HB 324-FAILURE TO APPEAR; RELEASE PROCEDURES  3:34:06 PM CHAIR FRENCH announced the consideration of HB 324 and noted that the committee heard the companion Senate bill, SB 252, [in February]. [CSHB 324(FIN) was before the committee.] SUSAN MCLEAN, Director, Criminal Division, Department of Law (DOL), said HB 324 relates to bail and conditions of release. She reported that DOL has worked closely with the chair of this committee, the House, the court system, and the defense bar to arrive at a consensus. HB 324 is very similar to the companion bill, SB 252, but there have been changes since the committee heard the Senate bill. She said she would put the major changes on the record. 3:35:06 PM Section 1 pertains to the crime of failure to appear. Page 2, lines 4-5, provides a mental state for the crime of failure to appear whereas the Senate version didn't specify a mental state for failing to appear. HB 324 requires the state to prove that the person knew that he or she had to appear at a specific time and place and that the person acted with criminal negligence in failing to do so. Section 3 pertains to release procedures. The original version required the court to prepare a report on previous applications for bail review when it was considering a subsequent application. The court thought that was burdensome and DOL agreed to remove that section. Section 4 pertains to release before trial. Page 7, line 8, talks about when the court is making a finding about the amount of bail or the conditions that are going to be imposed. In certain circumstances there's a rebuttable presumption that there are no conditions of release that would assure a person's appearance. Page 7, lines 13-15 narrows the types of circumstances to which the rebuttable presumption can apply. The previous version would have applied to anyone who has a prior felony conviction and is before the court and charged with a new felony. The new paragraph (B) is limited to individuals who are charged with a crime against a person under AS 11.41 and have been previously convicted of a crime against a person, which is a significantly smaller universe of people. Section 5 pertains to third-party custodians. The previous version said that the court had to personally address the proposed third-party custodian. That has been changed to make it clear that the court may also use a telephone or other approved technology. The previous version also said that anyone who was convicted of a misdemeanor or felony within the past five years could not be appointed as a third-party custodian. This was particularly burdensome for rural courts because it would critically limit the pool. That was changed so that only individuals who have been convicted of a crime against a person within the past three years would be prohibited from serving as a third-party custodian. 3:39:09 PM Section 10 pertains to release after conviction pending sentencing and appeal. The previous version said that a person previously convicted of a felony who has just been convicted of a class B or class C felony and is awaiting sentencing or appeal, could not be released pending sentencing or appeal. That has been changed to now apply only to a person who has been convicted of class B felony. Previously the bill provided that people convicted of class A and unclassified felonies were not subject to release at the moment that the jury returned a verdict. This just extends it to class B felonies. MS. MCLEAN said those are the major changes since the committee last saw the bill. CHAIR FRENCH directed attention to a conceptual amendment that is largely based on provisions in HB 283. It pertains primarily to Section 4 of HB 324, but changes to Sections 3 and 5 may be necessary. He asked Mr. Svobodny to comment on the general idea. 3:41:12 PM RICK SVOBODNY, Deputy Attorney General, Criminal Division, Department of Law (DOL), said he knows that the committee is looking primarily at the addition of paragraph (13) from Section 4 of [HB 283]. Although DOL thinks it's a good idea to have a condition of sentencing or a suspended imposition of sentence that would prohibit someone from consuming alcohol, the provision is written in a manner that causes some legal concern. Basically it says that the court can order the defendant to refrain from consuming alcohol for a period of time including the term of the sentence and as a condition of probation. The judge already has the ability to prohibit somebody from consuming alcohol as a condition of probation, but that decision is based on a finding that alcohol provides a nexus to the crime, not by clear and convincing evidence as subparagraphs (A) and (B) would require. The legal concern is that including the word probation takes away the power of the court to do probation. 3:43:06 PM SENATOR EGAN joined the committee. MR. SVOBODNY suggested the committee drop the words "as a condition of probation" from page 3, lines 16-17. CHAIR FRENCH said he'd keep that under advisement. He asked if the matter gets more or less complicated if you consider Section 3 on page 2, which relates to Title 4. [HB 283 Sec. 3. amends AS 04.16.160(a).] 3:44:23 PM MR. SVOBODNY said he didn't have a conceptual problem with including Section 3, but he didn't want to make a decision on the fly. CHAIR FRENCH said he'd hold it in abeyance. SENATOR WIELECHOWSKI read Section 3 and observed that it adds AS 12.55.015(a)(13), which is Section 4. 3:46:54 PM MR. SVOBODNY said he believes that's right. CHAIR FRENCH said it adds that a judge can order a person not to consume alcohol as part of a sentence for perhaps another crime. SENATOR WIELECHOWSKI said it seems eminently reasonable that if a judge orders a person not to consume alcohol, they shouldn't be able to buy it either. MR. SVOBODNY expressed reluctance to shoot from the hip because this involves working back through several statutes. 3:48:42 PM CHAIR FRENCH asked what the penalty is for a violation of AS 04.16.160. [An answer was not forthcoming.] SENATOR COGHILL observed that the court is already doing this to some degree and it sounds like this would be more rather than less restrictive. He said he believes that the sponsor was trying to put in place a mark on a driver's license as an enforcement mechanism. Section 1, which amends AS 04.16.047(a), talks about producing your license in order to purchase alcohol, so these restrictions would probably be more appropriate to the seller of alcohol than to the enforcer of the provision, he said. CHAIR FRENCH reviewed Section 1 and observed that it's in part aimed at enforcement by the private sector. MR. SVOBODNY pointed out that AS 04.16.160(b) supports Senator Coghill's statement. 3:51:41 PM SENATOR WIELECHOWSKI referenced paragraph (13) on page 3 of HB 283 and suggested that including the phrase "order the defendant to refrain from consuming or purchasing alcoholic beverages" may get to the sponsor's intent. That would be a violation of the court order and the sentence or penalty would be ordered by the judge. CHAIR FRENCH highlighted that this changes AS 04.16.160 and he still didn't know what the penalty is for violating that section. MR. SVOBODNY said he believes the penalty is in [subsection (b)] and it's that you get the letter "A" on your driver's license. REPRESENTATIVE HARRY CRAWFORD, sponsor of HB 283, chimed in that the penalty is a red slash on your license and a $1,000 civil fine. 3:53:07 PM CHAIR FRENCH asked Mr. Svobodny if he agrees that there's a civil enforcement to section .160 and there's also the red slash. MR. SVOBODNY indicated he wasn't willing to give an answer. 3:53:24 PM CHAIR FRENCH said he'd hold that thought for the time being. He then asked Mr. Svobodny his view of Section 5 in HB 283. MR. SVOBODNY said it appears to be a savings clause for the type of concern he raised earlier about probation. The problem is that if you read Section 4 to be anything other than sentencing, the burden of proof is substantially different - it's by clear and convincing evidence. The state doesn't have a problem with it being a condition of the sentence just like the conditions in paragraphs 1-12, but when you move on to areas where judges generally already have that authority it restricts the court's ability to impose alcohol restrictions as a condition of probation. Suspended imposition of sentence is actually a form of probation so that is also a concern. DOL wants the court to have the ability to make restrictions on alcohol a condition of the sentence. For example, if somebody had a $10,000 fine and no jail time, the court could impose that as an additional condition of the sentence. MR. SVOBODNY summarized that he is concerned about the probationary types of sentences, like a suspended imposition of sentence or probation itself. CHAIR FRENCH said he still didn't have a clear idea of his view of Section 5. MR. SVOBODNY said it's a savings clause to allow judges to order the prohibition against consumption of alcohol as a condition of sentence. CHAIR FRENCH asked if he's saying that he would prefer that the sentence end after the word "sentence" rather than after "probation." At ease from 3:56 p.m. to 3:58 p.m. CHAIR FRENCH reconvened the meeting and asked Mr. Svobodny what wisdom and insight he and Ms. McLean had gained in the last few minutes. MR. SVOBODNY suggested that the language on page 3, line 15 [HB 283] should read, "order the defendant to refrain from consuming alcoholic beverages during the term of the sentence." He would delete the remainder of the paragraph, whereas Ms. McLean would leave that remaining language intact. In subparagraph (A) she would say, "the defendant was convicted of a felony." and drop the rest of the language. In subparagraph (B) she would say, "the defendant was convicted of a misdemeanor." and drop the rest of the language. MS. MCLEAN said if she were doing the rewrite it would read as follows: (13) order the defendant to refrain from consuming alcoholic beverages for a period of time, including during the term of any sentence and as a condition of probation, suspended sentence, and suspended imposition of sentence, if (A) the defendant was convicted of a felony and the court finds that the defendant's conduct constituting the offense was substantially influenced by consumption of alcoholic beverages. (B) the defendant was convicted of a misdemeanor and the court finds, based on the defendant's history, there is reason to believe…. She added that although that is what she would suggest, she would defer to Mr. Svobodny who is her boss. 4:00:47 PM MR. SVOBODNY pointed out that the problem with that suggestion is that judges oftentimes want to impose no alcohol as a condition of probation. Although the person may have been sober when they committed the crime, they may have a long history before the court of alcohol-related offenses. As long as there is a nexus to the person's rehabilitation, the court can do that. Ms. McLean's suggestion is a nexus to the crime. 4:01:41 PM SENATOR WIELECHOWSKI described his preference for the amendment [using page 3, paragraph (13) of HB 283 as a guideline]: (13) order the defendant to refrain from consuming or purchasing alcoholic beverages for a period of time if (A) the defendant was convicted of a felony and the court finds that the defendant's conduct constituting the offense was substantially influenced by the consumption of alcoholic beverages; or (B) the defendant was convicted of a misdemeanor and the court finds that, based on the defendant's history…" MS. MCLEAN said she now understands what Mr. Svobodny was saying, which is that there may be a crime where the person was not drinking but they have a pattern of criminal, often felony, behavior and that behavior generally involves drinking. Under current case law it's possible for the court to impose a no drinking condition even though alcohol wasn't involved this time. The court wants the person to survive probation and recognizes that the person probably won't if they drink. Mr. Svobodny is infinitely quick and he would put the period after the word "felony" and after the word "misdemeanor," she said. CHAIR FRENCH asked Mr. Svobodny what his preference would be for the amendment. 4:03:45 PM SENATOR MCGUIRE joined the committee. MR. SVOBODNY said he starts from the premise that the entire section is about what a judge can do as a sentence - like impose jail time, a fine, or restitution. He would suggest it say, "order the defendant to refrain from consuming or purchasing alcoholic beverages." SENATOR WIELECHOWSKI said that keeps it simple. CHAIR FRENCH agreed and asked Senator Wielechowski if he was ready to state the amendment. SENATOR WIELECHOWSKI confirmed that he was ready. CHAIR FRENCH asked Mr. Svobodny if he was comfortable with Section 3, Section 4 as discussed, and Section 5. He noted that a title change would be necessary in any event. Ms. McLean indicated they were comfortable. MR. SVOBODNY stated for the record that Section 3, Section 4 as amended, and Section 5 are okay with the state. 4:06:16 PM SENATOR WIELECHOWSKI moved a conceptual amendment to include from CSHB 283: Section 3 and Section 5 as currently written and Section 4 as follows: AS 12.55.015(a) would have a new paragraph (13) that says, "order the defendant to refrain from consuming or purchasing alcoholic beverages." CHAIR FRENCH found no objection, and announced that conceptual Amendment 1 was adopted and that there would be a title change as necessary to conform to the amendment as passed. Finding no further committee discussion, he asked for a motion. SENATOR WIELECHOWSKI moved to report CS for HB 324, as conceptually amended, from committee with individual recommendations, attached fiscal note, and the recognition that a title change would be necessary. CHAIR FRENCH announced that without objection, SCS CSHB 324(JUD) moved from the Senate Judiciary Standing Committee.