HB 175 - COURT APPEARANCES; ARSON; INFRACTIONS 2:08:24 PM VICE CHAIR THOMPSON announced that the next order of business would be HOUSE BILL NO. 175, "An Act relating to an appearance before a judicial officer after arrest; relating to penalties for operating a vehicle without possessing proof of motor vehicle liability insurance or a driver's license; relating to penalties for certain arson offenses; amending Rule 5(a)(1), Alaska Rules of Criminal Procedure, and Rule 43.10, Alaska Rules of Administration; and providing for an effective date." 2:09:14 PM ANNE CARPENETI, Assistant Attorney General, Legal Services Section, Criminal Division, Department of Law (DOL), explained that HB 175 would correct four problems in current law. Specifically, Sections 1, 2, and 6 - pertaining respectively to AS 12.25.150, rights of prisoner after arrest, AS 12.70.130, arrest without warrant of a person charged with a crime in another state, and Rule 5(a)(1) of the Alaska Rules of Criminal Procedure, proceedings before the judge or magistrate - would conform those provisions of law to reflect changes made last year via House Bill 324. That bill last year increased the timeframe - from 24 hours to 48 hours - in which a person must be brought before a judicial officer after being arrested; unfortunately, that bill neglected to also make conforming changes to AS 12.25.150 and AS 12.70.130. MS. CARPENETI explained that Section 3 - pertaining to AS 28.15.131, license to be carried and exhibited on demand - would conform that statute to current court rules in the Alaska Rules of Administration which provide that not having one's valid driver's license in one's possession while driving is merely a correctable infraction, with bail set at $50, rather than a class B misdemeanor. Section 4 - pertaining to AS 28.22.019, proof of insurance to be carried and exhibited on demand [and] penalty - would similarly conform that statute to current court rules in the Alaska Rules of Administration which provide that not having proof of insurance in one's possession while driving is merely a correctable infraction, with a mandatory fine of $500, rather than a class B misdemeanor with a discretionary minimum fine of $500. MS. CARPENETI explained that Section 5 - pertaining to AS 41.23.220, penalty [for committing violations in the Knik River Public Use Area] - would conform that statute with AS 11.46.420, pertaining to the crime arson in the third degree. Enacted in 2006, AS 41.23.220 and associated regulations provided that burning a vehicle in the Knik River Public Use Area would be a violation, with a bail amount of $50. In contrast, when enacted in 2008, AS 11.46.420 provided that burning a vehicle on state or municipal land would be a class C felony property crime. Under Section 5, all burning of vehicles in public areas would be a class C felony, and this is in keeping with the latest expression of legislative intent as evidenced by the enactment of AS 11.46.420. In response to a question, she confirmed that under Section 4, not having proof of insurance in one's possession while driving would remain a correctable infraction. REPRESENTATIVE GRUENBERG referred to a Department of Law memorandum in members' packets dated March 1, 2010, regarding other states' rules about first court appearance after arrest. The committee took an at-ease from 2:15 p.m. to 2:16 p.m. MS. CARPENETI, in response to questions, clarified that in County of Riverside v. McLaughlin - one of the cases cited in that memorandum - the U.S. Supreme Court approved a 48-hour time-period for holding someone without probable cause; and that no state court has interpreted the U.S. Constitution as requiring a different time period, though other states have approved a variety of different time periods in their state laws. She confirmed that Alaska's courts hadn't addressed this issue yet because existing Alaska Statute provided for a 24-hour time-period including weekends and holidays. REPRESENTATIVE GRUENBERG expressed concern that Alaska's courts haven't yet interpreted the U.S. Constitution regarding that issue, and suggested, therefore, that a specific severability clause be added to HB 175 since its proposed change to the time limit could invite a constitutional challenge. 2:23:34 PM JEFFREY A. MITTMAN, Executive Director, American Civil Liberties Union of Alaska (ACLU of Alaska), noting that he'd submitted written testimony regarding HB 175, pointed out that in Alaska there is already a rule allowing for an exception to the existing deadline when necessary. It's an open question, he ventured, whether the Alaska Supreme Court would find that a 48- hour time-period is reasonable. To the extent that HB 175 is intended to allow for the extended period of time only when needed, he remarked, the ACLU of Alaska suggests that it would instead be better to have a 24-hour time-period and continue to allow for additional time to be requested when necessary. The committee took an at-ease from 2:26 p.m. to 2:29 p.m. MS. CARPENETI, in response to comments, pointed out that the constitutional issues regarding this time period were discussed thoroughly last year when House Bill 324 - which proposed the change from 24 hours to 48 hours - was debated, and reiterated that HB 175 would merely correct an oversight in that when that time period was changed, some of the associated statutes weren't similarly changed. 2:30:43 PM REPRESENTATIVE GRUENBERG directed attention to the language on page 2 of Mr. Mittman's written testimony, specifically that which read [original punctuation, along with some formatting changes, provided]: Given that the currently existing rules of criminal procedure already provide an exception for defendants arrested far from urban centers and allow the prosecution to request a delay to gather more information where necessary for a bail hearing, the state's success over the last 18 years in providing an initial appearance within 24 hours strongly suggests that a delay of more than 24 hours would represent unnecessary delay, making the statute unconstitutional. MS. CARPENETI, in response to questions and comments, clarified that although Alaska's statutes do allow for a delay if the person is charged with a felony, that delay only applies after the person's initial appearance before the court, whereas the bill addresses the time period in which a person must initially be brought before the court after his/her arrest. Regardless of what the deadlines is, the best practice, she pointed out, is to bring the person before a judicial officer as soon as possible because that's better for all concerned. However, there are situations in which it could be difficult for law enforcement to gather enough information within a 24-hour time-period to determine what the appropriate charges should be, and it would therefore be better to wait a day before arraignment. The bill would extend the deadline in those cases where it is necessary for the orderly administration of justice. Furthermore, the victim has a constitutional right to appear at that initial hearing, and sometimes he/she either can't be found or would be unable to attend within a 24-hour time-period. She assured the committee that having a 48-hour deadline doesn't mean that the DOL is automatically going to wait another day before bringing a person in for his/her initial court appearance, because the DOL is not interested in keeping someone an extra day just because the law allows it. 2:39:16 PM REPRESENTATIVE GRUENBERG asked whether the DOL was having to release people because it wasn't meeting the 24-hour deadline. MS. CARPENETI said not to her knowledge. REPRESENTATIVE GRUENBERG questioned, then, why the deadline was changed. MS. CARPENETI explained that the 24-hour deadline was problematic in that when a person was arrested in the middle of the night or was arrested in a rural area of the state, for example, it was sometimes very difficult to gather enough information within 24 hours for the DOL to make reasonable decisions. Referring to the aforementioned DOL memorandum, she noted that most other states provide for a significantly greater amount of time than 24 hours. She offered her belief that the change from 24 hours to 48 hours hasn't affected the majority of cases, and would instead be very helpful. In response to further questions, she acknowledged that because the statutes weren't changed under House Bill 324, most jurisdictions are still operating under the 24-hour deadline, though some jurisdictions have somewhat relaxed that deadline depending on the particular case. VICE CHAIR THOMPSON, after ascertaining that no one else wished to testify on HB 175, closed public testimony, and relayed that HB 175 would be held over.