Legislature(2003 - 2004)
04/14/2004 01:45 PM House JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 381 - CHILD ENDANGERMENT DRIVING OFFENSES Number 0887 CHAIR McGUIRE announced that the next order of business would be HOUSE BILL NO. 381, "An Act relating to child endangerment." [Before the committee was CSHB 381(HES).] CHAIR McGUIRE, sponsor, relayed that she developed HB 381 at the request of one of her constituents, that many states already address this issue, and that members' packets include information put together by the National Conference of State Legislatures outlining what the laws regarding this issue are in other states. Currently under Alaska law, a person has to wear a seatbelt and failure to do so results in a "secondary offense." House Bill 381 addresses the issue of vehicular- related child endangerment and, under current law, it is a violation to either fail to restrain a child or improperly restrain a child, and such a violation could result in a fine of up to $50, she added.. Number 0993 HEATH HILYARD, Staff to Representative Lesil McGuire, Alaska State Legislature, sponsor, noted that current law can be found in AS 28.05.095. CHAIR McGUIRE said that HB 381 creates a new crime for transporting a child while being under the influence of an intoxicant. MR. HILYARD added that according to information he's received, 71 percent of the children who died while riding in a vehicle driven by an intoxicated driver were not restrained, and 82 percent of children being driven by an intoxicated person are unrestrained. He surmised that these statistics indicate that there is "a great deal of crossover between people who commit both of these two acts - those who drive intoxicated with a child in the vehicle, and those who fail to properly restrain." CHAIR McGUIRE noted that children, in most cases, don't have the ability to make those types of choices for themselves, and offered that HB 381 will provide penalties for driving with an child in the vehicle while under the influence of an intoxicant. CHAIR McGUIRE relayed that she would like to add back into HB 381 a provision that would increase the current penalties for transporting a child that is not properly restrained when such leads to physical injury or death of the child - this provision had been removed in the House Health, Education and Social Services Standing Committee. Number 1172 CHAIR McGUIRE referred to a one-page document that contained proposed Amendments 1-4, which read [original punctuation provided]: AMENDMENT 1 Page 2, Lines 8-10 After "watercraft" DELETE "under the influence of an intoxicant." REPLACE WITH "in violation of AS 28.35.030." AMENDMENT 2 Page 2, after subsection [sic] (4) INSERT "(5) transports a child in a motor vehicle in violation of AS 25.05.095(b), and the child suffers physical injury or dies." AMENDMENT 3 Page 2, Lines 11-13 "Sec. 2. AS 11.51.100 is amended by adding a new subsection: (e) Endangering the welfare of a child in the first degree under (a)(4) of this section is a class A misdemeanor." AMENDMENT 4 Page 2, Lines 14-15 Current Sec. 3 is replaced with: "Sec. 3. AS 11.51.100 is amended by adding a new subsection: (f) Endangering the welfare of a child in the first degree under (a)(5) of this section is a (1) class C felony if the child dies; (2) class A misdemeanor if the child suffers serious physical injury; or (3) class B misdemeanor if the child suffers physical injury. DELETE language found in current Sec. 3 Number 1203 CHAIR McGUIRE noted that Amendment 2 contains a typo and thus the statute that should be referenced is AS 28.05.095(b), which currently reads: (b) Except as provided in (c) of this section, a driver may not transport a child under the age of 16 in a motor vehicle unless the driver has provided the required safety device and properly secured each child as described in this subsection. If the child is less than four years of age, the child shall be properly secured in a child safety device meeting the standards of the United States Department of Transportation for a child safety device for infants. If the child is four but not yet 16 years of age, the child shall be properly secured in a child safety device approved for a child of that age and size by the United States Department of Transportation or in a safety belt, whichever is appropriate for the particular child. CHAIR McGUIRE explained that Amendment 2 would reinsert the language removed by the House Health, Education and Social Services Standing Committee creating a new crime of endangering the welfare of a child in the first degree, and that Amendment 4 would make the crime a class C felony if the child dies, a class A misdemeanor if the child suffers serious physical injury, and a class B misdemeanor if the child suffers physical injury. She noted that members' are being given a handout outlining the current penalties and fines for the aforementioned felony and misdemeanor convictions. Number 1370 ALLEN STOREY, Lieutenant, Central Office, Division of Alaska State Troopers, Department of Public Safety (DPS), said that the DPS is in support of the provisions being discussed. He said it is common to come upon situations involving vehicles and alcohol wherein a child hasn't been restrained; in three such cases that he is familiar with, the child was ejected from the car and went sliding down the road. Number 1416 LINDA WILSON, Deputy Director, Central Office, Public Defender Agency (PDA), Department of Administration (DOA), indicated that Amendments 1 and 3 would take care of the concerns she has with proposed [paragraph] (4) of Section 1. With regard to Amendments 2 and 4, she noted that concerns were raised in the House Health, Education and Social Services Standing Committee that there could be difficulty tracking the provisions encompassed in Amendment 4 with the [federal] regulations that would be referenced via Amendment 2. For example, it can be difficult to know what the appropriate car seat is for a particular child depending on his/her weight, height, and other factors, particularly given that a child can grow out of one weight/height class into another in a very short period of time and, thus, a person could unknowingly be exposed to a criminal penalty. MS. WILSON opined that the proposed amendments are a real plus to the bill, and thanked Chair McGuire for proposing those changes. "We certainly all agree that there should be proper support and protection for children," she added. In response to a question, she remarked that when a mental state is not specifically mentioned in a statute, the courts generally construe the mens rea to be knowingly. CHAIR McGUIRE indicated that the goal is to have this provision apply to those who knowingly don't restrain their children properly, and relayed that she would be willing to specify that mental state in the bill. LIEUTENANT STOREY relayed that earlier in the year he'd drafted language regarding the "child restraint issue," and indicated that he would send that language to [the committee]. CHAIR McGUIRE, after ascertaining that no one else wished to testify, closed public testimony on HB 381. Number 1680 REPRESENTATIVE SAMUELS moved to adopt CSHB 381(HES) as the work draft. There being no objection, CSHB 381(HES) was before the committee. Number 1689 CHAIR McGUIRE made a motion to adopt Amendment 1 [text provided previously]. There being no objection, Amendment 1 was adopted. Number 1722 CHAIR McGUIRE stated that she would like to amend Amendment 2 [text provided previously] so that it references AS 28.05.095(b). [No objection was heard and so Amendment 2 was treated as amended.] CHAIR McGUIRE mentioned that she would also be amenable to changing Amendment 2 [as amended] such that it would say in part "serious physical injury" rather than just "physical injury". Number 1729 CHAIR McGUIRE made a motion to adopt Amendment 2 [as amended]. REPRESENTATIVE HOLM objected for the purpose of discussion. He remarked that Ms. Wilson has a good point regarding the difficulty of knowing what kind of restraining device one's child should be in, because a mistake in this regard could make someone a felon. CHAIR McGUIRE asked Ms. Wilson whether she could suggest language to clarify that the bill should apply to those who make no effort at all to restrain a child, and not to those that make a good faith effort to restrain a child. MS. WILSON noted that AS 28.05 does reference the [U.S.] Department of Transportation's standards for safety devices that are required, and said that perhaps the language could be narrowed such that it simply references safety devices. This might avoid the debate about which safety device should have been used, and the bill would then apply to those that use no device whatsoever. MR. HILYARD said that according to his understanding, in six out of ten instances of child fatality in traffic accidents, the children were not restrained at all. Thus, he surmised, even restraining a child improperly will decrease the likelihood, statistically, that he/she will die. He noted that the National Transportation Safety Board (NTSB) recommends that states strengthen their child restraint laws in the following ways: require all children under the age of 4 years old to be in child safety seats; require that 4- to 8-year-old children use auto safety booster seats; eliminate provisions that permit children under 8 years old to be buckled up in a seat belt; and require all children under age 13 to ride in the back seat, if a seat is available. REPRESENTATIVE HOLM suggested that if Amendment 2 [as amended] is altered such that the text being inserted reads in part, "transports a child in a motor vehicle without restraint", it would eliminate the issue of whether the restraint is the appropriate one. CHAIR McGUIRE indicated that she would be amenable to changing the text of Amendment 2 [as amended] to read, " (5) transports a child in a motor vehicle with no restraining device, and the child suffers physical injury or dies." REPRESENTATIVE HOLM mentioned that such language would be agreeable to him. Number 1987 REPRESENTATIVE GRUENBERG indicated that he is opposed to that suggestion. Instead, he relayed, he would be amenable to updating AS 28.05.095(b) such that it includes the NTSB's recommendations. Also, he remarked, he'd like Amendment 2 [as amended] to refer to "serious physical injury", adding that perhaps it should also be amended to reflect that the person "knowingly transports ...". CHAIR McGUIRE asked Lieutenant Storey whether his aforementioned suggested language would provide a compromise between having it be for not restraining a child at all and having it be linked with the federal standards currently referenced in AS 28.05.095(b). LIEUTENANT STOREY said it seems like the sticking point on this issue is the vagueness of AS 28.05.095(b), and posited that perhaps his suggested language, which would update AS 28.05.095(b), might provide a solution. He again relayed that he would provide that language to the committee. On a different point, he said: One of the things that occurred to me while the discussion was going on is that we're holding the driver responsible for it, [but] ... maybe we should hold any ... responsible adult who's in the vehicle responsible for ensuring that the child is restrained, not [just] necessarily the driver. Number 2150 REPRESENTATIVE GRUENBERG, on that point, opined that the language is proper as is, adding: Like the captain of a ship, the driver is responsible for the car and the operation of the car. If somebody else is responsible for strapping the infant in and something happens, then technically that person would be aiding and abetting ... - if they did it knowingly - and ... since it's an accomplice before the fact would be punishable as the principle. ... We should just leave the statute alone in that area. LIEUTENANT STOREY, in response to a question, relayed that language he would be providing the committee references the age and size of a child. For example: if the child is less than one year of age and weighs less than 20 pounds, the child shall be properly restrained in a rear-facing infant seat; if the child is more than one year but less than four and weighs less than 40 pounds but at least 20 pounds, the child shall be properly restrained in a forward-facing child seat. CHAIR McGUIRE remarked that including such criteria in HB 381 might prove controversial and asked Lieutenant Storey whether he'd been considering adding such language to "the primary offense seatbelt law." LIEUTENANT STOREY said yes, adding: "We've been asked by several organizations, police officers, and a couple of legislators ... to look at that because it is vague and they're having some concerns about being able to enforce that provision because of the vagueness of it." CHAIR McGUIRE remarked that because she is proposing to raise the offense to a felony, she wants to be careful with how the language is worded. Number 2260 CHAIR McGUIRE made a motion to adopt a second amendment to Amendment 2, as amended, to add "knowingly" before "transports". Number 2275 DEAN J. GUANELI, Chief Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), suggested instead saying, "unless restrained by a safety belt or another restraining device approved or adopted by the U.S. [Department of Transportation] or the State of Alaska." Such language would provide latitude but not allow the restraint to be some sort of "jury-rigged thing." He opined that there are aspects of AS 20.05.095 that are important and should thus be referenced as well, for example, the exemption for passengers in a school bus and the prohibition against removing the safety belts from a vehicle. CHAIR McGUIRE remarked that although the U.S. Department of Transportation has developed standards, it is unclear "who gets them" or where the general public can go to find out what they are. TAPE 04-65, SIDE B Number 2374 CHAIR McGUIRE mentioned that she likes Mr. Guaneli's suggested language and the idea of specifying "knowingly". On that point, she mentioned that the language she is considering would be something along the lines of: "transports a child in a motor vehicle unless restrained by a safety belt or other child safety device approved by the U.S. [Department of Transportation]". REPRESENTATIVE GRUENBERG opined that "the child seatbelt law should be in one place" and that the amendment's current reference to AS 28.05.095(b) is fine because it could apply even if that statute or its referenced federal standards change. He suggested that the committee adopt the second amendment to Amendment 2, as amended, and then adopt Amendment 2, as amended. He also suggested, however, that AS 28.05.095(b) ought to be updated as well. CHAIR McGUIRE voiced her concern that attempting to change AS 28.05.095(b) [via HB 381] could bog down the bill, and suggested that an alternative would be to forgo adopting Amendment 2, as amended. REPRESENTATIVE GRUENBERG suggested as another alternative that they adopt Amendment 2 [as amended and with the second proposed amendment to it adopted], and then alter Amendment 4 [text provided previously] so that a violation of the language in Amendment 2 would only result in a misdemeanor. He remarked, however, that he likes the current concept in Amendment 4 of making it a class C felony if a child dies because of the violation. MR. GUANELI suggested: "If it were made, 'unless restrained by a safety belt or another device as required by [AS 28.05.095(b)]', that may do it, and ... I think that has the added advantage because ..., internally, ... that references subsection (c) of that statute, ... so you may get the benefit of both." REPRESENTATIVE GRUENBERG opined that such language could be read as lowering the standard because, for example, a person could use a regular seatbelt on a toddler. He said he'd prefer to leave Amendment 2 [as amended and with the second proposed amendment to it adopted] as is. Number 2226 MS. WILSON remarked: You also need to remember, when considering this, ... that the person who's being charged in this particular statute is somebody who's responsible for the child. So it's a parent or guardian or somebody charged with the care of the child. And so if you've got somebody in that situation who, because they didn't put the right seatbelt on their child, and, without any fault of their own other than not putting them in the right seatbelt, was hit by another car and ... and the child dies, can you think of anything worse that would happen? ... You had a part to play in the death of your child - that is such a penalty in and of itself - ... and then now let's charge them with a felony. ... REPRESENTATIVE GRUENBERG, in response to questions, offered his belief that law enforcement can stop a person for a violation of AS 28.05.095(b). MS. WILSON concurred. REPRESENTATIVE HOLM asked whether use of seatbelts would be required in motor homes or on farm vehicles. CHAIR McGUIRE noted that AS 28.05.095(c)(4) currently provides an exemption for vehicles that are not equipped with seatbelts. REPRESENTATIVE GARA added his understanding that seatbelts are only required on public roadways. CHAIR McGUIRE surmised that the question before the committee is whether having a child die because he/she was transported in a vehicle without being properly restrained should engender more than a $50 fine. REPRESENTATIVE GRUENBERG offered his belief that such should result in more than a $50 fine. CHAIR McGUIRE concurred and said she is open to suggestions regarding what that penalty should be. Number 2077 REPRESENTATIVE GARA said he is leaning toward the concept that if one causes terrible injury to one's child, that is penalty enough, but added that [he] also wants to send the message that people need to restrain their children. CHAIR McGUIRE pointed out that the one responsible for not restraining a child could wind up being the babysitter, the drunken boyfriend or girlfriend, or the neighbor. REPRESENTATIVE GRUENBERG asked about probation. MR. GUANELI said that generally, the Department of Corrections (DOC) does not actively supervise anyone on misdemeanor probation. REPRESENTATIVE GRUENBERG said he wants to be sure that probation becomes a part of the [sentencing] equation such that a requirement of that probation would be that for a period of several years, all children under the defendant's care must be properly restrained. CHAIR McGUIRE, noting that she is looking for broader support down the road, suggested altering Amendment 4 such that if the child dies, it would be a class A misdemeanor; if the child suffers serious physical injury, it would be a class B misdemeanor; and if the child suffers a physical injury, it would be a class C misdemeanor. REPRESENTATIVE SAMUELS suggested instead that Amendment 4 be altered such that if the child dies or suffers serious physical injury, it would be a class A misdemeanor; and if the child suffers physical injury, it would be a class B misdemeanor. CHAIR McGUIRE said, "Okay," adding that that would raise the penalties while still preserving the statute that references the federal standards. REPRESENTATIVE GRUENBERG reiterated his preference for making it a class C felony if the child dies. CHAIR McGUIRE pointed out, however that if such a provision is kept in, it would apply even in cases where the person transporting the child got in an accident that was the fault of the other driver. Number 1849 REPRESENTATIVE GARA offered that sometimes there are problems which have no legal solution, and not everything that's wrong in society can be criminalized, and so even though he'd love to find a way to force people to follow the seatbelt law, it may not be possible via criminal statutes. CHAIR McGUIRE remarked that children must rely on adults to keep them alive and safe, and that the current $50 fine does not seem to be a sufficient deterrent. REPRESENTATIVE SAMUELS directed attention to page 1, line 5, and asked who would be included under the language "or other person legally charged with the care of a child". For example, if he were to take a friend's child skiing, would he be considered "legally charged with the care of a child". CHAIR McGUIRE and REPRESENTATIVE GRUENBERG offered their belief that that would be the case in such a situation because he was entrusted with the care of the child by the child's parent or guardian. REPRESENTATIVE GRUENBERG again reiterated his preference for making it a class C felony if the child dies, noting that currently, if a person is guilty of negligent homicide in the death of a child or a child dies under circumstances described under AS 11.51.100(a)(2)(A) - wherein the parent or guardian knowingly leaves a child with a registered sex offender - it's a class C felony. CHAIR McGUIRE indicated that she is hoping to achieve consensus on this issue. REPRESENTATIVE GRUENBERG relayed that he is satisfied with Amendment 4 as it is currently written, and would feel bad if the death of a child did not warrant a class C felony. Number 1621 REPRESENTATIVE GARA said: A fair amount of this conduct I think is covered already, because if you ... get into a car accident and you injure a child and the child wasn't wearing a seatbelt, if the prosecution wants to, they can pursue a recklessness claim. You've endangered that child: you put a child in your car, without a seatbelt, knowing that the reason for the seatbelt is [that] if you get into a car accident the kid's going to get hurt, and you got into a car accident and the kid got hurt, lo and behold. [It's] not rocket science. It's probably already prosecutable. And so then the question is, why wouldn't the [district attorney] prosecute something like that, and I think for the same reason whether they do or they don't is probably the same reason we're sitting here having a hard time deciding whether or not it's a crime. And maybe they would prosecute it in a case where, factually, it makes sense to prosecute it, not in the case of the grieving parent, but in the case of the irresponsible babysitter. And so maybe the current law gives the [district attorney] the discretion that we want to leave. ... MR. GUANELI relayed that the two mental states that might possibly be applicable would be criminal negligence or recklessness. Recklessness involves conscious awareness of a risk and disregarding it, and criminal negligence involves failure to perceive the risk. Both, however, have a similar element in that they constitute a gross and unjustifiable deviation from the standard of care that a reasonable person would exercise. The difficulty for prosecutors, he remarked, lies in applying that particular standard to a seatbelt violation. Unfortunately, it's just too common a violation, he remarked, adding his belief that most juries are not going to find either recklessness or criminal negligence in such cases. Therefore, in order to prosecute such cases, there must be a specific statute that deals with the specific conduct of a seatbelt violation and resulting injury, because, without such, a successful conviction is unlikely. Number 1489 MR. GUANELI, turning to the issue raised by Representative Samuels regarding the phrase, "other person legally charged with the care of the a child", said he is not convinced that that language would apply to the babysitter or neighbor. Instead, he offered, that phrase probably means a foster parent or someone who has temporary custody short of guardianship. Therefore, there is a potential disparity between the standard being applied to parents, guardians, and other persons legally charged with the care of a child, and the standard being applied to babysitters, neighbors, and friends. REPRESENTATIVE SAMUELS indicated a preference for having a higher standard apply to babysitters , neighbors, and friends, because there is nothing worse to a parent than to lose a child and so such would be punishment enough. REPRESENTATIVE GRUENBERG argued that because he believes probationary restrictions should apply for several years in cases where a child dies, the legislature should make such instances a class C felony because felons are subject to supervised probation. CHAIR McGUIRE, referring to Representative Samuels point, said she would be amenable to removing the language, ", under 16 years of age," from AS 11.51.100(a). REPRESENTATIVE GRUENBERG cautioned against doing such, since AS 11.51.100(a) applies to circumstances other than those involving seatbelts. He suggested instead that they consider making a separate statute pertaining to seatbelts that would apply to all persons, not just parents, guardians, or other persons legally charged with the care of a child. Number 1240 MR. GUANELI suggested that perhaps AS 11.51.100(a) could be altered such that paragraphs (1)-(3) would apply to parents, guardians, or other persons legally charged with the care of a child, and proposed paragraphs (4) and (5) would apply to all persons - all drivers. He predicted that such language could be drafted fairly easily. On the issue of probation, he pointed out that if the legislature says that supervised probation shall apply in certain misdemeanor situations, the courts and the Department of Corrections (DOC) will comply, adding that sometimes this occurs now on a case-by-case basis in certain misdemeanor situations when the DOC is asked by the courts to provide supervised probation. He relayed, however, that he is hesitant to suggest that the legislature put such a stipulation in this statute, because it could easily become the practice to put it in a lot of other statutes and, thus, create a burden for the DOC. The committee took an at-ease from 5:10 p.m. to 5:11 p.m. CHAIR McGUIRE proposed that they adopt the second amendment - regarding "knowingly" - to Amendment 2, as amended, [no objection was heard and so Amendment 2, as amended, was treated as amended in this fashion]; that they adopt Amendment 2, as amended; that they adopt Amendments 3 [text provided previously] and 4; and that they stipulate, as suggested by Mr. Guaneli, that proposed paragraphs (4) and (5) apply to all persons. CHAIR announced that the question before the committee was whether to adopt Amendment 2, as amended. REPRESENTATIVE HOLM removed his objection. Number 1119 CHAIR McGUIRE asked whether there were any further [objections] to Amendment 2, as amended. There being none, Amendment 2, as amended, was adopted. Number 1111 CHAIR McGUIRE made a motion to adopt Amendment 3. There being no objection, Amendment 3 was adopted. REPRESENTATIVE GRUENBERG, in response to a question regarding the penalty proposed via Amendments 3 and 4, clarified that proposed paragraph (4) pertains to transporting a child while under the influence of an intoxicant, and proposed paragraph (5) pertains to knowingly transporting a child without a proper restraining device. Number 0997 CHAIR McGUIRE made a motion to adopt Amendment 4. Number 0970 REPRESENTATIVE GRUENBERG objected for the purpose of discussion. He opined that it would be a good policy to stipulate supervised probation for a violation of proposed subsection (f)(2), which provides for a class A misdemeanor in cases where the child is seriously physically injured. He asked whether the committee would be amenable to that. REPRESENTATIVE SAMUELS made mention of the fiscal notes. MS. WILSON pointed out that if a person violates a condition of probation for a misdemeanor crime, it would have the same effect as violating supervised probation. REPRESENTATIVE GRUENBERG asked whether the committee would be amenable to passing a letter of intent encouraging probation for violation of proposed subsection (f)(2). REPRESENTATIVE HOLM suggested that the committee discussion regarding the intent of HB 381 should be sufficient. MR. GUANELI offered his belief that given the DOC's budget situation, unless the DOC is directed to actively supervise someone on misdemeanor probation, it won't happen. REPRESENTATIVE GRUENBERG clarified that he is referring to encouraging misdemeanor probation. REPRESENTATIVE SAMUELS sought clarification from Ms. Wilson that misdemeanor probation would have the effect that Representative Gruenberg is seeking. MS. WILSON said it would. REPRESENTATIVE GRUENBERG removed his objection. Number 0747 CHAIR McGUIRE asked whether there were any further objections to Amendment 4. There being none, Amendment 4 was adopted. Number 0735 CHAIR McGUIRE made a motion to adopt Conceptual Amendment 5, to have paragraphs (1)-(3) apply to parents, guardians, or other persons legally charged with the care of a child, and to have proposed paragraphs (4) and (5) apply to all drivers. There being no objection, Conceptual Amendment 5 was adopted. Number 0680 REPRESENTATIVE HOLM moved to report CSHB 381(HES), as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 381(JUD) was reported from the House Judiciary Standing Committee.