SB 70 UNLAWFUL DISCHARGE OF A FIREARM  SENATOR DAVE DONLEY , sponsor of the measure, explained that currently in Alaska it is not a felony to shoot at a building or dwelling unless one knows it is occupied. SB 70 makes it a felony offense to fire a gun into a building and is the result of frustration expressed by police officers when attempting to prosecute for drive-by shootings. Under current law, unless proof is available that the person shooting the firearm knew the house was occupied at the time of the shooting, the offender can only be charged with a misdemeanor, unless property damage was more than $500, in which case the charge would be a class C felony. CHAIRMAN TAYLOR asked Senator Donley how the proposed committee substitute varies from the original bill. SENATOR DONLEY said in the original bill he tried to address every possible area of criminal law that might be impacted by such a change. SB 70 restructured misconduct involving weapons provisions, added shooting at a building to the list of crimes requiring automatic waiver to adult court, added provisions for possible impacts on the concealed weapons permit section, and included this crime under the definition of most serious types of crimes which is a trigger for the "three strikes" provision. That comprehensive approach made the bill very complicated and was an attempt to cover all possible scenarios. The proposed committee substitute is very simple, and only deals with what it takes to make it a felony to discharge a firearm in the direction of a building. SENATOR MILLER moved to adopt CSSB 70(JUD) (version O-LSO272\T) in lieu of the original bill. There being no objection, CSSB 70(JUD) was adopted. Number 249 SENATOR DONLEY explained CSSB 70(JUD) contains an intent section to clarify that discharge of a firearm at a building is a felony whether the offender knew the building was occupied or not. Section 2 is the core of the bill and establishes that a person commits a felony if he/she discharges a firearm in the direction of: an occupied building; an unoccupied building with reckless disregard for the risk of physical injury or damage; or a dwelling. The intent of this section is to omit a scenario in which someone shoots at an abandoned cabin in the woods, and was sure no one was in the building. Section 3 clarifies that the circumstances in Section 2 should be considered differently from circumstances under an existing law that makes it a misdemeanor to recklessly disregard risk of property damage or physical injury but does not involve buildings. Number 385 ANNE CARPENETI , Assistant Attorney General, testified that the Department of Law supports CSSB 70(JUD) with one exception. At present, discharging a firearm with reckless disregard for a risk of damage to property or a risk of physical injury to a person is a class A misdemeanor under the misconduct involving weapons provision. The Department of Law believes that activity should remain a misdemeanor because the new language on page 2, lines 13- 14 would make the act of shooting at an abandoned shack in the woods a felony by specifying property damage in the bill. Under current law, that activity is a property offense and is a misdemeanor unless the damage caused is in excess of $500, in which case the offense is a class B felony. Without that element included in the bill, the bill's intent, to make it a felony to shoot at buildings whether occupied or not, is addressed because a culpable mental state does not have to be proved. SENATOR PEARCE noted in her district a veterinary clinic and NAPA store have been shot at several times during drive-by shootings. Those buildings are adjacent to a home, and a childcare facility. No one has been injured during those shootings, but people are in the vet clinic at odd hours to care for the animals. She does not believe the people involved in the drive-by shootings consider whether the buildings are occupied. Senator Pearce felt it is dangerous to shoot at a person, animal or tire, and that those types of offenses ought to be felonies. She suggested describing, by definition, the abandoned cabin scenario previously discussed. Number 346 SENATOR DONLEY suggested removing the words "damage to property or a risk of" on page 2, lines 13-14. He believed that would remove the department's concern regarding property. MS. CARPENETI said that would go a long way to address the Department of Law's concerns regarding offenses strictly involving property and in those cases, criminal law is focussed on the amount of damage caused. SENATOR PEARCE said in Anchorage these situations are occuring at 5:00 p.m., not in the middle of the night, and the offenders are not concerned about whether they are only harming property. She stated she did not want to wait for a person to have to shoot another person before the offense becomes a felony. MS. CARPENETI replied Senator Donley's suggested language would go a long way to address the Department of Law's concerns. CHAIRMAN TAYLOR did not think property damage was the focus of CSSB 70(JUD) and moved to amend page 2, line 13, by deleting the words "damage to property or a risk of." SENATOR PEARCE asked if the police would have to prove there might have been a person in the building at the time of the shooting before they could charge the offender with a felony. Number 373 CHAIRMAN TAYLOR thought they would have to show a likelihood that people could have been in the building. He explained that any bullet shot at a building is going to cause physical damage, but property damage statutes address that offense. If the concern in this bill is about physical injury to a person in the building, one would have to prove that the offense was committed with reckless disregard, and the intent section in CSSB 70(JUD) changes the requirement of proving that the offender knew someone was in the building, to proving the act was so reckless they disregarded the possibility. SENATOR DONLEY thought the committee substitute will give prosecutors some discretion regarding when they bring cases, and judges the discretion to decide whether a particular level of disregard was shown. The proposed amendment would also allow for some discretion because if one shoots into a commercial building in an urban area, it is very possible people are working in those buildings at night. MS. CARPENETI noted other statutes address similar instances, for example, if a person is put in fear, the offender would be charged with assault. SENATOR DONLEY remarked the difference is that a victim must exist. CSSB 70(JUD) does not require that a real person be present during the shooting. Number 419 SENATOR PEARCE commented any weekend employee at the vet clinic will constantly wonder if another drive-by shooting will occur, so whether another incidence occurs or not, the fear factor has already been created. SENATOR DONLEY thought that was true, but would not meet the current definition in the assault statute because there must be an immediate fear of injury. CHAIRMAN TAYLOR stated the bill is stronger without the amendment because the only standard that would need to be shown is that someone fired with reckless disregard of property damage. Number 435 SENATOR DONLEY said the definition of "recklessly" requires that the risk must be of such a nature and degree that disregard of it would constitute a gross deviation from the standard of conduct that a reasonable person would observe in the situation. He believed shooting into a building where people might be working during the night would fit that definition. CHAIRMAN TAYLOR withdrew his amendment. SENATOR PEARCE moved CSSB 70(JUD) from committee with individual recommendations and the appropriate fiscal notes. There being no objection, the motion carried.