Legislature(2009 - 2010)CAPITOL 120

03/19/2010 01:00 PM House JUDICIARY

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* first hearing in first committee of referral
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Moved CSHB 366(JUD) Out of Committee
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
         HB 324 - FAILURE TO APPEAR; RELEASE PROCEDURES                                                                     
1:24:31 PM                                                                                                                    
CHAIR RAMRAS announced that the  first order of business would be                                                               
HOUSE BILL NO.  324, "An Act relating to the  crime of failure to                                                               
appear; relating  to arrest for  violating certain  conditions of                                                               
release; relating  to release before trial,  before sentence, and                                                               
pending  appeal;  relating  to material  witnesses;  relating  to                                                               
temporary release;  relating to release  on a petition  to revoke                                                               
probation;  relating to  the first  appearance before  a judicial                                                               
officer  after  arrest;  relating   to  service  of  process  for                                                               
domestic   violence   protective    orders;   making   conforming                                                               
amendments; amending  Rules 5  and 41,  Alaska Rules  of Criminal                                                               
Procedure,  and Rules  206  and 603,  Alaska  Rules of  Appellate                                                               
Procedure; and providing for an effective date."                                                                                
1:24:47 PM                                                                                                                    
SUSAN   MCLEAN,  Division   Director,  Legal   Services  Section,                                                               
Criminal  Division, Department  of Law  (DOL), after  noting that                                                               
there is  debate about  some provisions of  HB 324,  informed the                                                               
committee  that  the bail  statutes  haven't  been revised  since                                                               
1966.   Since the original  bail statute was enacted,  there have                                                               
been  additions  to it  such  that  there  are now  many  layers.                                                               
Therefore, the original goal of HB  324 is to streamline the bail                                                               
statutes into  a reasonable, user-friendly format.   She reminded                                                               
the committee  that a constitutional amendment  which gave rights                                                               
to crime  victims had been adopted.   As a result,  many parts to                                                               
the bail statute  were added.  However, those  didn't neatly fall                                                               
into the bail statutes.   Ms. McLean related that, therefore, the                                                               
primary  purpose of  HB 324  is to  streamline the  bail statutes                                                               
such  that  they  are  easier  to use  and  give  effect  to  the                                                               
constitutional rights  of crime victims  within the statutes.   A                                                               
major feature of  HB 324 is that  a person who is  charged with a                                                               
serious sex  offense will be  required to prove that  the release                                                               
conditions  prior  to  trial  will protect  the  victim  and  the                                                               
public.   The legislation will  also adopt standards  for persons                                                               
appointed  as  third party  custodians  for  persons released  on                                                               
bail.  Moreover,  HB 324 would prohibit a person  found guilty of                                                               
a serious  sex offense from  being released before  sentencing or                                                               
during  appeal  of  the conviction.    The  legislation  protects                                                               
victims of  domestic violence by establishing  standards that the                                                               
court must  (indisc.) before allowing  a perpetrator  of domestic                                                               
violence to  return to the  victim's residence.  Finally,  HB 324                                                               
would allow more time prior  to a dependent's first appearance in                                                               
court for  the police to  investigate, the prosecutor to  make an                                                               
informed  charging  decision,  to  bail arguments  to  be  better                                                               
presented on both  sides, and the victim to be  contacted so that                                                               
he/she may be present at the first bail hearing.                                                                                
1:28:08 PM                                                                                                                    
MS. MCLEAN then provided the  committee with a sectional analysis                                                               
of  HB 324.   Section  1 moves  the crime  of failure  to appear,                                                               
which currently  resides in Title 12  to Title 11.   The crime of                                                               
failure to appear  in Section 1 is similar to  existing law, save                                                               
that  the  failure  to  appear  statute  proposed  for  Title  11                                                               
addresses  the "Moffitt"  issue.   The elements  of the  crime of                                                               
failure  to appear  have  always  been understood  to  be that  a                                                               
person knowingly  failed to  appear in court,  and that  it's the                                                               
state's burden to  prove the person knew he/she had  to appear in                                                               
court.   In 2009 the Alaska  Court of Appeals decided  Moffitt v.                                                             
State which  said that there's a  second burden of proof  for the                                                             
state.  The  court found that implicit in  the legislative intent                                                               
was that  the state has to  also prove that the  defendant wasn't                                                               
prevented  from  the  hearing  by  circumstances  beyond  his/her                                                               
control.  In  response to questions, Ms. McLean  related that she                                                               
can't say  the Defense Bar  generally supports Section  1 because                                                               
there  may be  provisions that  the public  defender agrees  with                                                               
that  a private  attorney does  not.   Furthermore, the  American                                                               
Civil Liberties  Union (ACLU) wrote  a letter when  the companion                                                               
legislation was  presented in  the Senate.   She opined  that not                                                               
all  public  defenders  or private  attorneys  would  agree  with                                                               
everything in  the ACLU's letter.   However, she said  that there                                                               
are  some members  of the  Defense Bar  who perceive  this as  an                                                               
attempt  to  create new  law,  whereas  the administration  views                                                               
Section 1 as an attempt to  clarify the legislative intent of the                                                               
original law.                                                                                                                   
REPRESENTATIVE HOLMES  surmised then that DOL  believes Section 1                                                               
clarifies legislative  intent, although it's counter  to how it's                                                               
currently being interpreted by the courts.                                                                                      
MS. MCLEAN replied yes, adding  that this is a new interpretation                                                               
by the  courts.  She  noted that  there have been  conditions for                                                               
failure to appear for 45 years.                                                                                                 
REPRESENTATIVE  GRUENBERG recalled  that  the committee  recently                                                               
heard HB  386, which  included provisions making  it a  crime for                                                               
failure  to  appear  for  a   citation.    He  opined  that  [the                                                               
aforementioned provision in HB 386] is similar to HB 324.                                                                       
MS. MCLEAN  stated that there's always  been criminality attached                                                               
with failure  to appear in court.   In fact, she  said she didn't                                                               
know  of  any state  that  doesn't  have  some sort  of  criminal                                                               
sanction  for failure  to appear  in  court.   Furthermore, in  a                                                               
felony case in  Alaska, there is no court  without the defendant,                                                               
as the process can't go forward without the defendant.                                                                          
REPRESENTATIVE GRUENBERG  asked whether,  in any state,  there is                                                               
any   constitutional  impediment   to  going   forward  when   an                                                               
individual fails to appear in court.   He further asked if Alaska                                                               
could have such a statute.                                                                                                      
1:34:15 PM                                                                                                                    
MS.  MCLEAN  offered  her  understanding that  the  right  to  be                                                               
present at every stage of  a criminal proceeding is a fundamental                                                               
REPRESENTATIVE GRUENBERG posed a  scenario in which an individual                                                               
voluntarily  and  knowingly  absents himself/herself.    He  also                                                               
posed a scenario in which an individual walks out of the trial.                                                                 
MS. MCLEAN  pointed out  that there  is a  statute and  rule that                                                               
addresses  the  aforementioned.     If  an  individual  voluntary                                                               
absents  himself/herself  in  the  middle of  a  proceeding,  the                                                               
proceeding  would  go  forward   because  he/she  is  voluntarily                                                               
REPRESENTATIVE  GRUENBERG  then  posed  a scenario  in  which  an                                                               
individual is  present at  the date  the trial  is set,  but then                                                               
doesn't  attend [the  trial].   He  surmised  that currently  the                                                               
proceedings couldn't go  forward.  He then asked if  there is any                                                               
constitutional  reason  that there  couldn't  be  a statute  that                                                               
would allow the proceedings to go forward.                                                                                      
MS. MCLEAN offered her understanding  that the constitution would                                                               
require  that, at  the  point  of trial,  the  defendant must  be                                                               
REPRESENTATIVE  GRUENBERG   reiterated  his   question  regarding                                                               
whether such a statute could be  enacted.  He opined that in some                                                               
cases,  defendants do  what they  can  to disrupt  and delay  the                                                               
MS. MCLEAN informed the committee  that in Alaska there have been                                                               
several cases in which the  defendant wasn't present for the jury                                                               
question and the  case was overturned on appeal.   Therefore, she                                                               
characterized a  statute as proposed by  Representative Gruenberg                                                               
to be constitutionally on the edge.                                                                                             
1:37:58 PM                                                                                                                    
MS.   MCLEAN   informed  the   committee   that   Section  2   is                                                               
noncontroversial  as  it's a  conforming  amendment.   Section  2                                                               
conforms the language  in certain cases from  reasonable cause to                                                               
probable cause so that all of  the language in AS 12.25.030 reads                                                               
"probable cause".  Section 2  allows a law enforcement officer to                                                               
arrest an  individual for violation  of conditions of  release if                                                               
the  officer has  probable cause  to believe  the individual  has                                                               
violated conditions of  release.  The language  codifies what DOL                                                               
thought was  the law such that  an officer can arrest,  without a                                                               
warrant, for a  misdemeanor or felony committed  in the officer's                                                               
MS. MCLEAN  explained that  Section 3 adopts  a new  section that                                                               
describes release procedures for those  charged with crimes.  She                                                               
emphasized those  procedures are  similar to those  under various                                                               
sections of existing law.   However, there are a few differences,                                                               
including  that before  the third  and  subsequent bail  hearings                                                               
existing law  and HB 324  require that certain  prerequisites are                                                               
met.   The existing  prerequisites are  that 7  days has  to have                                                               
elapsed  between  bail  hearings  and  48  hours  notice  to  the                                                               
prosecuting attorney.   The legislation requires  48 hours notice                                                               
to the prosecuting attorney as well  as to anyone who posted bail                                                               
on behalf of  the defendant.  The legislation  specifies that the                                                               
individual  who  is  released  signs  a  release  agreement  that                                                               
describes   the   conditions   of  release   and   includes   the                                                               
individual's  promise  to abide  by  the  conditions of  release.                                                               
Furthermore, Section  3 eliminates the provision  in existing law                                                               
that allows  a judicial officer  to change, eliminate,  or change                                                               
conditions  of  release  at  any time  because  the  law  already                                                               
provides  this as  a  bail hearing.   He  noted  that allowing  a                                                               
judicial  officer to  change the  conditions  of release  without                                                               
following  the required  procedures  has the  potential of  being                                                               
unfair  to  the defendant,  the  prosecuting  authority, and  the                                                               
MS.  MCLEAN  moved  on  to  Section  4,  which  revises  the  law                                                               
regarding the release before trial  of an individual charged with                                                               
a crime.   Section  4 adopts standards  and condition  of release                                                               
for  specific  crimes and  melds  them  into  one statute.    She                                                               
pointed out that  AS 12.30.011(b) provides the  conditions that a                                                               
court may  impose on an  individual charged  with a crime  if, in                                                               
the court's discretion, the condition  will reasonably ensure the                                                               
individual's appearance and  the safety of other  victims.  Many,                                                               
if  not most,  of  these  conditions are  in  existing law  while                                                               
others are included in the federal  bail law.  She explained that                                                               
AS  12.30.011(c) describes  the various  circumstances the  court                                                               
should consider when deciding which  conditions are reasonable to                                                               
impose  on the  individual.   The aforementioned  are similar  to                                                               
existing law.   Ms. McLean acknowledged that there  has been some                                                               
suggestion  that   this  legislation  could   create  warrantless                                                               
searches.   However,  the legislation  mirrors  the existing  law                                                               
regarding conditions for release in  that a judicial officer with                                                               
a reasonable  suspicion may  require an  individual to  submit to                                                               
various things, such  as a breath test or a  search for drugs, as                                                               
conditions of bail.  Ms.  McLean specified that the provisions in                                                               
HB 324 don't  create new warrantless search  provisions, except a                                                               
change for the conditions of release  for an individual who is on                                                               
medication while  before the court.   In  such a case,  the court                                                               
can, as a  condition of release, require  the individual continue                                                               
to  take  their  medication.   The  aforementioned  is  aimed  at                                                               
mentally  ill  individuals  who don't  get  into  trouble  unless                                                               
they're not taking their medications.                                                                                           
1:43:07 PM                                                                                                                    
REPRESENTATIVE GATTO  asked if  the condition  of release  for an                                                               
individual who is on medication  would apply to those individuals                                                               
taking psychotropic drugs, antibiotics, and other drugs.                                                                        
MS.  MCLEAN  indicated  that  she   would  further  research  the                                                               
statutory language.                                                                                                             
REPRESENTATIVE GRUENBERG  pointed to  the language found  on page                                                               
6,  lines  24-25.    Representative   Gruenberg,  speaking  as  a                                                               
diabetic with a heart condition,  characterized it as a very good                                                               
provision.  He then offered  his assumption that the provision is                                                               
MS.  MCLEAN   responded  that  she  believes   the  provision  is                                                               
constitutional.  She added that  the Alaska constitutional law on                                                               
conditions of release  and probation is that  the conditions have                                                               
to be  reasonably related  to the  crime, or  to keep  the public                                                               
safe from that individual.                                                                                                      
REPRESENTATIVE GRUENBERG pointed out that  if he doesn't take his                                                               
insulin,  he's  only  hurting  himself.    He  opined  that  it's                                                               
important if  this provision is  simply requiring  the individual                                                               
to  keep himself/herself  safe by  taking their  medication.   In                                                               
response to  the argument  that individuals  have the  freedom to                                                               
not take their  insulin, he said he would like  this provision to                                                               
be applicable to those individuals  under the court jurisdiction.                                                               
He further expressed interest in  there being strong authority in                                                               
the record and debate that could be cited.                                                                                      
REPRESENTATIVE GATTO  pointed out that an  individual who doubles                                                               
his/her dose of insulin could cause harm to another individual.                                                                 
MS.  MCLEAN,  in  response  to  Representative  Gatto's  original                                                               
question, answered  that the  provision on  page 6,  lines 24-25,                                                               
doesn't  apply   only  to  psychotropic  drugs.     The  language                                                               
specifies:   "(16) order the  person to take medication  that has                                                               
been  prescribed  for  the  person  by  a  licensed  health  care                                                               
provider   with  prescriptive   authority;".     Therefore,   the                                                               
provision  would include  the situation  Representative Gruenberg                                                               
1:46:07 PM                                                                                                                    
MS. MCLEAN moved  on to Section 4(d), for which  there is a great                                                               
deal of debate.  This  subsection provides the evidentiary burden                                                               
a court must  apply in making a decision about  the release of an                                                               
individual.    The  burden  of  proof  has  always  been  on  the                                                               
prosecution   to  establish   that   particular  conditions   are                                                               
reasonable and  to ensure the  defendant's appearance as  well as                                                               
the  safety of  the victim  and others.   This  legislation would                                                               
change   that  by   creating  certain   offenses  or   procedural                                                               
situations.  For  example, in a situation in  which an individual                                                               
is charged with domestic violence  and has a prior conviction for                                                               
domestic  violence within  the  last five  years,  the burden  of                                                               
persuasion would  be shifted to  the defendant.   The legislation                                                               
creates a rebuttable presumption that  there are no conditions of                                                               
release  or monetary  conditions that  assure the  safety of  the                                                               
victim or the community or the  appearance of the defendant.  The                                                               
intent,  she  emphasized, is  simply  that  the burden  of  going                                                               
forward  changes.   Therefore, "the  context in  which the  court                                                               
begins the  inquiry about the  conditions of release  starts with                                                               
you're  in this  situation, explain  to me  what you're  going to                                                               
1:48:13 PM                                                                                                                    
CHAIR RAMRAS questioned how  the aforementioned proposed standard                                                               
would place  Alaska in terms of  bail reform.  How  strict is the                                                               
state becoming, he asked.  He  referred to the proposed change as                                                               
a significant pendulum shift.                                                                                                   
1:49:22 PM                                                                                                                    
MS. MCLEAN explained  that everyone in the State of  Alaska has a                                                               
right to  be released on  bail except those charged  with capital                                                               
offenses.   Therefore, everyone  in the State  of Alaska  has the                                                               
right  to be  released on  bail  because the  state doesn't  have                                                               
capital offenses.   The legislation specifies that  for those who                                                               
come before the  court charged with certain  offenses and certain                                                               
criminal history,  it's up to  the defense to explain,  and begin                                                               
the  dialogue for  the proposal  of  why the  defendant won't  be                                                               
dangerous to  the victim or cause  harm to the state.   The court                                                               
can listen to the defendant's  proposal, and the state could then                                                               
move  to a  rebuttable presumption  and show  the court  by other                                                               
evidence  why  the  defendant  will flee,  be  dangerous  to  the                                                               
victim, or cause  harm to the state.  "The  burden of proof never                                                               
leaves  the state,"  she stated.    She further  stated that  the                                                               
language  is  the  federal  law   and  has  been  challenged  and                                                               
confirmed  as constitutional  in every  circuit of  the U.S.   In                                                               
response  to  Chair  Ramras,  Ms. McLean  related  that  she  has                                                               
researched 25 states,  of which there are  some with presumptions                                                               
similar  to that  in HB  324.   There  are many  states, such  as                                                               
Arizona, in  which [the defendant]  doesn't receive bail  for the                                                               
situations described in HB 324.                                                                                                 
1:54:33 PM                                                                                                                    
REPRESENTATIVE  HOLMES,  referring to  the  language  on page  5,                                                               
lines 4-6,  asked whether  this means  that during  bail hearings                                                               
the  defense  or  the  prosecution  could  introduce  information                                                               
that's counter to the rape shield laws or medical illness.                                                                      
MS. MCLEAN  answered that  she wouldn't think  so because  of the                                                               
statutes that govern confidentiality.   However, she acknowledged                                                               
that  the  matter  hasn't  been  litigated.    The  goal  of  the                                                               
referenced provision is  that the prosecution or  the defense can                                                               
make their proof by proffer or hearsay.                                                                                         
1:55:59 PM                                                                                                                    
MS.  MCLEAN,  referring  to  Section  4,  pointed  out  that  the                                                               
preponderance  [of  evidence]  situation  is  proposed  when  the                                                               
defendant  is charged  with  an unclassified  felony,  a class  A                                                               
felony,  a sexual  felony, or  has  a previous  conviction for  a                                                               
felony and  less than five  years has elapsed.   The [rebuttable]                                                               
presumption would also  apply if the offense  was committed while                                                               
the defendant was on release  for another offense, for charges of                                                               
crime  involving   domestic  violence,   or  the   defendant  was                                                               
convicted in  the last five  years of a crime  involving domestic                                                               
violence.    Ms. McLean  reiterated,  "Again,  we're not  talking                                                               
about not  releasing people,  we're just  talking about  the idea                                                               
that  the defendants  should come  forward  with a  plan for  how                                                               
he/she will be reliable and safe."                                                                                              
1:57:19 PM                                                                                                                    
REPRESENTATIVE GRUENBERG directed attention  to page 7, lines 19-                                                               
21,  and explained  that the  burden of  proof includes  the twin                                                               
burdens of  going forward and  burden of persuasion.   Therefore,                                                               
it's the concept  of who has to proceed first  and the quantum of                                                               
proof.   Representative  Gruenberg opined  that the  reference to                                                               
preponderance  of evidence,  unless it's  specified otherwise  in                                                               
the legislation, implies the full burden of proof.                                                                              
MS. MCLEAN  clarified that all  the federal cases  construing the                                                               
statute  and DOL's  understanding  of the  statute  are that  the                                                               
accused individual has the burden  of going forward and the state                                                               
always has the burden of persuasion.                                                                                            
REPRESENTATIVE  GRUENBERG  opined  that the  legislation  is  not                                                               
written in a way that he has ever  seen it in Alaska.  He pointed                                                               
out that the language "preponderance  of evidence" deals with the                                                               
quantum of  evidence, not the burden  of going forward.   He then                                                               
explained   that   one   theory,  with   regard   to   rebuttable                                                               
presumptions, is  that if  evidence is  brought forward  to rebut                                                               
the presumption, then the presumption  goes away.  He opined that                                                               
this legislation doesn't  just make the presumption  go away, but                                                               
rather flips  the burden such  that "you  now have the  burden of                                                               
persuasion."   The defendant would  have to show, by  51 percent,                                                               
that the presumption is not true.                                                                                               
2:01:03 PM                                                                                                                    
MS.   MCLEAN   interjected   that  the   presumption   to   which                                                               
Representative  Gruenberg is  referring is  the presumption  that                                                               
there are  no conditions of  release that will assure  the safety                                                               
of the  victim.  She  suggested that  the defendant will  have to                                                               
show some  conditions of  release that assure  the safety  of the                                                               
community and the  victim.  She reminded the  committee that it's                                                               
a burden of going forward.                                                                                                      
CHAIR RAMRAS  surmised that  the policy  call with  HB 324  is in                                                               
regard  to with  whom  the burden  will rest.    Since 1966,  the                                                               
burden  has   largely  rested  on   the  court  system   and  the                                                               
prosecution.   The proposed modernization  of the  bail provision                                                               
is to flip  it.  He mentioned that there  are differences between                                                               
the  rural   and  the  urban   problems.    One  of   the  unique                                                               
characteristics of Alaska is that  it has people living in remote                                                               
rural communities and  these people can't drive to  a safe place.                                                               
There are  individuals who qualify  for bail and can  reenter the                                                               
community.   The test,  albeit different  for rural  areas versus                                                               
urban areas,  is for  who is most  vulnerable.   Therefore, Chair                                                               
Ramras said that  he will be using the rural  test and seeking to                                                               
satisfy safety for  victims and communities.  The  rural test, he                                                               
remarked, may  be less appropriate  for the  proposed presumption                                                               
and flipping  the standard to  the defendant,  while heavy-handed                                                               
for an urban application.                                                                                                       
2:05:02 PM                                                                                                                    
MS. MCLEAN pointed  out that the crimes of  domestic violence and                                                               
sexual  assault have  been  identified as  crimes  for which  the                                                               
desire is to focus the inquiry  on the subject of bail, such that                                                               
the court stops,  takes notice, and conducts the  dialogue from a                                                               
different point  of view.   The  dialogue being:   "You  are here                                                               
again for  assaulting your  wife.  You're  simply accused  of it,                                                               
but you  were convicted of  it last year.   Why should  I release                                                               
you back to  the village where there are 50  people and she can't                                                               
hide from you," she said.                                                                                                       
CHAIR RAMRAS reiterated  that it needs to be  a one-size-fits all                                                               
bail provision,  although the application  is for  two remarkably                                                               
different groups.                                                                                                               
REPRESENTATIVE GRUENBERG indicated a  belief that the legislation                                                               
could  include  conditions  for  the court  to  consider  in  the                                                               
determination.    The  conditions   could  address  the  need  to                                                               
safeguard the  victim while allowing  bail for the accused.   For                                                               
example, an  individual is on  trial in  Barrow for a  crime that                                                               
allegedly occurred in a village.   He opined that the court could                                                               
enter an order  prohibiting the [accused] from  leaving the trial                                                               
city, or returning to the village, as a condition of bail.                                                                      
2:06:59 PM                                                                                                                    
MS. MCLEAN  clarified that as  a condition  of bail on  a limited                                                               
basis,  the  court  could  enter an  order  specifying  that  the                                                               
accused can't have  contact with the victim or be  within 50 feet                                                               
of  the  victim.   The  language  relates  that [a  condition  of                                                               
release]  can be  that the  [accused] can't  travel to  a certain                                                               
location.    She  emphasized  that all  of  those  conditions  of                                                               
release already  can be  issued by the  court.   The legislation,                                                               
she reiterated, is trying to place a finer point on the focus.                                                                  
REPRESENTATIVE  GRUENBERG,  referring  to page  7,  lines  23-31,                                                               
pointed out  that the  categories are quite  different.   He then                                                               
provided the  committee with  an example  in which  the defendant                                                               
"Otto"  was  charged  with  one count  of  felony  possession  of                                                               
heroin.   The charge was  that he shot heroin  in his arm  on one                                                               
occasion.    Ultimately,  Otto  was  convicted.    Representative                                                               
Gruenberg  then posed  a scenario  in which  four years  and nine                                                               
months   later  Otto   was   charged   with  something   similar.                                                               
Representative  Gruenberg expressed  the need  to review  whether                                                               
it's appropriate  to flip the  burden in such  a case, a  case in                                                               
which there's no showing of any danger to anyone else.                                                                          
CHAIR  RAMRAS  asked  if the  aforementioned  scenario  would  be                                                               
similar to  an individual  who has  committed their  sixth felony                                                               
driving  under the  influence (DUI).    He opined  that he  would                                                               
focus on the  safety of the community and the  victim as the test                                                               
and  flip  the  presumption  away from  the  individual  who  has                                                               
committed the crime.                                                                                                            
REPRESENTATIVE   GRUENBERG  acknowledged   that   would  be   the                                                               
prosecutor's  argument.     However,   the  committee,   and  the                                                               
legislature, is determining whether  it's appropriate to flip the                                                               
burden of proof.                                                                                                                
2:10:47 PM                                                                                                                    
MS. MCLEAN  noted that  in most  cases the  possession of  a drug                                                               
wouldn't rise to  the level of a class A  felony.  Therefore, she                                                               
opined that  the intent is  "having a cutoff  at which you  say a                                                               
lesser felony doesn't count."                                                                                                   
REPRESENTATIVE GRUENBERG  clarified that  his problem  isn't with                                                               
subparagraph  (A)  on page  7,  lines  23-24,  but rather  he  is                                                               
addressing subparagraph (B)  on page 7, lines 25-28.   He further                                                               
clarified that he's merely flagging the issue.                                                                                  
REPRESENTATIVE HERRON expressed the  need to find balance because                                                               
it's bullies who have to be  in control.  Therefore, what happens                                                               
in  the   village  or  an   urban  area  are  the   same  because                                                               
[perpetrators] rarely go  out of the range  of their neighborhood                                                               
or village.                                                                                                                     
2:12:42 PM                                                                                                                    
MS.  MCLEAN, continuing  with Section  4, turned  the committee's                                                               
attention to  proposed AS  12.30.016, which  allows the  court to                                                               
impose  specific conditions  of  release  for specific  offenses,                                                               
which already  exist.   She said  that for  the most  part [those                                                               
conditions of  release] are similar  to or identical  to existing                                                               
law.  However,  subsection (f) on page 10,  lines 12-13, proposes                                                               
a new condition of release.                                                                                                     
REPRESENTATIVE GRUENBERG  asked if there is  a difference between                                                               
"reasonable suspicion" and  "probable cause".  If so,  is the use                                                               
of "reasonable suspicion"  on page 8, line 21, a  change from the                                                               
current law of "probable cause".                                                                                                
MS.  MCLEAN   clarified  that  there  is   a  difference  between                                                               
"reasonable  suspicion"  and  "probable  cause",  as  "reasonable                                                               
suspicion" reflects a  lower standard than "probable  cause".  In                                                               
further response  to Representative Gruenberg, Ms.  McLean stated                                                               
that this is how the law is currently written.                                                                                  
[Members then spoke briefly about a recent relevant case.]                                                                      
2:15:39 PM                                                                                                                    
MS. MCLEAN  added that unless  the court imposed  the conditions,                                                               
the  police  aren't  authorized  to  perform  the  conditions  of                                                               
release.  She clarified that it's  a situation in which the court                                                               
has  ordered  the  individual  to submit  [to  the  condition  of                                                               
release] because  there is reasonable  suspicion.   Returning the                                                               
committee's  attention to  Section 4(f),  Ms. McLean  pointed out                                                               
that it  specifies certain conditions  that the court  may impose                                                               
for an individual  charged with a sex offense,  which are similar                                                               
[to  existing law].   However,  the subsection  adds a  provision                                                               
such that  the court is permitted  to add a condition  of release                                                               
that  the  individual  isn't  allowed to  have  contact  with  an                                                               
individual under the  age of 18.  Furthermore,  the provision, as                                                               
in current law, requires the court  to ensure the victim has been                                                               
notified of any bail hearing, but  adds that for sex offenses the                                                               
victim  should be  allowed to  speak and  the court  consider the                                                               
victim's comments when determining conditions of release.                                                                       
MS. MCLEAN  moved on to Section  5, which adopts standards  for a                                                               
third-party custodian.   Current statute authorizes  the court to                                                               
require  a third  party  custodian to  watch  over an  individual                                                               
released  on  bail.   Section  5  requires  the court  to  obtain                                                               
information about  the proposed custodian, including  ties to the                                                               
community and the  relationship to the defendant.   The provision                                                               
establishes  some minimum  standards for  the custodian,  such as                                                               
the  custodian must  be able  to  keep the  defendant in  his/her                                                               
sight or  sound, the custodian  can't have a pending  charge, and                                                               
the custodian  isn't on probation for  a felony.  She  noted that                                                               
there  is some  dispute with  regard to  Section 5.   The  Alaska                                                               
Court System  expressed concern that  it wouldn't be  possible to                                                               
find third  party custodians who  meet the qualifications  of not                                                               
having  a misdemeanor  offense within  the past  five years  or a                                                               
felony within the past ten years.                                                                                               
CHAIR RAMRAS stated  his concurrence with that concern.   He then                                                               
asked how peace  officers are going to be aware  of or access the                                                               
specific bail conditions of individuals.                                                                                        
MS. MCLEAN  informed the  committee that  presently, in  the less                                                               
sophisticated communities,  when an  individual is  released from                                                               
jail, the court system provides the  police agency with a copy of                                                               
the conditions of  release.  The conditions are then  posted on a                                                               
clipboard so that all officers would  know.  She then related her                                                               
understanding that  the Alaska Court System,  in conjunction with                                                               
the  Departments of  Public  Safety and  Law,  are attempting  to                                                               
create  a   computerized  system  whereby  there   are  real-time                                                               
conditions of release when the court imposes them.                                                                              
2:20:16 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG directed  the committee's  attention to                                                               
the language on page 11, line 7, which read:                                                                                    
     is physically able to perform the duties of custodian                                                                      
     of the person;                                                                                                             
REPRESENTATIVE GRUENBERG  then expressed his concern  for whether                                                               
a  custodial would  be  mentally able  to  perform the  necessary                                                               
MS. MCLEAN acknowledged  that perhaps that should be  added.  She                                                               
added,  drawing  from her  experience,  that  it has  never  been                                                               
necessary  for a  third party  custodian to  stop the  individual                                                               
from violating the conditions of  release, rather the custodian's                                                               
duty is to report any violation.                                                                                                
2:21:45 PM                                                                                                                    
REPRESENTATIVE GRUENBERG  offered his  understanding that  it has                                                               
been difficult  to obtain third  party custodians, which  seem to                                                               
be used more  often in Alaska than elsewhere.   He mentioned that                                                               
he'd like information regarding  the current ability/inability to                                                               
obtain custodians and the impact HB 324 will have.                                                                              
CHAIR  RAMRAS related  his understanding  that an  individual who                                                               
received his/her  first DUI within  the last five  years wouldn't                                                               
be satisfactory as a custodian.                                                                                                 
MS. MCLEAN indicated  that's the case, and added  that this point                                                               
is being discussed with the Alaska Court System.                                                                                
CHAIR RAMRAS interjected that  the aforementioned is unacceptable                                                               
because there are some remarkable,  upstanding citizens who would                                                               
fall  into   this  category  of   individuals  who   wouldn't  be                                                               
satisfactory as a custodian under these proposed rules.                                                                         
2:23:49 PM                                                                                                                    
MS. MCLEAN  continued her sectional analysis,  and explained that                                                               
Section 6  amends the statutes addressing  the general conditions                                                               
of  release for  an  individual charged  with  a crime  involving                                                               
domestic violence by conforming to  the newly adopted sections of                                                               
HB  324.   Section  6  doesn't  include any  substantive  change.                                                               
Section 7 amends  the law that prohibits the  court from allowing                                                               
an individual  charged with a  crime involving  domestic violence                                                               
from returning to the home of  the victim.  In Williams v. State,                                                             
151 P.3d  460 (Alaska  App. 2006),  the court  said that  the law                                                               
allowing the court not to allow  anyone to return to the victim's                                                               
residence  during the  entire  pendency of  the  time was  overly                                                               
broad.   The  court  struck down  that  law as  unconstitutional.                                                               
Therefore,  Section 7  attempts  to limit  [the  condition] in  a                                                               
manner that's not overly broad  while giving a cooling off period                                                               
as well  as a  period to  assess the level  of dangerous.   Under                                                               
Section  7,  the court  isn't  allowed  to permit  an  individual                                                               
accused of  domestic violence to  return home for 20  days, which                                                               
is  the same  length  of time  as is  provided  for an  emergency                                                               
restraining  order.   After  the  20 days  has  elapsed, and  the                                                               
victim  consents,  it  will  be   allowed  if  the  offender  can                                                               
establish in the particular case  that he/she could return to the                                                               
victim's residence without posing any  danger to the victim.  She                                                               
said she didn't know of any opposition to Section 7.                                                                            
REPRESENTATIVE  GRUENBERG relayed  concern  as  it's possible  to                                                               
obtain a protective  order that's ex parte.  As  a family lawyer,                                                               
Representative Gruenberg  related that sometimes  individuals use                                                               
a  protective   order  to  bootstrap  themselves   into  custody.                                                               
Therefore, he  expressed the need  to ensure that  this provision                                                               
wouldn't  prohibit a  court from  adjusting  bail conditions,  if                                                               
necessary to  prevent misuse.  He  noted that it has  happened on                                                               
more than one occasion.                                                                                                         
2:28:24 PM                                                                                                                    
REPRESENTATIVE   HERRON  inquired   as  to   the  definition   of                                                               
"residence" in Section 7.                                                                                                       
MS. MCLEAN  answered that  "residence" is  defined as  "where the                                                               
victim lives."                                                                                                                  
REPRESENTATIVE HERRON asked if that definition can be expanded.                                                                 
MS. MCLEAN  answered that  she didn't believe  so.   She reminded                                                               
the  committee that  the court,  as a  condition of  release, has                                                               
always had the  authority to not allow an individual  to have any                                                               
contact with the victim.   In fact, most often the aforementioned                                                               
is a condition  of release.  This provision  simply expresses the                                                               
desire for there to be a  period in which the victim doesn't have                                                               
to let  the [perpetrator] live with  the victim.  As  long as the                                                               
term  "residence"  is  narrowly  defined,  it  doesn't  create  a                                                               
problem in a  situation in which an individual living  in a group                                                               
home attacks his/her  caretaker.  Since the group  home isn't the                                                               
caretaker's  residence, the  [attacker] could  still live  there.                                                               
This provision,  she clarified,  is saying  that the  court can't                                                               
impose a  condition that allows  the individual to return  to the                                                               
victim's  residence.    She  offered   to  research  whether  the                                                               
definition could be expanded further.                                                                                           
[Chair Ramras passed the gavel to Vice Chair Dahlstrom.]                                                                        
REPRESENTATIVE  HERRON  explained  that  he  has  concern  for  a                                                               
situation in which a [perpetrator] can  be forbidden to go to the                                                               
[victim's]  residence and  has to  stay 50  feet away.   However,                                                               
[the perpetrator] could move into a  home of a family member that                                                               
is 100 feet away from the [victim's residence].                                                                                 
REPRESENTATIVE  GATTO questioned  whether  Ms. McLean  recommends                                                               
adding the language "or place  of business" following "residence"                                                               
[in Section 7].                                                                                                                 
MS.  MCLEAN characterized  adding  such  language as  "abundantly                                                               
sensible" and likely to survive  a constitutional challenge.  She                                                               
added that  generally that's part  of the conditions  of release,                                                               
although it's not included in the term "residence".                                                                             
[HB 324 was held over.]                                                                                                         

Document Name Date/Time Subjects
01 Hb366 Sponsor Statement.pdf HJUD 3/19/2010 1:00:00 PM
HB 366
02 HB366 Bill TRA CS v. E.pdf HJUD 3/19/2010 1:00:00 PM
HB 366
03 HB0366-1-1-031210-DOT-N.pdf HJUD 3/19/2010 1:00:00 PM
HB 366
04 HB366 Support.pdf HJUD 3/19/2010 1:00:00 PM
HB 366
05 HB366 HJUD Amendment #1.pdf HJUD 3/19/2010 1:00:00 PM
HB 366
01 HB324 HJUD Hearing Request.pdf HJUD 3/19/2010 1:00:00 PM
HJUD 3/22/2010 1:00:00 PM
HB 324
05 HB324 Court Records.pdf HJUD 3/19/2010 1:00:00 PM
HB 324
02 HB324 Bill v. A.pdf HJUD 3/19/2010 1:00:00 PM
HJUD 3/22/2010 1:00:00 PM
HB 324
03 HB324 Sectional v. A.pdf HJUD 3/19/2010 1:00:00 PM
HJUD 3/22/2010 1:00:00 PM
HB 324
04 Svobodney letter 3.10.10.pdf HJUD 3/19/2010 1:00:00 PM