Legislature(2015 - 2016)GRUENBERG 120
04/09/2016 01:00 PM House JUDICIARY
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HB 286-FISH & GAME: OFFENSES;LICENSES;PENALTIES 2:34:52 PM CHAIR LEDOUX announced that the next order of business would be HOUSE BILL NO. 286, "An Act relating to sport fishing, hunting, or trapping licenses, tags, or permits; relating to penalties for certain sport fishing, hunting, and trapping license violations; relating to restrictions on the issuance of sport fishing, hunting, and trapping licenses; creating violations and amending fines and restitution for certain fish and game offenses; relating to commercial fishing violations; allowing lost federal matching funds from the Pittman - Robertson, Dingell - Johnson/Wallop - Breaux programs to be included in an order of restitution; adding a definition of 'electronic form'; amending Rule 5(a)(4), Alaska Rules of Minor Offense Procedure; and providing for an effective date." 2:35:07 PM KEVIN BROOKS, Deputy Commissioner, Department of Fish & Game, explained that the bill is a joint effort between the Department of Fish & Game (ADFG), Department of Public Safety (DPS) and the Department of Law (DOL). He related the bill was previously heard in the House Resources Standing Committee and is virtually identical to its companion bill, SB 164, currently in the Senate Rules Standing Committee. The bill provides Alaska Wildlife Troopers authority to issue correctable citations and allows a person to go to a DPS office and correct the citation by showing proof they had their license at the time the citation occurred. He pointed out that the bill also offers the following: standardizes penalties for violations throughout Title 16; aligns serious offenses committed within Title 16 with appropriate class A misdemeanor penalty; offenses to be charged as a violation when appropriate; prohibits an individual from receiving an Alaska license if their privileges have been revoked in another state; raises commercial fishing violation fines that have not changed in over two decades; raises restitution amounts for animals harvested illegally that have not been changed in over two decades; allows for leniency by not assessing restitution for a hunting mistake if the defendant voluntarily and immediately turns themselves in for a violation offense; and allows for the display of a license in electronic format to reflect modernization efforts the Department of Fish & Game has made to the Department of Fish & Game licensing programs. 2:38:02 PM BERNARD CHASTAIN, Major/Deputy Director, Division of Alaska Wildlife Troopers, Department of Public Safety, offered to go through each of the changes from the original version or answer questions from the committee. CHAIR LEDOUX asked Major Chastain to discuss the most important changes. 2:38:40 PM MAJOR CHASTAIN referred to page 1, line 5, and said a semicolon was added to the title itself, "; creating an exemption for payment of restitution;". 2:38:56 PM MAJOR CHASTAIN [referred to AS 16.05.330] said that page 2, Sec. 3, line 21, removes the words "tag or permit" from an item that can be correctable, and removes reference to the court. He advised the language allows the Alaska Wildlife Troopers or the issuing agency to write a citation that can be a correctable offense if the hunter or fisherman brings proof of their license to an office within a certain period of time. CHAIR LEDOUX referred to Sec. 3, line 24, [AS 16.05.330(h)], which read: (h) A peace officer presented with an electronic device under (g) of this section is immune from any liability resulting from damage to the device. CHAIR LEDOUX asked him what it is referring to. MAJOR CHASTAIN responded that the Department of Fish & Game (ADFG), at some point in time, is planning to develop electronic licenses to take the place of a paper license. He explained that oftentimes troopers will board boats in inclement weather and damage to the cell phone or electronic device may occur while inspecting the license. The provision holds the ADFG immune from any liability resulting from damage to that device, he advised. CHAIR LEDOUX asked Major Chastain whether he really thinks it is such a significant problem that it is likely to happen, and she commented that this sounds like boarding Alaska Airlines and putting your phone under the screen. Although, she doesn't really have any problems with it, it just seems strange to have it in here, she said. MAJOR CHASTAIN stated that he does not have a problem with whether the provision is in the bill, but the purpose is that in the event a device is damaged ADG&G is immune from liability. In the event the Alaska Department of Fish & Game does go to electronic licensing that section is in place for that purpose, he explained. 2:42:10 PM MR. BROOKS advised the provision was included because other states have encountered this problem within their licensing programs. The rationale being that a person could still carry their paper license if they so choose, he said. CHAIR LEDOUX pointed out that usually when there is an exemption for negligence, there is usually an exemption to the exemption for recklessness, and that is not included in the provision. She commented that she was unsure the amount being discussed with respect to the device is ... REPRESENTATIVE CLAMAN offered a scenario of a trooper asking for a license, the fisherman hands the phone to the trooper in the pouring rain, and it slips out of the trooper hands and falls into the stream; can the trooper be sued. The practical side is why a person would bring their cell phone out fishing and instead show the trooper a paper license. He noted that Chair LeDoux raised an interesting question as to whether the committee should be in the business of a criminal statute, and should the committee specifically provide this kind of exemption to liability. He agreed that this is a peculiar provision to have in what is essentially a criminal violation within a civil violation statute. CHAIR LEDOUX agreed that it is similar to the bar review questions. CHAIR LEDOUX agreed with Representative Lynn that it doesn't really matter one way or the other. 2:44:40 PM MAJOR CHASTAIN turned to page 5, line 6, and said the change adds the words "and (c) of this section," which addresses the changes in section 18, of which he would discuss momentarily. CHAIR LEDOUX referred to Sec. 15 [page 4, lines 25-30] and asked whether the fines and sentences in this provision are less or more than in current statute. MAJOR CHASTAIN explained that all of the sections that discuss fines, class A misdemeanors, and punishable under AS 12.55 are all aligned together and provide one class of crime, which is a class A misdemeanor for a situation where a trooper can prove a culpable mental state. A second class of crime, which is a violation offense, for situations where there is no culpable mental state, he explained. CHAIR LEDOUX reiterated her question and asked whether that it is less than the current statute. MAJOR CHASTAIN asked Chair LeDoux to turn to Sec. 15, page 4, lines 27-29, that delete [BY A FINE OF NOT MORE THAN $10,000, OR BY IMPRISONMENT FOR NOT MORE THAN SIX MONTHS, OR BY BOTH], and on lines 26-27 it makes it a class A misdemeanor of which the maximum fine is $10,000 or a year in jail. 2:46:27 PM CHAIR LEDOUX surmised it raises the amount of time spent in jail. MAJOR CHASTAIN explained it aligns with class A misdemeanors since Title 16 had a variety of penalties scattered throughout, this bill attempts to align those together. CHAIR LEDOUX pointed out that the committee has been working on the criminal justice bill in which the idea is for the least serious crimes to not result in much in the way jail sentences. She further pointed out that this bill appears to have more in the way of jail sentences, which perturbs her, but she likes the portion of the bill regarding a correctable citation. She said she was noting the issue and asked Major Chastain to proceed. 2:47:53 PM MAJOR CHASTAIN [referred to AS 16.05.925(a)] Sec. 17, page 5, line 6, and reiterated that it adds language "and (c) of this section" to address changes in Sec. 18 of this bill. 2:48:08 PM MAJOR CHASTAIN [referred to AS 16.05.925(b)] Sec. 17, page 5, lines 14-25, and said it changes restitution amounts for big game animals taken illegally, and the court may impose up to that amount in addition to any fine for an animal unlawfully taken within the State of Alaska. CHAIR LEDOUX asked whether this is a fine, because restitution is normally to the victim and the victim in this case is the animal. MAJOR CHASTAIN said it is a restitution amount paid to the state for unlawfully taking an illegal animal, and each animal listed is of value to the state in different ways. The animals are valued in money to the state such as, the amount of money for social and economic reasons, and because another hunter would not be able to take that animal if it is taken illegally out the system. He advised that in 1995, this section was added for restitution amounts the court may impose, in addition to any fines or penalties given by the court. These are typically only imposed when a misdemeanor or a more serious crime has been committed, and it attempts to make the state whole for the illegal animal taken, he explained. CHAIR LEDOUX pointed out that restitution means there is a victim other than the state, and asked why it wouldn't be a fine. MAJOR CHASTAIN responded that all animals taken illegally belong to the State of Alaska; therefore, the state is the victim. He opined that these restitution amounts are paid to the state in an attempt to make the state whole for the illegal take. 2:50:48 PM REPRESENTATIVE KREISS-TOMKINS referred to Sec. 17, and noted the marginal increases in restitution for different species of game varies dramatically and asked the rationale. MR. BROOKS responded that the bill, in its original form, increased by 50 percent and was tied to an inflation adjustment from the time the restitution section was originally placed in statute in the mid-1990s. The House Resources Standing Committee discussed the differences in animals, such as a moose that could feed people for a long time. The amounts were changed by that committee and in some cases were raised above the 50 percent figure originally listed in the bill, he explained. REPRESENTATIVE KREISS-TOMKINS referred to the felony theft threshold legislation from two years ago, the committee's work on the criminal justice reform bill, and the issue with certain dollar figures becoming outdated because the economy and inflation marches on. He asked whether there had been thought in tying these numbers to the CPI so they automatically increase slightly every year. MR. BROOKS advised there was discussion during the drafting stages to tie it to the CPI, and he could not recall why the choice was made to just update the 50 percent. He commented that it would complicate the bill to put a formula in there and it is a different approach. 2:53:59 PM CHAIR LEDOUX asked why it would complicate the bill. MR. BROOKS responded that inserting a formula ... CHAIR LEDOUX interjected that a formula would be inserted stating it will be evaluated every five years according to the consumer price index (CPI). She remarked that it does not sound complicated. MR. BROOKS agreed that it doesn't sound that complicated. 2:54:23 PM REPRESENTATIVE KELLER asked the amount of restitution the state collected last year under this section. MR. BROOKS said he does not have that information with him and reiterated that these are "not to exceed" amounts, and the court has the discretion in determining the seriousness of the case to go up to this amount. He opined that that may have been another reason it wasn't tied to a hard formula, but it is a number he could bring back to the committee if there is interest in that. REPRESENTATIVE KELLER noted that he is thinking, possibly, this is insignificant economically to the department. MR. BROOKS advised that all revenue for civil penalties go into the Department of Fish & Game fund, subject to appropriation by the legislature. Criminal penalties go to the Department of Public Safety and, he commented, the intent of these statutes is to be a deterrent. 2:55:44 PM MAJOR CHASTAIN [referred to AS 16.05.925] Sec. 18, page 5, line 26 and noted that Sec. 17 refers to several portions that read: and (c) of this section. He referred to Sec. 18, line 26, and said it creates a new section that provides that a court may not order restitution under Sec. 17 in a case where a defendant voluntarily turns themselves in and is charged with a violation offense. He noted that it also provides that a person must voluntarily and immediately report to the Department of Fish & Game or the Department of Public Safety a violation they committed to qualify for this affirmative defense. Basically, he explained, each year there are quite a few people who make hunting mistakes and use good ethics by salvaging the animal from the field and turn themselves into the office of Alaska Wildlife Troopers. He explained, in that scenario, rather than charging the person with a misdemeanor offense, they are charged with a violation that carries a maximum penalty of $500. He further explained that the person then loses the illegally taken animal, but nothing else happens. In that scenario, the court cannot order restitution, the court can only order the defendant to pay the fine, he explained. 2:57:15 PM MAJOR CHASTAIN [referred to AS 16.10.110] Sec. 24, page 6, line 24, and advised it was a drafting statute number error that was corrected. MAJOR CHASTAIN opined that Sec. 28, page 7, lines 9-10 was changed to remove a previous section specifying that a court rule must be changed in order to make an official correctable citation, but in consultation with the court system the court rule does not have to be changed. MAJOR CHASTAIN advised that those are all of the substantive changes within HB 286, Version N. REPRESENTATIVE KREISS-TOMKINS asked Mr. Aaron Peterson, Department of Law, whether there is a reason not to tie the restitution penalties to inflation. 2:58:58 PM AARON PETERSON, Assistant Attorney General, Office of Special Prosecutions, Criminal Division, Department of Law, said he was not involved in the drafting process on this bill, but the decision was made to simply raise the amounts in concert with what the CPI increases have been since they were initially enacted, and they were changed again by the previous committee. He remarked that a formula tying it to the CPI could work and that he would have to research the potential for an argument as to whether it would be a problem. 3:00:26 PM REPRESENTATIVE CLAMAN commented that it is interesting the committee received this bill in the midst of working on the criminal justice reform bill and consequently it considers coming up with a formula to index for inflation on a five-year basis. He suggested reviewing the criminal justice reform bill to determine whether the indexing provision should be modified to include additional sections of the criminal code and these codes. Therefore, every fifth year perform the exercise of indexing for inflation rather than the legislature having to do this, it becomes an exercise that the government is supposed to go through. Every fifth year the government will do all of them and the legislature will not have to try to determine what is indexed and what isn't. He said this bill refers to the criminal code for $10,000 misdemeanor fine level, but the committee is comfortable raising that fine level to $25,000 which would impact this bill through what is being done ... CHAIR LEDOUX interjected that the bill is being held. REPRESENTATIVE CLAMAN noted that these are questions the committee members may not have had if they hadn't been spending so much time on the crime bill. 3:02:09 PM REPRESENTATIVE KELLER referred to Chair LeDoux's intent to hold the bill probably makes his comment unnecessary, but opined that if the committee knew how many times a judge goes for the maximum it would impact it also. He said that he doubts it happens often because there are always mitigating circumstances and this gives the judge a lot of leeway to add something on top of the fines. He commented that it is a tool in the judge's toolbox and the exact amount is not all that critical. CHAIR LEDOUX opened public testimony. 3:03:17 PM STEVEN SAMUELSON, said he is a five generation Southeast Alaska family member, has been a commercial fisherman for most of his life, and he has the deepest respect for the governing entities and that their assistance on the water is much appreciated. He opined that the following provision is premature and referred to [AS 16.05.330(h), Sec. 3] page 2, lines 24-25, which read: (h) A peace officer presented with an electronic device under (g) of this section is immune from any liability resulting from damage to the device. MR. SAMUELSON stated that he can speak to subsection (h) and extended that when a ship at sea is boarded it is never a pleasant thing. Currently, permit cards issued for fisheries are similar to a credit card and can be scanned and under this bill [the department] is not liable if a trooper takes a cell phone or smart phone from a person for their license. Yet, he asked, where is his protection if something on the trooper's end breaks, is he liable, and does the boat insurance have to take care of it. 3:05:12 PM MR. SAMUELSON referred to killing a moose in Southeast Alaska, and explained that Moose brow tines are difficult to see in a scope, and while the hunter is trying to determine the tines they are also thinking about feeding their family, and in the meantime the moose is ready to take off. The hunter determines the tines are correct, takes the shot and then realizes they were wrong, or it breaks off, or something else happens. Now, he pointed out, the hunter is liable for the $500 fine which, if a person is doing this purposefully and illegally it should be more than $500, but mistakes happen. Further, he advised, there are more consequences than just the $500 fine, in that they have to go to court and are then put on probation. Although, if the hunter is not a habitual offender it probably isn't a problem. He said some of the raises and increases don't make sense to him because he has found in several fish and game court cases when it has to do with commercial fishing or anything with the Department of Fish & Game, it is very strict. He acknowledged the misdemeanor language and different classification in the bill, but that he doesn't always see that used in court. Quite frankly, he expressed, the laws of certificates, commercial regulations, and the Department of Fish & Game could be a whole bill in itself. He expressed appreciation to the committee and was hopeful the committee would take a close look at the bill before moving it out. CHAIR LEDOUX closed public testimony after ascertaining no one further wished to testify. 3:07:54 PM REPRESENTATIVE MILLETT referred to surrendering the meat when an animal has accidentally been killed, and pointed out that in Rural Alaska oftentimes someone hunts far from a food bank or a charity. She asked whether the individual is still required to surrender the meat. MR. BROOKS deferred to Major Chastain. MAJOR CHASTAIN responded that that is an important piece of how the troopers operate and how hunting violations are enforced across the state. In the event a person takes an illegal animal and turns themselves in, that meat is given to individuals, charities, churches, veterans, and Native groups. In a Rural Alaska situation, the meat goes to the same community the defendant lives and is distributed to many people in that area. Oftentimes, he said, when the meat is salvaged in good condition the meat is almost always given away rather than held in a freezer as evidence because the meat goes to better use by giving it to the community. 3:09:59 PM REPRESENTATIVE MILLETT asked who transports the meat in a remote area. MAJOR CHASTAIN answered that it depends upon the circumstances, for example, if someone voluntarily turns themselves in, they bring the meat out of the field, give it to the troopers, and the charity picks it up from the office. He said if the troopers catch someone in the field violating, they physically seize and remove the meat from the field and it is given to a charity in that local area. 3:10:55 PM CHAIR LEDOUX referred to the testimony that the ADFG is moving toward electronic devices, and asked whether people will still have the option of using paper licenses, or be required to put their license on their cell phones. She further asked whether the individual is left without any recourse if a trooper drops the cell phone. MR. BROOKS stated that the department will continue to accept paper and this is meant to be a convenience to the licensee and nothing more than that. CHAIR LEDOUX surmised that individuals will continue to have the option and if a person believes the weather is too rough to hand over their cell phone, they have the option of using their paper license. MR. BROOKS responded, absolutely. [HB 286 was held over.]