Judiciary Committee- House

The shins of higher education. Victims of child maltreatment should not be subject to ambiguity left unprotected due to uncertainty in adults responsibility to make the report. We believe through our consultation with legal counsel in the field of education along with members of our state agencies that are charged with the protection of children this expansion of the definition will help further protect our children and prevent the potential delay in getting assistance when these cases happen. With that I would entertain any questions. Members are there any questions for Representative Evans a represented Cavenaugh. You're recognized thank you madam chair Representative Evans what was the what spurred the expansion of the definition great appreciate you asking that so if you look at the way this prior code was written which actually had been expanded just a session or two ago it listed as those that were mandated reporters in our schools as public or private school counselors. A school official. Our teacher. So I would ask you to ask yourself who is a school official. Me that's pretty wide open. We had done instances in my district where there was confusion with that and so as I reached out and I talked to some different school leaders across the state and I ask them what do you consider your definition of a school official. I was disappointingly surprised that there was a lot of different definitions I had one superintendent as I spoke with them held up his baggage that was the ID photo ID in his wallet thank anyone that had one of these would be a school official. but unfortunately we have positions within our school systems that did not meet this dispensed six pacifist city of the way that the code was drafted so we're expanding that to take away any doubt make it very clear. Follow up manager you're recognized for a follow up did we have some incidences of child maltreatment that didn't get reported because of this or an issue that you're aware of yes ma'am there there'd been an instance where AT an employee of the district had received a photo snapshot of some text messages that have been received by student from a volunteer. And the employee at the time didn't did not meet the criteria as the way that the bill that the code was before this and so we wanted to make sure that there was no ambiguity with that I know that this particular district has increased their awareness through additional training but as we reached out we talked all the best entities in this we came to the conclusion both from council and from child protective services that by stating that any full time or part time employee of the district of a private school public school private or public institution including without limitation and listing those by being a part time employee or a full time employee that would take up anyone who receive a paycheck from that facility that they would know they were included. Represent Clowney you're recognized for a question. Thank you madam chair a Representative Evans I'm wondering about this bit about volunteers at the and I know that failing to report if I'm not mistaken can leave somebody open criminal charges and so I'm thinking about volunteers go into schools who just kinda want to help out how can we make sure you know through your talks with with desi in Education folks have you been able to sort of get a sense of how we're gonna make sure that all of these volunteers are properly trained so that they don't find themselves in that kind of trouble. I think they would probably once we get this legislation in place what I would like to see is is us further expand upon and making sure that we're covering all that as I talked to a lot of districts around the state most all districts that I reached out to both large and small are anyone who comes and volunteers at that school goes through criminal background checks obviously someone could glaringly pass a criminal background check and that might not stop them from being a predator so that's one side of that question if I understand the question the other side is I think in the essence of where we included a volunteer it was those that were volunteering for instance of volunteer coach or volunteer athletic trainer thank you it could be a volunteer counselor that was coming in a meeting with students so I would certainly welcome looking further into the definition of that with some additional legislation if you if you thought that's what we need to do thank you. Represent flowers you're recognized for a question. Thank you madam chair just with that it brought to mind for example You know the helper regulation for example and how sometimes expensive or inexpensive training can be and I'm wondering if. You might be open to a number our support this but I'm wondering if you might be open to at some point in the process of this legislation to amend it with some sort of mandatory training so as not to leave. It's a chance that someone might be a volunteer and because of the resources or someone thinking that training might be one way and not another that at least a online training be mandated for volunteers which wouldn't take a lot in the way of resources or time always looking to make things better and willing to work to improve policy what I came to understand and and didn't really want to run in this legislation is that the Department education has in their training platform training as an online training that that works into the professional development typically over the summer the school districts have little bit of a of of the thank you stairs to how often that needs to be done in so as what I can find out is that some districts and I would certainly encourage each of you to reach out to your districts back home and see what they're doing on it all the county is currently required is that it is that falls into some plan of rotation we actually found districts that were only doing it once every four years. And so what we did back back home in my particular district is our school board made changes to where every employee every volunteer everyone everyone is new hired must take that training it's an online course was developed in our district they must take that before before actually be getting their job. Thank you. Collins recognized for a question per manager and brown are represented Evans I three shape this bill and I think I supported generally I but the volunteer thing is countered me up because I think about you know my mother used to volunteer at my school and do an art project with the students once or twice a year. But I don't know that she would have consented to a full training to be a mandated reporter with a liability that goes with that so would someone like that be covered under this and do you think that might actually depressed volunteerism because I mean that's a market we all want. No I don't I don't think so I think that depending upon the individual district how they wanted to incorporate that into into their training or into their orientation of volunteers at I think that kind of covers that what I want when I want to believe in this is a talk to the department as I talk to districts across the state is this is really hot but as far is mandated reporting maltreatment of children sex crimes against children and what I'm beginning to feel is that districts have kind of been lax on this but as we talked about this legislation I expect to see them kind of beef that up do I think that that's going to hamper someone from being a volunteer I don't think so I think that if if if they're there to to serve they're gonna want that training they're going to understand what what their what their responsibilities are when it comes to children follow up. You're you're recognized for a follow up thank you but and I understand appreciate so just to to be clear for myself a parent or someone come in and just on a one time basis to volunteer would also be amended reporter if reasonable school. I thank as the legislation is written yes thank. Members any other questions. We're waiting for the sheet to see if there's anyone who signed up for against the bill. No one is signed up for against the bill Representative injury rate to close for your bill yes madam chairman third close now appreciate a good vote from the committee. Members represent a Representative of events is closed for bill represented Richmond you're recognized. Motion to pass. Members we have a motion to do pass on the floor is there any discussion on the motion to do pass. All in favor of the motion please say aye. Any opposed say no. Motion carries congratulations you've passed your bill thank you manager thank you Committee. Members next bill will be House Bill eleven eighty four asked Representative Smith. Chairman Dalby of before we move into your bill I believe you have a couple of amendment or at least one amendment to the bill yes thank you busters the members there is an amendment to this bill of we'll be in section see it as the language absent exigent circumstances and else language or the person's express consent to the test and that would be a noted throughout the bill I'll be happy to answer any questions on the amendment. If not I would motion to adopt the amendment are there any questions from the committee. Seeing none all right we have a motion to accept the amendment as presented. Although those in favor. All I need a second for that. All right thank you. No. Actually we didn't do the second all right all those in favor say aye. You any opposed same sign. There is none okay you may proceed with your a bill and you may want to the introduce your guests today. Yes thank you vice chair Smith I have with me today merry clear McLaren who is a staff attorney for the Arkansas state police and trooper I'm sorry I forgot your name but we do have a trooper for here from Arkansas state police you're recognized him he has the uniform on. Would you please state your name I'm sorry press the button. Thank. Jason Aaron thank you thank you for your members House Bill. Eleven forty eight a is actually what it's doing is bringing the two code sections into compliance with existing Arkansas Supreme Court case law United States Supreme Court decision the current law requires a warrant before drawing a person's blood for toxicology testing the collection of in testing the blood is typically under a search warrant under Fourth Amendment and consent is typically recognized as an exception to the warrant requirement it's always must be proven to be actual freely given involuntary but this bill is doing. Under the amendment that we just adopted would say that. They must have given express consent in a course any time you get to the point of litigation someone could could say no I didn't give express consent and then they would litigate that at the time of the hearing or the trial and so what this bill does is permitted under circumstances in which someone has been stopped. For operating a motor vehicle or a watercraft a motorboat the vehicle This would require in under certain circumstances they could the person could give their actual consent. To have their blood taken as opposed to having to stop the process finder judge get the search warrant to get that blood drawn doesn't mean that that goes away that can still happen it's just that this is an opportunity that some people will say yes I'm going to give my consent that's really all it does the actual consent to do this has been affirmed by the Arkansas Supreme Court in the case of George B. state. So this is nothing new Supreme Court says yes we recognize actual consent and that's what we're asking for this does not change the burden of proof on the law enforcement officers or the prosecutors to prove that the consent was given voluntarily knowingly and freely given so it does not change any burden of proof just giving them an. A different our way of collecting this data collecting the toxicology as opposed to straight to search work up missed a clearance here. She's done a lot of the research on this can talk to about the legal aspects of it the trooper Aaron can certainly talk to you will be happy to discuss to you the real life events that happened out there and why we need this law. I'll be happy to entertain any questions. Turman Dalby I've got one of to begin with but how quickly. If a person that is suspected of being intoxicated how quickly will that blood draw take place a I think the word is exigent or exigent circumstances so maybe you could go into a little detail about that for me Sir would be happy to now deferred to Mr clearing. That the exigency consensys term is one and that is a legal standard where the officer is going to have to articulate that this the situation was such that he or she did not have time he had reasonable cause to believe that the person was intoxicated and he or she did not have time to seek a warrant the Supreme Court case the United States Supreme Court cases have initially given us some examples in which that would that would occur in a blood draw situation and be like let's say that major Aaron and maybe only one other trooper we're the only law enforcement officers present at a multi vehicle accident in which multiple people were injured you're trying to get people to medical care and and things like that if you had a if you had an individual who was unconscious and needed to be medivac out we talked a lot about how. Representative to all these and her area and Texarkana they're gonna be going to Texas so if they're gone there in Texas we don't have an Arkansas judge can't give us that a warrant for Texas blood it takes a lot more Texas blood draw take a lot more effort we can get it but all that time toxicology that whatever substance might be in their blood is dissipating at the time. All right thank you a major Aaron do you have a comment you'd like to share. I think that just to kind of put this in everyday terms I think as far as. Make it applicable to everyone is if if you're involved in an accident heaven forbid to be infidelity top accident right and you're an innocent person whose driving along and somebody crashes into you and somebody dies in the crash as required by law there are required to obtain blood samples or from both drivers that's involved in it and instead of if it happens it one o'clock in the morning or two o'clock in the morning or whatever or in a rural part of areas of the state. That means that trooper or a police officer is going to take you into custody. Or another police officer gonna take you into custody without your consent. To draw up right up the search warrant. On the judge to sign it and approve it. Thank you deter Medical Center facility to obtain that blood where all the very beginning of this whole incident you're more than willing to say sure you can take my blood. But in the meantime hours of gone by you've been left on scene of a traffic crash or and you just want to get out of there and this is really the huge burden an inconvenience. To the people that are involved in the crash and also the officers are investigating for and this does relate to persons operating a motor boat as well as a vehicle on our highways. That is correct okay we have some questions from our committee thank you major and may go to a Representative Collins first. Thank you Mr chair Yeah I think from your description it sounds like you're saying that you can always get the warrant if there are exigent circumstances is that right. Is that I want to put words in your mouth but that's my first. Premise an. There there are. There are numerous exceptions generally to the warrant requirement for a search under the Fourth Amendment in this I have excellent circumstances is one but actual content is another and so essentially what we're trying to do is this came about because we were finding situations where. A court would reject a blood draw because or suppress that evidence because this statute was so explicitly requiring a warrant for the blood drawn did not make any reference to accidents are consent is or consent or sometimes a prosecutor maybe a younger prosecutor you know I you know just what we've had difficulty kind of communicating with them about whether or not if the if the trooper got a such an actual signed consent form and got the blood drawn based on consent whether that was sufficient to go forward with the case and so essentially what the bill is trying to do is to make it clear that. You cannot because then the implied consent section of the D. W. a law you cannot take a blood draw based on implied consent which is what the Supreme Court cases held Burch Burchfield Versace's State Farm not sure what state was built Burch build United States Supreme Court case and versus North Dakota I'm sorry Implied consent is not enough but you can still have the regular exceptions to the warrant requirement such as exigent circumstances or consent. Request from. You may. You are so and I've at I don't think that's an issue for me but I guess to me the way it's written it it looks like it's saying that if you have existing circumstances you don't need a warrant or consent the first thing it and I don't think that's what is intended and maybe I'm just reading it but it seems like it sign if you have accident circumstances you don't you can do a test without a warrant you can do with a test without express consent and that's my concern that's my only concern is just with this amendment how it reads it seems like it could be ambiguous. And I I do understand what you're saying I think that the the case on accidents Arkansans is is that it is it is only it's. To prove that exigent circumstances existed you have to prove that you could not have obtained a warrant. Or or accident circumstances did not exist. Okay. Represent Collins we're gonna move on I've got several in the queue so if you want to circle back in a minute that would be just fine. All right representatives late pure. Europe okay thank you Mister chair so in the motor laws on the highways of Arkansas we have the amendments D. W. of all which says you know we have an implied consent when we accept that licenses Grove and we're subject to be untested. But in the water I'm just trying to get this through my Littles thank skill is we don't really have that own say no the major air not the I think I see some the of so the the Arkansas game fish do the boating safety and they find somebody a little drink drinking out there and and acting wild what have you but they they would have to. Instead ask them to comply to the breathalyzer or some tools or or a blood draw. They have to have the actual authorization consent from the person first. And this actually does not impact the the testing of an individual who is operating a boat on its own it's kind of a strange Thank work or omnibus D. W. all laws are omnibus D. W. I. B. W. a law major and may be able to explain how implied consent works when someone's operating a boat but I don't we don't we we don't control the water away either and we are not At. We're not trying to apply implied consent I is is I guess where we would what we would focus on here is we are we're. Going away from that and we're trying to say that if somebody give actual consent that They can still have their blood drawn. Okay the thank you for all of Mr. Yes okay and all the other can bring you to a and I can see the need for this because many times to no more than one of my asking for an application for search warrant from homes of the investigated the judges are not very happy at two in the morning then if you go in the US for a of a search warrant for a motor I can only imagine how that would go the so you. Thanks to the native this all right thank you appreciate it. All right thank you a represented Gazaway you're recognized. Thank you Mr chair. so I remember when the Supreme Court case came down that said that you have to have a warrant for a blood draw in the implied consent did not extend to the drawing of a person's blood because that such an invasive thing to draw a person's blood is not like test of a person's breath or asking them to perform field sobriety is but you're actually injecting them with something to drop a lot of their body and that's a pretty nice things so they set up the warrant requirement. And if I recall correctly I think I actually ran the bill that put that warrant requirement in the law after that Supreme Court case came out. And let me say that I'm fine with consent being added because that is an exception generally to the warrant requirement. My question and my concern is is the type of consent. That you would be getting because this bill doesn't specify the type of consent it just says consent so does that mean oral consent I'm on the side of the road and someone you know becomes an officer's word persons and other persons a defendant's word. you know typically in the W. as you see the written advice of rights form that the defendants have to fill out and when you get to court as a prosecutor makes it very easy because they've signed it all. but this doesn't specify the type of consent whether it's written whether squirrel and that would be my concern you could would not to address that. A Representative Gazaway at thank you for the question we The Amendment does say it express consent and we did want to differentiate that from implied consent but also and major and may have a comment on what they're currently using but the we use a form that allows for people to execute actual consent for anything whether it be breath What you said we have a consent to search form that explains your rights in the consent to search where the subject initial initial that as he reads or writes and signs at the bottom he's advised of his consensual rights on that form in writing and one of the. Questions that the officer asks do you understand. If you have any questions if that form is not available it is in today's world as far as finding a place to record that if at all possible the weather stand in front of your patrol car or if you've got a body cam on your body cam but officers in today's world know to have it recorded in some form or fashion. All right thank you represented Gazaway in major air and I'm I've got two more in the queue and we're gonna hear from a Representative flowers now. Thank you Mr All right I just was wondering how this would apply to drivers who are not yet adults. but with might be stopped with the I just believe that maybe they were intoxicated like in terms of. At accessing that the drawing blood getting consent like how with the supply in the same way would you have to get consent from their parents rather than the juvenile or how would that work. Without getting too legal entity that I have to do the for that over to Marie Claire but typically. Okay you know asking for somebody to blow it is not something that is investment that's not our first option to go to the the biggest means I see this applying to you is when you're working you for telegraph or someone's involved in infidelity and it's obviously apparent that they're they're not impaired but not all required to determine their blood alcohol or drugs if they're in the it's in their system or not as far as going on here and stop and someone who is under eighteen. The. And of a traffic stop and determine whether or not to do that we are. You know it's. I ask you also on the board is not. that's. Rest does not enormous not the rest of the. Least of the options that's preferred. As far as asking for consent from an adult of I'm as a police officer we we treated as there in control and responsible for the vehicle of their driving it and so it if it came time to ask for more than we would ask that person for their liberal and again we would explain the rights and the consent form and they have the option to say no. But again if it if it's a certain something as far as like a DWI arrest. It is something that reasonably be Debbie iris is about to occur they're going to go the extra steps more than likely and and get a search warrant even if the subject says Noel that officer will have to present facts to a judge to obtain a search warrant and if the judge thinks he's got the facts then it gives them the option to get a search warrant in attainable and. Follow up this year yes so as I was listening to this and I'm not a lawyer some listening to the lawyers ask their questions. And they were sort of three things I wrote down and that was one of them. That I'm I'm thinking about those on two planes first of all. For the the job of the prosecutor who. Especially in the case of a fatality or you know near finality where it's their job to prosecute for someone who's been responsible for that and they've been you know drinking or taking drugs or whatever. how would this work to ensure that it doesn't make their job harder or that someone doesn't skirt. The circumstances around what this law would provide for and then on the flip side I'm thinking. what would this mean for someone. Who was in the accident where there's a fatality or near fatality and that person is suspected to have been driving under the influence and so this would kind of lead to the other couple of things I'm concerned about and you can just come to speak to it. So I mentioned the juvenile peas. But then what about Discerning B. two and and maybe this is a finance question but there are so many people who are legally taking. you know prescription drugs and I just and maybe think about one time I fell asleep at the wheel and kill myself and another time I filled with the wheel and got stopped and you know the officer let me go ahead day's work for hotel when I was much younger and did the three to eleven or eleven to. Seven shift and so I guess I'm wondering. If someone is stopped the blood is drawn is the science make it so that they can discern between someone taking legal. Drugs versus and and does that matter I don't know I'm just thinking about what this would mean. for consent and then finally if you're getting express consent yes going back to what we heard before. I mean we have like technology can we. If they're verbally expressing can we just get video of them expressed you know and then let that be something that would be used in the court. Where would be questioned that the person could come back and say I didn't say that. Thank you. Well all right. and I'll answer that last part first and and mob my best troopers date RT that they know the form by heart they read it off but they also do all of this right in front of their dash camera they stand right on print they have they've got a job or girl whoever it may be whether it's either out of you are posted most of situations we're talking about here are going to be in the accident when there's a fatality your or your pathology but but they know to get this thing on camera they know how to do it they get in position right in front of the vehicle that I read it term they have him sign it they have him say I understand that also helps with certain issues like you might think well this person might be in talks too intoxicated to consent will there like fallen down can't stand up you know those things you know are troopers are gonna know they're not going to go well for them and truly improving that its actual or voluntary consent. as far as. Whether or not you know the the. Concentration of medication in their blood. Know how that plays into all this I I obviously that that something that. it is a factor in the W. R. cases and whether or not somebody was prescribed things legitimately and whether they were truly impaired and and what I would say to them to those concerns are that there's certainly a difficult not to untangle exactly how to handle that but with this bill per in particular all we're trying to do is codified so that it is clear to all law enforcement officers prosecutors defense attorneys and judges across the state that what the Arkansas Supreme Court in the United States Supreme Court has already said that a warrant is required to get a blood test. Unless. You have one of these other circumstances which would be actual consent that's in the law so that there's no confusion it's I mean it's already. The Arkansas state Supreme Court has already said that's the law the United States Supreme Court has already said that's the law I'm a recent case A Wisconsin versus Mitchell was upheld this law and said that when somebody was unconscious and the trooper OR I don't know if it's a trooper but the officer couldn't Draw blood couldn't get consent when couldn't get didn't have time to get a warrant that that he could draw blood that that was about exception Fourth Amendment weren't we're really not trying to get into that that issue here but that we're just trying to make it clear to so there's no confusion what the law is as far as the courts have to decide it. Thank you a Representative Nicks you're recognized. Thank you and and you just answered what I was going to talk about. The thing of it this whole bill here is is is real simple not that we're making it more complicated we're not dealing with with the law the date of the aisle or the blood alcohol law we're not I don't think you're dealing with that I think you just you dealing with more of he added the water boat situation to it and it's all a consent you gotta consent you can just draw blood. R. and we're talking about the counties on highways I thank unless they change it I think the requirements there is you your call you you if there's a talent involved in an accident you have to draw blood from the drive that's just that's the way it is so all I see here is is just added is a the consent of a person to take blood you you've got to give consent to take but you're you're required to get breath and your but but you have to be a consent and looks to me like in this that's all it's doing is you're saying that to it. You're exactly right to a Representative Nicks that's all it's doing it she's bringing it in line to the Supreme Court cases. That's all thank you thank you very much. All right the represented Gazaway you're recognized. Thank you Mr chairman. And again I'll say at the outset I absolutely agree that consent is an exception to the warrant requirement there's no question about that. And you know you said earlier that an officer should if they're getting consent is going to be oral but it on video you get your body cam. Forget your desk and that's one officer should do. But. This bill doesn't require that does it I mean it just says if you get consent doesn't say how you have to get the consent would you agree. Yes I have it doesn't say how you get the consent that is as you know that would be something that would be litigated before the court in the court concerning no you didn't get the consent you didn't you didn't check the boxes you didn't get the actual consent the court could then not admit that evidence. Follow up. Go ahead and my concern there when you don't specify the topic consenso given example. If you have a search of a home and trooper probably knows this you can search someone's home and you're gonna say that that searches based on consent. If you don't have it in writing. That's going to be thrown out because the Supreme Court has said that the home is such a protected area. That if you're going to search it and are going to claim that the person who owns the home consented to the search that you have to have a riding or otherwise is going to violate the Fourth Amendment. And I see blood in this context being very similar because the Supreme Court said in their opinion that the draw of applied to such an invasive intrusion into a person's privacy much like that into a home. That. Much like you have to have something in writing if you're going to base the search of a home on consent I would think that you would want to have something in writing if you're going to base the search of a person's blood on their consent and so I'll just tell you that's my concern with that if somebody here can address that you know I'm happy to I'm happy to listen to it I want to vote for this bill because clearly a person can consent to a search but I want to set us up in a position where as a prosecutor I'm in court trying to defend a search because an officer thought they could just do it by consent his word verses there's and I'm in a really bad position so that's that's my issue my question in view the dress that I'd appreciate it thank you. Hi I might be wrong about this but the example that you're you just gave that maybe a consent would not hold up with up for the search of a home unless it was in writing I don't I don't know that that is codified in the statute and so out in that way I would. Say that although that is a well known. I I wouldn't was never a prosecutor in our state I knew it but I'll say if that is the well known practice and that is required based on court precedent that it would that similarly would apply here the well known practice for a consent to to a chemical test actual consent to a chemical test whatever kind of chemical test or search of the vehicle or or anything like that is going still going to follow whatever the well known court precedents in fact patterns or it's just simply that in this case we actually have a statute that sets out I'm a warrant requirement for the blood draw that we felt we needed to also make it clear that consent was was an exception. All right thank you. Chairman Dalby are you ready to I don't think we have any wants to speak for against so would you like to close for you bill yes I'm close ties moved to pass as amended. All right. Got to do pass motion on this bill as amended. All those in favor let it be number saying aye. Any opposed. All right your bill passed thank you thank you Mr chair thank you members of the committee. Members that does conclude our business for the dead for today I will remind you once again we will be hearing Senate bill twenty four at two o'clock on Tuesday and with that I hope you have a great weekend.