SENATE JUDICIARY COMMITTEE March 1, 1995 1:34 p.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Lyda Green, Vice-Chairman Senator Mike Miller Senator Al Adams MEMBERS ABSENT Senator Johnny Ellis COMMITTEE CALENDAR SENATE BILL NO. 4 "An Act relating to arrest of a person under age 21 for illegal possession, consumption, or control of alcohol; to classifying certain offenses related to driving while intoxicated or failure to submit to a chemical test as felonies; and providing for an effective date." SENATE BILL NO. 46 "An Act revising the provision of law under which a minor may be charged, prosecuted, and sentenced as an adult in the district court, and adding to the list of offenses for which a minor may be prosecuted as an adult in the district court." SENATE BILL NO. 14 "An Act relating to criminal mischief." PREVIOUS SENATE COMMITTEE ACTION SB 4 - See State Affairs minutes dated 2/9/95 and 2/21/95. SB 46 - See Judiciary minutes dated 2/27/95. SB 14 - See Judiciary minutes dated 2/1/95, 2/6/95, 2/8/95, 2/27/95. WITNESS REGISTER Joe Ambrose Chief of Staff to Sen. Taylor State Capitol Juneau, Alaska 99811 POSITION STATEMENT: Testified for sponsor of SB 4 Del Smith Deputy Commissioner Department of Public Safety P.O. Box 111200 Juneau, Alaska 99811-1200 POSITION STATEMENT: Testified in support of SB 4 Juanita Hensley Division of Motor Vehicles Dept. of Public Safety P.O. Box 20020 Juneau, Alaska 99811-0020 POSITION STATEMENT: Testified on SB 14 Margot Knuth Assistant Attorney General Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 POSITION STATEMENT: Testified on SB 4, SB 14, and SB 46. Jack Chenoweth Division of Legal Services Legislative Affairs Agency 130 Seward St., Suite 409 Juneau, Alaska 99801-2105 POSITION STATEMENT: Answered questions on SB 46 Jerry Luckhaupt Division of Legal Services Legislative Affairs Agency 130 Seward St., Suite 409 Juneau, Alaska 99801-2105 POSITION STATEMENT: Answered questions on SB 14 ACTION NARRATIVE TAPE 95-10, SIDE A CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 1:34 p.m. The first order of business was SB 4. SJUD-3/1/95 SB 4 DWI LAWS  JOE AMBROSE, Chief of Staff to Senator Taylor, read a sponsor statement to the committee. He explained SB 4 makes drunk driving a felony on the third offense, requires a minimum sentence of 360 days, and carries a $1,000 fine upon conviction. It also requires a sentence of not less than 30 days and a $1,000 fine if a person convicted of a felony DWI later drives a vehicle while their license is suspended or revoked. That section was added at the suggestion of law enforcement agencies. SB 4 provides the court the option of ordering drug therapy as a condition of parole or probation and to order forfeiture of a vehicle or aircraft. SB 4 is aimed to remove repeat offenders from the highways. Section 1 addresses a change needed in state law to overcome a court ruling that a minor cannot be arrested for consuming alcohol unless the police witness the consumption. The remainder of SB 4 deals with what is necessary to make it a felony to repeatedly drive drunk. Number 092 SENATOR ADAMS asked if SB 4 would cost over $4.2 million, of which $3.7 million would be expended by the Department of Corrections, and whether more prison space would be required. MR. AMBROSE responded the fiscal note from the Department of Corrections totals $3.7 million in the first year. SENATOR ADAMS questioned whether the Senate Majority has included this amount in their spending plan. SENATOR TAYLOR noted the Governor's budget was only received the day before. SENATOR TAYLOR discussed the policy issue of whether the fiscal notes of the departments should drive legislative policy. He stated he felt it was worth the cost to pick up repeat offenders to prevent them from causing deaths. He noted last year, 48 people were arrested in Anchorage for this offense; he estimated the number would double if statewide statistics were used. Number 128 SENATOR ADAMS responded he believes prison is not the answer for every crime committed in the State of Alaska. He suggested considering community service as a punishment for some offenses. He commented that teenagers who are first-time offenders should be doing productive community work rather than serving time in prisons. Number 143 DEL SMITH, Deputy Commissioner of the Department of Public Safety (DPS), testified in support of SB 4. Regarding the fiscal impact, he explained the DPS fiscal note addresses overtime costs generated by court appearances and Grand Jury appearances in felony cases. DPS anticipates 330 people will be charged for this offense annually. SENATOR ADAMS asked how many people would be put in jail if SB 4 passes. MR. SMITH estimated 100 would be sentenced, based on the Department of Law's projections. MARGOT KNUTH, Assistant Attorney General of the Department of Law (DOL), expanded on Mr. Smith's response. The DOL projects out of 400 arrests, 380 would be accepted for prosecution, and 15 percent of those would go to trial. This would represent a substantial fiscal impact for the DOL, because felony crimes must be presented to the Grand Jury. She noted DOL anticipates a total of 330 convictions each year. The costs to the defense would double. The DOL has looked at other approaches used to address this problem. In Minnesota, license plates are removed from the vehicle when the arrest is made, with the advantage that the government does not end up responsible for storing the vehicles, which are often junk vehicles. The owner is responsible for impounding the vehicle since a vehicle without plates cannot be on the street. If this system was used, the Legislature would have to determine what the offender would need to do to retrieve their license plates. MS. KNUTH discussed DOL concerns about the sentences set out in SB 4. In Alaska, a presumptive sentencing scheme is used, which states that second class C felony convictions carry two year sentences, and third offense convictions carry three year sentences. The sentences in SB 4 are less with a 360 day mandatory minimum. Driving with a revoked license would carry a 30 day mandatory minimum sentence, which would be a second felony offense and usually carries a two year sentence. MS. KNUTH emphasized the DOL vigorously supports Section 1 of SB 4, allowing warrantless arrests of minors. There are two other circumstances in which warrantless arrests are allowed: domestic violence incidents; and DWI cases. The justification for warrantless arrests in those situations is the danger those offenders pose to the public. DOL believes the same holds true for minors consuming because when judgement impaired, they may jeopardize their's and others' safety. Number 261 SENATOR TAYLOR asked, in states that are using the license plate removal approach, what the offender must do to obtain his/her license plates, and what is done when the impaired driver is not the owner of the vehicle. MS. KNUTH was unaware of the processes used. SENATOR TAYLOR stated another issue with forfeiture and seizure of vehicles is whether bank loans exist on the vehicle. He explained discussions over the issue of liability on the part of the loaning institution, who may have had knowledge of previous convictions prior to loaning the money, have occurred. SENATOR TAYLOR asked Ms. Knuth to look into the approaches she mentioned and provide the committee with recommendations. SENATOR GREEN suggested the presumptive sentencing issue be reviewed. SENATOR TAYLOR asked what the fiscal impact would be. MS. Knuth replied the impact on the DOL would be negligible, however it might double the Department of Correction's fiscal note. MR. AMBROSE stated the penalties were seriously considered when drafting the legislation and were purposely designed to be less punitive than what would happen under the normal circumstances. A repeat offender usually has a serious alcohol problem, and hopefully a one-year mandatory prison sentence would give him/her time to seek help. The 30 day prison requirement is also designed to provide additional "cooling off" time. SENATOR TAYLOR announced SB 4 would be held until the next hearing (March 8). The committee took up SB 14. SJUD - 3/1/95 SB 14 INCREASED PENALTIES FOR JOYRIDING  SENATOR MILLER moved the adoption of Work Version O, dated 2/28/95, as the new work version. SENATOR ADAMS objected until the committee heard a review by the Department of Law. MARGOT KNUTH stated Version O approaches the issue from a new angle, but provides more flexibility to the state and has the same finish line. It changes the sentencing provision under AS 11.46.484(c) by making a second joyriding offense a felony if the offender is 18 years of age or older (line 5). Two other conditions already exist in which a joyriding offense can be classified as a felony: when more than $500 worth of damage to the vehicle occurs; and when the vehicle is a police, or other emergency, vehicle. Those two provisions have not been impacted by SB 14 and allow the prosecutor's office the flexibility to put a minor through delinquency proceedings for a felony. When those circumstances apply, this may be appropriate if the offender's past history warrants detention or monitoring. MS. KNUTH explained that in most cases, the principle concern is to deter the person from re-offending and to get restitution for the vehicle owner. She felt this can be best accomplished in district court, which has the power of supervision over probation. Version O maintains those offenses as misdemeanors for juveniles in district court. MS. KNUTH explained Section 2 addresses a technical oversight regarding emergency vehicles. Section 3 allows the revocation of driving privileges for joyriding offenses. Section 4 specifies the length of time for license revocations. Section 5 requires juveniles to appear in district court for joyriding offenses. Number 382 SENATOR ADAMS asked if juveniles appearing in district court would be charged with misdemeanors for the first two offenses, and with a felony on the third offense. MS. KNUTH stated that is correct. SENATOR ADAMS asked if an adult would be charged with a misdemeanor for the first offense, and with a felony for the second offense. MS. KNUTH clarified that juveniles arrested for joyriding offenses will always be charged with a misdemeanor; the offense could only be charged as a felony after the offender turns 18, unless more than $500 worth of damage is caused, or an emergency vehicle is used (in which case felony charges would be pursued through juvenile delinquency proceedings which do not result in adult convictions). SENATOR ADAMS questioned whether a first time adult offender is charged with a misdemeanor, and a second time adult offender is charged with a felony. MS. KNUTH replied affirmatively. SENATOR ADAMS asked if Version O changes the fiscal notes submitted for the original version of SB 14. MS. KNUTH was uncertain whether fiscal notes were submitted for the original version. She noted that approach raised the joyriding offense to a felony which would have had significant fiscal impacts on the Departments of Law and Corrections. Version O will have a much smaller fiscal impact. Number 403 SENATOR ADAMS commented many versions of SB 14 have been considered but the fiscal impacts of those changes have not been addressed. SENATOR TAYLOR commented that he understood Version O to raise the second juvenile joyriding offense to a felony. MS. KNUTH stated the second offense would only be raised to a felony if the offender had turned 18. JUANITA HENSLEY, Division of Motor Vehicles, Department of Public Safety, testified. She explained the original version of SB 14 would have no impact on the Division of Motor Vehicles. Version O will impact the Division since court ordered license revocations would have to be processed, however the revenue generated from license reinstatement fees would offset processing costs and provide a source of revenue. SENATOR TAYLOR noted the fiscal note on Version O from the Department of Corrections should reflect a decrease in costs. Number 431 MS. KNUTH noted that Version O inadvertently includes a mandatory 3 day prison sentence. JERRY LUCKHAUPT, Division of Legal Services, explained that when drafting Version O he removed two sections that were in the previous version of SB 14, at the committee's request. One of those sections created a new offense specific to juveniles, and made it consistent with other misdemeanor joyriding offenses. That provision mandated a 3 day prison sentence, of which 2 days could be served by doing community service. When that section was removed, the ability to replace prison time with community service was removed. He suggested reinstating the community service provision by including a clause that states that AS 12.55.135 (f) would only apply to offenders at least 18 years of age. SENATOR TAYLOR stated that under existing law, juveniles never serve prison time. MS. KNUTH clarified that if that amendment were made, the 3 day prison sentence would not be mandatory, but would allow the judge to determine whether it is warranted, depending upon the circumstances of the particular offense. Number 470 SENATOR ADAMS asked if the amendment would provide the judge with the option of imposing the prison sentence. MS. KNUTH replied affirmatively. SENATOR ADAMS noted he was not opposed to that provision. MR. LUCKHAUPT reiterated the mandatory 3 day prison sentence would only apply to offenders over the age of 18. SENATOR ADAMS removed his objection to the motion to adopt Version O as the working version. The motion was adopted. SENATOR TAYLOR moved to adopt the conceptual amendment to be drafted by Mr. Luckhaupt, to remove the mandatory 3 day prison requirement for offenders under the age of 18. There being no objection, the motion passed. SENATOR TAYLOR commented SB 14 was originally introduced to raise the penalties for all joyriding violations from a criminal mischief 3 class A misdemeanor to a criminal mischief 2 class C felony. The second joyriding conviction within 7 years would have been raised from a criminal mischief 2 class C felony to a criminal mischief 1 class B felony. After public testimony was taken, the committee has found that over 50 percent of the offenders are juveniles who are not appearing in court because of their juvenile status. As a consequence, the committee has redrafted the legislation to address the 50 percent of juvenile cases that are not being handled effectively. SENATOR MILLER moved SB 14 (am) with the conceptual amendment out of committee with individual recommendations. There being no objection, the motion passed. SJUD - 3/1/95 SB 46 PROSECUTE JUVENILE AS ADULT IN DIST. CT. JACK CHENOWETH, Division of Legal Services, Legislative Affairs Agency, stated that at the request of the committee, he has provided an amendment (A.2) to SB 46 to modify the penalty for minors in two situations: when consuming alcohol; and when in possession of tobacco. He gave the following description of the amendment. On page 1, line 2, a title change reflects other changes in SB 46. Section 1, AS 04.16.050(b), defines the offense of minor consuming by a person under the age of 18 as a violation, rather than as a misdemeanor. A violation carries a monetary fine of not more than $300; the amendment sets a minimum fine of $100. Section 2 adds AS 04.16.050(b) to the list of exceptions of offenses in the alcoholic beverage code, that are otherwise punishable as class A misdemeanors. Section 3 specifies that the district court has jurisdiction over violations and specifically identifies the consumption of alcohol and possession of tobacco as violations. A technical change was made on lines 9-11, and on page 2, line 11, the word "minor" was changed to "person under 19 years of age" to conform with other text. Number 546 SENATOR ADAMS asked if a judge could require community service in lieu of the monetary fine. MR. CHENOWETH replied he did not think a judge could do that because the general definition of "violation" speaks only in terms of monetary remuneration. SENATOR ADAMS expressed concern that many juveniles may not be able to pay such a fine therefore he suggested community service as an appropriate alternative. MS. KNUTH noted under AS 12.55.055(c) a judge may convert a fine into community work service. TAPE 95-10, SIDE B MS. KNUTH explained the DOL believes that by reducing the offense of minor consuming to a violation, more cases will come before the court, as there is some reluctance to charge a minor with a class A misdemeanor because of the penalties and proceedings. DOL believes earlier intervention opportunities will occur as a result of the change and will allow for preventive measures rather than punitive measures. SENATOR TAYLOR expressed concern over the differentiation of minors under the age of 18 and minors between the ages of 18 and 21. MS. KNUTH suggested making the following changes to the amendment: on page 1, lines 5 and 7, change the word "minor's" to "person under 21 in"; on line 12, delete the words "who is a minor"; on page 2, line 3, delete the words "a minor"; and on line 5 delete the words, "a person under 19 years of age." MS. KNUTH commented that this bill acknowledges district court jurisdiction over these two violations, which could be interpreted to mean it does not have jurisdiction over other violations. SENATOR TAYLOR agreed with Mr. Chenoweth that it needs to be stated, and that perhaps a revisor's bill is in order. SENATOR TAYLOR withdrew his original amendment. There being no objection, the motion passed. SENATOR TAYLOR then moved the adoption of the amendment drafted by Mr. Chenoweth, labeled A.2, dated 3/1/95, with the following changes: on page 1, lines 5 and 7, change the word "minor's" to "person under 21 in", on line 12, delete the words "who is a minor"; on page 2, line 3, delete the words "a minor"; and on line 5 delete the words, "a person under 19 years of age." SENATOR MILLER moved SB 46 am out of committee with individual recommendations. There being no objection, the motion passed. SENATOR TAYLOR adjourned the meeting at 2:30 p.m.