HOUSE BILL NO. 330 "An Act relating to providing alcoholic beverages to a person under 21 years of age." REPRESENTATIVE NORMAN ROKEBERG, SPONSOR, testified in support of HB 330. He observed that a major tragedy occurred in Anchorage last summer. An Anchorage police officer, Justin Wollan, was killed in an automobile accident. The officer was killed when he was hit by a teenager [under the influence of alcohol], who perished along with other young people in the automobile. The two individuals that were convicted of furnishing alcohol to a minor could only be charged with misdemeanors. The legislation would raise the penalty for a person who furnishes alcohol to a minor from a misdemeanor to a class C felony, if the action of the minor results in serious injury or death. A class C felony is punishable by a sentence of up to five years and up to a $50 thousand dollar fine. A misdemeanor is limited to up to one year in prison and up to a $5 thousand dollar fine. He noted that in the Anchorage incident one of the individuals was convicted of two counts of misdemeanor furnishing alcohol to a minor and sentenced to a maximum penalty of two consecutive years [in prison] and a fine of $10 thousand dollars. The legislation would allow the judge to pursue a felony if the situation is egregious; where there was a serious injury or death as a result of the cause of drinking alcohol. Representative Croft spoke in support of the legislation's intent. He questioned if "negligently causes serious physical injury" would include "intentionally" causing serious physical injury. Representative Rokeberg noted that the standard is simple negligence. Representative Croft asked if the legislation would cover a case where a minor who was provided alcohol assaulted somebody or, as in Officer Wollam's case, they intentionally drove across the meridian. Representative Rokeberg deferred the question to legal counsel. Representative Croft expected the legislation to tie the harmful act to the intoxication. He asked the legal standard for "under the influence". He questioned if it would be the .08 blood alcohol content (BAC) level or the alcohol having any affect on the conduct. Representative Rokeberg thought that the standard was changed from .10 BAC to .08 BAC. He pointed out that impairment is .04 BAC. Representative Croft concluded that impairment would be included. Representative Rokeberg agreed, in that it affects the actions of the youthful miscreant. He stated that it was his interpretation that "impairment" would be included under the legislation. ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES SECTION, CRIMINAL DIVISION, DEPARTMENT OF LAW provided information regarding the legislation. She clarified that the Department interprets the law to be "under the influence" of an alcoholic beverage. She pointed out that the state prosecuted DWI cases for "under the influence" prior to blood alcohol standards and breathalyzers. She observed that it is a question of fact; whether or not the state can prove beyond reasonable doubt that the person was under the influence of alcoholic beverages. "Under the influence" is not defined statutorily. There are definitions of drunken person in Title 4. "Under the influence" is a term that courts apply depending on the individual defendant and the surrounding circumstances of their behavior. Representative Croft reiterated that he expected to see a nexus between providing the alcohol, specifically being under the influence, and the negligence. He noted that [the legislation pertains] to persons who cause physical injury and are under the influence, without any link that indicates that the drunken state was a contributing factor to or was a substantial factor in the injury. Being negligent and being under the influence are independent in the bill. Ms. Carpeneti thought that the conditions were connected. She thought "while under the influence of the alcoholic beverage received in violation of the section" speaks to the intent of the legislation. She noted that the intent was to cover situations where individuals furnish alcoholic to minors and [the minor] goes out and hurts people because of their alcoholic intoxication. She emphasized the difficulty of defining "under the influence" because it depends on the person. Young people tend to be influenced at a lower level of alcohol than more experienced drinkers. Representative Croft observed that in cases where a license holder in alcohol provides alcohol to a minor or someone who is intoxicated, and they can be held civilly liable do not require that it be shown that the particular alcohol that was sold contributed to the accident, but they do require a link to the actual drunkenness to the incident. He stressed that there is precedent for linking the intoxicated state to the negligent act. Representative Rokeberg noted that the previous versions of the bill connected both negligence and under the influence; both negligence and under the influence would have to be present. The current statute for .08 BAC is driving while intoxicated. Ms. Carpeneti explained that criminal law sets a certain culpable mental state for the state to prove in order for a person to be found guilty of an offense, Title 11 provides that any culpable state more serious than that stated, qualifies for that culpable mental state. She explained that if the standard is criminal negligence and a person is proved to have acted recklessly then they could be convicted for criminally negligent homicide under the circumstances. Representative Rokeberg added that the standard is civil negligence. Representative Lancaster questioned if drugs could be included. Representative Rokeberg pointed out that Title 4 deals with alcohol. The inclusion of "controlled substances" would need to be included under another title. Representative Lancaster questioned if there is a way to present the message without the legal penalty. Representative Rokeberg noted that other laws have required the posting of signs. He did not think that [posting signs] would be warranted if the state does its job and gets the word out. He expressed the hope that people would become aware that the Legislature has reacted to the Anchorage tragedy. He maintained that young people and children often know the laws, such as minor possession, before adults. Representative John Davies asked for further interpretation regarding the language contained in the legislation. Ms. Carpeneti explained that Title 11 speaks to the person that furnishes alcohol to a minor, which results in harm to other persons. Representative Croft read A.S. 11.81.900: (1) a person acts with "criminal negligence" with respect to a result or to a circumstance described by a provision of law defining an offense when the person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists; the risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. Representative John Davies questioned if a person would be criminally negligent if they had alcohol in their cupboard and knew that [the minor(s) who consumed the alcohol and subsequently committed an offense which causes harm to another person] knew that it was there. He also questioned if a person provides alcohol [to a minor] and the minors promise not to go anywhere but subsequently go out and drive, if the person would be criminally negligent. Representative Rokeberg observed that there were substantial discussions in the House Judicial Committee on the "hosting event" issue. He explained that criminal negligence is on the part of the person that furnishes. The person that does the act would also have to be negligent and cause physical harm. Supervision around the dispensing of alcohol, such as from a parent to a child, is recognized as legal under the statutes. There are circumstances that are allowed under Title 4 for hosting. He did not think that the situation in a home where there was no supervision would be qualified as a criminally negligent activity. Ms. Carpeneti stressed that, as in all criminal cases, it depends on the facts. If the alcohol is in a cupboard and the person doesn't invite their children or their friends to use it they would not be criminally negligent. If the adult invites the underage children to consume the substance then they would be negligent because they would know that there was a risk that the minors would drink [the alcohol]; they would be inviting them to violate the law. Representative John Davies concluded that the alcohol has to be provided with criminal negligence and secondly, the person has to negligently cause physical injury. Ms. Carpeneti stated that the legislation is more of a penalty provision because the law already prohibits providing alcohol to minors. Representative Rokeberg interjected that the legislation is just stepping up the penalty provision. Ms. Carpeneti pointed out that the second time a person furnishes alcohol to a minor they can be charged and convicted of a class C felony. Representative Croft questioned if someone who creates an intentional act would be covered. Ms. Carpeneti stated that the intent was that an intentional act be covered as long as the child is acting under the influence of alcohol at the time. Representative Croft expressed concern that an adult that allows their 19 or 20 year old child to have a beer would be the guarantor of their subsequent conduct. Representative Rokeberg pointed out that it is currently a misdemeanor [to furnish alcohol to a minor] even if the child does not injure someone. Representative Croft concluded that it would be a class C felony if a person negligently furnishes a minor with alcohol, who causes injury, even if it is not related to being under the influence. Ms. Carpeneti noted that it would be class C felony if it were the second occasion and no one was hurt. The clear intent is that the injury is related to "under the influence". In response to a question by Representative Foster, Representative Rokeberg reviewed the sentencing of the individuals convicted of furnishing alcohol to the minors involved in the Wollam case. Representative Harris referred to the fiscal note by the Alaska Public Defenders Agency. The Alaska Public Defenders Agency expressed concerns regarding determinations and what constitutes an "injury". Representative Rokeberg noted that the definition is in Title 11. He explained that "serious physical" was added [to injury]. Vice-Chair Bunde drew the parallel of a loaded firearm and questioned if it would be negligent to have a loaded firearm in a home where it is misused and someone is injured. Ms. Carpeneti did not know the civil negligence ramifications under the law. On a personal level, she felt that it would be egregious to leave loaded guns where children could get them and felt that it could rise to civil negligence. It would depend on the facts. Vice-Chair Bunde asked if alcohol in the home would potentially have the same problems as the loaded firearm. Ms. Carpeneti responded that alcohol has the potential of being very harmful, "as we have seen, over and over." Representative Rokeberg noted that there is another piece of legislation on the issue, which provides a cause of action in civil damages that would come before the committee. The could not be combined due to the single subject rule. Vice-Chair Bunde stated that he did not think it was negligent to have a bottle of wine in an unlocked cabinet. Ms. Carpeneti agreed and explained that the legislation addresses "furnishing" which is much more serious. Representative Whitaker agreed with the intent but questioned the threshold necessary to achieve the intent. He summarized that there must be a provision of alcohol by an adult, which is currently a misdemeanor. Then there must be a criminally intent occurrence, which also has a provision of negligence associated with the minor. He questioned if both were necessary to make the penalty more severe. Ms. Carpeneti explained that the legislation addresses the penalty section. The legislation provides a standard for the negligent furnishing of alcohol to a minor to be classified as a class C felony on the second occurrence within a five- year period. The legislation also provides a class C felony if the alcohol was given to a minor with criminal negligence and the minor commits an act with civil negligence (after they received and consumed the alcohol), which results in serious physical injury or death to another person. Representative Whitaker concluded that criminal negligence must be attached to the provision of alcohol to the minor. Ms. Carpeneti explained that for the offense to move to the next penalty that there would have to be a past occurrence of furnishing to a minor; or the minor would have to commit an act, which causes serious physical injury [or death], with some degree of negligence. Representative Whitaker questioned if the act of illegally receiving and consuming the alcohol could be deemed to be negligent on the part of the minor, automatically rising to the second standard. Ms. Carpeneti did not think that the mere act of drinking the alcohol would raise the standard. The minor would have to drink the alcohol and then act in some way that was not free from guilt. Alcohol consumption alone would not be considered civil negligence on the part of the receiver. The child is breaking the law by consuming, but it is a violation, not a crime. The law does not make the association. Representative Hudson questioned if the current law defines "provider". He questioned if a parent who had a bottle of scotch in the cupboard, which was consumed by minors, would be guilty of a felony. Representative Rokeberg pointed out that a person may not furnish or deliver an alcoholic beverage to a person under the age of 21. It must be a willful act on the part of the deliverer. Merely having a bottle of wine in the cupboard would not be negligent. Vice-Chair Bunde acknowledged the egregious behavior of providing alcohol to 13 - 14 year olds. He observed that there are indeterminate fiscal notes from the Department of Corrections and the Alaska Public Defenders Agency. He questioned the fiscal impact. Representative Rokeberg emphasized the difficulty of making projections about discrete criminal activity and did not think that the statute would be frequently enforced. He noted that the law would be put on the books as a deterrent. He could not determine the specific cost. There would already be a charge under current law. The statute change would result in additional hard time. Vice-Chair Bunde questioned how many people had been charged with furbishing alcohol to a minor in the last 5 years, whether or not a serious accident was involved. Representative Rokeberg observed that the fiscal note was based on the original draft, which spoke to "injury". The current version speaks to "serious [physical] injury". Vice- Chair Bunde reiterated that they should be able to tell how many cases occurred in the past five years. Co-Chair Mulder summarized that there is a certain amount of anxiety about the family member who is caught in a bad situation, which was not intentional, but could somehow be construed as negligent. He emphasized that it is difficult to establish the negligence standard in court. Ms. Carpeneti explained that the culpable state of criminal negligence must be proved beyond a reasonable doubt. Co-Chair Mulder felt that the provision would only occur in extreme cases. Ms. Carpeneti agreed. She thought that the Department of Law would have looked at statistics for second offenses. She reiterated that it would be utilized for extreme cases, "not for your everyday furnishing, which is not the most common offense anyway." Co-Chair Mulder stated that he would support the legislation with the assurance that it would be used for extreme cases. Representative John Davies questioned if the simple provision of alcohol to a minor is by definition criminal negligence. Ms. Carpeneti noted that criminal negligence, which is a higher standard, would have to be proved in order to convict someone of a class C felony. Representative Davies asked if: "I were in my house, [and] I provided alcohol to a friend of my son's or daughter's, is that provision of alcohol to a minor criminally negligent?" Ms. Carpeneti responded that it would be criminally negligent, if he knew that they were minors. Representative Davies concluded that the simple provision of alcohol to a minor is by definition criminal negligence. Representative Rokeberg observed that under AS 04.106.051, the mere act of the misdemeanor would not be negligent. Representative Davies disagreed with Representative Rokeberg's interpretation of the statute. He concluded that he would be criminally negligent if he provided a beer to the underage friend of his son's. Ms. Carpeneti affirmed that it would be criminally negligent if he knowingly provided the alcohol to minors. Representative Davies MOVED to ADOPT Amendment 1: Page 1, line 12 delete, "while" and insert "as a result of being". Representative Rokeberg stated that he would not object to the amendment if there were no objections from the Department of Law. Representative Davies clarified that the intent of the amendment is to make it clear that there is a causal element. He stated that there could be circumstances where the fact of the alcohol could be a non-issue in the cause of the injury. TAPE HFC 02 - 33, Side B  Ms. Carpeneti expressed concern that if the minor received alcohol from multiple sources it would be impossible to prove that it was the result of one particular place. Representative Davies stressed that the furnisher might not be criminally negligent if there were multiple sources that they were not aware of. She acknowledged the intent to specify causation, but argued that the intent could be established without having to proving that a particular alcohol was the one that caused the injury to a person. Representative John Davies WITHDREW his amendment. Representative John Davies MOVED to ADOPT Amendment 2: insert "acting" after "while" on line 12, page 1. There being NO OBJECTION, it was so ordered. Co-Chair Mulder observed that the fiscal notes were zero and MOVED to report CSHB 330 (FIN) out of Committee with the accompanying fiscal notes. There being NO OBJECTION, it was so ordered. CSHB 330 (FIN) was REPORTED out of Committee with a "do pass" recommendation and with previously published fiscal notes: LAW (1), ADM (2) and DOR (3).