SB 64-OMNIBUS CRIME/CORRECTIONS/RECIDIVISM BILL  1:56:55 PM CHAIR KELLER announced that the next order of business would be SENATE BILL NO. 64, "An Act establishing the Alaska Sentencing Commission; relating to jail-time credit for offenders in court- ordered treatment programs; allowing a reduction of penalties for offenders successfully completing court-ordered treatment programs for persons convicted of driving while under the influence or refusing to submit to a chemical test; relating to court termination of a revocation of a person's driver's license; relating to limitation of drivers' licenses; relating to conditions of probation and parole; and providing for an effective date." 1:56:59 PM REPRESENTATIVE LYNN made a motion to adopt the proposed House committee substitute (HCS) for CSSB 64(JUD), labeled 28- LS0116\M, Gardner, 4/6/14, as the working draft. There being no objection, Version M was before the committee. 1:57:23 PM ERNEST PRAX, Staff, Representative Wes Keller, Alaska State Legislature, informed the committee Version M is the culmination of all of the amendments to CSSB 64 that were adopted at the meeting of 4/4/14. He said there is an additional amendment to be offered to address concerns regarding custodial interference and relating to the term of the commissioners of the Alaska Criminal Justice Commission. 1:59:02 PM REPRESENTATIVE GRUENBERG made a motion to adopt [Amendment 1] labeled 28-LS0116\M.6, Gardner, 4/9/14, which read: Page 3, line 6: Delete "legal" Page 3, line 8: Delete "legal" Page 19, line 1: Delete "court requires the person" Insert "person is required" Page 19, line 23: Delete "complies with" Insert "is participating in" Page 19, line 28, following "jurisdiction": Insert "or if the person is not in compliance with a court-ordered treatment program under AS 28.35.028" Page 21, line 25, following "under": Insert "(b) or" Page 31, line 24: Delete "January 1, 2018" Insert "June 30, 2017" Page 33, line 22: Delete "September 30" Insert "June 30" CHAIR KELLER objected for the purpose of discussion. 1:59:24 PM DOUG GARDNER, Director, Legislative Legal Services, Legislative Affairs Agency, directed attention to his memo dated 4/6/14 found in the committee packet. The memo addressed [the language of Amendment 12 to CSSB 64 which was adopted by the committee at the meeting of 4/4/14 and included in the proposed HCS for CSSB 64, Version M]. He said the language of the amendment creates three mental states converging in an offense. Previously, a conceptual amendment attempted to clarify the language. After consulting with the Department of Law (DOL) and the Public Defender Agency (PDA), he expressed his belief that there is consensus that the manner in which said offense was created in Version M, with proposed Amendment 1, "is probably the best language that we could come up with." Mr. Gardner concluded this is the best resolution that could be achieved. 2:01:53 PM QUINLAN STEINER, Director, Central Office, Public Defender Agency, Department of Administration, characterized Mr. Gardner's statement as "a fair one, that removing the word 'legal' was not going to cause any problems." REPRESENTATIVE GRUENBERG, referring to Mr. Gardner's memo, said, "It looks like he's trying to simplify this offense." Representative Gruenberg paraphrased from the second paragraph of Mr. Gardner's memo which read [in part] [original punctuation provided]: The three mental states that must be proven by the state are: (1) the offender has to know that at the time the representations are made to a lawful custodian they have no legal right to take and keep a child or incompetent person; (2) the offender has to have the specific intent to take and keep the child or incompetent person at the time of the representations; and (3) the offender has to knowingly represent to a lawful custodian that they have the right to take or keep the child or incompetent person. REPRESENTATIVE GRUENBERG asked whether Mr. Gardner intended to write "knowingly misrepresent" instead of "knowingly represent." MR. GARDNER explained that in the context of the overall offense, the offender knows he/she has no legal right, but is representing that he/she does, thus a change from "represent" to "misrepresent" would not be necessary. REPRESENTATIVE GRUENBERG observed that Amendment 1 removes the word "legal" from page 3, lines 6 and 8, of the bill. He asked for the legal impact of those deletions. 2:05:19 PM MR. GARDNER answered that in the context of the proposed statute without amendment, in custodial interference there may be one parent with custody and one without; the intent of the additional offense is to prevent the noncustodial parent from interfering with the legal custody of the person who has been awarded legal custody. In the context of the added offense, the law is trying to prevent a situation where the noncustodial person who is unrelated to a child is representing that they have a right to take a child. He opined previous testimony from the public defender and a representative from DOL reached a conclusion and he elaborated as follows: The idea of having a legal right makes a lot more sense in the context of custodial interference than it does when you're talking about the next-door neighbor, or somebody else who might come in to pick a child up at school, for example. And so, my understanding is the Department of Law didn't want to - in that context - try and unravel what legal right was, they were happier to just leave it, leave "legal" out, and try a case before the jury and let the jury evaluate whether the person had a right to take that child. REPRESENTATIVE GRUENBERG observed that makes it clear so that the parties do not get into a mini-discussion in a criminal trial of the court's custody decree when it is unnecessary for the gravamen of the offense; to simplify the event, but not to disallow the event to be raised. MR. GARDNER opined that is a fair characterization; in fact, previous conversations on this topic touched on the idea of how - in the course of a trial with this offense - to figure out what "legal right" is. REPRESENTATIVE GRUENBERG expressed support for the deletion of the word "legal." 2:09:06 PM The committee took a brief at-ease. 2:10:36 PM MR. GARDNER directed attention to Amendment 1, lines [7-9] which read: Page 19, line 1: Delete "court requires the person" Insert "person is required" MR. GARDNER said this correction was suggested by the Division of Motor Vehicles (DMV), Department of Administration, to avoid the problem of "just referring to the court in that section." MR. GARDNER directed attention to Amendment 1, lines [11-13] which read: Page 19, line 23: Delete "complies with" Insert "is participating in" MR. GARDNER explained the amendment relates to the 24/7 Program. Included in this part of the bill is a checklist of the requirements that must be met in order for the court or the department to be able to give people in the therapeutic court program a limited license. In this context, there was a concern about how DMV would verify a person's performance in the 24/7 Program, because DMV is not set up to do so. Therefore, the idea of the change in language is that during a person's time in the 24/7 Program, the court or the department could require the person to participate in, rather than comply with the program. He concluded that the change was made for DMV, as it "probably couldn't always on a day-to-day basis monitor a person's actual compliance with 24/7." 2:13:45 PM TIFFANY THOMAS, Driver Licensing Manager, Director's Office, Division of Motor Vehicles, Department of Administration, agreed that Mr. Gardner had "touched on" the majority of DMV's concerns, and added that DMV would not know if a person who was applying for a limited license has participated in the 24/7 Program. She noted that DMV's concern seems to have been addressed by Mr. Gardner. MR. GARDNER directed attention to Amendment 1, lines [15-17, which read: Page 19, line 28, following "jurisdiction": Insert "or if the person is not in compliance with a court-ordered treatment program under AS 28.35.028" MR. GARDNER advised the language in this part of the amendment was suggested by the Alaska Court System due to its concern that if a person were in therapeutic court, the court may have difficulty revoking the person's limited license. The therapeutic court treatment team, along with the judge, hold discretion on how people are treated in the program. The amendment would maintain the judge's and the treatment team's ability to revoke a license if the person were noncompliant and/or the public were at risk. 2:16:25 PM MR. GARDNER continued to [Amendment 1.B, which was an excerpt from original Amendment 1, lines 15-17] which read: Page 21, line 25, following "under": Insert "(b) or" MR. GARDNER advised that this amendment addresses a significant policy piece in the bill. He reminded the committee that a misdemeanant or a felon is eligible for therapeutic court, which is typically an 18-month program. The bill allows a person that has gone through the program, and under structured circumstances, to acquire a limited license. The bill was drafted to amend AS 28.35.030(o) and provide a situation where for certain felons in the program, the department would be required to restore the license. The current bill would only allow that situation with respect to a felon. He remarked: By inserting [Amendment 1.B] you're putting the people who are felons in the program on the same footing as the people who are misdemeanants in the program. So you could have someone in the program that has four [driving under the influence (DUI) convictions] and is a felon, felony DUI, or you could have someone in the program that has four DUIs but just happens to be a misdemeanor DUI person. But they're both in the program, they're both successfully graduating. We wanted to avoid some type of an equal protection argument, where we're treating those people differently, vis-à-vis this license opportunity, and allow the court to terminate their revocation, and allow DMV, or require DMV, to restore that license. And so, by adding [Amendment 1.B], you're pulling a very small group of misdemeanant folks in along with the felony folks, that have essentially all done the same bad things or conduct, but are now going to, at least the intention here, is to avoid that equal protection problem and treat them similarly. 2:19:57 PM MS. THOMAS stated that she is unsure whether DMV has the statutory authority to amend or terminate a misdemeanor offense as it does with the direct statutory authority in AS 28.35.030(o) for felonies. In addition, her review [of the proposed bill] revealed that AS 28.35.030(b) was being amended; however, subsection (b) appears to be related to the periods of ignition interlock requirement and not the periods of revocation. MR. GARDNER expressed his belief that the intent of the reference is to the status of the offender: people under (b) are misdemeanants and people under (n) of the statute, are felons. The intention was to try to fix the problem by referencing misdemeanants and felons "and bring those two together." He then returned attention to [Amendment 1], page 1, lines 22-23, to page 2, line 5, which read: Page 31, line 24: Delete "January 1, 2018" Insert "June 30, 2017" Page 33, line 22: Delete "September 30" Insert "June 30" MR. GARDNER said these changes were drafted at the request of staff to make a policy call on the best termination date for the proposed Alaska Criminal Justice Commission. The dates were changed in order to terminate the commission at the end of the fiscal year. CHAIR KELLER returned attention to [Amendment 1.B]. He asked Mr. Gardner to describe "what the consequences will be" if "(b)" is included and DMV has no authority to proceed. MR. GARDNER responded that it is hard to respond directly at this time. He asked whether it is the will of the committee to put misdemeanants in the program with felons, and treat them the same way, or just deal with felons. He concluded that "The bill is a whole lot simpler if it just deals with felons which is what it was doing prior to this hearing. But "b" would have that effect, at least, that's what we think." CHAIR KELLER asked the sponsor, "If we pass this amendment as it is and we include the misdemeanor DUIs in ... at least that's the intent, of Doug, can we have some kind of assurance that ... if we were to move this bill out, that you will look at that further in the finance committee?" 2:25:18 PM JORDAN SHILLING, Staff, Senator John Coghill, Alaska State Legislature, speaking on behalf of Senator Coghill, chair of the Senate Judiciary Standing Committee, sponsor, assured Chair Keller that "we are certainly going to continue working on this." CHAIR KELLER expressed his interest in including the misdemeanor element in the bill, and somehow come to terms between DMV and the court system to make it work. 2:26:17 PM ANNE CARPENETI, Assistant Attorney General, Legal Services Section, Criminal Division, Department of Law, stated that difficulties with the proposed bill stem from the need for a rewriting of AS title 28. She provided a short background on the permanent loss of a driver's license for those convicted of felony drunk driving or refusal. The loss is permanent except for a chance - after ten years - to request a limited license or driving privileges. She said the Department of Law (DOL) believes one should have an opportunity to reclaim their license; however, the proposed bill "goes too far and does not protect the public from drunk drivers and people who don't take the breathalyzer test." Ms. Carpeneti directed attention to the bill on page 18, beginning on line [15] which allows the court to return full driving privileges after a person has driven under a limited license for two years. She said this is not long enough because, under current law, a driver convicted of felony DUI must use an ignition interlock device for at least five years after driving privileges are regained. Further, it is unclear how a court will decide whether the interlock device is required beyond two years. She recommended a minimum of five years should be required to drive under a limited license. On page 18, beginning on line 27, she said the bill allows a limited license for those who have successfully participated in therapeutic court for at least six months. The Department of Law recommends that a person successfully complete his/her participation, because some therapeutic court programs, such as the one in Bethel, allow people to continue participating - even with five violations - before they are terminated. CHAIR KELLER asked for clarification on the change sought by DOL. MS. CARPENETI recommended deletion of the phrase "has successfully participated for at least six months in, or" on page 18, lines 27-28. 2:31:30 PM REPRESENTATIVE GRUENBERG restated the suggested amendment. MS. CARPENETI also suggested on page 18, line 16, that the word "two" should be replaced with the word "five." She continued to page 19 and restated the conflict between the proposed bill and AS 28.35.030 regarding the number of years the use of an ignition interlock device is required. When there is confusion over laws or legislative intent, the court will apply the rule of lenity, and interpret "confusion over law" in favor of the defendant, she cautioned. Continuing on page 19, lines 26-28, she noted that the word "shall" has been replaced with "may," which leaves up to the discretion of the court or the department whether to revoke a limited license if a person is charged with, or convicted of, a subsequent drunk driving or refusal offense. Instead, DOL suggests that if a person is charged with drunk driving or refusal the court may use its discretion; however, if the person is convicted, the limited license must be revoked. Ms. Carpeneti then pointed out a possible oversight in the bill on page 20, where language allows that for the first conviction for drunk driving or refusal, the sentence may be served by electronic monitoring. She opined this would diminish the "shock value" of 72 hours in prison; in addition, the language does not state where the electronic monitoring is to be served. In fact, on page 21, the language provides that imprisonment served at a private residence must include electronic monitoring. Ms. Carpeneti surmised that legislative intent was not that a person "go along his or her daily life with no change besides wearing a monitor." She stated that the majority of people who are convicted the first time do not reoffend, due to the mandatory 72 hours of jail time. Ms. Carpeneti acknowledged that electronic monitoring is currently used; however, she urged for the bill to specify a location. REPRESENTATIVE GRUENBERG said he did not understand the language that is wanted by DOL on page 20. MS. CARPENETI suggested the deletion of "by electronic monitoring" wherever found on page 20, lines 27-[29], because one is already allowed to serve at home. Calling attention to page 21, line 3, she read: Imprisonment served at a private residence must include electronic monitoring MS. CARPENETI advised that electronic monitoring is already allowed and under current law one can serve a sentence for first-time drunk driving at home with an electronic device, thus she was unsure whether this change is needed. REPRESENTATIVE GRUENBERG noted that Amendment 1 remains before the committee, but the discussion had digressed. CHAIR KELLER asked Ms. Carpeneti to speak to Amendment 1. 2:40:36 PM MS. CARPENETI returned attention to Amendment 1 and expressed her concern regarding the provision on page 1, lines 19-20, which read: Page 21, line 25, following "under": Insert "(b) or" MS. CARPENETI stated that the aforementioned addition adds all misdemeanor drunk driving offenses into this provision under which the department is required to restore a driver's license under certain circumstances; speaking from her history working on limited licenses, she restated the difficulty of dealing with this "rather large change in [AS] title 28" regarding misdemeanor provisions, and the confusion and uncertainty thereof. 2:41:57 PM REPRESENTATIVE GRUENBERG made a motion to divide the question by removing lines 19-20 from Amendment 1 and renaming Amendment 1 Amendment 1.A. 2:42:35 PM CHAIR KELLER restated the motion to adopt Amendment 1, amended, which is now identified as Amendment 1.A. There being no objection, Amendment 1.A was adopted. 2:43:37 PM REPRESENTATIVE LYNN made a motion to adopt Amendment 1.B which read: Page 21, line 25, following "under": Insert "(b) or" CHAIR KELLER objected for the purpose of discussion. MS. CARPENETI returned attention to the proposed bill. On page 22, line 4, the bill allows mandatory restoration of a driver's license by the Division of Motor Vehicles, and she said the time period should be five years of driving with a limited license, not two, to restore full driving privileges. On page 28, line[s] 24[-25] read: (D) the need to confine violent offenders to prevent harm to the public; MS. CARPENETI said the aforementioned [subparagraph] is regarding the methodology used by the proposed Alaska Criminal Justice Commission, and the word "violent" has been inserted. Although the other [subparagraphs] follow the constitutional sentencing provisions in the state constitution, the addition of "violent" is confusing and limiting. She stated that there are many reasons why people who commit nonviolent felonies or crimes ought to be incarcerated, for example, drug dealers. 2:47:32 PM MR. SHILLING observed that some of the items the Department of Law is concerned about are "policy calls." For example, Mr. Shilling returned attention to page 18, line 16 [text previously provided], and said the committee must decide how long an individual must drive successfully under a limited license to become eligible for an unlimited license. He acknowledged that a previous version of the bill set the period of time at five years; however, Senator Coghill recommended that two years was sufficient time to establish a "track record." However, Mr. Shilling advised that Senator Coghill would not be opposed to a longer time period. Continuing on page 18 to line 27, he stressed that Version G of the bill said persons seeking to regain the privilege to drive were required to be "participating in the program." He concluded that the original version of the bill set the time of participation in a therapeutic court at zero, and DOL recommended eighteen months, therefore, six months is a compromise. Mr. Shilling remarked: Again, just like the last duration of time we discussed, it's a policy call of the committee. If we are to say that the person must have successfully completed the program before they get the limited license, that's just an extra 18 months, you know, the sooner we get them on the limited license, the sooner that they have all of the other accountability measures in place: the ignition interlock; the 24/7 Sobriety. CHAIR KELLER surmised a court-ordered treatment plan would be 18 months long. MR. SHILLING said correct. He turned to DOL's concern with the language on page 19, lines 26-28 which read: (h) The court or the department may immediately revoke a limited license granted under (g) of this section if the person is convicted of a violation of AS 28.35.030 or 28.35.032 or a similar law or ordinance of this or another jurisdiction. MR. SHILLING noted that DOL seeks to replace "may" with "shall; however, he pointed out that the amendment under consideration has a provision to allow the court to revoke the limited license if an individual does not cooperate in therapeutic courts. Mr. Shilling opined Senator Coghill would not object to the abovementioned change. MR. GARDNER suggested that the above referenced [subsection] could be removed because if one is convicted of a new DUI or refusal, and is not in compliance in the court-ordered treatment program, the limited license will be revoked. He cautioned that his suggestion should be further evaluated before the committee makes a decision. 2:54:26 PM MS. THOMAS advised that if a person holding a limited license issued by DMV received a subsequent DUI arrest, "in theory" he/she would lose their license and would be issued a temporary license. She expressed her belief that [subsection (h)] could be deleted because - as stated by Mr. Gardner - the driver would lose his/her license anyway pending his/her conviction in court or administrative action. MR. SHILLING redirected attention to proposed section 32 on page 20, which allows a first-time DUI offender to serve his/her sentence on electronic monitoring. The sponsor's intent was to have the bill "mirror" an ordinance approved in the last few years by the Anchorage Municipal Assembly which allows first- time DUI offenders to serve their sentence at their residence on electronic monitoring. Although Ms. Carpeneti opined this section is not needed at all because the department already has some discretion on allowing electronic monitoring, he said, "But it's that they 'may' allow you to serve it on electronic monitoring, [and] what we're trying to do is make it a 'shall' and that's a fairly big difference." CHAIR KELLER said after the committee acts on Amendment 1.B [text found above] there will be an opportunity to offer other amendments to the bill. REPRESENTATIVE GRUENBERG observed that putting Amendment 1.B in the bill brings in a "whole misdemeanor concept", which DOL would like more time to consider. He suggested taking testimony from the public defender on this matter. MR. STEINER said he did not immediately see a problem with inserting the misdemeanor component. He agreed with Mr. Gardner that it would "push off" an equal protection challenge because the legislation would grant limited license privilege to those with felony convictions, but those with misdemeanor convictions would not be eligible; however, he withheld his final comments pending a detailed review of this matter. CHAIR KELLER stated his intention to remove his objection to the amendment because the topic has been thoroughly reviewed by the House and Senate judiciary committees. He said there is confusion between the different jurisdictions over [AS] title 28 and pointed out the bill includes an amendment calling for a review of [AS] title 28 by the proposed Alaska Criminal Justice Commission. Chair Keller expressed his support for the inclusion of the "misdemeanor element," and removed his objection to the amendment. There being no further objection, Amendment 1.B was adopted. 3:02:57 PM REPRESENTATIVE LEDOUX made a motion to adopt Conceptual Amendment 2 to page 28, line 24, which deletes the word "violent." There being no objection, [Conceptual] Amendment 2 was adopted. 3:04:44 PM REPRESENTATIVE PRUITT returned attention to the timeframe for [qualifying for] the limited license. He said, "Insurance requires three years before they wipe something off." Two years may not be enough, but five years may be too much. Representative Pruitt then made a motion to adopt a conceptual amendment to page 18, line 16, and to page 22, line 4, which changes "from two years to three years." 3:06:13 PM The committee took an at-ease from 3:06 p.m. to 3:07 p.m. 3:07:18 PM REPRESENTATIVE PRUITT restated his motion to adopt Conceptual Amendment 3 to page 18, line 16, which changes "two" to "three," and to page 22, line 4, also changing "two" to "three." REPRESENTATIVE GRUENBERG asked whether the sponsor supports the change to three years. MR. SHILLING said yes. 3:08:14 PM There being no objection, Conceptual Amendment 3 was adopted. 3:08:29 PM REPRESENTATIVE LYNN made a motion to report the proposed House committee substitute for CSSB 64, Version 28-LS0116\M, Gardner, 4/6/14, as amended, out of committee with individual recommendations and the updated [attached] fiscal notes. CHAIR KELLER objected for the purpose of discussion. MR. SHILLING expressed his and the sponsor's appreciation for the work completed by the committee. 3:10:04 PM CHAIR KELLER removed his objection. There being no further objection, HCS CSSB 64(JUD) was reported out of the House Judiciary Standing Committee.