Interim Joint Committee on Judiciary


Minutes of the<MeetNo1> 1st Meeting

of the 2001 Interim


<MeetMDY1> September 18, 2001


The<MeetNo2> 1st meeting of the Interim Joint Committee on Judiciary was held on<Day> Tuesday,<MeetMDY2> September 18, 2001, at<MeetTime> 10:00 AM, in<Room> Room 149 of the Capitol Annex. Senator Robert Stivers, Chair, called the meeting to order, and the secretary called the roll.


Present were:


Members:<Members> Senator Robert Stivers, Presiding Co-Chair; Representative Gross Lindsay, Co-Chair; Senators Ray Jones II, Marshall Long, Gerald Neal, Katie Stine, Elizabeth Tori, and Jack Westwood; Representatives Paul Bather, Kevin Bratcher, Perry Clark, Jesse Crenshaw, Joseph Fischer, Bob Heleringer, Jeffrey Hoover, Arnold Simpson, Gary Tapp, John Vincent, and Brent Yonts.


Guests:  Representative Steve Riggs; George Moore, President, Kentucky Commonwealth’s Attorney Association; Commissioner Ishmon F. Burks, Col. John Lile, Jeff Warnecke, Stacy Warnecke, Kentucky State Police; Ernie Lewis, Department of Public Advocacy; Irvin Maze, Richard Schulten, John Wilmes, Jefferson County Attorney’s Office; Commissioner Rice Leach, Department for Public Health.


LRC Staff: Norman Lawson, CSA; Scott Varland; Jonathan Grate; Peter Cassidy; and Lisa Fenner.


Chairman Stivers called the meeting to order, the roll was called, and a quorum was present.  Representative Heleringer made comments with regard to the events of September 11 in New York and Washington, DC and offered a prayer with regard thereto. 


Chairman Stivers added personal comments with regard to the tragedies in New York and Washington.  In the absence of some of the speakers with regard to driving under the influence, that subject was temporarily passed over and the meeting began with the consideration of DNA evidence proposals.


     The first speaker was Representative Steve Riggs who spoke in favor of 2002 RS BR 326 which provides for expanded DNA testing of persons convicted of violent criminal offenses and burglary.  Representative Riggs commented on the value of DNA evidence, its expanding use in the criminal justice system, and the fact that in 20 percent of the FBI's cases, DNA evidence established the innocence of a suspect.  Representative Riggs observed that Kentucky had fallen behind in its DNA evidence laboratory programs and was now considered as far behind, that the laboratory was understaffed, underpaid, and the laboratory underutilized.  Representative Riggs urged the state police to give higher priority to laboratory improvements, laboratory staff expansion, and salary improvements. 


     The second speaker was Senator Gerald Neal who spoke in favor of 2002 RS BR 71, which calls for the preservation of DNA evidence and prevents destruction of material containing DNA evidence without court authorization.  Senator Neal observed that in his bill the judge is the "gatekeeper" and that the bill is designed to prevent the improper disposal of evidence which has occurred elsewhere in the United States and which prevents convicted persons from later attempting to prove their innocence through DNA testing of the evidence.


     The third speaker was Representative Brent Yonts, who spoke of the need to expand the number of convicted criminal defendants who are subject to DNA testing.  Representative Yonts observed that the bill had been introduced in the 2001 session and had passed the House 98-0.  Representative Yonts spoke of the possibility of $107 million dollars in federal money being available in the next few years for states to eliminate the DNA testing backlog and expand DNA testing, and of the desirability of Kentucky utilizing these funds to upgrade and expand our DNA testing program.


     The next speaker was Mr. George Moore, President of the Commonwealth's Attorneys Association, who called the committee's attention to recommendations of the National Association of District Attorneys with regard to the expansion of DNA testing. He indicated that the association supports expanding the number of criminals from which testing is conducted, but cautioned that testing some types of offenders would lead to little use of the test results because, due to the nature of the crime, DNA testing would not be of much value.


     The next speakers were Col. John Lile of the Kentucky State Police (KSP), Jeff Warnecke, Laboratory Director of the KSP Laboratory, and Stacy Warnecke who is the DNA Supervisor for the KSP Laboratory.  Col. Lile informed the committee with regard to the history of DNA testing, its expanding use, and the fact that in 2001, 36 states proposed expanding DNA testing of criminals with 14 states adopting the proposals.  Col. Lile stated that the State Police were in favor of expanding DNA testing, but that they had no money to do so, and that the federal money which has been promised to the states has only been partly funded and some programs not yet funded at all.  Col. Lile presented to the committee the estimated costs of various types of expansion of DNA testing to all criminals, violent criminals, and burglars.  The full testing program is estimated to cost $3.3 million during the next biennium.  Mr. Jeff Warnecke, the supervisor of the KSP Laboratory, then explained the types of DNA testing done, the current status and backlog of testing of DNA samples, and the difficulties of implementing an expansion of the laboratory and its personnel to handle an increased workload.  Mr. Warnecke observed that even if DNA testing is contracted to outside laboratories, which it is now in part, that the laboratory staff must first identify and package the material, ship it to the contractor, and then check the contractor's results to verify the accuracy of the samples.  In terms of adding additional personnel, Mr. Warnecke commented that the training program for new analysts takes one year and that for this reason additional robotic testing equipment is being installed and more being sought, but that this causes additional problems because only blood samples can be utilized by the current robotic equipment and that the statute permits the use of oral swabs and other methods which require nonrobotic testing.


     The next speaker was Mr. Ernie Lewis, Director of the Department of Public Advocacy, who discussed several high profile cases in Kentucky and in other states where convicted criminals, wrongfully imprisoned after eyewitness or laboratory testimony, were freed after DNA evidence showed that they could not have committed the crime.  Mr. Lewis favored making DNA testing available to convicted persons to ensure that they are not punished for crimes which they did not commit.  Mr. Lewis submitted recommendations from a national report on the death penalty containing recommendations for making DNA testing available to all death row inmates.  Mr. Lewis also informed the committee of the formation of a Kentucky Innocence Project.  Mr. Lewis indicated four areas of concern: 1.  Make DNA evidence available to inmates in existing cases; 2. Save biological material during incarceration similar to the proposed federal Innocence Protection Act; 3. Store both the evidence and the results; and 4. Expand the time frame for appeals where DNA evidence is available and used. 


     Senator Stine asked Mr. George Moore of the Commonwealth's Attorneys Association if he would agree with Mr. Lewis' proposals.  Mr. Moore responded that while he was in basic agreement that he would not agree to automatic testing, that there should have been a continual claim of innocence, and that there should be time limits placed on testing requests to prevent repeated requests for testing.  Mr. Moore indicated that an agreement with the Department of Public Advocacy on a compromise proposal might be possible.


Senator Stine then asked Mr. Warnecke of the KSP laboratory why we purchased robotic equipment that could only test blood and not use swabs and other forms of testing.  Mr. Warnecke replied that the present equipment available cannot utilize samples other than blood and that it greatly speeds the testing process.  Chairman Lindsay asked for a further explanation of available federal grant money, exactly what money had been requested on current federal grant requests, and how much federal money might be available.  Mr. Warnecke agreed to make the information available to the committee.  Representative Hoover asked in what crimes is DNA evidence a benefit.  Col. Lile replied that it is of most benefit in crimes where identity is in question such as sexual offenses, violent crimes, and burglary.  Representative Hoover then asked what the recidivism rates were for sexual offenders and violent criminals to which the reply was a 12 percent rate for sexual offenders and a 36 percent rate for violent offenders.  Ms. Stacy Warnecke of the KSP laboratory offered the information that sexual offenders normally leave biological evidence while violent offenders do not necessarily leave such evidence.  Representative Riggs requested information as to the cost of DNA evidence testing in other states.  Col. Lile indicated that it will be supplied.  Chairman Stivers advised all of the sponsors to get together to attempt to come up with one bill on which all parties agree for the upcoming session.  Senator Jones observed that it takes the KSP laboratory several months to return blood analysis sample results in driving under the influence cases and even longer to return results in DNA cases, and that this is resulting in dismissals of DUI cases in particular where the courts operate on a 90 day case conclusion program.  Senator Jones then asked Mr. Moore which offenders should be tested to which Mr. Moore replied sex offenders, violence against persons offenders, and burglars. 


     The next speaker was Jefferson County Attorney Irvin Maze, who was accompanied by driving under the influence prosecutors John Wilmes and Rick Schulten.  Mr. Maze spoke of the problems encountered with portions of the driving under the influence laws, which have been causing dismissals of DUI cases in Jefferson County due to judges excluding breath testing results from evidence.  The first problem involves KRS 189A.010(5)(a), which provides that a DUI refusal be while the person is operating or in control of a motor vehicle, which is not the actual case since breath testing is done at the Jefferson County Jail.  The other problem involves the statutory warning that police officers must give drivers prior to breath testing which specifies that the driver will receive a jail sentence twice as long if they refuse breath testing and are convicted of DUI.  The problem is that for a first offense jail is not mandatory so the driver may receive no jail time.  Courts in Jefferson and other counties have ruled that the warning is misleading and coercive and have, in both problem situations, suppressed breath testing evidence leading to dismissals of the cases.  Mr. Maze indicated that the matter has been appealed, that he has sought a hearing on the matter in the Supreme Court of Kentucky, and that the ruling affects 4,600 first offense cases in Jefferson County each year.  Mr. Maze commented that a new rotation of district judges is now serving in traffic court but that he does not expect them to overrule the previous judges’ decisions.  Mr. Schulten observed that the breath test results are the "be all end all" in 95 percent of the driving under the influence cases, and that without them, in most cases it is difficult to win the prosecution.


Representative Heleringer indicated that in his practice in Louisville he found that the prosecutors are fair, that in this instance the legislature is at fault, and that the legislature will correct the problem at the next session.  Representative Simpson asked Mr. Robert Lotz of the Kentucky Association of Criminal Defense Attorneys if he agreed with the changes that Mr. Maze was seeking.  Mr. Lotz agreed that Mr. Maze had presented the problem correctly and that the language proposed by Mr. Maze would correct the problem; however, he did not agree with the language and proposed procedures to change the problem.  Representative Bather asked if there were other problems with the DUI statutes.  Mr. Maze replied that out of 7,000 DUI cases annually in Jefferson County, 60 percent were first offenders, and that the changes in the law may not have gotten the message through to drunk drivers.  Mr. Maze discussed a diversion program in which offenders under 21 must do community service at the Frazer Rehabilitation Center and the Coroner's office where they can see the results of drunk driving first hand.  Mr. Maze indicated that the program has been successful in preventing second offenses for these persons. 


In response to further questioning by members, the prosecutors indicated that other problems with the DUI statute include the 20 minute observation period and the fact that in Jefferson County, the breath testing machines are at the jail and operated by jailers, not by police officers as in other counties, which results in both the police officer and the jail employee having to testify in court as to the breath test results.  Along with this is the problem that if a jail employee is called to military service or is otherwise unavailable, hundreds of cases could be affected.  Senator Jones asked about the effect of the 90-day rule followed by judges in DUI and other cases and indicated that perhaps all peace officers should be certified as breath test machine operators.  Senator Stivers asked Col. Lile what suggestions he had with regard to the DUI statutes. Col. Lile replied that machines could be sited in other locations than police stations and detention facilities, that how many times the breath testing warning must be given should be clarified, that the 20 minute observation time should start at the time of the arrest and not at the detention facility, that limits should be placed on the 15 minute attorney contact provision, and that the two hour testing rule was a problem in some areas.  Mr. Schulten replied that the two-hour rule should be retained because even prosecution experts had testified as to its effectiveness.


     The next speakers were Commissioner of State Police Ishmon Burks and Commissioner of Public Health Services Dr. Rice Leach.  Commissioner Burks presented the Interim Report of the OxyContin Task Force, which contains recommendations on how to reduce the abuse and illegal diversion of OxyContin and other drugs.  The report contains 24 proposals ranging from improvements in the KASPER controlled substances reporting system involving new computers and additional staffing, requiring a photo identification and thumb printing of persons receiving controlled substances when the pharmacist dispensing the controlled substances does not know the customer personally, upgrading of the penalty for physicians not using secure prescription pads when issuing controlled substances prescriptions, to education and awareness programs. Commissioner Burks spoke of the law enforcement efforts in the past year with regard to the OxyContin problem and indicated that there had been approximately 400 local arrests and 200 federal arrests for diversion, possession, and other offenses relating to OxyContin.  Senator Stine asked about a proposal to permit a pharmacist to refuse to deliver a prescription to a person whom the pharmacist believed might be violating the law, and the possibility that the pharmacist could be sued.  Dr. Leach and Commissioner Burks both agreed that the pharmacist could be sued.  Chairman Lindsay asked if the current laws were working and being enforced to which the reply was yes.  Chairman Lindsay then asked why there was a need for a special law when the existing statutes were working.  He indicated that he felt that this was a federal problem and a problem likely to be solved by the manufacturer's reformulating of the drug. Commissioner Burks and Commissioner Leach responded that the problem is a controlled substances problem and not just an OxyContin problem.


     The meeting was adjourned at 12:45PM.