Legislature(2009 - 2010)

04/02/2009 03:06 PM House FIN

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HOUSE BILL NO. 98                                                                                                             
     "An Act relating to minor consuming and repeat minor                                                                       
     consuming; and providing for an effective date."                                                                           
4:49:02 PM                                                                                                                    
Co-Chair Hawker noted  that there would be two  amendments to                                                                   
the bill.                                                                                                                       
JANE  PIERSON,  STAFF,  REPRESENTATIVE  JAY  RAMAS,  SPONSOR,                                                                   
provided  history regarding  HB 98, explaining  that  HB 359,                                                                   
legislation  amending  minors  consuming statutes,  had  been                                                                   
passed  the previous  year,  but had  created  a new  problem                                                                   
related to convictions.                                                                                                         
Co-Chair Hawker  clarified that new language  would provide a                                                                   
technical correction.                                                                                                           
Representative   Gara   MOVED  Amendment   1,   26-LS005\A.4,                                                                   
Luckhaupt, 4/1/09 (copy on file):                                                                                               
     Page 1, line 1, following both occurrences of                                                                              
          Insert "or in possession or control"                                                                                  
     Page 1, following line 3:                                                                                                  
          Insert a new bill section to read:                                                                                    
     "*Section 1. AS 04.16.050(b) is amended to read:                                                                           
               (b) A person who violates (a) of this section                                                                    
          and  who  has  not  been  previously  convicted  or                                                                   
          received a  suspended imposition of  sentence under                                                                   
          (1)   of  this  subsection   is  guilty   of  minor                                                                   
          consuming  or  in  possession   or  control.  Minor                                                                 
          consuming   or  in  possession  or  control   is  a                                                                 
          violation.  Upon conviction in the  district court,                                                                 
          the court                                                                                                             
               (1) may grant a suspended imposition of                                                                          
          sentence  under AS 12.55.085  and place  the person                                                                   
          on probation  for up to one year if  the person has                                                                   
          not been  convicted of a violation  of this section                                                                   
          previously; among the  conditions of probation, the                                                                   
          court  shall,  with  the  consent  of  a  community                                                                   
          diversion  panel, refer  the person  to the  panel,                                                                   
          and  require the person  to comply with  conditions                                                                   
          set by the panel, including  counseling, education,                                                                   
          treatment, community  work, and payment of fees; in                                                                   
          this paragraph,  "community diversion  panel" means                                                                   
          a youth court or other  group selected by the court                                                                   
          to  serve  as  a sentencing  option  for  a  person                                                                   
          convicted under this section; or                                                                                      
                    (s) shall impose a fine of at least $200                                                                    
          but not  more than $600,  shall require  the person                                                                   
          to attend alcohol information  school if the school                                                                   
          is  available,  and   shall  place  the  person  on                                                                   
          probation  for up  to one  year under  (e) of  this                                                                   
          section;  the court  may suspend  a portion  of the                                                                   
          fine  imposed  under  this paragraph  that  exceeds                                                                   
          $200  if   the  person  is  required   to  pay  for                                                                   
          education or  treatment required under  (e) of this                                                                   
     Page 1, line 4:                                                                                                            
          Delete "Section 1"                                                                                                    
          Insert "Sec. 2"                                                                                                       
     Renumber the following bill sections accordingly.                                                                          
     Page 1, line 9, following "section.":                                                                                      
          Insert "Repeat minor  consuming or in possession or                                                                 
          control is a violation."                                                                                            
     Page 2, following line 15:                                                                                                 
          Insert new bill sections to read:                                                                                     
     "*Sec.  4. AS 04.16.050(l)  is amended  by adding  a new                                                                   
     paragraph to read:                                                                                                         
               (4) "violation" has the meaning given in AS                                                                      
     11.81.900  and the penalties  that are provided  in this                                                                   
     *Sec. 5.  The uncodified law  of the State of  Alaska is                                                                   
     amended by adding a new section to read:                                                                                   
          LEGISLATIVE RECOGNITION OF EFFECT OF DEFINITION.                                                                      
     The legislature recognizes that                                                                                            
               (1) the definition of "violation" in AS                                                                          
     11.81.900(b)(63)  provides that  persons charged  with a                                                                   
     violation  are not  entitled to  counsel or  a trial  by                                                                   
     jury; and                                                                                                                  
               (2)   notwithstanding    the   definition   of                                                                   
     "violation"  in  AS  11.81.900(b)(63),  persons  charged                                                                   
     with a  first offense minor  consuming or  in possession                                                                   
     or  control  or  with  repeat   minor  consuming  or  in                                                                   
     possession  or control under  AS 04.16.050  are entitled                                                                   
     to counsel  and a  trial by jury  under the  decision of                                                                   
     the Alaska Court of Appeals  in State v. Auliye, 57 P.3d                                                                   
     711 (Alaska App. 2002)."                                                                                                   
     Renumber the following bill sections accordingly.                                                                          
Co-Chair Hawker OBJECTED for DISCUSSION.                                                                                        
Representative Gara explained  that the amendment would clear                                                                   
up whether  the first two  convictions would be  considered a                                                                   
crime. He  did not want a young  person to be charged  with a                                                                   
crime   for   the  first   two   violations.   He   expressed                                                                   
4:52:23 PM                                                                                                                    
Co-Chair Hawker  queried the position  of the sponsor  on the                                                                   
amendment. Ms. Pierson stated  that Representative Ramras did                                                                   
not support the amendment. She  spoke to the sponsor's desire                                                                   
to keep the bill clean regarding  the minor consuming statute                                                                   
and his feeling that the amendment could cloud the issue.                                                                       
4:53:17 PM                                                                                                                    
DOUG WOOLIVER, ADMINISTRATIVE  ATTORNEY, ALASKA COURT SYSTEM,                                                                   
understood the desire  to have the statute clear  so that the                                                                   
courts would understand  that the first two  offenses are not                                                                   
criminal  offenses. He  stated  that the  law  itself is  not                                                                   
unclear  and that  the court  will  not count  the first  two                                                                   
offenses as  crimes. He acknowledged  that the  defendants do                                                                   
not always know that.                                                                                                           
Mr. Wooliver declared that the  concern about adding the word                                                                   
"violation"  is its definition  in statute;  this offense  is                                                                   
contrary  to  that  definition  in almost  all  respects.  He                                                                   
pointed out that  adding the word "violation" would  not be a                                                                   
simple  fix and  judges  agree that  an  additional layer  of                                                                   
confusion would be added. The  definition of "violation" is a                                                                   
crime  that is  punishable only  by  a fine,  which does  not                                                                   
apply  to  the  statute.  The  definition  also  includes  an                                                                   
offense for which  the defendant does not get  counsel, which                                                                   
also does  not apply.  Another definition  is an offense  for                                                                   
which the  defendant is not entitled  to a jury  trial, which                                                                   
also does not apply.                                                                                                            
Mr.  Wooliver stated  that the  courts  were concerned  about                                                                   
adding a definition that in all  respects is contrary to what                                                                   
the  bill actually  does.  He agreed  with  the drafter  that                                                                   
technically the offense would  be a violation, but calling it                                                                   
a  violation  creates  a  lot of  confusion  because  of  the                                                                   
definition. He pointed out that  the courts have been dealing                                                                   
with minor consuming issues in  the legislation for some time                                                                   
and thought the statute was close to working.                                                                                   
Co-Chair Hawker  asked for  clarification regarding  what was                                                                   
meant by  the "host  of judges" who  had been consulted.  Mr.                                                                   
Wooliver replied  that he routinely  asked for  comments from                                                                   
judges  regarding   the  possible   impact  of   legislation.                                                                   
Comments regarding HB 98 had indicated  concerns about adding                                                                   
Co-Chair Hawker  asked whether  he meant that  seated members                                                                   
of the  Alaska bench  have confided  that they have  examined                                                                   
the language  and expressed concerns regarding  their ability                                                                   
to  implement the  language. Mr.  Wooliver  responded in  the                                                                   
4:56:54 PM                                                                                                                    
Representative  Gara admitted frustration  in not  having the                                                                   
judges present  to be questioned.  Mr. Wooliver  replied that                                                                   
the   judges  disagreed   with   him  from   time  to   time.                                                                   
Representative  Gara wondered  how the  language of  the bill                                                                   
was developed.  He felt that  the statute language  should be                                                                   
clearer. He opined that the issue was simple.                                                                                   
Representative  Joule wondered  whether using language  about                                                                   
intent would clarify the issue.                                                                                                 
Co-Chair Hawker  MAINTAINED his OBJECTION to  Amendment 1. He                                                                   
felt that  the court  system should  speak to  Representative                                                                   
Gara's office about his concerns.                                                                                               
Representative  Kelly asked for  clarification. He  felt that                                                                   
the  language needed  revisiting.  He suggested  that  minors                                                                   
might misinterpret  the law upon  reading it,  but summarized                                                                   
that he did not have a problem with the existing language.                                                                      
5:00:35 PM                                                                                                                    
Representative Gara emphasized  that the law is not clear. He                                                                   
reiterated  concerns  that  a  minor  would  think  they  had                                                                   
committed a  crime. He asked  whether the following  language                                                                   
would work: "Minor  consuming or in possession  or in control                                                                   
is not  a crime." Ms. Pierson  pointed out that  the language                                                                   
should  make  it  clear  that only  first  and  second  minor                                                                   
consuming was meant.                                                                                                            
Representative  Gara referred to  the language regarding  the                                                                   
first  and  second  convictions;  he  queried  his  suggested                                                                   
language: "Minor  consumer or in possession or  in control is                                                                   
not a crime." Mr. Wooliver stated  his willingness to work on                                                                   
the  language  with counsel.  Representative  Gara  requested                                                                   
viable language that could be used on the floor. Ms. Pierson                                                                    
stated that the sponsor would not have a problem with                                                                           
language that would work for everyone.                                                                                          
Mr. Wooliver noted that he would continue to work with                                                                          
counsel on the language.                                                                                                        
5:03:26 PM                                                                                                                    
Co-Chair Hawker MAINTAINED his OBJECTION to Amendment 1.                                                                        
Representative Gara WITHDREW Amendment 1.                                                                                       
Co-Chair Hawker MOVED to ADOPT Amendment 2, 6-LS0051\A.5,                                                                       
Luckhaupt, 4/2/092 (copy on file):                                                                                              
Page 1, line 1, following "consuming;":                                                                                         
Insert "relating to penalties for violations of limitations                                                                     
on possessing, sending, shipping, transporting, or bringing                                                                     
alcoholic beverages to, soliciting or receiving orders for                                                                      
delivery of alcoholic beverages to, and the manufacture,                                                                        
sale, offer for sale, barter, traffic, or possession of                                                                         
alcoholic beverages in, a local option area;"                                                                                   
     Page 2, following line 15:                                                                                                 
          Insert new bill sections to read:                                                                                     
     "* Sec. 3. AS 04.16.200(h) is amended to read:                                                                             
          (h) Upon conviction of a class C felony under (b)                                                                     
     or (e)(2) or (3) of this section, the court                                                                                
          (1) shall impose a fine of not less than                                                                              
     $10,000 and a minimum sentence of imprisonment of                                                                          
          (A) 120 days if the person has not been previously                                                                    
     convicted [ONCE];                                                                                                          
       (B) 240 days if the person has been previously                                                                           
     convicted once [TWO TIMES];                                                                                                
       (C) 360 days if the person has been previously                                                                           
     convicted two [THREE] or more times;                                                                                       
               (2) may not                                                                                                      
          (A) suspend execution of sentence or grant                                                                            
     probation except on the condition that the person                                                                          
          (i) serve the minimum imprisonment under (1) of                                                                       
     this subsection; and                                                                                                       
          (ii) pay the minimum fine required under (1) of                                                                       
     this subsection; or                                                                                                        
          (B) suspend imposition of sentence.                                                                                   
     * Sec. 4. The uncodified law of the State of Alaska is                                                                     
     amended by adding a new section to read:                                                                                   
          APPLICABILITY. AS 04.16.200(h), as amended by sec.                                                                    
     3 of this Act, applies to an offense occurring on or                                                                       
    after the effective date of this Act. References to                                                                         
    previous convictions in sec. 3 of this Act apply to                                                                         
     convictions occurring before, on, or after the                                                                             
     effective date of this Act."                                                                                               
     Renumber the following bill section accordingly.                                                                           
Vice-Chair Thomas OBJECTED.                                                                                                     
Co-Chair Hawker shared that the  language in the amendment is                                                                   
linked to  another bill in  committee related  to limitations                                                                   
on alcohol importation.  He reported that he  had spoken with                                                                   
the co-chair of  the committee, who indicated that  he had no                                                                   
problem with  the amendment  as long  as legal counsel  could                                                                   
provide assurances.                                                                                                             
ANNE CARPENETI,  ASSISTANT ATTORNEY  GENERAL, LEGAL  SERVICES                                                                   
SECTION-JUNEAU,   CRIMINAL  DIVISION,   DEPARTMENT  OF   LAW,                                                                   
testified  that the  amendment attempts  to address  previous                                                                   
mistakes  in SB 265.  The intent  of the  legislation was  to                                                                   
adopt mandatory  minimum penalties for bootlegging  that were                                                                   
the   same  as   mandatory   minimums  for   drunk   driving.                                                                   
Unfortunately,  the definition  of "previously convicted  for                                                                   
bootlegging"  is  different  than for  the  term  "previously                                                                   
convicted for drunk driving."  In terms of felony bootlegging                                                                   
at  least, the  legislation passed  did  not do  what it  was                                                                   
intended to do.                                                                                                                 
Ms. Carpeneti stated that Amendment  2 would make the repair.                                                                   
She reported that  she had spoken with  Representative Herron                                                                   
and assured him regarding the language.                                                                                         
5:07:19 PM                                                                                                                    
Representative  Gara  wondered   about  a  concern  with  the                                                                   
underlying  bill related  to rural Alaska.  He asked  whether                                                                   
Representative Herron objected  to a portion of the bill. Co-                                                                   
Chair Hawker answered yes. He  reiterated that Representative                                                                   
Herron  was  not  concerned  about   the  provisions  in  the                                                                   
Representative  Gara asked  for  clarification regarding  how                                                                   
the amendment  corrects the bill. Ms. Carpeneti  replied that                                                                   
the amendment  adopts the same mandatory minimum  penalty for                                                                   
first-time  felony bootlegging  and  first-time felony  drunk                                                                   
Representative Gara  felt that the  crimes were not  equal in                                                                   
weight. He felt that the first-time  $10,000 penalty plus 120                                                                   
days  in jail  might  not be  appropriate  for a  bootlegging                                                                   
offense.  Ms.  Carpeneti  replied that  bootlegging  has  had                                                                   
negative consequences  in rural  communities that  have voted                                                                   
to be dry or  damp. She stressed that both  issues have large                                                                   
effects on communities.                                                                                                         
5:11:55 PM                                                                                                                    
Representative   Joule   agreed   with  the   language   with                                                                   
reservations.    He   expressed    concern   regarding    the                                                                   
disproportionate amount of rural  Alaskan males in the prison                                                                   
system. He  shared that  his community  (Kotzebue) is  a damp                                                                   
community,  but  bootlegging is  not  legal.  Alcohol can  be                                                                   
imported  and   consumed,  but  not  sold.  He   described  a                                                                   
community less than 200 miles  away that can import, consume,                                                                   
and sell  alcohol legally. He  stated concerns  about pushing                                                                   
communities into  going wet. He understood the  complexity of                                                                   
the problems,  but worried  that at  some point people  could                                                                   
figure out that  voting to go wet would release  the males in                                                                   
5:14:44 PM                                                                                                                    
Representative Gara  deferred to rural legislators  regarding                                                                   
the scope  of the  problem and  the penalties and  questioned                                                                   
the felony  level for  first-time bootlegging. Ms.  Carpeneti                                                                   
explained how the  current law works. The state  has to prove                                                                   
that the  alcohol was  brought in for  the purposes  of sale.                                                                   
There  is  also  a presumption  that  can  be  rebutted  that                                                                   
bringing in  more than 10.5  liters of distilled  spirits, 24                                                                   
liters  of wine,  or 12  gallons  of malt  liquor amounts  to                                                                   
transporting with the intent to sell.                                                                                           
5:16:39 PM                                                                                                                    
Ms. Carpeneti  continued that  SB 265  included that  a third                                                                   
conviction  of bootlegging  would  be a  Class  C felony  and                                                                   
smaller  amounts   would  be  a  Class  A   misdemeanor.  She                                                                   
indicated  that  past  support   for  the  measure  by  rural                                                                   
representation  had prompted  submission of  the bill  by the                                                                   
Representative Foster  thought there was not  disincentive to                                                                   
bootleg because of high profits.                                                                                                
Vice-Chair Thomas  spoke to past  support from  rural members                                                                   
for the provision.                                                                                                              
Co-Chair  Hawker  queried the  sponsor's  position  regarding                                                                   
Amendment  2. Ms. Pierson  replied that  the sponsor  did not                                                                   
have a problem with the amendment.                                                                                              
Vice-Chair  Thomas WITHDREW  his  OBJECTION.  There being  NO                                                                   
further  OBJECTION,  it was  so  ordered.   Amendment  2  was                                                                   
5:20:17 PM                                                                                                                    
Representative  Gara asked  if his  proposed language  "minor                                                                   
consuming or in  possession or control is not  a crime" would                                                                   
successfully  say that  the first and  second violations  are                                                                   
not a crime.                                                                                                                    
JERRY  LUCKHAUPT,  LEGISLATIVE  COUNCIL,  DIVISION  OF  LEGAL                                                                   
SERVICES, testified that he agreed  with the concept that the                                                                   
offense  should  be  denominated.  He pointed  out  that  the                                                                   
legislature  identifies  every   type  of  criminal  statute.                                                                   
However, the  offenses are  violations; the  word is  used in                                                                   
Title  IV for  any  non-criminal offense  dealt  with in  the                                                                   
criminal  justice  system.  He  did not  understand  why  the                                                                   
magistrates had  a problem. He  stated concerns  about saying                                                                   
the offense  is not  a crime,  including that  they would  be                                                                   
considered a  civil offense, necessitating litigation  of all                                                                   
the issues again.                                                                                                               
Representative  Gara noted that  there are only  two offenses                                                                   
in  the state,  civil and  criminal.  He asked  if there  was                                                                   
statute  language  that  the offense  was  a  violation.  Mr.                                                                   
Luckhaupt responded  that it  does not say  the offense  is a                                                                   
Representative  Gara asked  whether the  offenses were  being                                                                   
interpreted as a  violation even though the  statute does not                                                                   
say it that way. Mr. Luckhaupt  responded in the affirmative.                                                                   
5:23:59 PM                                                                                                                    
Representative Gara  stated that he  only wanted to  say that                                                                   
minor consuming  is not a crime,  which does not add  or take                                                                   
away  the  word.  He queried  objections  to  saying  "not  a                                                                   
Co-Chair   Hawker  questioned   the  productiveness   of  the                                                                   
5:26:02 PM                                                                                                                    
Representative Kelly stated that  he was comfortable with the                                                                   
Co-Chair  Hawker agreed  that he would  support an  amendment                                                                   
with both Representative Gara and the sponsor's name on it.                                                                     
Co-Chair Hawker noted the zero fiscal notes.                                                                                    
Vice-Chair  Thomas  MOVED to  report  CSHB  98 (FIN)  out  of                                                                   
Committee   with    individual   recommendations    and   the                                                                   
accompanying fiscal  notes. There being NO OBJECTION,  it was                                                                   
so ordered.                                                                                                                     
CSHB  98 (FIN)  was  REPORTED  out of  Committee  with a  "no                                                                   
recommendation"  and with  a new  zero fiscal  note from  the                                                                   
Department  of Public  Safety  and two  previously  published                                                                   
fiscal notes: FN1 (CRT), FN2 (LAW).                                                                                             

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