HOUSE BILL NO. 244 An Act relating to the Code of Criminal Procedure; relating to defenses, affirmative defenses, and justifications to certain criminal acts; relating to rights of prisoners after arrest; relating to discovery, immunity from prosecution, notice of defenses, admissibility of certain evidence, and right to representation in criminal proceedings; relating to sentencing, probation, and discretionary parole; amending Rule 16, Alaska Rules of Criminal Procedure, and Rules 404, 412, 609, and 803, Alaska Rules of Evidence; and providing for an effective date. SUSAN PARKES, DEPUTY ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF LAW (DOL), introduced the omnibus crime bill. She noted that many concerns were raised in various committees, and this bill is very different than last year's crime bill after the House Judiciary Committee's work on the new Committee Substitute. The bill covers both procedure and substantive criminal law. Ms. Parkes provided a detailed explanation of the sectional analysis. She pointed out that the first six sections of CSHB 244(2ndJUD) concern enforcement of bootlegging, which is a priority of the current Administration. It would empower communities to limit alcohol, and allow by statute the recognition and enforcement by state troopers and prosecutors of lower levels of alcohol in the communities. Currently four communities have chosen to allow only lower limits of possession of alcohol than the state statutes provide for. These provisions also allow for better forfeiture. Currently, money is not included in the bootlegging forfeiture statutes. This would allow money as well as snow machines and boats in the forfeiture and bring it into compliance with the drug statutes. It also provides that unless a village has opted out of this provision, providing liquor to a minor in a local option community would become a C felony rather than an A misdemeanor. Ms. Parkes said that Section 8 is a conforming section to another provision. Section 9 amends the felony murder statute. Current law provides that if a group commits a serious offense and one member kills a non-participant, everyone is guilty of murder. The House Judiciary amendment states that if a participant is killed in the commission of a felony, the other participants could be held liable for murder unless the death results from the felony conduct of a non-participant. Representative Chenault asked for further clarification of the forfeiture of money. Ms. Parkes explained that it involves money that can be tied to the crime, as in money changing hands in a drug deal. There must be a nexus between the money and the crime, and the DOL can't sweep an individual's bank account. She said the forfeiture of money often happens in drug deals, but this provision would add it under the bootlegging forfeiture. Representative Chenault asked if currently all participants in a group could be charged with murder. Ms. Parkes affirmed, and explained that the theory behind felony murder is that the conduct of people participating in dangerous activities could result in a death. Ms. Parkes spoke to Section 10, which changes the assault statutes. It closes a loophole and gives the Department the ability to prosecute cases of assault where there is criminal negligence and serious physical injury from a dangerous instrument. Ms. Parkes continued. Sections 11 and 12 relate to the sexual abuse of a minor statute, making penetration offenses a felony while contact offenses remain a misdemeanor. Section 13 creates a new crime called "violation of a third party custodian." Currently judges, as part of the bail condition, release people to a third party custodian who agrees to report any violations of bail. Many people do not take the job seriously, and this creates a misdemeanor offense instead of holding the third party custodian in contempt for not immediately reporting violations. Ms. Parkes explained that Sections 14 and 15 extensively amend the self-defense statutes, in response to "the sweeping proposal" that created concern last session. A court must find at least some plausible evidence of self- defense. It also addresses gunfights between drug dealers and gangs in Anchorage and Fairbanks, providing that if the force used resulted from a weapon brought to a felony drug deal or a felony gang activity, the violator can't hide behind the shield of self-defense. Ms. Parkes noted that Section 16 is an amendment added in House Judiciary Committee. Under current statute, if a person is arrested and voluntarily agrees to talk to the police, an attorney can interrupt the interview. This recognizes that the Constitutional right to remain silent belongs to the individual and if the individual has waived that right, someone else can't later invoke it on his or her behalf. Representative Chenault questioned if a parent could decide to end the interview of a minor. Ms. Parkes answered that officers must ask minors if they want to have their parents present. She maintained that there are safeguards to protect individuals needing protection. Representative Chenault argued that there are cases of intimidation, which would result in a minor waiving their right. He spoke against allowing minors to be interviewed without the presence of their parents. Ms. Parkes explained that Section 17 conforms the statutes. Section 18 was added to require a written or oral finding when a third-party custodian is required as part of bail. Ms. Parkes continued. Sections 19-21 address immunity. Section 19 conforms immunity to the interpretation of the Supreme Court, which allows transactional immunity. Sections 20 and 21 set up a process to handle these situations by the court. If a witness is subpoenaed, the judge will appoint an attorney and hold a private hearing to decide if there is a valid claim of Fifth Amendment privilege. She discussed the provisions. Ms. Parkes noted that Section 22 is a conforming statute. Section 23 relates to consecutive terms of imprisonment, and it is identical to last year's bill. It mandates that in serious crimes, judges be required to impose some consecutive term of imprisonment. In the interpretation of current statute by the courts, judges have not recognized multiple victims or multiple crimes in their sentencing. This would require mandatory time for each victim and each offense. Ms. Parkes noted that Sections 24 and 25 are conforming language. Section 26 applies to driving under the influence. Currently, the third DUI within 10 years becomes a felony, but because of the way the ten-year "look-back" works, another DUI within 2 or 3 years might be a misdemeanor. This provision would recognize another DUI within 20 years as a felony once a person has a felony DUI. In response to a question by Representative Chenault, Ms. Parkes clarified that another bill addresses the "look-back" at past DUI activity, but this provision addresses the future. Representative Fate questioned why drugs are not addressed in the bill, considering their endemic existence in rural Alaska. Ms. Parkes responded that the bill includes provisions to address the gaps in the bootlegging statutes, and the self-defense provision addresses the violence related to drugs and alcohol. Representative Fate reiterated his concern. Representative Joule acknowledged that there are laws in place to address drug use, but he pointed out that the laws are not successful without enforcement. He noted the lack of funding for enforcement. Ms. Parkes stated that Section 27 addresses the "big gulp" defense. Current statute allows a defendant to argue that he consumed a large amount of alcohol just before his departure in a vehicle, the alcohol was not in his blood stream at the time he was stopped by the police, but he was over the legal limit an hour later when given the blood alcohol test. This would foreclose that defense and make the defendant responsible for his alcohol consumption. Ms. Parkes noted that Section 28 relates to the DUI and the 20-year look forward. Sections 30 and 31 are conforming statutes. Section 32 would allow public disclosure by the Department of Health & Social Services about juvenile offenders when it is necessary to protect the safety of the public. Regulations would be created to address this concern. TAPE HFC 04 - 93, Side A  Representative Joule expressed concern regarding the bootlegging provisions and questioned whether the State would have the resources to handle the increased offenses. He observed that part of the intent in moving from a class A misdemeanant to a class A felon is to allow greater supervision by probation officers. Ms. Parkes offered to address the issue later. CINDY CASHEN, MOTHERS AGAINST DRUNK DRIVING, JUNEAU, testified in support of the legislation. She read from written testimony, paraphrasing the following: "Mothers Against Drunk Driving (MADD) supports CS for House Bill 244. MADD supports consecutive jail time for each death in a drunk driving crash in order for restorative justice to take place within our communities. As a victim in the State v. Glaser case, I cannot begin to explain the unnecessary bitterness and frustration our families struggle with because of the court decision which refused to consider the multiple deaths in the drunk driving tragedy. Currently in Alaska, a loved one's life is less valuable than a stolen automobile in a felony case; this sends a dangerous message out to all Alaskans. Each life torn from us by drunk driving is certainly worth taking into individual consideration; to do otherwise would create additional heartache and trauma for victims of this violent crime. MADD also supports the right for communities to adopt lower limits of alcohol possession and importation in order to increase the health and safety of their people. MADD supports stricter drunk driving sanctions for high risk drivers. Habitual drunk drivers who have repeatedly chosen to endanger themselves and everyone else who shares their road system must be held accountable for their crimes. About one-third of all drivers arrested or convicted of driving under the influence are repeat offenders. These drivers are 40% more likely to be involved in a fatal crash than those without prior DUIs. MADD supports increased penalties for those whose choice to drink and drive results in the serious injury of an innocent victim or victims. People who drink and drive are unable to determine if they are sober before arriving at their destination. If a person chooses to drink and drive then that person has committed a crime and should be held accountable for his/her actions. MADD supports the recommended changes in CS for House Bi1l 224 as a way of deterring further drunk driving tragedies and improving Alaska's restorative justice system." Ms. Cashen recounted an incident in Hoonah. She spoke in support of third party custodian provisions. She asked that the amendment deleting the manslaughter charge and allowing it to become concurrent sentencing not be adopted. She discussed the pain that it caused two families when the judge changed his decision from consecutive to concurrent sentencing for the accident causing the deaths of her own father and Martin Richard. In essence, the drunk driver was punished for causing one death instead of two. Ms. Cashen concluded that this issue concerns restorative justice and the victims of the drunk driver. HB 244 was heard and HELD in Committee for further consideration. ADJOURNMENT The meeting was adjourned at 3:42 P.M.