SENATE BILL NO. 234 "An Act relating to the crimes of assault in the fourth degree and of resisting or interfering with arrest; relating to the determination of time of a conviction; relating to offenses concerning controlled substances; relating to issuance of search warrants; relating to persons found incompetent to stand trial concerning criminal conduct; relating to probation and to restitution for fish and game violations; relating to aggravating factors at sentencing; relating to criminal extradition authority of the governor; removing the statutory bar to prosecution of certain crimes; amending Rule 37(b), Alaska Rules of Criminal Procedure, relating to execution of warrants; and providing for an effective date." 9:14:47 AM Co-Chair Stedman requested an overview of the Committee Substitute but pointed out that the Committee was without a quorum; therefore, the Committee Substitute 25-GS2038\K could not be adopted at this time. ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES SECTION-JUNEAU, CRIMINAL DIVISION, AND DEPARTMENT OF LAW, provided a sectional analysis overview of SB 234. She began with Sections 1 and 2 of the bill that requires (copy on file): a person who lends money on secondhand articles in a municipality with over 5,000 residents to maintain records in an electronic format. Ms. Carpeneti explained that this would help people recover stolen property. She informed the Committee that a statewide reporting proposal is available for consideration. Ms. Carpeneti reported that Section 3 provides: that a person commits assault in the third degree, a class C felony, if the person commits assault in the fourth degree that is an injury assault, and has been convicted in the past 10 years of two or more crimes against the person that are homicide, assault (except misdemeanor fear assault) stalking, first and second degree sexual assault, or first or second degree sexual abuse. Generally fourth degree assault is a class A misdemeanor. Making a third conviction of this offense a class C felony will help stop the often escalating violence by persons who repeatedly harm other people. AT EASE: 9:17:08 AM RECONVENED: 9:17:35 AM Co-Chair Stedman confirmed a quorum now existed in the Committee and requested a motion to adopt the committee substitute as a working document. Senator Thomas moved to ADOPT Committee Substitute 25- GS2038\K as a working document. Co-Chair Stedman OBJECTED for discussion purposes. Co-Chair Stedman requested that Ms Carpeneti address the Committee Substitute changes. 9:18:48 AM Ms. Carpeneti reviewed the changes to the Committee Substitute\K starting with Page 6, lines 11-17. She informed the Committee that the insertion of the new Section 13 allows for probation to be imposed on a person convicted of a violation under Title 11 or Title 16. She explained that it would allow cases, which can be resolved as either a misdemeanor or a violation, to be charged with a violation and placed on probation. Ms. Carpeneti continued that Section 14, Page 6, line 18, clarifies the definition of aggravated assaultive behavior for courts and attorneys for an aggravated factoring at sentencing. Ms. Carpeneti reported that Section 15 assists attorneys and courts in sentencing felons with prior convictions for sexual assault or sexual abuse of minors. The addition of 18(B) clarifies that the aggravating factor may be litigated to the court without a jury since it is based on a prior felony conviction. Ms. Carpeneti remarked that Section 17, Page 7, allows the court to order restitution in the amounts already scheduled in law for a person who takes the listed animals for any violation of Title 16. 9:21:58 AM ANDREW PETERSON, DEPARTMENT OF LAW, OFFICE OF SPECIAL PROSECUTIONS testified via teleconference and explained that the current Section 17, AS 16.05.925 allows that the state can process most Fish and Game offenses as either a misdemeanor or a violation. When the offense is reduced to a violation, the court, at this time, can not impose restitution. Mr. Peterson revealed that the change would make the statutory provision consistent with many other statutes in Title 16, allowing the court impose restitution up to the amount recommended by the Legislature. Mr. Peterson believed this will help the state resolve cases pretrial and give the state the option of reducing charges from a misdemeanor to a violation, but, at the same time, receive the same monetary benefit as if it were a misdemeanor. 9:25:14 AM Co-Chair Stedman WITHDREW his OBJECTION. There being NO further OBJECTION, Committee Substitute 25-GS2038\K was adopted as a working document. Ms. Carpeneti reviewed Section 3 for the Committee. 9:26:00 AM Ms. Carpeneti continued that Section 4 is a conforming provision to clarify that a conviction occurs on the date that the sentence is imposed. She remarked that Section 5 was added to the Senate Judiciary version in response to problems of theft in the larger stores. People have entered the large stores with containers or carts, filled them with merchandize, and then walked out the door. Under current law, security personnel and store staff can only ask about merchandize that is hidden on the person. This would allow: for a peace officer or owner of a commercial establishment to detain a person for a reasonable time if there is probable cause to believe the person has committed or attempted to commit theft from the establishment. 9:27:39 AM Co-Chair Stedman reminded the Committee that the new Committee Substitute was just obtained that morning. 9:27:53 AM Ms. Carpeneti continued that Section 6, a conforming amendment, addresses when a theft occurs with prior convictions it would clarify that: when a theft offense is enhanced one level because the defendant has two prior thefts within five years of the new crime, a prior conviction occurs on the date the defendant was sentenced for the theft. Ms. Carpeneti signified that Section 7 adds three substances to Schedule 4 which: adds carisprodol (commonly called Soma and listed as a controlled substance in 17 states), zolpidem (commonly called Ambien and listed as a Schedule IV substance in the federal schedule), and zopiclone (commonly called Lunesta and listed as a Schedule IV substance in the federal schedules) to Alaska's schedules of controlled substances. The substances would be listed in Schedule IVA. These prescription drugs have been widely abused, and have been found by law enforcement to be present in drivers who are impaired. Ms. Carpeneti explained that Section 8 clarifies: that a court may issue a search warrant for property located outside the state. The issue of a court's authority out of state has arisen in white collar investigations where the state seeks stored electronic information. Companies that store this information are willing to provide it if law enforcement presents a search warrant for it. This will clarify that a court may issue a warrant to obtain this information. Ms. Carpeneti continued that Section 9 allows: a judicial officer to issue a search warrant over the telephone or other electronic means in all cases. Alaskans rely on the telephone and other electronic communication in the important affairs of their lives. Law enforcement should not have to drive or fly to a judicial officer for a search warrant when electronic means are available for the court to fairly evaluate the evidence. 9:29:38 AM Ms. Carpeneti remarked that before obtaining a telephonic search warrant under current law, the property must be subject to being lost or destroyed. She asserted that traveling to obtain these in person involves a waste of resources. Sections 10-12, Sections 14-15, and Sections 18- 19 attempts to tighten up the provisions for a person who has been charged with a felony but who have been found incompetent to be tried. She stressed that such individuals can be dangerous and after being housed in a hospital or jail for a period of time are often released into the community with no prior notice to the prosecution. This would require a person: charged with a felony and found incompetent to be evaluated for commitment and treatment. If the defendant remains incompetent after one year (for persons charged with crimes involving forces and presenting a substantial dangers to others), the bill would require that civil commitment proceeding be considered. A person found incompetent to proceed may be released from the hospital; the professional authorizing the release must give at least 10 days notice to the prosecution. This notice will allow the prosecution time to reinstate charges if appropriate under the circumstances, and also give law enforcement forewarning that the person will be returning to the community. 9:32:23 AM Senator Thomas requested clarification on the sequence when there is the arrest. 9:33:09 AM Ms. Carpeneti remarked that the courts start with the presumption that the defendant is competent to be tried, but if they are found to not understand the proceedings or be able to help their attorney in the defense, the individual is held for a period of time to try and reverse this incompetence, either through medication or treatment. After a certain period of time they are held in connection with the criminal charge or continual holding of that person must, proceed with civil commitment procedures. 9:34:01 AM Senator Thomas remarked that the normal arrangement procedure goes forward then it could be determined they are not competent. Ms. Carpeneti remarked that there would be an evidentiary hearing and the judge would determine if the individual was competent to be tried. 9:34:31 AM Ms. Carpeneti referred to Section 16 which would allow the Governor to delegate the extradition authority to the Lt. Governor or the head of one of the principle departments in the executive branch. At this time, the Governor signs all extradition requests. Co-Chair Stedman requested an explanation on why the Governor would want to delegate this authority. 9:35:58 AM RICHARD SVOBODNY, DEPUTY ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF LAW explained that extradition is the one of two rights granted to the states by the United States Constitution and the governors in each state make these decisions. Alaska is only state where the governor is required to sign each extradition order; all other states delegate this role. He thought the change, if adopted, should be prepared through a statute. 9:37:29 AM Ms. Carpeneti continued that Sections 18-19 are provisions dealing with the discharge of an individual from an institution. This would require the institution holding an individual in connection with a crime, to notify the prosecuting authority ten days in advance of the individual's release. She explained that Sections 20-21 are conforming repealers dealing with telephonic search warrants and the prohibition of the state from prosecuting a crime if the individual has already been prosecuted for that same act by the federal government. 9:39:46 AM Mr. Svobodny offered a recent experience when the State of Alaska tried to reach a resolution in a criminal case against British Petroleum for pipeline corrosion on the North Slope. The federal government said they were going to resolve the case and Alaska must join and after the resolution, Alaska, under its own law, could not bring its own case against the company. 9:40:51 AM Senator Elton asked if the state files charges first and then the federal government comes in, would the state charges go away. 9:41:31 AM Mr. Svobodny responded that the law in Alaska is not clear on this issue, whether it is the first in the courtroom door or the first to judgment. Ms. Carpeneti said there is no prohibition for the federal government to file their own charges after the state. 9:41:59 AM Senator Thomas asked for clarification if the referred British Petroleum case was the case where a plea agreement was reached in Chicago this year. Mr. Svobodny replied that it was not, the referenced case was from the spill on the North Slope in March 2006. 9:42:39 AM Senator Elton questioned that if these provisions are not repealed could the state get into a situation where the state files first, then the federal government files, prompting the party to settle quickly with the federal government leaving out the State of Alaska. Mr. Svobodny agreed. Ms. Carpeneti stressed that this provision would not allow the state to cross into a different municipalities to prosecute the same act or smaller crimes twice. 9:44:28 AM Ms. Carpeneti referred to Section 22 which extends the time to return a search warrant with inventory from ten days to thirty days from the date of issuance. She revealed that in longer prosecutions and investigations, ten days is not long enough. She stressed that the courts have been very cooperative in extending the search warrants, but it is more expeditious to change in the law. Ms. Carpeneti explained that Section 23, involving third time assault in the fourth degree, would be under these applicability provisions, prospective, and those with multiple assaults on their record, would be able to start under this bill with a clean slate. 9:45:38 AM Co-Chair Stedman requested a return to Section 8 which authorizes a judge to issue search warrants outside of Alaska. He wondered how this would work and if a judge in another state would honor this request. 9:46:09 AM Mr. Svobodny responded that another state does not have to comply with the search warrant issued by a judge from the State of Alaska, but it gives the state the ability to ask if they will comply. There are many serious offenses, such as, kidnapping, sexual assault, child pornography where subpoenas are honored in other states. 9:48:16 AM Senator Elton referred to Sections 5 and 6. He agreed that Section 5 closes a large loophole for theft but wondered why in Section 6, which provides the court shall consider the date of a prior conviction; the state is prosecuting the crime of concealment under AS 11.46.220(c) and not giving the same power under AS 11.46.230(a) where it was amended. 9:49:12 AM Ms. Carpeneti inquired if Senator Elton wanted to amend Section 6. Senator Elton agreed. Ms. Carpeneti replied she would reassess this section. Section 6 in the bill is a conforming amendment when a conviction happens that only applies when your third crime in five years is enhanced. 9:50:41 AM Senator Thomas referred to Section 7 and wondered if the drugs listed were in a numerical ordering of just prescription drugs or the list of all drugs that would be considered impairing. Ms. Carpeneti replied that the numbers represented the end of the list of Schedule 4(a) of the drug schedules. 9:51:24 AM Senator Huggins referred to Section 16(b) where it states "a principal department in the executive branch" and questioned if someone from the Department of Transportation could sign an eradication order. Ms. Carpeneti agreed that was the way it was drafted. Senator Huggins believed this did not seem logical. Ms. Carpeneti said it could be changed to the Office of Public Safety or the Department of Law. Co-Chair Stedman agreed that work was needed to revise who should have the extradition authority. 9:52:48 AM JAMES SCOTT, ASSISTANT DISTRICT ATTORNEY, KETCHIKAN testified via teleconference and acknowledged that he was available to speak on how Alaska deals with the criminal cases found in Sections 10, 11, 14, 15 of the Committee Substitute. He related an incompetency case in Sitka. 9:54:44 AM LT RODNEY DIAL, LIEUTENANT, ALASKA STATE TROOPERS, KETCHIKAN testified via teleconference in support of SB 234. He believed some important sections dealt with search warrants, especially when investigating computer crimes and for troopers located near the Canadian border. The troopers commended the sections that expand the ability of law enforcement officers to obtain search warrants telephonically. He acknowledged that obtaining telephonic search warrants would not lower the standards; however it would prove more efficient in time and money. 9:56:37 AM Co-Chair Stedman summarized the six fiscal notes attached to the bill. He had some concerns why the Public Defenders Agency needed to hire three new full time positions and the Department of Law asked for one new position. 9:57:51 AM Mr. Svobodny addressed the Department of Law's request by stating that felony assault cases take up more time and money and the department anticipates more cases dealing with child enticement and child pornography. 10:00:02 AM Ms. Svobodny commented further on the search warrant provisions. He affirmed that the Fourth Amendment protects all United States citizens from unreasonable search and seizures. He stressed that all cases for search warrants are reviewed by a judge to ascertain if a crime has been committed. Mr. Svobodny clarified that Section 8 shows the court the authority exists "to issue a search warrant for a place or property located either in the state or outside the state." He believed that as technology keeps advancing the courts will be looking more into electronic evidence which is often located outside of Alaska. He explained the process for obtaining a search warrant in Alaska and how the ability to obtain these warrants telephonically would save time and department resources. Mr. Svobodny remarked that Section 22 would just extend the time, from ten to thirty days, for the execution and return of inventory from the date of issuance of a search warrant. 10:07:06 AM