CS FOR SENATE BILL NO. 170(JUD) An Act relating to murder in the second degree, the justification of defense of self or others, immunity from prosecution, sentencing, probation, discretionary parole, and the right to representation in certain criminal proceedings; relating to violation of a custodian's duty; relating to sexual abuse of a minor; relating to release of information concerning certain cases involving a minor; relating to local options regarding alcoholic beverages, the offense of furnishing or delivery of alcoholic beverages to a person under 21 years of age, and forfeiture of property used in, and money or other items of value used in financial transactions derived from, violation of certain laws relating to alcoholic beverages; relating to assault by means of a dangerous instrument; relating to operating or driving a motor vehicle, aircraft, or watercraft while under the influence of an alcoholic beverage, inhalant, or controlled substance, to the refusal to submit to a chemical test, and to the presumptions concerning the chemical analysis of breath or blood; and providing for an effective date. CO-CHAIR HARRIS MOVED TO ADOPT Work Draft 23-GS1024, Version S, Luckhaupt, dated 5-5-04, as the version of legislation before the Committee. There being NO OBJECTION, it was so ordered. SUSAN PARKES, DEPUTY ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF LAW (DOL), explained that the seven amendments from the Department of Law propose to move language from the House version into the Senate version, and one amendment from Co-Chair Williams proposes to delete a provision. With the exception of Amendment #1 relating to self-defense, all of the amendments and the revised Amendment #2, relating to immunity and formerly Amendment #5, have been moved into the Senate bill. She noted that Ms. Linda Wilson of the Public Defender Agency had testified in support of those amendments. Ms. Parkes explained that the first change is found in Section 7, raising provision of alcohol to a minor from an A misdemeanor to a C felony. It allows a local option community to opt out of making that change. The second change is in Section 13, creating a new offense of assault in the third degree, with criminal negligence causing serious physical injury by means of a dangerous instrument. Two definitions of "serious physical injury" appear in subsections (a) and (b). The House limited the offense to only the definition in subsection (b). In response to a question by Representative Joule, Ms. Parkes read from the definition of "dangerous instrument," and said that it is any deadly weapon, including knives, guns, vehicles, bricks or bats. Ms. Parkes explained that the next change appears in subsection 27. The Senate version provided that once convicted of a felony DUI, every subsequent DUI would also be a felony. The House Judiciary Committee wanted to limit subsequent felony DUIs to twenty years. This change has been incorporated for both felony DUI and felony refusal. Representative Stoltze asked how it meshes with the recently passed HB 342. Ms. Parkes replied that HB 342 was a "look back" and this is a "look forward." The Department believes that the bills mesh without conflict. Representative Chenault asked if HB 342 was a 15-year look back. Ms. Parkes thought that it was a 15-year look back, and then 15 years later, a DUI would be considered a first offense. Representative Chenault asked if the Department would prefer a 20-year look back. Ms. Parkes clarified that this is a 20-year look forward that only applies to felonies. She explained the triggers. Once someone commits a felony offense, the sentencing moves into Title 12. Backtracking, Ms. Parkes explained Amendment #2 regarding third party custodians ordered by the judge as part of the bail condition. The judge must make written or oral findings describing the reason for the order. This change is now incorporated into the Senate version, due to a Judicial Council study showing that the third party custodian requirement was holding people in jail for a longer period of time. The Amendment #8 proposed by Co-Chair Williams removed the felony murder provision from the bill. Representative Joule asked if Amendment #8 appears in Section 13, and Ms. Parkes thought so [Amendment #8 deletes Section 13, which would expand the felony murder rule to include the death of a participant in the crime]. Ms. Parkes urged that Amendments #1 and #2 made by the House Judiciary Committee and deleted by the Senate Judiciary Committee be adopted into the Finance Committee Substitute. Representative Stoltze asked if she had discussed the change in immunity. Ms. Parkes clarified that it is the revised Amendment #2, but there is a provision in the Work Draft Version S that simply codifies current law. Representative Joule asked if the House Judiciary provision on rights to contact attorneys by friends or family does not appear in this version. Ms. Parkes affirmed that it's not in the Senate version and the DOL does not propose to adopt it. Representative Fate referred to Section 17 and asked for a description of non-deadly force. Ms. Parkes explained that it includes pushing, hitting, or shoving without the intent to kill; in other words, force without a deadly weapon. A discussion ensued with Representative Fate. Co-Chair Harris MOVED to ADOPT Amendment #1. Co-Chair Williams OBJECTED. Amendment #1 reads: Page 11, following line 5: Insert a new bill section to read: "*Sec.19. AS 11.81 is amended by adding a new section to read: Sec.11.81.345. Defense of self and others. A court may instruct the jury about justification described in AS 11.81.330-11.81.340 if the court, sitting without a jury, finds that there is some plausible evidence to warrant a reasonable jury to find elements of the justification." Renumber the following bill sections accordingly. Ms. Parkes noted that the Public Defender does not support Amendment #1, which changes the level of evidence necessary for the judge to instruct on self-defense. Currently under case law, if there is some, even implausible evidence, the judge instructs on self-defense. This proposes "some plausible evidence," and it doesn't change the burden of proof. Judges make these decisions all the time, and the Department feels that it is an appropriate job for the judge. With only implausible evidence of self-defense for a jury to rely on, Ms. Parkes said that it might lead to jurors making decisions based on speculation or conjecture. Representative Croft commented that the amendment takes away the self-defense from the jury and gives it to the judge. He felt that the right to defend oneself before a jury is very important. The Senate removed this after hearing it. Representative Joule asked if it applies to both the grand and petit jury systems. Ms. Parkes explained that the grand jury is ex parte, or just the prosecutor with the jurors. The grand jury does not receive jury instructions although the prosecutor will instruct on self-defense if needed. Co-Chair Williams upheld his objection to Amendment #1. A roll call vote was taken on the motion to adopt Amendment #1. IN FAVOR: Hawker OPPOSED: Stoltze, Chenault, Croft, Fate, Foster, Joule, Meyer, Williams, Harris Representative Moses was absent. The MOTION FAILED (1-9). Amendment #1 was not adopted. Co-Chair Harris MOVED to ADOPT Amendment #2. Co-Chair Williams OBJECTED. Amendment #2 reads: Page 11, following line 20: Insert the following: "(1) "higher-level felony" means an unclassified  or class A felony;   (2) "lower-level felony" means a class B or class  C felony;" Renumber the following paragraphs accordingly. Page 12, lines 17 and 18: Delete all material and insert: "(i) If the court finds that the witness has a valid claim of privilege, it shall advise an attorney designated by the attorney general of that finding and inform the attorney of the category or categories of offense to which the privilege applies: a higher-level felony, a lower-level felony, or a misdemeanor. If the designated attorney decides that granting immunity to the witness is appropriate, the designated attorney shall inform the prosecution of that decision, and shall deliver or cause to be delivered a letter to the witness, or an attorney for the witness, granting immunity to the witness. The designated attorney may not disclose the category of offense to anyone." Ms. Parkes explained that the Senate Judiciary Committee did not consider Amendment #2. A prior immunity provision was deleted and Representative Gruenberg proposed this compromise. Currently when someone claims a right against self-incrimination to testify, a judge conducts a hearing, appoints an attorney, listens to his or her offer of proof, and decides whether they have a valid right to immunity. The judge informs the prosecutor that the person has a valid Fifth Amendment privilege and, based on no information whatsoever, the prosecutor must decide whether to give the person immunity. The Gonzales Case interprets the Constitution in the manner that Alaska must give transactional immunity so that any crimes the person discusses on the stand cannot be prosecuted. Ms. Parkes explained that Amendment #2 proposes a constitutional means for prosecutors to gain information to make an informed decision about whether to offer immunity. The risks are extremely high. She said that if immunity were given to the wrong individuals, they would take the stand and talk about serious crimes for which they can't be prosecuted. However, if immunity is not given in very serious cases, crucial evidence may not be offered to prosecute a serious crime. Ms. Parkes continued, this proposes that the judge not inform the prosecutor of any information but instead, appoint someone within the Criminal Division to grant immunity. The judge would determine the Fifth Amendment privilege of the witness for a higher-level felony, a lower- level felony or a misdemeanor. The prosecutor would only be informed of the granting of immunity, not the category of offense to which it applies. Ms. Parkes concluded that the DOL believes that the amendment would safeguard a witness's Fifth Amendment privilege. She noted that the House Judiciary Committee discussed it at length, and the Public Defender believes it will violate the Gonzales Case but the Department of Law does not. The Department feels it's good public policy for public defenders to make informed decisions on whether to grant immunity. She said that the issue would be appealed to the Supreme Court. She urged adoption of the amendment. In response to a question by Representative Croft, Ms. Parkes said that the State would want to weigh the risk in granting immunity depending on the seriousness of the crime, ranging from shoplifting to felony. She commented that few states require transactional immunity but Alaska's constitution is unique in requiring a greater level of immunity. Representative Croft indicated that he had no objection to the amendment. Co-Chair Williams WITHDREW his OBJECTION. Amendment #2 was adopted. Representative Chenault brought up Section 26 relating to DUI and asked if AS 04 appears somewhere else in law. Ms. Parkes affirmed that this deals with the DUI statute, and AS 04 relates to minor and commercial DUI. Section 26 relates to the "big gulp" defense. MOVED to report HCS CSSB 170(FIN) out of Committee with individual recommendations and the accompanying fiscal note. There being NO OBJECTION, it was so ordered. HCS CSSB 170(FIN) was REPORTED out of Committee with individual recommendations and three fiscal impact notes.