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing
Committee meeting to order at 1:40 p.m. Present at the call to
order were Senators Therriault, Wielechowski and French. Senator
McGuire arrived soon thereafter. He related that on Wednesday
the committee would hold the confirmation hearing on the
Governor's appointee as attorney general. Public testimony will
be taken at 5:30 pm.
SB 148-LIABILITY FOR TRIBAL ROAD CONSTRUCTION
1:41:39 PM
CHAIR FRENCH announced the consideration of SB 148 and asked for
a motion to adopt work draft committee substitute (CS), version
\E, as the working document.
SENATOR WIELECHOWSKI moved to adopt work draft CS for SB 148,
labeled 26-LS0685\E. There being no objection, version E was
before the committee.
CHAIR FRENCH explained that the language in the CS is the result
of lengthy negotiation between the Department of Law and
representatives from the plaintiffs bar in Anchorage. His
understanding is that the language is mutually agreeable. He
asked Mr. Putzier his perspective.
PETER PUTZIER, Senior Assistant Attorney General, Civil
Division, Opinions, Appeals, & Ethics, Department of Law,
Anchorage, said he hasn't seen a copy of the CS, but he had
agreed to something in principle.
CHAIR FRENCH said he would have a copy posted online. In the
meantime, he read subsection (d) starting on page 1.
1:44:51 PM
MR. PUTZIER said the language differs in some respects to what
was agreed upon, but the changes probably will be acceptable. "I
will want to look at it more closely, but I think we can proceed
on this basis," he added.
CHAIR FRENCH agreed that the drafters changed the language in
the definition of "independent negligence" but he feels
confident that the phrases mean nearly the same thing.
MR. PUTZIER said that is his initial impression as well.
CHAIR FRENCH suggested that with the possible exception of
several words on page 1, line 13, this is a concept everyone can
agree to. He noted the letter of support from the Manley Village
Council.
1:46:49 PM
SENATOR THERRIAULT asked why the phrase "other federal
transportation programs or transportation grants designed to
benefit tribes" was deleted and what the impact is.
MR. PUTZIER explained that the plaintiffs bar expressed concern
that the phrase didn't define specific programs or grants. That
made it unclear whether the Federal Tort Claims Act would apply
under all circumstances and therefore whether there would be a
guaranteed ability to sue the tribe under the Act. As a
compromise DOL narrowly defined the largest programs and those
that are subject to the Federal Tort Claims Act. The impact is
that future transportation programs and grants won't be covered
so the legislation will probably require amendment to address
situations that might arise.
SENATOR THERRIAULT said he just wanted it on the record if that
is in fact what is anticipated.
1:48:36 PM
CHAIR FRENCH, noting that Mr. Putzier now had a copy of the CS,
asked him to take a minute to review the language before the
committee moves on.
SENATOR THERRIAULT observed that the original bill talked about
the "catch line,which is a phrase he never heard before, and
the CS substituted that phrase with "section heading."
CHAIR FRENCH acknowledged that he too is unfamiliar with the
phrase and he suspects the legislative drafters made the
substitution.
SENATOR THERRIAULT asked if all the money comes directly to the
tribes or if it flows through the state coffer and is
appropriated to the program.
1:50:15 PM
DOROTHY SHOCKLEY, Staff to Senator Kookesh, explained that for
the most part the money goes directly to the tribes. She noted
that she had submitted a list showing the amount of money going
to each community as well as the roads in their inventory.
SENATOR THERRIAULT asked if the tribal entities apply directly
to the IRR Program for the money.
MS. SHOCKLEY replied they apply through the Bureau of Indian
Affairs (BIA).
SENATOR THERRIAULT remarked he knows that someone is keeping
track of all federal stimulus dollars and he's mindful that
there will be a leveling effort.
CHAIR FRENCH asked Mr. Putzier if he had further comments on the
CS.
MR. PUTZIER expressed the view that the final clause is awkward,
and he would suggest inserting "due to" before the phrase "the
state's approving or accepting" on page 2, line 1.
1:53:07 PM
CHAIR FRENCH moved Conceptual Amendment 1.
CONCEPTUAL AMENDMENT 1
Page 2, line 1:
Insert "due to" before the phrase "the state's
approving or accepting"
Finding no objection, he announced that Conceptual Amendment 1
is adopted.
CHAIR FRENCH expressed small qualms related to the language on
page 1, lines 12 and 13. He consulted Mr. Putzier and proposed
Amendment 2.
AMENDMENT 2
Page 1, line 13:
Delete "occurs and" before the phrase "is not due
to the state's selection,"
MR. PUTZIER said it sounds reasonable.
CHAIR FRENCH found no objection and announced that Amendment 2
is adopted.
1:55:08 PM
CHAIR FRENCH closed public testimony and asked the will of the
committee.
SENATOR WIELECHOWSKI moved to report CS for SB 148, version E as
amended, from committee with individual recommendations and
attached fiscal note(s). There being no objection, CSSB 148(JUD)
moved from the Senate Judiciary Standing Committee.
SB 85-ALCOHOL: LOCAL OPTION/LICENSING/MINORS
1:57:07 PM
CHAIR FRENCH announced the consideration of SB 85 and asked for
a motion to adopt work draft committee substitute (CS), version
\S.
SENATOR WIELECHOWSKI moved to adopt work draft CS for SB 85,
labeled 26-GS1009\S, as the working document. There being no
objection, version S was before the committee.
ANNE CARPENETI, Attorney, Criminal Division, Department of Law,
explained that this CS does not contain the provisions dealing
with local options that were in the original bill. Those were
removed primarily due to the reaction by the community of Bethel
and their representatives.
CHAIR FRENCH noted the resolution in the packet from the City of
Bethel opposing much of the original bill and stated his belief
that the CS addresses most of the concerns expressed in the
resolution.
MS. CARPENETI explained that the bill consists of three parts.
The first two make minor technical changes to legislation that
was adopted last year dealing with alcohol enforcement. She
offered to again explain those changes and members indicated
that wasn't necessary. The remaining issue is to adopt civil
penalties for licensees or owners of bars and package stores if
one of their agents or employees is convicted of furnishing
alcohol to a minor while working on the licensed premises.
Current law provides that a bartender can be prosecuted for a
class A misdemeanor if he or she is convicted of furnishing
alcohol to a minor. She noted that mistakes shouldn't happen
very often now that Alaska driver licenses for minors have a
vertical, as opposed to horizontal, format.
1:59:29 PM
MS. CARPENETI said under current law there are no real
consequences to the owners of a bar or liquor store whose
employee is convicted of furnishing alcohol to a minor. While
most licensees are responsible and take steps to ensure that
they don't serve minors, investigations of bars and package
stores have shown that about 20 percent fail to maintain that
high standard. The administration would like to reduce that
failure rate and has decided to take direction from the
successful tobacco enforcement program. When civil penalties
were adopted for the owners of stores whose employees or agents
sold tobacco to under age people, the effect was dramatic.
SB 85 adopts less severe penalties than the ones that the
Governor tried to adopt in previous years. This bill provides
that for the first offense the owner receives a letter that
explains the penalties for subsequent offenses. The second and
subsequent offenses bring a $1,000 fine. The hope is that all
bar owners will be more responsible.
2:02:25 PM
DIANE CASTO, Project Manager, Prevention and Early Intervention
Services, Division of Behavioral Health, Department of Health
and Social Services, said her section of behavioral health
manages the tobacco enforcement and education program. This
involves going out into communities to check business
establishments for a number of things including sales to minors.
These so called "SYNAR checks tie the percentage of tobacco
sales to minors to a state ability to receive its federal
substance abuse prevention and treatment block grant. Every year
each state receives a block grant from SAMHSA (Substance Abuse
Mental Health Services Administration) for treatment and
prevention of substance abuse, but penalties are imposed if a
state has a sell rate of tobacco to minors that is over 20
percent. We take our tobacco enforcement very seriously because
we don't want to lose funding and because we don't want our
youth smoking cigarettes and having access to tobacco, Ms. Casto
said. According to the youth risk behavior survey, tobacco use
by youths has dropped significantly every year since the more
punitive penalties were imposed. Likewise, access to tobacco has
reduced.
CHAIR FRENCH reviewed a chart on display and observed that 2002
was the break-over year.
MS. CASTO said that was the first year that penalties were
imposed on businesses with tobacco endorsements. Those penalties
are more punitive than the ones proposed in SB 85, but they have
been proven to work, she added.
2:06:51 PM
CHAIR FRENCH clarified for the listening audience that Ms. Casto
is arguing by analogy.
MS. CASTO said that's correct, but there are similarities. She
explained that youths work with the tobacco investigators to try
to purchase tobacco. That's how the compliance rates are
determined. Under a partnership agreement these same youths have
for the last several years also worked with the alcohol
investigators to try to purchase alcohol. Interestingly, a youth
that is able to purchase alcohol from a business is turned away
when he or she tries to buy tobacco. One reason for that is that
the penalties for selling tobacco to a minor are much more
severe. "People are much more aware of not selling tobacco to
minors than they are of alcohol," she said.
MS. CASTO referenced several research reports on regulatory
strategies for preventing youth access to alcohol that look at
commercial availability, social and public availability, and
youth possession. This research found that administrative
sanctions are a best practice for reducing youth access to
alcohol. These sanctions target the licensee because they are in
the best position to prevent future violations by setting good
policies and providing good training for the clerks who sell
alcohol. Under current law just the clerks receive a penalty for
selling alcohol to a minor. Having clear and consistent
penalties is an excellent part of a multi-strategy approach. But
we aren't saying that retail stores and bars are the only way
that youths get alcohol, Ms. Casto emphasized. In fact, a youth
risk behavior survey indicates that youth get their alcohol
through a licensed vendor just seven percent of the time. Other
ways include raiding parents' liquor cabinets, standing outside
an establishment and asking an adult to buy for them, and
getting it from older friends. "We see this as part of a multi-
strategy approach to impact all of these different areas, she
said. Research also shows that to be effective there must be a
credible threat of consequences that are swift, certain and
continue over time. Administrative penalties are the most
effective mechanism for deterring sales of alcohol to minors.
2:09:51 PM
SENATOR MCGUIRE joined the committee.
MS. CASTO related that as with most things in health and social
services, they are looking to best practices that have research
and evaluation behind them and that have data that show that the
strategies that are used are effective. "Everything that has
been studied has shown that administrative penalties for the
licensee is a very effective method of reducing alcohol
accessibility to youth and I think the tobacco example is a
perfect comparison," Ms. Casto stated.
CHAIR FRENCH said public testimony has been closed, but he would
point out that the current CS removes the local option aspects
of the bill so most of the concerns articulated in earlier
public testimony have been addressed.
SENATOR THERRIAULT referred to page 1, line 12, and asked if the
bill is clear on how the warning for a first conviction will be
issued.
CHAIR FRENCH asked Ms. Carpeneti if she foresees the warning to
be written or verbal.
MS. CARPENETI said she assumes it would be written but it would
be helpful if it were spelled out.
CHAIR FRENCH asked Senator Therriault if he'd like to move a
friendly amendment.
2:12:49 PM
SENATOR THERRIAULT moved Amendment 1.
AMENDMENT 1
Page 1, line 12:
Insert "written" before "warning"
CHAIR FRENCH found no objection and announced that Amendment 1
is adopted.
He noted that Mr. Mittman with the ACLU and Doug Moody with the
Public Defender Agency are online to answer questions on the
bill.
SENATOR THERRIAULT asked for clarification that just one warning
will be issued per licensed premises and not one warning per
employee.
2:14:36 PM
MS. CARPENETI said that's correct.
SENATOR THERRIAULT asked if there would be a way for a licensee
to get around this by reformulating their business.
MS. CARPENETI replied DOL envisions this going to the license.
CHAIR FRENCH stated for the record that Sections 2-5 of this CS
have not been changed.
MS. CARPENETI corrected her previous statement and said she
reads the bill to say that if a bar owner transfers their
license the new licensee would start over and get one free
strike.
CHAIR FRENCH restated that the transgression does not travel
with the paper license; it transfers with the person holding the
license.
MS. CARPENETI stated agreement; that's the point of holding
responsible the person who is running the business, setting the
tone, and adopting the policies.
2:16:42 PM
SENATOR WIELECHOWSKI moved to report CS for SB 85, version S as
amended, from committee with individual recommendations and
attached fiscal note(s). There being no objection, CSSB 85(JUD)
moved from the Senate Judiciary Standing Committee.
At ease at 2:17 pm.
SB 110-PRESERVATION OF EVIDENCE
2:18:22 PM
CHAIR FRENCH announced the consideration of SB 110 and asked for
a motion to adopt work draft committee substitute (CS) \E as the
working document.
SENATOR THERRIAULT moved to adopt work draft CS for SB 110,
labeled 26-LS0560\E. There being no objection version E was
before the committee.
CHAIR FRENCH said Ms. Smith will go through the changes and then
Ms. Carpeneti will discuss some amendments proposed by the
Department of Law.
CINDY SMITH, Staff to Senator French, stated that the CS
includes the following changes:
• Throughout the bill anytime a defendant is referred to an
adjudicated juvenile is referred to as well.
• Page 2, lines 11 and 12, subsection (b), adds clarifying
language that an agency shall follow written policies in
making decisions on what evidence it would or would not
retain.
• Page 3, line 1, the conjunction "and" is inserted before
paragraph (3) to correct the grammar.
• Page 3, lines 19, and 20, subsection (h), adds provisions
providing immunity from civil liability. DOL will likely
suggest substitute language, Ms. Smith said.
• Page 4, at the request of the court the ex officio task
force position from the Alaska Supreme Court is eliminated.
2:21:01 PM
CHAIR FRENCH highlighted the letter from the Alaska Peace
Officers Association opposing the bill and the letter from the
Alaska Women's Lobby supporting SB 110. These letters have come
in since the last hearing.
CHAIR FRENCH asked Ms. Carpeneti to explain the amendments DOL
is proposing.
ANNE CARPENETI, Attorney, Civil Division, Department of Law
(DOL), expressed appreciation for the cooperation from the
sponsor and his staff in working on SB 110.
CHAIR FRENCH returned he sees DOL as a partner because this
won't work without cooperation.
SENATOR MCGUIRE moved Amendment 1.
CHAIR FRENCH objected for discussion purposes.
AMENDMENT 1
OFFERED IN THE SENATE
TO: SB 110
Page 4, following line 3:
Insert new bill sections to read:
* Sec. 2. AS 44.41.035(g) is amended to read:
(g) A person from whom a sample has been
collected under this section
(1) may inspect and obtain a copy of the
identification data regarding the person
contained within the DNA identification
registration system; and
(2) may request the Department of Public
Safety to destroy the material in the system
regarding the person under the provisions
described in (i) of this section.
* Sec. 3. AS 44.41.035(i) is amended to read:
(i) The Department of Public Safety shall [, UPON
RECEIPT OF A COURT ORDER,] destroy the material in the
system relating to a person or minor upon the written
request of the person or minor, if the request is
accompanied by a certified copy of a court order
indicating that [The COURT SHALL ISSUE THE ORDER IF]
the person's or minor's DNA was included in the system
under
(1)(b)(1) or (2) of this section, and the court
order establishes [DETERMINES] that
(A) the conviction or adjudication that
subjected the person to having a sample taken
under this section was [IS] reversed; and
(B) the person
(i) was [IS] not retried,
readjudicated, or convicted or adjudicated
for another crime that requires having a
sample taken under this section; or
(ii) after retrial, was [IS] acquitted
of the crime or after readjudication for the
crime, was [IS] not found to be a
delinquent, and was [IS] not convicted or
adjudicated for another crime that requires
a sample under this section;
(2)(b)(6) of this section, and the court order
establishes [DETERMINES] that
(A) the person arrested was released without
being charged; [OR]
(B) the criminal complaint, indictment,
presentment, or information for the offense for
which the person was arrested was dismissed, and
a criminal complaint, indictment, presentment, or
information for an offense requiring submission
of a DNA sample was [IS] not refiled; or
(C) the person was found by the trier of
fact to be not guilty of the offense for which
the person was arrested and was not convicted of
another offense requiring submission of a DNA
sample under (b)(1) or (2) of this section.
* Sec. 4. AS 44.41.035 is amended by adding a new
subsection to read:
(r) A DNA sample collected or placed in the DNA
identification registration system, that was taken or
retained in good faith, may be used as provided by law
in a criminal investigation. Evidence obtained from a
match from a data collection system may be used in a
criminal prosecution if the DNA sample was taken or
retained in good faith, even if the DNA sample is
later removed from the DNA identification registration
system.
Renumber the following bill sections accordingly.
MS. CARPENETI explained that when the legislature changed the
law regarding DNA collection, it provided a method for a person
charged or convicted of a crime to get their DNA out of the
databank if the charge or conviction is overturned. What it did
not include is a procedure for a person to get their DNA out of
the databank if they are later acquitted of the offense for
which they were arrested and charged. The FBI requires that
procedure under CODIS (Combined DNA Index System), which is the
national repository for DNA profiles. Accordingly, this
amendment provides the procedure for a person who is acquitted
to ask for their DNA to be removed from the databank.
The amendment also contains a good-faith provision which
provides that DNA that has not been removed from the databank
can be used if there is a valid hit on it.
CHAIR FRENCH observed that "It's not a get-out-of-jail-free card
on a hit that is validly derived while the information is in the
databank."
2:25:07 PM
CHAIR FRENCH, responding to a question, clarified that Ms.
Carpeneti is explaining subsection (r) on the third page of
Amendment 1. He asked if this adds to the language covering the
individuals who can get their DNA removed from the databank.
MS. CARPENETI replied this is in addition to the statute
addressing the DNA databank. This suggestion came from the crime
lab and CODIS has made a similar suggestion.
2:26:40 PM
MICHELLE COLLINS, DNA Unit Supervisor, Statewide Crime
Laboratory, Department of Public Safety, said she is the state
representative to the FBI on matters of CODIS and the DNA
database. She described the amendment as essential. When the DNA
law was changed there was some talk about getting an AG opinion
to address removal of DNA from the database when there is an
acquittal, but that did not happen. When the lab began putting
arrestee DNA samples in the national database, the FBI said it
would be a violation of federal law to proceed without an
established procedure for handling arrestees who are acquitted.
In order to submit samples to CODIS, the lab revised its
procedures until it could seek an amendment to address that
issue.
The laboratory hasn't needed to use the good-faith clause but it
could important, Ms. Collins said. It addresses circumstances
where there is a hit to a sample that should not be, but is, in
the database. For example, if DNA evidence from a serial rapist
produces a hit and matches the sample from a person who should
not be in the database, the good-faith clause allows the lab to
proceed.
2:30:02 PM
CHAIR FRENCH removed his objection and seeing no further
objection, announced that Amendment 1 is adopted.
SENATOR MCGUIRE moved Amendment 2.
CHAIR FRENCH objected for discussion purposes.
AMENDMENT 2
[Original punctuation provided.]
OFFERED IN THE SENATE
TO: CSSB 110 LS0560\E
On page 3 at line 19, delete the language in (h) and
replace with
A person may not bring a civil action for damages
against the state or political subdivision of the
state, their officers, agents, or employees, or a law
enforcement agency, its officers, or employees for any
failure to comply with the provisions of this section.
MS. CARPENETI explained that the amendment addresses civil
liability for police departments throughout the state that may
not comply with the law with respect to retention of evidence.
Police departments will do their best to comply with the law,
but it would be very hard on a small village police department
to suffer civil liability for a mistake they made. This language
was suggested because it is already in current law for putting
in and taking out of the database domestic violence restraining
orders. It's a bit broader than the language that's in the bill.
2:32:12 PM
SENATOR THERRIAULT asked how it squares with subsection (g) that
says the court may order remedies if it finds that evidence was
destroyed.
MS. CARPENETI replied they address different things. Subsection
(g) represents what happens in a criminal prosecution or post
conviction relief that is pursued by an individual if evidence
is lost. Subsection (h) addresses civil liability money
damages to the police department if they make a mistake. This is
a new requirement for police departments to abide by and DOL
doesn't think they should be held for money damages if a mistake
is made.
CHAIR FRENCH observed that the criminal defendant may enjoy some
benefit from an intentional destruction of evidence in their
case, but that criminal defendant can't sue the police officer
for money because of the event.
2:34:17 PM
MS. CARPENETI said yes and depending on the situation, the court
could dismiss the subsequent prosecution, but this amendment
addresses money damages for violation of the Act by the police
officer or his or her employer.
CHAIR FRENCH asked if it would possibly include the lawyers as
well.
MS. CARPENETI answered yes.
2:35:08 PM
CHAIR FRENCH noted that Ms. Carpeneti said there are similar
provisions in other places of the law; this is a blanket bar
even for intentional acts.
MS. CARPENETI said yes; AS 18.66 is the limitation of liability
for police with respect to putting domestic violence restraining
orders in and out of the DV registry. Responding to a question,
she said the Department of Law supports the amendment.
CHAIR FRENCH withdrew his objection and seeing no further
objection, announced that Amendment 2 is adopted.
2:35:53 PM
SENATOR MCGUIRE moved Amendment 3.
CHAIR FRENCH objected for discussion purposes.
AMENDMENT 3
[Original punctuation provided.]
OFFERED IN THE SENATE
TO: CSSB 110 LS0560\E
At page 4, line 18, insert:
(8) a representative of the State Crime Lab.
MS. CARPENETI related that the bill adopts a task force to
address evidence retention issues and the State Crime Lab
suggested they might make helpful contributions to the task
force. They do hold the evidence.
CHAIR FRENCH asked Mr. Dym if he supports Amendment 3.
ORIN DYM, Forensic Laboratory Manager, Statewide Crime Lab,
Department of Public Safety, said he does support it.
CHAIR FRENCH removed his objection and seeing no further
objection, announced that Amendment 3 is adopted.
2:37:17 PM
JEFFERY MITTMAN, Executive Director, ACLU of Alaska, said the
ACLU generally supports SB 110 but has some concerns with
Amendment 2 relating to the database and good-faith exception.
The ACLU would prefer an automatic exclusion of evidence for
someone who has been acquitted and would like the good-faith
provision limited. "But generally we appreciate the work of the
committee in addressing this important issue, he stated.
BILL OBERLY, Alaska Innocence Project, said his only problem
with the amendments to SB 110 relate to Amendment 2 to the
extent that it deals with intentional conduct. I don't think
that's appropriately a part of that and would counsel the
committee to use caution in allowing intentional conduct to go
forward, he said.
MR. OBERLY suggested that if the bill doesn't get signed this
year the committee might want to breakout the section on the
task force and pass it now and allow that task force time to
develop suggestions before the Senate deals with the bill next
session. That would be the best use of everyone's time, he said.
2:39:57 PM
CHAIR FRENCH said it unlikely that the bill will be signed
into law this year, but the effect of that suggestion would be
to jettison all portions of the bill except the task force and
let it move forward on its own. Perhaps we should talk further
about that before coming to a final decision, he said.
With respect to the point on Amendment 2, Senator French said he
shares some of that concern. An intentional act to destroy
evidence is something the committee should be very cautious
about indemnifying anyone for. He said he can appreciate Ms.
Carpeneti's perspective on the domestic violence writs, but
what's playing out now on a large scale is the withholding of
evidence and the horrible implications that can have on a trial.
CHAIR FRENCH directed attention to Amendment 2 and asked Ms.
Carpeneti if inserting the word "intentional" before "failure to
comply" would preserve all immunity for negligent or knowing
failures.
MS. CARPENETI said she believes so.
SENATOR THERRIAULT questioned whether unintentional" isn't the
word he's looking for. This section protects the employees and
the idea is to protect them from an unintentional act.
CHAIR FRENCH said he doesn't want employees to be sued if they
forget to save the evidence or even if they think about it and
then don't remember to do it.
SENATOR THERRIAULT returned that's unintentional.
MS. CARPENETI said she agrees it would achieve the purpose. The
way the amendment reads is that a person may not bring an action
for unintentional failure to comply.
2:43:08 PM
CHAIR FRENCH moved Amendment 4.
AMENDMENT 4
Insert: "unintentional" before the phrase "failure to
comply" in the third line of the previously adopted
Amendment 2.
Finding no objection he announced that Amendment 4 is adopted.
SENATOR MCGUIRE directed attention to Amendment 2 and asked if
it makes a material difference and if the phrase "with
provisions of this section" refers to the entire bill.
MS. CARPENETI said she believes that's correct.
SENATOR MCGUIRE mused that there's no material difference other
than adding the specific reference to officers, agents, or
employees.
MS. CARPENETI offered that with the adoption of Amendment 2 more
parties are covered and DOL sees that as an important
difference.
2:45:07 PM
SENATOR THERRIAULT referenced paragraph (2) in Section 1 of the
bill and asked if the family of a prisoner who died while in
prison could make a motion to have the deceased prisoner's DNA
sample removed from the database.
MS. CARPENETI replied that is not her understanding. "While the
person remains a prisoner in the custody of the Department of
Corrections" is language that came from Legislative Legal. It
means that the person is in jail but it does not mean that the
family of a person could make a motion to have the person's DNA
removed from the database. "I think any right dies with the
prisoner."
2:46:36 PM
SENATOR THERRIAULT mentioned an article he read about a family
that cleared a man who had died in prison and commented that it
doesn't seem as though that set of circumstances would be a
remedy for the family.
CHAIR FRENCH offered that it would no longer be an obligation of
the state to preserve evidence so that the family would have
access to it. "At some point the effort ends."
MS. CARPENETI said that is correct. At a certain point police
departments have to clear evidence from their inventory.
"Keeping evidence after the defendant has died seems unnecessary
to us."
SENATOR THERRIAULT questioned whether police departments could
get rid of evidence under the language in the bill.
CHAIR FRENCH returned that as long as the person is no longer a
prisoner a police department could get rid of the evidence.
MS. CARPENETI stated agreement.
SENATOR THERRIAULT noted the references to the crimes that this
law would apply to and asked if there was a particular reason
that sex trafficking and child kidnapping aren't included.
MS. CARPENETI explained that the idea was to start with the most
serious offenses that would typically have DNA evidence that
would be relevant. While sexual abuse and sexual assault
typically do have DNA evidence, sex trafficking isn't the type
of case where DNA would typically be relevant.
2:48:45 PM
CHAIR FRENCH said his sense was that this bill would be
difficult to get through the process because it's a major change
in the way evidence is handled in this state. Focusing on
homicide, rape in the first degree, and sexual assault of a
minor in the first degree is a measurable change. If the bill
gains momentum and people want to add other crimes we can
discuss that, he said.
MS. CARPENETI added that the bill does provide that these
obligations for police departments apply if a person is indicted
for sexual assault in the first degree or sexual abuse in the
first degree and is subsequently convicted of lesser included
offenses.
2:49:47 PM
CHAIR FRENCH solicited a motion to move the bill.
SENATOR MCGUIRE moved to report CS for SB 110, as amended today,
from committee with individual recommendations and attached
fiscal note(s). There being no objection, CSSB 110(JUD) moved
from the Senate Judiciary Standing Committee.
SB 176-COMPACT: EDUCATION OF MILITARY CHILDREN
2:50:29 PM
CHAIR FRENCH announced the consideration of SB 176.
JOSH TEMPLE, Staff to Senator Huggins, said the purpose of SB
176 is to remove barriers facing children of military families
as they move between school systems. On average a student from a
military family will move between six and nine times during
their K-12 years. While the military has done a lot to ease
these transitions, more can be done at the state and local level
to ensure that these children are afforded the same opportunity
for educational success as other children.
12,106 active duty children between the ages of 5 and 18 plus
the children of active members of the Guard and the Reserve will
benefit from this compact. In 2008 11 states adopted this
compact and 22 others have pending legislation to join. This
legislation will provide these children with timely enrollment
as they move from one school district to another, which will
help to remove some of the associated stress of moving. The bill
enjoys widespread support; it supports our troops and our kids,
he said.
2:53:27 PM
RICK MASTERS, Special Council, Interstate Compacts, Council of
State Governments, said he has been working on and writing about
interstate compacts for the last 20 years. The mission of the
Council of State Governments has for 75 years been to promote
the role of states in solving problems that affect more than one
state but that still should be under the control of and has
historically been governed by the states. This compact is no
exception; it will level the playing field for children of
military members when they transfer from state to state during
grades K-12. Research indicates that transferring students
frequently encounter problems with enrollment, eligibility,
placement, and graduation. The compact attempts to address the
difficulties in these four areas.
2:57:13 PM
Enrollment can be delayed when students move into a new school
district if the receiving school won't accept a photo copy of
the student school transcript. The compact would require a
school district in a member state to recognize a legitimate
photocopy of a record awaiting arrival of the original record.
The sending school district would furnish the record within a
ten-day period.
Eligibility relates to things like extracurricular activities.
When students miss the required induction protocol for clubs or
activities, the compact would ask the state to allow the student
to participate if they are otherwise qualified. There would not
be a requirement to create a position, but the compact seeks to
prevent situations where a student is penalized simply because
their move wasn't timely.
With respect to placement, the compact seeks to have the
receiving state make a reasonable accommodation to place a
transferring student in comparable courses and levels to the
state from which they came. It does not prevent the receiving
state from doing subsequent testing and replacement. The goal of
the compact is to avoid delay in placement.
The fourth area addresses timely graduation. The compact asks
receiving states to reasonably accommodation students who
transfer in their junior or senior year by waiving certain
course requirements. For example, state history from a
transferring state could fulfill the state history requirement
for the receiving school. The compact also asks the receiving
state to consider waiving exit exams, but if this isn't possible
it asks the receiving state to work cooperatively to secure a
diploma from the sending state.
MR. MASTERS highlighted the numerous stakeholders who are
interested in this legislation.
3:03:25 PM
THOMAS HINTEN, Senior State Liaison, Office of the
Undersecretary of Defense, Department of Defense (DOD),
Washington D.C. said this is part of an ongoing effort to work
with states on issues that impact military families. Transition
challenges for students is the issue they hear about most
frequently from military families. During times of deployment
Guard members are even more dramatically impacted. DOD considers
this a readiness issue because parents reflect on and make
decisions about staying in the military when they're sitting
around the kitchen table talking about the welfare of their
children relative to education. Folks who are on the battlefield
need to be concentrating on their mission rather than being
distracted by whether or not their children are being
accommodated properly at school.
Alaska has done a tremendous job helping and supporting the
military so this issue comes up not so much about what one state
would do, but more about how states can work together to make
the transition process work more smoothly. If each state were to
follow uniform practices, students would know they would be
accommodated properly. Just last week the governor of Virginia
signed similar legislation. That state has the highest number of
school-age military children in the nation. He appreciates that
Alaska is seriously considering this as well.
3:07:03 PM
CAROL COMEAU, Superintendant, Anchorage School District,
conveyed that the school board passed unanimously a resolution
supporting the military compact in the belief that this is good
business for students of military families in Anchorage and
around the state. Anchorage schools already practice most of the
strategies Mr. Masters outlined and have been able to work
through most situations. The board does strongly feel that if
this bill passes and becomes part of the Alaska culture, it
sends a strong message of support for Alaska's military
families. Military parents would be better able to focus on
their mission knowing that their kids are being taken care of in
the school districts statewide. Superintendants in Kodiak,
Fairbanks, Sitka, and MatSu have voiced support for this
initiative, she said.
CHAIR FRENCH closed public testimony.
3:08:53 PM
SENATOR THERRIAULT asked where the House bill is in the process.
MR. TEMPLE replied it is in House Finance.
CHAIR FRENCH announced he would hold SB 176 for further
consideration.
3:09:33 PM
There being no further business to come before the committee,
Chair French adjourned the Senate Judiciary Standing Committee
meeting at 3:09 pm.
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