ALASKA STATE LEGISLATURE                                                                                  
               HOUSE JUDICIARY STANDING COMMITTEE                                                                             
                         April 10, 2006                                                                                         
                           2:19 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Representative Lesil McGuire, Chair                                                                                             
Representative Tom Anderson                                                                                                     
Representative John Coghill                                                                                                     
Representative Pete Kott                                                                                                        
Representative Peggy Wilson                                                                                                     
Representative Les Gara                                                                                                         
Representative Max Gruenberg                                                                                                    
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
HOUSE BILL NO. 258                                                                                                              
"An Act relating to aggravating factors at sentencing."                                                                         
                                                                                                                                
     - MOVED CSHB 258(JUD) OUT OF COMMITTEE                                                                                     
                                                                                                                                
HOUSE BILL NO. 413                                                                                                              
"An Act relating to the burning capability of cigarettes being                                                                  
sold, offered for sale, or possessed for sale; and providing for                                                                
an effective date."                                                                                                             
                                                                                                                                
     - MOVED CSHB 413(JUD) OUT OF COMMITTEE                                                                                     
                                                                                                                                
HOUSE BILL NO. 325                                                                                                              
"An Act relating to post-conviction DNA testing; and amending                                                                   
Rule 35.1, Alaska Rules of Criminal Procedure."                                                                                 
                                                                                                                                
     - MOVED CSHB 325(JUD) OUT OF COMMITTEE                                                                                     
                                                                                                                                
HOUSE BILL NO. 482                                                                                                              
"An Act relating to harassment, intimidation, and bullying in                                                                   
schools."                                                                                                                       
                                                                                                                                
     - BILL HEARING POSTPONED TO 4/12/06                                                                                        
                                                                                                                                
HOUSE BILL NO. 424                                                                                                              
"An Act relating to mortgage lenders and persons who engage in                                                                  
activities relating to mortgage lending; and providing for an                                                                   
effective date."                                                                                                                
                                                                                                                                
     - BILL HEARING POSTPONED TO 4/18/06                                                                                        
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: HB 258                                                                                                                  
SHORT TITLE: SEXUAL ASSAULT BY PERSON WITH HIV/AIDS                                                                             
SPONSOR(S): REPRESENTATIVE(S) LYNN                                                                                              
                                                                                                                                
04/06/05       (H)       READ THE FIRST TIME - REFERRALS                                                                        
04/06/05       (H)       HES, JUD                                                                                               
02/23/06       (H)       HES AT 3:00 PM CAPITOL 106                                                                             
02/23/06       (H)       <Bill Hearing Rescheduled to 2/28/06>                                                                  
02/28/06       (H)       HES AT 3:00 PM CAPITOL 106                                                                             
02/28/06       (H)       Scheduled But Not Heard                                                                                
03/21/06       (H)       HES AT 3:00 PM CAPITOL 106                                                                             
03/21/06       (H)       Moved CSHB 258(HES) Out of Committee                                                                   
03/21/06       (H)       MINUTE(HES)                                                                                            
03/24/06       (H)       HES RPT CS(HES) 7DP                                                                                    
03/24/06       (H)       DP: CISSNA, GATTO, GARDNER, KOHRING,                                                                   
                         ANDERSON, SEATON, WILSON                                                                               
04/10/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
                                                                                                                                
BILL: HB 413                                                                                                                  
SHORT TITLE: BURNING CAPABILITY OF CIGARETTES                                                                                   
SPONSOR(S): REPRESENTATIVE(S) JOULE                                                                                             
                                                                                                                                
02/01/06       (H)       READ THE FIRST TIME - REFERRALS                                                                        
02/01/06       (H)       STA, JUD, FIN                                                                                          
02/09/06       (H)       STA AT 8:00 AM CAPITOL 106                                                                             
02/09/06       (H)       Moved CSHB 413(STA) Out of Committee                                                                   
02/09/06       (H)       MINUTE(STA)                                                                                            
02/13/06       (H)       STA RPT CS(STA) 6DP                                                                                    
02/13/06       (H)       DP: GARDNER, LYNN, ELKINS, RAMRAS,                                                                     
                        GRUENBERG, GATTO                                                                                        
03/31/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/31/06       (H)       Heard & Held                                                                                           
03/31/06       (H)       MINUTE(JUD)                                                                                            
04/07/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
04/07/06       (H)       Heard & Held                                                                                           
04/07/06       (H)       MINUTE(JUD)                                                                                            
04/10/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
                                                                                                                                
BILL: HB 325                                                                                                                  
SHORT TITLE: POST-CONVICTION DNA TESTING                                                                                        
SPONSOR(S): REPRESENTATIVE(S) LEDOUX                                                                                            
                                                                                                                                
01/09/06       (H)       PREFILE RELEASED 12/30/05                                                                              
01/09/06       (H)       READ THE FIRST TIME - REFERRALS                                                                        
01/09/06       (H)       JUD, FIN                                                                                               
03/22/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/22/06       (H)       <Bill Hearing Postponed to 03/24/06>                                                                   
03/24/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/24/06       (H)       <Bill Hearing Postponed to 03/27/06>                                                                   
03/27/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/27/06       (H)       <Bill Hearing Postponed to 03/29/06>                                                                   
03/29/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/29/06       (H)       Scheduled But Not Heard                                                                                
04/05/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
04/05/06       (H)       Heard & Held; Assigned to Subcommittee                                                                 
04/05/06       (H)       MINUTE(JUD)                                                                                            
04/10/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
REPRESENTATIVE BOB LYNN                                                                                                         
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Sponsor of HB 258.                                                                                         
                                                                                                                                
ANNE CARPENETI, Assistant Attorney General                                                                                      
Legal Services Section-Juneau                                                                                                   
Criminal Division                                                                                                               
Department of Law (DOL)                                                                                                         
Juneau, Alaska                                                                                                                  
POSITION  STATEMENT:   During  discussion  of  HB 258,  spoke  in                                                               
support  of   the  bill  and   responded  to   questions;  during                                                               
discussion  of  HB  325, responded  to  questions  and  expressed                                                               
concern regarding certain language.                                                                                             
                                                                                                                                
MICHAEL SICA, Staff                                                                                                             
to Representative Bob Lynn                                                                                                      
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  During discussion of HB 258, provided                                                                      
comments and responded to questions on behalf of the sponsor,                                                                   
Representative Lynn.                                                                                                            
                                                                                                                                
MIKAYLA SAITO, Intern                                                                                                           
to Representative Reggie Joule                                                                                                  
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:   Provided comments on behalf  of the sponsor                                                               
of HB 413, Representative Joule.                                                                                                
                                                                                                                                
REPRESENTATIVE REGGIE JOULE                                                                                                     
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Sponsor of HB 413.                                                                                         
                                                                                                                                
KIMBERLY WALLACE, Staff                                                                                                         
to Representative Gabrielle LeDoux                                                                                              
House Special Committee on Fisheries                                                                                            
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION  STATEMENT:     During  hearing  of   HB  325,  answered                                                               
questions on behalf of the sponsor, Representative LeDoux.                                                                      
                                                                                                                                
REPRESENTATIVE GABRIELLE LeDOUX                                                                                                 
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Spoke as the sponsor of HB 325.                                                                            
                                                                                                                                
MARY ANNE HENRY, Director                                                                                                       
Office of Victims' Rights (OVR)                                                                                                 
Alaska State Legislature                                                                                                        
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Expressed concerns with HB 325.                                                                            
                                                                                                                                
STEPHEN SALOOM, Policy Director                                                                                                 
Innocence Project                                                                                                               
New York, New York                                                                                                              
POSITION  STATEMENT:     Provided   comments  and   responded  to                                                               
questions during discussion of HB 325.                                                                                          
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
CHAIR  LESIL   McGUIRE  called   the  House   Judiciary  Standing                                                             
Committee  meeting  to  order at  2:19:46  PM.    Representatives                                                             
McGuire,  Wilson, Gara,  Kott, and  Coghill were  present at  the                                                               
call to  order.  Representatives  Gruenberg and  Anderson arrived                                                               
as the meeting was in progress.                                                                                                 
                                                                                                                                
HB 258 - SEXUAL ASSAULT BY PERSON WITH HIV/AIDS                                                                               
                                                                                                                                
2:19:57 PM                                                                                                                    
                                                                                                                                
CHAIR McGUIRE  announced that the  first order of  business would                                                               
be HOUSE  BILL NO. 258,  "An Act relating to  aggravating factors                                                               
at sentencing."  [Before the committee was CSHB 258(HES).]                                                                      
                                                                                                                                
2:20:01 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  BOB  LYNN,  Alaska  State  Legislature,  sponsor,                                                               
offered his  understanding that  HB 258  would make  having human                                                               
immunodeficiency   virus  (HIV)   or  acquired   immunodeficiency                                                               
syndrome  (AIDS) when  committing  a rape  or  sexual assault  an                                                               
aggravating factor at sentencing.   Specifically, the perpetrator                                                               
would have to have been  previously diagnosed as having or having                                                               
tested  positive  for HIV  or  AIDS.    He  remarked that  how  a                                                               
perpetrator comes to  have HIV or AIDS is not  the issue; instead                                                               
the  issue  is whether  a  convicted  rapist or  sexual  predator                                                               
previously diagnosed  with HIV  or AIDS should  be subject  to an                                                               
aggravating factor at sentencing.                                                                                               
                                                                                                                                
REPRESENTATIVE LYNN  offered his understanding that  HIV and AIDS                                                               
are  incurable,  potentially  fatal,  and  primarily  transmitted                                                               
through  "sexual behavior,"  which  can include  rape and  sexual                                                               
assault.   In  such cases,  not only  does a  victim of  rape and                                                               
sexual assault  suffer the horrific  consequences of  the attack,                                                               
but he/she  must also  suffer the  effects of  a life-threatening                                                               
disease that could  essentially be a delayed death  sentence.  It                                                               
is a sobering  fact that some of those infected  with HIV or AIDS                                                               
have shorter  lives than some  criminals condemned to  a prison's                                                               
death row.                                                                                                                      
                                                                                                                                
REPRESENTATIVE LYNN said that he  has received tremendous support                                                               
for HB 258 from law  enforcement officials and agencies providing                                                               
services to  victims of  sexual assault.   He relayed  that Susan                                                               
Sullivan - Executive Director, Victims  for Justice, Inc. - wrote                                                               
in part, "adding months of  terror, and possibly years of illness                                                               
and shortened life,  to the horror of a rape,  makes an attack by                                                               
an  HIV-AIDS positive  rapist a  horrendous  assault"; that  Walt                                                               
Monegan -  Chief of Police,  Anchorage Police Department  (APD) -                                                               
has described a rapist or sexual  offender with HIV or AIDS as an                                                               
assailant with  an insidious weapon  that can be used  to further                                                               
strike out against victims and  the victims' loved ones; and that                                                               
Gerad Godfrey  - Chair, Violent Crimes  Compensation Board (VCCB)                                                               
- urges passage of HB 308  "as a sign of respect, compassion, and                                                               
understanding  of the  trauma experienced  by victims  of serious                                                               
sexual offenses."                                                                                                               
                                                                                                                                
REPRESENTATIVE LYNN mentioned that  24 states currently have some                                                               
type   of  law   that  specifically   criminalizes  exposure   or                                                               
transmission of HIV, and offered his  belief that it is long past                                                               
time that Alaska  joins them, particularly given  that Alaska has                                                               
the  highest  per  capita  rate  of  rape  in  the  nation.    In                                                               
conclusion, he characterized  HB 258 is a  proactive measure that                                                               
acknowledges the additional pain  and suffering caused by rapists                                                               
and  sexual  assailants  who  expose  their  victims  to  a  life                                                               
threatening disease.                                                                                                            
                                                                                                                                
REPRESENTATIVE  LYNN   in  response  to  comments,   offered  his                                                               
understanding that the proposed  sentencing aggravator would only                                                               
apply  in   cases  of  rape   and  sexual  assault   wherein  the                                                               
perpetrator has been previously diagnosed with HIV or AIDS.                                                                     
                                                                                                                                
REPRESENTATIVE  GARA  pointed  out, however,  that  the  statutes                                                               
referred to  in the bill  - AS  11.41.410 through AS  11.41.455 -                                                               
also  include  felony  crimes involving  sexual  contact  through                                                               
clothing  and  consensual  conduct  between  certain  persons  of                                                               
certain ages.   He  offered his belief  that the  sponsor doesn't                                                               
really want to  have the proposed sentencing  aggravator apply to                                                               
such crimes, and suggested that  the sponsor's intent could still                                                               
be honored by  adding a clause that says, "that  creates the risk                                                               
of a transmission of HIV or  AIDS"; by definition, then, the bill                                                               
would  only address  those crimes  wherein [such  transmission is                                                               
possible].                                                                                                                      
                                                                                                                                
CHAIR McGUIRE  noted that  such language  would not  preclude the                                                               
bill  from applying  in situations  involving consensual  conduct                                                               
between  [certain  persons  of certain  ages]  when  the  conduct                                                               
includes sexual penetration.                                                                                                    
                                                                                                                                
2:29:35 PM                                                                                                                    
                                                                                                                                
ANNE  CARPENETI,  Assistant   Attorney  General,  Legal  Services                                                               
Section-Juneau, Criminal Division, Department  of Law (DOL), said                                                               
that  the   DOL  supports   HB  258.     She   acknowledged  that                                                               
Representative  Gara  is  correct  in that  crimes  wherein  only                                                               
"touching" has occurred can rise  to the level of felony conduct.                                                               
She pointed out, however, that it  would still be up to the court                                                               
to decide  whether applying  an aggravator  in a  particular case                                                               
would  be appropriate,  and  surmised that  the  court would  not                                                               
apply  such  an  aggravator  in  instances  where  there  was  no                                                               
exposure.                                                                                                                       
                                                                                                                                
REPRESENTATIVE  GARA suggested  perhaps  adding to  page 1,  line                                                               
[6],  the   words,  "and   the  conduct   creates  the   risk  of                                                               
transmission of HIV or AIDS".                                                                                                   
                                                                                                                                
MS. CARPENETI suggested using the term, "exposure".                                                                             
                                                                                                                                
2:31:12 PM                                                                                                                    
                                                                                                                                
MICHAEL  SICA, Staff  to Representative  Bob  Lynn, Alaska  State                                                               
Legislature, sponsor,  relayed on  behalf of  Representative Lynn                                                               
that  part  of  the  problem  is that  the  additional  pain  and                                                               
suffering for  victims begins with  the exposure,  because within                                                               
72 hours,  and preferably within  24 hours, victims  must subject                                                               
themselves  to  aggressive  prophylactics for  a  28-day  period,                                                               
prophylactics that that can make  them sick.  Furthermore, it can                                                               
take up to 6 months to  determine whether a victim has contracted                                                               
the disease.                                                                                                                    
                                                                                                                                
CHAIR McGUIRE surmised, then, that  Mr. Sica is speaking in favor                                                               
of using the term, "exposure".                                                                                                  
                                                                                                                                
MR. SICA concurred.                                                                                                             
                                                                                                                                
REPRESENTATIVE GARA  said he agrees  with the concept but  is not                                                               
sure what  the wording  would look  like for such  a change.   He                                                               
reiterated  his  concern that  the  bill,  as currently  written,                                                               
would  apply in  instances  that involve  sexual contact  through                                                               
clothing.                                                                                                                       
                                                                                                                                
MR. SICA  noted that  plenty of  sexual assault  crimes involving                                                               
sexual  penetration   are  "plead  down"  to   "non  penetration"                                                               
offenses;  in such  cases, penetration  has occurred  and so  has                                                               
exposure.                                                                                                                       
                                                                                                                                
REPRESENTATIVE GARA offered  his belief that even  in such cases,                                                               
the aggravator  would still  apply because it  would be  based on                                                               
the underlying conduct.                                                                                                         
                                                                                                                                
MR.  SICA argued  that it  would  be up  to the  court to  decide                                                               
whether such was the case;  the language pertaining to sentencing                                                               
aggravators currently says in part,  "The following factors shall                                                               
be considered  by the  sentencing court  if proven  in accordance                                                               
with this section,  and may allow imposition of  a sentence above                                                               
the presumptive range".                                                                                                         
                                                                                                                                
MS.  CARPENETI,  in response  to  a  question, suggested  perhaps                                                               
adding language that said, "a  felony specified in these sections                                                               
which exposed the victim to ...".                                                                                               
                                                                                                                                
REPRESENTATIVE GARA  finished:   "potential risk  of AIDS  or HIV                                                               
transmission".                                                                                                                  
                                                                                                                                
MS. CARPENETI said,  "Or to the exposure, ...  because that's the                                                               
fear."                                                                                                                          
                                                                                                                                
CHAIR McGUIRE  suggested making the  change conceptual,  with the                                                               
concept  being   that  there  is  the   potential  for  exposure,                                                               
regardless of whether the victim actually contracts the disease.                                                                
                                                                                                                                
REPRESENTATIVE GARA concurred.                                                                                                  
                                                                                                                                
MS.  CARPENETI  said  the  DOL   would  be  happy  to  work  with                                                               
Representative Gara and the sponsor on this issue.                                                                              
                                                                                                                                
2:34:44 PM                                                                                                                    
                                                                                                                                
CHAIR McGUIRE  said they would  set HB  258 aside until  later in                                                               
the meeting so that appropriate language could be developed.                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  asked that consideration also  be given                                                               
to possibly narrowing the title  so that it specifically reflects                                                               
what the bill  entails.  He also asked  whether the applicability                                                               
provision is even necessary.                                                                                                    
                                                                                                                                
MS. CARPENETI  said that  when she  is drafting  legislation, she                                                               
generally  doesn't  include  applicability  provisions,  but  the                                                               
DOL's editor  adds them  in.   Having an  applicability provision                                                               
doesn't  hurt,  she  remarked, even  though  criminal  laws  that                                                               
increase   one's   potential   punishment  are   always   applied                                                               
prospectively.                                                                                                                  
                                                                                                                                
REPRESENTATIVE  GRUENBERG then  pointed out  that AS  11.41.452 -                                                               
Online  enticement of  a  minor  - and  AS  11.41.455 -  Unlawful                                                               
exploitation of a  minor - are also referenced in  HB 258 and are                                                               
both  felony crimes,  but don't  require there  to have  been any                                                               
physical contact between the victim  and the perpetrator; if such                                                               
contact did  occur, he  surmised, then  the perpetrator  would be                                                               
charged  with a  separate, higher  crime.   He suggested  to [the                                                               
sponsor that he also] give  consideration to possibly eliminating                                                               
those statutes from HB 258 as well.                                                                                             
                                                                                                                                
MS. CARPENETI  offered her belief that  the forthcoming suggested                                                               
conceptual  change  will  address  that   issue  as  well.    She                                                               
indicated that  it is simply  common to reference AS  11.41.410 -                                                               
AS  11.41.455  when  writing  legislation  pertaining  to  sexual                                                               
offenses.  She  said she agrees that it's unlikely  that under AS                                                               
11.41.452  or  AS  11.41.455  there  would  be  physical  contact                                                               
resulting in any exposure to HIV or AIDS.                                                                                       
                                                                                                                                
REPRESENTATIVE  GRUENBERG  mentioned  that   he  may  propose  an                                                               
amendment  to eliminate  the  reference to  AS  11.41.452 and  AS                                                               
11.41.455.  He then expressed  the concern that a perpetrator may                                                               
have  only been  diagnosed  as having  HIV or  AIDS  but yet  not                                                               
notified of that  fact before he/she committed a  crime for which                                                               
the  proposed  aggravator would  apply.    As currently  written,                                                               
there  is no  requirement that  the perpetrator  knew he/she  had                                                               
been diagnosed  with HIV  or AIDS.   Therefore, he  opined, there                                                               
should  be  some kind  of  knowledge  or recklessness  [standard]                                                               
included   in  the   bill;  without   such   being  included,   a                                                               
constitutional problem might arise.                                                                                             
                                                                                                                                
2:39:37 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GARA offered his  belief that with the forthcoming                                                               
conceptual  change, the  fact that  a  perpetrator was  concerned                                                               
enough to  even get tested for  HIV or AIDS would  be sufficient.                                                               
In  response to  a comment,  he  opined that  application of  the                                                               
proposed aggravator  would be justified  even if  the perpetrator                                                               
doesn't yet know the results of that testing.                                                                                   
                                                                                                                                
REPRESENTATIVE  WILSON  and  CHAIR  McGUIRE,  in  response  to  a                                                               
question, explained that  one is not routinely tested  for HIV or                                                               
AIDS;  instead,  a specific  consent  form  for such  testing  is                                                               
required.                                                                                                                       
                                                                                                                                
CHAIR McGUIRE indicated  that [CSHB 258(HES)] would  be set aside                                                               
brought back up later in the meeting.                                                                                           
                                                                                                                                
HB 413 - BURNING CAPABILITY OF CIGARETTES                                                                                     
                                                                                                                                
2:42:48 PM                                                                                                                    
                                                                                                                                
CHAIR McGUIRE announced that the  next order of business would be                                                               
HOUSE BILL  NO. 413, "An  Act relating to the  burning capability                                                               
of  cigarettes being  sold, offered  for sale,  or possessed  for                                                               
sale;  and  providing  for  an  effective  date."    [Before  the                                                               
committee was the proposed committee  substitute (CS) for HB 413,                                                               
Version 24-LS1495\F,  Bannister, 4/5/06,  which had  been adopted                                                               
as the  work draft on  4/7/06; also included in  members' packets                                                               
was  another  proposed  committee  substitute (CS)  for  HB  413,                                                               
Version 24-LS1495\Y, Bannister, 4/10/06.]                                                                                       
                                                                                                                                
CHAIR McGUIRE recalled  that the Department of  Revenue (DOR) had                                                               
expressed  some  concerns  with  Version F  because  it  did  not                                                               
include  all  of  the  DOR's  recommendations,  and  offered  her                                                               
understanding that the new proposed  committee substitute (CS) in                                                               
members' packets does incorporate all of those recommendations.                                                                 
                                                                                                                                
2:43:41 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GARA   made  a  motion  to   adopt  the  proposed                                                               
committee  substitute  (CS)  for  HB  413,  Version  24-LS1495\Y,                                                               
Bannister,  4/10/06,  as   the  work  draft.     There  being  no                                                               
objection, Version Y was before the committee.                                                                                  
                                                                                                                                
2:44:03 PM                                                                                                                    
                                                                                                                                
MIKAYLA  SAITO, Intern  to  Representative  Reggie Joule,  Alaska                                                               
State   Legislature,   relayed   on  behalf   of   the   sponsor,                                                               
Representative Joule,  that the  legislative findings  and intent                                                               
section  of  Version Y  updates  the  finding that  nearly  3,000                                                               
injuries have resulted from fires  caused by cigarettes, and that                                                               
Version Y  corrects  some  grammatical  errors  and  closes  some                                                               
loopholes.   Additionally, Version  Y provides  the DOR  with the                                                               
ability to seize cigarettes that  are not in compliance with this                                                               
proposed law.   Page 6 now includes language  specifying that the                                                               
markings approved for  Alaska must be the same  markings as those                                                               
used in and approved for the  state of New York; this requirement                                                               
could   smooth  the   way  for   the  introduction   of  national                                                               
legislation,  since  states  would  already  be  using  the  same                                                               
markings.                                                                                                                       
                                                                                                                                
MS. SAITO offered her understanding  that Version Y also contains                                                               
language  encouraging  the  concept  that this  issue  should  be                                                               
viewed as  a national issue, and  that the DOR has  been provided                                                               
with the  authority to promulgate or  amend regulations regarding                                                               
seizure.                                                                                                                        
                                                                                                                                
CHAIR McGUIRE noted that Ms.  Saito is referencing the memorandum                                                               
dated 4/10/06 from Representative Joule.                                                                                        
                                                                                                                                
REPRESENTATIVE   GARA   offered   his  understanding   that   the                                                               
substantial changes  incorporated in  Version Y expand  the DOR's                                                               
authority so that it can enforce this new proposed law.                                                                         
                                                                                                                                
MS. SAITO concurred.                                                                                                            
                                                                                                                                
REPRESENTATIVE KOTT referred  to page 1, line 14,  and noted that                                                               
the language appears  to include Canada as  a state; furthermore,                                                               
there is  no other reference  to Canada  in the remainder  of the                                                               
findings and intent language section.                                                                                           
                                                                                                                                
2:47:54 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  KOTT  made a  motion  to  adopt Amendment  1,  to                                                               
delete  the reference  to Canada  from page  1, line  14.   There                                                               
being no objection, Amendment 1 adopted.                                                                                        
                                                                                                                                
REPRESENTATIVE  ANDERSON said  he appreciates  the spirit  of the                                                               
legislation, but  noted that the  tobacco industry  has expressed                                                               
to him the concern that  having to manufacture different types of                                                               
cigarettes  for different  states  will be  very  expensive.   He                                                               
remarked, however, that  as a matter of public  policy, the fire-                                                               
safety  concerns  addressed  via  HB  413  outweigh  the  tobacco                                                               
industry's concern regarding cost.                                                                                              
                                                                                                                                
MS. SAITO, in  response to a question,  offered her understanding                                                               
that manufacturers will  produce the same type  of cigarettes for                                                               
Alaska  that  are being  produced  for  New  York, and  that  the                                                               
tobacco industry  has told officials  at the national  level that                                                               
it is amenable to  the type of change proposed by  HB 413 in that                                                               
it wants  to get similar  national legislation passed.   However,                                                               
the  sponsor, she  relayed, feels  it is  important to  start the                                                               
process  at  the state  level  instead  of waiting  for  national                                                               
legislation.  She  again offered her understanding  that the type                                                               
of cigarettes that  HB 413 requires for Alaska  are already being                                                               
manufactured for other states.                                                                                                  
                                                                                                                                
REPRESENTATIVE  GARA indicated  that that  information alleviates                                                               
his one concern.                                                                                                                
                                                                                                                                
CHAIR McGUIRE  suggested that this  requirement could serve  as a                                                               
model for the federal government or other states.                                                                               
                                                                                                                                
REPRESENTATIVE KOTT asked whether there  will be a restriction on                                                               
the  number of  packs of  cigarettes a  person can  buy over  the                                                               
Internet.                                                                                                                       
                                                                                                                                
2:53:06 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE REGGIE  JOULE, Alaska State  Legislature, sponsor,                                                               
offered  his understanding  that  if the  purchase of  cigarettes                                                               
over  the  Internet  is  for private  consumption,  it  would  be                                                               
difficult  to  enforce  what  type   of  cigarettes  are  bought.                                                               
However, aspects of the bill  do attempt to address situations in                                                               
which Internet purchases are made for  the purpose of resale.  He                                                               
suggested  that as  the concept  embodied  in HB  413 catches  on                                                               
nationally, Internet sales will become less of an issue.                                                                        
                                                                                                                                
CHAIR McGUIRE  asked whether manufactures will  charge more money                                                               
for cigarettes with a reduced ignition capacity.                                                                                
                                                                                                                                
REPRESENTATIVE JOULE said no.                                                                                                   
                                                                                                                                
CHAIR McGUIRE surmised,  then, that one wouldn't be  able to save                                                               
money by purchasing non-compliant cigarettes over the Internet.                                                                 
                                                                                                                                
REPRESENTATIVE JOULE,  in response to questions,  said that fire-                                                               
safe  cigarettes won't  taste  any  different that  non-compliant                                                               
cigarettes.   No extra  chemicals would  be used;  instead, there                                                               
will be  thicker bands  of paper at  regular intervals  along the                                                               
cigarette and it  will be packed a little  differently, and these                                                               
changes are what will help  the cigarette extinguish itself if it                                                               
is not actively being smoked.                                                                                                   
                                                                                                                                
REPRESENTATIVE  GARA noted  that  language beginning  on page  2,                                                               
line 19, makes it illegal for  someone to sell, offer to sell, or                                                               
possess  for  sale  cigarettes  in Alaska  that  don't  meet  the                                                               
requirements proposed via HB 413.                                                                                               
                                                                                                                                
REPRESENTATIVE JOULE,  in response to a  question, indicated that                                                               
the bill provides for a  transition period during which retailers                                                               
can  sell  any non-compliant  cigarettes  that  they have  bought                                                               
prior  to the  enactment of  HB  413.   He noted  that the  other                                                               
states  that have  enacted similar  legislation have  experienced                                                               
smooth transitions.                                                                                                             
                                                                                                                                
2:56:26 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE ANDERSON  remarked on  the issue  of non-compliant                                                               
cigarettes being brought into Alaska by tourists.                                                                               
                                                                                                                                
REPRESENTATIVE GARA  pointed out that the  bill only criminalizes                                                               
those who bring non-compliant cigarettes  into the state with the                                                               
intent to sell them.                                                                                                            
                                                                                                                                
REPRESENTATIVE WILSON remarked on the  fact that Alaska is number                                                               
one in  the nation with  regard to alcohol-related  problems, and                                                               
on  the  tendency of  some  people  to  smoke when  they've  been                                                               
drinking; she characterized HB 413 as a wonderful bill.                                                                         
                                                                                                                                
REPRESENTATIVE JOULE concurred, and mentioned  that when he was a                                                               
smoker he would sometimes smoke in bed.                                                                                         
                                                                                                                                
CHAIR  McGUIRE acknowledged  that [the  bill addresses]  a safety                                                               
issue.                                                                                                                          
                                                                                                                                
3:01:11 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  WILSON  moved  to  report  the  proposed  CS  for                                                               
HB 413, Version 24-LS1495\Y, Bannister,  4/10/06, as amended, out                                                               
of   committee   with    individual   recommendations   and   the                                                               
accompanying  fiscal  notes.   There  being  no  objection,  CSHB                                                               
413(JUD)  was   reported  from   the  House   Judiciary  Standing                                                               
Committee.                                                                                                                      
                                                                                                                                
HB 258 - SEXUAL ASSAULT BY PERSON WITH HIV/AIDS                                                                               
                                                                                                                                
3:01:40 PM                                                                                                                    
                                                                                                                                
CHAIR McGUIRE  announced that the  committee would return  to the                                                               
hearing on  HOUSE BILL NO.  258, "An Act relating  to aggravating                                                               
factors   at   sentencing."       [Before   the   committee   was                                                               
CSHB 258(HES).]                                                                                                                 
                                                                                                                                
3:02:11 PM                                                                                                                    
                                                                                                                                
ANNE  CARPENETI,  Assistant   Attorney  General,  Legal  Services                                                               
Section-Juneau,  Criminal  Division,  Department  of  Law  (DOL),                                                               
explained  that her  supervisor,  Susan Parkes,  has expressed  a                                                               
preference  for  leaving  [CSHB  258(HES)]  as  it  is  currently                                                               
drafted for  a couple of  reasons, one of  which is that  all the                                                               
factors about  risk and  exposure would require  the DOL  to have                                                               
expert witnesses  testify.  As  currently written, the  judge can                                                               
simply  factor in  the elements  of exposure  and risk  if he/she                                                               
does decide  to apply  the proposed  sentencing aggravator.   Ms.                                                               
Carpeneti  mentioned  that  the  DOL does  have  some  compromise                                                               
language,  but reiterated  that  the DOL  would  still prefer  to                                                               
leave the bill as is.  She  added that she does have a suggestion                                                               
for narrowing the title.                                                                                                        
                                                                                                                                
REPRESENTATIVE GRUENBERG  said he'd  like to hear  the compromise                                                               
language; having to have an  expert witness is less important, he                                                               
opined, than  potentially sentencing someone unjustly.   The cost                                                               
of hiring  expert witnesses is simply  part of the cost  of doing                                                               
business.                                                                                                                       
                                                                                                                                
MS. CARPENETI offered the following  language as a possible title                                                               
change:  "An Act relating  to an aggravating factor at sentencing                                                               
for sexual assault and sexual abuse [of a minor]."                                                                              
                                                                                                                                
REPRESENTATIVE GRUENBERG said he would  like the title to be even                                                               
tighter  than  that, and  indicated  that  he would  be  offering                                                               
language to that effect later.                                                                                                  
                                                                                                                                
MS. CARPENETI  said that  the aforementioned  compromise language                                                               
would involve adding, after "AIDS" on  line 6, the words:  ", and                                                               
the  offense involved  penetration".    Such additional  language                                                               
address  Representative Gara's  concern regarding  sexual contact                                                               
[through  clothing],   and  Representative   Gruenberg's  concern                                                               
regarding  AS  11.41.452  and AS  11.41.455.    She,  reiterated,                                                               
however, that  Ms. Parkes would  prefer to keep the  language [in                                                               
Section 1] as is.                                                                                                               
                                                                                                                                
REPRESENTATIVE GARA  referred to  a proposed change  he'd written                                                               
and given to  Ms. Carpeneti; that proposed  change read [original                                                               
punctuation provided]:                                                                                                          
                                                                                                                                
     At line 4 page 1                                                                                                           
          After .455 insert                                                                                                     
          "that involves penetration, or that otherwise                                                                         
     involves  exposure  to  the  victim to  a  risk,  or  a                                                                    
     reasonable  fear, that  the  conduct could  potentially                                                                    
     result in the transmission of HIV (or AIDS,)"                                                                              
                                                                                                                                
MS. CARPENETI relayed  that Ms. Parkes has the  same concern with                                                               
that proposed change.                                                                                                           
                                                                                                                                
REPRESENTATIVE GARA  offered his  belief that  it is  such common                                                               
knowledge as  to what causes HIV  or AIDS that an  expert witness                                                               
wouldn't be needed.                                                                                                             
                                                                                                                                
3:06:19 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG, referring  to the  proposed compromise                                                               
language  offered by  the DOL,  opined that  the issue  that that                                                               
raises is whether that language  would require the involvement of                                                               
an "extra"  expert witness.   He opined that it  wouldn't because                                                               
the  question of  whether penetration  occurred  would have  been                                                               
proven in the main case.                                                                                                        
                                                                                                                                
MS.  CARPENETI  concurred,  and  clarified  that  the  compromise                                                               
language  would  also  involve  deleting  the  word,  "and"  from                                                               
line 5.  She  noted, however, that the  compromise language would                                                               
raise  concerns  regarding situations  in  which  the crime  does                                                               
involve penetration but is plead  down to an offense that doesn't                                                               
involve penetration.   For example,  situations wherein  a charge                                                               
of sexual assault  in the first degree is plead  down to a charge                                                               
of sexual assault in the second degree.                                                                                         
                                                                                                                                
REPRESENTATIVE WILSON posited that  if a struggle occurs, contact                                                               
between open wounds could also create the risk of exposure.                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG agreed, but  offered his belief that the                                                               
question  is whether  there will  be many  such cases  that would                                                               
require the presence of an expert  witness.  He indicated that he                                                               
would  not  be  offering  the DOL's  compromise  language  as  an                                                               
amendment,  and  then  asked   Representative  Gara  whether  his                                                               
suggested  written change  would  require the  use  of an  expert                                                               
witness.                                                                                                                        
                                                                                                                                
REPRESENTATIVE  COGHILL observed  that  the  specific crime  will                                                               
have already  been proven  and the person  convicted by  the time                                                               
the court has to decide  whether to apply the proposed sentencing                                                               
aggravator.   At  that point,  the question  will be  whether the                                                               
defendant had been diagnosed with  HIV or AIDS, and anybody who'd                                                               
already  signed a  consent form  to be  tested for  such diseases                                                               
probably  shouldn't attempt  to  plead ignorance.   He  suggested                                                               
that the current language in the bill is adequate.                                                                              
                                                                                                                                
REPRESENTATIVE GARA,  referring to  his suggested  written change                                                               
[text  previously  provided],   offered  his  understanding  that                                                               
adoption of that change would address everyone's concerns.                                                                      
                                                                                                                                
3:12:02 PM                                                                                                                    
                                                                                                                                
MICHAEL  SICA, Staff  to Representative  Bob  Lynn, Alaska  State                                                               
Legislature, sponsor, expressed on  behalf of Representative Lynn                                                               
a  preference  for  including the  phrase,  "conduct  that  could                                                               
result in the transmission ...".                                                                                                
                                                                                                                                
REPRESENTATIVE  GARA  noted  that his  suggested  written  change                                                               
already  includes  the  phrase, "the  conduct  could  potentially                                                               
result in the transmission".                                                                                                    
                                                                                                                                
MS. CARPENETI  and REPRESENTATIVE GARA paraphrased  the suggested                                                               
written change further.                                                                                                         
                                                                                                                                
MS. CARPENETI suggested  that for clarity, it might  be better to                                                               
draft  this suggested  written  change such  that  it contains  a                                                               
paragraph (1) and a paragraph (2).                                                                                              
                                                                                                                                
REPRESENTATIVE GARA said, "Sure."                                                                                               
                                                                                                                                
MS. CARPENETI,  in response to  questions, noted that  because of                                                               
the U.S. Supreme  Court's decision in Blakely  v. Washington, 124                                                             
S. Ct.  2531 (U.S., 2004),  sentencing would occur as  a separate                                                               
procedure, and that the original  form of the aggravator would be                                                               
the most simple form for the  DOL to deal with.  She acknowledged                                                               
that  cases involving  penetration  would not  require an  expert                                                               
witness  during the  sentencing procedure,  though such  might be                                                               
required for cases involving other forms of potential exposure.                                                                 
                                                                                                                                
REPRESENTATIVE  COGHILL  noted  that  if  the  suggested  written                                                               
change  is adopted,  there will  also  have to  be a  "reasonable                                                               
fear" test  as well  as [expert  testimony] regarding  what would                                                               
constitute exposure.   He opined,  therefore, that  that language                                                               
will significantly complicate the issue.                                                                                        
                                                                                                                                
MS. CARPENETI  mentioned that  it would be  up to  the sentencing                                                               
court to decide what weight to give each of the factors present.                                                                
                                                                                                                                
3:15:40 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE   GRUENBERG  indicated   that   he  supports   the                                                               
suggested written  change, particularly  given that  the majority                                                               
of the  cases to  which this proposed  aggravator may  be applied                                                               
will involve penetration.   He opined that the  expense of having                                                               
an  expert witness  is minimal  when  compared with  the cost  of                                                               
housing and feeding a prisoner.                                                                                                 
                                                                                                                                
REPRESENTATIVE GARA said  he did not think that  just because the                                                               
prosecution  would  be required  to  do  more  in the  course  of                                                               
discharging  its duty  is a  sufficient  reason to  not adopt  an                                                               
amendment.  He acknowledged that  cases involving some other form                                                               
of potential  exposure might require  the testimony of  an expert                                                               
witness  during the  sentencing trial.   Another  circumstance in                                                               
which the proposed  aggravator might be applied is  if the victim                                                               
has a  reasonable fear that he/she  was subjected to the  risk of                                                               
contracting HIV or  AIDS.  In conclusion, he  opined that without                                                               
his suggested written change, [the  bill] will get struck down by                                                               
the courts because  it doesn't make sense to  charge somebody who                                                               
has AIDS or  HIV with an additional sentence if  the crime he/she                                                               
committed doesn't  result in a risk  that HIV or AIDS  could have                                                               
been transmitted to the victim.                                                                                                 
                                                                                                                                
REPRESENTATIVE WILSON  suggested that  perhaps they  should amend                                                               
the suggested written change such that it would read:                                                                           
                                                                                                                                
     At line 4 page 1                                                                                                           
          After .455 insert                                                                                                     
         "that involves penetration, or that otherwise                                                                          
      involves exposure to the victim where the potential                                                                       
     result could be the transmission of HIV (or AIDS,)"                                                                        
                                                                                                                                
REPRESENTATIVE GARA said that would be fine.                                                                                    
                                                                                                                                
CHAIR  McGUIRE indicated  a preference  for leaving  the language                                                               
[in Section 1] as  is; in other words, simply leave  it up to the                                                               
judge to decide  the issues raised.  She  mentioned that although                                                               
she  is sensitive  to Representative  Gara's point,  she believes                                                               
that most  judges won't apply  an aggravator in  situations where                                                               
the perpetrator poses  no risk of transmitting HIV or  AIDS.  She                                                               
assured  members that  she  does  not want  to  create a  "status                                                               
aggravator";  instead, the  aggravator should  be related  to the                                                               
risk the behavior poses.                                                                                                        
                                                                                                                                
3:22:00 PM                                                                                                                    
                                                                                                                                
MS.  CARPENETI   suggested  instead  that  the   committee  alter                                                               
[Section 1 of the bill] by  deleting the word, "and" from line 5,                                                               
and inserting after the word,  "AIDS" the following language:  ",                                                               
and either  (1) involves penetration  or (2) the  offense exposed                                                               
the victim  to a risk  or fear that  the offense could  result in                                                               
the transmission  of HIV".   She  characterized this  language as                                                               
clearer  than the  aforementioned suggested  written change.   In                                                               
response to  a question,  she offered her  belief that  using the                                                               
term, "fear"  would be sufficient,  because even a small  risk of                                                               
exposure can terrify  a victim and that  is a form of  harm.  She                                                               
also said she  doesn't think that the behavior  referenced in the                                                               
bill  would  be  considered  a   status  offense;  this  proposed                                                               
aggravator  would be  applied  in situations  where  a person  is                                                               
convicted of sexual assault and  has caused or potentially caused                                                               
more  harm  to  the  victim.   That's  what  aggravating  factors                                                               
address -  things that  make the  crime worse.   She,  too, noted                                                               
that the prophylactic treatment is very serious.                                                                                
                                                                                                                                
CHAIR McGUIRE acknowledged that point.                                                                                          
                                                                                                                                
REPRESENTATIVE GARA opined  that the current wording  in the bill                                                               
could make  the behavior referenced  a status crime  because some                                                               
of  that  behavior  includes  behavior  that  poses  no  risk  of                                                               
transmitting HIV or AIDS.                                                                                                       
                                                                                                                                
REPRESENTATIVE  GRUENBERG   concurred,  again  referring   to  AS                                                               
11.41.452  and AS  11.41.455 as  examples of  such behavior.   He                                                               
said he supports Ms. Carpeneti's latest suggested change.                                                                       
                                                                                                                                
REPRESENTATIVE  COGHILL opined  that  the potential  for harm  is                                                               
significant even in situations that  don't involve penetration or                                                               
other potential  forms of  exposure.   He expressed  a preference                                                               
for  allowing the  judge to  make  the determination  on some  of                                                               
these issues, and  for allowing the aggravator  to possibly apply                                                               
regardless of  whether there was  penetration or  other potential                                                               
forms of exposure.                                                                                                              
                                                                                                                                
3:26:55 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE WILSON raised the issue of saliva exchange.                                                                      
                                                                                                                                
CHAIR McGUIRE offered her understanding  that an aggravator could                                                               
only  pertain to  the crime  that was  plead to  rather than  the                                                               
crime that was charged.                                                                                                         
                                                                                                                                
MS. CARPENETI concurred,  reiterating that this is  of concern to                                                               
the DOL.                                                                                                                        
                                                                                                                                
CHAIR McGUIRE  asked whether other states  have similar language,                                                               
and whether Ms.  Carpeneti knows of any legal  challenges to such                                                               
language.                                                                                                                       
                                                                                                                                
MS. CARPENETI  said she not  aware of any, but  acknowledged that                                                               
her research on that issue has been limited.                                                                                    
                                                                                                                                
MR.  SICA noted  that other  states have  made it  a crime  for a                                                               
person  with  HIV   or  AIDS  to  have   consensual  sex  without                                                               
disclosing  his/her status  with regard  to those  diseases.   He                                                               
therefore  characterized HB  258  as a  "narrowly focused  sexual                                                               
assault law."                                                                                                                   
                                                                                                                                
CHAIR McGUIRE  said she would prefer  for the bill to  be drafted                                                               
such that if favors the victim.                                                                                                 
                                                                                                                                
REPRESENTATIVE GARA expressed concern  that someone could have an                                                               
aggravator applied  to his/her sentence even  though he/she never                                                               
poses  a risk  of  transmitting  HIV or  AIDS.    In response  to                                                               
comments,  he  opined  that  without  a  change  to  the  current                                                               
language, the bill would still  also reference crimes that do not                                                               
involve penetration,  or a  risk of transmitting  HIV or  AIDS in                                                               
some other  fashion, and crimes  that are somewhat  consensual in                                                               
nature.                                                                                                                         
                                                                                                                                
REPRESENTATIVE  GRUENBERG  again raised  the  issue  of the  bill                                                               
referencing AS 11.41.452 and AS  11.41.455; for the crimes listed                                                               
in those statutes, the perpetrator  may never even see the minor.                                                               
In response  to a  comment, he  pointed out  that a  more serious                                                               
crime than is referenced in AS  11.41.452 could be charged if the                                                               
victim does come into physical contact with the perpetrator.                                                                    
                                                                                                                                
REPRESENTATIVE  KOTT   asked  the  sponsor  to   comment  on  the                                                               
suggested change.                                                                                                               
                                                                                                                                
REPRESENTATIVE BOB LYNN, Alaska  State Legislature, sponsor, said                                                               
that he  would prefer to leave  the bill as is,  but acknowledged                                                               
that  the committee  process is  meant to  fix flaws  in proposed                                                               
legislation; therefore,  if the  suggested change would  make the                                                               
bill better he would be comfortable it.                                                                                         
                                                                                                                                
3:33:28 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GARA  made a motion to  adopt Conceptual Amendment                                                               
1, to  alter [proposed  AS 12.55.155(c)(33)]  such that  it would                                                               
read:                                                                                                                           
                                                                                                                                
     the offense  was a felony  specified in AS  11.41.410 -                                                                    
     11.41.455, the defendant  had been previously diagnosed                                                                    
     as having  or having tested  positive for HIV  or AIDS,                                                                    
     and either                                                                                                                 
          (1) involves penetration or                                                                                           
        (2) exposed the victim to a risk or a fear that                                                                         
     the offense could result in the transmission of HIV or                                                                     
     AIDS                                                                                                                       
                                                                                                                                
REPRESENTATIVE COGHILL objected.                                                                                                
                                                                                                                                
A roll call  vote was taken.   Representatives Wilson, Gruenberg,                                                               
Kott,   Gara,  and   McGuire  voted   in   favor  of   Conceptual                                                               
Amendment 1.      Representative   Coghill  voted   against   it.                                                               
Therefore, Conceptual Amendment 1 was adopted by a vote of 5-1.                                                                 
                                                                                                                                
3:35:38 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG  made  a  motion  to  adopt  Conceptual                                                               
Amendment 2,  to narrow the title  such that it would  read:  "An                                                               
Act relating  to an aggravating  factor at sentencing  for sexual                                                               
assault and sexual abuse [of a minor]."                                                                                         
                                                                                                                                
REPRESENTATIVE  GRUENBERG  indicated   that  he  was  considering                                                               
adding more  language to that  title change.   He asked  about AS                                                               
11.41.452 and AS 11.41.455.                                                                                                     
                                                                                                                                
MS. CARPENETI offered  her belief that those  would be considered                                                               
within the title.                                                                                                               
                                                                                                                                
REPRESENTATIVE GRUENBERG  asked whether the title  should include                                                               
the terms HIV and AIDS.                                                                                                         
                                                                                                                                
[No answer was audible.]                                                                                                        
                                                                                                                                
REPRESENTATIVE GRUENBERG  said, "Yes," and relayed  that he would                                                               
accept a friendly amendment.                                                                                                    
                                                                                                                                
CHAIR McGUIRE remarked  that typically a title  is tightened when                                                               
there is concern  that unwanted items will be added  to the bill.                                                               
She said she can't envision that such could occur in this case.                                                                 
                                                                                                                                
REPRESENTATIVE GRUENBERG offered an example.                                                                                    
                                                                                                                                
CHAIR  McGUIRE  surmised, then,  that  the  proposal is  to  have                                                               
Conceptual Amendment 2  say:  "An Act relating  to an aggravating                                                               
factor at  sentencing for sexual  assault and sexual abuse  [of a                                                               
minor] that involves HIV or AIDS."                                                                                              
                                                                                                                                
REPRESENTATIVE GRUENBERG said yes.                                                                                              
                                                                                                                                
CHAIR McGUIRE objected to the motion.                                                                                           
                                                                                                                                
REPRESENTATIVE  GARA suggested  altering  Conceptual Amendment  2                                                               
such  that  it  would  say  in  part,  "that  involves  a  person                                                               
diagnosed with  HIV or AIDS."   He pointed out, though,  that the                                                               
current  title  is  already limited  to  aggravating  factors  at                                                               
sentencing.                                                                                                                     
                                                                                                                                
CHAIR McGUIRE, in  response to a question, said  she would remove                                                               
her  objection if  Conceptual Amendment  2 does  not contain  the                                                               
terms HIV and AIDS.                                                                                                             
                                                                                                                                
REPRESENTATIVE   GRUENBERG   stated,    then,   that   Conceptual                                                               
Amendment 2 would alter  the title such that it  would only read:                                                               
"An  Act relating  to  an aggravating  factor  at sentencing  for                                                               
sexual assault and sexual abuse [of a minor]."                                                                                  
                                                                                                                                
CHAIR  McGUIRE  asked  whether   there  were  any  objections  to                                                               
Conceptual   Amendment  2.      There   being  none,   Conceptual                                                               
Amendment 2 was adopted.                                                                                                        
                                                                                                                                
3:38:37 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KOTT  moved to report  CSHB 258(HES),  as amended,                                                               
out  of   committee  with  individual  recommendations   and  the                                                               
accompanying   fiscal  notes.      There   being  no   objection,                                                               
CSHB 258(JUD)  was reported  from  the  House Judiciary  Standing                                                               
Committee.                                                                                                                      
                                                                                                                                
HB 325 - POST-CONVICTION DNA TESTING                                                                                          
                                                                                                                                
3:39:45 PM                                                                                                                    
                                                                                                                                
CHAIR McGUIRE  announced that the  final order of  business would                                                               
be HOUSE  BILL NO. 325,  "An Act relating to  post-conviction DNA                                                               
testing;  and  amending  Rule  35.1,  Alaska  Rules  of  Criminal                                                               
Procedure."   [Before  the committee  was the  proposed committee                                                               
substitute    (CS)    for    HB   325,    Version    24-LS1222\I,                                                               
Mischel/Luckhaupt,  4/5/06, which  had been  adopted as  the work                                                               
draft and assigned to a  subcommittee on 4/5/06; also included in                                                               
members' packets  was the proposed committee  substitute (CS) for                                                               
HB 325, Version 24-LS1222\S, Luckhaupt, 4/10/06.]                                                                               
                                                                                                                                
REPRESENTATIVE  KOTT,  speaking  as chair  of  the  subcommittee,                                                               
relayed that the  proposed committee substitute (CS)  for HB 325,                                                               
Version  24-LS1222\S, Luckhaupt,  4/10/06, captures  most of  the                                                               
concerns  that  could  be  addressed  within  the  scope  of  the                                                               
legislation.                                                                                                                    
                                                                                                                                
3:43:00 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  COGHILL moved  to adopt  the proposed  CS for  HB                                                               
325, Version 24-LS1222\S, Luckhaupt,  4/10/06, as the work draft.                                                               
There being no objection, Version S was before the committee.                                                                   
                                                                                                                                
3:43:14 PM                                                                                                                    
                                                                                                                                
KIMBERLY  WALLACE,  Staff  to  Representative  Gabrielle  LeDoux,                                                               
House Special  Committee on Fisheries, Alaska  State Legislature,                                                               
spoke  on behalf  of  the sponsor,  Representative  LeDoux.   Ms.                                                               
Wallace  expressed  the  hope that  the  changes  encompassed  in                                                               
Version  S will  garner the  committee's support  for Version  S.                                                               
She then  informed the committee that  throughout the legislation                                                               
the  term   "petitioner"  and   "defendant"  was   replaced  with                                                               
"applicant".   Page 1, line 9-10,  of Version S now  contains the                                                               
language, "The  applicant shall serve  a copy of  the application                                                               
on the  attorney general".   On  page 2,  line 6-7,  language was                                                               
inserted such  that the  sentence now reads:   "Stating  that the                                                               
applicant was innocent of the  crimes for which the applicant was                                                               
convicted and any lesser included offense".                                                                                     
                                                                                                                                
MS. WALLACE explained that there is  now language on page 2, line                                                               
8, that reads:  "(3) an  affidavit from trial counsel stating the                                                               
reasons DNA testing, or more  discriminating DNA testing, was not                                                               
sought before trial,  or a statement by  the applicant explaining                                                               
why  this  affidavit was  not  obtained".    Also in  Version  S,                                                               
proposed AS  12.72.200(c) no longer  includes the  language, "The                                                               
court  may deny  a  second or  subsequent application  requesting                                                               
relief under  this section".   The language,  "under (c)  of this                                                               
section" was  added to page 2,  lines 15-16, in order  to provide                                                               
some clarity.   Proposed AS  12.72.200(d) of Version S  no longer                                                               
includes the  language, "The  court shall forward  a copy  of the                                                               
application for  DNA testing to  the attorney general".   On page                                                               
2, line  24, of Version S,  the time limit was  increased from 30                                                               
days to 45 days per the request of the Department of Law (DOL).                                                                 
                                                                                                                                
REPRESENTATIVE GRUENBERG  recalled that the question  was whether                                                               
the  time allowed  for the  attorney  general to  respond to  the                                                               
application should  be 30 days or  60 days.  He  further recalled                                                               
that  Ms.  Carpeneti  was  going  to  review  that  matter.    He                                                               
expressed concern  that 45  days might not  be enough,  given the                                                               
attorney general's schedule.                                                                                                    
                                                                                                                                
3:46:53 PM                                                                                                                    
                                                                                                                                
ANNE  CARPENETI,  Assistant   Attorney  General,  Legal  Services                                                               
Section-Juneau, Criminal Division, Department  of Law (DOL), said                                                               
she had  suggested 60 days,  but hadn't  had a chance  to further                                                               
research that issue.                                                                                                            
                                                                                                                                
MS.  WALLACE  continued  reviewing  the  changes  encompassed  in                                                               
Version S.   She informed the committee that Version  S no longer                                                               
includes a subsection  (h) in proposed AS 12.72.200.   On page 2,                                                               
line  28, of  Version  S,  the title  of  AS  12.72.210 has  been                                                               
changed to  read "Standards  for DNA  testing."   Furthermore, it                                                               
now stipulates a standard of clear and convincing evidence.                                                                     
                                                                                                                                
REPRESENTATIVE  COGHILL  noted  the  abundant use  of  the  word,                                                               
"reasonable"  in proposed  AS 12.72.210(1).   He  asked how  that                                                               
provision will work.                                                                                                            
                                                                                                                                
MS. WALLACE  explained that the  sponsor didn't want to  make the                                                               
hurdle  too  high  for  the  applicant,  though  this  seemed  to                                                               
engender disagreement from interested parties.                                                                                  
                                                                                                                                
REPRESENTATIVE  COGHILL  asked  about  the  tension  between  the                                                               
"clear and convincing" language  and the "reasonable" language in                                                               
proposed AS 12.72.210(1).                                                                                                       
                                                                                                                                
REPRESENTATIVE   GRUENBERG   acknowledged   that  a   clear   and                                                               
convincing evidence  standard could seem  to be at odds  with the                                                               
reasonable language,  but pointed out  that one can  never really                                                               
show much  more than  that because of  the speculative  nature of                                                               
the evidence.  The question, he  surmised, is:  "If we allow this                                                               
testing, is it going to make  a difference."  He highlighted that                                                               
at this  point all that  is being asked  is whether to  allow the                                                               
testing.     In  further  response  to   Representative  Coghill,                                                               
Representative  Gruenberg  reminded  members that  this  standard                                                               
would apply even if the testing is not ordered.                                                                                 
                                                                                                                                
3:55:45 PM                                                                                                                    
                                                                                                                                
MS. WALLACE  continued with her  review by noting that  Version S                                                               
no   longer  contains   the  word   "reliable"  in   proposed  AS                                                               
12.72.210(2), because  the [subcommittee and sponsor]  don't want                                                               
the  judge  to  decide  whether  the DNA  was  reliable  or  not.                                                               
Furthermore,  in Version  S, proposed  AS 12.72.210(3)  no longer                                                               
contains  the language,  "conclusive  DNA test  results were  not                                                               
available before  the petitioner's  conviction", and  proposed AS                                                               
12.72.230(a)  no longer  contains the  language "Collection  of".                                                               
Also, proposed  AS 12.72.230(a)  now says  in part,  "DNA samples                                                               
shall  be tested  at a  laboratory  operated or  approved by  the                                                               
Department  of  Public  Safety",  rather than,  "Testing  of  the                                                               
samples shall be  performed at a laboratory  operated or approved                                                               
by the Department  of Public Safety".  She then  pointed out that                                                               
proposed AS 12.72.230(a)  of Version S now  contains the language                                                               
"other than samples collected under (a) of this section,".                                                                      
                                                                                                                                
MS.  WALLACE  relayed  that  Version   S  no  longer  contains  a                                                               
definition  of  the  term,  "actual   innocence",  and  that  the                                                               
definition  of  the  word, "incarcerated"  was  changed  to  read                                                               
simply,   "'incarcerated'   means    physically   housed   in   a                                                               
correctional facility following a  felony conviction."  She noted                                                               
that the aforementioned  change was requested by  the Division of                                                               
Juvenile Justice.   Ms. Wallace then informed  the committee that                                                               
this  morning  there was  discussion  regarding  the notion  that                                                               
those who are proven innocent  shouldn't have their DNA placed in                                                               
a database.  She noted that  the committee has been provided with                                                               
an amendment  to address  the aforementioned.   Ms.  Wallace also                                                               
noted  that  the committee  may  want  to  address the  issue  of                                                               
preservation of evidence.                                                                                                       
                                                                                                                                
3:59:18 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GARA  referred to page  2, lines 6-7,  and offered                                                               
his understanding  that it specifies  that DNA evidence  can't be                                                               
used if  it shows that  the individual  is innocent of  the crime                                                               
that he/she  was convicted of  but doesn't also show  that he/she                                                               
is   innocent  of   lesser  included   offenses.     Offering   a                                                               
hypothetical example, he asked whether  the language, "any lesser                                                               
included offense" is really necessary.                                                                                          
                                                                                                                                
MS. WALLACE noted that Representative  Gara's concern was debated                                                               
[in  the subcommittee].   She  relayed that  although Legislative                                                               
Legal  and  Research  Services  didn't  feel  that  language  was                                                               
necessary, the DOL felt strongly that it should be included.                                                                    
                                                                                                                                
REPRESENTATIVE  GABRIELLE   LeDOUX,  Alaska   State  Legislature,                                                               
sponsor, explained  that the DOL requested  that language because                                                               
it didn't believe  that HB 325 should be  about fine-tuning legal                                                               
convictions.  She further explained  that HB 325 should target an                                                               
individual who hadn't been involved at  all in a crime and it was                                                               
simply a case  of mistaken identity.   Representative LeDoux said                                                               
that the  DOL made an excellent  argument and thus she  agreed to                                                               
include that  language in the  bill.  She  said that she  is most                                                               
concerned about an  individual who wasn't present  when the crime                                                               
was committed,  rather than an  individual who should be  in jail                                                               
for 25 years but was instead sentenced to 35 years.                                                                             
                                                                                                                                
REPRESENTATIVE GARA questioned whether  there are lesser included                                                               
offenses  that may  justify a  small sentence  while the  broader                                                               
included  offense -  that the  individual didn't  commit -  would                                                               
result  in a  long  sentence.   Although  a  couple  of years  of                                                               
difference in  the sentence is wrong,  he said that it's  of less                                                               
concern than situations  in which an individual  is sentenced for                                                               
twice as long as he/she should have been.                                                                                       
                                                                                                                                
REPRESENTATIVE  COGHILL opined  that this  could be  a matter  of                                                               
degree of guilt.   He expressed his frustration  with the ability                                                               
of an  offender to plea  bargain, because the victims  are always                                                               
left on  the short  end.   He said that  he shares  a bit  of the                                                               
DOL's concern, so  although he struggles with  the possibility of                                                               
an  innocent  individual  not having  an  opportunity  [to  prove                                                               
himself innocent], the  reality of the system as  he perceives it                                                               
makes him comfortable with the language.                                                                                        
                                                                                                                                
REPRESENTATIVE GRUENBERG  said that  he isn't  entirely satisfied                                                               
that the  language, "and any  lesser included offense"  should be                                                               
included.  He  asked that Ms. Carpeneti be allowed  to comment on                                                               
this issue.                                                                                                                     
                                                                                                                                
CHAIR McGUIRE passed the gavel to Representative Wilson.                                                                        
                                                                                                                                
4:05:42 PM                                                                                                                    
                                                                                                                                
MARY  ANNE  HENRY, Director,  Office  of  Victims' Rights  (OVR),                                                               
Alaska  State Legislature,  specified that  her major  concern is                                                               
with regard to why another system  is being created when there is                                                               
already a  post-conviction relief  (PCR) system  that was  put in                                                               
place 10  years ago.   She asked why a  request for a  DNA sample                                                               
can't  simply  be part  of  a  PCR  request.   Without  finality,                                                               
victims  will continue  to  be traumatized  and  closure will  be                                                               
disrupted.   Ms. Henry  highlighted that HB  325 doesn't  seem to                                                               
include a  time limit like there  is for a PCR  request, and that                                                               
she would like it to.                                                                                                           
                                                                                                                                
MS. HENRY  expressed the same  concern with regard to  the burden                                                               
of proof  - the clear  and convincing [evidence provision]  - and                                                               
the  references to  "reasonable".   She questioned  why the  same                                                               
standard isn't  being used for  both DNA sample requests  and PCR                                                               
requests.   Ms. Henry suggested  that when counsel  is appointed,                                                               
he/she  should be  required to  submit additional  information as                                                               
well as a document stating that there are no meritorious claims.                                                                
                                                                                                                                
REPRESENTATIVE  GRUENBERG suggested  that  proposed AS  12.72.210                                                               
only  raises the  question  of whether  one can  get  a test  and                                                               
whether the  DNA could exculpate  the defendant.   That is  why a                                                               
lesser standard is used.  With  regard to whether the new counsel                                                               
could file  a brief stating  that there is no  meritorious claim,                                                               
Representative  Gruenberg  offered  his  understanding  that  the                                                               
language  on  page 2,  lines  18-22,  of  Version S  covers  this                                                               
matter.                                                                                                                         
                                                                                                                                
REPRESENTATIVE KOTT  highlighted that  the committee seems  to be                                                               
wrestling with the same language that the subcommittee did.                                                                     
                                                                                                                                
MS. CARPENETI, in response to  the issue raised by Representative                                                               
Gruenberg, said  that the  DOL prefers  to include  the language,                                                               
"any lesser included offense" because  an individual who makes an                                                               
application  for  further testing  has  been  convicted beyond  a                                                               
reasonable doubt,  has had  an appeal  that has  been overturned,                                                               
and is  now in  jail.   Therefore, the  aforementioned individual                                                               
has had  several chances to  litigate the validity of  the crimes                                                               
for  which   he/she  has  been   convicted.    She   offered  her                                                               
understanding that the  procedure being established in  HB 325 is                                                               
meant to  provide a wrongfully  accused and  convicted individual                                                               
with  another chance  in  a  case where  there  has  been a  huge                                                               
mistake.  The  department doesn't view such a  procedure as being                                                               
a  fine-tuning  of  whatever sentence  the  convicted  individual                                                               
received.  She indicated that  the language, "and lesser included                                                               
offense" is  meant to clarify  that this proposed  statute should                                                               
be used only in cases of misidentification.                                                                                     
                                                                                                                                
REPRESENTATIVE  GARA  indicated that  he  has  two concerns  with                                                               
regard  to DOL's  position.   He  said the  entire  point of  DNA                                                               
evidence is that it could show  that the jury made a huge mistake                                                               
and that the  individual [being convicted] didn't  do what he/she                                                               
is being charged  with.  Therefore, if DNA testing  shows that an                                                               
individual is  innocent, the  [DNA sample] should  be able  to be                                                               
used.   By included the  language "any lesser  included offense",                                                               
there  could  be a  situation  in  which  two people  assault  an                                                               
individual  in  order  to  rob  that  individual.    One  of  the                                                               
assailants assaults the  individual to the point  of murdering or                                                               
raping the individual,  and yet it is the other  assailant who is                                                               
convicted  of  that  crime.     He  again  highlighted  that  the                                                               
advantage  of  DNA testing  is  that  the individual  who  really                                                               
committed the  murder/rape is charged rather  than the individual                                                               
who didn't.  Representative Gara  specified that by including the                                                               
language  that  an  individual  can't  use  DNA  testing  if  the                                                               
individual  does  some lesser  included  offense  than he/she  is                                                               
convicted of, then  the true perpetrator is let  free and another                                                               
has been wrongfully convicted.                                                                                                  
                                                                                                                                
[Representative Wilson returned the gavel to Chair McGuire.]                                                                    
                                                                                                                                
MS.  CARPENETI reminded  the committee  that in  such a  case the                                                               
defendant has already been sentenced  and has had the opportunity                                                               
to  bring  out  such  arguments  and  have  them  be  considered.                                                               
Furthermore, in the example provided  earlier, the individual who                                                               
did not  actually commit the murder  is an aider and  abettor and                                                               
thus  is  responsible under  current  law  for  the harm  to  the                                                               
victim.    Ms.  Carpeneti  opined that  the  post-conviction  DNA                                                               
testing procedures  are really for  those who are  truly innocent                                                               
and not  participating at  all, and  that [the  committee] should                                                               
leave  the sentencing  considerations [as  is].   She noted  that                                                               
there  is a  defense  to  felony murder  for  the individual  who                                                               
didn't actually  [commit the murder]  that can be brought  to the                                                               
court.   Situations in which  a person participates in  a robbery                                                               
but whose  co-defendant went  far beyond that  are not  what this                                                               
bill should address.                                                                                                            
                                                                                                                                
REPRESENTATIVE LeDOUX  recalled that this matter  was extensively                                                               
discussed  in the  subcommittee,  but  the subcommittee  couldn't                                                               
come up with anything to address members' concerns.                                                                             
                                                                                                                                
REPRESENTATIVE GARA  posed a hypothetical situation  in which two                                                               
individuals attempt  to rob  someone, but  one of  the assailants                                                               
decides to rape the victim  while the other assailant attempts to                                                               
stop the  rape, but fails  to do so.   He further posed  that the                                                               
wrong  individual  is  convicted  of  each  crime.    In  such  a                                                               
situation, it  doesn't make sense  that the assailant  who didn't                                                               
commit the  rape should sit in  jail for the crime  he/she didn't                                                               
commit.                                                                                                                         
                                                                                                                                
4:24:52 PM                                                                                                                    
                                                                                                                                
STEPHEN SALOOM, Policy Director,  Innocence Project, stressed the                                                               
importance  of   allowing  the  courts  the   ability  to  review                                                               
convictions,  especially in  cases wherein  DNA evidence  testing                                                               
was in  its infancy, in  order to  determine if such  testing was                                                               
utilized correctly.   With regard  to why  there should be  a new                                                               
avenue  for DNA  testing  after  trial as  opposed  to other  new                                                               
evidence after trial,  the laws are not set up  to tell the court                                                               
whether it's  acceptable to test  evidence for a new  reason that                                                               
can be probative in a case.   He highlighted that 40 other states                                                               
have adopted similar  legislation, and surmised that  they did so                                                               
because it's important to review  such cases with DNA evidence so                                                               
as not wrongly victimize someone else.                                                                                          
                                                                                                                                
MR. SALOOM  then noted his agreement  with [Representative Gara].                                                               
Furthermore,  in 175  DNA exonerations,  the  jury had  initially                                                               
found an  individual guilty  beyond a  reasonable doubt  on every                                                               
element of  the crime  despite the fact  that the  individual was                                                               
actually innocent.   Clearly, in  those cases the  prosecutor was                                                               
able  to convince  the  jury that  the  individual committed  the                                                               
crime  when he/she  hadn't.   The question  [this legislation  is                                                               
addressing]  is  whether  [the   DNA]  evidence  should  even  be                                                               
reviewed  to discover  something  that might  be very  probative.                                                               
Here again,  Mr. Saloom  opined, the prosecutor  can make  a very                                                               
good argument to  the judge, based on the results  of the initial                                                               
case, to disallow testing, and this is of great concern.                                                                        
                                                                                                                                
REPRESENTATIVE GRUENBERG  asked if  any other states  include the                                                               
language, "any other lesser included offense".                                                                                  
                                                                                                                                
MS. CARPENETI said  she believes the backup  material provided to                                                               
members' indicates that other states do include such language.                                                                  
                                                                                                                                
4:31:44 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG made  a motion to adopt  Amendment 1, to                                                               
change  "45"  to  "60" on  page  2,  line  24.   There  being  no                                                               
objection, Amendment 1 was adopted.                                                                                             
                                                                                                                                
REPRESENTATIVE  GRUENBERG  made  a  motion  to  adopt  Conceptual                                                               
Amendment 2, which read [original punctuation provided]:                                                                        
                                                                                                                                
          The investigating law enforcement agency shall                                                                        
     preserve any biological  material identified during the                                                                    
     investigation  of  a  crime or  crimes  for  which  any                                                                    
     person may file  a petition for DNA  testing under this                                                                    
     section.   The identified biological material  shall be                                                                    
     preserved for  the period  of time  that any  person is                                                                    
     incarcerated in connection with that case.                                                                                 
                                                                                                                                
REPRESENTATIVE GRUENBERG indicated that  this language comes from                                                               
Michigan law.                                                                                                                   
                                                                                                                                
CHAIR  McGUIRE  asked  whether   there  were  any  objections  to                                                               
Conceptual   Amendment  2.      There   being  none,   Conceptual                                                               
Amendment 2 was adopted.                                                                                                        
                                                                                                                                
4:34:08 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KOTT  made a  motion to  adopt Amendment  3, which                                                               
read:                                                                                                                           
                                                                                                                                
     Page 4, lines 9-11                                                                                                         
          (b) The testing laboratory shall not make the                                                                     
     results  of  a  DNA  test ordered  under  AS  12.72.200                                                                    
     available  to   the  DNA   identification  registration                                                                    
     system under  AS 44.41.035  [and] or  to any  other law                                                                
     enforcement DNA  databases unless the DNA  test results                                                                
     identify  the  applicant  as  the  source  of  the  DNA                                                                
     evidence for which testing was sought.                                                                                 
                                                                                                                                
REPRESENTATIVE COGHILL objected for the purpose of discussion.                                                                  
                                                                                                                                
REPRESENTATIVE KOTT  explained that  under Amendment 3,  once the                                                               
judge  has allowed  a  DNA test  to be  performed  and that  test                                                               
exonerates the  individual, then  that DNA  test result  won't be                                                               
included  in the  DNA  databank.   However,  Amendment 3  doesn't                                                               
address  the swab  taken when  the individual  was first  brought                                                               
into custody or entered the correctional facility.                                                                              
                                                                                                                                
MS. CARPENETI  pointed out that AS  44.41.035(i) already includes                                                               
a  procedure  to  expunge  DNA samples  of  an  individual  whose                                                               
conviction has been overturned.                                                                                                 
                                                                                                                                
REPRESENTATIVE COGHILL  surmised that  Amendment 3  addresses the                                                               
DNA sample  for the  particular crime  [for which  the conviction                                                               
was overturned].                                                                                                                
                                                                                                                                
CHAIR McGUIRE  recalled that  some states  allow DNA  swabbing at                                                               
the  time  of  arrest.     Although  the  aforementioned  can  be                                                               
controversial,  states  that have  done  so  have actually  found                                                               
links  to other  crimes.   Chair  McGuire stated  that she  isn't                                                               
comfortable with Amendment 3.                                                                                                   
                                                                                                                                
MS.  CARPENETI  opined  that  the  drafting  of  Amendment  3  is                                                               
problematic.  For  example, in the Alaska Court  of Appeals case,                                                               
Osborne V.  State, the defendant  sought to test the  condom that                                                             
was found in the  area of the crime 26 hours  after the crime was                                                               
committed; this  area happened to  be a common area  for romantic                                                               
trysts.    Whether  or  not  the semen  in  the  condom  was  the                                                               
defendant's  wasn't dispositive  of  the case  because the  other                                                               
evidence was overwhelming,  and so the conviction  would not have                                                               
been  overturned.   Therefore,  in that  case,  for example,  the                                                               
defendant's DNA shouldn't  be taken out of the  DNA databank, she                                                               
opined.  She  reiterated that current law allows  for DNA samples                                                               
to  be removed  from the  databank  when the  defendant has  been                                                               
found not  guilty or when  the conviction has be  overturned upon                                                               
appeal.                                                                                                                         
                                                                                                                                
REPRESENTATIVE KOTT  withdrew Amendment  3 with the  intention of                                                               
working further  on this issue  as the legislation  moves through                                                               
the process.                                                                                                                    
                                                                                                                                
4:39:12 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GARA  made a  motion  to  adopt Amendment  4,  to                                                               
delete  from  page 2,  line  7,  the  language, "and  any  lesser                                                               
included offense".                                                                                                              
                                                                                                                                
REPRESENTATIVE COGHILL objected.                                                                                                
                                                                                                                                
REPRESENTATIVE GARA suggested that  committee members think about                                                               
a  situation in  which a  family  member committed  a crime  that                                                               
justifies a 10  year sentence but he/she is  instead sentenced to                                                               
a far longer  period of time for a different  crime, and 25 years                                                               
into the  much longer  sentence the DNA  evidence shows  that the                                                               
family  member  didn't  commit   that  particular  crime.    That                                                               
individual will sit  in jail for the rest of  his/her life unless                                                               
he/she is  able to use  DNA evidence  to show that  he/she didn't                                                               
commit the crime for which  he/she was sentenced.  Representative                                                               
Gara asked committee  members to think about how  they would feel                                                               
if the law  didn't allow the DNA evidence to  illustrate that one                                                               
of their family members was wrongly convicted.                                                                                  
                                                                                                                                
REPRESENTATIVE  GRUENBERG commented  that  he,  too, is  troubled                                                               
with  regard to  this  aspect of  the legislation.    He said  he                                                               
couldn't find any  reason why someone who might  have committed a                                                               
lesser  included  offense  should   be  disqualified  from  being                                                               
tested.      He  highlighted   that   [the   DNA  evidence]   may                                                               
significantly shorten the sentence.                                                                                             
                                                                                                                                
MS.  CARPENETI  characterized  it   as  a  special  procedure  to                                                               
challenge  a  conviction that  for  all  other reasons  has  been                                                               
upheld by  the appellate  courts.  The  purpose [of  the language                                                               
"any  lesser  included  offense"]  is  to  address  a  mistakenly                                                               
identified perpetrator - not an  individual who feels that he/she                                                               
should've been convicted  of sexual assault in  the second degree                                                               
rather  that sexual  assault in  the first  degree, for  example.                                                               
This language, she further opined,  is for the extraordinary case                                                               
in which the individual is factually innocent.                                                                                  
                                                                                                                                
4:42:44 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GARA relayed  his belief that between  now and the                                                               
time he  dies there  will be  at least  one injustice  done under                                                               
this language, one  injustice which is one too many.   He pointed                                                               
out that the law is written  to reflect the notion that there are                                                               
criminals with  a conscience.   In fact,  there are  instances in                                                               
which  the defendant  is  sentenced less  if  he/she attempts  to                                                               
prevent  the  continuation  of the  crime  he/she  had  initially                                                               
engaged in.  He opined that  there will be circumstances in which                                                               
a perpetrator  will be convicted  of a murder when  he/she simply                                                               
assaulted someone and then tried to stop the murder.                                                                            
                                                                                                                                
4:43:55 PM                                                                                                                    
                                                                                                                                
A roll  call vote  was taken.   Representatives  Gruenberg, Gara,                                                               
and  Kott  voted  in  favor  of  Amendment  4.    Representatives                                                               
McGuire,  Coghill, and  Anderson  voted against  it.   Therefore,                                                               
Amendment 4 failed by a vote of 3-3.                                                                                            
                                                                                                                                
MS.  CARPENETI returned  attention to  proposed AS  12.72.210(1),                                                               
and  opined that  it's unclear  because, among  other things,  it                                                               
should instead  provide that if the  results of the DNA  test are                                                               
as the claimant  asserts, then no reasonable trier  of fact would                                                               
find the  individual guilty.   She characterized the  language in                                                               
proposed  AS  12.72.210(1)  as allowing  a  "fishing  expedition"                                                               
because it  will allow  those in jail  to bring  applications for                                                               
post-conviction DNA  testing on very  slim grounds.   She relayed                                                               
her understanding that if the  testing comes out as the applicant                                                               
asserts, then it will be  almost dispositive and therefore decide                                                               
the case.   The DOL  has a major concern  with the test  and with                                                               
the  fact that  no due  diligence  is required.   This  provision                                                               
allows an individual to bring it  up at any time, whereas the PCR                                                               
applications  have  limits in  which  to  bring them  forth,  and                                                               
although  there are  exceptions for  cases with  newly discovered                                                               
evidence,  the individual  must establish  that he/she  proceeded                                                               
with due diligence.                                                                                                             
                                                                                                                                
CHAIR McGUIRE asked  why the subcommittee decided not  to adopt a                                                               
due diligence standard.                                                                                                         
                                                                                                                                
REPRESENTATIVE GRUENBERG said he didn't know.                                                                                   
                                                                                                                                
CHAIR  McGUIRE  said that  she  would  be  inclined to  offer  an                                                               
amendment to adopt a due diligence standard.                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG asked if  there is a standard specifying                                                               
a time limit.                                                                                                                   
                                                                                                                                
MS. CARPENETI  pointed out that  the PCR statutes  specify limits                                                               
of either  one year from when  an appeal has been  decided or two                                                               
years from  trial if there's  no appeal.  Those  statutes further                                                               
specify that under exceptional circumstances  and in the interest                                                               
of justice, there are circumstances  that are envisioned for PCR,                                                               
such  as  newly  discovered  evidence  being  brought  after  the                                                               
aforementioned time period.                                                                                                     
                                                                                                                                
REPRESENTATIVE  LeDOUX  offered  her recollection  that  the  due                                                               
diligence  standard wasn't  included because  if DNA  testing can                                                               
actually prove someone's innocence, then  no matter how much time                                                               
has passed, [it should be allowed].                                                                                             
                                                                                                                                
4:48:16 PM                                                                                                                    
                                                                                                                                
CHAIR  McGUIRE  surmised that  Ms.  Carpeneti's  concern is  that                                                               
there will  be individuals  making this claims  all the  time and                                                               
thus it will be cumbersome.                                                                                                     
                                                                                                                                
MS.  CARPENETI acknowledged  that's  one of  the DOL's  concerns.                                                               
She then  pointed out that the  further away from the  crime [the                                                               
evidence  is brought  forward], the  greater the  likelihood that                                                               
the victims  will have  passed away and  that the  other evidence                                                               
will have  been scattered.   Therefore, it's  in the  interest of                                                               
everyone to  resolve cases as soon  as possible.  She  noted that                                                               
most PCR applications require that  persons, even those who don't                                                               
meet the statutory deadlines, act with due diligence.                                                                           
                                                                                                                                
REPRESENTATIVE COGHILL relayed his  belief that under proposed AS                                                               
12.72.210(1),  there  seems  to  be a  "fairly  decent  vetting."                                                               
Although  he acknowledged  that  the continual  use  of the  term                                                               
"reasonable" makes it  difficult to "nail it down,"  it still has                                                               
to be clear  and convincing.  He said that  the aforementioned is                                                               
the  reason he  is willing  to retain  the language,  "any lesser                                                               
included offense".   Furthermore, couldn't the court  say that an                                                               
individual's  time  to obtain  DNA  testing  had expired  because                                                               
he/she already had multiple opportunities  to do so?  Also, isn't                                                               
there  a motivation  to seek  [DNA testing]  earlier rather  than                                                               
later?                                                                                                                          
                                                                                                                                
[Chair   McGuire  turned   the  gavel   over  to   Representative                                                               
Anderson.]                                                                                                                      
                                                                                                                                
MS. CARPENETI replied yes, except  that language on page 4, lines                                                               
4-5,  says  that  the  judge  doesn't have  to  worry  about  the                                                               
timeliness of the request.                                                                                                      
                                                                                                                                
MS. CARPENETI, in response to  a question, suggested deleting the                                                               
language on page  4, lines 4-5, which  says, "Notwithstanding any                                                               
law  or rule  of procedure  that  bars an  application for  post-                                                               
conviction relief as  untimely,".  The hope, she  opined, is that                                                               
this change  would negate the  provision in Version S  that takes                                                               
away all requirements for due diligence for PCR applications.                                                                   
                                                                                                                                
REPRESENTATIVE ANDERSON [made a  motion to adopt] Ms. Carpeneti's                                                               
suggestion as Amendment 5, to delete  from page 4, lines 4-5, the                                                               
words, "Notwithstanding  any law or  rule of procedure  that bars                                                               
an application  for post-conviction  relief as untimely,  an" and                                                               
insert the word, "An".                                                                                                          
                                                                                                                                
4:52:07 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LeDOUX  questioned  how   one  could  expect  the                                                               
typical prisoner  to know whether  he/she has a claim  for relief                                                               
via  the use  of DNA  testing  if the  law is  written such  that                                                               
he/she  will be  barred  from relief  because of  a  lack of  due                                                               
diligence.                                                                                                                      
                                                                                                                                
REPRESENTATIVE  ANDERSON opined  that  the  public defenders  are                                                               
very competent and informed on such matters.                                                                                    
                                                                                                                                
REPRESENTATIVE  LeDOUX   pointed  out,   though,  that   once  an                                                               
individual is convicted and is in  jail, he/she no longer has the                                                               
services of the public defender.                                                                                                
                                                                                                                                
REPRESENTATIVE  ANDERSON reiterated  his belief  that the  public                                                               
defender would still inform the [jailed person].                                                                                
                                                                                                                                
MS.  CARPENETI clarified  that it  depends  on the  circumstance.                                                               
She  noted  that  the individual  would  be  represented  through                                                               
appeals  and  PCR remedies.    She  also noted  that  determining                                                               
whether  there was  due diligence  depends on  the circumstances;                                                               
for example, when  did the [evidence] come to light  and how long                                                               
did the individual  wait after finding out about  it.  Therefore,                                                               
if the individual [uncovered evidence]  20 years later, the court                                                               
could find that  the individual acted with  due diligence because                                                               
he/she  proceeded  without  delay  once  that  new  evidence  was                                                               
discovered.                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GARA  expressed   his  hope  that  Representative                                                               
Anderson would  consider withdrawing  the amendment.   Drawing on                                                               
his  experience  as  an  attorney,  he relayed  that  it  is  the                                                               
innocent person  who will fight  for his/her innocence  the least                                                               
while it  is the  guilty person  who will fight  the most  to get                                                               
released.    When there  is  DNA  evidence that  shows  someone's                                                               
innocence,  and the  innocent person  decides  not to  act on  it                                                               
immediately because he/she  don't know what DNA is  or he/she has                                                               
lost all  hope, that's the  type of  person that DNA  evidence is                                                               
supposed to protect.                                                                                                            
                                                                                                                                
REPRESENTATIVE  GARA  opined  that  the fact  that  the  innocent                                                               
individual didn't  act on  the evidence  immediately is  almost a                                                               
testament to that individual's character,  and yet those innocent                                                               
individuals are  being punished  for having  that character.   He                                                               
said that  the reality is  that DNA evidence  exonerates innocent                                                               
people,  and so  it  would be  very wrong  to  leave an  innocent                                                               
person  in jail  because  he/she  didn't act  as  quickly as  the                                                               
government  specifies.   Therefore,  he  opined,  there is  every                                                               
reason not to impose this additional standard.                                                                                  
                                                                                                                                
[Representative Anderson returned the gavel to Chair McGuire.]                                                                  
                                                                                                                                
MS. CARPENETI, in response to  a question, explained that once an                                                               
applicant is  tested, the  process returns to  that used  for PCR                                                               
under  AS  12.72.010  through AS  12.72.040,  which  include  the                                                               
timeliness provisions.                                                                                                          
                                                                                                                                
CHAIR McGUIRE  suggested that the committee  move the legislation                                                               
and  members work  further  on  it as  it  continues through  the                                                               
process.                                                                                                                        
                                                                                                                                
REPRESENTATIVE GRUENBERG recalled testimony  that the language of                                                               
proposed AS  12.72.210(1) is confusing.   Therefore, he suggested                                                               
simplifying  that language  by  deleting  the words,  "reasonable                                                               
probability that a reasonable trier of fact would have a".                                                                      
                                                                                                                                
CHAIR  McGUIRE  asked  if the  aforementioned  would  defeat  any                                                               
compromises made in the subcommittee.                                                                                           
                                                                                                                                
REPRESENTATIVE  LeDOUX  opined  that   there  was  no  compromise                                                               
reached on that particular language.                                                                                            
                                                                                                                                
REPRESENTATIVE  KOTT said  that suggested  change would  probably                                                               
work.  However,  in order to put this in  the proper context, one                                                               
must review  what other states have  done.  He relayed  that most                                                               
other states use a reasonable probability standard.                                                                             
                                                                                                                                
5:00:43 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG made  a motion to adopt  Amendment 6, to                                                               
delete  from  proposed  AS 12.72.210(1)  the  words,  "reasonable                                                               
probability  that  a reasonable  trier  of  fact would  have  a".                                                               
There being no objection, Amendment 6 was adopted.                                                                              
                                                                                                                                
5:01:03 PM                                                                                                                    
                                                                                                                                
CHAIR   McGUIRE  turned   the  committee's   attention  back   to                                                               
Amendment 5 [text provided previously].                                                                                         
                                                                                                                                
A roll call  vote was taken.   Representatives Anderson, Coghill,                                                               
and  McGuire voted  in  favor of  Amendment  5.   Representatives                                                               
Kott, Gara, Gruenberg,  and Wilson voted against  it.  Therefore,                                                               
Amendment 5 failed by a vote of 3-4.                                                                                            
                                                                                                                                
5:02:27 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  ANDERSON  moved to  report  the  proposed CS  for                                                               
HB 325, Version 24-LS1222\S, Luckhaupt,  4/10/06, as amended, out                                                               
of   committee   with    individual   recommendations   and   the                                                               
accompanying  zero  fiscal  notes.   There  being  no  objection,                                                               
CSHB 325(JUD) was reported from the House Judiciary Standing                                                                    
Committee.                                                                                                                      
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
There being no further business before the committee, the House                                                                 
Judiciary Standing Committee meeting was adjourned at 5:03 p.m.