SENATE JUDICIARY COMMITTEE April 12, 2000 2:13 p.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Rick Halford, Vice-Chairman Senator Dave Donley Senator Johnny Ellis MEMBERS ABSENT Senator John Torgerson COMMITTEE CALENDAR SENATE CS FOR CS FOR HOUSE BILL NO. 37(HES) "An Act relating to restricting sale of cigarettes, to enforcement of certain laws relating to sales of cigarettes, and to smoking education and cessation programs administered by the Department of Health and Social Services." -MOVED SCS CSHB 37(JUD)am OUT OF COMMITTEE SENATE BILL NO. 305 "An Act relating to wildfires and other natural disasters." -HEARD AND HELD SENATE BILL NO. 201 "An Act relating to violations of an order to submit to deoxyribonucleic acid (DNA) testing, to court orders and conditions of parole to collect samples for DNA testing, to removal of material from the DNA identification registration system; and to the collection and processing of samples from certain burglary perpetrators for the DNA identification registration system; and providing for an effective date." -HEARD AND HELD SENATE BILL NO. 207 "An Act relating to the establishment and enforcement of medical support orders for children; and providing for an effective date." -HEARD AND HELD HOUSE BILL NO. 99 "An Act relating to sexual assault and the definitions of 'sexual contact,' 'sexual penetration,' and 'legal guardian' in AS 11." -HEARD AND HELD PREVIOUS SENATE COMMITTEE ACTION HB 37 - See Judiciary Committee minutes dated 4/10/00. SB 305 - No previous action to report. SB 201 - No previous action to report. SB 207 - See HESS minutes dated 3/22/00. HB 99 - No previous action to report. WITNESS REGISTER Mr. Tom Manninen Aid to Representative Rokeberg State Capitol Building Juneau, Alaska 99801 POSITION STATEMENT: Testified on HB 37 Ms. Portia Parker Aid to Senator Green State Capitol Building Juneau, Alaska 99801 POSITION STATEMENT: Presented Sponsor Statement for SB 305 Mr. Dean Brown, Deputy Director Department of Natural Resources Division of Forestry 550 West 7th Avenue, Suite 1450 Anchorage, Alaska 99501 POSITION STATEMENT: Testified on SB 305 Captain Don Savage Department of Public Safety Division of Alaska State Troopers 453 South Valley Way Palmer, Alaska 99645 POSITION STATEMENT: Testified on SB 305 Major Ted Bachman Department of Public Safety Division of Alaska State Troopers 5700 East Tudor Road Anchorage, Alaska 99507-1225 POSITION STATEMENT: Testified on SB 305 Mr. Larry Wood HC 04 Box 9311 Palmer, Alaska 99645 POSITION STATEMENT: Supports SB 305 Ms. Barbara J. Leiss PO Box 1329 Palmer, Alaska 99645-1329 POSITION STATEMENT: Testified on SB 305 Mr. Ken E. Rowland HC 04 Box 9194 Palmer, Alaska 99645 POSITION STATEMENT: Testified on SB 305 Ms. Helen D. Munoz PO Box 4013 Palmer, Alaska 99645-4013 POSITION STATEMENT: Testified on SB 305 Mr. Del Smith, Deputy Commissioner Department of Public Safety PO Box 111200 Juneau, Alaska 99811-1200 POSITION STATEMENT: Supports SB 201 Mr. Robert Buttcane Department of Health and Social Services Division of Juvenile Justice PO Box 110635 Juneau, Alaska 99811-0635 POSITION STATEMENT: Testified on HB 99 Ms. Candace Brower Department of Corrections Parole Board Officer PO Box 112000 Juneau, Alaska 99811-2000 POSITION STATEMENT: Supports SB 201 and HB 99 Ms. Leann Strickland Address not furnished POSITION STATEMENT: Testified on SB 201 Mr. George Taft Address not furnished POSITION STATEMENT: Testified on SB 201 Ms. Lauree Hugonin 130 Seward, Room 209 Juneau, Alaska 99801 POSITION STATEMENT: Supports SB 201 Ms. Barbara Miklos Department of Revenue Child Support Enforcement Division 550 West 7th Avenue, Suite 310 Anchorage, Alaska 99501 POSITION STATEMENT: Testified on SB 207 ACTION NARRATIVE TAPE 00-21, SIDE A Number 001 CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 2:13 p.m. Present were SENATOR HALFORD, SENATOR DONLEY and CHAIRMAN TAYLOR. The first order of business to come before the committee was HB 37. HB 37-SMOKING CESSATION AND EDUCATION PROGRAMS CHAIRMAN TAYLOR reminded the committee that testimony for HB 37 was heard April 10 and a new committee substitute is the result of that meeting. SENATOR DONLEY moved to adopt SCS CSHB 37, version T. There being no objection, version T was adopted. CHAIRMAN TAYLOR recommended that amendment T.2, Ford, 04/11/00 be adopted. This amendment is to page 4, line 13 and inserts a new subsection that reads: (j) A person who violates (g) of this section is guilty of a class B misdemeanor." By utilizing this amendment the bill retains its sanctions for grey good sales. MR. TOM MANNINEN, aid to Representative Rokeberg, said that Representative Rokeberg supports amendment T.2. SENATOR DONLEY moved to adopt amendment T.2. There being no objection, amendment T.2 was adopted. SENATOR DONLEY moved SCS CSHB 37 am from committee with individual recommendations. There being no objection, the motion carried. Number 270 SB 305-RIGHTS OF PROPERTY OWNER IN DISASTER AREA MS. PORTIA PARKER, aid to Senator Lyda Green, stated for the record that SB 305 was introduced to address the concerns of private property owners and residents during emergency management of wildfires and disaster areas. SB 305 establishes statutory guidelines for balancing the rights of private property owners and emergency personnel during wildfires and natural disasters. MS. PARKER said the main provisions of SB 305 provide that an adult resident or property owner can choose to evacuate or not to evacuate an area, unless a minor or young children are involved. Property owners and residents shall be permitted to enter a threatened area if entry does not interfere with emergency personnel and proof of residency or property ownership is provided. MS. PARKER stated that SB 305 also provides statutory protection for all emergency personnel from liability if a property owner or resident is injured or killed because they choose not to evacuate or they entered or re-entered a threatened area. Number 432 MAJOR TED BACHMAN, Alaska State Troopers, said he has been working with the Department of Natural Resources (DNR), the Bureau of Land Management (BLM) and Public Safety and Fire Services in the Matsu Valley to develop a statewide evacuation policy. The committee feels that SB 305 does not address all of the essential issues. CHAIRMAN TAYLOR asked about the granting of complete immunity for people or organizations that might have some type of liability in a disaster. MAJOR BACHMAN said he thinks immunity is given to the emergency agency or organization that is handling the disaster if they advise a resident to leave and the resident refuses or the resident obtains re-entry knowing there may be some danger to life and property. Number 754 CAPTAIN TOM SAVAGE, Alaska State Troopers, said the committee's policy is almost in the final stages of development and it provides more flexibility for all concerned. The policy provides input for modifying areas that need strengthening or areas that need to be corrected and it clarifies the issues. One area of difficulty has been the definitions of terminology, and the policy defines these things and provides a clear direction for emergency responders. CAPTAIN SAVAGE said that one of the biggest issues has been access into an area. SB 305 has not changed current statutory issues-- firefighters can still restrict or close access to areas. The policy approach allows more flexibility, greater input, and greater mobility once issues are found. CHAIRMAN TAYLOR asked Captain Savage if he had specific instances he wanted to address. CAPTAIN SAVAGE said there is no provision in the statute for removing a intoxicated person or a mentally incapable person without their consent. CAPTAIN SAVAGE commented that re-entry or entry is also an issue addressed by the policy. The draft policy defines what will be expected if there is a road closure, road block or checkpoint. CHAIRMAN TAYLOR said he was not sure what policy Captain Savage was referring to. CAPTAIN SAVAGE responded it is the policy Major Bachman was referring to--what the committee has been developing for the past nine or ten months. CHAIRMAN TAYLOR asked if this is a internal policy to guide personnel in making decisions or is it a policy that will be enforceable through regulation. CAPTAIN SAVAGE said the policy has not been addressed at this level and certainly not in terms of regulation. CHAIRMAN TAYLOR asked how the policy addresses the issue of a intoxicated person wanting to go into a fire area? CAPTAIN SAVAGE responded that a incapacitated person will be prevented from going into a fire area, but a person with alcohol on his breath who appears to be rational will be allowed to enter to protect his property. CHAIRMAN TAYLOR asked to what extent does the policy assist in these circumstances. CAPTAIN SAVAGE said it develops greater layers and levels for evacuation, providing for exigent circumstance when people are unable to protect themselves and have to be removed without their consent. Number 1211 MR. LARRY WOOD, resident of Lazy Mountain, said he witnessed the entire exercise at Lazy Mountain. His house fronted Clark Wolverine Road where the majority of the activity occurred, and his letter to the Governor was the catalyst for what has happened. He also stated that he disagrees with Captain Savage. MR. WOOD said he is a member of the Lazy Mountain Community Counsel Post-fire Committee which drafted the statutes. The committee decided to reject the policy because policy changes, depending on who is in charge. Contrary to Captain Savage's assertions, the policy is not benign for the residents of the area. If an evacuation order is given, people who refuse to leave should be removed even if force is needed. There is no qualification for this point in the policy. MR. WOOD said the Lazy Mountain Community Council feels that SB 305 will insure that property owners are not treated as chattel. Federal mandate says that there should be no participation of property owners in defense of their property, but it was recognized at Miller's Reach that homes were saved when residents stayed to help. Fire crews can bulldoze the property, the house or whatever, in order to stop the fire but the State takes no responsibility for that property. MR. WOOD said his only criticism of SB 305 is that the proof of identification (ID) is raised beyond the level of a driver's license. If a person is called at work or finds out over the radio that there is an emergency, they may leave their ID behind in their haste to leave. MR. WOOD noted that the only thing he is trying to do with SB 305 is to insure that people have access to their property. SENATOR TAYLOR asked Mr. Wood if he had a copy of SB 305. MR. WOOD responded yes. He said it varies little from what was drafted with the exception of the section that states: "contains the photograph," and the original draft from the Lazy Mountain Council said that a person who provides false witness should be held criminally liable. The financially responsible aspect of SB 305 is also objectionable because it makes "the person who vouches is responsible for that individual who goes into the area and has a fender bender, for example." MR. WOOD said the citizens of Lazy Mountain are not going to sue a police officer for trying to do his job under the circumstances that were experienced at Lazy Mountain, but they most assuredly will object--SB 305 is that objection. MR. WOOD said the Lazy Mountain fire was handled very badly by the Division of Forestry and the Alaska State Troopers in terms of security and perimeter control. The draft plan addresses some of this, but the residents of Lazy Mountain feel that it would serve all of Alaska well to have the protection afforded by SB 305. CHAIRMAN TAYLOR thanked Mr. Wood and said he shares some of the same concerns. One of his concerns is over the wording "legally and financially responsible for another person," and another concern is over the liability aspects of the immunity provision. CHAIRMAN TAYLOR said it is the intent of the Committee to hold SB 305 and work on it in the interim. Number 1900 MS. BARBARA LEISS made the following comments: First of all, this is farm country. Most of the people who live here are farmers with large tracts of land, livestock and other animals. A lot of the people have lived here all of their life and everyone knows everyone. Hence, the reason for all of the problems that occurred during the roadblock. People seeking access to a fire or disaster area must show good reasons to the officers or firefighters in charge for wanting to enter that area, whether they are a resident, relative of a resident, or friend of a resident who wants to help. There are a lot of people in Alaska that do not have fire insurance and they will take desperate measures to save their goods--firefighters and police officers need to realize that. Another problem was that the fire occurred in the afternoon and it reached its peak around 1:30 or 2:00 on a weekday. Elementary school children were being bussed home at that time. They were dropped off on the main road to walk to their homes. Shortly after 2:30, State Troopers were informed by the firefighters to put up a roadblock to the mountain at its main entrance. Remember, we have only one way in and one way out and that's the problem. Parents returning home from work were denied access to get to their children who were home alone and the authorities did not know which homes had children nor did they take any steps to evacuate the children. There was no means of transportation for evacuating the children. There were also disabled people in wheelchairs who were home alone. The police should work with the residents when there are children and disabled and elderly people involved. This area is not addressed in SB 305 and the citizens of Lazy Mountain would like it included. There was also an incident with an old man who was in a wheelchair. The man's son finally convinced the police to check on him. The police went to the door, didn't wait very long, and were already out the driveway by the time the elderly man in the wheelchair got to the door. Common sense needs to be used. "And, of course, you've already heard about the drawing of the gun on a farmer boy here who has never had a criminal record in his life and the reason that boy was so desperate to get to his farm and his family was because at the roadblock, he was told that his house was on fire and his family was trapped." MS. LEISS said that changing the statutes to be more reasonable for the majority of citizens is in order. Number 2115 MR. KEN ROWLAND, resident of Lazy Mountain, said he does not believe the policy is the way to address this problem, and he wholeheartedly agrees with Larry Wood that policy changes with the people in charge. He is also concerned about the gun issue. MR. ROWLAND said that policy should not be at the whim of bureaucrats and firefighters who can change it indiscriminately. He is also concerned that firefighters can burn a person's home to enhance the firefighting effort. Destroying property should never be left to the decision of one person--at least three officials should make that decision. CHAIRMAN TAYLOR suggested the re-draft should have a provision saying that if there is a decision to burn a home or building the State will rebuild or give the owner money to rebuild. Number 2287 MS. HELEN MUNOZ said the other people who testified expressed her concerns. She said that for the first time in her life she felt threatened by authority during the Lazy Mountain fire. Number 2302 SB 201-DNA TESTING & REGISTRATION DEPUTY COMMISSIONER DEL SMITH, Department of Public Safety, said the State has been collecting DNA samples since 1996 from people convicted of person crimes and the samples have been stored at the crime lab. The lab processes the samples and creates files that can be uploaded to the national system so they can be checked against known samples from crime scenes. DEPUTY COMMISSIONER SMITH said SB 201 will add felony burglary to the list of people who will be required to give a DNA sample. Burglaries are included because the review of national statistics indicates that 52% of the people convicted or arrested on person crimes have been convicted of burglaries previously. Having DNA samples from convicted individuals will help solve crimes sooner. DEPUTY COMMISSIONER SMITH noted that SB 201 also allows for a parole officer, peace officer or probation officer to take a DNA sample. Blood samples have been used in the past and SB 201 allows for the use of a swab to take saliva from an individual. This will be more efficient and less intrusive and a sample can be taken without undue discomfort or inconvenience. Deputy Commissioner Smith said there is also a section in SB 201 that enables the sample to be removed from the data base if the person is found not guilty. Tape 00-21, Side B Number 2329 MR. ROBERT BUTTCANE, Juvenile Probation Officer with the Division of Juvenile Justice for the Department of Health and Social Services (DHSS), said DHSS supports SB 201. SB 201 will give the system an opportunity to solve more crimes and hold people accountable. Technology has advanced so that DNA samples can now be collected with a mouth swab rather than drawing blood. SB 201 allows youth counselors, probation officers and correctional officers to require a person convicted of one of the applicable offenses to submit to a DNA sampling. Failure to do so will subject them to a violation of law under title 11. Once the sample has been taken it is catalogued and put into a state registry, which is limited to law enforcement use only. MS. CANDACE BROWER, Department of Corrections (DOC), said DOC supports SB 201. For the past five years, the medical staff of correctional facilities have been responsible for the collection of DNA samples and DOC is glad there will be an expansion of who can collect samples. Number 2130 CHAIRMAN TAYLOR said he was concerned that a DNA sample can be easily tainted. MS. LEANN STRICKLAND, supervisor of the DNA section at the laboratory, commented that 13 different genetic loci are looked at when analyzing samples and if there is some type of contamination it will be seen in the analysis. If a contamination is seen, another sample will be asked for or the sample will be retested. CHAIRMAN TAYLOR asked how it will be known that a sample is tainted. MS. STRICKLAND said each individual can have two alternate forms of any of the loci and if more than two forms of any given gene appear in the data analysis the sample itself would be questioned. It is very rare for an individual to have more than two alternate forms at any one locus or any one gene type. People working in the lab will be able to look at the DNA typing evidence to determine if there are low levels of another contributor or something in the sample that does not fit the pattern of a single source sample. CHAIRMAN TAYLOR noted the Alaska Civil Liberties Union (ACLU) has filed a paper in opposition to SB 201. Number 2029 CHAIRMAN TAYLOR wondered about the retro activity provision in SB 201 going back to 1996. DEPUTY COMMISSIONER SMITH replied that 1996 is when the original data base was started and because the bill applies to offenses occurring on or after January 1, 1996, the retroactive provision was felt to be logical. MR. GEORGE TAFT added that the labs are only looking at the 13 loci for a persons identification and not for medical maladies of the person. The labs are not able to tell a persons medical history from the loci. CHAIRMAN TAYLOR said one of the questions raised by the ACLU was whether or not the 13 loci will indicate the racial makeup of the individual. MS. STRICKLAND responded no. The profile will not indicate the racial group the person is from but it will give an indication as to which racial group from that particular profile will be expected to be most common and which particular racial group is expected to be most rare. The profile itself will not identify the race of the individual. Number 1923 CHAIRMAN TAYLOR asked if there is a national standard for testing or a national verification system that is used. MS. STRICKLAND said the laboratory where she works is an accredited laboratory and they follow the DAB standards. DAB is the DNA Advisory Board that has set forth the standards for forensic DNA testing labs. These standards set forth quality assurance that must be met in confirming analysis of forensic samples. These standards also pertain to the convicted offender samples. CHAIRMAN TAYLOR asked what agency audits them. MS. STRICKLAND said her laboratory has been accredited by the American Society of Crime Laboratory Directors (ASCLD). The DAB standards are used by auditors as well as the ASCLD standard. The DAB has been signed off by the Director of the FBI. CHAIRMAN TAYLOR asked what is used to make certain that the system is accountable and renders accurate results. MR. TAFT responded that the lab is tested and accredited and the people working in the lab are proficiency tested. There is also a yearly inspection by people from outside the laboratory. Number 1681 MS. LAURIE HUGONAN, Executive Director for the Alaska Network on Domestic Violence and Sexual Assault, said the Network supports SB 201. The Network is interested in making as many DNA samples available as possible, so when there is a sexual assault crime the samples will be run for comparisons as soon as possible. This will help in finding the guilty person and it will increase the likelihood of DNA matches being found. Number 1577 SB 207-MEDICAL SUPPORT ORDERS FOR CHILDREN MS. BARBARA MIKLOS, Department of Revenue (DOR), said SB 207 makes three simple changes to existing statute. First, under existing statute an order for medical support can only be established in conjunction with a financial support order. DOR is required by Medicaid to establish a medical support order for people who go onto a public assistance program and then DOR is required by statute to establish a financial support order. DOR would like to separate the two orders, establishing a medical support order only without an order for financial support. A financial support order will be established if the parent wants one. Second, SB 207 amends the medical support statute to provide that either parent, not simply the obligor, may be required to provide health care coverage. Third, this bill amends the law to require that a medical support order be issued regardless of whether health care coverage is currently available to either parent. This is being done now and the order is not in effect until the health insurance becomes available. MS. MIKLOS said DOR believes this bill will help custodial parents because they will not need a financial order, noncustodial parents for the same reason and it will also help keep the Child Support Enforcement Division out of the middle of conflict with the parents. Number 1411 HB 99-SEXUAL ASSUALT:VICTIM IN STATE CUSTODY MS. CANDACE BROWER, Department of Corrections (DOC), said that HB 99 will make a crime of sexual assault in the third degree a class C felony for an employee of a state correctional facility who engages in sexual penetration with an offender in the custody and care of DOC. SB 99 will also make a crime of sexual assault in the fourth degree a class A misdemeanor for an employee of a state correctional facility to engage in sexual contact with an offender in the care and custody of DOC. This legislation also applies to a DHSS employee who is the legal guardian of a person 18 or 19 years old. Current sexual misconduct laws in Alaska only apply to acts committed against individuals who are mentally incapacitated. MS. BROWER quoted from literature from the National Women's Law Center: In states that have no specific legislation criminalizing the sexual abuse of prisoners, correctional employees may be prosecuted under the states existing sexual assault and rape statutes. Under these laws, consent is assessed as criminal liability. However, many experts believe that the inherent disparity in power between prisoners and correctional employees renders valid consent impossible in the prison context. Also from both a management and a public policy prospective, sanctioning consensual sex between correctional employees and prisoners severely compromises legitimate correctional goals such as prison security, inmate management and rehabilitation. MS. BROWER said that DOC feels strongly about protecting the people who are in their custody and care. It is not part of a persons sentence to be subjected to sexual assault or abuse of any kind. CHAIRMAN TAYLOR said he has no difficulty with the legislation. There being no further business to come before the committee, CHAIRMAN TAYLOR adjourned the meeting at 3:20 p.m.