Legislature(1999 - 2000)
04/12/2000 02:13 PM Senate JUD
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SENATE JUDICIARY COMMITTEE
April 12, 2000
2:13 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Rick Halford, Vice-Chairman
Senator Dave Donley
Senator Johnny Ellis
MEMBERS ABSENT
Senator John Torgerson
COMMITTEE CALENDAR
SENATE CS FOR CS FOR HOUSE BILL NO. 37(HES)
"An Act relating to restricting sale of cigarettes, to enforcement
of certain laws relating to sales of cigarettes, and to smoking
education and cessation programs administered by the Department of
Health and Social Services."
-MOVED SCS CSHB 37(JUD)am OUT OF COMMITTEE
SENATE BILL NO. 305
"An Act relating to wildfires and other natural disasters."
-HEARD AND HELD
SENATE BILL NO. 201
"An Act relating to violations of an order to submit to
deoxyribonucleic acid (DNA) testing, to court orders and conditions
of parole to collect samples for DNA testing, to removal of
material from the DNA identification registration system; and to
the collection and processing of samples from certain burglary
perpetrators for the DNA identification registration system; and
providing for an effective date."
-HEARD AND HELD
SENATE BILL NO. 207
"An Act relating to the establishment and enforcement of medical
support orders for children; and providing for an effective date."
-HEARD AND HELD
HOUSE BILL NO. 99
"An Act relating to sexual assault and the definitions of 'sexual
contact,' 'sexual penetration,' and 'legal guardian' in AS 11."
-HEARD AND HELD
PREVIOUS SENATE COMMITTEE ACTION
HB 37 - See Judiciary Committee minutes dated 4/10/00.
SB 305 - No previous action to report.
SB 201 - No previous action to report.
SB 207 - See HESS minutes dated 3/22/00.
HB 99 - No previous action to report.
WITNESS REGISTER
Mr. Tom Manninen
Aid to Representative Rokeberg
State Capitol Building
Juneau, Alaska 99801
POSITION STATEMENT: Testified on HB 37
Ms. Portia Parker
Aid to Senator Green
State Capitol Building
Juneau, Alaska 99801
POSITION STATEMENT: Presented Sponsor Statement for SB 305
Mr. Dean Brown, Deputy Director
Department of Natural Resources
Division of Forestry
550 West 7th Avenue, Suite 1450
Anchorage, Alaska 99501
POSITION STATEMENT: Testified on SB 305
Captain Don Savage
Department of Public Safety
Division of Alaska State Troopers
453 South Valley Way
Palmer, Alaska 99645
POSITION STATEMENT: Testified on SB 305
Major Ted Bachman
Department of Public Safety
Division of Alaska State Troopers
5700 East Tudor Road
Anchorage, Alaska 99507-1225
POSITION STATEMENT: Testified on SB 305
Mr. Larry Wood
HC 04 Box 9311
Palmer, Alaska 99645
POSITION STATEMENT: Supports SB 305
Ms. Barbara J. Leiss
PO Box 1329
Palmer, Alaska 99645-1329
POSITION STATEMENT: Testified on SB 305
Mr. Ken E. Rowland
HC 04 Box 9194
Palmer, Alaska 99645
POSITION STATEMENT: Testified on SB 305
Ms. Helen D. Munoz
PO Box 4013
Palmer, Alaska 99645-4013
POSITION STATEMENT: Testified on SB 305
Mr. Del Smith, Deputy Commissioner
Department of Public Safety
PO Box 111200
Juneau, Alaska 99811-1200
POSITION STATEMENT: Supports SB 201
Mr. Robert Buttcane
Department of Health and Social Services
Division of Juvenile Justice
PO Box 110635
Juneau, Alaska 99811-0635
POSITION STATEMENT: Testified on HB 99
Ms. Candace Brower
Department of Corrections
Parole Board Officer
PO Box 112000
Juneau, Alaska 99811-2000
POSITION STATEMENT: Supports SB 201 and HB 99
Ms. Leann Strickland
Address not furnished
POSITION STATEMENT: Testified on SB 201
Mr. George Taft
Address not furnished
POSITION STATEMENT: Testified on SB 201
Ms. Lauree Hugonin
130 Seward, Room 209
Juneau, Alaska 99801
POSITION STATEMENT: Supports SB 201
Ms. Barbara Miklos
Department of Revenue
Child Support Enforcement Division
550 West 7th Avenue, Suite 310
Anchorage, Alaska 99501
POSITION STATEMENT: Testified on SB 207
ACTION NARRATIVE
TAPE 00-21, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 2:13 p.m. Present were SENATOR HALFORD, SENATOR DONLEY
and CHAIRMAN TAYLOR. The first order of business to come before
the committee was HB 37.
HB 37-SMOKING CESSATION AND EDUCATION PROGRAMS
CHAIRMAN TAYLOR reminded the committee that testimony for HB 37 was
heard April 10 and a new committee substitute is the result of that
meeting.
SENATOR DONLEY moved to adopt SCS CSHB 37, version T. There being
no objection, version T was adopted.
CHAIRMAN TAYLOR recommended that amendment T.2, Ford, 04/11/00 be
adopted. This amendment is to page 4, line 13 and inserts a new
subsection that reads: (j) A person who violates (g) of this
section is guilty of a class B misdemeanor." By utilizing this
amendment the bill retains its sanctions for grey good sales.
MR. TOM MANNINEN, aid to Representative Rokeberg, said that
Representative Rokeberg supports amendment T.2.
SENATOR DONLEY moved to adopt amendment T.2. There being no
objection, amendment T.2 was adopted.
SENATOR DONLEY moved SCS CSHB 37 am from committee with individual
recommendations. There being no objection, the motion carried.
Number 270
SB 305-RIGHTS OF PROPERTY OWNER IN DISASTER AREA
MS. PORTIA PARKER, aid to Senator Lyda Green, stated for the record
that SB 305 was introduced to address the concerns of private
property owners and residents during emergency management of
wildfires and disaster areas. SB 305 establishes statutory
guidelines for balancing the rights of private property owners and
emergency personnel during wildfires and natural disasters.
MS. PARKER said the main provisions of SB 305 provide that an adult
resident or property owner can choose to evacuate or not to
evacuate an area, unless a minor or young children are involved.
Property owners and residents shall be permitted to enter a
threatened area if entry does not interfere with emergency
personnel and proof of residency or property ownership is provided.
MS. PARKER stated that SB 305 also provides statutory protection
for all emergency personnel from liability if a property owner or
resident is injured or killed because they choose not to evacuate
or they entered or re-entered a threatened area.
Number 432
MAJOR TED BACHMAN, Alaska State Troopers, said he has been working
with the Department of Natural Resources (DNR), the Bureau of Land
Management (BLM) and Public Safety and Fire Services in the Matsu
Valley to develop a statewide evacuation policy. The committee
feels that SB 305 does not address all of the essential issues.
CHAIRMAN TAYLOR asked about the granting of complete immunity for
people or organizations that might have some type of liability in
a disaster.
MAJOR BACHMAN said he thinks immunity is given to the emergency
agency or organization that is handling the disaster if they advise
a resident to leave and the resident refuses or the resident
obtains re-entry knowing there may be some danger to life and
property.
Number 754
CAPTAIN TOM SAVAGE, Alaska State Troopers, said the committee's
policy is almost in the final stages of development and it
provides more flexibility for all concerned. The policy provides
input for modifying areas that need strengthening or areas that
need to be corrected and it clarifies the issues. One area of
difficulty has been the definitions of terminology, and the policy
defines these things and provides a clear direction for emergency
responders.
CAPTAIN SAVAGE said that one of the biggest issues has been access
into an area. SB 305 has not changed current statutory issues--
firefighters can still restrict or close access to areas. The
policy approach allows more flexibility, greater input, and greater
mobility once issues are found.
CHAIRMAN TAYLOR asked Captain Savage if he had specific instances
he wanted to address.
CAPTAIN SAVAGE said there is no provision in the statute for
removing a intoxicated person or a mentally incapable person
without their consent.
CAPTAIN SAVAGE commented that re-entry or entry is also an issue
addressed by the policy. The draft policy defines what will be
expected if there is a road closure, road block or checkpoint.
CHAIRMAN TAYLOR said he was not sure what policy Captain Savage
was referring to.
CAPTAIN SAVAGE responded it is the policy Major Bachman was
referring to--what the committee has been developing for the past
nine or ten months.
CHAIRMAN TAYLOR asked if this is a internal policy to guide
personnel in making decisions or is it a policy that will be
enforceable through regulation.
CAPTAIN SAVAGE said the policy has not been addressed at this level
and certainly not in terms of regulation.
CHAIRMAN TAYLOR asked how the policy addresses the issue of a
intoxicated person wanting to go into a fire area?
CAPTAIN SAVAGE responded that a incapacitated person will be
prevented from going into a fire area, but a person with alcohol on
his breath who appears to be rational will be allowed to enter to
protect his property.
CHAIRMAN TAYLOR asked to what extent does the policy assist in
these circumstances.
CAPTAIN SAVAGE said it develops greater layers and levels for
evacuation, providing for exigent circumstance when people are
unable to protect themselves and have to be removed without their
consent.
Number 1211
MR. LARRY WOOD, resident of Lazy Mountain, said he witnessed the
entire exercise at Lazy Mountain. His house fronted Clark
Wolverine Road where the majority of the activity occurred, and his
letter to the Governor was the catalyst for what has happened. He
also stated that he disagrees with Captain Savage.
MR. WOOD said he is a member of the Lazy Mountain Community
Counsel Post-fire Committee which drafted the statutes. The
committee decided to reject the policy because policy changes,
depending on who is in charge. Contrary to Captain Savage's
assertions, the policy is not benign for the residents of the area.
If an evacuation order is given, people who refuse to leave should
be removed even if force is needed. There is no qualification for
this point in the policy.
MR. WOOD said the Lazy Mountain Community Council feels that SB 305
will insure that property owners are not treated as chattel.
Federal mandate says that there should be no participation of
property owners in defense of their property, but it was recognized
at Miller's Reach that homes were saved when residents stayed to
help. Fire crews can bulldoze the property, the house or whatever,
in order to stop the fire but the State takes no responsibility for
that property.
MR. WOOD said his only criticism of SB 305 is that the proof of
identification (ID) is raised beyond the level of a driver's
license. If a person is called at work or finds out over the radio
that there is an emergency, they may leave their ID behind in their
haste to leave.
MR. WOOD noted that the only thing he is trying to do with SB 305
is to insure that people have access to their property.
SENATOR TAYLOR asked Mr. Wood if he had a copy of SB 305.
MR. WOOD responded yes. He said it varies little from what was
drafted with the exception of the section that states: "contains
the photograph," and the original draft from the Lazy Mountain
Council said that a person who provides false witness should be
held criminally liable. The financially responsible aspect of SB
305 is also objectionable because it makes "the person who vouches
is responsible for that individual who goes into the area and has
a fender bender, for example."
MR. WOOD said the citizens of Lazy Mountain are not going to sue a
police officer for trying to do his job under the circumstances
that were experienced at Lazy Mountain, but they most assuredly
will object--SB 305 is that objection.
MR. WOOD said the Lazy Mountain fire was handled very badly by the
Division of Forestry and the Alaska State Troopers in terms of
security and perimeter control. The draft plan addresses some of
this, but the residents of Lazy Mountain feel that it would serve
all of Alaska well to have the protection afforded by SB 305.
CHAIRMAN TAYLOR thanked Mr. Wood and said he shares some of the
same concerns. One of his concerns is over the wording "legally
and financially responsible for another person," and another
concern is over the liability aspects of the immunity provision.
CHAIRMAN TAYLOR said it is the intent of the Committee to hold SB
305 and work on it in the interim.
Number 1900
MS. BARBARA LEISS made the following comments:
First of all, this is farm country. Most of the people who live
here are farmers with large tracts of land, livestock and other
animals. A lot of the people have lived here all of their life
and everyone knows everyone. Hence, the reason for all of the
problems that occurred during the roadblock.
People seeking access to a fire or disaster area must show good
reasons to the officers or firefighters in charge for wanting to
enter that area, whether they are a resident, relative of a
resident, or friend of a resident who wants to help. There are a
lot of people in Alaska that do not have fire insurance and they
will take desperate measures to save their goods--firefighters and
police officers need to realize that.
Another problem was that the fire occurred in the afternoon and it
reached its peak around 1:30 or 2:00 on a weekday. Elementary
school children were being bussed home at that time. They were
dropped off on the main road to walk to their homes. Shortly after
2:30, State Troopers were informed by the firefighters to put up a
roadblock to the mountain at its main entrance. Remember, we have
only one way in and one way out and that's the problem. Parents
returning home from work were denied access to get to their
children who were home alone and the authorities did not know which
homes had children nor did they take any steps to evacuate the
children. There was no means of transportation for evacuating the
children. There were also disabled people in wheelchairs who were
home alone. The police should work with the residents when there
are children and disabled and elderly people involved. This area
is not addressed in SB 305 and the citizens of Lazy Mountain would
like it included.
There was also an incident with an old man who was in a wheelchair.
The man's son finally convinced the police to check on him. The
police went to the door, didn't wait very long, and were already
out the driveway by the time the elderly man in the wheelchair got
to the door. Common sense needs to be used.
"And, of course, you've already heard about the drawing of the gun
on a farmer boy here who has never had a criminal record in his
life and the reason that boy was so desperate to get to his farm
and his family was because at the roadblock, he was told that his
house was on fire and his family was trapped."
MS. LEISS said that changing the statutes to be more reasonable for
the majority of citizens is in order.
Number 2115
MR. KEN ROWLAND, resident of Lazy Mountain, said he does not
believe the policy is the way to address this problem, and he
wholeheartedly agrees with Larry Wood that policy changes with the
people in charge. He is also concerned about the gun issue.
MR. ROWLAND said that policy should not be at the whim of
bureaucrats and firefighters who can change it indiscriminately.
He is also concerned that firefighters can burn a person's home to
enhance the firefighting effort. Destroying property should never
be left to the decision of one person--at least three officials
should make that decision.
CHAIRMAN TAYLOR suggested the re-draft should have a provision
saying that if there is a decision to burn a home or building the
State will rebuild or give the owner money to rebuild.
Number 2287
MS. HELEN MUNOZ said the other people who testified expressed her
concerns. She said that for the first time in her life she felt
threatened by authority during the Lazy Mountain fire.
Number 2302
SB 201-DNA TESTING & REGISTRATION
DEPUTY COMMISSIONER DEL SMITH, Department of Public Safety, said
the State has been collecting DNA samples since 1996 from people
convicted of person crimes and the samples have been stored at the
crime lab. The lab processes the samples and creates files that
can be uploaded to the national system so they can be checked
against known samples from crime scenes.
DEPUTY COMMISSIONER SMITH said SB 201 will add felony burglary to
the list of people who will be required to give a DNA sample.
Burglaries are included because the review of national statistics
indicates that 52% of the people convicted or arrested on person
crimes have been convicted of burglaries previously. Having DNA
samples from convicted individuals will help solve crimes sooner.
DEPUTY COMMISSIONER SMITH noted that SB 201 also allows for a
parole officer, peace officer or probation officer to take a DNA
sample. Blood samples have been used in the past and SB 201 allows
for the use of a swab to take saliva from an individual. This will
be more efficient and less intrusive and a sample can be taken
without undue discomfort or inconvenience.
Deputy Commissioner Smith said there is also a section in SB 201
that enables the sample to be removed from the data base if the
person is found not guilty.
Tape 00-21, Side B
Number 2329
MR. ROBERT BUTTCANE, Juvenile Probation Officer with the Division
of Juvenile Justice for the Department of Health and Social
Services (DHSS), said DHSS supports SB 201. SB 201 will give the
system an opportunity to solve more crimes and hold people
accountable. Technology has advanced so that DNA samples can now
be collected with a mouth swab rather than drawing blood. SB 201
allows youth counselors, probation officers and correctional
officers to require a person convicted of one of the applicable
offenses to submit to a DNA sampling. Failure to do so will
subject them to a violation of law under title 11. Once the sample
has been taken it is catalogued and put into a state registry,
which is limited to law enforcement use only.
MS. CANDACE BROWER, Department of Corrections (DOC), said DOC
supports SB 201. For the past five years, the medical staff of
correctional facilities have been responsible for the collection of
DNA samples and DOC is glad there will be an expansion of who can
collect samples.
Number 2130
CHAIRMAN TAYLOR said he was concerned that a DNA sample can be
easily tainted.
MS. LEANN STRICKLAND, supervisor of the DNA section at the
laboratory, commented that 13 different genetic loci are looked at
when analyzing samples and if there is some type of contamination
it will be seen in the analysis. If a contamination is seen,
another sample will be asked for or the sample will be retested.
CHAIRMAN TAYLOR asked how it will be known that a sample is
tainted.
MS. STRICKLAND said each individual can have two alternate forms of
any of the loci and if more than two forms of any given gene appear
in the data analysis the sample itself would be questioned. It is
very rare for an individual to have more than two alternate forms
at any one locus or any one gene type. People working in the lab
will be able to look at the DNA typing evidence to determine if
there are low levels of another contributor or something in the
sample that does not fit the pattern of a single source sample.
CHAIRMAN TAYLOR noted the Alaska Civil Liberties Union (ACLU) has
filed a paper in opposition to SB 201.
Number 2029
CHAIRMAN TAYLOR wondered about the retro activity provision in SB
201 going back to 1996.
DEPUTY COMMISSIONER SMITH replied that 1996 is when the original
data base was started and because the bill applies to offenses
occurring on or after January 1, 1996, the retroactive provision
was felt to be logical.
MR. GEORGE TAFT added that the labs are only looking at the 13 loci
for a persons identification and not for medical maladies of the
person. The labs are not able to tell a persons medical history
from the loci.
CHAIRMAN TAYLOR said one of the questions raised by the ACLU was
whether or not the 13 loci will indicate the racial makeup of the
individual.
MS. STRICKLAND responded no. The profile will not indicate the
racial group the person is from but it will give an indication as
to which racial group from that particular profile will be expected
to be most common and which particular racial group is expected to
be most rare. The profile itself will not identify the race of the
individual.
Number 1923
CHAIRMAN TAYLOR asked if there is a national standard for testing
or a national verification system that is used.
MS. STRICKLAND said the laboratory where she works is an accredited
laboratory and they follow the DAB standards. DAB is the DNA
Advisory Board that has set forth the standards for forensic DNA
testing labs. These standards set forth quality assurance that
must be met in confirming analysis of forensic samples. These
standards also pertain to the convicted offender samples.
CHAIRMAN TAYLOR asked what agency audits them.
MS. STRICKLAND said her laboratory has been accredited by the
American Society of Crime Laboratory Directors (ASCLD). The DAB
standards are used by auditors as well as the ASCLD standard. The
DAB has been signed off by the Director of the FBI.
CHAIRMAN TAYLOR asked what is used to make certain that the system
is accountable and renders accurate results.
MR. TAFT responded that the lab is tested and accredited and the
people working in the lab are proficiency tested. There is also a
yearly inspection by people from outside the laboratory.
Number 1681
MS. LAURIE HUGONAN, Executive Director for the Alaska Network on
Domestic Violence and Sexual Assault, said the Network supports SB
201. The Network is interested in making as many DNA samples
available as possible, so when there is a sexual assault crime the
samples will be run for comparisons as soon as possible. This will
help in finding the guilty person and it will increase the
likelihood of DNA matches being found.
Number 1577
SB 207-MEDICAL SUPPORT ORDERS FOR CHILDREN
MS. BARBARA MIKLOS, Department of Revenue (DOR), said SB 207 makes
three simple changes to existing statute. First, under existing
statute an order for medical support can only be established in
conjunction with a financial support order. DOR is required by
Medicaid to establish a medical support order for people who go
onto a public assistance program and then DOR is required by
statute to establish a financial support order. DOR would like to
separate the two orders, establishing a medical support order only
without an order for financial support. A financial support order
will be established if the parent wants one. Second, SB 207 amends
the medical support statute to provide that either parent, not
simply the obligor, may be required to provide health care
coverage. Third, this bill amends the law to require that a
medical support order be issued regardless of whether health care
coverage is currently available to either parent. This is being
done now and the order is not in effect until the health insurance
becomes available.
MS. MIKLOS said DOR believes this bill will help custodial parents
because they will not need a financial order, noncustodial parents
for the same reason and it will also help keep the Child Support
Enforcement Division out of the middle of conflict with the
parents.
Number 1411
HB 99-SEXUAL ASSUALT:VICTIM IN STATE CUSTODY
MS. CANDACE BROWER, Department of Corrections (DOC), said that HB
99 will make a crime of sexual assault in the third degree a class
C felony for an employee of a state correctional facility who
engages in sexual penetration with an offender in the custody and
care of DOC. SB 99 will also make a crime of sexual assault in the
fourth degree a class A misdemeanor for an employee of a state
correctional facility to engage in sexual contact with an offender
in the care and custody of DOC. This legislation also applies to
a DHSS employee who is the legal guardian of a person 18 or 19
years old. Current sexual misconduct laws in Alaska only apply to
acts committed against individuals who are mentally incapacitated.
MS. BROWER quoted from literature from the National Women's Law
Center:
In states that have no specific legislation criminalizing the
sexual abuse of prisoners, correctional employees may be
prosecuted under the states existing sexual assault and rape
statutes. Under these laws, consent is assessed as criminal
liability. However, many experts believe that the inherent
disparity in power between prisoners and correctional
employees renders valid consent impossible in the prison
context. Also from both a management and a public policy
prospective, sanctioning consensual sex between correctional
employees and prisoners severely compromises legitimate
correctional goals such as prison security, inmate management
and rehabilitation.
MS. BROWER said that DOC feels strongly about protecting the people
who are in their custody and care. It is not part of a persons
sentence to be subjected to sexual assault or abuse of any kind.
CHAIRMAN TAYLOR said he has no difficulty with the legislation.
There being no further business to come before the committee,
CHAIRMAN TAYLOR adjourned the meeting at 3:20 p.m.
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