House Committee on Judiciary (03/11/2010)

Final
STAFF SUMMARY OF MEETING

HOUSE COMMITTEE ON JUDICIARY

Date:	03/11/2010	ATTENDANCE

Time:	01:41 PM to 06:58 PM	Court	X
		Gardner B.	X
Place:	HCR 0107	Kagan	X
		King S.	X
This Meeting was called to order by		Miklosi	*
	Representative Levy	Nikkel	X
		Pace	X
This Report was prepared by		Ryden	X
	Jessika Shipley	Waller	X
		McCann	*
		Levy	X
		X = Present, E = Excused, A = Absent, * = Present after roll call

Bills Addressed:		Action Taken:
HB10-1347 HJR10-1009 HB10-1283 HB10-1338		Amended, Referred to Appropriations Postponed Indefinitely Witness Testimony and/or Committee Discussion Only Amended, Referred to Appropriations

01:42 PM -- House Bill 10-1347

Representative Levy, prime sponsor, presented House Bill 10-1347 concerning misdemeanor penalties for persons who are convicted of multiple traffic offenses involving alcohol or drugs. She stated that the bill has the full support of the Colorado Commission on Criminal and Juvenile Justice. Current law provides one set of penalties for a first offense of driving under the influence (DUI), DUI per se, driving while ability impaired (DWAI), and driving as a habitual user of a controlled substance. A second, more restrictive set of penalties exists for any subsequent convictions of those offenses. This bill adjusts the penalties for a second offense and creates a new set of penalties for a third or subsequent offense.

During the mandatory period of imprisonment, an individual may only participate in certain county jail sentencing alternatives (i.e., work, educational, and medical release; home detention; and day reporting) if such programs are available through the county where the individual is incarcerated and if it is for the purpose of:

• continuing a position of employment held at the time of sentencing;
• continuing attendance at an educational institution at which the individual was enrolled at the time of sentencing; or
• participation in a court-ordered alcohol or substance abuse education or treatment program.

A subsequent offense that occurs less than five years after a prior conviction is not eligible for alternative sentencing options such as a deferred prosecution, a deferred sentence, home detention, day reporting, etc. Repeat offenders are also not eligible for earned time, good time, or trusty prisoner status while serving their mandatory jail sentences.

In addition to the mandatory jail sentence, fine, and community service, all repeat offenders must complete a period of probation of at least two years. As a condition of probation the court:

• is required to impose a one-year suspended jail sentence, all or part of which may be imposed if the offender violates a condition of probation;
• is required to include a mandate that the offender complete an alcohol or substance abuse treatment program at the offender's expense;
• is required to order the offender to make restitution;
• may impose additional probation, not to exceed two years, to monitor the offender or ensure that he or she continues to receive treatment;
• may require the offender to begin a treatment program while in jail;
• may require the offender to appear in court at any time during the probation period; and
• may require the offender to use an ignition interlock device during the period of probation at the offender's own expense.

The existing minimum persistent drunk driver surcharge is raised from $50 to $100. Half of the collected surcharges will be deposited into the existing Persistent Drunk Driver Fund and the other half into the newly-created Court-ordered Alcohol Treatment Fund.

Representative Levy distributed prepared amendments L.002, L.003, L.004, and L.005 (Attachments A, B, C, and D). She responded to questions from the committee.

02:02 PM -- Tom Raynes, Colorado Attorney General's Office, spoke in support of the bill. Mr. Raynes indicated that the bill was drafted to address the problem of the inconsistent application of penalties for repeat drunk drivers across jurisdictions in the state.

02:04 PM -- Sheriff Grayson Robinson, County Sheriffs of Colorado, spoke in support of the bill. Sheriff Robinson stated that the sheriffs voted unanimously to support the bill. He addressed the impact of the bill on county jails, but stated that the public safety aspects of the bill far outweigh the jail costs. He discussed the problems that repeat DUI offenders cause for communities. He expressed his opinion that jails should provide as much meaningful treatment as possible. Sheriff Robinson responded to questions from the committee about the fiscal impact of the bill. He stated that the bill is an investment in public safety.

02:08 PM - Mark Randall, Colorado District Attorneys' Council (CDAC), spoke in support of the bill. Mr. Randall distributed a table illustrating Colorado's current DUI penalties (Attachment E). He explained how current penalties will be changed by the bill. He discussed the importance of treatment for repeat DUI offenders. Mr. Randall responded to questions from the committee about the use of ignition interlock devices. The committee discussed interlock devices at length.

02:16 PM -- Maureen Cain, Colorado Criminal Defense Bar, testified about the bill. Ms. Cain stated that the bill does not represent the best solution to the problem of repeat DUI offenders, but it is an approach she can live with.

02:18 PM

Representative Levy explained the effect of each amendment.


BILL:	HB10-1347
TIME:	02:22:05 PM
MOVED:	Levy
MOTION:	Adopt prepared amendment L.002 (Attachment A). The motion passed without objection.
SECONDED:	Court
		VOTE
	Court
	Gardner B.
	Kagan
	King S.
	Miklosi	Excused
	Nikkel
	Pace
	Ryden
	Waller
	McCann
	Levy
Not Final YES: 0 NO: 0 EXC: 1 ABS: 0 FINAL ACTION: Pass Without Objection


BILL:	HB10-1347
TIME:	02:22:20 PM
MOVED:	Levy
MOTION:	Adopt prepared amendment L.003 (Attachment B). The motion passed without objection.
SECONDED:	Court
		VOTE
	Court
	Gardner B.
	Kagan
	King S.
	Miklosi
	Nikkel
	Pace
	Ryden
	Waller
	McCann
	Levy
Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection


BILL:	HB10-1347
TIME:	02:23:14 PM
MOVED:	Levy
MOTION:	Adopt prepared amendment L.004 (Attachment C). The motion passed without objection.
SECONDED:	Court
		VOTE
	Court
	Gardner B.
	Kagan
	King S.
	Miklosi
	Nikkel
	Pace
	Ryden
	Waller
	McCann
	Levy
Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection


BILL:	HB10-1347
TIME:	02:24:37 PM
MOVED:	Levy
MOTION:	Adopt prepared amendment L.005 (Attachment D). The motion passed without objection.
SECONDED:	Court
		VOTE
	Court
	Gardner B.
	Kagan
	King S.
	Miklosi
	Nikkel
	Pace
	Ryden
	Waller
	McCann
	Levy
Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection

02:27 PM

Representative Levy wrapped up her presentation of the bill and asked for a favorable recommendation.


BILL:	HB10-1347
TIME:	02:28:23 PM
MOVED:	Levy
MOTION:	Refer House Bill 10-1347, as amended, to the Committee on Appropriations with a favorable recommendation. The motion passed on a vote of 11-0.
SECONDED:	Nikkel
		VOTE
	Court	Yes
	Gardner B.	Yes
	Kagan	Yes
	King S.	Yes
	Miklosi	Yes
	Nikkel	Yes
	Pace	Yes
	Ryden	Yes
	Waller	Yes
	McCann	Yes
	Levy	Yes
Final YES: 11 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: PASS

02:30 PM

Representative McCann recessed the committee to wait for the next bill sponsor.

02:31 PM -- HJR 10-1009

Representative Levy called the committee back to order.

02:32 PM

Representative Acree, prime sponsor, presented House Joint Resolution 10-1009 concerning the state of Colorado's sovereignty under the 10th Amendment to the Constitution of the United States over all powers not granted to the federal government and not prohibited to the states. She distributed prepared amendment L.001 and an unofficial preamended version of the resolution (Attachments F and G). The resolution states that Colorado reserves the right to opt out of any national health care reform legislation. Representative Acree stated that the resolution sends a message to the United States Congress, but does not carry the binding force of law. She spoke to the notion that states should make their own decisions regarding health care. She quoted the U.S. Constitution and the Federalist Papers in the context of the powers of the federal government. The committee discussed the 10th Amendment. The committee turned to a lengthy discussion of state and federal powers granted by the Constitution.

03:01 PM -- Melissa Hart, representing herself, spoke in opposition to the resolution. Ms. Hart is a professor of law at the University of Colorado. She discussed the meaning of the 10th Amendment with regard to limits on federal power. She spoke to the powers enumerated by the Constitution to the federal government. She talked about the commerce clause of the Constitution and the proposed federal health care plan. Ms. Hart and members of the committee discussed the powers of the federal government.

03:28 PM -- Gretchen Hammer, Colorado Coalition for the Medically Underserved, spoke in opposition to the resolution. Ms. Hammer distributed a letter of opposition from a coalition of organizations (Attachment H).

03:30 PM -- Jon Caldara, representing himself, spoke in support of the resolution. Mr. Caldara stated that the resolution is tepid and merely reaffirms the authority of the state with regard to health care reform. He indicated that the resolution is about the rights of the state of Colorado to clearly state that the proposed federal health care reform legislation violates the 10th Amendment.

03:33 PM -- Geoff Broughton, representing himself, spoke in support of the resolution. Mr. Broughton spoke at length about constitutional rights and his opposition to the proposed federal health care reform plan.

03:38 PM -- Jack Ott, representing himself, spoke in support of the resolution. Mr. Ott spoke at length about constitutional rights.


BILL:	1009
TIME:	03:45:00 PM
MOVED:	Nikkel
MOTION:	Adopt prepared amendment L.001 (Attachment F). The motion failed on a tie vote.
SECONDED:	King S.
		VOTE
	Court	Yes
	Gardner B.	Yes
	Kagan	No
	King S.	Yes
	Miklosi	No
	Nikkel	Yes
	Pace	No
	Ryden	No
	Waller	Yes
	McCann	Excused
	Levy	No
Not Final YES: 5 NO: 5 EXC: 1 ABS: 0 FINAL ACTION: TIE


BILL:	1009
TIME:	03:46:08 PM
MOVED:	Gardner B.
MOTION:	Refer House Joint Resolution 10-1009 to the House Committee on State, Veterans, and Military Affairs with a favorable recommendation. The motion failed on a vote of 4-6, with 1 excused.
SECONDED:	Nikkel
		VOTE
	Court	No
	Gardner B.	Yes
	Kagan	No
	King S.	Yes
	Miklosi	No
	Nikkel	Yes
	Pace	No
	Ryden	No
	Waller	Yes
	McCann	Excused
	Levy	No
Not Final YES: 4 NO: 6 EXC: 1 ABS: 0 FINAL ACTION: FAIL


BILL:	1009
TIME:	03:46:53 PM
MOVED:	Pace
MOTION:	Postpone indefinitely House Joint Resolution 10-1009. The motion passed on a vote of 6-4, with 1 excused.
SECONDED:	Kagan
		VOTE
	Court	Yes
	Gardner B.	No
	Kagan	Yes
	King S.	No
	Miklosi	Yes
	Nikkel	No
	Pace	Yes
	Ryden	Yes
	Waller	No
	McCann	Excused
	Levy	Yes
Final YES: 6 NO: 4 EXC: 1 ABS: 0 FINAL ACTION: PASS

03:50 PM -- House Bill 10-1283

Representative Levy announced that the committee would hear witness testimony on House Bill 10-1283, but the bill would laid over to Thursday, March 18, 2010, for action.

03:51 PM

Representative Riesberg, prime sponsor, presented the bill, which concerns increasing patient safety outside of the litigation process, requiring physicians to engage in ongoing professional development, and facilitating information sharing about health care workers. The bill, as amended by the House Health and Human Services Committee, requires the State Board of Medical Examiners in the Department of Regulatory Agencies (DORA) to adopt rules for and implement a professional development program for physicians and physician assistants. The board must develop the program in conjunction with statewide professional associations, and must be in place no later than the 2013 license renewal cycle.

The bill creates the Patient Safety Act to require that health care providers make reasonable efforts to verify the employment history and references of all applicants for any job that involves access to patients. Health care providers and other employers must share known information regarding a health care employee's:

work performance affected by drug or alcohol use;
known drug tampering or diversion;
patient abuse; or
violent crimes.

The act permits protected communications with patients and other interested persons as part of a health care assessment and allows information to be shared among health care providers without waiving the confidentiality or privilege of the information.

Finally, the Health and Human Services Committees of the General Assembly are required to request that one or more health care provider associations prepare a report on demonstration projects that explore alternatives to the existing medical liability litigation system. The report is due January 31, 2012.

Representative Riesberg distributed a New York Times article entitled "Learning to Keep Patients Safe in a Culture of Fear" (Attachment I).

04:01 PM -- Dr. Timothy B. McDonald, representing himself, spoke in support of the bill. Dr. McDonald discussed his educational and professional background. He spoke about comprehensive responses to patient harm. He talked about a process developed at the University of Illinois at Chicago that facilitates communication between medical staff and the families of patients who have been harmed. Dr. McDonald responded to questions from the committee about privileged conversations related to mistakes made in a medical situation.

04:47 PM -- Natalie Brown, Colorado Trial Lawyers' Association, spoke in opposition to the bill. Ms. Brown discussed judicial evidentiary rulings and how those pertain to what is true and not true in a case of a medical mistake. She expressed her desire to provide constructive criticism about the bill. She stated that her desire is to protect patients in instances where physicians are not truthful. She spoke to provisions of the bill that address objective reasonableness. She suggested a reexamination of the "corporate practice of medicine" doctrine. Ms. Brown responded to questions from the committee about the broadness of the bill. The committee discussed litigation in the area of medical malpractice.

05:08 PM -- John Stoffel, Colorado Senior Lobby, spoke in opposition to the bill. Mr. Stoffel expressed his opinion that the bill prohibits a patient from sharing with his or her attorney a conversation with a physician about a negative medical outcome. He stated that a lot of litigation would not happen if patients were told the truth by doctors in the beginning. He indicated that he does support many other portions of the bill.

05:15 PM -- Dr. Mark Laitos and Kari Hershey, Colorado Medical Society, spoke in support of the bill. Dr. Laitos stated that improving patient safety lowers health care costs and makes the system work better. Medical malpractice litigation is not particularly useful in holding medical providers accountable for their actions. The Colorado Medical Society seeks to make it simpler to share information among health care facilities about medical professionals who commit bad acts. He spoke to the adversarial process that goes into effect when a patient is harmed or dies through the actions of a medical professional. He indicated that doctors would prefer to be able to share information with patients without the threat of having those conversations used against them at trial. Dr. Laitos discussed the final sections of the bill, which provide new ways for physicians and health care facilities to improve patient safety and patient redress options that are alternatives to litigation.

05:24 PM

Ms. Hershey discussed efforts to amend the bill that will be addressed on Thursday, March 18. She spoke to concerns the committee raised earlier in the hearing about the discovery or admissibility of evidence. She also addressed comments about the issue of truthfulness. She explained the "objectively reasonable" standard and how it relates to the peer review process. She responded to questions from the committee regarding whether the bill prohibits patients from disclosing information obtained through interactions with their doctors. The committee discussed the "fruit of the poisonous tree" doctrine, which describes evidence gathered with the aid of information obtained illegally. The committee continued to discuss the confidentiality of conversations between doctors and patients.

05:56 PM -- Barbara Thompson, Mountain States Employers' Council, testified about the bill. Ms. Thompson discussed an employer's obligation to disclose certain information upon request.

05:59 PM -- Patty Skolnik, Citizens for Patient Safety, spoke in support of the bill. Ms. Skolnik distributed pictures of her son, who died after brain surgery (Attachment J). She related details of her experience with a medical malpractice lawsuit. She talked about her activism on behalf of patients and families who want to know what happened in the course of care. She expressed her opinion that her physician lied to her throughout the process.

06:04 PM

Representative Levy reiterated that the bill would be laid over. She discussed her concerns with the bill. Members of the committee commented about their positions on the bill. Representative Riesberg addressed many of the comments and questions made during the hearing. He provided closing comments.

06:17 PM -- House Bill 10-1338

Representative McCann, prime sponsor, presented House Bill 10-1338 concerning the eligibility for probation of a person who has two or more felony convictions. Current law prohibits a defendant from applying to the court for probation if he or she has two or more prior felony convictions. With Amendment L.002 (Attachment K), this bill allows individuals with two or more felony convictions that occur after the effective date of the bill to apply for probation with certain exceptions. A defendant may not apply for probation if the current or a prior conviction is for one of the following offenses:

• first or second degree murder;
• manslaughter;
• first or second degree assault;
• first or second degree kidnapping;
• a sex offense;
• first degree arson;
• first or second degree burglary;
• robbery or aggravated robbery;
• theft from the person of another;
• any felony offense committed against a child; or
• criminal attempt or conspiracy to commit any of the offenses listed above.

Currently, the sentencing court may waive the prohibition and grant probation on a case-by-case basis upon the recommendation of the district attorney. The bill does not change that provision.

06:22 PM -- Charles Garcia, Colorado Bar Association, spoke in support of the bill. Mr. Garcia provided information about his professional background. He stated that the Colorado Commission on Criminal and Juvenile Justice supports the bill. He explained the individuals to which the bill applies and those it excludes. He clarified that an individual does not need to be probation-eligible in order to be considered for community corrections. He discussed the current probation statute and case law addressing that statute. Mr. Garcia indicated that the bill increases judicial and prosecutorial discretion. He responded to questions from the committee about whether a district attorney can ask for a waiver of the prohibition against a sentence to probation under current law.

06:38 PM -- Mark Randall, CDAC, spoke in support of the bill. Mr. Randall discussed a district attorney's authority to request a waiver of the prohibition against a sentence to probation for certain crimes. He explained the circumstances under which a waiver is required. The bill applies to convictions that occur on or after the effective date of the bill, so the district attorneys asked the sponsor to include language to address cases that may be sentenced after the effective date, but the conviction occurred before that time. Mr. Randall responded to questions from the committee about the drafting of the bill.

06:50 PM -- Peg Ackerman, County Sheriffs of Colorado, spoke in support of the bill. Ms. Ackerman stated that the sheriffs agree with the concept of slowing the growth of the prison population.

06:50 PM -- Geoff Blue, Colorado Attorney General's Office, spoke in support of the bill. Mr. Blue stated that the bill provides the courts with more flexibility.

06:52 PM -- Judge Ken Plotz, representing himself, spoke in support of the bill. Judge Plotz is a member of the Colorado Commission on Criminal and Juvenile Justice. He clarified that the bill does not grant probation wholesale to a class of offenders, but provides more judicial discretion.

06:53 PM -- Tom Quinn, Colorado Judicial Branch, spoke in support of the bill. Mr. Quinn is the director of probation services for the state. He talked about entities that support the bill.


BILL:	HB10-1338
TIME:	06:54:55 PM
MOVED:	McCann
MOTION:	Adopt prepared amendment L.002 (Attachment K). The amendment is a strike below amendment. The motion passed without objection.
SECONDED:	Kagan
		VOTE
	Court
	Gardner B.
	Kagan
	King S.
	Miklosi
	Nikkel
	Pace
	Ryden
	Waller
	McCann
	Levy
Not Final YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection


BILL:	HB10-1338
TIME:	06:55:11 PM
MOVED:	McCann
MOTION:	Refer House Bill 10-1338, as amended, to the Committee on Appropriations with a favorable recommendation. The motion passed on a vote of 11-0.
SECONDED:	Court
		VOTE
	Court	Yes
	Gardner B.	Yes
	Kagan	Yes
	King S.	Yes
	Miklosi	Yes
	Nikkel	Yes
	Pace	Yes
	Ryden	Yes
	Waller	Yes
	McCann	Yes
	Levy	Yes
Final YES: 11 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: PASS

06:57 PM

Representative Levy adjourned the committee.