Legislature(2009 - 2010)
04/02/2009 03:06 PM House FIN
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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 "consuming": 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 section." 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 section. *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 frustration. 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 confusion. 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 affirmative. 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 amendment. 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 driving. 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 prison. 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 department. 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 ADOPTED. 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 violation. 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 crime." Co-Chair Hawker questioned the productiveness of the conversation. 5:26:02 PM Representative Kelly stated that he was comfortable with the amendment. 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).