Legislature(2009 - 2010)BELTZ 211

04/06/2009 01:30 PM Senate JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved CSSB 148(JUD) Out of Committee
Moved CSSB 85(JUD) Out of Committee
Moved CSSB 110(JUD) Out of Committee
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
                SB 110-PRESERVATION OF EVIDENCE                                                                             
2:18:22 PM                                                                                                                    
CHAIR FRENCH announced the consideration  of SB 110 and asked for                                                               
a motion to adopt work draft  committee substitute (CS) \E as the                                                               
working document.                                                                                                               
SENATOR  THERRIAULT moved  to adopt  work  draft CS  for SB  110,                                                               
labeled  26-LS0560\E.  There being  no  objection  version E  was                                                               
before the committee.                                                                                                           
CHAIR FRENCH said Ms. Smith will  go through the changes and then                                                               
Ms.  Carpeneti  will  discuss some  amendments  proposed  by  the                                                               
Department of Law.                                                                                                              
CINDY  SMITH,  Staff  to  Senator  French,  stated  that  the  CS                                                               
includes the following changes:                                                                                                 
   • Throughout the bill anytime a defendant is referred to an                                                                  
     adjudicated juvenile is referred to as well.                                                                               
   • Page 2, lines 11 and 12, subsection (b), adds clarifying                                                                   
     language that an agency shall follow written policies in                                                                   
     making decisions on what evidence it would or would not                                                                    
   • Page 3, line 1, the conjunction "and" is inserted before                                                                   
     paragraph (3) to correct the grammar.                                                                                      
   • Page 3, lines 19, and 20, subsection (h), adds provisions                                                                  
     providing immunity from civil liability. DOL will likely                                                                   
     suggest substitute language, Ms. Smith said.                                                                               
   • Page 4, at the request of the court the ex officio task                                                                    
     force position from the Alaska Supreme Court is eliminated.                                                                
2:21:01 PM                                                                                                                    
CHAIR  FRENCH  highlighted  the  letter  from  the  Alaska  Peace                                                               
Officers Association  opposing the bill  and the letter  from the                                                               
Alaska Women's Lobby  supporting SB 110. These  letters have come                                                               
in since the last hearing.                                                                                                      
CHAIR FRENCH  asked Ms. Carpeneti  to explain the  amendments DOL                                                               
is proposing.                                                                                                                   
ANNE  CARPENETI,  Attorney,  Civil Division,  Department  of  Law                                                               
(DOL),  expressed  appreciation  for  the  cooperation  from  the                                                               
sponsor and his staff in working on SB 110.                                                                                     
CHAIR  FRENCH returned  he sees  DOL  as a  partner because  this                                                               
won't work without cooperation.                                                                                                 
SENATOR MCGUIRE moved Amendment 1.                                                                                              
CHAIR FRENCH objected for discussion purposes.                                                                                  
                          AMENDMENT 1                                                                                       
     OFFERED IN THE SENATE                                                                                                      
          TO: SB 110                                                                                                            
     Page 4, following line 3:                                                                                                  
          Insert new bill sections to read:                                                                                     
     * Sec. 2. AS 44.41.035(g) is amended to read:                                                                            
          (g) A person from whom a sample has been                                                                              
     collected under this section                                                                                               
               (1) may inspect and obtain a copy of the                                                                     
          identification    data   regarding    the   person                                                                    
          contained    within    the   DNA    identification                                                                    
          registration system; and                                                                                          
               (2)  may  request  the Department  of  Public                                                                
          Safety  to  destroy  the material  in  the  system                                                                
          regarding   the   person  under   the   provisions                                                                
          described in (i) of this section.                                                                                 
     * Sec. 3. AS 44.41.035(i) is amended to read:                                                                            
          (i) The Department of Public  Safety shall [, UPON                                                                    
     RECEIPT OF A COURT ORDER,]  destroy the material in the                                                                    
     system relating to  a person or minor  upon the written                                                                
     request  of the  person  or minor,  if  the request  is                                                                
     accompanied  by  a  certified copy  of  a  court  order                                                                
     indicating that  [The COURT SHALL  ISSUE THE  ORDER IF]                                                                
     the person's or minor's DNA  was included in the system                                                                    
          (1)(b)(1) or  (2) of this  section, and  the court                                                                
     order establishes [DETERMINES] that                                                                                    
               (A)  the  conviction   or  adjudication  that                                                                    
          subjected  the person  to  having  a sample  taken                                                                    
          under this section was [IS] reversed; and                                                                         
               (B) the person                                                                                                   
                    (i)     was     [IS]    not     retried,                                                                
               readjudicated,  or  convicted or  adjudicated                                                                    
               for  another  crime  that requires  having  a                                                                    
              sample taken under this section; or                                                                               
                    (ii) after retrial, was [IS] acquitted                                                                  
               of the crime or  after readjudication for the                                                                  
               crime,   was  [IS]   not   found   to  be   a                                                                
               delinquent,  and was  [IS]  not convicted  or                                                                
               adjudicated for  another crime  that requires                                                                    
               a sample under this section;                                                                                     
          (2)(b)(6)  of this  section, and  the court  order                                                              
     establishes [DETERMINES] that                                                                                          
               (A) the person  arrested was released without                                                                    
          being charged; [OR]                                                                                                   
               (B)   the  criminal   complaint,  indictment,                                                                    
          presentment,  or information  for the  offense for                                                                    
          which the  person was arrested was  dismissed, and                                                                    
          a criminal complaint,  indictment, presentment, or                                                                    
          information  for an  offense requiring  submission                                                                    
          of a DNA sample was [IS] not refiled; or                                                                      
               (C)  the person  was  found by  the trier  of                                                                
          fact to  be not  guilty of  the offense  for which                                                                
          the person  was arrested and was  not convicted of                                                                
          another  offense  requiring  submission of  a  DNA                                                                
          sample under (b)(1) or (2) of this section.                                                                       
     *  Sec. 4.  AS 44.41.035  is  amended by  adding a  new                                                                  
     subsection to read:                                                                                                        
          (r) A DNA sample collected or placed in the DNA                                                                       
     identification registration  system, that was  taken or                                                                    
     retained in good faith, may  be used as provided by law                                                                    
     in a  criminal investigation. Evidence obtained  from a                                                                    
     match from  a data collection  system may be used  in a                                                                    
     criminal  prosecution if  the DNA  sample was  taken or                                                                    
     retained  in good  faith,  even if  the  DNA sample  is                                                                    
     later removed from  the DNA identification registration                                                                    
     Renumber the following bill sections accordingly.                                                                          
MS.  CARPENETI explained  that when  the legislature  changed the                                                               
law regarding DNA  collection, it provided a method  for a person                                                               
charged  or convicted  of a  crime to  get their  DNA out  of the                                                               
databank if the  charge or conviction is overturned.  What it did                                                               
not include is a  procedure for a person to get  their DNA out of                                                               
the  databank if  they are  later  acquitted of  the offense  for                                                               
which  they were  arrested  and charged.  The  FBI requires  that                                                               
procedure under CODIS  (Combined DNA Index System),  which is the                                                               
national   repository  for   DNA   profiles.  Accordingly,   this                                                               
amendment provides  the procedure for  a person who  is acquitted                                                               
to ask for their DNA to be removed from the databank.                                                                           
The  amendment   also  contains  a  good-faith   provision  which                                                               
provides that  DNA that  has not been  removed from  the databank                                                               
can be used if there is a valid hit on it.                                                                                      
CHAIR FRENCH observed that "It's  not a get-out-of-jail-free card                                                               
on a hit that is validly  derived while the information is in the                                                               
2:25:07 PM                                                                                                                    
CHAIR  FRENCH,  responding  to a  question,  clarified  that  Ms.                                                               
Carpeneti  is explaining  subsection  (r) on  the  third page  of                                                               
Amendment 1. He  asked if this adds to the  language covering the                                                               
individuals who can get their DNA removed from the databank.                                                                    
MS.  CARPENETI  replied  this  is  in  addition  to  the  statute                                                               
addressing the DNA databank. This  suggestion came from the crime                                                               
lab and CODIS has made a similar suggestion.                                                                                    
2:26:40 PM                                                                                                                    
MICHELLE   COLLINS,   DNA   Unit  Supervisor,   Statewide   Crime                                                               
Laboratory, Department  of Public Safety,  said she is  the state                                                               
representative  to  the FBI  on  matters  of  CODIS and  the  DNA                                                               
database. She described the amendment  as essential. When the DNA                                                               
law was changed  there was some talk about getting  an AG opinion                                                               
to address  removal of  DNA from  the database  when there  is an                                                               
acquittal, but  that did not  happen. When the lab  began putting                                                               
arrestee DNA  samples in the  national database, the FBI  said it                                                               
would  be  a violation  of  federal  law  to proceed  without  an                                                               
established procedure  for handling arrestees who  are acquitted.                                                               
In  order  to  submit  samples  to CODIS,  the  lab  revised  its                                                               
procedures  until it  could  seek an  amendment  to address  that                                                               
The laboratory hasn't needed to  use the good-faith clause but it                                                               
could  important, Ms.  Collins said.  It addresses  circumstances                                                               
where there is a  hit to a sample that should not  be, but is, in                                                               
the database. For  example, if DNA evidence from  a serial rapist                                                               
produces a  hit and matches the  sample from a person  who should                                                               
not be in  the database, the good-faith clause allows  the lab to                                                               
2:30:02 PM                                                                                                                    
CHAIR  FRENCH  removed  his  objection   and  seeing  no  further                                                               
objection, announced that Amendment 1 is adopted.                                                                               
SENATOR MCGUIRE moved Amendment 2.                                                                                              
CHAIR FRENCH objected for discussion purposes.                                                                                  
                          AMENDMENT 2                                                                                       
                [Original punctuation provided.]                                                                                
     OFFERED IN THE SENATE                                                                                                      
          TO: CSSB 110 LS0560\E                                                                                                 
      On page 3 at line 19, delete the language in (h) and                                                                      
     replace with                                                                                                               
     A  person may  not  bring a  civil  action for  damages                                                                    
     against  the  state  or political  subdivision  of  the                                                                    
     state, their  officers, agents, or employees,  or a law                                                                    
     enforcement agency, its officers,  or employees for any                                                                    
     failure to comply with the provisions of this section.                                                                     
MS.  CARPENETI  explained  that  the  amendment  addresses  civil                                                               
liability for  police departments  throughout the state  that may                                                               
not comply  with the law  with respect to retention  of evidence.                                                               
Police departments  will do  their best to  comply with  the law,                                                               
but it  would be very hard  on a small village  police department                                                               
to suffer civil liability for  a mistake they made. This language                                                               
was suggested  because it is  already in current law  for putting                                                               
in and taking  out of the database  domestic violence restraining                                                               
orders. It's a bit broader than the language that's in the bill.                                                                
2:32:12 PM                                                                                                                    
SENATOR THERRIAULT asked how it  squares with subsection (g) that                                                               
says the court  may order remedies if it finds  that evidence was                                                               
MS. CARPENETI  replied they address different  things. Subsection                                                               
(g) represents  what happens  in a  criminal prosecution  or post                                                               
conviction relief  that is pursued  by an individual  if evidence                                                               
is  lost.  Subsection  (h)  addresses  civil  liability     money                                                               
damages to the police department if  they make a mistake. This is                                                               
a  new requirement  for police  departments to  abide by  and DOL                                                               
doesn't think they should be held  for money damages if a mistake                                                               
is made.                                                                                                                        
CHAIR FRENCH observed that the  criminal defendant may enjoy some                                                               
benefit  from an  intentional destruction  of  evidence in  their                                                               
case, but  that criminal defendant  can't sue the  police officer                                                               
for money because of the event.                                                                                                 
2:34:17 PM                                                                                                                    
MS. CARPENETI said yes and  depending on the situation, the court                                                               
could  dismiss the  subsequent  prosecution,  but this  amendment                                                               
addresses money  damages for violation  of the Act by  the police                                                               
officer or his or her employer.                                                                                                 
CHAIR FRENCH  asked if it  would possibly include the  lawyers as                                                               
MS. CARPENETI answered yes.                                                                                                     
2:35:08 PM                                                                                                                    
CHAIR  FRENCH noted  that Ms.  Carpeneti said  there are  similar                                                               
provisions in  other places  of the  law; this  is a  blanket bar                                                               
even for intentional acts.                                                                                                      
MS. CARPENETI said  yes; AS 18.66 is the  limitation of liability                                                               
for police with respect to  putting domestic violence restraining                                                               
orders in and  out of the DV registry. Responding  to a question,                                                               
she said the Department of Law supports the amendment.                                                                          
CHAIR  FRENCH  withdrew  his  objection  and  seeing  no  further                                                               
objection, announced that Amendment 2 is adopted.                                                                               
2:35:53 PM                                                                                                                    
SENATOR MCGUIRE moved Amendment 3.                                                                                              
CHAIR FRENCH objected for discussion purposes.                                                                                  
                          AMENDMENT 3                                                                                       
                [Original punctuation provided.]                                                                                
     OFFERED IN THE SENATE                                                                                                      
          TO: CSSB 110 LS0560\E                                                                                                 
     At page 4, line 18, insert:                                                                                                
     (8) a representative of the State Crime Lab.                                                                               
MS.  CARPENETI related  that  the  bill adopts  a  task force  to                                                               
address  evidence  retention  issues  and  the  State  Crime  Lab                                                               
suggested  they  might make  helpful  contributions  to the  task                                                               
force. They do hold the evidence.                                                                                               
CHAIR FRENCH asked Mr. Dym if he supports Amendment 3.                                                                          
ORIN  DYM,  Forensic  Laboratory Manager,  Statewide  Crime  Lab,                                                               
Department of Public Safety, said he does support it.                                                                           
CHAIR  FRENCH  removed  his  objection   and  seeing  no  further                                                               
objection, announced that Amendment 3 is adopted.                                                                               
2:37:17 PM                                                                                                                    
JEFFERY  MITTMAN, Executive  Director, ACLU  of Alaska,  said the                                                               
ACLU  generally  supports  SB  110 but  has  some  concerns  with                                                               
Amendment 2  relating to the  database and  good-faith exception.                                                               
The  ACLU would  prefer an  automatic exclusion  of evidence  for                                                               
someone  who has  been acquitted  and would  like the  good-faith                                                               
provision limited. "But  generally we appreciate the  work of the                                                               
committee in addressing this important issue, he stated.                                                                        
BILL  OBERLY, Alaska  Innocence  Project, said  his only  problem                                                               
with  the amendments  to  SB 110  relate to  Amendment  2 to  the                                                               
extent  that it  deals with  intentional conduct.  I don't  think                                                               
that's  appropriately  a  part  of that  and  would  counsel  the                                                               
committee to  use caution in  allowing intentional conduct  to go                                                               
forward, he said.                                                                                                               
MR. OBERLY  suggested that  if the bill  doesn't get  signed this                                                               
year  the committee  might want  to breakout  the section  on the                                                               
task force  and pass  it now  and allow that  task force  time to                                                               
develop suggestions  before the Senate  deals with the  bill next                                                               
session. That would be the best use of everyone's time, he said.                                                                
2:39:57 PM                                                                                                                    
CHAIR  FRENCH said  it   unlikely  that the  bill will  be signed                                                               
into law  this year, but the  effect of that suggestion  would be                                                               
to jettison  all portions of the  bill except the task  force and                                                               
let it  move forward on its  own. Perhaps we should  talk further                                                               
about that before coming to a final decision, he said.                                                                          
With respect to the point on  Amendment 2, Senator French said he                                                               
shares  some  of that  concern.  An  intentional act  to  destroy                                                               
evidence  is  something the  committee  should  be very  cautious                                                               
about  indemnifying anyone  for. He  said he  can appreciate  Ms.                                                               
Carpeneti's  perspective  on  the domestic  violence  writs,  but                                                               
what's playing  out now on  a large  scale is the  withholding of                                                               
evidence and the horrible implications that can have on a trial.                                                                
CHAIR  FRENCH directed  attention to  Amendment 2  and asked  Ms.                                                               
Carpeneti if inserting the word  "intentional" before "failure to                                                               
comply"  would preserve  all immunity  for  negligent or  knowing                                                               
MS. CARPENETI said she believes so.                                                                                             
SENATOR THERRIAULT  questioned whether  unintentional"  isn't the                                                               
word he's  looking for. This  section protects the  employees and                                                               
the idea is to protect them from an unintentional act.                                                                          
CHAIR FRENCH  said he doesn't want  employees to be sued  if they                                                               
forget to  save the evidence or  even if they think  about it and                                                               
then don't remember to do it.                                                                                                   
SENATOR THERRIAULT returned that's unintentional.                                                                               
MS. CARPENETI said  she agrees it would achieve  the purpose. The                                                               
way the amendment reads is that  a person may not bring an action                                                               
for unintentional failure to comply.                                                                                            
2:43:08 PM                                                                                                                    
CHAIR FRENCH moved Amendment 4.                                                                                                 
                          AMENDMENT 4                                                                                       
     Insert: "unintentional" before the phrase "failure to                                                                      
      comply" in the third line of the previously adopted                                                                       
     Amendment 2.                                                                                                               
Finding no objection he announced that Amendment 4 is adopted.                                                                  
SENATOR MCGUIRE  directed attention to  Amendment 2 and  asked if                                                               
it  makes  a   material  difference  and  if   the  phrase  "with                                                               
provisions of this section" refers to the entire bill.                                                                          
MS. CARPENETI said she believes that's correct.                                                                                 
SENATOR MCGUIRE  mused that there's no  material difference other                                                               
than  adding  the  specific reference  to  officers,  agents,  or                                                               
MS. CARPENETI offered that with  the adoption of Amendment 2 more                                                               
parties  are   covered  and  DOL   sees  that  as   an  important                                                               
2:45:07 PM                                                                                                                    
SENATOR THERRIAULT referenced  paragraph (2) in Section  1 of the                                                               
bill and  asked if  the family  of a prisoner  who died  while in                                                               
prison could  make a motion  to have the deceased  prisoner's DNA                                                               
sample removed from the database.                                                                                               
MS. CARPENETI replied  that is not her  understanding. "While the                                                               
person remains  a prisoner  in the custody  of the  Department of                                                               
Corrections"  is language  that came  from Legislative  Legal. It                                                               
means that the  person is in jail  but it does not  mean that the                                                               
family of a  person could make a motion to  have the person's DNA                                                               
removed  from the  database. "I  think  any right  dies with  the                                                               
2:46:36 PM                                                                                                                    
SENATOR THERRIAULT  mentioned an article  he read about  a family                                                               
that cleared a  man who had died in prison  and commented that it                                                               
doesn't  seem as  though that  set  of circumstances  would be  a                                                               
remedy for the family.                                                                                                          
CHAIR FRENCH offered that it would  no longer be an obligation of                                                               
the  state to  preserve evidence  so that  the family  would have                                                               
access to it. "At some point the effort ends."                                                                                  
MS. CARPENETI  said that  is correct. At  a certain  point police                                                               
departments  have   to  clear  evidence  from   their  inventory.                                                               
"Keeping evidence after the defendant  has died seems unnecessary                                                               
to us."                                                                                                                         
SENATOR  THERRIAULT questioned  whether police  departments could                                                               
get rid of evidence under the language in the bill.                                                                             
CHAIR FRENCH returned  that as long as the person  is no longer a                                                               
prisoner a police department could get rid of the evidence.                                                                     
MS. CARPENETI stated agreement.                                                                                                 
SENATOR THERRIAULT noted  the references to the  crimes that this                                                               
law would  apply to and  asked if  there was a  particular reason                                                               
that sex trafficking and child kidnapping aren't included.                                                                      
MS. CARPENETI explained that the idea  was to start with the most                                                               
serious  offenses that  would typically  have  DNA evidence  that                                                               
would  be  relevant.  While  sexual   abuse  and  sexual  assault                                                               
typically do  have DNA evidence,  sex trafficking isn't  the type                                                               
of case where DNA would typically be relevant.                                                                                  
2:48:45 PM                                                                                                                    
CHAIR  FRENCH  said  his  sense  was  that  this  bill  would  be                                                               
difficult to get through the  process because it's a major change                                                               
in  the  way evidence  is  handled  in  this state.  Focusing  on                                                               
homicide,  rape in  the first  degree,  and sexual  assault of  a                                                               
minor in  the first degree  is a  measurable change. If  the bill                                                               
gains  momentum  and people  want  to  add  other crimes  we  can                                                               
discuss that, he said.                                                                                                          
MS.  CARPENETI  added  that  the bill  does  provide  that  these                                                               
obligations for police departments apply  if a person is indicted                                                               
for sexual  assault in the  first degree  or sexual abuse  in the                                                               
first  degree and  is subsequently  convicted of  lesser included                                                               
2:49:47 PM                                                                                                                    
CHAIR FRENCH solicited a motion to move the bill.                                                                               
SENATOR MCGUIRE moved to report CS  for SB 110, as amended today,                                                               
from  committee  with  individual  recommendations  and  attached                                                               
fiscal  note(s). There  being no  objection, CSSB  110(JUD) moved                                                               
from the Senate Judiciary Standing Committee.                                                                                   

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