Legislature(2017 - 2018)BUTROVICH 205

05/08/2018 04:00 PM RULES

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05:19:28 PM Start
05:20:13 PM HB312
05:50:09 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved SCS HB 312(RLS) Out of Committee
-- Testimony <Invitation Only> --
          HB 312-CRIMES AGAINST MEDICAL PROFESSIONALS                                                                       
5:20:13 PM                                                                                                                    
CHAIR MEYER announced consideration of HB 312 [version 30-                                                                      
LS1225\O was before the committee].  He said the discussion today                                                               
is about adding  other crime bills to HB 312  and the sponsor was                                                               
agreeable to talking about that.                                                                                                
REPRESENTATIVE KELLY moved to adopt  SCS HB 312(RLS), version 30-                                                               
CHAIR MEYER objected for discussion purposes.                                                                                   
REPRESENTATIVE   CLAMAN,  sponsor   of  HB   312,  Alaska   State                                                               
Legislature,   Juneau,   Alaska,   said  the   Senate   Committee                                                               
Substitute  for HB  312  reflects what  Alaskans  want in  public                                                               
safety issues and continues their  commitment to find ways to use                                                               
public safety dollars wisely. The sectional analysis followed.                                                                  
5:22:34 PM                                                                                                                    
Section 1  provides the legislative  intent stating that  the 48-                                                               
hour  hold on  defendants with  out-of- state  criminal histories                                                               
will  no longer  apply once  the assessment  tool includes  those                                                               
convictions with charges.                                                                                                       
Sections  2-7 address  the concepts  initially  introduced in  SB
146,  HB 291,  and HB  387  regarding the  attorney general  (AG)                                                               
scheduling controlled substances.                                                                                               
Section 2  designates the president  of the Board of  Pharmacy as                                                               
the chair of the Controlled Substances Advisory Committee.                                                                      
Section  3  makes  conforming  changes  to  Controlled  Substance                                                               
Advisory Committee enabling statute.                                                                                            
Section 4  adds a new  duty to the Controlled  Substance Advisory                                                               
Committee, which  is to advise  the attorney general on  the need                                                               
to schedule substances for emergency regulation.                                                                                
Section 5 allows  the attorney general to  schedule substances by                                                               
emergency regulation  and clarifies  that the  AG may  schedule a                                                               
substance  by  emergency  regulation  only if  the  substance  is                                                               
currently listed on the Federal Controlled Substance Schedule.                                                                  
REPRESENTATIVE CLAMAN commented that  the original version of the                                                               
bill didn't  place that  limit on the  AG's authority;  she could                                                               
have listed any  substance. The attorney general  shall also post                                                               
a  notice on  the  Alaska  online public  notice  system 60  days                                                               
before  the  effective  date  of  an  emergency  regulation  that                                                               
schedules  a  substance,  and the  notice  must  include  written                                                               
5:24:01 PM                                                                                                                    
Section  6  defines  "controlled  substances"  to  include  those                                                               
scheduled by the attorney general by an emergency regulation.                                                                   
Section  7  defines  "substance"  to  include  a  drug-controlled                                                               
substance  or immediate  precursor  in the  schedule  set out  in                                                               
statute  or  that  is  scheduled   by  the  attorney  general  by                                                               
emergency regulation.                                                                                                           
Sections 8&9  are the  part of  HB 312, which  is where  all this                                                               
started:   crimes  against   medical  professionals.   Section  8                                                               
establishes that  a peace officer  may arrest a person  without a                                                               
warrant  when the  peace officer  has probable  cause to  believe                                                               
that the person has committed an  assault in the fourth degree, a                                                               
misdemeanor, at  a health care  facility and that person  was not                                                               
seeking medical  treatment at the  facility or was  stable enough                                                               
for discharge.  He noted that  the police officer's  authority to                                                               
arrest  without a  warrant extends  here to  misdemeanors without                                                               
any  change.  The present  law  today  specifically allows  peace                                                               
officers  to arrest  for probable  cause for  any felony  assault                                                               
without a warrant.                                                                                                              
Section 9 establishes the definition of "health care facility."                                                                 
Sections 10-16  address out-of-state  convictions in  the context                                                               
of pretrial  release, an area in  which the public has  had a lot                                                               
of interest.                                                                                                                    
Section 10 allows the prosecution  additional time to demonstrate                                                               
that the release  of the person will not  reasonably assure their                                                               
appearance in court or the safety  of the community if the person                                                               
is to be held  up to 48-hours. They are allowed  a 48-hold if the                                                               
person  has an  out-of-state criminal  conviction or  charge that                                                               
has not been  used in determining the person's risk  level in the                                                               
risk assessment tool.                                                                                                           
5:26:03 PM                                                                                                                    
The  whole topic  of the  pretrial risk  assessment tool  and the                                                               
topic of  out-of-state felonies  is central  to issues  that have                                                               
been  under  discussion. They  have  learned  that giving  judges                                                               
unfettered discretion  in making  pretrial release  decisions was                                                               
not improving  public safety. Detailed analysis  of 20,000 Alaska                                                               
cases from 2014  - 2015, which was studied before  the passage of                                                               
any justice reform  legislation, showed that 37  percent of those                                                               
on pretrial release  were arrested for new  crimes. This historic                                                               
level of  new offenses while  on pretrial release was  simply not                                                               
REPRESENTATIVE CLAMAN  explained that  Alaska has a  long history                                                               
of restricted judicial discretion.  When judges were inconsistent                                                               
in their  felony sentencing decisions  from one judge  to another                                                               
and  from  one  region  to  another in  the  1960s  and  1970,  a                                                               
comprehensive sentencing reform structure  was enacted in 1980 to                                                               
ensure  more  consistent   sentences  and  established  mandatory                                                               
minimums  and  sentencing ranges  for  all  classes of  felonies.                                                               
Similarly, when  judges were too  lenient with DWI  offenders and                                                               
Mothers  Against Drunk  Driving  became much  more involved,  the                                                               
legislature  changed  the  laws   to  require  mandatory  minimum                                                               
sentences for  first time and  repeat offenders,  another example                                                               
of restricting judicial discretion.                                                                                             
This  bill and  the  existing justice  reform legislation  places                                                               
similar  limits on  judges'  discretion. The  good  news is  that                                                               
their  investment in  stronger  pretrial  supervision is  already                                                               
showing public safety improvements. Data  from April of this year                                                               
shows that  of the individuals  under pretrial  supervision, less                                                               
than 5 percent  had active arrest warrants.  That's a substantial                                                               
improvement from the  new offense rate of 37  percent when judges                                                               
had unfettered discretion.                                                                                                      
5:28:17 PM                                                                                                                    
Section 11 makes  conforming changes to clarify that  a judge may                                                               
order  a person  released  on  his own  recognizance  or upon  an                                                               
unsecured  bond unless  other provisions  of the  statute provide                                                               
Section 12 makes  conforming changes so that persons  who have an                                                               
out-of-state  criminal charge  or  conviction that  has not  been                                                               
used  in  determining  the  person's   risk  level  by  the  risk                                                               
assessment tool will not be required  to be released on their own                                                               
recognizance or upon an unsecured bond.                                                                                         
Section   13  changes   the  mandatory   release  on   their  own                                                               
recognizance for  low risk  class C  felonies to  presumptive own                                                               
recognizance  (OR).  Low  risk  misdemeanors  and  moderate  risk                                                               
misdemeanors remain  mandatory release on their  own recognizance                                                               
except  when  modified  by  out  of  state  criminal  history  as                                                               
described earlier.                                                                                                              
5:29:15 PM                                                                                                                    
REPRESENTATIVE  CLAMAN  commented  that  the  misdemeanor  crimes                                                               
against the person, misdemeanor  sex offenses, misdemeanor crimes                                                               
involving   domestic   violence,    misdemeanor   DWI   offenses,                                                               
misdemeanor   failure  to   appear   offenses,  and   misdemeanor                                                               
violation  of  conditions of  release  are  not included  in  the                                                               
mandatory release on their own  recognizance. So, all the violent                                                               
offenses  against the  person  are  not included  in  any of  the                                                               
mandatory release provisions.                                                                                                   
Section  14  makes  conforming   and  technical  changes  to  the                                                               
mandatory conditions of release.                                                                                                
Section 15  makes conforming  changes to  clarify that  the court                                                               
shall  consider out  of state  convictions  when determining  the                                                               
conditions of release.                                                                                                          
Section 16  changes the law  so that  when a defendant  who would                                                               
otherwise be mandatorily released on  his own recognizance has an                                                               
out-of-state  criminal  conviction  or  a  charge,  the  judicial                                                               
officer may  require monetary bail  upon a finding that  there is                                                               
clear  and  convincing evidence  that  other  conditions are  not                                                               
sufficient to ensure public safety.                                                                                             
5:30:26 PM                                                                                                                    
Section 17  addresses the bills introduced  as SB 149 and  HB 294                                                               
regarding  surcharges for  criminal  offenses  and increases  the                                                               
felony surcharge upon conviction from  $100 to $200. It increases                                                               
the surcharge  for a  misdemeanor DUI offense  from $75  to $150;                                                               
increases the  surcharge for  a misdemeanor or  a violation  of a                                                               
municipal  ordinance  if  a  sentence  of  incarceration  may  be                                                               
imposed for the  misdemeanor or ordinance violation  other than a                                                               
provision identified in Sections  2 increasing the surcharge from                                                               
$50  to $100.  It increases  the surcharge  for misdemeanors  and                                                               
violations  or infractions  under state  of municipal  code where                                                               
incarceration  may not  be  imposed  from $10  to  $20. In  rough                                                               
terms, this means all the criminal surcharges are doubled.                                                                      
5:31:08 PM                                                                                                                    
Section 18  returns language that address  crimes against medical                                                               
professionals to  the bill. It  adds an "aggravated"  to Alaska's                                                               
felony sentencing  statute when  a defendant commits  the offense                                                               
at  a health  care  facility and  knowingly  directs the  conduct                                                               
constituting  the offense  at a  medical  professional during  or                                                               
because  of   the  medical   professional's  exercise   of  their                                                               
professional duties.                                                                                                            
5:31:33 PM                                                                                                                    
Sections 19-21  return to the  issue of  out-of-state convictions                                                               
and  pretrial release.  Section 19  authorizes pretrial  services                                                               
officers  to  file complaints  with  the  court, arrest  with  or                                                               
without  a  warrant, and  request  the  court to  issue  warrants                                                               
related to any violation or conditions of release.                                                                              
REPRESENTATIVE  CLAMAN said  the  current law  as  passed by  the                                                               
legislature  has led  to some  dispute within  the trial  courts.                                                               
Some courts have  ruled that pretrial services  officers have the                                                               
authority to  file complaints with  the court while  other courts                                                               
have  rules  that do  not  have  that  authority for  them.  This                                                               
exercise  of  judicial discretion  highlights  the  need for  the                                                               
legislature  to step  in from  time to  time and  remove judicial                                                               
discretion  by, in  this instance,  confirming  the authority  of                                                               
pretrial services officers to file complaints with the court.                                                                   
Section 20  makes conforming changes to  ensure pretrial services                                                               
officers  can file  complaints  with the  court,  arrest with  or                                                               
without  a  warrant, and  request  the  court to  issue  warrants                                                               
related to a violation of conditions of release.                                                                                
Section 21  allows the attorney  general to schedule  a substance                                                               
by emergency regulation.                                                                                                        
Section 22 requires notice of  an emergency regulation scheduling                                                               
a  controlled substance  to  be published  on  the Alaska  online                                                               
public notice system.                                                                                                           
Sections  23-28  all  relate  to   the  AG  controlled  substance                                                               
authority. Section 23 requires the  public notice of an emergency                                                               
regulation  scheduling  a  controlled   substance  to  include  a                                                               
summary of  the AG's  compliance with the  procedures set  out in                                                               
proposed AS 11.71.125.                                                                                                          
5:33:25 PM                                                                                                                    
Section  24 exempts  the procedure  for  scheduling a  controlled                                                               
substance  by emergency  regulation  from  the regular  emergency                                                               
Section  25 adds  authority to  issue regulations  to schedule  a                                                               
controlled  substance  by  emergency regulation  to  the  current                                                               
emergency regulation procedure.                                                                                                 
Section  26 exempts  the procedure  for  scheduling a  controlled                                                               
substance  by emergency  regulation from  the 120-day  time limit                                                               
for other emergency regulations.                                                                                                
5:33:56 PM                                                                                                                    
Section  27 provides  that a  substance scheduled  by the  AG for                                                               
emergency regulation  will remain  on the  schedule for  a period                                                               
not  to  exceed  1,095  days (3  years)  unless  the  legislature                                                               
schedules the substance  by law or annuls the  regulation by law.                                                               
This is one of the  changes suggested originally by the governor.                                                               
There was a real interest  in having the legislature maintain its                                                               
authority to  have the final  word on scheduling  the substances,                                                               
but they wanted the AG to have  the ability to do it quickly, but                                                               
if the  legislature chose not to  act after three years  it would                                                               
become   unlisted,  and   during  that   three-year  period   the                                                               
legislature could  act as  quickly as  it wanted.  If it's  a bad                                                               
idea,  the legislature  would not  have  to wait  three years  to                                                               
unlist  it.   Basically,  final  authority  would   come  to  the                                                               
legislature, but this  provision would give the  governor and the                                                               
AG the flexibility to list substances more quickly.                                                                             
5:35:06 PM                                                                                                                    
Section 28  amends the state  policy on emergency  regulations to                                                               
clarify that  the section  does not limit  the AG's  authority to                                                               
schedule the controlled substance by emergency regulation.                                                                      
5:35:16 PM                                                                                                                    
Sections   29-32  address   court  changes,   applicability,  and                                                               
conditional  effective dates.  Section 29  involves the  indirect                                                               
court rule amendment. Sections 11-15  have the effect of changing                                                               
Court Rule  41 by changing  release conditions for  defendants so                                                               
there would be changes to the Court Rule based on section 29.                                                                   
Section 30 provides applicability  provisions. The act applies to                                                               
offenses committed on or after the effective date.                                                                              
5:35:46 PM                                                                                                                    
Section  31 is  the conditional  effect that  the act  only takes                                                               
effect  if the  indirect  Court Rule  amendment  receives a  two-                                                               
thirds majority vote.                                                                                                           
Section  32  provides  an  effective   date  that  only  sections                                                               
applicable  to pretrial  release  will  take effect  immediately.                                                               
That concluded the sectional analysis.                                                                                          
5:36:14 PM                                                                                                                    
CHAIR  MEYER said  he brought  up a  good point  that HB  312 has                                                               
several other bills rolled into  it and that they were originally                                                               
introduced by  the governor and  have since been enhanced  in the                                                               
House and  Senate Judiciary Committees  and then rolled  into one                                                               
5:36:50 PM                                                                                                                    
CHAIR  MEYER removed  his  objection and  announced  that SCS  HB
312(RLS), version 30-LS1225\M, was adopted.                                                                                     
SENATOR  GARDNER  asked  if  a  substance  is  currently  on  the                                                               
federally controlled  substance schedule, it's  not automatically                                                               
on the  state-controlled substance schedule.  Does it have  to be                                                               
REPRESENTATIVE  CLAMAN  answered  that is  correct.  Before  this                                                               
bill, any addition to the  state-controlled substance list had to                                                               
be done  by an act  of the  legislature. For example,  when spice                                                               
first came  out, it took a  while for the legislature  to approve                                                               
it, so  only the federal  government could prosecute  spice. This                                                               
bill  would  allow  the  attorney   general,  after  the  federal                                                               
government has acted, to say she wants to prosecute spice, too.                                                                 
SENATOR  GARDNER said  section 18  says, "knowingly  directed the                                                               
conduct"  and  comes  to  the  heart of  the  concern  about  the                                                               
original bill,  which has to do  with people who are  in a mental                                                               
health  crisis,  under  the  influence   of  some  substance,  or                                                               
something  has  happened to  them  where  they wouldn't  be  held                                                               
responsible for the  things they say and do and  asked if this is                                                               
the aspect that might give comfort to vulnerable people.                                                                        
REPRESENTATIVE CLAMAN  replied that  was the  intent of  the bill                                                               
and   crimes   against    medical   professionals   included   an                                                               
automatically  enhanced sentence.  So,  if  certain factors  were                                                               
proved, the sentence would be  higher. But because of the concern                                                               
about what  happens to someone  who is  not in their  right mind,                                                               
even  if it  could be  established,  it would  be an  aggravating                                                               
factor that the judge might choose to apply or not.                                                                             
SENATOR  GARDNER asked  him to  elaborate on  the indirect  court                                                               
rule amendment  in section 29  that talks about  changing release                                                               
conditions  for defendants.  Is  that the  mandatory OR  releases                                                               
that are being changed?                                                                                                         
REPRESENTATIVE  CLAMAN replied  that it's  only the  changes that                                                               
are in the bill. The changes  to the court rule would involve two                                                               
different  parts:  one  would  be   changing  the  mandatory  own                                                               
recognizant (OR) release  for class C felonies that  would now be                                                               
presumptive  OR  release but  not  mandatory.  The other  changes                                                               
relate   to  information   regarding  out-of-state   charges  and                                                               
convictions,  which  previously  had  not  been  considered.  The                                                               
expectation with the Department of  Corrections (DOC) is that the                                                               
assessment tool would incorporate  those out-of-state charges and                                                               
convictions by the  end of the year, and at  that point once they                                                               
are incorporated  in the  tool, that  wouldn't be  a basis  to go                                                               
outside  the analysis.  Today, once  the bill  passes, the  judge                                                               
would be  able to go to  a presumptive OR based  on those out-of-                                                               
state charges and convictions.                                                                                                  
5:41:18 PM                                                                                                                    
SENATOR GARDNER  asked him  to describe  how pretrial  is working                                                               
REPRESENTATIVE   CLAMAN   answered   that   the   Department   of                                                               
Corrections  (DOC) has  described  the  pretrial risk  assessment                                                               
tool and  the use  of the pretrial  services officers  as showing                                                               
improvements already.  Sixty pretrial  services people  have been                                                               
hired and trained.  Part of what they do is  supervise people who                                                               
are  charged  with crimes  for  more  consistency. So,  they  are                                                               
tracking and paying more attention  to folks on pretrial release.                                                               
Practitioners  in  the field  have  said  the noticeable  change,                                                               
particularly on  Monday mornings after  the weekend, is  over who                                                               
is still  in jail.  More folks with  prior histories  and charged                                                               
with violent crimes are being seen in jail.                                                                                     
5:43:47 PM                                                                                                                    
CHAIR MEYER said one concern has  been not being able to see out-                                                               
of-state criminal charges,  which they can now  do. And secondly,                                                               
this bill  provides the  judge discretion  in sentencing  class C                                                               
felonies,  especially   for  car  theft  that   is  prevalent  in                                                               
Anchorage now. For  some this bill doesn't go far  enough, and he                                                               
gets  that.  He is  still  not  comfortable  with how  lower  and                                                               
moderate  level  misdemeanors  are  dealt  with  and  asked  what                                                               
Representative Claman's response would be to that.                                                                              
REPRESENTATIVE CLAMAN  replied that auto  thefts are part  of the                                                               
reason they discussed  whether to take any  category of mandatory                                                               
OR and put it into presumptive  OR. The dominant thing they heard                                                               
from the community  about auto theft was that judges  had to have                                                               
discretion. Regarding  the misdemeanors, the most  important part                                                               
to communicate  to the public  is that the group  of misdemeanors                                                               
that  would qualify  as  low and  moderate  risk, by  definition,                                                               
don't include violent crimes. All  the places that put the public                                                               
at greatest risk  and have the greatest potential  for injury are                                                               
the  crimes  that will  never  be  mandatory  OR. They  are  only                                                               
talking about folks  that have very limited  criminal history and                                                               
the crimes they are charged with are non-violent.                                                                               
CHAIR MEYER  assumed even for  non-violent misdemeanors  that the                                                               
more times  a person gets picked  up the higher they  rate in the                                                               
risk assessment  category and ultimately  will get to  the higher                                                               
level where the judge will have discretion.                                                                                     
REPRESENTATIVE CLAMAN said that was exactly correct.                                                                            
5:46:49 PM                                                                                                                    
SENATOR MICCICHE  asked if  the effects  of alcohol  or substance                                                               
abuse would be a defense  for a defendant who "knowingly directed                                                               
the  conduct"  at  a  health  care facility.  Does  that  have  a                                                               
personal responsibility requirement?                                                                                            
REPRESENTATIVE  CLAMAN  answered  that   he  couldn't  quote  the                                                               
statute,  but  one  can't  claim intoxication  as  a  defense  to                                                               
knowingly  doing  something.  It  is  an  aggravating  factor  at                                                               
sentencing  as opposed  to an  element of  the crime,  itself, as                                                               
opposed to someone who is  suffering from a psychiatric disorder.                                                               
He also  reminded them that  someone can be arrested  there would                                                               
need to be  a finding that they were stable  for discharge, which                                                               
addresses both physical, psychiatric, and psychological issues.                                                                 
5:48:36 PM                                                                                                                    
REPRESENTATIVE  KELLY moved  to report  SCS HB  312(RLS), version                                                               
30-LS1225\M, from  committee with individual  recommendations and                                                               
forthcoming fiscal note(s).  There were no objections  and it was                                                               
so ordered.                                                                                                                     

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